[author]Zhang Qi
[content]
Between Technological Rationality and Rule of Law: A Humanistic Legal Position in the Intertemporal Space
*Author Zhang Qi, Professor at Peking University Law School
Abstract: Modernity is not only the modern homework and tasks we are engaged in, but also the methods we use to solve the challenges we face. According to ontological philosophy, human existence is a generative existence, a life that creates existence, and is a multitude of vibrant individual lives that are not only rational but also emotional, mental, and spiritual. Various modern values, including the rule of law, are of great significance for us to deal with the relationship between people and big data, the Internet and artificial intelligence. The scientific and humanistic nature of law together constitute the character and humanistic legal stance of law. The essence of big data, the Internet and artificial intelligence is technological rationality. Their development has had a huge impact on human life and law in many aspects. We can inject modern values and their extension requirements, including personal freedom and dignity, justice, democracy, responsibility and tolerance, into the practice of regulating big data, the Internet and artificial intelligence through law from five aspects.
Keywords: technological rationality; artificial intelligence; Modernity; Humanistic jurisprudence; rule by law
Big data, the Internet and AI have now penetrated into our lives. Many scholars believe that we have entered the era of big data and the future is here, where 'everything counts'. If that's the case, can all the practical problems we face today, especially the fundamental ones, be solved through data and algorithms? Can data engineers, computer scientists, or even artificial intelligence solve all the problems we face? Or solve the fundamental problem? I believe that the answers to these questions are negative. The problems we face are not just big data, the Internet and AI. Although many problems are intertwined with these problems, we cannot solve them through big data, the Internet and AI or algorithms; In many cases, big data, artificial intelligence, or algorithms are not only solutions or ideas for solving problems, but also problems that need to be solved. For example, how to effectively regulate algorithms? How to prevent artificial intelligence from taking an anti human development path? In other words, in order to make big data, the Internet and artificial intelligence develop healthily, we need to do more than just in the simple dimension of technology. The problem we are facing is not where are we going? Where do we come from? But where are we currently? In fact, we are still in the midst of modernity and modernization, and on the journey to achieve modernization. At the same time, we often struggle with cultural choices from different spaces, and we often struggle with the "origins" and "backgrounds" of the theoretical resources we use. It can be said that we are currently living in an intertwined space-time. The question raised in this article is: How can we recognize the era we are in amidst the intertwining of time and space, and thus defend human dignity through the rule of law between technological rationality and law? This article will mainly investigate the characteristics of our current era, reaffirm the important value of the rule of law and the scientific and humanistic character of law, and propose a countermeasure based on the humanistic legal position for the characteristics of big data, artificial intelligence and the Internet.
1.Modernity and Rule of Law
1.1 What is modernity?
Different scholars have made different definitions of modernity due to different disciplinary backgrounds, contexts, or perspectives on this issue. British sociologist Giddens believed that "modernity refers to social life or organizational patterns, which emerged in Europe around the 17th century and had varying degrees of impact on the world in later years." Around the 17th century, there was a social process towards modernity in European countries such as England and France. The great discoveries of geography, the Renaissance, and the Reformation are significant events closely related to modernity. In the late 17th century, France had legal provisions regarding compulsory education. Some scholars believe that from the perspective of world civilization history, the Renaissance, Protestant Reformation, Glorious Revolution, and even the French Revolution all belong to the early modern history, and they have developed a series of completely new problems that are different from classical society. German philosopher Habermas believed that "modernization involves a series of processes, such as the accumulation of capital and the utilization of resources; the development of productive forces and the improvement of labor productivity; the concentration of political power and the shaping of national identity; the right to political participation, urban lifestyles, and the popularization of formal school education; and the secularization of values and norms." In Habermas' view, "the primary characteristic of modernity is subject freedom. Subject freedom is manifested in society as the subject being protected by private law and being able to pursue their own interests reasonably; it is manifested as the principle that everyone has the right to participate equally in the construction of political will within the state; and it is manifested as moral autonomy and self realization in individuals; In the public sphere closely related to the private sphere, it ultimately manifests as a process of education centered around the acquisition of reflective culture. These discussions provide us with a basic outline of the meaning, concept, content, and characteristics of modernity. Although they are not universally applicable, they provide us with a foundation for thinking about relevant issues.
1.2 Why is modernity important?
Firstly, fundamentally speaking, we need to anchor this. This reveals the world we currently live in. We can only know where we are now, establish our foothold, find the most suitable starting point, and determine our work premise by anchoring ourselves here. The big data, Internet and artificial intelligence we are facing now have many major impacts on law and social life. In order to deal with these impacts, we must be down-to-earth and know where we are. German philosopher Heidegger pointed out: "The essence of this being lies in its existence... Life has its own way of existence, but in essence, it can only be accessed within it." That is to say, human existence is a generative existence, and humans are the life that creates existence, rather than a fixed, ready-made, static being. These ontological philosophical views are very enlightening for us to think about the basic issues of big data, artificial intelligence and the Internet. We cannot simply regard humans as purely rational, generalized, and unchanging animals with human nature; Human beings are numerous vivid individual lives, not only rational but also emotional, mental, and spiritual. We cannot view people and the world from a static and frozen perspective. We cannot talk about big data, the Internet and AI, which represent the future, while thinking about the relationship between big data, the Internet and AI and people according to the concept of pre modern static people.
Secondly, the key to anchoring here is to determine that we still live in a society where solving modernity is the main goal, and modernity and modernization are tasks that we have yet to complete, meaning an insurmountable stage. The modernity here is the modernity of the task. Looking around, modernization remains the main theme of the living world on the land of China; Reflecting on history, from ancient times to the present, modernity has also been a task we are still striving for. When we think about the challenges brought to us by big data, the Internet and artificial intelligence, modernity and modernization are still the present we need to stand on and the bridge to the future.
Finally, modernity is still our method, resource, foothold, and driving force for solving problems such as big data. The values of modernity, including human dignity, freedom, and the rule of law, indicate that while giving full play to the positive role of big data, the Internet, and artificial intelligence, we should avoid their negative effects. We can only unleash our power by standing in the modern era; Only by correctly solving the problems of modernity and modernization can we grasp the methods and resources to solve the negative impact of big data, the Internet and AI on us. The modernity here is the modernity as a method. If we mistakenly believe that we have fully entered the era of big data and ignore or even abandon modernity and its value, we will be like rootless duckweed, drifting with the flow and being led by new technologies such as big data, wandering towards unknown and uncontrollable dangers.
1.3 How modern?
Regarding the possible problems in modernity and modernization research, as well as China's modernization path, Professor Luo Rongqu, the main pioneer of contemporary Chinese modernization research, believes that China's modernization should "integrate Chinese and Western cultures, innovate traditions... absorb traditional cultural elements, and in the process of cultural globalization, integrate Chinese and Western cultures, establish a new world civilization centered on the comprehensive development of human beings and coordinated development between humans and nature. This viewpoint has three very important aspects: (1) the goal of achieving modernization is to establish a new world civilization centered on the comprehensive development of human beings and coordinated development between humans and nature; (2) Should be proficient in both Chinese and Western cultures, neither completely westernizing nor blindly exclusionary; (3) In dealing with traditional issues, we should incorporate elements of traditional culture and innovate traditions. This is a process of removing the dross, refining the truth, and innovating. These three points are all related to the rule of law that will be discussed in the following text.
1.4 The rule of law as an important value of modernity
We used to believe that the rule of law was a product of modernization. The underlying message of this judgment is that the rule of law is a luxury item, and it can only be achieved when the country achieves modernization and the level of social civilization improves. But both history and reality tell us that the rule of law is a major form of modernization. The rule of law is not only an important component and necessary guarantee of the governance capacity of modern society, but also an important aspect of enhancing and maintaining our international competitiveness. We need to uphold and continuously promote the rule of law. Therefore, we need to emphasize the following three points here regarding the meaning of the rule of law, the relationship between the rule of law and modernity, and the implementation of the rule of law:
Firstly, the rule of law is the rule of law in the sense of value rationality. The rule of law does not exist in ancient China. The "rule of law" discussed by ancient Chinese Legalists such as Shang Yang and Han Fei, as well as the "rule of law" implemented by the Qin Dynasty, is not the rule of law we are currently building. The rule of law we are building today is a kind of rule of law in the sense of value rationality, which has a "soul", that is, the public or people-oriented nature of the rule of law.
Secondly, the rule of law is a necessary condition for achieving modernization. By examining the development history of the rule of law in other countries, we can have a clearer understanding of the close relationship between the rule of law and modernity. Firstly, the rule of law emerged before modernity in history. In Western Europe, in the 11th century, the church used Roman law to transform church organization, constrain the power of clergy from top to bottom, and establish the rule of law. Secondly, the emergence of the rule of law is somewhat related to national governance. American political scientist Fukuyama cited the research of American historian Joseph Streyer and pointed out that in the Middle Ages, the creation of early states involved legal and fiscal systems, rather than military organizations; In a sense, legal institutions predate financial institutions because the royal court is one of the most important sources of income for the king. The ability of the king to provide equality and justice is a condition for him to obtain fiscal revenue through the rule of law. Finally, the rule of law is an important value of modernity. Chinese and foreign scholars have shown through rigorous historical research that although the rule of law entered the historical stage before modernity, it has become one of the three important components of modern political systems since the emergence of modern politics. The rule of law is inherently related to modernity and is a necessary condition for achieving modernization. In China, the rule of law is also indispensable in the great cause of realizing the great rejuvenation of the Chinese nation and the modernization of the country.
Thirdly, the rule of law as the "way" and the rule of law as the "tool". The Book of Changes, Book of Changes, Chapter One, states: "The metaphysical is called the Dao, and the material is called the vessel." Famous historian Gao Heng pointed out: "The vessel is also the object. The metaphysical is like thoughts, academic theories, methods, systems, etc. The material is like the animals, plants, and instruments of heaven and earth. This divides everything between heaven and earth into two categories of Dao vessels, and their meanings are still simple." This insight is enlightening. The author used to understand the rule of law as an ideal, principle, or governance strategy, which seems to be closer to the "Dao". But the rule of law is not only an ideal, but also our daily practice and institutional construction in the great cause of national rejuvenation. We should and can idealize the rule of law as our daily work. The rule of law has both the "Dao" aspect and the "Wu" aspect. The "Dao" and "Qi" are not opposed, but interconnected and connected. The relationship between big data, the Internet and AI and the rule of law, on the one hand, is the relationship between the rule of law as a principle and "Tao" and big data, the Internet and AI. In this regard, big data and other tools can be used to achieve the rule of law; On the other hand, it is the rule of law as a "tool" to guide and standardize the development of big data, the Internet and artificial intelligence. The author believes that the rule of law is the basic framework for legal persons to place big data, the Internet and AI as technological rationality through law in modern society, but it is also in danger of being "threatened" by big data, the Internet, AI and other technologies and other major emergencies. Therefore, we need to pay more attention. We should not believe too much or even indulge in big data, the Internet and artificial intelligence. We should not think that the rule of algorithms equals the rule of law, or it may backfire. All of the above tasks require people to accomplish. These tasks can also be explained from two aspects: "Dao" and "Qi". From the perspective of 'Dao', as Confucius said, 'If a person can spread the Dao, it is not the Dao that spreads the people'; From the perspective of 'tools', people can concretize the requirements of the rule of law into institutional construction and daily practice. From this perspective, contemporary Chinese legal professionals can all be advocates of the rule of law and practitioners of the ideal of the rule of law in China. Legal professionals, with confidence in the rule of law and determination to practice it, fulfill their mission and social role through their professional practice; The legal person's rule of law in the specific operation of regulating big data, the Internet and artificial intelligence is very important for the realization of China's modernization and modernity, and for coping with the impact of big data, the Internet and artificial intelligence through the rule of law and law. The training and nourishment of law have fundamental significance for legal professionals to complete the above-mentioned work.
2. The Character of Law and Humanistic Law
In modern society, legal professionals are citizens who participate in social governance and world affairs with their professional abilities. They are not only witnesses to the evolution of Chinese society towards modernity, but also promoters of the development of Chinese society towards modernity through the rule of law. Law is the armor, weapon, and even life of legal professionals. Law is to legal professionals what armor and weapons are to soldiers on the battlefield. Sharp tools make good work. A correct understanding of the character of law is particularly important for legal people to realize their mission through legal control of big data, the Internet and artificial intelligence as technological rationality. Due to our insufficient attention to this issue in the past, and some of our views being ambiguous, we need to re-examine the character of law here. We approach this re evaluation from two aspects: the scientific and humanistic aspects of law.
2.1 The scientificity of law
There is no doubt that law has scientific validity. But is the scientific nature of law the same as that of physics? Are the theories and concepts discussed in law similar to theorems in physics and axioms in mathematics? Obviously not.
Professor Wang Liming pointed out that the scientificity of law is "a disciplinary knowledge with an inherent system structure, its own unique knowledge system, and unique research methods". This statement is generally a consensus in the legal community. In fact, there are various interpretations of the scientific nature of law among people. Many foreign legal scholars have discussed the scientific nature of law. American jurist Holmes once pointed out: "For the rational study of law, those who study historical texts may be the masters of the present, while the masters of the future belong to those who study statistics and economists. This view that legal research can be conducted using methods that we today consider to be social science disciplines such as statistics and economics also reflects the definition of the scientific nature of law. German jurist Yelin pointed out: "Law is the scientific consciousness in legal matters. This consciousness must develop towards the perspective of legal philosophy in order to explore the ultimate foundation on which the origin and effectiveness of law in the real world rely. It must trace all the paths it has taken in the perspective of legal history, so as to move from one stage to the next and achieve higher perfection. It must also gather all the temporary high points and endpoints we have gained from our understanding and mastery of law in the perspective of doctrinal studies, gather experience and facts, and arrange these materials based on practical use for scientific presentation." Regarding Yelin's viewpoint, Professor Zhou Yongkun pointed out that... Yelin said that law is a science, The scientific meaning of it is "Kantian style spiritual science, and the purpose of its jurisprudence is not to search for legal laws, but to search for appropriate 'laws'. Yelin's innovation has enabled jurisprudence to move beyond simple conceptual deduction, to communicate history and reality, to connect the formulation of legal norms and legal discovery, and to lead jurisprudence towards practical science". On the surface, it seems that there is a significant difference between Yelin's understanding of the scientific nature of law and Holmes' understanding, and even their attitudes towards legal history differ greatly. Are their views contradictory? Maybe not. In order to understand the scientificity of law, we need to trace the origins of science and understand its original and rich meanings.
According to the research of Professor Wu Guosheng, a philosopher of science and a historian of Chinese science, the scientific tradition in the Western context can be broadly or narrowly defined. The broad scientific tradition, also known as the Western grand traditional science, is the "scientific tradition" initiated by ancient Greece, which is a science in the sense of knowledge. The German word "Sissenschaft" has a similar meaning to the traditional science of ancient Greece, including various natural and man-made disciplines such as astronomy, physics, chemistry, as well as politics, philosophy, and language; It basically represents the broad sense of science, that is, the rational exploration of deterministic and systematic knowledge since ancient Greece. Narrowly defined science refers to the "empirical science" that emerged in Europe in modern times, specifically the English word for "science", with a focus on natural science, but actually referring to natural science. It can be seen that law is not necessarily a science in the sense of natural science. The scientificity of law is also different from that of natural science. Professor Wu Guosheng believes that science is the humanities of ancient Greece, which refers to the scientific activities and attitudes towards science of ancient Greeks, as well as the scientific spirit and tradition. "The scientific spirit is a way of thinking that belongs specifically to Greek civilization. It does not consider the practicality and utilitarianism of knowledge, but only focuses on the certainty of knowledge itself, the autonomy and content deduction of truth. The scientific spirit originates from the Greek ideal of free human nature. The scientific spirit is the rational spirit, the spirit of freedom. Although the scientific nature of law is related to the narrow scientific tradition mentioned above, what is more inspiring for us to understand the scientific nature of law is this scientific spirit. We can see from Yelin's perspective that his advocacy of the scientific nature of jurisprudence is similar to the scientific spirit of ancient Greek tradition, but it is not contradictory to Holmes' viewpoint.
Contrary to the spirit of science, what hinders us from correctly grasping the scientific concept of law is the ideological scientism. This is an ideology that implies internal contradictions. On the one hand, it approaches science with a utilitarian attitude, while on the other hand, it believes in the omnipotence of science. When emphasizing the scientificity of law, we must be vigilant and avoid the influence of this scientific approach.
At the same time, we need to approach scientificity with a calm and humble attitude, constantly reminding ourselves and avoiding falling into the pitfalls of our own research. This is because, as Professor Wu Guosheng pointed out, "the natural world, which is the research object of modern science, is actually a constructed object." The widespread use of mathematical symbols has seriously alienated people from the living world, smoothed out the qualitative differences between various things, and the world itself has lost its meaning. Isolation, stillness, and one-sided thinking dominate, and "people no longer view everything they face with sympathy. The universal connections between the universe that have been ubiquitous since ancient times have been dissolved, and the meaning placed in these connections has also dissipated. In the era of big data, instead of alleviating this situation, it has exacerbated the loss of meaning in the world of life. In view of this, while being vigilant and avoiding the foundation of scientism, we also need to avoid the influence of scientism alone. Scientism is another paradoxical ideological concept. Scientism claims to only recognize objective facts and reject all theories, but in fact, theory is the method and framework for understanding facts. People who view social phenomena in this way, because they try their best to avoid all purely subjective factors and confine themselves to 'objective facts,' end up making the mistake they should try their best to avoid, which is to take at most vague popular theories as facts. Therefore, in an era of constantly expanding technological rationality, people need theories that embody humanistic care more and more.
Above, we have traced and clarified the general meaning of scientificity. However, the scientificity of law has its own unique development, which requires us to conduct a specialized analysis. Professor Shu Guoying pointed out that "the transformation of law from a practical study of law (jurisprudentia) to a 'legal science' (jurisprudentia) is the result of the transformation of the 'axiomatic methodology' of legal scholars since the 17th century... Practicality constitutes the academic character of law, and law should return to the study of practice itself." This viewpoint is valid. We can further understand this from the following characteristics of social sciences.
The British philosopher Hayek pointed out that the special objects and methods of social research are the key to opening the door to understanding the characteristics of social sciences. Social science research is not about the relationship between things, but about the relationship between people and things or people. It studies human behavior with the aim of explaining the unintended or unplanned consequences of many people's behavior; Most social behaviors are not the "objective facts" that can be defined from a natural perspective as claimed by science; The decentralization and incompleteness of all knowledge are two fundamental facts that social sciences must face... The special difficulties of social sciences, as well as the large number of confused thoughts about their nature, arise precisely from the fact that ideas play two roles in social sciences, as they are both the object of study and the ideas about such objects.
When applying scientific methods to research related to society, efforts should be made to avoid the misuse of social science methods, that is, blindly transplanting quantitative methods to another field where those special conditions do not exist. Hayek pointed out, "Not only does it often lead to the selection of the least relevant factors from phenomena that can be calculated precisely, but it also results in the 'calculation' and arrangement of values that are fundamentally meaningless." In China, law is regarded as an integral part of social sciences. Therefore, the characteristics and weaknesses of social sciences analyzed by Hayek require us to be vigilant. If we blindly apply social science methods to legal research without reflection, we may intentionally or unintentionally transfer ideas and treat our own views as objective facts. When we apply big data methods to legal practice and legal research, we also need to avoid "calculating" and arranging values that are fundamentally meaningless ". In fact, some scholars have pointed out the practical problems in this regard. Some scholars have pointed out that due to the low-cost replication and dissemination of data itself, machines have the ability to produce data almost infinitely, resulting in a continuous decrease in the overall value of data, "bringing difficulties to people's choices and decisions, and becoming another sense of 'pollution'".
The purpose of pointing out the characteristics of social sciences and the possible problems of social science methods is not to refuse the use of scientific methods and the scientificity of law in legal research, but to conduct legal research with a truly scientific attitude and methods. The six questions proposed by British jurist McCormick, which should be answered after substantive reflection, can serve as guiding words for us to achieve the scientificity of law. These questions include: (1) What exists? (2) What is the structure of an existing object? How are different types of things related to each other? (3) How do we know what exists? How do we recognize things that exist? (4) What methods do we use to explain and illustrate the various problems our knowledge faces? (5) What is the position of humans as rational agents in their relationship with any other existing entity? (6) Given this, how can we live? How to take action?
We not only need the above-mentioned issues as guiding words for scientific legal research, but also need a scientific academic attitude to conduct legal research. This academic attitude is the spirit of criticism and the spirit of seeking truth. The criticism here refers to academic criticism and reflection, which is a habit of thinking without superstition, reflection, and questioning. It includes both a critical attitude towards the research of others and a spirit of self-criticism or reflection towards one's own research; The so-called spirit of seeking truth is an honest attitude of striving to explore truth and objectivity.
2.2 The humanistic nature of law
In ancient China, the terms "person" and "wen" in humanism were two separate words. The former referred to ideal human nature, while the latter was commonly known as "wen" in ancient times, which is a verb used to indicate the path and leave traces. Its basic meaning is "decorative patterns". Later, it developed into a way of education, cultivation, and shaping adopted to achieve ideal human nature, known as "wen hua", which represents the process of cultivating ideal human nature. Sorting out the original meanings of these two words helps us to correctly understand their combined meanings. The humanistic nature of legal studies that we are discussing here has four layers of meaning.
Firstly, the humanistic nature of law affirms that human beings are individuals with dignity, possessing personal will, the ability to make choices, the ability to make negative judgments, and creativity. Professor Zhang Rulun explained based on Heidegger's ontological philosophy that "the essence of human beings lies in their 'relationship with existence', rather than any rationality or anything else. Human beings are first and foremost not animals with certain properties. Because human existence is fundamentally different from the existence of non-human beings, especially from the existence of other living beings. Defining humans as' rational animals' is to regard them as ready-made things." Consistent with the aforementioned ontological philosophy, Professor Huang Yusheng pointed out that "the future of humans is not only planned by reason, but also expected by will," and humans must have transcendent beliefs because of their free will; Transcendental belief itself is not a transitional spiritual form or stage of consciousness, nor is it a simple social organization or control tool. 'It is first and foremost an internal way of existence for humans.'. It has the significance of guiding and improving the world. We have now entered the digital age, and the humanistic nature of law reminds us not to forget people and their various endowments. As German legal philosopher Kaufman pointed out, "The legalization of our world is a part of technological rationalism. We should not be driven too far by technological rationalism and forget about humanity and its basic concerns." To this end, we need to add four points: (1) Transcendental faith is a universal objective existence. For example, we ordinary Chinese people know that "caution after caution". In recent years, the Tomb Sweeping Day in early April has become an important spiritual activity for ordinary Chinese people to remember their ancestors and inspire their lives. (2) Because transcendent faith is a universal humanistic existence, humanistic jurisprudence needs to be positively studied and affirmed for its significance. (3) Transcendental faith plays a positive role in maintaining social order and normative systems, and has a substantial impact on the existence of law. (4) Due to the rapid social changes and extreme uncertainty caused by factors such as big data, we need to acknowledge the significance of transcendent beliefs and human spiritual activities in regulating big data, artificial intelligence, and other aspects.
Secondly, the humanistic nature of law affirms that humans are the starting point of legal thinking and supports a humanistic legal stance. The humanistic legal stance supported in this article is in the usual sense of humanism, which advocates that people are the end, respects and serves people, and opposes using people as tools.
Thirdly, the humanistic nature of law affirms that individuals possess citizenship in modern society, are the providers and creators of legal meaning in the legal order, and are the legislators, beneficiaries of legal rights, and bearers of legal obligations. Law is an important public life norm for maintaining social stability, promoting social development, and achieving social justice. Humanistic legal studies can provide indispensable guidance for people to formulate and implement such norms.
Fourthly, the humanistic nature of jurisprudence affirms the close relationship between law, jurisprudence, civilization, and culture. "Law is a product of civilization, a means of maintaining civilization, and a means of promoting civilization. The humanistic nature of law is closely related to culture, manifested as follows: (1) Culture has a dual impact on the understanding of the meaning of law by members of a specific society and the status of law in society, and these dual impacts are interrelated with each other. In ancient China, ritual was the core of traditional Chinese culture. In ancient Greece, Rome, and even the Jewish society that experienced more than one forced migration, these societies were composed of strangers, and contracts played a role as a mechanism for forming different social orders. This distinction is also related to the origin and nature of law, as well as the understanding of the superior concept of law. The superior concept of law, whether it is rules (in China) or contracts (in the West), has a subtle impact on people's law-abiding mentality. Because if the rules are set by others, then following the rules has a certain unavoidable characteristic; If the contract is customized by the contracting party, the motivation to comply with the contract is different from the motivation to follow the rules. (2) We should view law and legal studies from a developmental perspective. Both law and culture have developed through openness and integration. Tradition is our resource for progress, not a barrier to development. We need to draw nourishment from traditional culture and transform it into a resource for our nation to understand modernity. For example, individual personality plays a fundamental role in the formation and development of modern rule of law. We need to study the ideological resources related to individual personality in traditional Chinese culture, and research the positive discourse on individual personality in traditional Chinese culture and develop it on this basis. Classic discourses on the value of individual personality, such as "the three armies can seize the commander, but the commoner cannot seize the ambition" and "the mighty cannot bend", are valuable traditional cultural resources for our legal research. At the same time, viewing the humanistic nature of law from a developmental perspective cannot be separated from introspection of our own cultural traditions. Our way of thinking about law is influenced by traditional culture and national history. Chinese traditional culture and special experiences often lead many scholars to think in a practical and rational way, easily treating the rule of law in a tool rational way, that is, only using the rule of law as a tool to achieve certain goals, without seeing the inherent value of the rule of law as one of the modern values. If we cannot view the rule of law and the law with a value rational mindset today, it will be difficult to achieve true rule of law. We need to approach tradition with a dialectical attitude.
Although the scientificity and humanism of the above-mentioned legal studies are different aspects of the character of law, they are fundamentally consistent, that is, they are both related to the free development and healthy life of human beings. Together, they constitute the character of law and the humanistic legal stance that the author refers to. This legal character and position is of great significance for us to regulate big data, the Internet and AI through the rule of law.
3. Characteristics and impacts of big data, Internet and AI as technological rationality
To understand big data, the Internet and AI, we must first understand the core of their methods, namely, what kind of method characteristics and essence they have, their limitations and their impact on society and law.
3.1 The method characteristics and essence of big data, Internet and artificial intelligence
There are various methods for big data, among which the most important are: (1) encoding. For example, in order to improve legal or similar case retrieval work, we encode cases and laws by breaking them down and analyzing them into various constituent elements, encoding these elements, and then comparing the elements of previous cases with those of pending cases to determine if they are similar; Or is it the law we need. If the cases are similar, then we should make the same judgment for similar cases; otherwise, we should not. (2) Swarm thinking. Swarm thinking is a distributed memory that can perceive and remember simultaneously. Most human thinking is also distributed, at least in artificial thinking, distributed thinking is definitely dominant. Distributed systems have four prominent characteristics, namely, no mandatory central control, sub units have autonomous characteristics, sub units are highly connected to each other, and point-to-point influence forms nonlinear causal relationships through networks. (3) Nested hierarchy. The advantage of nested hierarchy is that the universal distributed control enables the classification aggregation of control to gradually accumulate from the bottom. Derive complex systems from existing and well functioning simple systems, starting from the grassroots and lower levels, where each level is equally important, reflecting a functional thinking approach; It is a gradual, indirect, and constantly improving process.
The core of big data methods is prediction and quantification. The core of big data is prediction, and it is achieved through a process of transforming phenomena into quantifiable forms that can be analyzed in tables.
Although artificial intelligence and big data are different technologies, they can be studied together because artificial intelligence has certain similarities with big data in terms of being based on data. From the characteristics of the methods of big data and artificial intelligence summarized above, we can say that the essence of big data and artificial intelligence is technological rationality. As a form of technological rationality, they have no inherent value or specific value orientation.
3.2 Limitations of big data, Internet and AI as technological rationality
Although big data, the Internet and artificial intelligence have huge development space, and some people even worry about their replacement for people, they are not omnipotent as technological rationality, but limited. There are at least three limitations that can be summarized here: (1) big data, Internet and AI are limited by human programming; (2) Artificial intelligence only corresponds to human intelligence. Intelligence is human intelligence, and in addition to intelligence, humans also have heart and spirituality. Empathy is an important component of heart, and transcendent faith is an important component of human spirituality, which cannot be achieved by artificial intelligence; (3) Due to factual limitations, this is a fundamental limitation of big data. Data is a fact, but it cannot tell us what will happen in a counterfactual or fictional world, where observed facts are directly denied. However, human thinking can reliably and repeatedly make inferences that seek explanations behind them. Human beings are creative and can change the world and create life through counterfactual thinking. So far, the thinking of artificial intelligence has been based on the processing of data, which is limited by the data provided to it by humans. Even if one day humans teach artificial intelligence counterfactual thinking, they will still hold the ultimate initiative in counterfactual thinking.
3.3 The multifaceted impact of big data, Internet, artificial intelligence and other technological rationality on law and social life
On a positive note, big data can empower the formulation and application of laws, as well as promote the evolution of legal systems. For example, China's current case guidance system will evolve into a case system, because only the case system conforms to the development trend of distributed thinking in the era of big data, the Internet and artificial intelligence. Some scholars have more avant-garde views. For example, some scholars believe that artificial intelligence and information technology will have a disruptive impact on the law, leading to changes in legal paradigms and even the "death" of the law. I believe that this detailed analysis of the changes in legal paradigms brought about by artificial intelligence and information technology is convincing, although I do not fully agree with this judgment of the ultimate "fate" of the law.
On the negative side, people's superstition towards technological rationality is a threat to human nature and can have a negative impact on human life. Today, the problems brought by big data, the Internet and artificial intelligence include at least the following three aspects: (1) the difficulties of choice, free will and responsibility judgment. Some scholars believe that if big data analysis is completely accurate, our future will be accurately predicted. Therefore, in the future, we will not only lose the right to choose, but also act according to the prediction. If accurate prediction becomes a reality, people will lose their free will and the right to freely choose their lives. Since people have no other choice, they do not need to take responsibility. (2) The crisis of human existence. Israeli historian Yuval Herali once said: "Once the Internet of Everything begins to operate, human beings may be degraded from designers to chips, then to data, and finally dissolve and disperse in the torrent of data, like a piece of soil in the torrent." Chat GPT 4 has the potential to lay off many people, causing a lot of anxiety, which seems to make Herali's prediction come true to a certain extent. (3) The paradox of causal cycle. We cannot make a judgment based on determining the cause and effect. A is both a cause and a result. This makes it difficult for us to find and determine the cause.
Of course, these negative impacts are not the defects of big data, the Internet and AI, but the consequences of people's abuse. What we need to do is to try to avoid the problems that may arise from the abuse of big data, the Internet and artificial intelligence.
4. Standardizing technological rationality through valuable rule of law
Technical rationality lacks value care. The values referred to here are the shared human values that are an important component of modernity, including personal freedom and dignity, justice, fairness, democracy, participation, transparency, responsibility, inclusiveness, and the rule of law. They are of great significance to the healthy life of humanity. They are not only theoretical resources for us to solve the aforementioned problems, but also the starting point and foothold for us to "feel the stones and cross the river", forming a scientific and dynamic foundation in the era of informatization and intelligence. Good deeds alone are not enough for governance. Values need to be concretized and institutionalized. We need to regulate technical rationality through the rule of law with value care, so that it serves people rather than the opposite. It can be said that the values of modernity are the soul of the rule of law, and the character and humanistic stance of law guide us to integrate these values into the basic academic stance of the rule of law. Next, the author will discuss how to inject the above values and their extension requirements into the practice of regulating big data, the Internet and artificial intelligence through laws from five aspects.
4.1 Resist the superstition of technological rationality by protecting the personal freedom and dignity of citizens
Harari pointed out: "Dataism equates human experience with a data model, which destroys our main authority and source of meaning, bringing about a major religious revolution that has never been seen since the 18th century... In the 18th century, humanism moved from a god centered worldview to a people-centered one, pushing God aside. In the 21st century, dataism may move from a people-centered to a data centered one, pushing people aside... Once power is handed over from humans to algorithms, the issues of humanism may be eliminated. As long as we give up a people-centered worldview, human health and happiness will no longer be as important." Harari's dataism and the technical rationality I am talking about are similar. The meaning is the same. Now, with the successive release of Chat GPT 4 and others, Harari's argument is undoubtedly a reminder of the reality that humanity has already faced. In this situation, we need to avoid superstition towards big data and artificial intelligence, avoid moving towards "dataism", and overcome panic about artificial intelligence. People's imagination of artificial intelligence is a projection of their own imagination. The problem lies with humanity itself, not with dataism or artificial intelligence. When we have no confidence in humans, we have no confidence in artificial intelligence. The question is how to protect humanity? The key here is to attach importance to protecting the personal freedom and dignity of citizens. The so-called personal freedom of citizens is related to their civic nature, civic virtues, civic spirituality, and beliefs. They are of great significance in combating dataism and "data superstition". Transcendental faith is rooted in transcendent human nature, and human freedom has a direction, which is to constantly open oneself up while constantly surpassing and improving oneself. This process is also a process of opening up the absolute domain and facing the absolute other. The author believes that the law can regulate and guide transcendent beliefs to play a role in helping humans (especially ordinary people) uphold the meaning of life, resist the oppression of data, and fight against "data superstition", artificial intelligence alienation, and "technological fetishism".
4.2 Adhere to the principle of taking responsibility for one's own actions
The other side of protecting citizens' personal freedom and dignity is to demand that citizens take responsibility for their actions. In law, demanding someone to take responsibility means demanding that someone bear adverse legal consequences for their actions. To integrate value care into technological rationality, it is necessary to hold citizens personally responsible for their actions, but not to hold them accountable for their "tendencies". If the rule of law will to some extent shift towards the rule of algorithms, in order to ensure that the rule of algorithms always conforms to the rule of law, we should encourage internal and external mathematicians to be an important part of society and take responsibility for their actions; Cultivate and develop the ethical responsibility and fundamental values of putting people first for this group; Implement the principle of responsibility for data users and beneficiaries. Data users need to take responsibility for protecting citizens' personal privacy. To this end, we need to continuously improve laws and regulations. Once there is a violation of citizens' rights and interests in the use of data, the users and beneficiaries of the data can be held responsible and bear adverse legal consequences.
4.3 Adhere to reciprocity, integrity, balance, and opposition to monopoly
Reciprocity, integrity, balance, and opposition to monopolies are necessary principles to avoid the deviation of big data and artificial intelligence. This includes three specific requirements: (1) We need to promote cooperation among society, businesses, governments, and other professionals based on the principles of reciprocity and integrity. We should fully leverage the power of the market that conforms to the spirit of decentralized data processing. (2) We should strike a balance between protecting citizens' privacy and promoting social development. Citizen privacy is an important component of a citizen's personality and should be protected; At the same time, with the development of technology and society, through reasonable procedures and mechanisms, personal data will inevitably enter the public domain and be shared by society, requiring consideration and balance. (3) We need to oppose any form of data monopoly. The effective way to oppose monopolies is still to leverage the role of the market. Because in a fully developed market economy, enterprises can effectively identify the value of data based on their own input-output considerations, and try to avoid the possibility and harm of "data pollution" mentioned earlier.
4.4 Common development
Although artificial intelligence and information technology have had and will continue to have a tremendous impact on law and human life, we need not fear the development of these technologies. Human beings will develop and evolve together with big data, the Internet, artificial intelligence and information technology. People need to constantly learn from biology, nature, and artificial intelligence. Human life is constantly evolving, and there may not be a final answer to how much in life can be transformed. Some scholars believe that humans and artificial intelligence have co evolved, and that 'all evolution, including the evolution of artificial objects, is co evolution'. We are heading towards a 'new biological civilization'.
This co evolution has its rational basis, which is the ontological philosophy we discussed at the beginning of this article. Existential philosophy inspires us that humans are constantly growing. The 2018 World Congress on Philosophy selected a philosophical proposition from pre Qin Confucianism in China, "Learning to become an adult," as its theme, which is very correct and highly characteristic of the times. The era of big data, Internet and artificial intelligence is a new growth era for mankind. Although the times of learning are different and the tasks of learning are different, people are still people. In coevolution, we still need to uphold justice. In coevolution, the simplest strategy that ultimately wins is called 'one reward, one reward'... It is a reciprocal strategy that rewards cooperation with cooperation and betrayal with betrayal. This is a fundamental type of justice, namely retributive justice, which also has a corrective effect. Meanwhile, in the process of co evolution, we must also adhere to democracy. The necessary conditions for co evolution, win-win cooperation, and moving towards organization are the understanding of public opinion, recognition and protection of individual interests, and spontaneous cooperation. In order to achieve coevolution, strict control and confidentiality cannot be enforced. If forced, it will only backfire. Public information is necessary to maintain economic stability and growth. Some scholars believe that traditional law, based on the premise that its rules can be universally and uniformly applied to all scenarios, requires that all scenarios be regulated with certainty and consistency according to written commands. However, the rise of artificial intelligence technology will first undermine the commanding, universal, deterministic, written, and unified characteristics of law. The author believes that this viewpoint seems to be mainly based on a legal system dominated by statutory law. If we consider the form and development of case law or case system, the situation may be different. In short, the development of the precedent system may be a "new" path for legal development after the rise of artificial intelligence technology; The precedent system can become a good carrier and a new platform for the co evolution and development of humans, artificial intelligence, and big data.
4.5 Adhere to an attitude of awe, openness, and inclusiveness
To integrate technological rationality into value care, we also need to uphold an attitude of awe, openness, and inclusiveness. Reverence is not cowardice, but our profound understanding of the limitations of knowledge and the infinite possibilities of future development. The other side of reverence is tolerance, including tolerance for mistakes. We should not be afraid of making mistakes, as they may be beneficial. Introducing a small amount of random factors (such as errors and defects) can actually create long-term stability in a co evolutionary world, because in this way, certain strategies cannot be easily 'copied' and can occupy a dominant position for a relatively long time. We need to establish legal regulations to prevent unreasonable control or confidentiality of information. At the same time, encourage innovation and tolerate mistakes through laws.
5. Conclusion
Big data, the Internet and artificial intelligence are new technologies representing the future, which are created for and benefit mankind. They not only profoundly affect the legal system and social life, benefiting humanity, but also bring a series of unavoidable problems for people. The author believes that the essence of big data, the Internet and AI is technological rationality, which has no value orientation. The root of the problems caused by technological rationality that people are concerned about lies in humanity itself. Human beings need to solve the problems brought by technological rationality by solving their own problems. The key to solving problems is based on the understanding that 'we still live in modernity, and modernity and modernization are not only our unfinished business, but also the foundation and important path for us to tackle future challenges'. As a modern value, the rule of law is also a necessary institutional framework for us to solve big data, Internet and AI problems. Legal professionals are the main force in achieving legal norms and technical rationality. For this reason, legal professionals need to cultivate and train in humanistic legal studies. The position of humanistic jurisprudence is a legal stance that combines the scientific and humanistic aspects of jurisprudence, with the aim of defending human dignity. To cultivate ideal legal people is to cultivate legal people with conscience and value pursuit, and to cultivate legal people who can actively integrate the value of modernity into the daily work of big data, the Internet and artificial intelligence. Our starting point and purpose is: in the era of informatization and intelligence, the rule of law is used to promote the advantages and avoid the disadvantages of big data, the Internet and artificial intelligence, maintain human dignity and improve human life.