December 4th, 2020 by Jennifer Sensiba
Volkswagen recently interviewed a former German constitutional judge, Professor Udo di Fabio. When asked about how Germany’s constitution would treat autonomous vehicles, he offered some insight, including both allowing autonomous vehicles and whether manual driving will be allowed after the technology matures. One key quote, which this article will put in context: “People should be able to decide whether to surrender the steering wheel or not.”
Before I go on, I need to apologize to any German readers, because the rest of us need some key background that you probably got in school. Feel free to skip ahead if you are already familiar with Germany’s constitution and its history. As an American, I’ve been familiar with our basic laws, but needed to find out just what a German constitutional judge does. In some ways, I’m a little envious that the United States doesn’t have something like the Constitutional Courts.
After the downfall of the Nazi regime, the drafters of the new German constitution knew that they needed to do a better job than was done with the Weimar constitution. Technically speaking, that previous constitution was in force all the way up to 1945. Hitler and the Nazi Party exploited its weaknesses to come to power, and that was certainly a horror that the German people did not wish to repeat. So, the new constitution was built with some very robust safeguards for human rights, including an equivalent to the US Bill of Rights, but one that’s essentially unamendable, so that no future government can erase the rights and form a totalitarian regime (at least not under the pretense of legality). There’s even a “right to resist” when someone is overthrowing the constitutional order and other remedies are unavailable (something that’s implied in the US constitution, but not explicitly spelled out).
Another robust safeguard is the system of Constitutional Courts. In the United States, fighting for rights in court can be an expensive and lengthy process, often taking years to go from initial complaint to a final ruling in the Supreme Court. Hiring lawyers to do this for you can cost millions of dollars, effectively creating a nasty barrier that denies rights to all but the wealthy and those who are able to raise funds. In Germany, one can file a “constitutional complaint” (akin the the Spanish writ of amparo) or other writs to go directly to the court under specific conditions. Many complaints don’t go through, but it does allow for speedy remedy under the right conditions to protect against tyranny.
The reason I share all this is to explain just how important individual rights are under German law, as well as to explain who Volkswagen interviewed so all readers can put the information from the interview in context.
After serving on the Constitutional Court from 1999 to 2011, Prof. di Fabio served as Chairman of the Ethics Committee for Automated Driving until 2017. Given his experience on civil rights in Germany and then helping study automated driving for years, you’d probably find few with a better idea of where German law is going when it comes to autonomous vehicles.
What Was Said
When asked about how the German constitution will treat self-driving cars, Prof. di Fabio said:
“The ethics committee that I had the honor of chairing some time ago has drawn up 20 guidelines for the introduction of automated driving systems – and the German government has signaled that it intends to follow them. One key point: the state must promote new technologies if they lead to significantly lower accident rates. But it must not put citizens in a situation where they inevitably have to entrust themselves to automated systems. People should be able to decide whether to surrender the steering wheel or not.”
I’m not a lawyer, and I’m certainly not a German lawyer, but after looking around an English translation of Germany’s constitution, I can see where this all is likely to come from. In Article 2, it says, “Every person shall have the right to life and physical integrity,” which may be interpreted to protect a right to use autonomous vehicles should they protect life. That may be why the former judge said the state “must promote” the technology if it proves to be safer.
At the same time, though, Article 11 says, “All Germans shall have the right to move freely throughout the federal territory.” Combined with other rights protected by the constitution, this may lead to a right to not use self-driving vehicle technology, so that people not wishing to trust machines to drive aren’t denied freedom of movement.
I’m sure there’s a lot more to it, so if you’re a German lawyer, definitely feel free to correct me or add to our understanding in the comments!
Also, when asked about whether insurers might end up effectively banning human driving by making it prohibitively expensive, he said, “I think that is certainly possible. If the technology is significantly safer, then such questions will arise. However, a society has to decide whether it is willing to accept this logic or whether self-driving is a basic right that must be defended.”
Thus, a right to human driving may even be protected from private infringement if that’s the will of German citizens.
Just to be clear, nothing here should be taken as solid information on German law or the future of human driving in Germany (or anywhere else). The former judge did acknowledge that the technology is still in its infancy, and there is a long way to go toward developing German law on this topic. However, he’s definitely a good source of information on where things appear to be headed at present, given his extensive experience on the topic.
Why This Matters
How the law treats self-driving cars is very important to the future of the technology. Some places are going to be hostile to even the testing of autonomous vehicles, while other places will embrace it early to help its development along. Once mature, some jurisdictions might even choose to ban human driving altogether on public roads if it’s far less safe than autonomous driving, and that’s something I’m personally against.
Just like with many other debates, it often comes down to the balance between the needs of the many and the needs of the few. Some will take the Spock approach, and prioritize the needs of the many to be safe from traffic accidents should autonomous vehicles prove themselves to be far safer than human drivers. Others (myself, for example) will lean toward the right of the individual to make informed choices on this. After all, I’d really rather not drive when tired or otherwise not in great shape to drive, and would definitely take advantage of the technology, but I still enjoy driving and want to take the wheel myself when I know I’m good for it.
How each jurisdiction deals with this question will be an interesting topic, and any time we can get an early peek from an expert on the topic, we are wise to take advantage of the information.
Even non-experts can have valuable insights on this topic, so feel free to argue with each other in the comments about this!
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