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Author; Prastawana Sarma, 1st Year BALLB From MNLU, Nagpur
Introduction
The twenty-first century is experiencing a radical shift in the manner of imagining justice, governance, and regulation. Historically, the rule of law has been the pillar of the democratic society, where there is fairness, accountability and equality before the legal establishments. Nevertheless, the emergence of digital technologies quickly has presented another paradigm: the rule of code. More and more algorithms and computer systems are influencing choices formerly considered to be human-only, such as financial markets, predictive policing, social media regulation, or even dispute resolution. Advocates of this change state that code introduces precision, impartiality and effectiveness that minimizes delays, corruption and human factors that tend to dominate the law system. But such technological optimism is not without its problems. Code is not only human written but also is full of assumptions, values, and biases of those creating it. Furthermore, it is frequently not transparent, democratically controlled, and it does not have means of appeal, as law does. Otherwise, the control of code risks would be centralized to the power of a small number of corporations and technocrats at the expense of justice itself. So, the main question arises: Is it possible to supplement and enrich legal systems by code or is the increasing power of code perilous because its accumulating strength is on the verge of eliminating the ideals of law which protect human dignity and democratic order?
The Rise of the Rule of Code
The rule of code is the term used when it comes to regulating human behavior with the help of digital technologies, including algorithms, blockchain, artificial intelligence, automation. Code enforces itself unlike laws which the enforcers are the human institutions that interpret and apply laws. Consider smart contracts based on a blockchain. Such contracts cannot be interpreted in the court but are just gone through automatically when they comply with some set preferences. Assuming that Alice agrees to deliver good to Bob with a promise to pay 1 Bitcoin, the contract will be enforced automatically as soon as the blockchain confirms that delivery took place. No lawyers, courts or judges are needed.
Even social media gives an example of the strength of code. Algorithms that are triggered by community rules are usually applied to remove posts or even block accounts in response to written guidelines that read abstract data and promote some kinds of content but not others. Effectively, platforms are ruled not by human discussion and more by code enforcements.In that regard, code is more and more like law: It determines behavior, sets rules, and even commands punishment. The question is whether this unaufraid, and automatable and global rule of code can see off the rule of law which is more flexible, interpretive and situational.
The Rule of Law: What’s at Stake
Before making the comparison it is important to remember what the rule of law is all about. The rule of law is based, in its very foundations, on three principles:
Equal treatment before the law. There is no additional to other members of the community, and the law brings no distinctions among people based on wealth, rank, or obligations. Openness and responsibility – Laws are transparent, predictable and law enforcers are also accountable. Due process of fairness, Justice cannot be confined to results; it has a procedure. People should be given an opportunity to be listened to and to oppose authority. There is a human face of the rule of law. Judges can read between the lines, take into account mitigating factors and reconcile conflicting rights. It survives based on flexibility and morality. By contrast, code is rigid. It carries out commands without regard to morality.
Clash or Convergence?
Can code embody justice? The answer to this is in the affirmative: just to a certain degree, yes, but not wholly.
Smart contracts are efficient and cold-hearted. In case a person can afford to miss the payment due to some emergency, a human judge can provide relief; a smart contract would just run the punishment. Predictive policing can be useful in identifying crime-prone areas but can also work against people by inculcating racial/social prejudice in case it has been trained on prejudicial information.
But in reality, there is no replacement relationship between code and law, but a convergence. AI is being used to help courts and not substitute for them. In the case of A.I the ascertainment of risk, for example, in bail hearings or on parole hearings, risk scores are offered by AI tools in the U.S. and Europe; however, judges are in charge of those crucial decisions. On the same note, blockchain may minimise fraud and corruption, yet controversies based on this matter require legal resolutions. Code could, therefore, be used to complement law and make it more effective, but to place law altogether before law would be to take away the human conscience of justice
Experiments in a Code-Driven Justice on a Global Scale.
The examples of the code encroachment on the law are interesting in the world:
- China: The nation has created smart courts, in which AI helps the judges and certain cases are heard and resolved entirely online. Facial recognition systems and social credit systems can also be considered this coded governance, and the modern discussions on the concept of surveillance and individual rights became global.
- European Union: The AI Act is becoming the first big regulation of AI by the EU, which expects to group AI applications by risk and regulate them. This is an indication of an effort to retain the rule of law superior to the rule of code.
- United States: Recidivism is predicted using algorithms such as COMPAS to affect to sentencing decision. Critics surprisingly state that these tools underline racial prejudice and disguise themselves under the pretense that they are objective.
- India: The judiciary has experimented with AI technology in India, although the translation, case summarization, and legal research tools have not been widely implemented. The Digital Personal Data Protection Act, 2023 in its turn indicates an increased awareness of the importance of privacy in the era of algorithm personal surveillance.
Risks and Challenges
- Bias and Discrimination
Algorithms are based on data, which portrays social prejudices. As long as historical policing data discriminate against marginalised groups, then predictive policing technology will mirror the discrimination.
- Lack of Accountability and Opacity.
Algorithms may be black boxes, in contrast to, of course, publicly accessible legal reasoning. Once an algorithmic risk score is used to deny a person bail, there is little that can be done to appeal or defend the decision.
- Monitoring and Invasion of Privacy.
These three elements, together with AI, big data and government official power, threaten to form a surveillance state. There is the risk of constant scrutiny lacking due process which resulted due to the use of automated monitoring.
- Erosion of Human Dignity
Justice is not just about fair play but it is also being treated as a human being. Being a choice made by a machine where every number corresponds to a person can make the system mistrusted and demeaned.
Morality, Privileges, and the Human side.
The main drawback of code is that it is unreaching. Law emphasizes a lot on conflict resolution in which there is no absolute solution. As an example, the judges find an equilibrium between moral, cultural and constitutional practices in matters of euthanasia, abortion, or freedom of speech. There is no algorithm that can be able to recreate such moral reasoning.
Furthermore, the nuclear declaration of human rights and other such structures have foundations defiant of dignity, sympathy and divulging values. Code, on the other hand is fixed and hard. Otherwise the rule of code can wreak havoc by marginalizing human rights as important to efficiency.
The status of Innovation in India: On the balance.
India is a great digital example to study of digital governance. On the one hand, the state is in the stage of spreading digitalisation of its state organs and implements Aadhaar, digital payment systems and AI-enabled solutions into government operations. conversely, the aspects of privacy that remain the subject of debates that continue to date, such as the Justice Puttaswamy v. Union of India ruling, and information privacy show an ongoing conflict between technological change and the protection of the rights of individuals. Although the Indian courts have shown interest in the use of AI tools to reduce judicial backlog, they have equally agreed in strong voice that the final decision-making to be left under human custodianship. Specifically, even the Supreme Court of India has mentioned that technology must only facilitate a sophisticated judicial reasoning process that it cannot replace.
The Design Digital Productive Data Security Act, 2023, is a significant step ahead. However, those critics argue it grants liberal immunity to the State, thus pointing to the need of even stronger conservation in place prior to the Indian side accepting a full-scale rule of code.
Future Directions: Code and Law Arbitration.
Instead of asking the question of whether code can replace law, thinking can pose the more constructive question how code can be ruled by law. It results in a number of guiding principles:
- Hybrid Governance – AI should act as an assistant to the judges and administrators, but it should not substitute them in any way; they will always be superior.
- Transparency Requirements – Justice systems need to employ algorithms that can be readily explained, as well as audited.
- Ethical Standards- Global laws should focus on having limits to the use of AI such that it respects dignity and rights.
- International collaboration – Since technology flows across national boundaries, the cooperation of international law is needed; one such example is that India needs to comply with changing global practices and protect its ease of operation domestically.
- Digital Literacy Lawyers and Judges – jurists and law professionals need to learn the basics of AI and ideas to regulate it, actually.
Conclusion:
The Supremacy of Law over Code.The rule of code takes the form of an imperative reality in the twenty-first century. Starting with smart contracts to predictive policing, algorithms already determine how justice is delivered. However, code cannot substitute the law, it is only a tool. Justice needs fairness, compassion and moral judgment–qualities that human judgment alone can provide. The controversy about whether the rule of code can take the place of the rule of law illustrates the potential and the dangers of our more digitalized world. Code, on the one hand, provides accuracy, efficiency, and automatization, and therefore, it is feasible to create systems that can act with minimum human bias and provide predictable rule enforcement. There is a range of code-enhanced transparency and less discretionary fineness in the range of proposals offered by technological innovations, such as blockchain-based contracts and algorithm-based governance. Nevertheless, law is not merely a matter of rules and enforcement, it is also a matter of values and interpretation and justice. In contrast to rigid code, law is flexible to society and fits a variety of situations, it can be a subject to moral reasoning and empathy. The rule of code endangers to make justice a mechanical process which does not consider the human aspect of fairness, equity and accountability. Code is not to be considered as a replacement but rather a supplement to the rule of law. Through the incorporation of technology in the legal system, the society is able to attain efficiency and the humanness. Finally, justice cannot be coded only in binary terms but it must involve human judgment, moral deliberation, and democratic control. Therefore, the rule of code can influence the perspectives of governance in the future, but cannot substitute the pillars of the rule of law.
The main task of our era is not the need to choose or not to choose on the one hand, law, and on the other hand, code, but on the one hand, code should not above the law but under it. When the rule of code is allowed to run unbridled, justice becomes dehumanised and would be more or less mechanical. On the other hand, under the influence of the premises of the rule of law, code might actually be used to make the administration of justice more effective, transparent and open. But, finally, the vision of the justice in the future should be not a courtroom full of algorithms but a place where law and code will be acting in collaboration, and humans in the frontline.
