The ‘Minds Count Annual Lecture 2026’ by The Honourable Justice Peter Quinlan, Chief Justice of Western Australia
This lecture has been reproduced in its entirety with the kind permission of Chief Justice Quinlan and the Supreme Court of Western Australia. Information about the important work of the Minds Count Foundation can be found on its website.
It is a great honour and privilege to be asked, this evening, to present the Minds Count Annual Lecture for 2026, the twentieth such lecture since its establishment as the Tristan Jepson Memorial Lecture. And to do so, here, on the traditional lands of the Gadigal people of the Eora nation, which I acknowledge and to whose elders, past and present, I pay my respects.
I have long admired the work of the Tristan Jepson Memorial Foundation, as the Minds Count Foundation was first known, and I pay my particular respects to any family and friends of Tristan Jepson who join us today in person, or online. As my remarks this evening are intended to convey, it is ultimately our human relationships that sustain the law as an institution, and it is essential to the maintenance of those relationships that we name those persons with whom we find ourselves connected in myriad different ways.
The renaming of the Tristan Jepson Memorial Foundation, as the Minds Counts Foundation, however, is also important to the theme of my remarks tonight. As I hope to address, drawing upon the study of the philosophy of mind, minds count – minds matter – not only as essential to the health and wellbeing of those of us who work in the legal system, but to the very structure of the law itself.
Attention to what it is to have a ‘mind’ itself may assist us to reflect upon the other focus of my remarks, and our discussion, tonight: artificial intelligence and both the challenges and opportunities that it presents to legal and judicial practice.
But first, let me talk about some fun stuff: poetry.
And for poetry, I turn to my favourite poem by my favourite poet: Spring and Fall by the Victorian Jesuit poet Gerard Manley Hopkins.
Spring and Fall
to a young child
Margaret, are you grieving
Over Goldengrove unleaving?
Leaves like the things of man, you
With your fresh thoughts care for, can you?
Ah! as the heart grows older
It will come to such sights colder
By and by, nor spare a sigh
Though worlds of wanwood leafmeal lie;
And yet you will weep and know why.
Now no matter, child, the name:
Sorrow’s springs are the same.
Nor mouth had, no nor mind, expressed
What heart heard of, ghost guessed:
It is the blight man was born for,
It is Margaret you mourn for.
My daughter Harper reminded me the other day that when she was about 12 years old, I insisted that she study the meaning of this poem line by line.
The key, of course, is in the subtitle, ‘to a young child’. Hopkins is speaking to a young girl, named Margaret, who is crying because it is autumn and all the leaves of her favourite grove of trees have fallen to the ground (‘Goldengrove unleaving’). Hopkins is touched by her reaction, a reaction which, it seems, the child probably doesn’t understand. And he points out to Margaret, that as she grows older she is not going to have the same reaction to falling leaves, even though she will see ‘worlds of wanwood leafmeal lie’.
But then comes the turn in the poem. Hopkins tells the child that in the future she will experience further grief and sadness, throughout her life, and that indeed, all of those sadnesses in life are connected: ‘sorrow’s springs are the same’ even if she can’t name what it is now, and can only guess in her heart or spirit (‘ghost guessed’).
And then comes the final couplet, with the beautiful rhythm of her name repeated and echoing the first line of the poem:
It is the blight man was born for,
It is Margaret you mourn for.
It is Margaret’s own mortality that she is faintly recognising in her sorrow over the fallen leaves. The fact that she, and everyone she knows and loves, will one day die.
As I said, my favourite poem.
Turning then to a little bit of philosophy and, in particular, philosophy of the mind. A nice little touch in this area is that a lot of the professional philosophers in this field are Australian, including Professor Frank Jackson, Professor David Chalmers and Professor Barry Maund, who was a professor at the University of Western Australia, and whose son is an old high school friend of mine who went to the UWA Law School. I am indebted to these thinkers for some of the basic ideas I am about to discuss. They are, of course, not responsible for the fact that I have probably not understood their work at all.
Philosophers who work in philosophy of mind have a wonderful word, which some of you may have heard: qualia.
Qualia is a word used to describe the subjective experience of things that we all have; the ‘what it is like’ character of subjective experience. Qualia are a fundamental part of consciousness, of being a conscious being, and of being a human being, in particular.
A classic example of qualia is the experience of seeing that something is red. You are all experiencing what it means to see red right now. It’s an immediate direct experience which is quite separate to, and different from, any proposition that might be made about that experience. Giving you information such as: ‘red’ is the colour in the visible light spectrum, that has a dominant wavelength of approximately 625 – 750 nanometres, does not tell you anything about what it is like to perceive something as red. That ‘what it is like’ is the qualia of red.
So one definition of qualia, given by Professor Jackson is ‘certain features of the bodily sensations especially, but also of certain perceptual experiences, which no amount of purely physical information includes’.
Now, the subjective experience of colour is a good example of qualia or a quale, but we need to understand that qualia are not confined to bodily or perceptual experiences like the pain of stubbing your toe, or the smell of a particular flower. Qualia also describe the subjective qualities of emotions, such as joy, or grief, or depression and of intellectual activity, like thinking, remembering, or planning.
Philosopher David Bentley Hart put it this way:
As a rule, qualia are understood chiefly in terms of sensuous experience: colour, taste, sound, palpation, fragrance, a shock of pain, a quiver of pleasure and so forth. … There are also subjective qualities [qualia] attached to an emotional state, to an apprehension, to a memory, to a frame of mind, to a sudden realisation, even to the experience of thinking about something. An incalculable range of purely private experience inflects and illumines every feature of our subjective world and it gives us the world not just as a collection of objective properties “out there” but also as an immediate presence within our very awareness of ourselves.
Now, by definition, qualia cannot be communicated: they are private subjective experiences. We can describe what it is like to taste a particular wine, but that is not the same thing as directly experiencing it.
Nevertheless, can I suggest, the best way that we can attempt to communicate the qualia of some experience, what it feels like, is through art and poetry. Returning to our poem, you will recognise that it is attempting to capture, in poetic language, the qualia of grief, and in particular the qualia of grief about our own mortality. And, interestingly, as I will come to, it captures the very ineffable quality of some emotions:
Nor mouth had, no nor mind, expressed
What heart heard of, ghost guessed:
So even Margaret’s direct experience remains something of a mystery to her.
Before I leave qualia, for the moment, I should mention that this philosophical detour of mine does not even begin to scratch the surface of the big debates in relation to the philosophy of the mind, and indeed what is called ‘the hard problem of consciousness’, namely how and why we have these subjective experiences.
And within that debate, there are numerous sub-debates. Some philosophers, and neuroscientists, for example, maintain that qualia do not actually exist, or are simply a feature of physical complexity. In that group – physicalists – we might include, for example, the philosopher and cognitive scientist Daniel Dennett.
Others, like David Chalmers, maintain that qualia are real and that qualia, and indeed consciousness generally, while arising out of physical systems, are not themselves physical and that the mind is separate from the body. Chalmers, originally from Sydney and now Professor of Philosophy and Neural Science at New York University, is something of a rock star in philosophy of the mind. At least he looks like a rock star.
Chalmers has a famous argument against physicalism involving a thought experiment about what he describes as ‘philosophical zombies’. Philosophical zombies don’t look like this.
On the contrary, a philosophical zombie, is a being that is, atom for atom, physically identical to a human being in every way, except that it does not have qualia or consciousness. It behaves, reacts and responds to external stimuli in exactly the same way as a human being, but without any accompanying subjective experience. So, if you cut a philosophical zombie, it will bleed, it will wince and it will say ‘ouch’; but it will not have the experience of pain. There is simply cause and effect without any subjective experience.
Chalmers argues that, because we can conceive of philosophical zombies as a logical possibility, consciousness must be non-physical and, thus, physicalism must be wrong. Physicalist Daniel Dennett’s response to the argument is that, either, philosophical zombies are indeed a logical impossibility, or, alternatively, that all humans, including all of us here in this room, are in fact philosophical zombies. Needless to say I deny this last proposition as the sort of nonsense that only an academic philosopher could believe.
Nevertheless, the hard problem of consciousness remains.
It is, however, another problem in the philosophy of mind that I now want to touch on. Which is this: given that qualia are so apparently private and subjective, how can we actually know that other people have them. How do I know that all of you, in this room, actually have internal subjective experience and aren’t in fact philosophical zombies.
The problem of other people’s minds is another perennial issue in philosophy. And there have been a variety of responses to it. A classical response, often associated with John Stuart Mill, is the argument based on analogical inference. That is, that we draw the inference that other people have minds based on their behaviour which, I happen to notice, is very much like mine. I look at how you behave and I infer that you have subjective experience, just as I do.
There is something in this. Anyone who has listened to a direction to a jury about states of mind will notice that juries are routinely directed that, in order to reach conclusions about the content of another person’s mind, they must draw inferences from that person’s words and behaviour in all of the circumstances. Notice, however, that even that direction assumes that other people have minds, and is concerned with the content of those minds. It does not say anything about whether they in fact have minds.
And, when you think about it for a moment, there does seem something a bit strange about thinking that the only reason that I know that other people have minds is because I can infer it from their behaviour. I am pretty sure, for example, that I did not at some time in my life reach a logical conclusion that other people were real. I have known that other people are real, for as long as I have known myself to be so.
So John Stuart Mill’s analogical inference doesn’t quite capture the reality of what it means to be a human being.
For this reason, in the twentieth century, a number of philosophers took a different route, concluding, in different ways, that our certainty about other people’s minds is part and parcel of our existence as social animals.
An influential figure in this area was the Austrian philosopher, Ludwig Wittgenstein. Wittgenstein denied that we reach the conclusion that other people have internal subjective states, as suggested by the analogical inference. On the contrary, Wittgenstein maintained that we directly experience other people as people with consciousness or qualia. We might even say that an encounter with another human being has its own qualia.
In a passage that Australian philosopher Raimond Gaita described as one of the most radical passages in the history of philosophy, Wittgenstein described the immediacy of our experience of fellow human beings in the following way. In describing an encounter with a person in pain he said:
‘I believe that she is suffering’ – Do I also believe that she isn’t an automaton? It would go against the grain to use the word in both connexions. …
‘I believe that she is not an automaton’, just like that, so far makes no sense.
My attitude towards her is an attitude towards a soul. I am not of the opinion that she has a soul.
‘Soul’ in this context doesn’t have any mystical or religious meaning. It doesn’t mean eternal soul. It just means a fully realised, living feeling human being. When I come into meaningful contact with another person, I don’t form an opinion (or draw an inference) that he or she is real and has an inner life (just like me). Rather, I experience it. Wittgenstein calls such contact an ‘attitude of the soul’.
Raimond Gaita gives the following example of ‘an attitude towards a soul’: looking into a person’s face while binding his wounds. He goes on:
The fact that it is, in general, natural for us to look into a person’s face while binding his wounds, and other facts like that, conditions our concept of pain, and inseparably from that, our sense of the object of our pity – a-human-being-in-pain.
… Wittgenstein seems to believe that our interactions with one another which are of the kind he calls ‘an attitude towards a soul’ form, rather than depend upon, our sense of being a common (human) kind …
So our interactions with others, particularly with those who are suffering in some way, don’t simply engage our sense of common humanity. They actually form or produce that sense of common humanity.
A contribution to this area of philosophy that I think is particularly useful, and interesting, is that of phenomenologist Edith Stein, a particular hero of mine who was murdered by the Nazis at Auschwitz.
Stein was a student of the founder of phenomenology, Edmund Husserl, and, in her 1917 doctoral thesis, she built upon Husserl’s notion of ‘intersubjectivity’. Intersubjectivity refers to the way in which all human experience exists in a world of shared experience or understanding: what we might call the social reality of our very existence. None of us exist purely subjectively; we always and everywhere exist in relation to others.
So we have three ideas operating here: the subjective (what happens within us), the intersubjective (the sharing of experience between different persons) and the objective (the world or reality as it is).
Obviously, as lawyers and judges, we are very concerned with ‘objectivity’, the world as it really is and the objective application of laws within that world.
Edith Stein’s philosophy adds, I think, three particular insights in relation to the issue we have been discussing.
Stein’s first insight was that what makes intersubjective experience possible is empathy. It is empathetic experience that enables us to know the minds of others. To quote her philosophical biographer, Alasdair MacIntyre:
What Stein’s account brings out is that we are not in fact presented by others with mere bodily movements. There is not something which is their mere outward expression of grief as contrasted with some unobservable inner reality. The grief is present in its expression and, when someone else expresses their grief, what is presented to me, what I become directly aware of, is the grief of the other.
It is the same insight as Wittgenstein’s, but it explicitly situates the direct experience of the other’s subjectivity in empathy. And empathy, of course, is a human capacity or ability that we can get better at; we can become through practice more empathetic. And so better at experiencing the subjectivity of other persons. We can do so by paying close attention to those around us.
As an aside, you will be aware, especially those who work in criminal and family law of the need to deal with vicarious trauma in the practice of the law. It is an important topic and obviously of great significance for the work of the Minds Count Foundation. But we should notice that vicarious trauma itself, only arises because we have the capacity for empathy. So let us be careful how we address it. I often say to people in this context, that ‘yes, we need to look after ourselves when encountering trauma’, but we nevertheless should ‘let some of it in’. It is, after all, what makes us human.
Stein’s second insight is this: because my experience of the subjectivity of others is a direct experience and is therefore similar (although not identical) to my experience of my own subjectivity, the interaction between me and another person – our intersubjectivity – can help clarify what I understand about myself. That is ‘our understanding of ourselves is open to correction by what we learn about ourselves from others through our empathetic awareness of their view of us’. We all know this: when we genuinely encounter another person – in whatever way – if we are paying attention, we find out as much, if not more, about ourselves as we do the other person.
And, finally, it is this capacity for self-correction and empathy that enables us to collectively arrive at what is objectively real. To quote Stein herself: ’empathy as the basis of intersubjective experience becomes the condition of the possible knowledge of the existing outer world’.
Let’s see, how this all plays out by returning to our poem.
Remember I described the poem as attempting to capture, in language, the qualia – the subjective experience – of Margaret’s grief, even if that subjective experience was a mystery to Margaret herself.
Well the poem tells us even more about empathy and intersubjectivity. Because the entire poem is Hopkin’s empathetic response to Margaret’s grief. In seeing Margaret crying, Hopkins directly experiences her grief, and recognises in it the grief within himself. Their grief become ‘intersubjective’, and with that intersubjectivity, Hopkins can recognise that their grief is one and the same (‘sorrow’s springs are the same’). So he can recognise something in her that she does not yet recognise in herself, but which she will one day (‘you will weep and know why’).
And he can move from their intersubjectivity to something objectively real about the human condition (‘the blight man was born for’), something which we, the reader or the listener, can have access to and which, in turn, can affect our own understanding of ourselves and our world.
And so with this, there is an unbroken chain, from the most subjective of experiences (qualia) to an objective understanding of ourselves and the world.
What does all this have to do with the law?
Well, can I suggest, that what we think of as ‘the law’, that objective set of rules that govern us, is just one long, extended exercise in intersubjectivity, in which we seek to work out, collectively, what is ‘objectively’ the just outcome in any particular situation, and a ‘just’ process for arriving at that outcome. And, of course, we carry out that long, extended exercise in intersubjectivity in the medium of language.
The ‘law’ – objective as it is – is the product of our intersubjectivity and, so also, of our empathy; for our experience of others (indeed all of the qualia that go to make us human).
Of course, there is nothing new in this. Consider this quote from Gleeson CJ, Gummow and Hayne JJ in the High Court:
Laws and customs do not exist in a vacuum. They are, in Professor Julius Stone’s words, ‘socially derivative and non-autonomous’. As Professor Honoré has pointed out, it is axiomatic that ‘all laws are laws of a society or group’. Or as was said earlier, in Paton’s Jurisprudence, ‘law is but a result of all the forces that go to make society’.
Or, perhaps, a little more succinctly. Consider how Oliver Wendell Holmes, the great American jurist, began his famous lectures on the common law:
The life of the law has not been logic: it has been experience.
All of our legal principles, all of our laws, ultimately derive from some form of experience, and in particular from some qualia associated with those experiences.
Let me give a few examples.
The law of undue influence, can I suggest, would not exist were it not for the fact that human beings know ‘what it is like’ to have their will overborne, and can empathise with that having happened to another person. The qualia of being subject to undue influence is essential to the creation of the doctrine.
Similarly, the law of provocation as a defence to an assault would not exist, were it not for the fact that human beings know ‘what it is like’ to feel insulted, and what that feeling can do to our powers of self-control: the qualia of being insulted and the qualia of our temper. And because of our own experience of being insulted, and the intersubjectivity of each other’s experience of being insulted, we are all able to arrive at what the law refers to as the objective standard of the ordinary person’s capacity for self-control.
We go from the subjective, to the intersubjective, to the objective.
You could multiply the examples, indefinitely, as you trace back all of the ‘forces that go to make up a society’ and which create our laws: trust, betrayal, confidence, pain, violation, and so on and so on.
None of this would be possible without qualia. Without subjective human experience and intersubjectivity.
And notice another thing, it is not just that these subjective experiences and our empathetic awareness of those subjective experiences create these legal principles: they also sustain them. They enable us to recognise those occasions upon which the law must change because what we thought was objectively the case was distorted or misunderstood, or because changes in social forces have meant that the experiences themselves have changed.
The law of provocation is a good example of this. As became evident in the reform of the law relating to homicide in Western Australia, the experience, the qualia, upon which much of the law in that area was based, was the experience of men and not the experience of women. As the Final Report of the Western Australian Law Reform Commission’s Review of the Law of Homicide observed:
The response patterns of women do not necessarily fit within the requirements of [the law] While it is no longer necessary that the killing occurred suddenly or immediately after the provocative conduct occurred, any delay between provocation and killing might be evidence to suggest that the accused did not actually lose self-control. As Tarrant has observed, women ‘who are victims of repeated marital violence regularly respond at a time other than the time of the attack’. Some women ‘might respond to provocation by suffering a ‘slow-burn’ of anger, despair and fear which eventually erupts into the killing of the provoker’.
The ”slow-burn’ of anger, despair and fear which eventually erupts’ has a particular qualia. A qualia that the law, through lack of attention to the experience of women, had not properly recognised.
And so, once recognised, the law had to change. As the law has had to change in so many other areas as we appreciate better the qualia of particular experiences, and the impact they have on our actions. Witness, for example, the significant changes in the law relating to family and domestic violence in recent years.
I should also add that legal and judicial practice have their own distinct qualia that we should also not ignore. I remember this most vividly the first time that I sentenced a person to imprisonment. Almost immediately after pronouncing sentence I walked into another judge’s chambers and said something along the lines of, ‘I have just had the most unusual experience’. There is a unique feeling or qualia of ‘what it is like’, when your words have such an immediate effect on the trajectory of another person’s life. What that is like is as difficult to describe as the colour red. Fortunately for me, the judge to whom I made that remark had the practical wisdom to say ‘I know. Don’t forget it’. And indeed there is a certain qualia to the making of many different types of decision.
Just as there is in legal practice. ‘What it is like’ to feel that you have actually contributed to a client seeing what was in their own best interest, even in the face of conflicting pressures. Conversely, ‘what is it like’ to have a client reject your advice and set themselves on a slow course towards disaster. The unique, suspended, anxiety that comes from waiting for a jury’s verdict. The penny-dropping qualia of working out the answer to a complex legal problem that has eluded you? I am sure you will be able to identify countless others yourselves.
All of these qualia too have their important place in creating and sustaining the law and legal practice. And we should pay attention to them.
And so, I return, finally, to the original idea for my topic this evening: artificial intelligence.
What might we say about artificial intelligence, AI, in this context?
The first thing is not to downplay AI’s considerable mastery of language, including its mastery of language about the qualia of our experience. As someone who has worked a lot with AI in recent times, I never cease to be amazed by what appears to be its level of insight, and indeed, understanding. It really is a magnificent tool.
To illustrate this, I conducted a little experiment as part of the preparation for this speech.
I asked Claude (my current preferred AI program), to rewrite Gerard Manley Hopkin’s poem ‘Spring and Fall’ in the form of a Taylor Swift song. Within seconds, it produced the following lyrics for a song entitled ‘all the leaves (and me)’:
all the leaves (and me)
October called, I picked up anyway
Goldengrove was letting go again
you were standing in the yard in your
yellow coat, seven years old and already
breaking my heart
and you don’t know why you’re crying but I do, oh I do
we don’t talk about the thing underneath
the thing that lives below the feeling
below the name we give the feeling
I’ve been there in my cardigan in my backyard at 3 am
watching things fall
it’s not the leaves, it’s not the season
it’s not the cold without a reason
Margaret, darling, can’t you see
every time you mourn the autumn
you’re mourning you you’re mourning me
we’re all just grieving what we’re going to be
and I’ve got journals full of this
the same sorrow in different ink
different years, same October light
same wanwood, same heartbreak
different name for the same thing
I’m thirty-three and I still cry at leaves
so maybe we never figure it out
maybe that’s the whole point
it’s not the leaves, it’s not the season
it’s the oldest, saddest reason
Margaret, darling, now you see
all that sorrow had a name, love
and the name was always you and me
I think you will agree with me that, predictable and obvious as the cardigan reference is, this is quite a remarkable achievement. And like the original poem, captures something of the qualia of our awareness of our own mortality.
Now, I have to confess that when I carried out this exercise, I also asked Claude to rewrite the poem in a number of different styles: including, Charles Bukowski, E E Cummings and Chappel Roan to name a few.
I’ll share just one more. I asked Claude to rewrite the poem in the style of Nick Cave, circa the Bad Seeds’ 2019 album Ghosteen. This is what it came up with:
GOLDENGROVE
And Margaret stood in the garden
in the year of our forgetting
and the trees were giving up their dead
as trees have always done
and I watched her from the doorway
with my hands that know too much
and I thought
child you are weeping for the leaves
but the leaves are not the matter
I have stood where she is standing
I have wept that selfsame weeping
in Liverpool
in Melbourne
in the year your mother left
in the year that Arthur—
Because sorrow has one source
and one source only
and it rises in the chest
before the mind can name it
before the mouth can form the question
the ghost already knows the answer
the ghost has always known the answer
And the leaves fall, Margaret
and the leaves fall
leafmeal into wanwood
wanwood into earth
earth into the thing
we do not speak of
at the table or in church
or in the long good night
before the sleeping
It is Margaret you mourn for
It was always Margaret
It was always you
It was always
Maybe Claude was having a bad day. But I don’t think that this is nearly as good as the Taylor Swift version. It is too derivative of Hopkins’ poem and it has a particular line that, if it were not written by a computer program, would border on offensive.
What I have in mind is the reference to Cave’s son Arthur, who died in 2015 when Arthur was only 15 years old. Cave has spoken openly, and beautifully, of his grief on many occasions, and while Arthur’s name does not appear in any of his lyrics, that grief has permeated much of his art since that time.
And so there seems, can I suggest, something deeply unsettling about the name appearing in this version of the poem written by Claude.
Why might that be?
It is, can I suggest, because we know that Claude is appropriating Nick Cave’s experience, the unique qualia attached to a very personal tragedy, and it is doing so with absolutely no sense of what that personal tragedy feels like.
Notice that the Taylor Swift version did not trouble us in the same way. It borrowed a genre, a persona, a set of conventions – the cardigan, the 3am confessional – but it did not borrow, or seek to appropriate, from someone’s actual grief.
And notice something else: the fact that you felt the difference – that the Taylor Swift version delighted you and the Nick Cave version made you wince – was itself an act of empathetic, intersubjective judgment. Claude cannot tell the difference between the two. It has no way of knowing that one of these griefs is borrowed and one is owed – and owed to a particular human being.
Because artificial intelligence does not have qualia. It has no subjective experience of what ‘it is like’ to experience grief. No matter how effectively it creates the illusion of doing so. And indeed it has none of the qualia that give us our subjectivity, or the intersubjectivity that enable us to know ourselves and the world around us.
What it is, is incredibly good at using and manipulating the product of our intersubjectivity: our language. As is, of course, evident in the description of much AI: the Large Language Model. It takes, and manipulates language, the product of our subjectivity, our qualia, and our intersubjectivity, but it is detached from what creates and sustains that language. It can follow our rules and patterns, better and faster than we can, but does not know what ‘it feels like’ to do so. Or where they ultimately came from.
To put it bluntly, AI is David Chalmers’ philosophical zombie. It behaves, reacts and responds to external stimuli in exactly the same way as a human being, but without subjective experience.
I am conscious that there is already a vibrant debate about whether certain artificial intelligence systems are already conscious. David Chalmers himself published a paper a few years ago entitled Could a Large Language Model be Conscious? While Chalmers reached the overall conclusion that, presently, ‘none of the reasons for denying consciousness in these systems is conclusive, but collectively they add up’, he thought that there was a serious possibility that we will have conscious Large Language Models within a decade. And so, in the not too distant future, artificial intelligence may have qualia, with all of the ethical consequences that possibility entails.
But it would nevertheless remain the case that whatever consciousness artificial intelligence might in future attain, whatever qualia it might have, it would still not be the qualia of what it is to be human. However conscious artificial intelligence might become, it still won’t know ‘what it is like’ to be a member of the species homo sapiens; to know what is like suffer the pain of betrayal, to be proud of one’s children or to experience the anxiety of our own mortality. Those qualia, and so many more, will always remain, essentially, ours.
And what does this mean for the law? Quite a lot, I think.
Chief Justice Gageler recently remarked, in a lecture given to the Japanese Judiciary at the Supreme Court of Japan in Tokyo:
[A]rtificial intelligence is artificial reasoning on stilts. I think that it is likely to produce more predictable, equally learned, if not more learned, and fair outcomes than human judges. This is my true fear.
It will not come as much surprise to you to hear that I agree with Gageler CJ. Indeed, I think that, in many respects, we are already there: AI is already, particularly in the area of civil law, able to ‘produce more predictable, equally learned, if not more learned, and fair outcomes than human judges’.
But if that is so, what is there to ‘fear’, as Gageler CJ evidently does (‘This is my true fear’)? It is certainly something I fear too; indeed it is one of the few things, I confess, that keeps me up at night. But why fear? If AI can produce more predictable, equally learned, and fair outcomes than human judges, what is there to worry about? Shouldn’t we just let it?
Is it because you and I might ultimately be out of a job? Perhaps, although I don’t think so, at least in my case. Let’s face it, I will probably reach the age of retirement before judges and courts are finally replaced by artificial intelligence, although, if that day comes some of you may not be so lucky.
Or is it something else? A fear that, in the process of handing over the law to artificial intelligence, something real will have been lost along the way, even if, like Margaret looking at the barren grove of trees, we can’t at first recognise what that ‘something real’ is (‘what heart heard of, ghost guessed’). Even if the effect isn’t felt or recognised at first, and the system can continues to carry on, apparently producing the same, or better results as before.
Is it the fear that, if we allow this to happen – if we hand over our judgment to the faster, more predictable determinations of artificial intelligence – there will come a point, and it may not take long, that by decoupling the product of our system of law from the qualia and the intersubjectivity that created and sustained it, that the law will become unrecognisable to us. That it will become inhuman.
And that we will be left with what the late, great David Foster Wallace described as ‘the constant, gnawing sense of having had and lost some infinite thing’.
That, I think, is the fear that Gageler CJ might be referring to. It is the fear that I feel. And that fear has its own particular qualia, a quale that artificial intelligence will never experience.
And if these remarks have meant anything it is that we should trust such qualia.
And that we should respond to that fear, ‘uprightly, deliberately and resolutely’, to ensure that, whatever benefits that AI will bring, and no doubt there will be many, we strive to find ways to ensure the law is, and remains, essentially human.
