The Rule of Law in Cyberspace: A Hybrid and Networked Concept?
The rule of law is a legal principle which has also become a principle of governance. It is attached to state orders and signifies “law’s title to rule” as opposed to rule by political power which is often associated with discretion, arbitrariness, and the instrumental use of the law. It requires that individuals and governing institutions are guided by and respect the law with the ultimate goal of disciplining the exercise of power. Dicey’s standard-bearer definition of the rule of law as “no man is above the law” expresses this idea.
From a domestic concept conditioning the exercise of state power, the rule of law was also transposed to the international legal order. The international rule of law can be defined in the following terms: “international law should guide the conduct of states: it is the final arbiter of the exercise of power and states must comply with its provisions”. As with the domestic notion of the rule of law, the aim of the international rule of law is to tame the power of the state, encapsulated in the notion of sovereignty. Sovereignty connotes ultimate power and the international rule of law provides a framework according to which sovereign power can be exercised externally and internally under the authority of the law.
Against this backdrop, in this article I will engage in a mapping exercise of how the rule of law as traditionally defined in jurisprudence is experienced and realised in cyberspace which will be used as a springboard to conceptualise its parameters in cyberspace. My main contention is that cyberspace provides an environment where a hybrid and networked rule of law concept can emerge, exhibiting some of the traditional attributes of the rule of law but one that is also open and interactive regarding its participants and properties. Such conceptualisation signifies the adaptation of the rule of law for an environment – cyberspace – which has a political, legal, social and technical dimension and is also characterised by the emergence of governance structures outside the state context. In relation to this, it should be noted that the rule of law is a construct which responds to demonstrations of power wherever they take place and in whatever form they manifest themselves and is modelled according to the characteristics of the particular order to which it applies.