The Rule of the Courts

Francisco Balaguer Callejón

Constitution itself and the Law – that is, legal instruments – to create the modern world, now technology uses algorithms to create this new world that is emerging, and whose future we cannot yet foresee. This means that the legal elements of the Rule of Law and constitutionalism are in crisis because they no longer have a historical role in the transformation that is currently underway. In the French Revolution, the driving force was legal with the law (through the “force of law”) and the constitution (as political law). Its inspiration was constitutionalism and the civilizational development it would bring, due to the economic progress that would make possible the liberation of the economy from the constraints of the Ancien Régime . In the digital revolution, the lever is the algorithm , the Artificial Intelligence, and its inspiration is technology, technologism 12 , and the economic benefits it provides to large, globally oriented, tech corporations. When the transformation brought about by the French Revolution occurred, the Constitution and the Law, the legal instruments, were in harmony with the cultural and philosophical universe of that historical period. To such an extent that, with the law being the revolutionary factor, there was no role that could be attributed to the judge, who was limited to applying the law, without even being able to interpret it. In the face of any doubt regarding the interpretation of the law, judges had to refer to parliament through the référé législatif , and it was parliament that had to resolve that doubt; the judges themselves could not. As in every revolution, power became concentrated. A unity of power was generated, which here manifested itself in the law and in the conceptual system established through it: the idea of hierarchy, the force of law, and the effectiveness of the law in replacing the customs, traditions, and privileges that stemmed from the Ancien Régime . The supremacy of the law, as the expression of the general will, reason, and national or popular sovereignty, has a specific purpose: to generate the conditions for economic

12 A term that predates the current digital revolution. According to the Oxford English Dictionary , it comes from a 1940 text by the American philosopher Ralph Barton Perry and can be understood as “The belief in the power of technology to shape or improve human society”.

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