Driverless cars: why ten lives don’t outweigh one
In the first part of our new legal series, two experts from the University of Hanover explain why it will be difficult to solve the ethical dilemma of autonomous driving under the German constitution.
Will the concept of autonomous driving ultimately fail due to the unsolvable dilemma situation? It is certainly the most discussed obstacle in the media. Indeed, autonomous driving will not just facilitate many things, according to car producers and politicians, it will also increase traffic safety and reduce traffic accidents. And this is where the dilemma arises.
The dilemma situation is a situation in which a vehicle must make a decision: the vehicle can either continue driving straight ahead and cause an accident in which the car passengers are injured or die, it can swerve to the left and hit a group of people, or it can swerve to the right and collide with one person. But how will it choose?
Autonomous vehicles won’t act intuitively
Unlike a conventional vehicle with a driver acting intuitively, the programmer of an autonomous vehicle must determine specific constellations from the beginning. Why? If a situation for which a vehicle is not programmed occurs, it will not be able to act or respond. This means programmers have to define how vehicles should behave in dilemma situations long before they happen.
Here are two possible ways that are imaginable:
The programmers determine a specific standard decision. If a dilemma situation occurs, it could be defined for example that a vehicle always puts material damage before injuring human beings. From a German Constitutional Law point of view, this is not only allowed, but also required. Such a duty results not least from the human dignity outlined in German Constitutional Law. Besides, it is laid down in the constitutional right of freedom from injury. Saving humans before animals and property is also a recommendation of the German Ethics Commission on connected and automated driving.
In addition, it can be defined that a vehicle – as far as personal injury is inevitable – always chooses the option that results in fewest injuries. Concretely, this means one passenger is “sacrificed” in order to save the lives of a group of human beings. If discussed from an ethical point of view, such problems are the object of social sciences – as automated cars must be accepted by society. At the same time, a legal discourse and classification under constitutional aspects should be far-reaching.
Weighing of life: impossible under the German Constitutional Law
Truth be told, under German Constitutional Law it is impossible to solve the dilemma situation described above. This results from different and various aspects of German Constitutional Law laid down in Art. 1 Abs. 1 and Art. 2 Abs. 2. Furthermore, it is impossible for both legislators and car manufacturers to regulate or program a quantitative weighing of human life. Human dignity is one of the most important pillars of German Constitutional Law. It is in fact of supreme constitutional value. Due to the interplay of the right to life and human dignity, the claim for protection by the state is evoked. This protection duty is written in Art. 1 Abs. 1 S. 2 of German Constitutional Law.
The law is clear: don’t treat humans as objects
German Constitutional Law is based on the free self-determination and free development of human beings. This means it is forbidden to treat human beings as objects. The state must respect the legal entity of a person and its personhood. To act against this top priority is a violation of German Constitutional Law. Even if from a moral point of view one might understand the wish to minimize the damages, all quantitative weighing of human life is prohibited and a violation of Constitutional Law.
Why a random generator won’t be the answer
If the possibilities described above are forbidden, one might come to the conclusion that a random generator could be the right way to solve this constitutional dilemma. Using such a method, the car would decide from situation to situation without prior programming. Yet, in accordance with the previous considerations, such a method is also a violation of German Constitutional Law. Using a random generator reduces all those on the road to an object of coincidence. This is a strong violation of Art. 1 Abs. 1 of German Constitutional Law. Life itself and human dignity would end up as a variable in a probability calculation.
All in all, one has to assume that the dilemma situation is a real obstacle for autonomous driving which cannot be solved as easily as other problems occurring in the context of autonomous cars and driving.
Further details with regard to the constitutional conflict of the dilemma situation and German Constitutional Law can be found in Stender-Vorwachs/Steege, “Grundrechtliche Implikationen autonomen Fahrens”, in: Oppermann/Stender-Vorwachs, Autonomes Fahren, Rechtsfolgen, Rechtsprobleme, technische Grundlagen, 2017, p. 253 ff.
About our authors:
This article was written by Prof. Jutta Stender-Vorwachs and Hans Steege, both members of the Faculty of Law at the Leibniz University of Hannover and of the Interdisizplinäres Institut für Automatisierte Systeme e.V. ( RifaS) which focuses on interdisciplinary national and international research on various automated systems. You may contact both via inforifasde.