Asaf Lubin (Indiana University Maurer School of Law) has posted Out of Time: Artificial Intelligence, Self-Help, and International Law’s Temporal Logic (The Cambridge Handbook of Public Law and Artificial Intelligence, Gregory, Williams, & Zerilli eds., Cambridge Univ. Press, forthcoming 2027) on SSRN. Here is the abstract:
The rule of law has a tempo. It unfolds in time, organizes through time, and relies on time as a condition of its own functioning. Legality is sustained through an iterative practice of claim and counterclaim, argumentation and contestation. That exchange has a temporal structure. Time is needed for any claim to be formulated, any premise to be tested, any objection to be heard, and any judgment to be revised. In this sense, law is more than just a system of rules, institutions, and sanctions. It is also a system of pauses and intervals: the space between power’s first impulse and law’s second thought.
Law’s discursive and temporal character is most acute in international law. In a decentralized system lacking compulsory jurisdiction, states make law meaningful by arguing through it. Nowhere is this more evident than in the international law of self-help. The doctrines of self-defense, countermeasures, and retorsions govern the circumstances in which each state may invoke its own interests as grounds for unilateral protective action. The risk, of course, is that self-help will become self-licensing; that states, moving first, moving alone, and moving in secret, will be incentivized toward abuse and vigilantism. International law responds to this concern by forcing structured moments of argumentation around unilateral uses of power. The necessity, imminence, and proportionality of a use of force must be assessed and defended. The attribution of a prior wrong, together with the notice, purpose, and reversibility of a countermeasure, must likewise be tested and justified. These requirements are what prevent the law of self-help from becoming a vocabulary for disobedience.
And yes, these assessments also require time. Lots of time. Time for inquiry and for dissent. Time for simmering and for digestion. Time for contemplation and for meditation. Time for sleep, even. Indeed, some of the world’s greatest inventors and creators credit their creativity to the power nap. The sleeping mind consolidates, reconsiders, and sometimes resolves what the waking mind cannot.
But AI does not sleep. AI is built to increase efficiency through automation. It promises to offload cognition onto the machine, thereby removing the supposed waste and cost of “human friction.” AI does not deliberate, simmer, or meditate. It does not toss and turn at night. It does not wake at three in the morning with a reconsidered judgment. It does not pray or consult a loved one. It only processes. And it processes fast. Extraordinarily fast. So fast, in fact, that it outpaces law’s intervals. As this book chapter reveals, the very features that make AI attractive to national security decision-makers—its speed, scale, and tirelessness—are precisely the features that make it dangerous as a substitute for legal judgment. The chapter therefore asks not whether AI must be kept outside the national security state, for it will not be, but whether the state can use it without surrendering the pauses, frictions, and second thoughts through which law makes power answer.
Highly Recommended!
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