Our Courts As Our Last Human Place
Introduction.
One part of Post-Theory Art proposes and argues this:
Our courts of law will be the last public square where humans stand before humans, to be heard, to ask for justice, and to decide what is right.
Human law — itself a human theory — a set of human theories — may be seen as a universal language that all humans use to decide what only humans can judge.
Our courts of law will be the last place left where human imperfections — our human acts both good and evil — meet human imperfections — our human decisions both fair and unjust.
Our courts will be the one last place where one human life will weighed and considered by another human life.
Our last human space may not be the public square. It may well be the public court, where humans may come, and stand before another human, and argue, listen, and decide — however imperfectly — human judges and human juries applying our human theories of law.
This research paper discusses the intellectual history and art history of other thinkers and artists that provide foundation for the above that may be seen in post-theory art.
Our Public Courts as the Last Human Forum.
As artificial intelligence becomes an increasingly dominant force across private and public life, it appears that one public institution may remain human the longest — the public courts — because of the distinct nature of our public courts — currently, only humans may represent others in our courts, and, currently only humans may decide, be it judge or jury. In courts only humans may come, only humans may hear, only humans may decide — and all of it is not about any natural law or law of science — all of it is about human-made laws. Human theories expressed as human laws.
This paper discusses some of the research supporting the proposition that courts may be the last remaining space of exclusive human interaction and decision-making in an AI world.
The paper examines philosophical, legal, and artistic perspectives on the role of courts, the nature of law as a human theory, the concept of law as a universal language across countries, cultures, and times, and the space that we call “courthouses” as the final place that may be human, with all its imperfections.
Some Reasons Why Courts May Be Our Last Human Forum.
Courts appear to be unique among our private and public institutions in that they require direct human participation at every level — and, so far, most importantly, courts currently do not allow anyone but humans to appear before the courts to make arguments (lawyers, attorneys) — and Courts do not allow anyone to decide anything unless they are human (judges, juries).
While AI has been introduced to assist with legal research, arguments, and writing, the core of legal adjudication — no matter the country or culture — so far remains exclusively human. Perhaps one reason is that, unlike scientific inquiry, which relies on empirical observation about natural laws — such as the laws of physics or chemistry — legal reasoning entirely different — it applies something that humans made up ourselves — our human laws. Perhaps because these are imperfect, or perhaps because they allow for some amounts of flexibility and interpretation, it may be that courts and law are not suited for AI. Either way, currently, courts forbid non-humans from appearing in court (a human must appear on behalf of a corporation, for example; a human must appear for an animal); and, so far, it appears that state constitutions and the United States constitution would forbid a computer, machine, or AI to be a judge or a member of a jury. So far, at least in the United States, the right to a jury of one’s peers means a jury of human peers. So far, we seem to have assumed that, at least in the context of juries, particularly in criminal trials where incarceration or even death is the punishment, no AI can be a human peer that is allowed to judge the fate of a human. For these and other reasons beyond the scope of this initial paper, Courts may be, for many reasons, the last human place in an age of AI.
Courts and human-made theory-law, so far, allow for argument, persuasion, and the exercise of discretion if particular facts exist — sometimes facts inferred from human perception of another human’s body language, tone, and voice — such as in judging whether a person is truly expressing remorse.
The application of human laws to humans — and the judging of the fate of another human, whether they had intent or not, whether there was malice in their heart or not, whether they are, ultimately, guilty or not — these are human things and this is an inherently human process. Imperfect as it is, this human process is, so far, thought to be entirely dependent on human-ness, including the lived experiences of individual humans, the collective experiences of a given human society, the application of moral reasoning adopted by a given human society, and the intangible and almost ephemeral balancing of competing facts that may not just arise from documents, data, and acts, but also from the subtleties of human emotion and the fine lines between intent and mistake, intent and premeditation, and more — all of these are human elements that resist reduction to computational logic and statistical algorithms.
This paper is not the first to consider the subject. For example, Sir Geoffrey Vos, a senior judge in England and Wales, has argued for the explicit recognition of a right to have legal cases decided by human judges, not AI. His argument appears to center on the idea that legal adjudication is not merely a mechanical process of applying rules but an exercise of democratic legitimacy. As courts increasingly integrate AI tools, Vos has raised concerns that decisions made without human oversight may lack the necessary elements of accountability, public trust, and moral reasoning that underpin the rule of law. The author’s research on this as proposed by Vos continues.
Law as a Human-Made Theory.
Research demonstrates that, worldwide, legal scholars and cultural philosophers have long debated the nature of “law” and its relationship to human societies. Broadly, unlike the laws of physics or chemistry or thermodynamics, which govern the natural world and do not have exceptions or discretion, legal systems are created by humans, for humans, and interpreted by humans — with constant exercise of exceptions and discretion, both fair and unfair. This distinction appears to be the critical distinction in understanding why courts remain a uniquely human domain, at least at the conceptual and philosophical level.
There are also theories about legal theories — a kind of post-theory about human law itself. For example, legal realism proposes the idea that judicial decisions are not purely mechanical applications of written laws, but rather are shaped by individual judges’ life experiences, social contexts, and personal ethical and moral views — for both the better and the worse. This perspective stands in contrast to another set of post-theories about law, such as formalist or positivist views that argue “law” is an objective set of rules and that judges and juries are, or should be, mere vehicles through which rules are applied. In turn, the research suggests that legal realists would argue that the human element in law is irreplaceable because justice is not merely about consistency and uniformity of rule application — rather it is also about inherently subjective human concepts such as fairness, equity, equality, and adaptability of legal rules to increasingly complex and evolving societal conditions — and adaptability to the unique facts that may exist that lead a jury to conclude that a person is guilty not innocent, based on the most subtle indications that a witness was not honest, by their words and voice and tone on the stand.
At a more conceptual level, beyond human law as applied to the individual, research suggests that a philosopher named Jürgen Habermas, in Between Facts and Norms, presents human law as a medium of social integration that enables individual humans to coexist within a shared framework of norms. From this, apparently, he argues that human law serves as a universal human language through which society — and societies — negotiate conflicts and establish legitimate governance. This understanding of human law — if I am understanding it correctly — appears to reinforce the idea that our courts function as a critical and unique human space where competing human perspectives are debated, and collective human agreements and compromises about human rights and responsibilities are forged. So far, I take this to mean that not only is human-ness needed for courts when considering adjudication as to any one particular human, so to is human-ness needed in courts for society adjudicating, or at least figuring out, what our human laws should and should not be doing.
The Human Universality of Law — or, Law as a Universal Human Language.
The idea that our human theories of law are also actually a human universal language has also been examined in the context of international law, where legal principles are applied across national boundaries, where different nations may have different legal norms and conceptions of things like rights.
For example, documents such as the Universal Declaration of Human Rights may be seen as an attempt to establish common legal principles applicable to all people, regardless of nationality or culture. In a conceptual sense, this could be argued to be a universal human language, one of law, sounding in rights, and something like related theories that music can be a universal human language, and that math can be a universal human language, too.
The Universal Declaration of Human Rights, adopted by the United Nations in 1948, embodies the notion that certain rights and legal principles are universal across all human countries, cultures, and times, and should be upheld by all nations. While obviously the enforcement of international law varies by country, culture, and time, the declaration itself — which in theory could be seen as a type of text-based artwork — represents an human attempt to codify a human legal theory of human rights that transcends any one individual legal system and speaks to the shared values of humanity.
Artistic Responses Found To Date Relevant to Courts Being The Last Human Public Space.
So far, research indicates that several artists have engaged critically with the growing role of AI in human decision-making, and their artworks offer insights into how and why there exists an irreplaceable nature of human judgment. While not focused explicitly on the idea that courts may be the last place of human expression and human decision-making, several artistic works examine the implications of AI replacing human roles in authoritative spaces.
For example, the artist Stephanie Dinkins’ Conversations with Bina48 explores the current limitations of AI in understanding human identity and social experience. In ongoing dialogues with an AI, Dinkins demonstrated the gaps in the algorithm’s ability to grasp even basic cultural, historical, and personal experience nuances. Her work highlights the fundamental difference between human interaction — body language, tone, eyes, emotional response, and more — and AI logical and statistical data processing, and arguably demonstrates that that legal decision-making in courts should remain exclusively human.
As just one other example so far, an artist collective — the KairUs Collective — appears to have also examined this in the collective’s piece Suspicious Behavior: A Data Annotation Tutorial, a work that critiques AI-driven surveillance and decision-making. The interactive project immersed participants in the process of training AI to recognize “suspicious behavior,” and demonstrated the fundamental biases and ethical failures that can exist in algorithmic “judgment.” The work may also be said to argue for the necessity of human-ness in areas where fairness, context, and moral reasoning are both essential and subtle — areas that are central to judicial decision-making and judging a human as guilty or innocent.
The above artistic interventions are just a few of those found so far in the research. Research into the ideas in this paper continue, as well as with respect to their connection with post-theory art.
Conclusion.
Or courts may be our last human place to do something we made ourselves and for ourselves. We made our human laws to recognize our humanness and to have a way by which humans may judge another human when needed. It is our human law. Only humans are our peers. No machine may judge a human. This argument is just part of post-theory art. It is also an argument of post-theory law.
