“Rule of Law” vs. “Rule by Law”in Contemporary Law Enforcement - From Preventive Policing Toward Algorithmic Governance -

The distinction between the “Rule of Law” and the “Rule by Law” has long occupied a central place in constitutional theory and legal philosophy. Traditionally framed as a contrast between legality as a normative constraint on power and legality as an instrument of governance, this distinction has been examined primarily through constitutional texts, judicial doctrine, or regime-level comparisons. This article shifts the focus to law enforcement as the institutional site where competing conceptions of legality are translated into everyday exercises of coercive authority. The article argues that contemporary law enforcement constitutes the institutional fault line at which Rule-of-Law principles most readily give way to Rule-by-Law practices. This transformation does not typically occur through explicit rejection of legality, but through preventive and algorithmic policing practices that expand discretion, weaken traditional legal thresholds, and normalize anticipatory intervention. Preventive policing re-orients enforcement from responding to completed offenses to managing projected risk, while algorithmic governance consolidates this logic by embedding discretionary judgments within data-driven systems that operate prospectively and probabilistically. Through a conceptual comparison of the Rule of Law, the Rule by Law, and contemporary algorithmic policing, the article demonstrates that algorithmic governance does not represent a radical break from earlier instrumentalist practices. Rather, it institutionalizes and routinizes Rule-by-Law logics under the guise of technical rationality and administrative efficiency, thereby intensifying structural pressures on constraint-based legality. The article concludes by arguing that preserving the Rule of Law in the algorithmic age requires institutional reconstruction rather than doctrinal reaffirmation. Legal safeguards must be re-designed to actively re-embed transparency, contestability, and accountability within algorithmic enforcement systems. In doing so, the article engages and contributes to broader debates on policing, governance, and the evolving nature of legality in technologically mediated systems of state power.