And an Algorithm to Entangle them All? Social Credit, Data Driven Governance, and Legal Entanglement in Post-Law Legal Orders

This essay considers the emergence of data driven analytics and the algorithmic techniques of imposing consequences (some of it machine driven (artificial intelligence (AI) based) as defining not just new modalities of governance but reshaping the conception of spatiality within which entangled governance happens. So reshaped, these data driven governance legalities entangle with traditional modes of governance through law in what may be new and interesting ways. At its center is an examination of governance entanglement between the entangled legalities of law-norm systems and the legalities emerging from data driven systems of behavior management. The entanglement becomes more confused where one set of systems (law/regulation) continues to posit that metrics based governance is merely technique, rather than a regulatory system in its own right. The realities of emerging legalities that exceed the capacity of law to express their form requires a three dimensional analysis of entanglement and a broader view of legality, one that reconsiders data driven machine administered regulatory systems more than an enhanced form of property. The first section briefly sketches the characteristics of emerging legalities that neither embrace the form nor the language of law. The two sections that then follow examine the nature of inter-systemic entanglements when data driven governance legal orders are thrown into the already plural mix of legalities. The first is the Chinese “social credit” initiative. The second is U.S. and Western private initiatives around emerging markets for data. Each exhibits quite distinct characteristics and therefore quite different forms and qualities of entanglement that suggest a more complex fracture and inter acting among ever more different systems of legalities that are emerging in fractured political systems arranged around global trade regimes