大数据思维如何影响法治思维

How Big Data Thinking Affects Legal Thinking

大数据思维的崛起给法治思维带来诸多影响,在对两者本体进行分析基础上,发现两者在认识论、思维层级、效用目的等方面都存在差异。大数据思维对法治思维的积极影响包括提供更多信息来源,提升法律与社会生活的关联,助力对公权力的监督,推动法治思维的普及等。而消极影响表现为相关思维对法律因果关系适用带来冲击,全样思维在法治领域实现难度更大,容错思维与法治思维关注个案及数据准确性的特性相冲突,大数据思维的精准预测也难以适用于法治思维。大数据思维对法治思维的深层威胁在于带来权力扩张危及私权,弱化人的主体性,大数据规则意识凌驾于法治思维规则意识之上。协调二者关系在于发挥大数据思维对法治思维的辅助作用,用法治思维规范大数据思维。

The rise of big data thinking has exerted a lot of influence on legal thinking. Based on the analysis of their ontology, we find that there are differences between big data thinking and legal thinking in epistemology, thinking level, and utility and purpose. The positive impacts big data thinking has on legal thinking include providing more information sources, improving relevance between law and social life, helping with the supervision of power, and promoting the popularity of legal thinking. The negative effects include the applicability of legal causation being impacted by the relevant thinking, more difficulty in realizing whole thinking in the field of the rule of law, the conflict between fault-tolerant thinking and legal thinking with the characteristics that focus on individual cases and data accuracy, and the difficulty in the accurate prediction of big data thinking being applied to legal thinking. The deep threats of big data thinking to the legal thinking lie in that the expansion of power threats private rights and weakens human subjectivity, and that the rules consciousness of big data overrides the rules consciousness of legal thinking. To coordinate the relationship between them, we should give play to the auxiliary role of big data thinking to legal thinking, and standardize big data thinking with rule of law thinking.