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Understanding Law and the Rule of Law: A Plea to Augment CS Curricula

By Mireille Hildebrandt

Communications of the ACM, Vol. 64 No. 5, Pages 28-31

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Some people think they are above the law. In a constitutional democracy this cannot be the case. Neither the head of state nor the doctor or the police are above the law. They should all be enabled to do their work, but we do not buy the claim that they could act as they wish. In 18th century Europe we replaced the authoritarian rule by law with a rule of law, to mitigate uninhibited power, and to ensure that those in power can be held to account in a court of law. Whereas rule by law is rule by persons (law as an instrument of control), rule of law implies a division of powers where those who enact the rules do not get the last word on their interpretation.13

This also refers to the difference between law and ethics. Replacing rule by law with rule of law means we do not want to depend on the ethical inclinations of those who rule us. Instead, we can send them home if we don't agree with the rules they impose (democracy) and we can contest their interpretation of those rules in court (rule of law). As a thought experiment I ask the reader how this would apply to the rules computing systems impose: Can we send home the developers (and/or those who implement these systems to gain a profit or to engage in public administration)? Can we contest their rules in a court of law when they impact our choice architecture?


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