Digitalization of public Relations and the Rule of law: the experience of Rethinking in Russia and China
In the context of digitalization of public relations, public administration and business, lawyers face the issue of developing adequate legal regimes. At the same time, the effectiveness of the norms enshrined in laws is not always obvious in practice. Like Russia, China is actively looking for opportunities to create regulatory mechanisms for the growing and constantly moving field of digital technologies. The principle of the rule of law has a duality. Formally, the rule of law requires the recognition of the highest legal force for acts emanating from a legislator endowed with the functions of a public authority. However, in the context of the permanent and significant development of technologies and their penetration into public relations in many states, the allocation of such ways of forming rules of conduct for participants in digital relations, in which private structures are also endowed with a normative character, is becoming more noticeable.
Keywords: rule of law, digital law, soft law, digitalization of relations.
Introduction
The search for ways to develop law forces scientists and practitioners in Russia to pay attention to the so-called experimental legal regimes, standards, good practices and codes of ethics. The expansion of the areas of adoption of such rules as the basis of regulatory policy leads to the need to rethink the principle of the rule of law at the present stage.
In China, one of the most technologically advanced countries in the world, the issue of the rule of law and the rule of law is also being actively discussed. The theory of the rule of law organizes and classifies the sources of Chinese law, among which, in addition to laws, subordinate regulations are of great importance <1>. It should be noted that initially the development of law in China was based on doctrinal developments, an array of by-laws, and later on the practice of issuing joint acts of state and party bodies <2>. Recently, as noted in the literature <3>, within the framework of the announced in 2014 The program for promoting "rule of law by the state" in the law of the People's Republic of China has clearly revealed a new trend of systematization and an increasing role of laws <4>. The role of by-laws and various kinds of instructions is gradually decreasing, legislative acts are taking their place, at the same time disparate laws are being combined or even codified, as exemplified by the Civil Code of the People's Republic of China, which entered into force on January 1, 2021, combining several previously valid laws.
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<1> Ni F., Li S. Orientation and innovation: the theory of the rule of law under socialism with Chinese specifics from the point of view of international law // Power. 2016. Vol. 24. N 10. pp. 171-177.
<2> Legal foundations of business in China / Sh. Wenhua, A. Molotnikov, V. Chaoen et al.; Ed. A.E. Molotnikov, V. Shan. M., 2018.
<3> Wang Ch. The way of codification of civil legislation in China // Lex russica (Russian law). 2020. N 3(160). pp. 135 - 139.
Sonin V.V. Government by the state on the basis of the law: the origins, content and prospects of the Chinese version of the rule of law // Lex russica (Russian Law). 2016. N 9(118). pp. 99 - 113.
The ratio of the law and other social regulators in Russia and abroad at the present stage
According to Article 4 of the Basic Law of the Russian Federation, the Constitution of the Russian Federation (hereinafter - the Constitution of the Russian Federation) and federal laws have supremacy throughout the territory of the Russian Federation. This, according to the researchers, implies "the impossibility of any normative legal acts to have discrepancies with the Constitution of the Russian Federation and federal laws" <5>. S.V. Polenina considered the principles of supreme legal force and direct effect of the Constitution of the Russian Federation and the rule of law as close, pointing out that "state authorities, local governments, officials, citizens and their associations are obliged to comply with the Constitution of the Russian Federation and laws. To implement the principle of legality, it is necessary both to comply with the established procedure for the adoption of federal and regional laws, and to ensure that the provisions of subordinate regulatory legal acts comply with laws as acts having the highest legal force" <6>. Distinguishing the principle of the rule of law <7> from the doctrine of the rule of law <8>, we believe that today, in the context of regulatory experiments, there is a transformation of the principle of the rule of law, when the legislator allows the introduction of various kinds of deviations from legislative provisions to solve certain applied tasks. That is, the rule of law in the system of normative legal acts is crowded by acts of lesser legal force or standards and policies of private companies. The regulation of public relations descends to the level of private individuals who establish generally binding rules of conduct and are provided with measures of state coercion.
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<5> Artamonov A.N. Creation of laws in the subjects of the Russian Federation: Monograph. Rostov n/A: RUI RPA of the Ministry of Justice of Russia, 2011. 192 p.
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<7> Vengerov A.B. Theory of state and law: Textbook for law schools. Moscow: Jurisprudence, 2000. 528 p.; The rule of law, personality, legality / V.S. Nersesyants, G.V. Maltsev, E.A. Lukasheva, etc. M.: Research Institute of Legal Policy and Problems of Law Enforcement, 1997. 138 p.
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For example, regulatory sandboxes are being created, which have become widespread "to create an environment with a special regulatory regime that allows players to work whose activities do not quite fit into the existing regulation or cannot operate in the absence of certain legal norms" <9>. The Federal Law of July 31, 2020 was adopted in Russia. No. 258-FZ "On experimental legal regimes in the field of digital innovations in the Russian Federation" <10>, which is designed to create legal conditions for the accelerated emergence and introduction of new products and services in the fields of digital innovation by providing flexibility to the mechanism of legal regulation of this area and consolidating the mechanism for testing new regulatory legal regulation within the framework of experimental legal regulation the regime in order to assess it for the possibility of implementation into the legislation of the Russian Federation <11>. The researchers explain the need to introduce regulatory exceptions in the framework of experiments by the opportunity not to disperse the attention of legislative and law enforcement agencies on "uncomplicated relationships" <12>. The legislator gets the opportunity to check the established approaches before their implementation into the law.
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<9> Maslov A. Nedetskaya sandbox. How the state experiments with legal regulation // Financial Newspaper. 2020. N 17. pp. 8-9.
<10> Federal Law of the Russian Federation. 2020. N 31 (part I). Article 5017.
<11> Explanatory note to the draft Federal Law No. 922869-7 "On experimental legal regimes in the field of digital innovations in the Russian Federation" (ed., submitted to the State Duma of the Federal Assembly of the Russian Federation, text as of 03/17/2020)..
<12> Dmitrik N.A. Experimental legal regimes: theoretical and legal aspect // Law. 2020. N 6. pp. 64-72.
Examining the impact of digital technologies on rulemaking in the international sphere, M.V. Mazhorina points to the unprecedented proliferation of non-legal matter, leading to the emergence of a conflict of law and wrong (systems of social, religious, cultural norms, customs, etc.) <13>. Currently, in Russia, the development of legislation in the field of the digital economy is often based on rules developed in separate groups and approved by the community. An example is the adoption by the largest technology companies in Russia (Beber, Yandex, MTS, VK, Gazprom Neft, etc.) The Code of Ethics in the field of artificial intelligence <14>.
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<13> Mazhorina M.V. On the conflict of law and "wrong", renovation of lex mercatoria, smart contracts and blockchain arbitration // Lex russica. 2019. N 7. pp. 93 - 107.
<14>
In China, the principles of the rule of law and the rule of law go back to the Chinese traditional legal culture <15>. The emergence of the digital economy has not only reinforced the new phenomenon of monopoly, but also, more importantly, had a huge impact on traditional industrial enterprises. In order to meet the needs of the online economy and industrial economic development, China has adjusted the traditional legal system in the field of competition and introduced legal norms for online competition. China has made a dramatic transition from an industrial economy to a networked economy. Now that China has entered the era of the digital economy, the way market participants compete has undergone drastic changes. In the past, competition between companies was mainly competition for scale and competition for customers, but now competition between companies is digital competition, or competition for data. Some e-commerce companies use the databases they have to interfere with or prevent other companies from entering certain industries or doing business. There are also some e-commerce companies that use the data they have to constantly violate the legitimate rights and interests of consumers. Because of this, appropriate coordination mechanisms were added to the traditional Chinese market surveillance system, and through the system of joint ministerial meetings, the relevant departments were allowed to coordinate their positions, identify problems in China's virtual and real economic development, and timely solve problems of unfair competition and monopoly in China's market competition through information exchange mechanisms.
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<15> Lei S. Theoretical issues of state management on a legal basis and on the basis of moral norms: the Chinese experience // Bulletin of St. Petersburg University. Right. 2018. N 9(1). pp. 102 - 111.
Currently, Chinese researchers note the ongoing transformation of the concept of the rule of law in connection with the use of new digital technologies, for example, in the context of the use of "new sovereignty" in the jurisdiction of the community of blockchain networks <16> and other technological solutions.
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<16> Wang Sh., Li Ch. Distribution of civil jurisdiction in blockchain disputes: Legal innovations and legislative measures // Politics and Law. 2020. N 5. CLI.A.1288792); Xiao Ts, Ding Ts. On the creation of the Chinese "Stuttgart regime" on the Internet - a study of the asynchronous judicial regime of Internet courts // Applicable Law. 2020. N 15. CLI.A.1296863).
In the context of the digital economy, private actors are playing an increasingly important role in regulating public relations and social behavior today. It is impossible to regulate all aspects of user-platform interaction at the legislative level. Therefore, in many ways, the formation of rules for handling data at the algorithm level is delegated to platforms. They conclude affiliation agreements with users that do not change at the will of the user. However, they are formed taking into account the interests of the majority of users, public and social groups, creating good practices, standards of conduct, and Codes of Ethics. Therefore, more and more scientists are trying to rethink the role of the state in a "decentralized" <17>, "pluralized" <18> or "networked" <19> regulatory environment. One thing is clear: rigid hierarchical systems of sources of legal regulation are being replaced by more flexible regulatory mechanisms.
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<17> Black J. Decentring Regulation: Understanding the Role of Regulation and Self-Regulation in a "Post-Regulatory" World // Current Legal Problems. 2001. Vol. 54. P. 103 - 146.
<18> Parker C. The Pluralization of Regulation // Theoretical Inquiries in Law. 2008. Vol. 9. P. 349 - 369.
<19> Burris S., Drahos P., Shearing C. Nodal Governance // Australian Journal of Legal philosophy. 2005. Vol. 30. 30 p.; Crawford A. Networked Governance and the Post-Regulatory State? Steering, Rowing and Anchoring the Provision of Policing and Security // Theoretical Criminology. 2006. Vol. 10. P. 449 - 479; Shearing C., Wood J. Nodal Governance, Democracy, and the New "Denizens" // Journal of Law and Society. 2003. Vol. 30. P. 400 - 419.
Reflection of the digitalization of public relations in legislative regulations in the People's Republic of China
The rapid development of technology in China has led to a significant gap between traditional law and the imperfectly formed legislation of the 21st century. The researchers point out that the main problems of digitalization in China are related to the lack of clear regulation of this area. Today, active work is underway, a number of laws have been developed and adopted: the Law of the People's Republic of China on Cybersecurity, the Law of the People's Republic of China on Data Security, the Law of the People's Republic of China on the Protection of Personal Information, the Law on the Protection of Personal Data (PIPL). The responsible bodies for ensuring digitalization in the People's Republic of China are the State Council of the People's Republic of China, the Ministry of Science and Technology, the Ministry of Industry, the Ministry of Education, the Development and Reform Commission, and the Chinese Academy of Sciences. In addition, the Department of Supervision and Administration of the Chinese market has formulated Temporary Rules for Regulating Advertising Behavior and Guidelines for strengthening supervision of online live marketing activities, and has also issued "Antitrust Rules for the Platform Economy (draft for discussion)", but from a general point of view, there is a gap between the supervision of the virtual economy and the real one The economics are still very obvious. At the same time, excessive state control of the economy, innovation and research spheres is called one of the factors constraining digitalization in the People's Republic of China.
The so-called social credit system has been introduced in the country, which is understood through the prism of the rule of law and the rule of law <20>. The program for building a social credit system (2014-2020) of the People's Republic of China <21> introduced the rating of Chinese citizens, depending on daily activities (payment of taxes and utility bills, content consumed online, purchase of goods and services, participation in the community, communication with "friends" on social networks). This rating affects the social status of a citizen: the possibility of his employment, education, credit, visiting certain public places and the possibility of exercising other rights <22>.
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<20> Social credit and the rule of law through the prism of the idea of a decentralized rule of law, the correlation of centralized supreme power and increased regulation: Shen K. The rule of law in building a social credit system // Law of China. 2019. N 5. CLI.A.1284063 ( CLI.A.1284063); Ma H. Human rights of the fourth generation and their guarantee in the society of wisdom // Law of China. 2019. N 5. CLI.A.1284062 CLI.A.1284062); Dai K. Understanding the general perspective of building a social credit system // Chinese and foreign law. 2019. ( CLI.A.1283860).
<21>
<22> Botsman R. Big Data Meets Big Brother as China Moves to Rate its Citizens // Wired. 2017. 21 October.
At the same time, the introduction and implementation of the Program are based on laws, regulations, standards and contracts involving a network of participants and infrastructure facilities covering members of society, and are supported by a mobile application that provides accumulation of big data in the private life of citizens and legal entities, and a system of services for the formation of a culture of unity and the development of a tradition of honesty. In fact, the implementation of the Program is achieved by algorithmically connecting or disabling certain functions in a particular user's mobile application. The use of big data to build a credit society and create a full-fledged credit system has become a new strategy of Chinese social management. For example, Shanghai uses a social credit system to create personal "credit scores." The Shanghai City Creditworthiness Assessment System and the "credit rating" application platform have been created. To build a model of the creditworthiness assessment algorithm, the technology of intellectual analysis and big data analysis is used, which is based on a scientifically sound, accurate and effective standard credit assessment system. To apply this technology, a standard interface service has been developed for the external exchange and withdrawal of credit points, with the possibility of using credit points in various areas of the economy in the future.
Digital constitutionalism and personalization in the field of law
It seems that in this case we are dealing with a shift in the regulation of relations from laws towards algorithmic solutions. This "fine-tuning" of regulation is called "personalization of law" <23>. The author of this term, Philip Hacker, put forward the idea that the personalization of law is the adaptation of the private law regulatory apparatus to individual recipients on the Internet, depending on their behavior, degree of rationality, vulnerability and economic security, calculated by analyzing their online activity data. Based on the concept of behavioral economics and big data analytics, the author proposes to develop a comprehensive framework for the personalization of EU private law through regulatory tools such as disclosure, incentives and recommendations. As a result, this will allow the laws to be adapted to the individual characteristics of the addressees. Such a serious limitation of the rights subject's capabilities, depending on the results of the use of predictive systems, in our opinion, will lead to serious violations of human rights and freedoms. We believe that here we could talk about the legalization of mechanisms for limiting the legal capacity of subjects by disabling certain functions of digital platforms for them, as implemented in the social credit system in China, when an offense leads to an algorithmized inability to perform any operations within a set time.
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<23> Hacker Ph. Personalizing EU Private Law: From Disclosures to Nudges and Mandates // European Review of Private Law. 2017. Vol. 25. Is. 3. P. 651 - 678.
In the article "Digital Constitutionalism: Using the Rule of Law to Assess the Legitimacy of Platform Management," Nicholas Suzor develops the idea that digital platforms manage users by creating rules and policies. At the same time, from the point of view of the concept of the rule of law, the legitimacy of such user management can be qualified as private. Private governance is consistent, transparent, equally applicable, relatively stable and fair. Therefore, according to the author, in the context of digital constitutionalism, the search for the desired restrictions on the power of digital platforms comes to the fore <24>.
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<24> Suzor N. Digital Constitutionalism: Using the Rule of Law to Evaluate the Legitimacy of Governance by Platforms // Social Media + Society. 2018. Vol. 4. Is. 3. P. 2056305118787812.
Such use of technology - beyond direct regulatory regulation - leads to the need to legalize these opportunities. This issue is already on the agenda of modern legal science. On the one hand, the researchers propose to curb non-state regulation through the adoption of state standards. It is proposed to consider state technoregulation as an addition to conventional regulation, because legitimacy requires that the norms be transparent, and the regulatory body is responsible for these norms <25>. In Russia, this path is implemented by adopting GOST standards <26> (for example, GOST R 59276-2020 "Artificial intelligence systems. Ways to ensure trust. General provisions"). The PRC adopts general rules on the disclosure of information on the principles of algorithms and the creation of artificial intelligence artifacts <27>.
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<25> Leenes R. Framing Techno-Regulation: An Exploration of State and Non-State Regulation by Technology // Jurisprudence. 2011. Vol. 5. Is. 2. P. 143 - 169.
<26> Kharitonova Yu., Savina V., Pagnini F. Artificial Intelligence's Algorithmic Bias: Ethical and Legal Issues // Perm University Herald. Juridicial Sciences. 2021. Is. 53. P. 488 - 515.
<27> See, for example: Order No. 9 of the Cyberspace Administration of China, the Ministry of Industry and Informatization of the People's Republic of China, the Ministry of Public Security of the People's Republic of China and the Main State Administration for Market Supervision and Regulation of the People's Republic of China dated November 16, 2021 "Regulations on the management of recommendation algorithms of Internet Information Services"..
On the other hand, the expansion of the fields of application of algorithmic regulation raises the question of the qualification of new rules "from the Web" as sources of regulation of public relations. G. Teubner concluded that the prevailing lawmaking is shifting from politically institutionalized centers in the state to the periphery of law, to the border between law and other globalized social sectors. In his opinion, "the selectivity of rulemaking is changing in comparison with the traditionally political positivization of law." The specific selectivity of "spontaneous global law" poses a challenge to the theory of sources of law: as criteria for attribution to sources of legal regulation, it is now necessary to take into account not only the origin, but also the "social legitimization" of various types of lawmaking <28>. M.V. Mazhorina explains that "the law of the state is an unconditional element of the regulatory system, but all it is shifting more to the periphery, while the core is formed from the norms of non-state regulation" <29>, because "the norms of non-state regulation are not devoid of obligation" <30>.
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<28> Teubner G. Global Private Regimes: Neo-Spontaneous Law and Dual Constitution of Autonomous. 2004 Sectors? // Globalization and Public Governance / Ed. by K.-H. Ladeur. Aldershot: Ashgate, 2004. P. 71 - 87.
<29> Mazhorina M.V. Decree. op.
<30> Dijk P. van. Normative Force and Effectiveness of International Norms // German Yearbook of International Law. 1987. Vol. 30. P. 12.
Thus, the private power of technology companies, primarily digital platforms and big data operators, allows them to form rules of conduct that acquire the meaning of soft law.
Conclusions
The principle of the rule of law has a duality. Formally, the rule of law requires the recognition of the highest legal force for acts emanating from a legislator endowed with the functions of a public authority. However, in the context of the permanent and significant development of technologies and their penetration into public relations in many states, the allocation of such ways of forming rules of conduct for participants in digital relations, in which private structures are also endowed with a normative character, is becoming more noticeable. The rules selected by the legislator can be fixed in the law. This way of forming the legal system makes it possible to achieve its effectiveness and predictability. Meaningfully, the rule of law is associated with fundamental human rights and freedoms, which follow from the principles of legality, morality and justice. In this aspect, the revealed trend towards the personalization of law makes it possible to construct a large number of rules addressed to various participants in public relations in the digital environment, and to achieve their enforceability by establishing technological restrictions.
