Saturday, January 04, 2020

New Draft Paper Posted for Comment: "And an Algorithm to Entangle them All? Social Credit, Data Driven Governance, and Legal Entanglement in Post-Law Legal Orders"

(Pix © Larry Catá Backer 2020)


I am delighted to post for comment a draft essay that I have recently finished (or or less).  Entitled, And an Algorithm to Entangle them All? Social Credit, Data Driven Governance, and Legal Entanglement in Post-Law Legal Orders, the essay considers some of the ramifications that follow the transnationalization of law (explored earlier here). Those ramifications are especially important for (first national, and then international) legal systems. These systems, once existing apart and above other forms of governance, now find themselves entangled within rather than above an increasingly complex web of governance orders.  Traditionally understood law "systems" with all their (sometimes much valued) baggage now must find a place within an emerging governance landscape in which multiple systems must accommodate each other within global governance. "These possibilities are radical not in the sense of requiring a substantial break with the past but in the sense of suggesting the ways in which Jessup’s vision ultimately requires a shifting of perspectives about the relationship of law to the state, the state to the societal sphere, and both to transnational law and the multinational enterprise" (Here).  

Legal entanglement, however, assumes a considerably different character when governance orders move from traditional legal pluralism (see here), with its emphasis on transnational legal orders (see here), to the necessity of accommodating emerging forms of data driven governance.  This essay, then, considers the nature of that entanglement  with Chinese social credit systems and Western markets based privatized data driven systems. 

The abstract and Introduction follow.  The paper may be downloaded by clicking on the link provided below. 


Download Paper HERE

Larry Catá Backer[1]

Abstract: This essay considers the emergence of data driven analytics and the algorithmic techniques of imposing consequences (some of it machine driven (artificial intelligence (AI) based) as defining not just new modalities of governance but reshaping the conception of spatiality within which entangled governance happens. So reshaped, these data driven governance legalities entangle with traditional modes of governance through law in what may be new and interesting ways. At its center is an examination of governance entanglement between the entangled legalities of law-norm systems and the legalities emerging from data driven systems of behavior management. The entanglement becomes more confused where one set of systems (law/regulation) continues to posit that metrics based governance is merely technique, rather than a regulatory system in its own right. The realities of emerging legalities that exceed the capacity of law to express their form requires a three dimensional analysis of entanglement and a broader view of legality, one that reconsiders data driven machine administered regulatory systems more than an enhanced form of property. The first section briefly sketches the characteristics of emerging legalities that neither embrace the form nor the language of law. The two sections that then follow examine the nature of inter-systemic entanglements when data driven governance legal orders are thrown into the already plural mix of legalities. The first is the Chinese “social credit” initiative. The second is U.S. and Western private initiatives around emerging markets for data. Each exhibits quite distinct characteristics and therefore quite different forms and qualities of entanglement that suggest a more complex fracture and inter acting among ever more different systems of legalities that are emerging in fractured political systems arranged around global trade regimes.

In the sixth month, Gabriel the angel was sent from God to a town in Galilee called Nazareth, to a virgin engaged to a man called Joseph, from the family of David.. . . ‘Don’t be afraid, Mary,’ said the angel to her. ‘You’re in favour with God. Listen: you will conceive in your womb and will have a son; and you shall call his name Jesus. . . The Lord God will give him the throne of David his father, and he shall reign over the house of Jacob for ever. His kingdom will never come to an end.’[2]
I. Introduction

The annunciation by Jessup[3] of the birth of what would become transnational law conceived within the womb of Western (and then global) jurisprudence conceived of a transformed juridical order in which the notion of law was broadened beyond the state, at least with respect to a definable set of activities), and in which these legalities have to become entangled to solve what had been issues once resolvable solely by reference to the law of a state.[4] But this “good news” did not produce transformations in the halls of the priestly castes charged with the preservation of the jurisprudential order carefully nurtured in recognizable form from the time of Martin Luther and centered on the state as the principal expression of regulatory power through law.[5] The 21st century has seen a reluctant acceptance in theory of the de-centering of the state, and consequentially of the recognition of the rise of multiple centers of governance with multiple forms of law.[6] That conceptual recognition comes at least a century behind early modern studies of its realities in some states.[7] The reluctance arises from the ideological consequences of such a conceptual acceptance. At its limit the fear produces a modernist panic state[8] about the state of the state, and of law as its official language. Despite the need expressed by some, there remains a reluctance to give up “the ultimately law-focused epistemological mechanism still at work,”[9] and thus to forgo the post 1945 ambitions for a transformation of global politics based on the self-reflexive state as the highest legitimate form of communal political expression,[10] the expression of which could only be made legitimate only when undertaken through the language of law.[11] Indeed, “The main shortcoming of the extended conception of law advocated by anthropological and sociological approaches is the one pointed at by the so-called pan-legalist objection: the problem of the distinctiveness of law from other social normative orderings has been haunting the theorists of legal pluralism until today.”[12] In short, what factions of the leader class feared most in the 21st century was precisely the consequences of legal entanglements that might bring down their tightly woven conceptual house.[13]

Yet that very rejection provides strong evidence not merely of its existence but also of its effects, a principal one of which are the ruptures that entanglement produces between these emerging centers of law/norms/governance,[14] both within and among the conventional nation state.[15] It is within this space that one might seek both meanings and the manner in which what Lohmann once described as structural coupling might occur.[16] This space without a space, these in-between spaces of law (and governance), has itself assumed a spatial dimension. It now is understood as both a connector (the trames[17] through which spaces connect and communicate) but also as its own normative space within which those communications and connections are not merely mediated but managed through complex entanglements,[18] or dynamic processes of communicative irritations.[19]

The budding focus on the inter-spatial carries with it both promise and challenge. The promise: interspatial gap filling in all of its complexities and theoretical possibilities. This has been the central exploration of entanglements among law, norms, rules and habits within coercive effect.[20] The challenge is centered on the risk of boundaries without end—of the permanent and quite dynamic cacophony of borders that is produced by the obsession with the interfaces between bodies of norms that themselves create borders within the space between norm systems for which other interfaces are necessary.[21] The problem of the never-ending spaces between spaces, where every law system itself defines its own inter-spaces, might itself be undergoing an extra-spatial transformation. That extra-spatial form of governance—in which space loses its centrality and law changes it forms and function—is the object of the exploration here.

More specifically, the essay considers the emergence of data driven analytics and the algorithmic techniques of imposing consequences (some of it machine driven (artificial intelligence (AI) based) [22]) as defining not just new modalities of governance but reshaping the conception of spatiality within which entangled governance happens. So reshaped, these data driven governance legalities entangle with traditional modes of governance through law in what may be new and interesting ways. These “social credit,” ratings, risk management, assessment, accountability or compliance systems have been established as a means to aid traditional governance; yet they have the potential to displace the structures of governance they are meant to serve. But more than that, they may well change the landscape and language with which one encounters legal entanglements and its operational effects. The thesis of this essay is simple: that AI and big data management systems (social credit initiatives) suggest the fundamental reshaping of the entanglements of law and norm systems, but one from out of which it may be possible to cobble together the entangling grids of traditional spatial and inter-spatial of law with data driven governance undertaken through the language of analytics toward a comprehensive management of behavior neither dependent on the forms and techniques of law nor on the bureaucratic apparatus of state. This reshaping will have particular effect on the way on which the emerging multiple systems of governance that have been the singular feature of globalized law frameworks may be assembled through dynamic and sometimes unstable linkages;[23] that is how the regulatory algorithm may come to manage them all.[24]

This contribution, then, considers governance entanglement between the entangled legalities of law-norm systems and the legalities emerging from data driven systems of behavior management. The entanglement becomes more confused where one set of systems (law/regulation) continues to posit that metrics based governance is merely technique, rather than a regulatory system in its own right. The realities of emerging legalities that exceed the capacity of law to express their form requires a three dimensional analysis of entanglement and a broader view of legality, one that reconsiders data driven machine administered regulatory systems more than an enhanced form of property.[25] One deals here not just with the flattened inter-legalities of the traditional structures of ordering power by rules. Instead one must now understand the way those clusters of entanglement themselves now are entangled with emerging modalities of law/regulation/norms which have come to form the center of what is understood as plural legalities.

The section that follows briefly sketches the characteristics of emerging legalities that neither embrace the form nor the language of law. The two sections that then follow examine the nature of inter-systemic entanglements when data driven governance legal orders[26] are thrown into the already plural mix of legalities. Two principal forms of data driven governance have emerged that are increasingly linking to traditional legalities.[27] The first is the Chinese “social credit” initiative, which emerged in its current form in 2014. Social Credit is the name given to the initiative undertaken by the Chinese government during the present administration that is meant to produce an all-around approach to ensuring compliance with law and social responsibility under the guidance of the state. The second is U.S. and Western private initiatives around emerging markets for data. These are framed around principles of governance, risk management and compliance principles. With respect to each, the nature and textures of entanglement that encounters between traditional plural legalities encounter data driven governance systems is considered. These entanglements present a distinct challenge, the challenge of linguistic disjunction, for the management of human organization. While law and norm based system speak the same language, data driven governance does not. Communicative disjunction may have profound effects on the nature and quality of entanglement, producing a competition for lingua franca that may affect the way in which law is expressed and may threaten the plurality of law.[28] Each also exhibits quite distinct characteristics and therefore quite different forms and qualities of entanglement that suggest a more complex fracture and inter acting among ever more different systems of legalities that are emerging in fractured political systems arranged around global trade regimes.


NOTES

[1] W. Richard and Mary Eshelman Faculty Scholar & Professor of Law and International Affairs, Pennsylvania State University

[2] Luke 26-31.

[3] Jessup, 1956.

[4] Backer, 2019.

[5] United Nations, 2011 (“States individually are the primary duty-bearers under international human rights law, and collectively they are the trustees of the international human rights regime.” Ibid., p. 7).

[6] Backer, 2012.

[7] Patrignani, 2016; p. 711.

[8] Smith, 1998; p. 8-23, 221-228.

[9] Duve, 2014; p. 58.

[10] Backer, 2008a.

[11] Dyzenhaus, 2001.

[12] Patrignani, 2016; p. 713; Croce, 2012.

[13] Crowe, 2015.

[14] Krisch, 2010; Berman, 2012.

[15] Davies, 2010.

[16] Luhmann,1982.

[17] Here understood both as a side path (e.g., and ironically here, Sallust (c. 40 BC) C. 57, 1: “uti per tramites occulte perfugeret in Galliam Transalpinam; J. 48: “ per tramites occultos Metelli antevenit”) but also as a way of life or course or manner of engagement (e.g., Lucretius. (c. 55 B.C.) 6, 27: “ab aequitatis recto tramite deviare,”).

[18] Calliess & Zumbansen, 2010.

[19] Teubner, 1998.

[20] Berman 2012; Teubner 1997.

[21] Cf., Nagendra and Ostrom, 2012.

[22] People’s Republic of China 2017; European Commission, 2019.

[23] Krisch, 2020.

[24] Tolkien, 1954, ch. 2.That extra-spatiality is nicely captured through what is now a sadly hackneyed and often quoted passage from a well-known book: “Three Rings for the Elven-kings under the sky, Seven for the Dwarf-lords in their halls of stone, Nine for Mortal Men doomed to die, One for the Dark Lord on his dark throne. In the Land of Mordor where the Shadows lie. One Ring to rule them all, One Ring to find them, One Ring to bring them all and in the darkness bind them. In the Land of Mordor where the Shadows lie.” (Tolkien, 1954 epigraph)

[25] e.g., OECD 2019.

[26] Halliday & Shaffer, 2015.

[27] At greater length in Backer, 2018

[28] E.g., House, 2003
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