In the realm of legality, the Fullerian concept serves as a guiding beacon, framing law as a human enterprise of governance by rules that extend beyond mere procedural propriety. Fuller’s principles delve into a comprehensive understanding of legality, incorporating notions of the rule of law, fairness, justice, and equity. Rather than dissecting these principles individually, we can categorize them into four overarching expectations that form the bedrock of our legal framework:
- Epistemic Expectations: Citizens should reasonably know the rules and their requirements, demanding clear, constant, and non-contradictory regulations.
- Practical Possibility: Compliance with the rules should be practically feasible, avoiding impossible requirements and retrospective operations.
- Accurate Administration: The rules should be administered in alignment with their published terms, maintaining congruence between regulation and execution.
- Generality: No citizen should be singled out or personally targeted by a rule, emphasizing the principle of generality.
As we embark on the journey of examining how technology transforms the landscape of legality, our focus spans across these four categories—epistemic principles, practical possibility, accurate administration, and generality. In this exploration, we unravel the intricate dynamics of technological measures and machine governance, probing their implications on the foundational expectations of legality.
1. The Epistemic Principles:
The core principles of legality – promulgation, clarity, avoidance of contradiction, and constancy – are imperative for addressing grievances stemming from penalties imposed without fair warning. In the realm of technology-supported rules, transparency emerges as a linchpin. For citizens governed by technological environments, awareness is not only required regarding the rules but also the intricate workings of the deployed technologies. Surveillance and identity recognition technologies exemplify this, where a lack of transparency in deployment and algorithms contradicts the foundational principles of legality.
In technologically managed zones, clarity becomes a cornerstone to signal citizens about the extent of technological intervention. In the prospective smart cities, where technology heavily manages options, clear communication becomes paramount. However, this enhanced clarity seems more linked to governance by technologies than being an inherent aspect of governance by traditional rules.
2. Navigating Contradictions in the Tech Era: Traditionally, contradictions arise when one legal rule conflicts with another in the governance by rules paradigm. Extending this principle to technological support emphasizes the demand for consistency. In technologically supported rules, where machines reinforce directives, citizens may encounter conflicting signals leading to non-compliance. In such instances, fairness mandates that penalties should not be applied, especially if citizens act in good faith, believing their actions align with the rules. This condition appears more aligned with acceptable governance by machines than being intrinsic to governance by traditional rules.
3. The Challenge of Constancy in a Dynamic Tech Environment: While legal instruments may require periodic revisions, frequent changes can disrupt citizens’ understanding of their legal position, applicable in both traditional governance and technology-supported rules. In technologically managed environments, such as dynamic pricing in consumer markets, the challenge lies in managing citizens’ expectations amidst constant changes. Unlike traditional governance where constancy is crucial, the nature of technologically managed scenarios might involve more surprises than instances of non-compliance.
Moreover, the need for some leeway in the interpretation of laws, often observed in international contexts, could introduce ambiguity slowing down the translation of legal provisions into code in the realm of technological management.
2. Navigating Possibility and Prospectivity in the Technological Age
In the ever-evolving landscape of legality, the Practical Possibility Principles assume center stage, addressing concerns related to possibility, prospectivity, and constancy. The crux of these principles lies in ensuring that citizens have a reasonable opportunity to comply with rules and their requirements.
- Avoiding the Impossible: One cornerstone of these principles is the injunction against requiring the impossible. This not only steers clear of irrational demands, such as defying the laws of physics, but also safeguards against penalizing individuals for non-compliance with rules imposing tasks that are genuinely impossible. In the context of technological management, which often redefines what is deemed possible within a specific regulatory space, the focus shifts to preventing unfair penalties. For instance, it prompts us to ponder whether it would be just to penalize someone attempting an act prevented by technological management, even if the individual knew it was impossible.
- Prospectivity Over Retrospectivity: Fuller’s assertion that a regime composed exclusively of retrospective rules is a grotesque conceit holds true in the technological era. The principle of prospectivity, inherent in governance by rules, insists that rules, even if contentious, should be applied only with prospective effect. Retroactive rules not only violate due process but also deny regulatees fair warning, disrupting the reasonable expectations established by governance through rules. In the realm of technological management, while the introduction of measures may render certain acts impossible from that point onward, fairness demands clear signaling to regulatees about these changes.
- Technological Management and Retrospective Challenges: Technological management, by its nature, operates more intrinsically on a prospective basis. Yet, the crucial aspect lies in providing fair warnings when introducing technological measures. If regulatees act in good faith, assuming that what is possible is permissible in technologically managed environments, retroactive penalization would be unjust. Although, in practical terms, the inherent nature of technological management might not pose new risks of unfair retrospective penalization, ethical considerations dictate transparent communication and fair warning.
3. Navigating the Principle of Accurate Administration in the Age of Technology
Within the framework of legality, the Principle of Accurate Administration, particularly the emphasis on congruence, stands as a pillar ensuring officials administer rules in alignment with their declared terms. However, as we venture into the realm where technology meets legality, the complexities of adhering to this principle come to light.
- Congruence Challenges in Interpretation: Judges, when faced with rules open to multiple interpretations or those yielding seemingly unjust results, face challenges in maintaining congruence. Translating such rules into computable code for automated systems adds an additional layer of complexity. The coding of rules needs to ensure that the technology faithfully follows the rules as intended, posing a significant challenge.
- Accuracy in Technical Measures Support: Extending the principle of accurate administration to the use of technical measures supporting rules implies that these measures should not compromise the accuracy of rule application. For instance, when a rule authorizes officials to act on “reasonable suspicion,” technology should minimize false positives and negatives within an acceptable tolerance band.
- Technological Management and the Shift in Perspective: In the context of technological management, the traditional notion of rules being administered as such undergoes a paradigm shift. Regulatory spaces are designed to eliminate both the option of non-compliant conduct and the need for human interventions in enforcement. While issues of false positives or negatives may still arise, the standards for acceptability are no longer rooted solely in legality. Instead, they are determined by broader debates and agreements within the technological framework.
- Congruence Redefined in Technological Management: The promise of technological management to close the normative gap—the potential mismatch between the declared and administered standards—redefines the significance of congruence. In this context, regulators and enforcement agents are expected to operate in a way that aligns with the expectations of regulatees, reasonably formed based on regulatory signals. Regulatees might reasonably expect that where an act is possible, regulators treat it as optional, with no negative regulatory repercussions—unless there is clear knowledge of a malfunction or similar issues.
In essence, congruence, alongside clarity, constancy, and other principles, now demands that regulators and their agents refrain from penalizing regulatees who, in good faith, may have misunderstood the regulatory position within the unique landscape of technological management.
4. The Principle of Generality in the Era of Technological Management
In the tapestry of legality, the Principle of Generality emerges as a safeguard against ad hominem rules, ensuring legislative acts maintain a general application rather than targeting specific individuals. This principle, rooted in the historical caution against the abuse of prerogative power, finds resonance in Fuller’s notion of legality. However, the advent of technological management introduces challenges to this principle as precision profiling becomes more nuanced, enabling personalized management and targeted interventions.
- Technological Specificity vs. Generality: Unlike governance by rules, which implies a degree of generality in its directives, certain forms of technological management operate with a pronounced specificity directed at individuals. Precision profiling identifies and isolates specific individuals based on precise criteria, departing from the general profiling and targeting strategies traditionally associated with governance by rules.
- The Dilemma of Accuracy vs. Generality: In cases where the specificity of technological management may be more accurate but conflicts with community notions of fairness or legality, complex decisions must be made. This dilemma underscores the tension between the community’s acceptance of this governance mode and the perceptions of individuals who find themselves singled out by algorithmic decisions.
- The Call for Openness and Transparency: To address these challenges, a call for openness and transparency in authorizing and operationalizing technological measures or governance modes gains prominence. While not inherent in the commitment to governance by rules, these requirements align with ideals of fairness and due process—key principles of legitimate governance. Particularly in the public regulatory sphere, an authorizing rule framework is crucial, setting out the process for adopting automated decisions or technological measures. Open debates on proposed uses, facilitated through legislative assemblies or administrative notice and comment procedures, become essential.
- Public Participation in Technological Governance: Embracing Fuller’s call for public participation, agencies could establish information technology review boards, offering stakeholders and the public opportunities to comment on system design and testing. This aligns with ideals of fairness and ensures that the impact of automated systems on communities is understood and accepted by those affected.
- Private Use Within Publicly Agreed Limits: Extending these principles to private use of technological management, there’s a suggestion that such usage should be permitted only within publicly agreed limits. Proposals for new uses should undergo open special procedures, akin to applications for planning permission, to ensure community acceptance and avoid pitfalls that may compromise fairness.
5. Legality and Reciprocity: A Fullerian Perspective
In exploring the concept of legality, we’ve inherently assumed a degree of reciprocity between rule-makers and those subject to the rules. This notion aligns with Fuller’s critique of legal positivism, particularly the positivists’ assumptions that the existence or non-existence of law is morally indifferent and that law is a one-way projection of authority from the government onto the citizen.
Fuller’s contrast between a legal form of order and simple managerial direction sheds light on the essence of legal systems. In a managerial context, directives are applied by subordinates to serve a purpose set by their superiors. In contrast, the law-abiding citizen follows legal rules not to serve specific ends dictated by the lawgiver but in the conduct of their own affairs, with the interests presumed to be those of society as a whole.
Reciprocity and the Legal System:
- Cooperative Effort: Fuller’s assertion that the functioning of a legal system depends on a cooperative effort—an effective and responsible interaction—between the lawgiver and subject emphasizes the reciprocity inherent in legal ordering.
Relevance in Regulatory Environments:
- Participation and Transparency: This idea resonates in the broader regulatory environment, implying that a legal approach values participation, transparency, due process, and reciprocal engagement. It stands against the notion of management, especially technological management, by a regulatory elite.
Mireille Hildebrandt’s Perspective:
- Legality vs. Legalism: Hildebrandt’s differentiation between ‘legality’ (due process and justice) and ‘legalism’ (mechanical application of rules) aligns with the idea that governance by rules, with a commitment to legality, holds more value than rule by technologies.
The Rule of Law and Legitimacy Concerns:
- Beyond Legality: While the rethinking of legality captures some legitimacy concerns, it might not fully encompass the substantive terms and conditions of rule-making authority found in constitutional settlements. This leads us to the rule of law.
Next Steps:
- Rule of Law: The rule of law becomes crucial in addressing legitimacy concerns that go beyond the confines of legality. It offers a framework for understanding the terms and conditions of rule-making authority, ensuring that governance maintains a broader legitimacy.
In essence, Fuller’s emphasis on reciprocity and effective interaction between lawgiver and subject opens avenues for a more participatory, transparent, and legitimate approach to governance—whether through traditional legal systems or in the context of technological management.
In conclusion, our exploration reveals that technology isn’t merely a disruptor of rules; it’s a catalyst for redefining how we conceive, abide by, and reformulate them. Balancing the timeless principles of legality with the dynamism of technological innovation ensures a legal landscape that resonates with justice, equity, and adaptability.