Cybernetic Citizenship?

'The Rise of Cybernetic Citizenship' by Wessel Reijers, Liav Orgad and Primavera de Filippo in (2022) Citizenship Studies comments 

The global COVID-19 pandemic demonstrates how states and companies mobilise new sociotechnical systems to track, trace, evaluate, and modulate the behaviour of citizens. This development illustrates an already-existing transformation of citizenship governance, which this article captures as the move to “cybernetic citizenship.” Part I explores the concept of cybernetic citizenship, providing an overview of the concepts of “cybernetic” and “citizenship” and synthesising these in a discussion of the cybernetic modulation of citizenship. Part II presents the rise of cybernetic citizenship in the urban realm, zooming in on the case of the Chinese Social Credit System and the way it affects civic life in the urban realm. Part III turns into the normative implications of cybernetic citizenship, arguing that it confronts the idea of citizens as equal, free, and vigilant. It challenges equality by turning rights into ends, freedom by turning status into process, and civic virtue by turning excellence into effectiveness.

The authors argue

Systemic crises like wars and natural disasters tend to propel new waves of technological innovation. This observation is demonstrated by the global COVID-19 pandemic, which has led to massive data collection on citizens, track- and trace applications, and automated means of intervention. A fascinating example comes from China, where the pandemic initially started, which has deployed its emerging Social Credit System (SCS) to fight the pandemic (Knight and Creemers 2021). The SCS uses technological innovations to rate (and often score) citizens to improve public order and trust. For instance, it has made it more socially costly to engage in behaviours that might lead to spreading the disease, such as hiding virus symptoms or evading medical treatment. At the same time, the SCS has been used to relax some restrictions on behaviours that would otherwise be more costly, for example, enforcing financial obligations that are harder to meet due to the economic downfall. The costs and benefits imposed by the SCS are not only monetary, but rather attached to one’s status, rights, and duties as a citizen. 

This article investigates the emerging form of cybernetic citizenship as illustrated by the SCS. It builds on a growing body of literature that addresses the transformation brought about by technology to the concept of citizenship (digital citizenship, Mossberger, Tolbert, & McNeal, 2008; e-citizenship, Dumbrava, 2015; algorithmic citizenship, Cheney-Lippold, 2016). At first, literature focused on the way technologies shaped existing, stable aspects of citizenship, for instance, by looking at the digitalisation of state services and online civic education. More recently, there has been a turn toward questioning the foundations of liberal citizenship, as conceptualised in the tradition that follows T.H. Marshall (1950). Most notably, Marion Fourcade has coined the term “ordinal citizenship,” which implies a transformation of citizenship due to the emergence of large sociotechnical systems that measure, quantify, and evaluate citizens (2021). Some utopian and dystopian scenarios related to the shift in the essence of citizenship due to cybernetic systems were already discussed decades ago by philosophers of technology like Lewis Mumford (1965) and Langdon Winner (1969, 1978). This article continues this strain of thought and draws from recent work in the humanities (Pickering 2010; Hui 2019) that signals the revival of cybernetic thinking. 

The article’s central claim is that, empirically, we are witnessing the rise of cybernetic citizenship as demonstrated by the Chinese SCS and similar sociotechnical systems around the globe; normatively, this development has urgent ethical, legal, and political implications. First, cybernetics professes to be a general epistemology that takes the networked computer as its model (Winner 1969). While citizenship in the current international order of states is still primarily based on the mechanised worldview of enlightenment philosophy, cybernetics challenges this worldview and thereby the sense of citizenship based on it. Second, cybernetics accounts for how sociotechnical systems learn and adapt their behaviour according to contingent inputs (Krivý 2018). Hence, it explains how citizens’ seemingly accidental and contingent behaviours are connected and harnessed for citizenship governance. And third, initially emerging in the wake of computerised systems, cybernetics speaks to a much longer history of philosophical thinking that mobilises the notion of a living machine to understand the institution of citizenship (Mumford 1965). 

The article proceeds as follows. Part I develops the concept of cybernetic citizenship, synthesising the outlines of “cybernetics” and establishing perspectives on “citizenship”. Part II describes the rise of cybernetic citizenship through the lens of the application of the SCS in the urban realm in China. Part III develops a normative analysis of cybernetic citizenship, arguing that it erodes core distinctions that inform modern citizenship: between rights and ends, status and process, and excellence and effectiveness.

Jurisprudence

'Mutual Borrowing and Judicial Dialogue Between the Apex Courts of Australia and the United Kingdom' by Mary Arden and James Edelman (preprint of (2022) 138 Law Quarterly Review 217)  comments 

The common law is one of England’s greatest exports. The more common it remains, the more cogent it will be. It is inevitable that common law jurisdictions will diverge in some applications of the common law in areas where local influences, such as the indirect effect of domestic statutes, play a part. But in areas where the common law is concerned with more universal issues, and not substantially affected by local considerations, the interrelationship between common law jurisdictions is a powerful force for the common law to “work itself pure”, to use the expression of Lord Mansfield. 

One significant factor in the interrelationship between common law jurisdictions is the interaction of the apex courts in those jurisdictions. However, there has been little study of how the development of the common law is affected by particular relationships between courts or particular differences between courts. This article contributes to that understanding by focusing upon the relationship between the apex courts in the UK and Australia on which each of us sits or has sat: the United Kingdom Supreme Court (UKSC) and the High Court of Australia (HCA). The relationship between, on the one hand, the UKSC or its predecessor, the Appellate Committee of the House of Lords and, on the other hand, the HCA, is one that has evolved over time. In particular, the HCA initially developed the common law in a subordinate role to the House of Lords. But the position has evolved to one in which the HCA and the UKSC now borrow from each other in the development of the common law. 

Comparison of the substantive common law developed by our courts is a common matter for academic comment and discussion. The development by each court of the common law has been part of a dialogue between the two courts, sometimes intermediated by important academic comment. What is far less well known is how our courts are similar or different in their conventional practices—those procedures and processes that are not usually set out in statutes or other written rules. A comparison of these conventional practices and procedures is useful for all courts when considering how to develop or improve their own practices. But, perhaps more fundamentally, an understanding of these practices, and particularly the ways in which they differ, can reveal the context in which the dialogue occurs for the separate development of the common law by the apex courts in our two jurisdictions and might further advance dialogue between our courts beyond the substance of the common law to include also the institutional machinery by which the common law is developed by our courts. 

Against that background, we begin with a brief account of the evolution of the relationship between the courts before going on to give examples of how they have referred to and borrowed from one another and, importantly, developed a judicial dialogue. We then turn to the area of conventional practices which shape the context in which this dialogue can occur but upon which little has been written, perhaps due to their non-public nature. We describe and compare some of the important conventional practices and analyse how they differ.