The development of information technology and its wide application have led to the arrival of the digital age. In this context, the government continues to enhance its data power through the collection, processing, and application of personal and organizational data. This deep integration of “data power” and “administrative power” has led to the rise of “digital governance.”

In essence, digital governance is an upgrade of governance methods by the government through technological empowerment, yet its primary usage is to exercise public power. In the framework of the rule of law, exercising public power should be incorporated into the legal control system. Whether from the logic or practice of the rule of law, the rule of data needs to be constrained by the rule of law. 

In the context of contemporary public governance, digital governance has shown diverse application scenarios. Monitoring for the purpose of public safety, credit supervision aims to build a social credit system, “prudential supervision” is introduced to the management and control of systemic risks in the financial sector, where preventive supervision and “code governance”—widely used in epidemic prevention and control—are typical manifestations of the rule of data. These application scenarios also show that digital governance is actually a new governance technology that uses data analysis, profiling, decision-making, and other technologies to promote the effective realization of administrative power. 

At the normative level, this new public governance technology should be integrated into the rule of law system, but technically, there is an obvious tension between the rule of data and the rule of law. This tension manifests itself in several ways. 

First, the rule of law is expressed in natural language while the rule of data is expressed in artificial languages such as codes and algorithms. Second, the rule of law emphasizes that it is guided by clear rules in advance, whereas the rule of data is guided by analysis and processing of available data. Third, the rule of law rationalizes behavior with open, participatory, and understandable procedural rules. Meanwhile, the rule of data uses internal and machine calculations as the rationale for behavior, so it faces the problem of an “algorithmic black box.” Fourth, the rule of law emphasizes accountability for the subject of power, while the rule of data leads to changes in the attribution logic of the subject of power. Fifth, the rule of law emphasizes review and dispute resolution represented by judges and the judicial system, while the rule of data relies on judgment and evaluation of technical issues by technical professionals. 

How do we ease this tension between the rule of data and the rule of law in the construction of the current digital law-based government? This question is a major theoretical and practical issue for the rule of law. This paper argues that the rule of data and the rule of law are two compatible governance systems. The rule of data is mainly a governance technology system, while the rule of law is a dual composite system of tools and values. The impact of the rule of data on the rule of law is manifested in data’s impact on the rule of law’s tool system, rather than a subversion of the rule of law’s value system. This means that when facing tension between the rule of data and the rule of law, the rule of law’s tool system should be retooled accordingly. For example, data governance needs to be data driven. 

Accordingly, the collection, processing, sharing, application, responsibility, relief, and other links of data can be regulated by means of the rule of law and incorporated into the framework of the rule of law. Similarly, problems of an algorithmic black box and algorithmic comprehensibility faced by automated administrative decision-making can also be solved by improving the rule of law. 

The tension between the rule of data and the rule of law can be reconciled on the “coordinated evolution” path of systems theory. The relationship between the two should not be reduced to rewriting or reconstructing the rule of law by the rule of data, but should realize a digital rule of law system through the co-evolution of the rule of law’s tool system and the digital rule of law’s technology. In fact, in contemporary society where the application of digital governance technology is increasing in breadth and depth, we should adhere to the rule of law’s value system and digital governance technology, while improving the tool system for the rule of law.

Wang Xixin is a professor of Constitutional and Administrative Law at Peking University Law School. This article was edited from his paper submitted to the forum.

Edited by WENG RONG