Kevin P. Lee (North Carolina Central University School of Law) has posted AI and the Rule of Law: The End of the Political on SSRN. Here is the abstract:
Western legal systems traditionally rest on a foundational claim: that the legal subject is a moral agent endowed with reason and capable of normative participation. Today, the emergence of the Agentic State, characterized by automated, algorithmic governance, threatens to revoke that claim. This Article argues that the prevailing scholarly framework for AI regulation is built upon a fundamental category error: it mistakes computational complexity for ontological agency. While some proponents of the Agentic State utilize the language of Complexity Theory, they do so to serve a cybernetic goal of systemic equilibrium, reducing the legal order to a series of “Sense-Plan-Act” loops and the citizen to a behavioral data point. Drawing on the phenomenological thought of Hannah Arendt and Giorgio Agamben, this Article diagnoses the architecture of this displacement, demonstrating how the Agentic State suppresses human action in favor of automated behavior. It contends that the Rule of Law is not a complicated machine to be optimized, but a Complex Adaptive System reliant on the emergent agency of its participants. To preserve the moral meaning of the person, the Article asserts a new constitutional necessity: Ontological Due Process. This substantive right ensures that individuals are judged by human categories (intent, reason, and narrative) rather than computational correlations, preserving the “Right to be Wrong” as a precondition for moral agency in the algorithmic age. TABLE OF CONTENTS INTRODUCTION .