Law Under Human Agency: Institution, Justice, and Human Virtue
Introduction: Beyond the False Dichotomy of Institutional Determinism and Human Agency
The “rule of law” is revered as a core tenet of modern civilization, but can this seemingly impeccable order automatically generate justice? When we regard legal codes and procedures as supreme principles, where do human morality, judgment, and responsibility belong?
For too long, institutional determinism and human agency have been viewed as opposing systems. However, this binary opposition obscures a fundamental problem: without human participation, justice cannot be realized. The historical experience of equity law offers us insight that genuine legal order has never excluded human participation, but rather enables people to assume responsibility and exercise judgment within institutional frameworks. This essay argues that modern civilization needs to reinterpret the essence of governance, returning to a governance model that is human-centered and treats law as an instrument.
I. The Human Origins of Justice: Institutions Cannot Exist Apart from Human Virtue
Justice has never been the automatic manifestation of abstract concepts, but rather the realization of human beings making concrete moral choices. Algorithms have no sense of justice, statutes have no moral judgment, procedures have no conscience. Only human beings can feel injustice, weigh pros and cons, and make choices in complex moral situations.
In the common law tradition, law has never been a mechanical system divorced from human experience, but rather an order that continuously accumulates and evolves from the concrete experiences of people’s lives. Though precedents have binding force, they are living entities that can be challenged, overturned, and adjusted. The source of this vitality is precisely the ideological position of “taking humans as subjects.”
The core of common law is not “legal statutes” but procedure, proportionality, discretion, and responsibility. Judges are not mechanical executors, but understanders and adjusters of social common sense and moral proportionality. The wisdom of this institutional design lies in its recognition that human virtue and judgment are indispensable elements of legal order, not interference factors that need to be eliminated.
II. The Illusion of Automated Justice: From Human Judgment to Algorithmic Governance
The contemporary push toward algorithmic governance represents the ultimate expression of institutional determinism—the belief that complex moral and social judgments can be reduced to computational processes. Consider the growing implementation of algorithmic systems in criminal justice: risk assessment algorithms that predict recidivism rates, automated sentencing guidelines that calculate punishment based on data points, and predictive policing systems that direct law enforcement resources based on statistical models.
These systems promise the holy grail of institutional determinism: objective, consistent, and bias-free decision-making. Yet they fundamentally misunderstand the nature of justice. When a judge sentences a defendant, they are not merely applying predetermined rules to factual inputs. They are making a moral judgment about human responsibility, considering factors that cannot be quantified: the defendant’s genuine remorse, the specific circumstances that led to the crime, the impact on the community, and the potential for rehabilitation.
An algorithm cannot experience the weight of sending someone to prison. It cannot feel the moral tension between punishment and mercy. It cannot recognize the unique human story behind each case. What algorithmic systems offer is not justice, but the appearance of justice—a technocratic simulation that removes the moral burden from human decision-makers while maintaining the fiction of rational, objective governance.
The rise of automated administrative systems reveals the same fundamental flaw. When welfare benefits are denied by algorithmic screening, when immigration applications are rejected by automated systems, when tax audits are triggered by computational models, we witness the creation of a de-responsibilized governance structure. No human official needs to justify these decisions; the algorithm has spoken, and the algorithm is presumed neutral.
This represents not the perfection of institutional governance, but its moral bankruptcy. True procedural justice requires not the elimination of human judgment, but its proper channeling through accountable institutions. The goal should be systems that enable responsible human decision-making, not systems that eliminate human responsibility altogether.
III. Institutional Worship as Abstract Betrayal of Justice
Institutionalized rules and procedures are essentially simplified procedures whose value lies in reducing friction costs in daily operations, not in providing some deep guarantee of justice. Like traffic rules, they merely enable most common situations to be handled smoothly.
When we sanctify simplified procedures as the essence of “rule of law,” we have already put the cart before the horse. So-called “objective” and “automatic” justice is actually an illusion. This “institution-over-human” system creates a form of irresponsible institutional rule:
When policies fail, “the system requires this”; when society is unjust, “operating according to law”; when judgment is wrong, “no discretion allowed.” This is not true rule of law, but a legitimizing cloak for irresponsible rule by established powers.
Institutional worship attempts to replace human moral judgment with technology and procedure, abstracting and de-subjectifying responsibility, making law an unquestionable discourse system. This not only erases the question of “who is exercising discretion,” but makes “who takes responsibility” an unsolvable problem. This de-responsibilized governance model is precisely the concrete embodiment of technocracy in the legal field—under the banner of “professionalism,” “objectivity,” and “neutrality,” it actually constructs a power structure immune from moral accountability.
IV. Reinterpreting Governance: Human-Centered Civilization Order with Law as Instrument
True governance is not institution over human, but institution enabling humans to hold each other accountable; decisions can be questioned; people (governors and governed) are mutual subjects in law; only humans can bear responsibility, law cannot; abstract statutes cannot respond to justice, only humans can.
Equity law provides a middle path between mechanical rule of law and arbitrary personal rule. It makes “humans” the subjects of institutions, participating in the construction of legal order through moral and common-sense judgment. This is not the destruction of governance, but its deepening.
The core of this governance model lies in recognizing that human virtue and judgment are the foundation of civilized order, not unstable factors that need to be eliminated through technologization and proceduralization. The continuation of civilization requires not perfect institutions, but virtuous people assuming responsibility and exercising judgment within institutional frameworks.
V. The Technocratic Mirage: Why Algorithmic Governance Fails Justice
The current enthusiasm for algorithmic governance represents the logical endpoint of institutional determinism—the fantasy that human moral judgment can be replaced by computational processes. Proponents argue that algorithms are more objective, consistent, and efficient than human decision-makers. They promise to eliminate bias, reduce costs, and deliver faster results. Yet this technocratic vision fundamentally misunderstands what justice requires.
Consider algorithmic sentencing systems now used in various jurisdictions. These systems analyze thousands of data points to recommend sentences, claiming to provide more consistent and fair outcomes than human judges. But what they actually do is codify and amplify existing social biases while removing human accountability. When the algorithm recommends a harsh sentence for a young offender, who takes responsibility for that decision? The programmer who wrote the code? The administrator who implemented the system? The judge who rubber-stamps the algorithmic recommendation?
This diffusion of responsibility is not a bug in the system—it is the system’s primary feature. Algorithmic governance allows power to operate without accountability, creating what we might call “bureaucratic irresponsibility.” Officials can claim they are merely following the algorithm’s recommendations, while the algorithm itself cannot be held morally accountable for its decisions.
The deeper problem is that algorithms cannot experience the moral weight of their decisions. They cannot feel empathy for those affected by their judgments. They cannot recognize the unique circumstances that might warrant departing from standard procedures. They cannot engage in the kind of moral reasoning that true justice requires—weighing competing values, considering unintended consequences, and taking responsibility for the human impact of their decisions.
Moreover, algorithmic systems are inevitably based on historical data that reflects past injustices. They perpetuate and systematize discrimination while claiming objectivity. A predictive policing algorithm trained on arrest data will inevitably direct more police attention to communities that have been historically over-policed. A hiring algorithm trained on past employment decisions will replicate the biases of human hiring managers while hiding those biases behind a veneer of mathematical objectivity.
The allure of algorithmic governance is ultimately the allure of governance without responsibility—a technocratic utopia where difficult moral decisions can be outsourced to machines. But this vision represents not the triumph of rationality over bias, but the triumph of institutionalized irresponsibility over accountable human judgment.
VI. Conclusion: Institutions Must Guard Human Dignity and Civilization’s Foundation
Equity law is not merely a “supplementary option” in past legal institutions, but the earliest meta-institutional model in human legal civilization that properly addressed the interaction between human nature, institution, and justice. In today’s era of rampant technocracy and formalist legal views, it reminds us: only when humans are present can institutions have souls; only when discretion is accountable can rule of law have legitimacy. Justice is not merely the result of rules, but the realization of morality and responsibility within institutions.
What we must defend is a legal civilization that allows humans to participate as subjects rather than objects; a governance order that does not subordinate human nature to abstract principles, but can protect justice through discretion and proportionality. This model faces the reality that social complexity cannot be exhaustively enumerated by limited statutes, acknowledging that human virtue and judgment are key elements of civilized order, not unstable factors waiting to be eliminated by technologization.
Institutions should guard human dignity, not become new masters. Only thus can we prevent civilization from losing its soul in the torrent of technocracy, and ensure that justice is not abstracted into cold procedural operations. Such governance alone deserves to be called the cornerstone of civilization.
“Law under human agency” is not an anarchist cry, but a call for true civilized order—a governance model based on human virtue, using institutions as instruments, and bound by responsibility. This is the civilizational wisdom our era most urgently needs to recover.
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