Document Type

Book Chapter

Publication Date

2022

Abstract

This is a chapter for the forthcoming book, Contracting and Contract Law in the Age of Artificial Intelligence, edited by Martin Ebers, Cristina Poncibò, and Mimi Zou, to be published by Hart Publishing. The aim of this chapter is to offer a general theory of contract law to account for the inclusion of artificial intelligence in contract practices. Artificial intelligence brings out that what makes contract law a distinctive form of legal obligation is shared intentionality. I refer to this insight as the shared intentionality thesis. Shared intentionality is the psychological capacity of one agent to share and pursue a joint goal with another agent. It is an attribute of human thought empowering human planning and the ability to share agency with others. Shared intentionality leads to a focus on objective intent to enter contractual relations in Anglo-American contract law as the primary concept in understanding what is distinctive about contractual obligation. The doctrine of objective intent in contract law operates as a Turing test for determining whether a contract has been formed. The chapter explains that it does not matter which “mind” is thought to produce this intent – human or artificial. The issue is attribution of the right sort of mental states by one contract party to another. Daniel Dennett’s notion of the intentional stance, as well as philosophical work on mindreading, can assist in developing this argument. The chapter focuses on understanding how folk psychology can lead humans to the sort of recognition that is needed to engage with increasing levels of artificial intelligence in contracting. What gives artificial intelligence intent is not some internal workings of its programming but us – the ascription of intentionality to artificial intelligence by humans. But the intentional stance on its own does not offer an adequate explanation of a special kind of intent that is needed for contract formation. It does not inform us about the sort of “we” intentionality or the ability to engage in future directed intentions as elements of stable plans of action in the form of contracts. Shared intentionality, a concept developed by philosopher Michael Bratman, evolutionary anthropologist Michael Tomasello and others, is the core of contractual obligation. It does not matter whether this shared intentionality is the result of human or artificial agency. Of course, artificial intelligence on its own does not yet have the sort of agency required for shared intentionality but it likely will in the non-too-distant future.

Source Publication

London: Hart Publishing

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