Kohti digitaalisen ajan hallinto-oikeutta
Avainsanat:
hallinto-oikeus, digitalisaatio, yleiset opit, tietosuoja, hallintomenettely, perusoikeudetAbstrakti
Towards administrative law in the digital era
Digitalisation is a silent revolution with wide effects on society, on individuals and on public administration and administrative law. Digitalisation calls for an assessment of the general doctrines of administrative law and the recognition of the timeless fundamentals among the concepts and principles of administrative law. Digitalisation changes the techniques and mentality of governance towards the use of software and data; these changes are well captured in the concept of governmentality developed by Michel Foucault. Software and data based platforms and platform centric networks became the basic model of organisation of public administration.
Administrative law in general and specifically the Acts of Parliament and Acts of the European Union in the domain of administrative law are shaped by various inter-connected discourses: (1) general legal discourse seeking the realisation of the rule of law and fundamental rights and freedoms, (2) economic efficiency discourse with a quest for efficiency, productivity and economic growth, (3) moral-ethical discourse developing moral and ethical principles on justice and ethically sound conduct, and (4) a range of public management and administration and digitalisation development discourses with a quest for promotion of the use digital technologies as such or the use of them as means to promote quality, access and service delivery in public administration. Different discourses produce different elements into the law. In Finland there is a relative weakness of the general public administration development discourse and the general legal discourse in issues related to digitalisation and this weakens the balancing between efficiency and development considerations on the one hand and the rule of law criteria on the other hand. Within the legal discourse there are legitimate worries on an overemphasis of the data protection perspective.
The restriction of administrative power and its connection to the procedures and limits of rule of law remains the concern of the administrative law. But administrative law needs to address the informational power and the framing power related to the use of data and software based platforms. Particularly automated decision-making and artificial intelligence call upon a new humanism-centric rule of law with a specific mission to ensure the position of and integrity of human beings in the world and an administration shaped by increasingly intelligent digital systems. A theoretical model of administrative law will otherwise be more like a continuation of the model of modern administrative law developed in the legal literature.
