The Normative Power of Artificial Intelligence

Artificial intelligence technologies are spreading across society. Generative systems, such as ChatGPT and DALL-E, provide only some examples of the expanding consumption and commodification of artificial intelligence applications in daily life. Nonetheless, the extensive trust and reliance on these technologies in public and private sectors is raising questions for the rule of law. Artificial intelligence technologies are not only mere tools which challenge the protection of fundamental rights when these systems moderate online speech, check employment performances in the workplace, and evaluate credit scores. Particularly, machine learning technologies also contribute to creating norms and rules shaping the enforcement of their functions, thus defining another generative layer of normativity competing with the rule of law in the algorithmic society. This work argues that artificial intelligence systems, particularly machine learning, develop norms by experience and learning within an opaque, technical space. The norms governing these systems are not always immutable but shaped across time. In the algorithmic society, code is not only law but also a source of law. The consolidation of this normative power, or the rule of tech, raises questions for constitutional democracies that are already struggling with solutions to limit other forms of normativity, primarily the predominance of online platforms in the setting of transnational private standards. This plurality of sources has put the rule of law under pressure. The expansion of the rule of tech as a source of norms leads to addressing the spaces for the rule of law and the limits of powers in the algorithmic society, as underlined by the European regulatory approach on artificial intelligence. Within this framework, this work analyses the challenges raised by the normative power of artificial intelligence systems and examines the spaces for the rule of law in the algorithmic society.