Public administrations are increasingly deploying algorithmic systems to facilitate the application, execution, and enforcement of regulation, a practice that can be denoted as algorithmic regulation. While their reliance on digital technology is not new, both the scale at which they automate administrative acts and the importance of the decisions they delegate to algorithmic tools is on the rise. In this chapter, I contextualize this phenomenon and discuss the implementation of algorithmic regulation across several public sector domains. I then assess some of the ethical and legal conundrums that public administrations face when outsourcing their tasks to such systems and provide an overview of the legal framework that governs this practice, with a particular focus on the European Union. This framework encompasses not only constitutional and administrative law but also data protection law and AI-specific law. Finally, I offer some take-aways for public administrations to consider when seeking to deploy algorithmic regulation.

This chapter introduces the main research themes of this book, which explores two current global developments. The first concerns the increased use of algorithmic systems by public authorities in a way that raises significant ethical and legal challenges. The second concerns the erosion of the rule of law and the rise of authoritarian and illiberal tendencies in liberal democracies, including in Europe. While each of these developments is worrying as such, in this book, I argue that the combination of their harms is currently underexamined. By analysing how the former development might reinforce the latter, this book seeks to provide a better understanding of how algorithmic regulation can erode the rule of law and lead to algorithmic rule by law instead. It also evaluates the current EU legal framework which is inadequate to counter this threat, and identifies new pathways forward.

In Chapter 3, I developed this book’s normative analytical framework by concretising the six principles that can be said to constitute the rule of law in the EU legal order. Drawing on this framework, in this chapter I now revisit each of these principles and carry out a systematic assessment of how public authorities’ reliance on algorithmic regulation can adversely affect them (Section 4.1). I then propose a theory of harm that conceptualises this threat, by juxtaposing the rule of law to algorithmic rule by law (Section 4.2). Finally, I summarise my findings and outline the main elements that should be considered when evaluating the aptness of the current legal framework to address this threat (Section 4.3).

There are many different types of regulatory instruments and tools. Chapter 6 classifies and examines regulatory tools according to their underlying technique or ‘modality’ of control or source of influence, examining five such modalities in turn: command, competition, communication, consensus and code (or ‘architecture’). This chapter also considers algorithmic regulation and the role of reputation as a form of regulation.