Summary of Key Points
Professor Yao Jianlong raised a fundamental question about the rule of law in the digital age during a forum: When algorithms can accurately identify the differences among individuals, should the law still adhere to the principle that “the same rules apply to everyone”? He compared the formal equality of traditional laws (such as uniform standards for drunk driving) with the potential for substantive equality in the digital age (for example, Switzerland’s daily fine system based on income), highlighting the potential of personalized laws while also warning about their risks (algorithms leading to discrimination and data breaches). He concluded by calling on legal professionals to prepare for this transformation in the rule of law.
Detailed Analysis
1. Is traditional equality sometimes merely “false equality”?
Traditional laws strive for fairness by applying the same standards to all, like setting a uniform limit for drunk driving (a certain level of blood alcohol concentration is illegal). However, it’s well known that some people get drunk after just one drink, while others can consume two drinks without any effect. Enforcing the same rules unfairly treats those with lower tolerance for alcohol. Writers have pointed out that laws banning the homeless from sleeping in public areas apply equally to both the rich and the poor, but since the wealthy are unlikely to sleep on the streets, this rule effectively only targets the poor—this is an example of “formal equality masking substantive inequality.” This issue was previously unavoidable due to the inability to accurately distinguish individual differences, but with digital technology, we must reevaluate these practices.
2. Can laws be “tailored” in the digital age?
Algorithms today understand us better than we do ourselves: We receive targeted advertisements on WeChat, and e-commerce platforms make personalized product recommendations. This “personalized” approach is beginning to influence the legal system as well. For instance, Switzerland’s daily fine system for speeding varies based on your income—a wealthy person who speeds might be fined 100,000 euros, while an ordinary person might only pay a few dozen euros; in both cases, the penalty is roughly equivalent to several days’ worth of income, making it more fair. Denmark and Finland are also experimenting with similar personalized legal measures.
3. Can personalized laws achieve true fairness?
The main problem with traditional rules is that they ignore individual differences: Fining a poor person 1000 yuan might be a significant financial burden, while for a wealthy person, it’s negligible. Personalized laws could address this by varying penalties accordingly—reducing the punishment for low-income individuals and increasing it for high-income ones, ensuring that the law serves as a genuine deterrent. They could also provide more protection for vulnerable groups (e.g., those with cognitive impairments) and impose stricter restrictions on those with more resources. As the scholar Georg Jellin noted, while traditional laws aimed for “surface fairness,” digital technology can now enable the law to be “precision-matched” to each individual, achieving true substantive equality.
4. The challenges of personalized laws
Despite their potential benefits, personalized laws come with significant risks:
- Algorithmic discrimination: Algorithms may exhibit biases against certain groups (gender, race), leading to stricter regulations for certain populations.
- Data breaches: Collecting large amounts of personal data (income, health, behavior patterns) opens the door to privacy violations.
- Manipulation of data: Some individuals might manipulate their information to avoid penalties or deceive systems for their own advantage.
- Loss of dignity: When people are evaluated and filtered by algorithms, they could become “data slaves,” losing their freedom and autonomy.
5. Are legal professionals ready?
Traditional laws have been in place for thousands of years, and uniform rules are easy to enforce, providing stability to society. However, the digital age demands personalized laws as a trend. Legal professionals need to:
- Change their mindset: Shift from a focus on universal rules to one that respects individual differences.
- Protect fundamental rights: Ensure that algorithms do not override human freedom and dignity.
- Mitigate risks: Develop strategies to prevent algorithmic discrimination, protect privacy, and combat data fraud.
This transformation is already underway, and legal professionals must prepare now if they are to effectively address the new challenges.
In conclusion
In the digital age, the rule of law is no longer about “everyone following the same path”; rather, it’s about “each person following a path that suits them.” However, this path must be safe, fair, and respectful of human dignity. Legal professionals have a role to play in ensuring that this transition happens in the right way.