D7.4: Implications of profiling practices on democracy

Title: SOME HISTORICAL ROOTS OF THE RULE OF LAW

To get a clear picture of the impact of the proliferation of profiling practices (the use of profiling technologies in different contexts) on democracy and the rule of law, we will start with a brief discussion of the historicity of our European constitutional democracy. As the reader may have guessed, with historicity or pastness I do not mean to stress the fact that these phenomena are relics of the past with no relevant future. I am rather indicating the fragile character of the architecture of our contemporary society, in which freedom of speech, privacy, due process and other fundamental rights and liberties still function as constitutive features. Such architecture is neither natural, nor contingent. Like any human construction our states are artificial constructs (which, by the way, does not make them any less real, nor immune to erosion). Meanwhile, building and rebuilding the existing network of checks and balances is not a voluntaristic plan of action either; it cannot be based on a blue print to be implemented and monitored centrally. Instead, the architects and the masons that have invested their energy in building, restoring and expanding constitutional democracy have to adjust their strategies continuously to meet changing circumstances. The birth and development of democracy and the rule of law are like the reconstruction of a boat at sea, rather than a newbuild in a shipyard. This means that we can learn from past experience, but should nevertheless be ready to invent a new type of wheel if the old one is no longer tuned to the changing landscapes of the information society.

Somewhere in the course of the period between the 12th and 17th centuries, within the royal jurisdictions all over Europe, the modern state was invented and developed. Starting from a fragile and often fragmented monopoly of violence that had to compete with canonical, feudal and local jurisdictions, the kings of Europe established an absolute claim to govern their subjects. One of the central assets of the modern state was – and is – its competence to enact legislation, thus binding all subjects to a rule by law. Before the advance of the modern state, royal authority was based on jurisdiction; the King was the ultimate adjudicator rather than the ultimate legislator. The premodern states of the early middle ages were constituted by the competence to speak the law; to arbitrate decisively in disputes between the subjects of the King. When kings invested themselves with the authority to enact new laws, they installed a new – bureaucratic - order, to be implemented by their officials and magistrates. This rule by law must not be confused with the rule of law. Rule by law – historically – precedes the rule of law, and is still very close to rule by man. It actually supplies very efficient and effective tools to the men that rule, if they have a working bureaucratic infrastructure to implement their laws. Rule by law in fact reduces to administration. This fact is highly relevant for our later discussion on the effectiveness of data protection legislation. The point is that, at this point in history, the King’s magistrates, who apply the law (judges and others alike), were  dependent on the King; they spoke his law. If he so wished, he could overrule their verdict and intervene to guard his own interests. The interpretation of the law was not with the judge but with the King, who was thus legislator, administrator and judge. The rule of law has emerged after a long struggle between the absolute kings of the 17th and 18th centuries and the judiciary that claimed an independent interpretation of the law. This is the meaning of Montesquieu’s famously abused statement about the judge as ‘bouche de la loi’; it claims that, rather than the King, the judge should speak the law. The emphasis is not so much on mechanical application of enacted law (as Montesquieu is traditionally understood), but on the fact that politicians should not be allowed to determine the scope and the meaning of the law. If they do, in the end they will bend it to their own interests. As Montesquieu does not tire of informing us, intervention of the King in the work of the judiciary means that the King’s subjects are not safe from arbitrary rule – and thus not free. That is why he praises the mixed government of the Roman republic, but holds that, to create and sustain freedom, even such mixed government does not suffice, because the judges were politicians and not independent of the government. In the end, a judge that can be overruled by other branches of the government cannot establish more than the rule by law of his sovereign government.

Thus, two prerequisites for the move from subject to citizen, and from rule by law to the rule of law, are, first, the establishment of an effectively independent judiciary and, second, the attribution of human rights to individual citizens to ward off undesired intervention by the state. In section we will explore the pertinence of human rights for constitutional democracy, in particular those that install and protect the freedom of the human person.