ABSTRACT
Since the beginnings of modernity in 16th–17th-century Europe, written law has become the most important instrument for the regulation of human society. Initially, modern law established itself as a ‘rule by law’ – overcoming a rule by economic power or military force. As I will argue below, it was the articulation of modern law in the technologies of the script and the printing press that, in the end, also paved the way for ‘the Rule of Law’. 2 This Rule of Law embodies the so-called ‘paradox of the Rechtsstaat’: protecting citizens against the authority of the state by means of the authority of that same state. This required the institution of an internal division of sovereignty into legislation, administration and adjudication. The ensuing system of checks and balances has provided us with reasonably effective remedies for resisting governmental action in a court of law, to counter the massive powers of the state’s ius puniendi. Though we may be critical of the extent to which current articulations of the Rule of Law actually empower individual citizens suspected of committing a criminal offence, we should realize that such critique assumes the framework it critiques. My point throughout this chapter will be that we can no longer take the Rule of Law for granted as an affordance of our information and communication technology (ICT) infrastructure, due to the rapid and radical integration of algorithmic decision-systems and other types of data-driven intelligence into the administration of justice.
