|Fernand Leger, The Card layer 1923|
I am delighted to post a draft of a new paper, "The Algorithmic Law of Business and Human Rights: Constructing a Private Transnational Law of Ratings, Social Credit, and Accountability Measures." We wanted to consider data driven governance at it is emerging as an important element in the operationalization of international human rights norms applied to economic activity. We were particularly intrigued by the way that civil society actors, usually suspicious of data driven analytics to advance the great project of the legalization of business and human rights (now including issues of sustainability and climate change), appeared to be embracing data driven governance. We wondered whether this embrace was of a method of hardening international standards and advancing the objectives of national (usually disclosure based) law, or whether it augured changes in the way in which civil society (and enterprises) appeared ready to embrace in the forms of law making and the practices of governance. The questions appeared particularly interesting in an area of substantial advance in both the legal and the algorithmic projects--that centering on the challenged of forced labor and modern slavery. And thus the concepts around which the paper was constructed fell into place.
One of ist most interesting aspects involved our engagement with the issue of the relationship between the rise of Western data driven governance (what we are calling algorithmic law) and the equally interesting evolution of Chinese Social Credit systems. Our preliminary conclusion in that respect:
Marxist Leninist Social Credit systems emerge from a centralized system that is evolved under the leadership of a vanguard party with a quite specific core legitimating objective: the establishment of a communist society in China. That, in turn, requires the shedding of the imperfections of Western and liberal democratic principles and morals for the principles that under the leadership of the Communist Party will advance the core goal. Such a system necessarily may have substantial functional resonance with Western algorithmic law, but it operates on the basis of substantially different normative baselines. They might “speak” to each other on a technical level, but are essentially irreconcilable at the level of norms and (political) values.
The Abstract and introduction follow below. The paper may be accessed (and dowloaded) through the Social Science Research Network (HERE) (or contact us). My co-author (and research assistant) Matthew McQuilla and I would welcome any engagement and further conversation around the themes developed. This is really the beginning of what will likely be a quite interesting journey.