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Law and Justice in the Digital Space

The jurist Horst Eidenmüller is one of the first international Fellows to undertake research at the bidt. As part of his project, he is investigating the impact of technological developments on the law.

The most valuable gift you can give a scientist is critical feedback on his ideas.

Prof. Dr. Horst Eidenmüller

Since March, the chair of business law at Oxford University has been one of the first international Fellows to undertake research at the bidt. Under its annual fellowships, the bidt offers opportunities for researchers to undertake investigations into questions of digitalisation, making its infrastructure and interdisciplinary network available for this purpose. “My motivation for applying was to be able to exchange views with colleagues who are at home with the same research questions. This expectation has certainly been fulfilled”, says Eidenmüller, who most recently gave a lecture as part of the bidt’s regular Sprint Reviews.

Impact on law is multidimensional

Horst Eidenmüller is working on a book project ‘Law by Algorithm’, having been studying the impact of technological developments on law and legal practice for many years. With this current project, he is investigating the effects of digitalisation, artificial intelligence as well as blockchain.

The new technologies are already having an enormous impact on legal practice.

Prof. Dr. Horst Eidenmüller

Innovations are so commonplace today that many barely attract any attention. Yet, new technologies are changing “legal practice from initiation to the enforcement of contracts”, as Eidenmüller illustrates with two examples. Firstly, an online purchase is often initiated following machine-generated recommendations which are based on information about previous purchases and personal interests. Any post-sale problems are resolved on the basis of conflict resolution processes that are also based on artificial intelligence. Secondly, so-called smart devices continue to retain an internet connection to the vendor of the product, “That allows the vendor simply to switch off the device from a distance in case of contractual difficulties, for example if payment arrives too late.”

New technologies also raise questions about legal categories that do not yet exist. These include considerations of whether or not artificially intelligent robots should be treated as legally responsible under certain circumstances. “The European Parliament already prompted the question several years ago of whether robots should be granted legal responsibility under certain preconditions. Just as a corporation is a legal entity, a self-driving car, for example, would then also have its own legal personality.”

Trained in changing perspectives

Finally, as a third area being examined by Eidenmüller, “entirely new questions are being raised in the application and administration of law”. While in the common understanding, the physical presence of judges in court buildings is still very much part of court procedure, technological developments make it possible to conduct legislative and judicial procedures in an entirely different way than has hitherto been the case. Eidenmüller, who also works as mediator and arbitrator, has himself conducted many mediation proceedings via Zoom in recent months. As a mediator, he values this change of perspective, particularly the “direct feedback effect”:

I find it very inspiring to receive impressions from practice on a topic that a number of people are working on scientifically at the same time.

Prof. Dr. Horst Eidenmüller

However, the practice of law could change drastically not only through virtual procedures, but also through the use of artificial intelligence. Another even more far-reaching step would involve a case no longer handled by a human judge, but instead decided with the help of artificial intelligence. Consequently, will there be virtual court procedures led by robots in the future? “That is all still very much up in the air”, says Eidenmüller.

In Germany, such thought experiments may initially trigger fears. But that is not the case everywhere. Eidenmüller is well aware of the different takes on digitalisation. In 2015, he moved from the LMU, where he held the Chair of Civic Law, German, European and International Business Law, to Oxford University, and has been commuting between Munich and Oxford ever since. He has also maintained his connections in the US for years through his research and guest professorships.

I believe the English, as with the Americans, initially view the opportunities, including economic benefits, associated with new technological developments. In Germany, potential problems and risks come first.

Prof. Dr. Horst Eidenmüller

Here, domestic debate has very much been to do with existing norms and standards, as shown by early exchanges regarding international comparisons, then discussion on data protection and currently considerations about liability in the use of AI.

As a scientist, Eidenmüller profits from gaining knowledge about the different perspectives on technological developments. His original impetus for going to the UK, for instance, was to look beyond the viewpoint of a typical German jurist. This has more than paid off for him: “Even as a young student, I was already interested in legal philosophy and legal theory. When you focus on such questions, you inevitably look beyond your own legal system. When I was studying in the 1980s, globalisation was picking up speed. Hence, it seemed like a logical step to go to England or the US.”

In his leisure time, Eidenmüller is a passionate mountaineer and climber. “That is a sport where you have to be completely undistracted and live in the moment. When you are hanging onto a rock and climbing a difficult route, you cannot work on emails at the same time.” In this way, he deliberately creates distance from one of the challenges of digital communication: the daily flood of news and information. At the same time, he gains precious time to think about new projects and pressing questions.

Horst Eidenmüller is convinced that the legal system can profit from new technological possibilities, including in particular the use of artificial intelligence. He sees it as his task to accompany this development from a legal point of view.

As a jurist, you observe the developments in society that are relevant to your own field and you try to contribute to providing the right answers.

Prof. Dr. Horst Eidenmüller

Thus, this expert in insolvency law of many years standing, is currently devoting himself to the effects of the COVID pandemic on companies.

Through COVID, digitalisation has also been expedited in recent years. Here it is above all the power of Big Tech, i.e. Amazon, Google, Apple, Microsoft and Facebook, whose explosive growth and market power “has produced a very acute significance” according to Eidenmüller. “These corporations are using the latest technologies towards consumers and trading partners. This raises the question of how this power can be controlled legally, especially through antitrust law. Moreover, what ways are there to prevent the advantages of technological developments from benefitting primarily single companies?” We have a huge challenge to deal with and a responsibility from a legal perspective to shape the digital space in such a way that allows everyone to benefit equally.