The Legitimacy Presuppositions of the Space of Non-law in the Algorithmic Era: a Proposition Grounded in the General Clause for the Protection and Promotion of the Human Person

Abstract

This article examines the legitimacy presuppositions of the space of non-law in the algorithmic society, grounded in the general clause for the protection and promotion of the human person. It reconstructs the concept of the space of non-law in the tradition of Rodotà, demonstrating that the decision not to regulate certain spheres of existence constitutes a normative choice whose criteria require reassessment in light of the transformations brought about by surveillance capitalism. It analyzes the algorithmic colonization of the space of non-law, whereby regulatory abstention, conceived as a guarantee of freedom, becomes a title enabling the extraction of behavioral surplus and the heteronomous construction of personal identity. It examines the tension between autonomy and heteronomy within the Brazilian General Data Protection Law (LGPD), identifying the partial insufficiency of its instruments. It proposes a three-condition cumulative test, namely parity, cognoscibility, and reversibility, whose negative verification triggers a duty of heteronomous protection grounded in the general clause for the protection of the human person and in the principle of solidarity.