Oñati Socio-Legal Series | VOLUME 13, ISSUE 2 (2023), 436–463: INNOVACIÓN LEGISLATIVA EN TIEMPOS DE EXCEPCIONALIDAD
DOI LINK: https://doi.org/10.35295/osls.iisl/0000-0000-0000-1370
Digital technologies used to identify, profile, and supervise are often hailed as the serendipitous results of inevitable progress, while the long-term consequences of their application remain beyond the attention of lawyers and politicians. This article tries to close this gap by exploring and discussing probable effects of the application of such technologies for the present model of statehood and legal order. It examines the hypothesis that the ubiquitous digitalisation of governance and the increasing attention to individuals’ reputation in the provision of public services are related to the attempt of contemporary corporate elites to perpetuate their power and resolve the problem of building a new, post-capitalist social order. The article argues that the expansion of social control through digital technologies can lead to a gradual loss of constitutional subjectivity and political power by people.
Algorithmic governance; digital profile; social credit system, social control; surveillance state
Life is changing rapidly, and we even have not realised yet when exactly this has begun and what the scope of this change is. Today, it is obvious that the “end of history” proclaimed at the dawn of the 1990s was premature, and the emerging terrain of the 21st century is rife with its own problems, conflicts, and hopes. Ubiquitous digitalisation and the development of disruptive technologies based on algorithmic calculation and big data analytics affect our everyday habits and at the same time raise reasonable concerns about the future of the world we know. The COVID-19 pandemic has only increased these concerns and simultaneously serves as a trigger for even more rapid technological development and social regulation. However, the question should be posed not about the technologies as they are, but, first and foremost, about the social forces that design them and benefit from their implementation, as well as the social order that is being formed by these forces.
In the early 2000s, an assumption that capitalism—at least in its neoliberal form—had reached a dead-end spread among researchers (Klein 2007, Fernández Durán 2012). Describing the present-day world-system as a capitalist system, whose “dominant or deciding characteristic must be the persistent search for the endless accumulation of capital”, Wallerstein (2013, 10, 35) argued that this world-system “cannot continue because it has moved too far from the equilibrium, and no longer permits capitalists to accumulate capital endlessly”. According to Wallerstein (2013, 32–35), we thus live in a time of uncertainty, in which the construction of a new, successor world-system is more-and-more on the agenda.
This new world-system—containing both conventional capitalist features and non-capitalist features—is arising before our eyes. As Delanty (2019, 14) convincingly explains, the two major determinants of modernity have been capitalism, on the one hand, and democracy, on the other hand. Accordingly, the appearance of social order has always been defined by the tension between capital and social movements. If this is the case, and the conventional capitalist world-system is being replaced by something other, or, at least, transforming in a non-conventional manner, then the international elites face the challenge of safeguarding their power and building a new social order based on new regimes of governance. Interestingly, ideas for building a more predictable society, even at the expense of privacy and middle-class property rights, cut across the reports and discussion papers of the leading international think-tanks and platforms for collaboration between business and political leaders. Central to these discussions was the idea of a “digital identity” system that would guarantee trust between the market participants (WEF 2016, 2018; World Bank 2016b). This construction of a more predictable society based on a mutual trust between its members is a cornerstone not only of Western liberal democracies, but can also be seen in places like the People’s Republic of China, which, in recent years, has been developing an ambitious Social Credit System.
The starting hypothesis for this study is that the key determinants in the formation of new governance regimes are state of the art information technologies in the field of public administration and the increasing focus on notions of social trust and reputation. This paper, consequently, poses two aims. The first aim is to explore what new model of statehood these emerging governance regimes may foster. The second aim is to examine how this model affects constitutional rights of citizens and their place in the legal order.
I begin in Section Two, after the Introduction, by briefly examining the general notion of statehood and the main characteristics of modern statehood (i.e., the statehood of the age of modernity). A particular emphasis is put here on the role of popular sovereignty as well as the concept of the nation in the construction of modern statehood. Section Three is devoted to the role of reputation systems and the application of data-driven mechanisms for social steering in governance activities. Section Four points out the implications of such data-driven systems for the emerging regimes of governance, statehood, and contemporary legal orders. The concluding section explains the interconnections between the emerging social order and the idea of “great reset” of capitalism declared by the certain transnational elite groups. It also points to some axioms that can help fill the gaps in such explanations and sums up the findings made during the study.
Some remarks relating to the methodology of the study should be underlined. In this paper, the notion of statehood is understood as a set of characteristics that describe a historically determined type of governance in a class society. In relation to the issue of interconnections between statehood and capitalist economy, I generally adhere to the Marxist and, particularly, Gramscian approach (Gramsci 1971). Following world-systems theory, capitalism is understood as a system, which rise as a world-economy in the “long” 16th century (Wallerstein 1974).
The study is based on the assumption that national and transnational elites do exist and have their own class interests that are expressed in the activities of the global governance institutions, state agencies, corporate entities, private foundations and informal elite clubs. The most methodologically problematic issue that constitutes the keynote hypothesis of this study—but which cannot be proven directly with evidence—is that transnational elites can be understood as a distinct social stratum with a unified strategy for global change and development. Here I generally follow the theoretical arguments made by Carroll (2010), Robinson (2012), and Sklair (2018). The study is also based on the theoretical insights of Hardt and Negri (2000) on the emergence of a global order with a supranational centre at the end of the modernity age.
The notion of statehood is tightly connected to the age of modernity. The origins of the modern world-system and, correspondingly, of the age of modernity can be traced back to the 16th century (Wallerstein 1974). Around this time, a general notion of state (lo stato in the writings of Machiavelli [1961, 3]) appears in the European political lexicon, subsequently becoming paradigmatic (Schmitt 2003, 379–380). This notion of the state, elaborated during the rise of the capitalist world-system and produced by a series of historical events, including but not limited to the Peace of Westphalia of 1648 and the French Revolution of 1789, presupposes a set of characteristics, among which are sovereignty, bounded territory, close linkages with the concept of the nation, a distinction between power and property, and the contraposition of governors and citizens with one another.
The modern type of state (that is, exactly what we are accustomed to understanding under the notion of “state”), however, is just one of the forms of organisation of governance on a society-wide scale. As contemporary scholars have shown, the state should be understood as an institutional ensemble, an apparatus or dispositif linked to the existing social relations and transformed through and with them. Jessop (2016, 197) has convincingly argued that the state is a “general transhistorical form of political organisation”, polymorphic in its nature and able to take different forms depending on changes in society. Historically there have been a series of different types of statehood characterised by certain regimes of governance. One day, consequently, some other type of statehood may replace the existing one along with the governance regimes peculiar to it.
Though the modern type of statehood can be described by a set of general characteristics, its concrete historical manifestations take various forms. The police state (Polizeistaat), the totalitarian state, the liberal rule-of-law state (Rechtsstaat), and the welfare state (Sozialstaat) are, probably, the best-known manifestations of modern statehood. All these models have their own distinguishing features, and each of them originates from specific social conditions. The rule-of-law state together with its liberal democratic constitutionalism is usually seen as the norm (Jessop 2016, 211–212), a kind of a standard or institutional pattern for all the world. In fact, however, there are and there always has been a significant number of states with non-liberal, authoritarian regimes. While the liberal versus non-liberal categorisation is an important organizing principle of the contemporary geopolitical scene, there is one specific moment in particular that challenges this categorisation and dichotomy.
What unites almost all modern states is that one way or another they rely on the idea of popular sovereignty—not necessarily in the sense that governing agencies are formed through elections and act transparently, but in the sense that the nation, at least officially—is seen as the constituent power, the source of the existing legal order and the main addressee of governmental efforts which justifies even questionable initiatives of government in the domestic and foreign affairs. Modernity places “the spiritual identity of the nation”, to speak in the terms of Hardt and Negri (2000, 95), at the heart of statehood. The exercise of state power becomes immanent in modern society, while in the previous eras this was not the case (medieval kingdoms and early modern absolutist monarchies relied on the will of certain rulers, whose power was comprehended as having a transcendental origin).
Today, the people’s good as the principal imperative and justification of the state’s functioning is either declared in the text of the constitution or presumed in the state’s political doctrine and practice. It may seem strange, but this reliance on the discourse of popular sovereignty is intrinsic to both liberal and non-liberal regimes, including socialist (Guichard 2017) and theocratic (Waqar Hasib 2004, Pay 2019) regimes. The tradition of speaking in the name of the people can be explained as simply a government’s attempt to legitimate itself before its citizens and other international actors. Yet it is more. Speaking in the name of the people reflects a fact that often remains underappreciated: the state is closely related to civil society, and is “just one part of a complex social order” (Jessop 2016, 86). The citizen, or, rather, citizens as a generalised multitude, and not God, the prince, a specific social class, or ethnos, is the starting point and the most significant figure on the field of modern statehood.
The nation, regardless of whether it is civic, ethnic, or cultural, serves as the imaginary body of the state, and it is precisely here, in the nation and public interests, that government policy finds its justification. Consequently, citizens become both the object of administration and subjects, or bearers of rights, in relation to the state. This situation, ubiquitous to modern states, however, gives rise to problems associated with the task of ensuring the stability of social order.
Today, all states are capitalist states or, at least, states acting in a capitalist world-system and, hence, forced to operate under the logic of capital. It is, consequently, obvious that modern societies are not homogenous and consist of different strata with distinct interests. The state contributes to the establishment of the hegemony of the ruling class in a society, however it is not a blind and passive instrument of this class, but rather the layered result of the existing configurations of competing social forces (Gramsci 1971, 182). When a society enters a period of instability produced by failures of governance or the objective inability of the ruling classes to live according to older modes of production (this is, incidentally, the Lenin’s definition of revolutionary situation [Lenin 1963, 222]), the rising entropy may lead to unpredictable consequences, including the redistribution of wealth and the loss of power by the ruling circles. In such situations, the state apparatus can be seized by rebellious crowds and be used against the former establishment. It can be also destroyed along with the existing national legal order. If the state holds a significant place in the international community, its apparatus can also be used to destroy existing balances on the supranational level and to harm the international legal order. To prevent these worst-case scenarios, the state (and, accordingly, the international community with the great powers and regional powers) must be ready to respond to the challenge of instability. The task, however, becomes more complicated when the instability is produced not by domestic problems and the activities of local elites, but by a stalemate in the very world-system.
It has been repeatedly noted (Calhoun 2013, Wallerstein 2013) that the contemporary capitalist world-system is now going through its uneasy period. Reaching the limits of the territorial expansion of the world market makes it problematic to continue maximisation of capital. In this regard, an interesting observation was made by Naomi Klein in her investigative book, The Shock Doctrine. According to Klein (2007, 241–242), the neoliberal school of economics launched by Milton Friedman “is best understood as an attempt by multinational capital to recapture the highly profitable, lawless frontier that Adam Smith, the intellectual forefather of today’s neoliberals, so admired”. However, Klein notes, unlike the European colonists of the Smith’s era, neoliberal capitalists of 1990s–2000s can no longer profit by the seizure of new lands and have to parasitise government programs, public assets, and social infrastructure created by previous generations. This destruction, often in the form of the so-called “shock therapy”, has turned into the deliberative strategy of ruling classes and has become the leading paradigm of economic development.
But this strategy has its limits too, and to continue its implementation means creating risks that arguably exceed the potential benefits. After the financial crisis of 2007–2008, it became evident that the neoliberal model of economy and politics is nearing a dead-end. Neoliberal anti-crisis measures, severe fiscal austerity, and financial support to corporations ostensibly “too big to fail”, provided by governments round the world, have given rise to serious upheavals and resulted in the decline of governments’ legitimacy and popular respect around the globe (Lobao et al. 2018). Growing problems in the social sphere, political unrest, shrinking possibilities for profit from the usual economic activities, and, finally, rapid environmental destruction (Calhoun 2013, 132) are all increasingly forcing ruling elites to think about an alternative societal paradigm as well as search for new ways of ensuring their power.
Leading global governance institutions like the World Bank, corporate-supported think-tanks, and policy-planning groups play an important role in solving these problems and shaping the image of the future of capitalism. One of the main ideas that cut across their reports and publications is the idea that the reshaping of the modern capitalist world order is not merely desirable, but vitally important and inevitable. At least since 1970s, discussions about limits to growth and concomitant social problems took centre stage in the world elite discussions (Meadows et al. 1972). Now that the challenges discussed in 1970s are, to all appearances, at their peak, awareness of the problems and deadlocks generates rather detailed projects and visions of statecraft, in which a new design of governance plays a very important role.
If we turn to recent publications made under the aegis of global governance institutions and elite networks (Randers 2012, von Weizsäcker and Wijkman 2018, Schwab and Malleret 2020), we can identify several ideas directly related to the transformation of social order and resolution of the contradictions of the contemporary capitalist world-system. The ideological pillars, upon which the discourse of contemporary transnational elites rests, are, apparently: a) the urgent need to decrease the pressure on the environment and, correspondingly, to limit consumption; b) the need to redesign the ways, in which business is done; and c) the idea of building an effective system of governance capable of meeting societal and environmental challenges on the national and supranational levels.
Hard times require radical decisions. If capitalism goes through the unprecedented crisis of running up against natural limits, which seems to be its inevitable endpoint, then we must prepare ourselves for a scarcity of possibilities for endless accumulation of capital and sweeping degradation of environment. As Schwab and Malleret (2020) have convincingly asserted, a new post-crisis social order which they call the “great reset” will require serious changes, including changes in individuals’ daily behaviour. This may be surprising for those who are accustomed to the neoliberal political doctrine that prevailed until now, but leading experts of contemporary elite think-tanks propose the return of “big government”, specifying, importantly, that such a government will need public-private partnerships “so that private companies get more involved in the mitigation of global risks” (Schwab and Malleret 2020, 94). As the majority of publications made by experts of contemporary corporate think-tanks and elite forums use a kind of Aesopian language—e.g., the discourse of “sustainability”, “resilience”, etc., which needs to be understood as an ideology in the Marxist sense (Drucker 1974, 16–18) rather than as the expression of real values of transnational elites—the ideas stated in them should be interpreted and understood systemically. On the one hand, experts speak about public-private partnerships and the involvement of private companies in the mitigation of global risks, but, on the other hand, they argue outright about “greater intrusion of governments in the life of companies and the conduct of their business” (Schwab and Malleret 2020, 182). Following the conclusion made by the WEF experts, “big businesses will get bigger, while the smallest shrink or disappear” (Schwab and Malleret 2020, 193). Because not all companies can be invited in the solving of governmental problems, governments should lean on only the biggest and most influential corporate players. Following the principles of the “environmental, social, and corporate governance”, which are widely promoted today by WEF and other similar institutions, may be beyond the capacities of small enterprises. So, it is not hard to imagine that not everyone will be happy with these changes, no small business owner wants to lose everything for the sake of large-scale corporations. By the way, it is precisely the middle class, and not owners of big businesses or paupers, that took the hardest hit of the COVID-19 pandemic thanks to the quarantine restrictions imposed by national governments (Kochhar 2021). Recent publications (Dolan and Peterson-Withorn2021, Sharma 2021) reporting the rise of the global population of billionaires and the growth of their fortunes at the height of the pandemic crisis raise the question whether such financial progress is not being provided at the expense of those whose incomes have plummeted dramatically. Sooner or later, this question will be raised by ruined men, and then they will, probably, demand political and business elites account for their decisions and actions.
It is curious that along with the idea of the great reset, made possible thanks to the COVID-19 pandemic, one can hear more and more often from experts of the elite think-tanks about the so-called new social contract (Saran et al. 2018, WEF 2018, Schwab and Malleret 2020). This concept remains rather vague. The only thing that is obvious is that this term denotes the idea of a cardinal reconfiguration of the social order and the relationships between rulers and subjects. In this context, it should be noted that the WEF experts describe this new social contract by referring to the notions of social welfare and security, while almost completely ignoring issues of political rights, democratic representation and the citizens’ place in the constituting of social order. It seems that the project of social order being designed by the elites, focuses on the need of ensuring public security in its various aspects (including safety of our biological existence and public peace), at the expense of some political rights and freedoms of citizens. It is in this sense that statements diminishing the significance of privacy (Auken 2016) and lamenting “numerous, and often incompatible, privacy laws” (WEF 2020) should be understood.
In any case, it is obvious that transnational and national elites are at least seeking a new regime of governance and, possibly, a new model of statehood that will insure them against the risk of losing economic and political power. As this new society is being built in the shell of the old, the preconditions for the new model of statehood already exist. Surprisingly, the way out of this dead-end may actually lie in the latest digital technologies and the emerging state’s implementation of some reputation-based techniques, previously associated with corporate management and self-regulation.
Issues of morality and social ethics have become especially widely discussed in recent years as a means for ensuring public safety and sustainable social development. The need to behave morally (Davidson 2020), to govern morally (Dror 2001), to do business ethically (Donaldson and Fafaliou 2003) is a leitmotif of contemporary public debates, scholarly reports and expert opinions. As Dai (2020, 142) notes, reputation has long been viewed in law and policy scholarship as primarily “a spontaneous force of self-regulation”, a phenomenon belonging mainly to the field of private relations.
Reputation is directly related to the formation of confidence in a person within a certain social group (Eisenegger 2009, 15–16) and is commonly understood as a set of descriptive and evaluative data about a person (including their past conduct) that makes it possible for other persons to characterise them in one way or another and predict their future behaviour (Goldman 2011). Because modern society is complex in its structure and is characterised by the close interconnections of its members, the question of predicting people’s behaviour has become especially relevant. Newmark (2011, x) rightfully notes that the logic, according to which we can trust those who are trusted by those we trust, becomes inadequate when the web of trust involves millions of people. The only known solution to this problem is to create a reputation system, i.e., a system that in one way or another takes into account certain meaningful characteristics to rank, score or list an individual’s “reputation” value.
Today, reputation systems are everywhere. Until recently, the most developed reputation systems were mainly in the private sector, namely in the financial sphere. Since the middle of the 19th century when corporate credit ratings entered the practice of international trade and investments, they have spread to governance practice, financial institutions and universities (Cantor and Packer 1994, Sylla 2002). The FICO credit score model, developed in the middle of the 20th century, precipitated the creation of analogous systems used to assess the probability of loan repayment which have become an integral part of modern banking. With the development of e-commerce, scorings and rankings entered “everyday” life. Platforms like Amazon, Uber and Airbnb provide their users (both clients and service providers) with the opportunity to leave feedback and rate each other. A person’s rating on the platform ultimately determines their capacity to use it and negotiate with other users, consequently ratings and feedback have become increasingly important, especially for small businesses and self-employed individuals.
The most sophisticated and well-engineered reputation systems are based on mathematical modelling and allow for rating members. Such systems have for a long time predominantly spanned the private sector. However, some reputation-based mechanisms (probably, not so sophisticated and multifunctional) have long been used also in the field of public administration. Reputation-based mechanisms used in the public sector are mainly blacklists and registries that are maintained by various state agencies and name persons restricted in certain rights and freedoms. These are lists of disqualified company directors, defaulters, terrorists, and foreign agents, sex offender registries, and football hooligans blacklists. Though blacklists and registries do not imply a rating given to a subject, these simple mechanisms do warn other persons, including individuals, organisations and authorised state agencies, of the defects of blacklisted society members. Some blacklists and offender registries are available via the internet to an unlimited number of people, while others are available only to authorised persons (e.g., public servants, bank employees, etc.). An important feature of all these lists is that they function autonomously from each other, and their action is, as a rule, limited to only one field of relations, for which a particular list is intended. Persons who are not blacklisted remain outside the scope of the relevant disciplinary policy.
Hitherto, public blacklists existed separately from each other. Being blacklisted as, for example, a loan-defaulter did not presuppose any restrictions beyond the matters of money spending. The fact of being blacklisted generally did not reflect a person’s position in the society, leaving aside restrictions and prohibitions relating to the social sphere in which the misdeed was made. With the rapid development of the latest information and communications technologies (ICT), in particular big data analytics and artificial intelligence algorithms, everything appears to be changing.
The introduction of ICT into the public sector began with the development of e-government projects all over the world in the late 1990s (Grönlund and Horan 2005). Initially, these projects were aimed mainly at the simplification of documents circulation, improvement of public services provision, and ensuring the activities of state agencies are more transparent. Stress was made on bringing governance closer to the citizenry. Gradually, as technologies progressed and digital public services expanded their coverage of the population, there was a growing interest from governments to use e-government platforms for purposes of social control. Oddly enough, the widest possible introduction of digital technologies to the field of public administration today seems to be not just an important task of national governments trying to keep up with one another, but also as a kind of duty before the international community. Considering that a growing number of reports of the global governance institutions (Karippacheril et al. 2016, World Bank 2016, 2018, Clark et al. 2016, Ouedraogo and Sy 2020), elite think-tanks and corporate-supported foundations (WEF 2016, 2018, Bill & Melinda Gates Foundation 2021) focus on accelerating the digitalisation of governance, it is becoming clear that the application of digital tools in governance is seen by international elites as a kind of panacea for major social problems.
To apply for public services remotely, one must be identified on a certain digital platform. While at the first stages of the implementation of e-government projects this process of identification was carried out through a phone number or e-mail, in recent years systems of digital identification based on biometric data have begun to proliferate. The most impressive of them is the Indian national biometric identification system Aadhaar that encompasses nearly the entire country’s massive population and can potentially serve as a universal gateway for a person’s entire interactions with a multiplicity of state and private bodies (Rao and Nair 2019, 469). The Aadhaar system is intended to verify a person’s identity in real time. Currently, it accumulates a relatively small set of data on individuals, including fingerprints, iris scans, facial photographs, and minimal biographical information, but, as some critics warn (Khera 2019), expanding the range of data on subjects would grant the authorities an unprecedented power over citizens. Of great concern for human rights defenders, the design of the system implies that private-sector operators would create applications relying on the Aadhaar platform for the purposes of identification, so that even the private-sector interactions of an individual could be traced by state agencies (Divan 2019).
Today, the ambitious Aadhaar project is mainly used to provide public services. In this sense, its function is rather limited, however, as more and more state and commercial entities are linking, and as more and more services are converging within this platform, its potential is noticeable. Critics of Aadhaar argue that one day the system will be used for surveillance, profiling and tracking (Khera 2019, Menon Sen 2020). While the Indian Aadhaar project is not directed to such tasks yet, the Chinese Social Credit System (SCS) is a much more encompassing and alarming.
The SCS project has already been critically and comprehensively investigated in a number of studies by scholars outside of the People’s Republic of China (Chen et al. 2018, Creemers 2018, von Blomberg 2018, Arsène 2019, Mac Síthigh and Siems 2019, Bach 2020, Kostka and Antoine 2020), so there is no need to repeat their commonplace findings. The SCS in China embraces reputation-based mechanisms, traditional for public administration, involving them in a unified regulatory architecture. Public blacklists, long and well known outside of China too, become here the grounds of purposeful and consistent disciplinary state policies toward specific persons. Within the framework of the Joint System of Rewards and Punishments, which is a part of the SCS, various reputation mechanisms cease to be autonomous from each other and are applied according to a certain regulatory and law-enforcement strategy elaborated by state agencies participating in the system.
The SCS is most famously known for trying to introduce personal ratings to the field of governance, though, despite the widely circulated rumors, a nationwide personal scoring system in China still does not exist. However, the fact that different municipal pilots are based on the same principles, allows us to suppose that the creation of a unified national rating project is just a matter of time. Already now, even without a nationwide rating system, the SCS makes a foreboding impression. Even though it is still a project in progress, the system’s present appearance allows us to grasp some ways in which it may develop. There are several points to make here. Although, as some observers note, “the SCS is actually a pretty low-tech” (Schaefer et al. 2019), and much of the new information is entered to the master database manually, the linkage between the SCS project and big data technologies do exist. A series of legal acts of the PRC declared the government’s intention to use big data technologies in the construction of the SCS. The objective of such a policy is quite obvious: even if today the SCS operates on the basis of data entered manually, soon the growing array of information will require the automatised, algorithms-based processing. The integration of big data to the SCS allows for the acceleration and simplification of processes of social credit information exchange, blacklisting, and enforcement of incentives and restrictions. It is also worth mentioning that, at present, the SCS is deployed on the basis of the unified social credit codes system that was developed in accordance with the decision of the National People’s Congress of the PRC. Citizens’ unified social credit code numbers are the same as their identity card numbers and are linked with fingerprint information.
The use of the unified social credit codes system makes it possible to identify any individual and organisation residing or operating in China promptly. To all appearances, the SCS project is aimed at profiling all of the country’s residents. The consolidation of data from the existing blacklists, municipal scoring projects, and numerous databases maintained by different state agencies will allow the Chinese state to create files with biographical reputational information on each person. The data set can be different, including more or less detailed information relating to a more or less wide area of social life. It is unambiguous only that, once created and launched, profiles of individuals and organisations will inevitably be used in the administrative activities of certain governing bodies.
According to a Chinese jurist Qingsong Yu (2020), the SCS project should be understood as an innovative governance tool that seeks to operate by means of the creation and algorithmic real-time assessment of multidimensional digital profiles of companies, individuals, and structural elements of the state apparatus. As Yu argues, the core of the principally new type of governance, which the SCS is intended to make a reality, is the institution of digital personhood. It is precisely in digital profiles that information about the past deeds of a person, his or her compliance with the law, rewards and punishments might be collected. Of course, the present-day state of the SCS may be rather far from the futuristic picture painted by Yu, but it seems that the project at least tends this way.
To all appearances, Yu is right in his claim that if the Chinese SCS project is successfully completed, it will require only a small number of elites to govern an entire society, and the China’s experiment has good chances to become a model for other countries. In addition to the facts of export of certain technological solutions to Central Asia and Latin America by China itself (Ellis 2017, Jardine 2019), some countries like Russia, for example, are developing their own data-driven projects of identification, profiling and tracking. These projects are suspiciously reminiscent of the SCS, although there actually may be no direct tie between them. Thus, on 30 May 2020 the Russian government issued an order providing for the construction of a national information infrastructure to monitor migrants’ compliance with the current legislation. Among the components of the projected infrastructure, the “digital profile of a foreign national” was named. Observers have already characterised this initiative as a step toward the creation of a system of social scoring (Polovinko and Dudarova 2020). It is assumed that the possibility to sign work contracts and obtain administrative permits to stay and work in the country will be dependent on the information contained in such profiles. Another analogous project being pursued by the Russian authorities is the Unified System of Identification and Authentication (USIA), which is in many respects similar to the Indian Aadhaar project in its attempt to integrate different information channels in the provision of public services. Within the past year and according to the Federal Law No. 479-FZ of 29 December 2020, the USIA began to integrate with the so-called “Unified Biometric System”. This suggests the Russian State’s collection and use of biometric information for the purposes of identification. The Digital State Administration federal project, realised under the framework of the national program “Digital Economy of the Russian Federation”, provides for the creation of digital profiles of individuals and organisations and the implementation of control and supervisory activities by means of risk-oriented data analysis and predictive analytics.
It would seem quite natural that modern technologies are thus being introduced to public administration. The more digital technologies develop, the more they are applied in regulatory and administrative activities of modern governments. This emphasis on the assessment of subjects’ behaviour and reputation, however, makes one wonder about the long-term implications of introducing the latest technology for the current legal order and the citizen’s place in it. Are quantitative changes, namely the increasing use of digital and social credit mechanisms, shifting into a new quality of governance? Here we approach the most significant part of this study.
While the ICT look promising for simplifying our everyday lives, they are even more especially promising for governments. Today, projects like the Chinese SCS and the Russian “Digital State Administration” seem to be narrowly national inventions designed solely to stabilise government regimes and solve domestic problems facing state leaderships. The reference to the authoritarian nature of certain state regimes seems to be an exhaustive explanation of the recent shift to the automatised processing of personal data in the field of governance, however, such a self-reassuring explanation leaves aside some important points that should be noted.
Though the most daring experiments with digital profiling and risk-oriented evaluation of individuals’ behaviour occur today in countries with relatively low standards of privacy and personal data protection, interest in the application of cutting-edge technologies of social control can be observed all over the world. Backer and McQuilla (2020) rightfully note the movement toward compliance-based culture in Western countries with strong rule-of-law traditions. Where the existing political culture deters governments from the implementation of nationwide mandatory projects of digital profiling and social rating, these functions can be exercised by non-governmental organisations and large-scale corporations. It is not only governments that can steer the introduction of data-driven systems to the public field. Actually, this process is already being implemented by both public and private actors, and the role of corporate actors should not be underestimated. It should not be forgotten that the rise of digital technologies for collecting and analysing data became possible thanks to private corporations such as Google and Facebook (Zuboff 2019). It was they who first discovered the possibilities of nudging (Yeung 2017) human behaviour by means of data-driven systems, so that governments only had to take existing developments and adapt them to the needs of public administration. Of course, under the influence of the cutting-edge technologies, the role of the state in society could not but change. Luciano Floridi (2014, 172) points out in this context, that “by fostering the development of ICTs, the state ends by undermining its own future as the only, or even the main, information agent”. This is what Floridi (2014, 169) calls the process of political apoptosis, linking the growing influence of non-governmental information agents with the gradual transformation of sovereignty and statehood. Anyhow, government-led projects continue to be the most important, as they are still able to cover significant parts of the population and are usually tied with the possibility of applying coercive measures.
It is assumed that a risk-oriented assessment of the behaviour of individuals and organisations based on reputational data contained in personal digital profiles will allow for the reduction of management costs. When all subjects of law become digital persons and all significant information on their past behaviour becomes available for analysis, it becomes possible to govern a society automatically to a large extent, using algorithms. Consequently, present-day projects of automatised identification, profiling, surveillance and social scoring should be understood as the effort to make social interactions, and, above all, citizens’ interactions with state agencies, more predictable and stable.
It has been repeatedly noted that technology is not neutral (Kranzberg 1986, 545). While the majority of people are used to thinking that the present-day technological innovations in public administration are just progressive improvements that are aimed at making our lives more comfortable and the governance easier and cheaper, the long-term consequences of using digital technologies and mechanisms of social-credit evaluation in regulatory and administrative activities remain unclear. The short-term effects of profiling, automatised identification and social scoring are rather obvious: reducing expenses, downsizing bureaucracy, increasing efficiency of public policy. Much more important, however, may be the question of whether the latest technologies change (and if they do, then in what direction) the life of individuals, the boundaries of their freedom, their place in the existing order, and finally, whether the regime of governance, the model of statehood and the present legal order as a whole are changing. Today, the problem of deploying algorithmic digital systems is considered mainly from the standpoint of a possible violation of the rights of an individual. The latent possibility of discrimination and bias against certain categories of persons embedded in the algorithms is seen, apparently, as the main obstacle to the use of data mining technologies in law enforcement in countries with a democratic political culture. This problem led a number of researchers (Yu and Ali 2019, Ebers 2020, Xenidis 2020, Catanzariti 2021, 86–87) to realise the need to develop a system of measures (or filters) to minimise such risks. The ideas they offer are undoubtedly important, but the proposed measures are often limited, defensive in nature and involve merely separate improvements when the reality as a whole has already irreversibly changed. The weak spot of such developments is that they continue to view technology as a causa sui, while it always moves according to certain reasons, has certain developers and beneficiaries. A more difficult, but also more productive approach, perhaps, is to discern behind the present technological innovations far-reaching consequences that undermine modern politico-legal culture as we know it. The examples of such a critical legal approach can be found in Supiot (2017, 10), Rouvroy (2018), Kaicheng Yu (2020), and Rosengrün (2022).
The latest technologies gradually modify the regime of governance, and with it also effect a restructuring of the present model of statehood and the whole legal order. As noted above, reliance on the will and interests of the people has been a hallmark for almost all modern states. With the introduction of digital tools of social control, the exercise of power ceases to be immanent in society. This happens for two reasons. First, the current trend leads to a transfer of a significant part of administrative tasks to algorithmic systems that operate as if unbiasedly. The human dimension of administrative activities becomes invisible, inconspicuous. In one’s everyday life, an ordinary individual more and more often meets not with a policeman or a bureaucrat, but with a technological interface, an impersonal system. State coercion ceases to be associated with government officials and is enforced automatically by means of certain data-driven decision-making systems.
In his recent study of the socio-political substance of algorithmic governance, König (2020) likens such a type of governance to the Hobbesian concept of sovereign power in the sense that individuals bound up with the digital mechanisms of regulation and social control put their trust in them to the extent that they expect such mechanisms will satisfy their needs and wants. This authorisation, as König (2020, 475) argues, does not occur “through some actual social pact but rather through many—deliberate or unwitting—individual decisions to subject oneself to algorithmic coordination”. This is an extremely important moment for uncovering the impact of data-driven systems on the appearance of statehood, but these assertions cannot be fully accepted. The problem lies precisely in the fact that actual society members do not empower such systems to regulate and assess their behaviour and, even more so, to punish them. Even harvesting data about individuals (and the example of the Chinese SCS demonstrates this clearly) is not always accompanied by their consent. The majority of people are still unaware of the operation of data-driven systems of social control and get to know them only after these systems intervene in their lives (Ahmed 2019, Schaefer et al. 2019, 33). Digital systems of surveillance, profiling, behaviour assessment and scoring are developed and implemented in accordance with government decisions and are often based on secondary legislation or rather vague provisions of parliamentary acts. As a rule, citizens are not welcomed to take part in the discussions of the goals and the design of such systems. After all, because new technologies of public administration are often presented as the neutral results of unstoppable progress, they are presumed to be self-evident. Ultimately, state and corporate systems of identification, profiling, tracking and scoring are being deployed without any substantial public discussion. Whereas these technologies are represented as necessary and inevitable responses to the natural course of events (Zuboff 2019, 222), their final ends and the strategical plans for their deployment remain opaque to the public. Because the application of data-driven systems of social steering have become ubiquitous, it is rarely easy to realise who is responsible for the design and operation of such projects. Taking into account close ties of governments and non-governmental actors in the development of digital mechanisms of identification, regulation and control, it becomes also difficult to grasp which social forces instigate these innovations. In a sense, data-driven governance turns out to be a “black box”. Because the Hobbesian Leviathan is generally an identifiable figure personified by a sole monarch or an assembly, it is clear whose will and interests are expressed in the name of a sovereign. In contrast, the present systems of identification, profiling and scoring conjointly developed by governments and corporations are represented as absolutely neutral, unbiased mechanisms operating for the benefit of public, and not particular, interests.
The other aspect of the present moment that makes it difficult to view the algorithmic governance through a Hobbesian lens is as follows. According to Hobbes (1651/1909, 132), individuals give up a part of their freedom in favor of “a Common-Wealth” in exchange for protection and peace. The “Common-Wealth”, i.e., the state, unites the power and strength of all the people for the public good, so that each individual man becomes capable of achieving objectives they could not achieve alone. In other words, the state multiplies the capabilities of the individual subjects who handed over their freedoms to it. Unlike the Hobbesian Leviathan, the reputation-based reward-punishment systems and data-driven mechanisms of identification and control usually do not provide subjects with additional opportunities, but embed in their daily life in such a way that the realisation of ordinary habitual activities becomes impossible without them. Whereas the need for a Hobbesian Common-Wealth is caused by the lack of order, the need for data-driven tools of social control allegedly arises from natural technological development, so it becomes unclear what serves what: Does the technology serves our needs or do our needs try to keep pace with technology? This new mode of governance supported by digital technologies and reputation-based mechanisms does not establish a politico-legal order in the place of the state of nature—instead, it irrevocably transforms the already existing legal order. It is to describing these transformations that I turn now.
To fully understand the direction in which the legal order is being transformed it is necessary, first of all, to understand the following. The modern data-driven and reputation-based technologies of social steering are basically technologies of social control that treat individuals and organisations not as persons, but as various objects. Such technologies can be seen as the culmination of the development of security apparatuses described by Foucault (2009, 65). In essence, almost all present-day governmental projects aimed at listing, profiling, tracking, surveilling, scoring or rating and, at the same time, based on digital technologies of data harvesting, sharing, analysis and assessment are ultimately used to: a) make individuals’ behaviour more predictable for the government; and b) rank individuals into certain sets and differentiate government policies in accordance with the selected sets. To make the behaviour of those under control predictable means, in particular, to be capable of watching all of their doings and estimating risks of their rule-breaking from the data collected in this observation. It is precisely for this purpose that digital profiles are useful. To rank individuals means to define the criteria of their trustworthiness and to be ready to reward those who are “trustworthy” and to penalise those who are not.
From here it is a short step to realise that transforming citizens and, more generally, persons of law into digital persons, i.e., social credit files contained in relevant databases, —the idea voiced by Qingsong Yu (2020)—cannot but affect the appearance of the legal order and statehood as we know them. The modern legal order presupposed as a rule that nationals are bearers of rights and duties in relation to the public institutions. However, if a person turns into a set of digital data, then it is no longer their legal capacity, but the content of relevant databases that is of paramount importance for their interactions with other persons and state agencies. From a formal point of view, the law can guarantee a citizen the right to acquire property and the freedom of movement, but the actual implementation of such rights and freedoms will depend on the content of state and corporate databases, the presence or absence of a person on blacklists, person’s social rating, etc. Gradually, it turns out that the content of databases and blacklists, not to mention ratings in points systems, is more important for the realisation of a person’s legal capacities than the catalogue of legally recognised rights and freedoms. How not to recall in this context the theoretical insights of Stefano Rodotà, who wrote about the replacement of free citizens by profiled objects of permanent generalised suspicion in a world of surveillance and social selection (Rodota 2011, 15).
This state of affairs can lead to discrimination against certain groups of citizens and legal entities. The level of public services provided by state agencies can be contingent on the content of a person’s digital profile. With algorithmic data processing, the decision to limit the scope of rights and services provided can be made automatically. If different sets of individuals are provided with unequal rights and services, then these individuals cease to be citizens as those who belong to a single society, recognise each other as equal, and enjoy equal rights in relation to the state. Even with regard to discrimination against certain categories of citizens, the emerging legal order and the state practices associated with it differ from modern legal order and statehood. While some totalitarian regimes of the past have tried to exclude certain categories of individuals from the body of the nation, the new regime of governance seems to be based on an ongoing sorting and ranking of individuals in order to calculate probable risks and build respective policies for each set. Instead of binary oppositions peculiar to totalitarian regimes of recent decades, in which those belonging to the Aryan race or the working class are opposed to those belonging to non-Aryan races or the exploiting classes, the new data-driven regime of governance tends to divide people into an amorphous number of sets with different rights, duties, permissions, restrictions and prohibitions. The modus operandi of this new governance regime is not exclusion, but, on the contrary, inclusion of all with subsequent internal division and ranking.
As the interactions between a person and state agencies cease to be traditional legal relationships in the modern sense of this term and are replaced by impersonal interfaces, politics as a space of public discussion and conflicting positions is replaced by policing. Constitutionalism, consequently, is superseded by a new administrative regime.
Now that I have articulated some of the contours of this emerging regime of governance and statehood as well as its genealogy, I turn to ask in the concluding section who benefits or will benefit from the application of data-driven reputation mechanisms to the field of public administration. If there will be no more civil society as a society of formally equal individuals, but there will be an association of different permeable sets of individuals, then will there be a room for some new social contract and how this contract may look like? These are the most complicated, but important questions.
Given the complexity of contemporary society, it is not easy to grasp interconnections between distinct phenomena. We may regard the modern technological tools being implemented in the daily practices of regulation and public administration as just natural and necessary products of social and technological development. We may regard too the plans of the supranational institutions and corporate-supported organisations as if they exist independently of all the social changes and conflict already happening. While it is true that what happens concurrently with or after something does not necessarily happen because of it, this, however, does not mean that there is no causal relationship between the digitalisation of governance and strategic plans of the transnational establishment. It is possible to empirically compare these plans, or, more precisely, their rhetoric in public discourse, with the state of affairs we are witnessing and likely trends we can prognose.
We live in a capitalist era. Inasmuch as capitalism assumes constant expansion and maximisation of profit, it is a fundamentally global system. Due to the unevenness of capitalist development, the capitalist world-system takes the form of multiple separate nation-states. The state serves as a dispositif of power, a tool in the hands of those social strata that dominate economically (Lenin 1985). Essentially, the role of the state is the role of the mediating agent between hegemonic social minorities controlling the means of production, on the one hand, and the majority of society members, on the other. Furthermore, the state appears to be a very contradictory and ambiguous instrument of governance. It can be seized by counter-elites and used against the former establishment. Finally, the state apparatus can also be used to harm the international politico-legal order along with the transnational capitalist corporations associated with it. As a necessary instrument of capitalist exploitation, the state, consequently, remains rather vulnerable to bottom-up social processes. In this regard, it can be said that the ruling elites are always faced with the problem of keeping populations controllable and ensuring that the democratic component of statehood does not go beyond the acceptable limits.
Historically capitalism as a specific phenomenon of the modern age was always accompanied by the phenomenon of democracy (Delanty 2019), so the modern states we have known so far have all also been the product of the internal contradiction between the interests of large-scale capital and the needs of the people. Since the ultimate aim of all elites can be assumed to lie in the direction of perpetuation of their social position, such objectives as making society easier manageable and the behaviour of potentially dissent social groups more predictable are obvious goals. Here is the point where the technological advances meet the needs of hegemonic strata. Not without reason 21st century capitalism actively encourages the ubiquitous digitalisation and the expansion of the personal data market (Amadeu da Silveira 2021, 42). The behavioral surplus capture (Zuboff 2019, 129) becomes a purposeful strategy of corporate elites and ruling circles affiliated to them. In the end, even if there actually is not any carefully conceived action plan to use present technological achievements for the purposes of social control, it is quite logical for states to take the existing opportunity. Some observers, however, insist that a carefully conceived action plan does exist, and the leading-edge technologies developing today are the results of the close linkage between the financial capital, big tech and the military-industrial-security complex (Robinson 2018).
I conclude by formulating several axioms of governance, which appear to logically confirm the above hypothesis.
(1) The masses placed under control of data-driven systems of public administration can be governed easier. If states can learn to predict how you will behave and what you are capable of, if almost all your actions are recorded, then it is not difficult to reveal your misdeed and predict where you will act undesirably again. At first blush this may seem like great news, because the use of the cutting-edge technologies in the state’s administrative and supervisory activities could reduce crime and have other socially beneficial outcomes. However, the picture will not be so rosy if we realise that the increasing predictability of individuals’ actions can be used to make any manifestations of social discontent practically impossible. Let’s not forget that the modern democratic political culture in the West was formed in the struggle of the masses for their rights and freedoms. So, by depriving the masses of the opportunity to rebel against injustice, the designers of modern data-driven systems of social control are de facto rolling society back to despotic times when constitutionalism with its recognition of the people as a constituent power did not exist.
(2) The second axiom states that it is easier to rule a society when it is divided into separate sets. Ancient Romans made this axiom a principle of their rule: Divide et impera. There is no need to argue that the whole is more than the sum of its parts, and, being broken up into pieces, it loses some of its potential. Rulers in this new regime will be able to differentiate their policies relating to different sets of persons under control depending on the content of data on persons and their ranks. When society is divided into separate, but permeable sets, control is easier. Because of the value that will be given to higher ranks or having good reputation data in one’s personal digital profile, individuals will likely be intolerable in their relations to those whose ranks or reputation data are worse. Since individuals will cease to be equal before the law and the state, they will probably become hostile in relation to each other. Thus further fragmenting any collective opposition.
(3) The third axiom is that the social order that represents itself as the result of the natural course of things and objective processes independent of the will of any social groups is the most tenacious. The fact that the exercise of state power is more and more mediated today by digital and automatised systems of profiling, behaviour assessment and decision-making, creates an illusion of an unbiased social steering. Commands addressed to the citizenry seem to come not from certain officials associated with certain factions of bureaucratic apparatus and corporate capital, but from the impersonal systems themselves. As Byung-Chul Han (2017, 72) rightly points out, the digital panopticon in which we seem to find ourselves “is defined by the fact that it makes the difference between Big Brother and inmates”, between governmental agencies and private corporations “blurrier and blurrier”. This state of affairs leads to situations in which it will be much more difficult to articulate the social problem and demand an account from the state. Firstly, with the continuing development of data-driven systems of social steering, resisting the requirements imposed through such systems will be seen as futile, isolated activity. Secondly, since the human dimension of exercising power will continue to diminish, soon it will become unclear to whom citizens’ demands and complaints should be really addressed.
The picture painted above need not be all gloomy. The latest data-driven systems of public administration make interactions between society members more predictable and secure. To some extent, they also bring convenience to the daily activities of our lives. According to the elite experts today, it is precisely safety and convenience that stand among the most significant social values of these new technologies. Yet, this becomes dangerous when we sell-off our political rights for safety and convenience. So, a new social contract, if we continue to use this term, seems to be that masses tacitly agree to entrust their destinies and freedoms to data-driven systems of social steering, no matter who uses them and for what purposes. In exchange for this submission, individuals get the illusion of safety and, what is more important, the capability to interact with other society members, to work, to go about their daily activities. The price for this, however, is the loss of any political subjectivity and constituent power.
This level of control could only be dreamed by both transnational and national corporate elites of earlier times. Lurking in the shadow of automatised mechanisms of public administration, ruling circles on the national and, especially, supranational levels can feel protected from revolutionary threats. Any significant social protest, any social upheaval is doomed to failure if everyone’s actions are predictable and everyone is being tracked. If people are deprived of their political rights and are allowed to act only as consumers and human resources, then it becomes easy to deprive them also of their property. Calhoun (2013, 151) rightfully noted that “the widely remarked link between capitalism and liberal democracy may turn out to have been only one way of relating capitalism to politics, shaped by particular historical conditions and struggles”. In the spirit of Calhoun’s remark, one can also add that the widely remarked link between capitalism, on the one hand, and market competition and property rights, on the other hand, may turn out to have been only one way of relating global capitalism to economics.
The statehood and regimes of governance we have known so far are transforming before our eyes. Equipped by advanced digital technologies of data harvesting and analysis, the state appears before us as, literally, a machine. This guise, however, should not obscure the question of who benefits from such transformations. The questions we should pose again and again are “Cui prodest?” and “Quo vadis?”
Ahmed, S., 2019. The messy truth about social credit. Logic [online], 7. Available from: https://logicmag.io/china/the-messy-truth-about-social-credit/ [Access 16 February 2022].
Amadeu da Silveira S., 2021. A hipótese do colonialismo de dados e o neoliberalismo. In: J.F. Cassino, J. Souza and S. Amadeu da Silveira, eds., Colonialismo de dados: como opera a trincheira algorítmica na guerra neoliberal. São Paulo: Autonomia Literária, 33–52.
Arsène, S., 2019. China’s social credit system: A chimera with real claws. Notes de l’Ifri. Asie Visions [online], 110. Available from: https://www.ifri.org/fr/publications/
notes-de-lifri/asie-visions/chinas-social-credit-system-chimera-real-claws [Access 16 February 2022].
Auken, I., 2016. Here’s how life could change in my city by the year 2030 [online]. 11 November. World Economic Forum. Available from: https://web.archive.org/
web/20210330234809/https://www.weforum.org/agenda/2016/11/how-life-could-change-2030/ [Access 16 February 2022].
Bach, J., 2020. The red and the black: China’s social credit experiment as a total test environment. British Journal of Sociology, 71(3), 489–502.
Backer, L.C., and McQuilla, M., 2020. The algorithmic law of business and human rights: constructing a private transnational law of ratings, social credit, and accountability measures [online]. 1 September. Available from: https://dx.doi.org/
10.2139/ssrn.3684196 [Access 16 February 2022].
Bill & Melinda Gates Foundation, 2021. Digitization for Improved Governance: Financial Services for the Poor [online]. August. Available from: https://docs.gatesfoundation.org/documents/digitization_for_improved_governance_financial_services_for_the_poor.pdf [Access 16 February 2022].
Calhoun, C., 2013. What threatens capitalism now? In Does Capitalism Have a Future? In: I. Wallerstein et al., eds., Does Capitalism Have a Future? Oxford University Press, 131–161.
Cantor, R., and Packer, F., 1994. The credit rating industry. Federal Reserve Bank of New York Quarterly Review, 19(2), 1–26.
Carroll, W.K., 2010. The Making of Transnational Capitalist Class: Corporate Power in the Twenty-First Century. New York: Zed Books.
Catanzariti, M., 2021. Algorithmic law: Law production by data or data production by law? In: H.W. Micklitz et al., eds., Constitutional Challenges in the Algorithmic Society. Cambridge University Press, 78–92.
Chen, Y.J., Lin, C.F., and Liu, H.W., 2018. “Rule of trust”: The power and perils of China’s social credit megaproject. Columbia Journal of Asian Law, 32(1), 1–36.
Clark, J., et al., 2016b. Digital Identity: Towards Shared Principles for Public and Private Sector Cooperation [online]. Discussion paper. Washington, DC: World Bank Group/London: GSMA/Paris: Secure Identity Alliance. Available from: https://openknowledge.worldbank.org/bitstream/handle/10986/24920/Digital0identi0e0sector0cooperation.pdf [Access 16 February 2022].
Creemers, R., 2018. China’s social credit system: An evolving practice of control [online]. 9 May. Available from: https://dx.doi.org/10.2139/ssrn.3175792 [Access 16 February 2022].
Dai, X., 2020. Toward a reputation state: A comprehensive view of China’s Social Credit System project. In: O. Everling, ed., Social Credit Rating: Reputation und Vertrauen beurteilen. Wiesbaden: Springer Gabler, 139-163.
Delanty, G., 2019. The future of capitalism: Trends, scenarios and prospects for the future. Journal of Classical Sociology [online], 19(1), 10-26. Available from: https://doi.org/10.1177/1468795X18810569 [Access 16 December 2022].
Divan, S., 2019. Aadhaar’s biometric tsunami: Will it sweep away privacy, drown civil liberties? In: R. Khera, ed., Dissent on Aadhaar: Big Data Meets Big Brother. Hyderabad: Orient Black Swan.
Dolan, K.A., and Peterson-Withorn, C., eds., 2021. World’s billionaires list: The richest in 2021. Forbes [online]. Available from: https://www.forbes.com/billionaires/ [Access 16 February 2022].
Donaldson, J., and Fafaliou, I., 2003. Business ethics, corporate social responsibility and corporate governance: A review and summary critique. European Research Studies, 6(1-2), 90–110.
Dror, Y., 2001. The Capacity to Govern: A Report to the Club of Rome. London: Frank Cass.
Drucker, H.M., 1974. The Political Uses of Ideology. London: Palgrave Macmillan.
Ebers, M., 2020. Regulating AI and robotics: Ethical and regulatory challenges. In: M. Ebers and S. Navas, eds., Algorithms and Law. Cambridge University Press, 37–99.
Eisenegger, M., 2009. Trust and reputation in the age of globalization. In: J. Klewes and R. Wreschniok, eds., Reputation Capital: Building and Maintaining Trust in the 21st Century. Berlin: Springer, 11–22.
Ellis, E., 2017. The strategic context of China’s advance in Latin America: An update. Note d’actualité de l’Observatoire de la Chine no. 17/24 [online]. April. Paris: Maison de la Recherche de l’Inalco. Available from: https://centreasia.hypotheses.org/
files/2017/08/17-Ellis-Ame%CC%81rique-Latine_180417.pdf [Access 16 February 2022].
Fernández Durán, R., 2012. The Breakdown of Global Capitalism: 2000–2030. Madrid: Libros en Acción.
Floridi, L., 2014. The 4th Revolution: How the Infosphere is Reshaping Human Reality. Oxford University Press.
Foucault, M., 2009. Security, Territory, Population: Lectures at the Collѐge de France, 1977-78. Basingstoke: Palgrave Macmillan.
Goldman, E., 2011. Regulating reputation. In: H. Masum and M. Tovey, eds., The Reputation Society: How Online Opinions are Reshaping the Offline World. Cambridge, MA: MIT Press, 51–61.
Gramsci, A., 1971. Selections from the Prison Notebooks. New York: International Publishers.
Grönlund, Å., and Horan, T.A., 2005. Introducing e-Gov: History, definitions, and issues. Communications of the Association for Information Systems, 15, 713–730.
Guichard, J., 2017. In the name of the people: Disagreeing over peoplehood in the North and South Korean constitutions. Asian Journal of Law and Society [online], 4(2), 405–445. Available from: https://doi.org/10.1017/als.2016.59 [Access 16 December 2022].
Han, B.C., 2017. In the Swarm: Digital Prospects. Cambridge, MA: MIT Press.
Hardt, M., and Negri, A., 2000. Empire. Cambridge, MA: Harvard University Press.
Hobbes, T., 1909. Leviathan. Oxford: Clarendon Press. (Originally published in 1651).
Jardine, B., 2019. China’s surveillance state has eyes on Central Asia. Foreign Policy [online], 15 November. Available from: https://foreignpolicy.com/2019/
11/15/huawei-xinjiang-kazakhstan-uzbekistan-china-surveillance-state-eyes-central-asia/ [Access 16 February 2022].
Jessop, B., 2016. The State: Past, Present, Future. Cambridge: Polity Press.
Karippacheril, G., et al., eds.,2016. Bringing Government into the 21st Century: The Korean Digital Governance Experience [online]. Washington, DC: World Bank. Available from: https://openknowledge.worldbank.org/bitstream/
handle/10986/24579/9781464808814.pdf [Access 16 February 2022].
Khera, R., 2019. Aadhaar and privacy. In: R. Khera, ed., Dissent on Aadhaar: Big Data Meets Big Brother. Hyderabad: Orient Black Swan.
Kochhar, R., 2021. The pandemic stalls growth in the global middle class, pushes poverty up sharply [online]. Washington, DC: Pew Research Center. Available from: https://www.pewresearch.org/global/2021/03/18/the-pandemic-stalls-growth-in-the-global-middle-class-pushes-poverty-up-sharply/ [Access 16 February 2022].
König, P.D., 2020. Dissecting the algorithmic Leviathan: On the socio-political anatomy of algorithmic governance. Philosophy & Technology, 33, 467–485.
Kostka, G., and Antoine, L., 2020. Fostering model citizenship: Behavioral responses to China’s emerging social credit systems. Policy & Internet, 12(3), 256–289.
Kranzberg, M., 1986. Technology and history: “Kranzberg’s laws”. Technology and Culture, 27(3), 544–560.
Lenin, V.I., 1963. May Day action by the revolutionary proletariat. In: V.I. Lenin, Collected Works, vol. 19. Moscow: Foreign Languages Publishing House, 218–227.
Lenin, V.I., 1985. State and Revolution. New York: International Publishers.
Lobao, L., et al., 2018. The shrinking state? Understanding the assault on the public sector. Cambridge Journal of Regions, Economy and Society, 11(3), 389–408.
Mac Síthigh, D., and Siems, M., 2019. The Chinese social credit system: A model for other countries? Modern Law Review, 82(6), 1034–1071.
Machiavelli, N., 1961. Il Principe. Turin: Einaudi.
Meadows, D.H., et al., 1972. The Limits to Growth: A Report to the Club of Rome’s Project on the Predicament of Mankind. New York: Universe Books.
Menon Sen, K., 2020. From Aadhaar to Aarogya Setu: How surveillance technology is devaluing India’s democratic rights. Scroll.in [online], 25 April. Available from: https://scroll.in/article/960137/from-aadhaar-to-aarogya-setu-how-surveillance-technology-is-devaluing-indias-democratic-rights [Access 16 February 2022].
Newmark, C., 2011. Foreword: trust, reputation systems, and the immune system of democracy. In: H. Masum and M. Tovey, eds., The Reputation Society: How Online Opinions are Reshaping the Offline World. Cambridge, MA: MIT Press, ix–xi.
Ouedraogo, R., and Sy, A.N.R., 2020. Can Digitalization Help Deter Corruption in Africa? IMF Working Paper No. 2020/068 [online]. Washington, DC: International Monetary Fund. Available from: https://www.imf.org/en/Publications/WP/Issues/
2020/05/29/Can-Digitalization-Help-Deter-Corruption-in-Africa-49385 [Access 16 February 2022].
Pay, V.N., 2019. Comparative constitutionalism: Challenges of constitutional sovereignty in Iran and Iraq. Asian Journal of Middle Eastern and Islamic Studies, 13(1), 123–141.
Polovinko, V., and Dudarova, F., 2020. Neslavjanskij interfejs [Non-Slavic interface]. Novaya Gazeta [online], 22 June. Available from: https://novayagazeta.ru/articles/2020/06/19/85924-plyus-tsifrovizatsiya-migrantov [Access 16 February 2022] (in Russian).
Randers, J., 2012. 2052: A Global Forecast for the Next Forty Years. Chelsea Green Publishing.
Rao, U., and Nair, V., 2019. Aadhaar: governing with biometrics. South Asia: Journal of South Asian Studies, 42(3), 469–481.
Robinson, W.I., 2018. The next economic crisis: digital capitalism and global police state. Race & Class [online], 60(1), 77–92. Available from: https://doi.org/
10.1177/0306396818769016 [Access 16 December 2022].
Rodota, S., 2011. Renforcement et développement de nouvelles applications informatiques de surveillance et de contrôle. Terminal [online], 108-109, 9–16. Available from: https://doi.org/10.4000/terminal.1288 [Access 16 December 2022].
Rosengrün, S., 2022. Why AI is a threat to the rule of law. Digital Society [online], 1(10). Available from: https://doi.org/10.1007/s44206-022-00011-5 [Access 19 October 2022].
Roth, S., 2021. The Great Reset. Restratification for lives, livelihoods, and the planet. Technological Forecasting & Social Change [online], 166, 120636, 1–8. Available from: https://doi.org/10.1016/j.techfore.2021.120636 [Access 16 December 2022].
Rouvroy, A., 2018. Homo juridicus est-il soluble dans les données? In: C. de Terwangne et al., eds., Law, Norms and Freedoms in Cyberspace (Droit, Normes et Libertés dans le Cybermonde). Brussels: Larcier, 417-444.
Saran, S., Chapman, T., and Sharma, M., 2018. A New Social Contract for the Digital Age [online]. Available from: https://www.g20-insights.org/wp-content/uploads/2018/07/A-New-Social-Contract-for-the-Digital-Age-Vision-Brief-ORF-4-10-18-TC_Edits-3.pdf [Access 16 February 2022].
Schaefer, K., et al., 2019. Understanding China’s Social Credit System [online]. Beijing: Trivium China. Available from: https://socialcredit.triviumchina.com/wp-content/uploads/2019/09/Understanding-Chinas-Social-Credit-System-Trivium-China-20190923.pdf [Access 16 February 2022].
Schmitt, C., 2003. Staat al ein konkreter, an eine geschichtliche Epoche gebundener Begriff. In: C. Schmitt, Verfassungsrechtliche Aufsätze aus den Jahren 1924–1954. Berlin: Duncker & Humblot, 375–385.
Schwab, K., and Malleret, T., 2020. COVID-19: The Great Reset [online]. Cologne/Geneva: Forum. Available from: http://reparti.free.fr/schwab2020.pdf [Access 16 December 2022].
Sharma, R., 2021. The billionaire boom: how the super-rich soaked up Covid cash. Financial Times [online], 14 May. Available from: https://www.ft.com/content/
747a76dd-f018-4d0d-a9f3-4069bf2f5a93 [Access 16 February 2022].
Sklair, L., 2018. The transnational capitalist class. In: A. Farazmand, ed., Global Encyclopedia of Public Administration, Public Policy, and Governance. Cham: Springer, 5999–6002.
Supiot, A., 2017. Governance by Numbers: The Making of a Legal Model of Allegiance. Oxford: Hart.
Sylla, R., 2002. An historical primer on the business of credit rating. In: R.M. Levich, C. Majnoni and C. Reinhart, eds., Ratings, Rating Agencies and the Global Financial System. Boston: Kluwer Academic, 19–40.
von Blomberg, M., 2018. The social credit system and China’s rule of law. Mapping China Journal [online], 2, 77–162. Available from: https://mappingchina.org/wp-content/uploads/2019/01/MCJ-No-2-2018-Blomberg.pdf [Access 16 December 2022].
von Weizsäcker, E.U., and Wijkman, A., 2018. Come On! Capitalism, Short-termism, Population, and the Destruction of the Planet: A Report to the Club of Rome [online]. New York: Springer. Available from: https://filipmalinowski.net/Club_Of_Rome-report-2018_ComeOn.pdf [Access 16 December 2022].
Wallerstein, I., 1974. The Modern World-System I: Capitalist Agriculture and the Origins of the European World-Economy in the Sixteenth Century. New York: Academic Press.
Wallerstein, I., 2013. Structural crisis, or why capitalists may no longer find capitalism rewarding. In: I. Wallerstein et al., eds., Does Capitalism Have a Future? Oxford University Press, 9–35.
Waqar Hasib, S., 2004. The Iranian Constitution: An exercise in contradictions. The Fletcher School Online Journal for issues related to Southwest Asia and Islamic Civilization [online]. Spring. Available from: https://ciaotest.cc.columbia.edu/
olj/aln/aln_spring04/aln_spring04a.pdf [Access 16 February 2022].
World Bank, 2016. Digital Government 2020: Prospects for Russia [online]. Washington, DC: World Bank Group. Available from: https://openknowledge.worldbank.org/
bitstream/handle/10986/24402/Digital0govern0prospects0for0Russia.pdf [Access 16 February 2022].
World Bank, 2018. Technology Landscape for Digital Identification [online]. Washington, DC: World Bank Group. Available from: https://openknowledge.worldbank.org/
bitstream/handle/10986/31825/Technology-Landscape-for-Digital-Identification.pdf [Access 16 February 2022].
World Economic Forum (WEF), 2016. A Blueprint for Digital Identity [online]. Geneva: WEF: Available from: http://www3.weforum.org/docs/WEF_A_
Blueprint_for_Digital_Identity.pdf [Access 16 February 2022].
World Economic Forum (WEF), 2018. Identity in a Digital World: A New Chapter in the Social Contract [online]. Geneva: WEF. Available from: https://www.weforum.org/
reports/identity-in-a-digital-world-a-new-chapter-in-the-social-contract [Access 16 February 2022].
World Economic Forum (WEF), 2020. Annual Report 2019–2020 [online]. Geneva: WEF. Available from: http://www3.weforum.org/docs/
WEF_Annual_Report_2019_2020.pdf [Access 16 February 2022].
Xenidis, R., 2020. Tuning EU equality law to algorithmic discrimination: Three pathways to resilience. Maastricht Journal of European and Comparative Law [online], 27(6), 736–758. Available from: https://doi.org/10.1177/1023263X20982173 [Access 16 December 2022].
Yeung, K., 2017. ‘Hypernudge’: Big Data as a mode of regulation by design. Information, Communication & Society, 20(1), 118–136.
Yu, K., 2020. Towards graduated citizenship: A study of social credit systems in China. Critique: a worldwide student journal of politics [online], 28–55. Available from: https://cpb-us-w2.wpmucdn.com/about.illinoisstate.edu/dist/
e/34/files/2020/09/FINAL-2-Graduated-Citizenship-A-Study-of-Social-Credit-Systems-in-China.pdf [Access 13 October 2022].
Yu, Q., 2020. Suanfa xingzheng: shehui xinyong tixi zhili fanshi ji qi fazhi hua [Algorithmic administration: The governance paradigm of the social credit system and its legalization]. Faxue Luntan [online], 2, 36–49. Available from: http://fzzfyjy.cupl.edu.cn/info/1035/11847.htm [Access 16 February 2022] (in Chinese).
Yu, R., and Ali, G.S., 2019. What’s inside the black box? AI challenges for lawyers and researchers. Legal Information Management [online], 19(1), 2–13. Available from: https://doi.org/10.1017/S1472669619000021 [Access 16 December 2022].
Zuboff, S., 2019. The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power. New York: Public Affairs.
 Several opinions of the General Office of the State Council of the PRC on using big data to strengthen services and supervision of market participants (Guowuyuan bangong ting guanyu yunyong da shuju jiaqiang dui shichang zhuti fuwu he jianguan de ruogan yijian), No. 51 of 24 June 2015. Available from: http://www.gov.cn/zhengce/content/2015-07/01/content_9994.htm [Access 16 February 2022] (in Chinese); Guiding opinions of the State Council of the PRC on establishing and improving the system of joint incentives for keeping faith and joint punishment for untrustworthiness (Guowuyuan guanyu jianli wanshan shouxin lianhe jili he shixin lianhe chengjie zhidu jiakuai tuijin shehui chengxin jianshe de zhidao yijian), No. 33 of 30 May 2016. Available from: http://www.gov.cn/gongbao/content/2016/content_5086307.htm [Access 16 February 2022] (in Chinese).
 Decision of the National People’s Congress of the PRC of 14 March 2013 “On the Plan for restructuring the State Council and transforming its functions” (Guowuyuan jigou gaige he zhineng zhuanbian fang’an). Available from: http://www.law-lib.com/law/law_view.asp?id=413469 [Access 16 February 2022] (in Chinese).
 Guiding opinions of the General Office of the State Council of the PRC on the establishment of personal credit system (Guowuyuan bangong ting guanyu jiaqiang geren chengxin tixi jianshe de zhidao yijian), No. 3 of 23 December 2016. Available from: http://www.gov.cn/zhengce/content/2016-12/30/content_5154830.htm [Access 16 February 2022] (in Chinese)
 In fact, they are already used in licensing and supervisory activities in China. Paragraphs 2.4 and 4.18 of the Guiding opinions of the State Council of the PRC of 30 May 2016 oblige people’s governments of all levels to take into account data on supervised entities when conducting inspections, and also introduce a simplified procedure for obtaining licenses for “faithful” organisations.
 Order of the Government of Russia No. 1452-r of 30 May 2020 “On Amendments to the Order of the Government of the Russian Federation No. 265-r of 22 February 2019” [Rasporjazhenie Pravitel’stva Rossijskoj Federacii No. 1452-r ot 30 maja 2020 goda O vnesenii izmenenij v rasporjazhenie Pravitel’stva Rossijskoj Federacii No. 265-r ot 22 fevralja 2019 goda]. Available from: http://publication.pravo.gov.ru/Document/View/0001202006010045 [Access 16 February 2022] (in Russian).
 Federal Law No. 479-FZ of 29 December 2020 “On amendments to the selected legislative acts of the Russian Federation” [Federal’nyj zakon ot 29 dekabrja 2020 goda No. 479-FZ O vnesenii izmenenij v otdel’nye zakonodatel’nye akty Rossijskoj Federacii]. Available from: http://publication.pravo.gov.ru/Document/View/0001202012290124 [Access 16 February 2022] (in Russian).
 Passport of “the Digital State Administration” federal project [Pasport federal’nogo proekta Cifrovoe gosudarstvennoe upravlenie], approved by the Presidium of the Government Commission on digital development and application of information technologies for improving of life quality and business environment. Available from: https://base.garant.ru/72302270/ [Access 16 February 2022] (in Russian).
 Thus, for example, the Chinese legislation, which recognises the right of a citizen to acquire property, at the same time provides for certain restrictions on this right for blacklisted persons. In many countries, the possibility of realising freedom of movement, which is among the fundamental rights, is today made dependent on the availability and validity of a vaccination certificate.
 It is worth noting that prioritising security at the expense of rights such as the freedoms of assembly and business is also a leitmotif in the fight against the pandemic today, which is actively supported by WEF and similar institutions. It is hardly coincidental that individuals are seen in the dominating anti-COVID paradigm today not as citizens, but as passive patients. Current divisions of the world into non-/mask-wearers, vaccination supporters or opponents “hack” the legal and political consciousness of an average man making him/her accept the transition to the new model of statehood. As Roth (2021, 6) noted, “the idea of a Chinese-type stratified social credit system does not appear as alien anymore as soon as we replace the term social by the term health…”.
A journal version of this publication: