From the Traditional Rule of Law to the Intelligent Rule of Law: The Approach to the Rule of Law from the New Technology Revolution Perspective ()
1. Introduction
The fourth technological revolution has come so quickly that we have ushered in the intelligent society before adequately adapting to the network society brought about by the information revolution. China’s intelligence community is full of hopes and opportunities but also faces excellent risks and challenges. Especially after entering the intelligent society, China’s rule of law will face the problem of “the law load”, that is, the existing rule of law in terms of its concept, system, capacity, and, technology cannot cope with the challenges of big data, blockchain, artificial intelligence, and other disruptive technology. The consequence is that the rule of law may fail and has a deficit phenomenon. Moreover, it is well known that the rule of law has a fundamental significance and a decisive role in national governance. Therefore, if the rule of law does not keep pace with the progress of technology, there is no way to talk about the governance system and its rule of law, let alone the situation of the whole national governance in China. Facing the risks and challenges of the intelligent era, we cannot retreat but bravely face trying to crack the current stage of the rule of law dilemma with wisdom. Therefore, insisting on a dialectical view of the development of intelligent society is not only the key to cracking the problem of the law load but also a necessary guarantee to promote the modernization of the rule of law and even the modernization of national governance goals.
2. New Technological Revolution and the Rule of Law Dilemma
2.1. The Previous Three Rounds of Technological Revolutions and the Rule of Law Evolution
Technological iteration has long been one of the underlying drivers of the evolution of human civilization. Early in the 19th century, Marx and Engels recognized this, pointing out that science is a revolutionary force that drives history ever forward (Marx & Engels, 1972). This assertion is still not outdated today. Society, three technological revolutions contributed to the progress and modernization of human civilization. Specifically, the mechanical and electrical revolutions led to the first modernization process, i.e., the transformation from an agricultural society to an industrial society, from an agricultural economy to an industrial economy, and from an agrarian civilization to an industrial civilization; the second modernization (post-modernization) was the result of the information revolution, the transformation from an industrial society to a knowledge society, from an industrial economy to a knowledge economy, from industrial civilization to a knowledge civilization, and from a material civilization to an ecological civilization.
The modernization process has also brought about flux in the conceptual meaning of the rule of law. Before humanity entered modern society, the rule of law was interpreted in a way that did not go beyond Aristotle’s understanding of the rule of law. For Aristotle, “the rule of law should contain two meanings: the laws that have been made should be universally obeyed, and the laws that are obeyed by all should be good.” After the Industrial Revolution, the laws gradually removed the influence of external factors such as religion and morality and began to move toward autonomy and politicization. Thus, the meaning of the rule of law was further elaborated. At the same time, compared with ancient thinkers, bourgeois jurists placed more emphasis not on the instrumental value of law but on the rule of law as a fundamental principle of statehood and governance. Among them, the one who put forward the concept of the rule of law was the English jurist Deyscher. In The Essence of the English Constitution, he first elaborated the concept of the rule of law more comprehensively. In his view, the rule of law has three primary meanings. One is to make the supremacy of the law of the land appropriate to the violation of arbitrary power… and the other is to make the equality of the people before the law… and the third is to express a formula with which to solve a legal fact (Dicey, 2001). After the industrial revolution, the second new technological revolution allowed humanity to cross over from the steam age to the electric generation and also really let capital enter the era of globalization, and the formal rule of law theory became more and more popular. For example, Hayek, the famous economist and political philosopher hoped that “statutory or formal law or justice” would be unified with “regulations of a substantive nature,” i.e., “formal law or justice to limit power. Thus, he particularly emphasized the importance of universal rules (Hayek, 1997). Immediately afterward, the information revolution brought humanity into the information society, The key of information society is that knowledge becomes the key element of productivity. The knowledge economy, which is dominated by knowledge and dominated by information service industry, will replace the traditional manufacturing economy. The main symbol of information society was the emergence, popularization, and use of the Internet, and the entire human civilization entered the “network society.” Compared with the industrial society, the most crucial feature of the network society is the vital knowledge attribute, and the carrier of information in the Internet is data, so the rule of law at this stage will involve a large amount of data and Internet-related knowledge, and its connotation and periphery will be further expanded. In other words, in the network society of knowledge explosion, the concept of the rule of law will be more inclined to the substantive rule of law. Still, it will also combine with the formal rule of law, and the content covered will therefore become more complicated.
2.2. Smart Revolution and “Code is Law”
Since entering the 21st century, the development of human civilization and society is showing accelerated changes. Many people have not yet fully adapted to the information society shaped by the information revolution. Some people have even been pushed into the intelligent community before they have detached themselves from the industrial community. But compared with the three previous technological processes, the intelligence revolution will disrupt human civilization and society. Specifically, innovative technologies represented by artificial intelligence, blockchain, quantum information technology, etc., profoundly change human culture and society. To understand this issue, we need to grasp it from two aspects.
On the one hand, unlike the other three technological revolutions, the core of this technological revolution lies in intelligence, i.e., the focus is on the simulation and enhancement of human intelligence. Therefore, the most crucial feature of this revolution is that machines are actively learning and adapting to human beings, rather than being adapted by human beings to the development of devices and technological advances as before. On the other hand, the change in the human cognitive paradigm brought by the intelligence revolution is also huge. Suppose the mechanical picture of the world depicted by classical scientific and technological achievements is characterized by deterministic and describable mathematical models. In that case, the intelligent science supported by artificial intelligence, new materials, life sciences, quantum science, etc. will break this paradigm and replace it with probabilistic intelligent algorithms. This is also reflected in the social order shaped by the smart revolution. In other words, in a smart society, it is the algorithms that drive the AI devices. Whether in vertical applications such as intelligent transportation, smart home, smart city, innovative healthcare, and smart agriculture or in decision-making subjects such as individual, group, or national decisions, algorithms cannot be ignored. Therefore, it can be said that the intelligent society is algorithm-driven.
Therefore, for algorithms, which are the core of the dominant intelligent society, legal value discussions such as “code as law,” “algorithmic bias,” and “algorithmic black box” have emerged one after another. First, “code is law”. This idea was introduced in the book “Code 2.0: Law in Cyberspace”. For Lawrence Lessig, the author of this book, knowing who writes the code, who controls the code, and how the code is regulated is key to practicing justice in the networked age (Ledger, 2009). The second is algorithmic bias/discrimination, a phenomenon in which algorithms lose their objective and neutral stance in producing and distributing information and can bias or discriminate against the public’s perception of information. This is because the bias element may be unconsciously embedded in algorithm kernel design, data collection, and mining processing. Specifically, the main reasons include the following: the world is not fully quantifiable; the limited and falsifiable nature of sample data further affects the accuracy and fairness of algorithms; algorithms inherit the structural bias of human society while depicting and explaining the natural world, and the capital embedding of interest groups. Third, the “algorithmic black box.” The algorithmic black box refers to the complexity of the technology itself and the exclusive commercial policies of major companies, which makes the algorithm an unknown “black box,” i.e., the users themselves do not know the goals and intentions of the algorithm program. The information about the designer, the actual controller, and the responsibility for the machine-generated content is also unknown. The information about the algorithm designer, the virtual controller, and the responsibility of the machine-generated content is not available, let alone the appropriate judgment and supervision of it. Therefore, it is essential to ensure algorithms’ transparency and openness to establish corresponding algorithm auditing mechanisms (Pasquale, 2015).
In short, the intelligence revolution has brought human society into the stage of an intelligent society. In an intelligent society, algorithms are crucial and the most influential and iconic core force. Therefore, at the level of legal value, many discussions have emerged around the legal value dimensions of codes and algorithms. However, it is worth noting that these descriptions are only the thoughts of many scholars on the driving force of the intelligent era and cannot simply equate code, algorithm, etc., with law.
2.3. The Rule of Law Dilemma in the Smart Revolution
In general, compared to other kinds of norms, the critical feature of legal norms is that they regulate the behavior of human beings in the first place. Therefore, the rule of law, the primary way of governance in modern society, should play a significant role in regulating the behaviour of various actors in the smart society. However, due to all the changes brought about by the intelligence revolution, the rule of law is facing a crisis in the smart society. To understand this problem, we need to grasp it in the context of the new characteristics of the smart society and its challenges to the existing law.
First of all, the intelligent society is a giant complex society, and the complexity of the content of law and the subject of jurisdiction is growing simultaneously. In this intelligent society, the subjects of law regulation and jurisdiction will differ from the objects of law in the knowledge society, industrial society, and agricultural society. Simply put, this is because the intelligent society will not only include human civilization but will be composed of human beings and various intelligent bodies. Therefore, the law will not be limited to regulating the behaviour of individuals and human groups but also the interaction between intelligent individuals and groups, human and intelligent individuals and intelligent groups. At the same time, the innovative society is prone to change, and the rate of technological iteration is so fast that the law is apt to lag. In previous social forms (e.g., agricultural, industrial, and information societies), the rate of social change was slow (even in the case of the information society, a change occurred in a decade or two), so the stability of law was maintained, and the laws enacted in the past were able to regulate the new legal issues arising from technological change. However, technological innovation in the intelligent society is rapid, making it difficult for existing laws to solve the legal problems arising from new technologies. For example, in recent years, the issues of suitable subjects and responsibility allocation arising from the development of self-driving cars and intelligent robots, the problems of labour relations management arising from the sharing economy and the new casual labour economy, and the issues of legal risks arising from advanced technologies such as face recognition and serious forgery have received widespread attention from all sectors of society.
Secondly, the smart society is a risk society, and the uncertainty in applying the law is becoming stronger and stronger. As the German sociologist, Ulrich Beck pointed out, “risk” is not a modern invention, and anyone who sets out for the New World recognizes “risk.” But these are personal risks, unlike the problems with nuclear fission and radioactive storage, which pose a threat to humanity (Dworkin, 1996). In other words, in the future society, we face big risks, and any small risks or crises in the region can be transformed into global ones. At the same time, one of the characteristics of a risk society is the unpredictability of risk. Compared with today’s society, one of the essential features of the intelligent society is the high complexity and refinement of the division of labour. In other words, in a smart society, each person is responsible for a small division of labour in one field. Few people can grasp the overall situation in this field, let alone at the level of the whole society. At the same time, the complexity of the mechanism of intelligent society is far beyond the understanding of each individual, which means that it is likely that only a tiny error in a micro-system will lead to risks and multiple crises in the whole society. It is also essential to understand that in a network of relationships where the subject and the object are extremely complex, the scope and consequences of risk transmission are highly likely to be unexpected.
As a result, people increasingly expect the law to regulate unknown risks to satisfy their pursuit of certainty. The reality, however, is that the introduction of risk can cause the law to exhibit more and more uncertainty. For the American jurist Dworkin, the process of constructive interpretation of law points to the single best explanation (Luhmann, 2009). In the context of a risk society, however, this assertion faces significant challenges. In other words, when dealing with highly uncertain risks, the law can only make decisions about the “future of the present,” not about the unforeseeable present of the future. In other words, the law in modern society must face and accept that a certain future does not exist (Lu, 2019). This also exposes the law at this stage to increased uncertainty in its application. For example, in the case of artificial intelligence and gene editing technologies, which have been the subject of much debate in recent years, it is difficult for the law to predict the specific impact of these technologies on society in the future. As for these decisions, will they lead to more significant social risks, moral risks, and even the rest of the unpredictable chain reaction? Only time will reveal the answer. Therefore, in my opinion, under the risk society, the law tries to restrain unanticipated future risks with definite laws, which is essentially a problem of transferring risks, and the uncertainty of applying the law will be significantly increased.
Furthermore, the intelligent society is accelerated, and the operational mechanisms of law will face different degrees of dilemma as a result. In terms of social evolution, the innovative society will enter an unprecedented time acceleration track. In other words, the interaction of four factors: technology, market, culture, and society will contribute to the acceleration of time in modern society (Gao, 2009). This acceleration will bring a triple problem to the operation of law: the perception environment, judicial environment, and legislative environment. Generally speaking, as time goes on, the law’s own rhythm is increasingly feeling the pressure of the external environment. But the problem is that the crystallized legal wisdom, which has its own rhythm of time and has been precipitated by history, may be difficult or even incapable of solving the problems encountered in an intelligent society. In the area of privacy, for example, traditional laws aimed to ensure that individuals were protected from government or corporate prying eyes, but this is not the case today. In the virtual world, it is extremely difficult to draw the boundary between the private and public spheres. Is the personal information left on the Internet a right to privacy, a right to property or a new type of right called the right to information? It is difficult to find answers to all these questions in traditional legal sources. In the judicial field, the pressure of time is even more obvious. As technology advances, more and more new types of cases are entering the judicial process, and judges trained in traditional law are often left with insufficient information to handle these cases. The question of how to resolve the pressure of judicial decisions caused by the acceleration of time has become an important issue. As for legislation, the problem is that it takes months or years for a law to enter into force, with intense debates, struggles, and compromises in between. Once a legislative document is passed and enters into force, it is a protracted process to initiate changes to it. For the emerging field, the accumulation of jurisprudence and the enactment of special laws may be more conducive to the dynamic regulation of social relations without having to carry the burden of large-scale legislation. The consequence of this may well be that the center of gravity of the modern legal system and the system of legal sources will undergo a dramatic change.
3. Transformation of the Rule of Law in the Context of the Smart Revolution
Like many terms, the word “crisis” is derived from the Greek word meaning the turning point between favorable and unfavorable consequences (Rousseau, 1962). Thus, while the traditional rule of law appears to be challenged in many ways, it undeniably also faces a historically significant opportunity for transformative change.
3.1. The Rule of Law Thinking
As the name implies, the rule of law thinking is based on the spirit and principles of the rule of law in the way of thinking, activities, and processes. According to the traditional view of the rule of law, the rule of law thinking mainly includes two meanings, one is the thinking of universal obedience to the law (Henderson, 1987). The second is the thinking of the rule of good law. In other words, the rule of law state of law must be good law, good law. But in an intelligent society, the connotation of the rule of law thinking will no longer be limited to the above two; its content will be more prosperous.
First, the rule of law thinking requires a liminal perspective. Marginalization in this context refers to the intelligent rule of law that must be treated with caution regarding the zones where the boundaries are not clear. As we all know, the most basic function of the rule of law is to settle disputes and stop them, that is, to define and delineate the specific relationship between the rights and obligations of various legal subjects in a continuous world. However, the world is a dialectical unity of continuity and discontinuity, which will undoubtedly be more evident in an intelligent society. In other words, the innovative society is a new social form supported by the Internet of Things, quantum computing, quantum Internet, big data, artificial intelligence, virtual reality, and other technologies. In particular, the social revolution driven by artificial intelligence technology, quantum computing, etc., will give people a radical change in their production and lifestyle and will completely overturn the traditional social governance model and the established international competition pattern, bringing extensive, continuous, and far-reaching impact on the development of human society. At the same time, today’s society is characterized by the coexistence of multiple structures. In China, for example, there are huge disparities between regions. While many areas in the central and western regions are still in the pre-technological revolution period, the Yangtze River Delta region can be said to have entered the transition from an information society to an intelligent community. This means that today’s society is in a stage of rapid transition and therefore appears to be extremely complex. Therefore, in such an extremely complex social structure, there will inevitably be a large number of marginal zones, i.e., zones with unclear boundaries. For the border is not clear, the legal system must be treated carefully, not generalized across the board. This is especially true in the face of the new social form brought about by high technology.
At the same time, throughout the history of mankind, every technological innovation is initially subject to widespread social skepticism, such as the great development of transportation brought about by the steam engine, which was once subject to widespread social skepticism. Because before the emergence of trains and ships, horse-drawn carriages and sailing ships had been for a long time the fastest means of transportation imaginable to mankind. Therefore, we cannot use the law to stop this scientific and technological emergence in one stroke， because these marginal areas are the great driving force for society to keep moving forward. And this is where the focus of the rule of law concerns an intelligent society. You know, nowadays, the United States can lead the third science and technology revolution represented by computer information technology, which is closely related to the high encouragement of science and technology innovation by the American jurisprudence.
Second, thinking about the rule of law requires breaking from the traditional sense of top-down thinking. The conventional rule of law is based on a sectional system and top-down review. It can be said that while there are many advantages of the section hierarchy, it also brings new problems, namely information asymmetry. This is especially true in an intelligent society, where an insurmountable information gap can be formed between the top and bottom of the hierarchy. In other words, the more you are at the top end of the scale, the more information you get is often distorted. If the information is distorted, it is difficult to make scientific decisions; if decisions are not scientific, it is challenging to implement them below. Decision makers don’t get accurate information, and it’s hard for implementers to implement decisions based on untrue information. Therefore, a good rule of law system should be both top-down authority and bottom-up information channels, the upper and lower through, to pass a hundred. In addition, the advent of the age of intelligence has made the flattening of the rule of law possible. Due to the rapid development of technology and the dramatic reduction of information transmission costs, the rule of law can break the shackles of the traditional section system and reach the bottom with one rod.
Moreover, as far as intelligent technology is concerned, a specific democratic factor is inherent in it. Especially after entering the Internet society, self-media began to emerge, and everyone began to have a voice and could express their voices differently. Even at the top of the hierarchy, they can quickly get accurate information that is not available under the traditional hierarchical government. So, for the advent of a fashionable society, the rule of law needs to have both conventional top-down thinking and integration with bottom-up thinking.
Moreover, the rule of law requires a kind of certainty in thinking. The so-called deterministic thinking, the law, can play a role in determining the position of strife. In an intelligent society, big data is a necessary foundation. On the one hand, big data has intensified the uncertainty in this era because of its fast dissemination, large capacity, value, and so on. The traditional rule of law relies on a centralized power structure, which is becoming more fragmented, temporary, dynamic, unpredictable, and uncontrollable; on the other hand, the value of data behind big data is “uncertainty” On the other hand, the value of data behind big data is to make forward-looking predictions and promote the generation of changes in the way of thinking about the rule of law. For example, in recent years, such platforms as Meituan Takeaway and Didi company have been like this. Each of us who use the app for shopping has our personal information, habits, and preferences, and home address fully exposed to the forum, and the platform, therefore, knows each of our information like the back of its hand. It can be said that in an intelligent society, the platform has become an important subject. However, the existing legal system has no clear expression of the legal status of the forum. This can lead to many social problems. For example, this is the case of the much-discussed drop taxi in the past few years. How to define the legal responsibility of passengers injured or killed in traffic accidents in online cars? In traditional society, the owner and the drivers are the same, while many online drivers are just drivers, not owners. Even if the driver is the owner of the car, the distribution of legal responsibility for the ride formed through the online platform is not as simple as in traditional society. Once an accident occurs, how much responsibility should the platform bear? Many platform companies are relying on this legal loophole to avoid taking responsibility. Behind the platform is the result of capital and technology working together. It can be said that the capital is ultimately oriented to which platform will be able to laugh at the end of this round of competition. The same is true for the Internet, but behind the birth of all giant enterprises is the shadow of capital. In other words, the industry in the intelligent society is determined by capital, Internet governance is not only about social values, but also about its own management mechanism and internal power structure. so the rule of law must also deal with capital and draw clear boundaries for capital.
In addition to the platform, the intelligent society brings new uncertainty issues, i.e., human-machine symbiosis and co-governance. Especially with the continuous maturation of AI technology, AI is shifting from weak AI to strong AI. Strong AI is a kind of brain intelligence, which also means that a sort of human-like subject begins to appear, and then the next question is how the law should define its rights and obligations. Moreover, such a new subject brings excellent uncertainty to human society. As for the law itself, its core is to determine the boundaries of rights and obligations for the community, i.e., to find certainty in uncertainty. In addition, as the Internet platform mentioned above, the law naturally has to consider how to give such new intelligence legal subject qualifications.
Last but not least, intelligent thinking about the rule of law requires a greater emphasis on fairness. Roman law emphasizes that law is the art of goodness and justice. Even earlier, Aristotle discussed the rule of law and emphasized “good law and good governance.” Therefore, the rule of law requires not only deterministic thinking but also a deeper function, that is, to achieve and guarantee social justice. Especially with the advent of intelligent society, social justice needs further reflection.
Although the sharing economy, represented by DDT and small yellow cars, has given people great convenience, it has also brought great inequality. For example, the rise of the sharing economy, such as Meituan Takeaway, has greatly impacted traditional industries. With the monopolization of enterprises in the sharing economy industry, such as Meituan takeaway riders and drip drivers gradually going full-time, the sharing economy has, in a sense, become a gimmick for capital propaganda. In retrospect, online cars and Meituan takeaway are just products of capital and technology holding public opinion hostage. The general public did not gain many conveniences from them, and capital and technology were the biggest winners. For the critique of capitalism, Marx argued that “the power of capital in capitalism will make the people slaves of capital and make society more unequal”. However, capital can maximize the integration of resources and increase the efficiency of resource utilization. But the problem is that capital does not benefit most people universally but is only a feast for a small number of people. It can be said that the more capital develops, the more prominent the inequality brought by capital will be. At the peak of its development, capital will manifest itself as capitalism. That is, all affairs of the state and society are controlled by capital.
Therefore, for the capital in the intelligent society, we must bind the money under the political law through the political-legal system to avoid the intensification of social inequality. Especially in the intelligent society, with the sharing economy and artificial intelligence, which are essentially the further concentration of resources by capital and technological elites, the rule of law in the intelligent society must be fair-minded, that is, to effectively regulate the smart community through legal regulations to prevent capital and technology from expanding social inequality.
3.2. The Rule of Law Norms
Suppose the intelligent rule of law thinking is a high concentration and generalization of the spirit of the intelligent rule of law and a good hope for the future rule of law. In that case, the key to turning the rule of law thinking into practice is to have a robust system of intelligent legal norms to undertake it. Similar to the traditional rule of law, the intelligent rule of law can be practiced through three levels: legal norms, legal systems, and legal procedures. In other words, the key to building an intelligent rule of law system is whether legal norms, effective legal systems, and necessary legal practices are suitable for a smart society.
First, a sound and complete legal code is the legal basis for the rule of law in an intelligent society. “The rule of law is the concretisation of the rules on rights and obligations that we respect (Zhang, 2020).” The implementation of the rule of law presupposes a law to follow, and so is the intelligent society. This requires an intelligent society must have a scientific and complete legal system, that is, to develop a series of laws reflecting the laws of intellectual and social development, reflecting the objective needs of intelligent social practice, primarily reflecting the will and interests of the people, and then provide the basis and scale for governing the state and managing social affairs. Therefore, the current legislation is for intelligent technology and intelligent society legislation to adjust the relationship between science and technology, regulate scientific behaviour, guide technological progress, and promote the coordinated development of science and technology and economic and social, to achieve the goal of “science and technology to make life better (Xi, 2018)”. And the core of scientific legislation is to respect and reflect the objective laws (Bernal, 1982), is the scientific legislation from the above-mentioned new features of an intelligent society.
On the one hand, the innovative society is a complex society with highly rapid technological development, so the law should be the primary principle to stimulate and protect the innovative development of new technologies and not to use the rules to hinder the development of new technologies because of their potential negative impact. On the other hand, an intelligent society is a risky society. The story of science and technology itself opens up the prospect of improving human life and the possibility of destroying it (Xi, 2018). Therefore, we need to strengthen the potential risks of AI development research and prevention, safeguard the interests of the people and national security, and ensure that AI is safe, reliable, and controllable. We should integrate multidisciplinary forces, strengthen research on legal, ethical, and social issues related to AI, and establish sound laws and regulations, institutional systems, and ethics to guarantee the healthy development of AI (Ferreira, 2006). In addition, the intelligent society is still accelerated, in other words, a society can organize one to flux. In this case, we must be forward-looking and forward-looking in legislation, and at the same time, legislation and amendment should take into account efficiency. Especially important is that the legal model should be more open and inclusive and should give other rules a fuller and more convenient interface so that the judiciary can assume a specific “law-making” function in response to social changes through legal interpretation, discretion, and other dynamic ways.
Second, integrating pluralistic and practical norms is the normative basis for the rule of law in an intelligent society. Pluralistic norms mean that in the process of the rule of law, legal norms are the core rules of governance but do not exclude other regulations within the scope allowed by law, together with legal regulations, for social control to play an influential normative role. This is particularly important in an intelligent society, especially in the future rule of law system of an intelligent society, although the judiciary plays a crucial role. But in the rule of law order, enterprises, social organizations, grassroots self-government organizations, and other plural subjects should not be absent. In particular, enterprises will play a more critical role in the rule of law in an intelligent society. In connection with the previous incidents of Google deleting the bad reviews of the Robin Hood App and Twitter deleting and banning Trump, we can easily find that the anarcho-libertarian proposition prevailing in the digital world for two decades is entirely bankrupt and institutionalized and strong sectoral governance has become the consensus of power in the digital world. In short, Internet governance is the same as offline governance; when you do not have a centralized “government” to govern, the power structure becomes more fragmented, dynamic, unpredictable, and uncontrollable, which ultimately leads to no way to establish order. It is impossible to support inclusive and sustainable development. Therefore, we should give full play to the governance role of multiple governance subjects, especially the governance role of various norms in the participation of multiple subjects in social governance, so that the legal norms and other normative systems complement each other and are unified in the normative legal system, so that various norms can play their corresponding roles.
Third, a rational and workable system is the institutional basis for the rule of law in an intelligent society. To function effectively, a legal system must include not only relevant and up-to-date laws but also an adequate institutional infrastructure for legal design and management (Gao, 2019). In other words, the law is primarily used to regulate the behaviour of various subjects. At the same time, the system is the guarantee of the law, i.e., a targeted activity or series of activities according to the purpose of the state, which in turn allows the law to be effectively implemented. In an intelligent society, this is even more important. In particular, in a future world where humans and robots and other intelligence live together, the most crucial role of institutions is to ensure that humans and intelligence operate within the framework of institutions, thus achieving the vision of “human-machine intelligence” and “human-machine integration (Berman, 2003).”. In addition, intelligent societies are characterized by risk, for which the resilience of institutions is particularly evident. For example, the strength of the system at work is the most crucial reason for the effectiveness of the prevention and control of the new pneumonia epidemic in China. Imagine if there was no law-created system of reporting the epidemic at all levels, no law-granted first-tier response system, no perfect medical aid system, no perfect system of rational distribution of charitable goods, our prevention, control and management of the epidemic may have been difficult to achieve today’s gratifying results. Therefore, we must practice the intelligent rule of law through adequate institutional arrangements, realize the purpose of the law through adequate institutional arrangements, and achieve the ultimate goal of smart governance through adequate institutional arrangements.
3.3. The Rule of Law Practice
Berman once said, “The law must be believed; otherwise, it will be null and void.” However, the premise of people’s faith in law is that the law must be implemented and enforced in real life, i.e., the so-called “law must be followed”, “law enforcement must be strict,” and “violations must be investigated.” The premise is that the law must be implemented and enforced in real life. In other words, if the law is not enforced, people cannot believe in the law. Therefore, it can be said that the practice of the law is a prerequisite and foundation of the rule of law.
The same is true for the rule of law in an intelligent society. However, in an intelligent society, the phenomenon of the rule of law alienation is highly likely to occur. The separation of the rule of law here refers to the Internet, big data, cloud computing, the Internet of Things, artificial intelligence, and other emerging technologies in the deep integration with the modern rule of law, the continuous development, it is very likely to produce the contrary to what is desired, contrary to the original intention of the rule of law subject, become the opposite of the human rule of law rational phenomenon. In other words, this alienation of the rule of law refers to the sensation of being kidnapped by intelligent machines, contrary to the rule of law rationality. For this phenomenon, we need to avoid it from two aspects. First, at the psychological level, we must avoid the excessive use and development of “the intelligent rule of law”. Intelligent society is still a human-centred social order, as is the rule of law order. However, the more profound use of smart tools in the legal field will likely lead to changes in the original judicial philosophy, adjudication model, and the role of judges, impacting the human-centred intelligent order. For example, with the profound development and application of artificial intelligence technology, the next problem is how to express and define the legal relationship, legal behaviour, and legal responsibility caused by robots in law. The second is the urgent need to pay attention to the contradiction between the limitations of the intelligent rule of law technology and the unique nature of judicial activities. As we all know, the government of law machine pursues a deterministic, unemotional, and unbiased art, i.e., mathematical, and rational operations mainly based on regulations, designing arguments and explanations, and giving adjudication results. It can be said that this mechanical closed-loop legal reasoning process is especially established under the influence of no external conditions, which can certainly prevent the judge’s subjective factors from affecting the fair adjudication of the case but brings the problem that the reality of the environment in which people are in society this way. Especially in handling complex cases, if the judges, for the sake of stability, forcibly suppress their judicial reason and wisdom, the results of such a decision are undoubtedly not conducive to judicial justice. In addition, in an intelligent society, judicial personnel often use artificial intelligence to handle cases, which may therefore produce machine dependence, which breeds inertia and limits the development of their thinking, which is not conducive to maintaining social justice.
The author believes that the following paths can be addressed for the intelligent society may produce the phenomenon of the rule of law alienation and dependence. First, the intelligent rule of law must respect objective laws. The rule of law contains individual links that have their own laws, so in the practice of clever rule of law, pay particular attention to the “artificial intelligence +” and other advanced ideas and quantum computing and other emerging technologies used in legislation, justice, law enforcement, and law-abiding work, must follow the premise of objective laws, fully mobilise the wisdom of each participant. Collective wisdom is formed to achieve the goal of the intelligent rule of law to benefit the public and maintain justice and fairness. Second, the intelligent rule of law should avoid over-reliance on intelligent technology. In other words, the development and use of intelligent technology are necessarily people-centred. People must play a leading role in the rule of law this way. The machine can only play a supporting role, not the core role. Third, the intelligent rule of law should achieve the mutual unity of universal and case-by-case justice. In terms of the traditional rule of law, the comparison between different cases is mainly based on the experience and intuition of the case officer, so it is more likely to achieve the so-called case-by-case justice. In contrast, the rule of law in an intelligent society is mainly based on the statistical support provided by extensive case forecasting, which is more likely to achieve the number of universal justice. However, the real goal of the intelligent rule of law should be the unification of universal justice and case-by-case justice; that is, based on the machine’s judgment assistance, the interpretation of law and reasoning should be strengthened to help case handlers maintain rationality and the rule of law thinking while referring to precedents, to achieve universal justice in the true sense. Fourth, the intelligent rule of law needs to strengthen the regulation of algorithmic rules of law and ethics. Instead of an intelligent society, the future society should be fundamentally algorithmic. Therefore, the algorithmisation of law and the legalization of the algorithm is the inevitable trend of the intelligent rule of law. In other words, the law of an innovative society must be able to be expressed through algorithms, and the engineers who design the relevant algorithmic programs must be well-versed in the law. In addition, human ethics and laws should regulate algorithms in society to truly realise the transparency and fairness of algorithmic decision-making. Fifth, the rule of law needs to break down physical boundaries and ensure the flow and sharing of data among each other. The physical boundaries here mainly refer to two aspects, one is between countries, and the other is between different administrative agencies. These two physical boundaries make it difficult to break the information barriers, and various data cannot be timely transferred and shared online, making the intelligent rule of law challenging to realise. Therefore, to learn the wise rule of law, obtaining a double guarantee at the level of legal regulation and te, corresponding data sharing, and data flow mechanism information and corresponding data sharing and data flow mechanism are also necessary.
4. Conclusion
With the advent of the new technological revolution, an intelligent society is no longer an unattainable vision. Understanding the rule of law in an intelligent community is worth considering. In the authors’ opinion, the fashionable society is very different from the previous social form, so the rule of law in the traditional sense should achieve an intelligent turn, i.e., it will be transformed into the wise rule of law. Specifically, the intelligent rule of law is a new form of the rule of law that uses artificial intelligence and block-chain as the representative of a new generation of information technology and concepts for legislation, administrative law enforcement, justice, and law-abiding activities, and makes the rule of law present a dynamic operation process. It is an integral part of the strategy to realize the modernization of the national governance system and governance capacity based on big data and intelligent platforms.
However, to truly understand the intelligent rule of law, we need to innovate in three aspects: management of law thinking, the rule of law norms, and practice. In rule-of-law aspects, we need to inject the four critical angles in terms of marginalization, bottom-up, certainty, and fairness. In the rule of law norms, we need to improve the legal norms, pay attention to the mutual integration of the norms of multiple subjects, and develop a practical and reasonable legal protection system. At the level of the rule of law practice, we need to avoid the phenomenon of alienation from the rule of law. Without relying on intelligent machines, we should comply with the law with strict enforcement and accountability for violations. The rule of law should be strictly enforced.