Law and common good in the digital age: Where art thou?; In this issue

• Published date: 01 January 2023
• Author: Karine Caunes
• Date: 01 January 2023
• DOI: http://doi.org/10.1111/eulj.12482

EDITORIAL

Law and common good in the digital age: Where

art thou?; In this issue

Karine Caunes

*

1|LAW AND COMMON GOOD IN THE DIGITAL AGE: WHERE

ART THOU?

France, Germany and Italy recently issued a non-paper advocating for voluntary ‘mandatory self-regulation through

codes of conduct’. Any lawyer would find this formulation somewhat quizzical when taken out of its context. How

could a code be at once voluntary and mandatory? A simple answer would be to consider such codes as mandatory

as soon as tech companies voluntarily accept them. The reference to the mandatory nature of these codes can also

be understood in a political context. If “foundational models”are absolved from the EU AI Act through tech compa-

nies' adoption of codes of conduct, this formulation aims to legitimise the Code option by bestowing on it the defin-

ing features of legislation; and first of all its bindingness. However, there is a key difference between legislation and

a code of conduct. It is called the rule of law, the basic idea that the same rules shall apply to all.

Imagine a country where citizens could individually pick and choose the rules that apply to them. Pair it with the

absence of any sanction in case of violation of these rules.Thiswouldsoonleadtotheruleofthestrongestandthe

destruction of democracy as we know it. Paul Nemitz and the Transatlantic Reflection Group on Democracy and the Rule of

Law in the Age of Artificial Intelligence are reminding us of this in the epilogue, reflecting on both democracy through law

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and the conditions for the effective and legitimate enforcement of the law.

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Alaw,suchasthe(draft)EUAIAct,thatwould

delegate its foundational mission to private regulation, would abdicate its democratic responsibility. It is in this context that

a political agreement has finally been reached on the EU AI Act. Accordin g to the Commission, 'for very powerful models

that could pose systemic risks, there will be additional binding obligations related to managing risks and monitoring serious

incidents, performing model evaluation and adversarial testing. These new obligations will be operationalised through

codes of practices.' The redundancy of, and insistence on "binding obligations"only raise more questions regarding what

has been abandoned to self-"regulation".But damages to democracy an dthe r ule of law do notstop he re. In the meantime,

allegedly-democratic States have successfully pushed for a "national security"carveout, so broad that it even encroaches

on so-called "banned"applications of AI in the final version of the EU AI Act. Law and common good: where art t hou?

This entire special issue dedicated to digital matters is grouping together articles that address the challenges that

the digital revolution poses to (EU) law as the embodiment of the values enshrined in Article 2 TEU:

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the

rule of law and respect for human rights, including the rights of persons belonging to minorities. These

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P. Nemitz, ‘Democracy through Law: The Transatlantic Reflection Group and Its Manifesto in Defence of Democracy and the Rule of Law in the Age of

“Artificial Intelligence”’, (2023) European Law Journal, Special issue on Law and Common Good in the Digital Age: Where Art Thou?, available at https://

onlinelibrary.wiley.com/doi/10.1111/eulj.12407.

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The Transatlantic Reflection Group on Democracy and the Rule of Law in the age of “artificial intelligence”,‘A Manifesto on Enforcing Law in the Age of

“Artificial Intelligence”’, (2023) European Law Journal, Special issue on Law and Common Good in the Digital Age: Where Art Thou?, available at https://

onlinelibrary.wiley.com/doi/full/10.1111/eulj.12474.

DOI: 10.1111/eulj.12482

2© 2023 John Wiley & Sons, Ltd. Eur Law J. 2023;29:2–9.wileyonlinelibrary.com/journal/eulj