This is part III of III. I said in part II that I would post the references if there were "popular demand." Parts I and II have been met with such deafening silence that I'm only finishing the text because I finish what I start and I owe it to the dozen or so who read the first parts.
Live and learn.
Escape From The Matrix
If Morpheus is John the Baptist and Neo is Christ, then Cypher must be Judas Iscariot. Cypher betrays the rebels over a steak dinner, a welcome respite from the gray goo the resistance fighters normally eat, a throwback to the illusions of The Matrix. When we consume bovine flesh, what matters are the proteins, which we do not directly observe. We respond, instead, to the matrix of sensations that tell us whether the late cow was grass- or grain-fed, and whether the meat was grilled on hickory or mesquite. Is it such a stretch from sensations that make up a matrix to sensations that are created by a matrix? Certainly, the majority of humankind can make the stretch if the matrix is not a giant computer, but instead an anthropomorphic deity.
It is fair to ask: If The Matrix were reality rather than fiction, how would we know? Reasonable people differ over whether The Matrix is theoretically possible at this time. Philosopher Daniel Barwick argued not in 2002; a year later, Google engineer Ray Kurzweil took the affirmative position.
However realistic the film trilogy may be, the marketocracy matrix is not only possible, but is beginning to function as a de facto world government. If the market is in fact the ultimate arbiter of all value, then resistance is futile. We will be assimilated or consigned to living under a black sky, a broken economic wasteland. In this scenario there is no red pill, and no red core of value to which we may retreat (i.e., no way forward and no way back).
Nations and the Red Pill
Whether or not there is a red pill, there is gray goo: the downside of nanotechnology. As nuclear power is to a nuclear winter, nanotechnology is to the gray goo. Imagine machines that work at the molecular level, self-replicating and programmed to, say, dismantle cancer cells.
Now imagine the same machines programmed to attack any carbon-based life form. The result would be something like ice nine, as imagined by Kurt Vonnegut in Cat’s Cradle. As ice nine froze all the water in the world, so nanoprobes designed for the purpose could turn every living thing into gray goo.
The techno-optimist would point out that we have managed not to exterminate ourselves with nuclear energy. This is true, leaving aside that when the first chain reaction was summoned forth in a squash court at the University of Chicago, not everybody believed that it could be controlled. The casualties of nuclear energy, so far, are a few hundred thousand counting both weapons use and industrial accidents. We might believe nuclear fission was the worse case scenario, because we split the atom for the purpose of making a weapon. More benign uses came later.
As Sun Microsystems’ Bill Joy points out in his seminal article, “Why the Future Doesn’t Need Us,” nuclear research was under control of nation-states for the purpose of weapons. Nanotechnology is under control of transnational corporations for the purpose of profit. While it was and is a chancy business, nuclear energy has so far answered to the political helm. Nanotechnology answers to no helm but the market. Joy states the problem: “There is no profit in publicizing the dangers."
Unfortunately, there can be profit in significant preventable harms. These harms can be viewed as criminal opportunities or economic inevitabilities, and include such actions as the marketing of unsafe products in developing nations, the disposal of toxic wastes, the use of child labor, the production of defective products, the exposure of uninformed and unprotected workers to toxic chemicals or dangerous working conditions, and the manipulation of markets, as well as price gouging and other financial depredations. All of these harms are crimes somewhere, but might not be so in an international marketocracy, where legal sanctions against these practices are anti-competitive externalities. How can price gouging be criminal? The market will bear what the market will bear and the value to be served is return on investment.
If my task is to suggest some value that might trump return on investment, the physical survival of the human race seems a logical place to start, and nanotechnology is not the only place where the existence of human life might become an issue. Of course, survival is merely a wedge issue. The next question is survival on what terms? If we make people more important than money, what comes next? Air and water? Endangered species? Leisure time? Life would certainly be simpler if we could measure all values with a common metric. There is a very broad sense in which a terrorist who looses the gray goo nanoprobes has engaged in an economic calculus, just like any other suicide bomber has. We just do not agree with the assignments of value. The marketocracy can not tell us how to choose between incommensurable values beyond a bidding war.
Values, the Red Pill, and the Laws of Robotics
Robots and corporations are intended to be perfect slaves, in that they go where we are unable to go but remain subservient to our ultimate values. Or so we hope. For the created to be better than the creator is the goal, but reaching the goal makes control problematic. Karel Çapek’s 1923 play R.U.R. is probably the earliest example of human hopes colliding with reality, if we do not count Cain and Abel. The question is not how to avoid the collision, but rather how to survive it.
Isaac Asimov, in collaboration with John W. Campbell, first posited the Three Laws of Robotics in 1940, and they became the locus of human-robot interactions in stories by Asimov and many other SF writers until 45 years later, when Asimov tucked the Zeroth Law into the top of the hierarchy. It is perhaps telling for the metaphor proposed in this article that Asimov locates the Zeroth Law as a discovery by the robots themselves acting on the necessary import of the First Law. Hoping it is not too late, I offer here Asimov’s Laws of Robotics modified as guiding principles for how transnational corporations should be allowed to organize.
Zeroth Law. A juridical person (transnational corporation) may not injure humanity, or, through inaction, allow humanity to come to harm.
First Law. A juridical person (transnational corporation) may not injure a natural person, or, through inaction, allow a natural person to come to harm, unless this would violate the Zeroth Law of transnational corporations.
Second Law. A transnational corporation must obey orders given it by nation states, except where such orders would conflict with the Zeroth or First Law.
Third Law. A transnational corporation must protect its own existence as long as such protection does not conflict with the Zeroth, First, or Second Law.
These laws are subject to criticism at both ends. Natural persons speaking for juridical persons would point out correctly that the original three laws contained enough ambiguity to fuel 45 years of storytelling (albeit by some of the most original thinkers humankind has produced). What is “harm”? What is “injury”? How might the three laws conflict? Adding “humanity” on top truly wraps several enigmas in a riddle: How many humans does it take to equal humanity?
Furthermore, the transnational corporation is simply the newest iteration of human organization, a reassertion of the world empire after a circa 400 year interregnum, and empire with a much more optimistic outlook for humanity. The old empire was based on the will of God as enforced by military power. The new empire will be based on the will of certain people as expressed in the global movement of capital, labor, and goods. If it is undemocratic in the ideal sense, it is more democratic than the Holy Roman Empire was either holy or Roman, and it will be more of an empire to boot. The cornerstone of the new empire is not production but consumption. The ultimate weapons become the democratic sword of the consumer boycott and the means to wield it (i.e., information technology), since killing one’s customers is a poor business practice.
Natural persons speaking for themselves have a different objection. The (now four) Laws are too little, too late. Asimov postulated that the original three laws would be hardwired into robots or, more broadly, information technology. Corporations have fairly benign origins, but they became juridical persons in the United States without serious debate and acquired with that status a bundle of rights that carry along very few duties. Now that transnational corporations are beholden to no nation for their existence, their personhood is not a quirk of United States municipal law, but rather an international fait accompli.
Federal chartering of corporations is a grand idea whose time is past, unless chartering is meant to limit the right to do business, which is not currently an attribute of state charters. Corporate persons, like natural persons, cross state lines at will and submit themselves to the jurisdiction of state courts not by any formal declaration but when they have sufficient contact with the state to meet due process standards, as found in International Shoe Co. v. Washington (1945), or not found in World-Wide Volkswagen Corp. v. Woodson (1980). In the age of globalization, they do the same with international boundaries.
Corporate law has become more than metaphorically an artificial intelligence. Asimov wrote in 1991 of the death of a robot’s lawyer, after the robot became the first of his kind to be declared legally human:
Yet he was not really alone. If a man had died, the firm of Feingold and Charney lived, for a corporation does not die any more than a robot does. The firm had its directions and it followed them soullessly.
With all respect to the United States Supreme Court, a corporation is not a person and was never intended to be freed by the Fourteenth Amendment. A corporation is a piece of legal technology, ink on paper, a technology of the mind.
Asimov again:
Mankind has always chosen to counter the evils of technology, not by abandonment of technology, but by additional technology. The smoke of an indoor fire was countered by the chimney. The danger of the spear was countered by the shield. The danger of the mass army was countered by the city wall.
This attitude, despite the steady drizzle of backwardist outcries, has continued to the present.
What can we say, then, about the wonder of legal technology that is the transnational corporation? Is it the hegemon of the 21st Century, beyond all hope of control? Not yet.
Transnational criminal justice policy begins with control of piracy—in the United States, with the matter of the Barbary pirates. In modern times, Interpol coordinates apprehension of individuals across national boundaries.
The objective is to bring individual criminals to book in the municipal courts of the offended nation.
Crimes by state actors are addressed, to the extent that they are addressed at all, in the Permanent International Court of Justice and by the United Nations Security Council, which can authorize policing by military force.
In 1998, the international community created a new forum to try individuals for the most egregious crimes against humanity. While this International Criminal Court is an obvious mechanism to attack transnational terrorism, it proceeds at this time without the cooperation of the United States.
Conspicuously absent in the modern complex of international criminal justice institutions is any means to try corporate persons that cause harm across international borders, or to enforce judgments against corporate persons when they are entered by municipal courts. There is no control mechanism hardwired into the transnational corporation and none has been added since corporate persons escaped national boundaries. The very concept of corporate crime is highly contested, and while enterprise liability is becoming more common outside the United States, it is not yet an international norm.
Call them crimes or call them torts, preventable harms by corporations cannot always be contained within national borders. Other times, harms may be apparently contained within national borders, but still have transnational impact by creating a human rights crisis, as when corporations use local corruption to loot a national asset in a nation with few assets. It is not always possible to draw clear distinctions between environmental issues and human rights issues, but it is clear that preventable corporate harms pose a threat to the international community that currently lacks a control mechanism.
A control mechanism is, of course, superfluous and probably counterproductive if the marketocratic faith is correctly placed. The big corporate fish will continue to eat the small corporate fish until there is no more conflict. But if we decide to reach back into our toolkit of legal technology while that reach does not exceed our grasp, we can say the control mechanism, like the controlled entity, must be transnational in scope (e.g., something like the World Trade Organization with the human values of clean air and water and fair labor standards).
The content of regulation is moot unless we seize the power to regulate. We are dealing with an artificial intelligence that was not hardwired with Asimov’s laws, and the first step to correcting that error is to take the red pill. The problem is not so much creating a transnational jurisprudence, as it is discovering we need one while there is still some authority that is not a David among transnational Goliaths, and while our policy choices are still choices and not just illusions of the marketocracy matrix.