Jan Mihal

This Element introduces a new jurisprudence for exploring artificial intelligence (AI) and law in an open and creative way. Drawing upon the backgrounds of, respectively, an Indigenous jurisprudent and poet (Black) and a legal philosopher (Mihal), the Element develops a 'mythosophical' approach informed by narrative theory, Indigenous jurisprudence, and original interpretations of stories from the past. To imagine possible lawful futures with AI, the Element weaves a stream of what it calls 'flows', designed to allow readers openness and flexibility as they engage with the ideas underpinning this new jurisprudence. As worldwide changes sweep us into a vortex of ceaseless innovation, the Element provides a cultural scaffolding through which to relate to AI as an autonomous, cunning, 'non-human' intelligence in lawful terms. It offers insights both old and new which assist in reconceptualising problems and aligning with the paradigm-shattering changes of the present day.

In this paper, I defend the possibility that law is a functional kind by replying to objections from Leslie Green and Brian Tamanaha. I also show how Kenneth Ehrenberg’s approach to law’s functions in his latest book concedes too much to these objections. A functional kinds approach to law is possible and, for someone interested in showing the importance of law’s functions, preferable. I first explore Tamanaha’s objection and show that the possibility of functional equivalents does not pose a problem for a functional kinds account of law. I then respond to Green by showing that law is more distinctively identified by its function than by the means by which it achieves this function. I quickly explore a lesser objection dealing with how law can pursue a variety of ends while having the same function the whole while. I then turn to an issue Ehrenberg raises regarding thinking of the law as having a plurality of functions like a Swiss Army knife. Finally, I show that Ehrenberg’s approach to the relationship between law and its functions is unnecessarily weak, as it avoids holding that law's nature or essence is its proper function for similar reasons to Green and Tamanaha.