Data-Driven Regulation: From the Rule of Law to Public Loyalty Programs

The article focuses on the long-term trends in the development of a regulatory mechanism of social relations, determined by the introduction of digital technologies for processing reputational data on the behavior and characteristics of individuals and organizations into the public administration. The first part of the research examines the regime of the rule of law established in the age of modernity, highlights its vulnerabilities and the difficulty of maintaining it in the face of specific modern challenges forcing the world elites to fundamentally reform social institutions and subsystems (economy, energy, healthcare, etc.). The second part is devoted to the characterization of existing data-driven regulation technologies, considering their transformative impact on the rule of law regime. The third part presents predictive characteristics of the emerging system of social regulation; special attention is paid to the role of ethical norms in constructing a new system of social regulation over and instead of the institutions of the rule of law. It is emphasized that modern mechanisms of regulation and control, based on intelligent data analysis and often involving some form of assessment of the behavior of subjects, are super-structured over existing systems of positive law, but can easily be used to expand the control of authorities in public relations that go beyond the scope of legal regulation. Such mechanisms may include increased requirements for access to social goods and require compliance not only with legal, but also with moral and ethical norms, professional standards, and arbitrarily interpreted customs. The author concludes that the regulatory datafication results in the actual replacement of the mechanism of legal regulation by extended compliance systems, often based on opaque norms of unclear origin. The institutions of the rule of law and the regime of the supremacy of law, presupposing the certainty of norm-setting and democratic control over lawmaking, are being replaced by loyalty programs fostering only obedience.

Keywords: rule of law, legal regulation, social credit system, digital transformation, digital profile, ethics, compliance, big data