Dataism: The New School of Jurispudence
Law students must have studied various schools of law in their jurisprudence class. Each school represents the various stages of development of law affected many factors-God’s commandments, social contract, historical perspective, social sciences and et al.[i] Addition of new schools of jurisprudence is a foregone conclusion as society develops at a breakneck speed. New schools like Feminist jurisprudence, Critical Legal Studies movement, Realist school of law etc. came into existence in furtherance of human rights progress. Modern scientific inventions and growth of technology by leaps and bounds have accelerated these changes and as a result we now grapple with new questions of moral ambivalence pertaining to the survival of human civilisation.
Hugo Grotius, one of the foremost exponents of Natural School of Law, believed that law is based on reason of men only. Grotius went further denying the very existing relationship between law and any form of divine will.[ii] Immanuel Kant, another legal thinker belonging to the same natural school of law propounded the concept of ‘free will’ according to which a man is guided by dictates of his own conscience, better known as human rights of self-determination.[iii] The works of Kant and subsequent legal philosophers paved the development of law on the path of reason dictated by human beings sans any external commandments of supernatural forces. The consciousness of human beings exemplifies the reason why they came to dominate over the lesser mortals like plants and animals. But is this the end of evolutionary race on earth? Will there be any higher forms of organism that will begin to rule over the earth wiping out the existence of any remnants of human civilisation?
All these startling questions were discussed in the bestselling book ‘Homo Deus’ by renowned social scientist and historian Yuval Noah Harari.[iv] The author revealed how the cognitive revolution made humans the master race of the world and now the same humans face an existential threat from a known ubiquitous entity called DATA.
What is Dataism?
In the aforementioned book Harari writes at length about Dataism- a new scientific religious movement which is an outcome of increasing significance attached to valuation of data.[v] We are surrounded by data everywhere and our whole life revolves around the interplay of data in various instances of our lives. The proponents of dataism believe in freedom of information without any fetters of censorship and governmental regulations. For the followers of dataism human species are just biochemical algorithms consisting of waves of data which can be analysed and processed into an efficient data processing system. And the power of many such data processing systems can be harnessed into making a more efficient data processing system called the Internet-of-All-Thing. Harari writes in the book “once this mission is accomplished, Homo sapiens will vanish.”[vi]
How far Harari’s portentous message will be true? The answer is worst left unanswered. There have been myriad changes in the political, social and economic sphere where the role of data has increased exponentially, of late.[vii] And amidst this tidal wave of dataism the raging question is whether the legal world remains insulated from these changes.
Both the Historical school and Sociological school of jurisprudence dealt with functional approaches of law.[viii] The study of law should not be seen in isolation rather congruence of knowledge from fields of other social sciences like history, sociology, psychology, and various other streams. The new philosophy of dataism and its resultant effect on law and legal institutions can be studied through the lenses of both the aforementioned schools of jurisprudence. But the moot question is whether there will be gradual spawning of a new school of jurisprudence exclusively accommodating all the ideal and goals of data philosophy? Firstly, we need to answer this question in a bigger context by studying the ramifications of dataism analytics on legal world.
The Fear of Automation
Will lawyers become extinct in the age of automation? This question is put forth by Paul Rowlison,the London-based Global Chair of international law firm Baker McKenzie.[ix] Paul is not only one asking the question that will make lawyers across the world squirm in unison. The meteoric rise of Artificial Intelligence in recent years has disruptive effects on wide array of professions including the legal industry. Most of the jobs will be automated and performed by machines driven by artificial intelligence.
Contracts will be read by machines and even legal solutions can be worked out by analysing and cross checking enormous volume of data. Precedents and case laws will be extracted at the flash of a light saving considerable amount of time. In short, the daily routine task of lawyers will shifted to machines removing the economic cost of hiring a lawyer. The proposition sounds good in terms of economies of scale and efficiency. But the broader question remains about the fate of lawyers? Will their role be shifted to any other forms of legal work involving higher cognitive faculties? And whether this shift will be a seamless transition bereft of any violent backlash?
Protection of Data & Endangerment of Liberty
In 2017 the Supreme Court of India passed a landmark judgment recognising ‘right to privacy’ as an intrinsic part of fundamental Rights guaranteed under the Constitution.[x] The judgement came in the midst of ongoing debate about the legality of Aadhar which is the largest biometric program undertaken by the state for distribution of welfare schemes across the country.[xi] The absence of a comprehensive legislation in India safeguarding data privacy collected for Aadhar exercise justified the fears of mass surveillance without any checks and balances. Thought there is still legislation in works but all apprehension looms large regarding mis-utilisation of data.[xii]
Comparatively, United States and European Union have move far ahead in bringing stringent regulations for protection of data. The entire jurisprudence of data protection laws has sparked debates on public good characteristics of data, use of questionable surveillance methods, abuse of human rights, commercial exploitation of personal data overriding privacy concerns etc.
Overhaul of political structures
The imminent fallout of sweeping Dataism movement will be the existing political structures, more importantly the institution of Democracy. Recent instances like allegations of Russians involvement in USA Presidential elections through data profiling and spread of fake news through WhatsApp during Brazil Presidential elections raise concerns whether Big Data can be turned into Big Brother.[xiii]Micro profiling of users in social media and targeting them as potential vote bank through vis-à-vis biased news is the standard modus operandi as observed in the Cambridge Analytica scandal.[xiv] The Rwandan Radio experiment is being replicated at a global scale in the contemporary political world.[xv]
The spread of fake narratives as fact based news through technological mediums like Facebook, Twitter, and WhatsApp happen like wildfire and there are slim chances of regulations to monitor such activities. The element of ‘confirmation bias’gets more aggravated in this era of internet where each and every individual has wide array of information at their disposal aggravating his/her own prejudices.[xvi] The extreme radicalisation at individual level is reflected at the societal level which in turns makes the politics more vitriolic laced with extremist ideology. The proponents of dataism movement will argue that the solution also lies in the data processing systems (social media) where counter radicalisation steps can be implemented.But the larger question is about the efficacy of such steps? Will it be enough to curb such activities? Do we need stronger regulations?
In 1882 German philosopher Friedrich Nietzsche wrote “God is Dead” in his seminal book “The Gay Science”.[xvii] Yuval Noah Harari writes in his best selling novel “Algorithm is the new God”.[xviii] So what will be the future of human civilization under this new God? The term ‘Dataism’ was first used by David Brooks in an article published in the New York Times.[xix] Brooks believed that everything in this world can be measured and quantified which will give rise to definite patterns for better analysis. And such patterns will help in decision making abilities devoid of any ‘emotionalism’ and ‘ideology’. But the telltale signs as seen in Brazil and United States of America sounds contrary to the same.[xx] Can data be biased? Or can data be used in a discriminative manner to fuel prejudices and extremism in the society? Dataism has thrown several such challenging questions grappling the human society.
[i]Isaacs, N., 1918. The Schools of Jurisprudence.Their Places in History and Their Present Alignment. Harvard Law Review, 31(3), pp.373-411.
[ii]Grotius, H., 1700. De jure belli ac pacis, libritres.. (Vol. 2). G. Van der Water.
[iii]Kant, I., 1999. Critique of pure reason.Cambridge university press.
[iv]Harari, Y.N., 2016. Homo Deus: A brief history of tomorrow. Random House.
[v] “Dataism declares that the universe consists of data flows, and the value of any phenomenon or entity is determined by its contribution to data processing”. Id Page 428, Para 1.
[vi]Id Page 443, Para 3.
[viii]Issacs, supra note i.
[ix]Rawlinson, P. (2018). Will lawyers become extinct in the age of automation?. [online] World Economic Forum. Available at: https://www.weforum.org/agenda/2018/03/will-lawyers-become-extinct-in-the-age-of-automation/ [Accessed 13 Dec. 2018].
[x]Justice K. S. Puttaswamy (Retd.) and Anr.vs Union Of India And Ors., (2017) 10 SCC 1.
[xi]Aiyar, S. (2017). Aadhaar. 1st ed. westland publications ltd., pp.1-4.
[xii]Livemint (2018).Govt seeks inter-ministerial consultation on draft data protection bill. [online] Available at: https://www.livemint.com/Industry/TfwN3g00xt6wavElVQMXBN/Govt-seeks-interministerial-consultation-on-draft-data-prot.html [Accessed 14 Dec. 2018].
[xiii]Martínez, A. (2018). Why WhatsApp Became a Hotbed for Rumors and Lies in Brazil. [online] WIRED. Available at: https://www.wired.com/story/why-whatsapp-became-a-hotbed-for-rumors-and-lies-in-brazil/ [Accessed 12 Dec. 2018].
[xiv]Chang, A. (2018). The Facebook and Cambridge Analytica scandal, explained with a simple diagram. [online] Vox. Available at: https://www.vox.com/policy-and-politics/2018/3/23/17151916/facebook-cambridge-analytica-trump-diagram [Accessed 15 Dec. 2018].
[xv]Metzl, J.F., 1997. Rwandan genocide and the international law of radio jamming. American Journal of International Law, 91(4), pp.628-651.
[xvi]Confirmation bias suggests that we don’t perceive circumstances objectively. We pick out those bits of data that make us feel good because they confirm our prejudices.Heshmat, S. (2018). What Is Confirmation Bias?. [online] Psychology Today. Available at: https://www.psychologytoday.com/us/blog/science-choice/201504/what-is-confirmation-bias [Accessed 15 Dec. 2018].
[xvii]Nietzsche, F.W., 1974. The gay science: With a prelude in German rhymes and an appendix of songs (Vol. 985). Vintage.
[xviii]Harari, supra note iv.
[xix]Brooks, D. (2018). Opinion | The Philosophy of Data. [online] Nytimes.com. Available at: https://www.nytimes.com/2013/02/05/opinion/brooks-the-philosophy-of-data.html [Accessed 15 Dec. 2018].
[xx]Martínez, supra note xiii.
By- Subhaprad Mohanty, Research Associate cum Teaching Assistant at National Law University, Odisha.