In the digital domain national boundaries lose their significance. Therefore, the question arises how to create the necessary global rules and norms that govern the digital world. In recent years, we have witnessed the emergence of over 100 proposals for basic rights and principles. These initiatives share the goal of transposing the values of our analogue world to the virtual one. They are the product of state initiatives, international conferences, scientific projects, private forums and individual creativity. Through this discourse, constitutional principles are evolving that may not be legally binding, but exhibit significant normative power to guide public debate and global governance. (1)
Dr. Edoardo Celeste, Assistant Professor in Law, Technology and Innovation at Dublin City University, has termed this phenomenon “Digital Constitutionalism”. Convoco asked him for an introduction to the topic.
Scroll down to listen to the audio version of his introduction.
Dr. Edoardo Celeste
A series of ongoing transformations in contemporary society are challenging existing constitutional law apparatuses. The changes prompted by the digital revolution in relation to ourselves, our relationships with other individuals and, ultimately, in the society at large ferment under a vault of constitutional norms that have been shaped for ‘analogue’ communities. However, the constitutional ecosystem does not lie inert. Existing constitutional settings are being modified or integrated in a way that better addresses the transformations of the digital age. We are witnessing a new constitutional moment: a complex process of constitutionalisation is currently under way.
A multiplicity of normative counteractions is emerging to address the constitutional challenges of the digital revolution. They attempt to reaffirm our core fundamental rights in the digital context and to rebalance new asymmetries of power. The increased power of states that, through the use of digital technology, have gained even more control over the lives of their citizens. But also, the power of the new ‘silicon giants’, potent multinational companies that, by managing digital products and services, de facto influence the way in which we enjoy our fundamental rights. A paradigmatic example is the progressive development of data protection law. An area of law that has profound constitutional implications, as it is designed to limit the power of public and private actors to control our digital body, and in parallel aims to strengthen a series of positive rights of the individuals, such as their capability to freely develop their personality in the online world.
Interestingly, this complex process of constitutionalisation of the digital society is not concerted centrally. As in a vast construction site there are several contracting companies working at the same time, so, in a globalised environment, constitutionalisation simultaneously occurs at different societal levels. Not only in the institutional perimeter of nation-states, but also beyond: on the international plane, in the private fiefs of multinational technology companies, within the civil society.
The sense of this Gordian knot of multilevel normative responses can be deciphered only if these emerging constitutional fragments are interpreted as complementary. Each one surfacing with a precise mission within the constitutional ecosystem, each one compensating the shortcomings of the others in order to realise a common aim: translating the core principles of contemporary constitutionalism in the context of the digital society. Or, in other words: achieving a ‘digital constitutionalism’.
Constitutionalism evolves constantly. Its underlying values, ideals, principles have changed over time. The notion of constitutionalism emerged at the beginning of the 19th century as a response to absolute monarchy and popular despotism. The power of the government should be legitimated by the constitution, an expression of popular sovereignty, and should be bound by the constitution, which represents its ultimate limit. This normative vision of society championed by the original constitutionalism was subsequently enriched with other ideals. Besides a negative, limitative approach, claiming the restriction of the power of rulers by law and the institution of a system of checks and balances, constitutionalism also developed a positive aspect, revolving around individual empowerment. In this way, the ultimate mission of constitutionalism, the limitation of power, was re-oriented towards the protection of fundamental rights and, ultimately, the safeguarding of human dignity. Constitutionalism is today synonymous with the values of democracy, the rule of law and the separation of powers.
Constitutionalism is associated with the idea of the protection of all fundamental rights that have been gradually recognised over the past few centuries, be they civil, political, socio-economic or cultural. However, what today no longer holds true is the necessary connection of the idea of constitutionalism with the nation state.
The values of constitutionalism historically developed in the context of the state. However, over the past few decades, in a society that has become increasingly more global, the centrality of the state has faded due to the emergence of other dominant actors in the transnational context. The scholarship has therefore started to transplant the constitutional conceptual machinery beyond the state, including the concept of constitutionalism. The myth of the compulsory link between constitutionalism and the state is debunked. Consequently, the constitutional ecosystem becomes plural, composite and fragmented.
Contemporary constitutionalism was not extracted from the rock of history as a monolithic marble block. Constitutionalism developed more like an onion. Its inner fundamental values progressively shaped further external layers: principles budding to face the emerging complexities of the society.
Today, analogue constitutional principles cannot anymore solve all the challenges of the digital society. The external shape of constitutionalism necessarily changes again. New constitutional layers are progressively emerging. Novel principles surface to articulate the fundamental values of constitutionalism in light of the problematic issues of contemporary society. A fresh sprout within the constitutionalist theory: what one could call ‘digital constitutionalism’.
Digital constitutionalism is adapting core constitutional values to the needs of the digital society. Digital constitutionalism advocates the perpetuation of foundational principles, such as the rule of law, the separation of powers, democracy and the protection of human rights, in the mutated scenario of the digital society. These principles emerge in a plurality of forms. Not only as amendments to national constitutions, but also as internal norms of online platforms, case-law of transnational adjudicating body such as ICANN, and even as non-legally binding declarations of rights for the Internet promoted by civil society actors. Digital constitutionalism is triggering a complex process of constitutionalisation of the virtual environment, which occurs through a multiplicity of constitutional counteractions, both within and beyond the state. The state is no longer the only constitutional framer in the digital environment. The digital society is a globalised context where multinational online platforms have emerged as new dominant actors, and where individuals are raising their voice to claim new constitutional guarantees. Enforcing existing constitutional principles in the virtual environment is certainly complex, due to the global and multilevel nature of the digital society. However, digital constitutionalism resolutely reiterates that digital technology does not create any secluded world where individuals are not entitled to their quintessential rights.
The current digital constitutional moment has a transformative impact. Constitutionalism is translated in a language that speaks to the actors of the virtual environment. In this way, old principles become more easily applicable in new societal contexts. Further corollaries, and even novel norms emerge to express foundational constitutional values in the digital society. This process of constitutionalisation is still ongoing. The question is: are we facing an evolution or a revolution of contemporary constitutionalism?
The extended scope of this phenomenon might be evidence of the revolutionary nature of this process. Constitutionalism is no longer anchored to the nation state. In the digital age, it promotes ways to limit the power of all dominant actors, be they public or private. Overlooking the capability of nonstate actors to affect individual rights would be anachronistic, and would ultimately fail to safeguard human dignity, which can be equally violated by public and private hands. Existing constitutional norms, which were shaped for an analogue society, are under unprecedented stress. One therefore envisages the need for immediate, drastic transformations. Digital constitutionalism would represent an appeal to urgently take a remedial action: a last minute, normative SOS.
Certainly, the emergence of constitutional counteractions is not evidence that supports the vision of a constitutional ecosystem that is easily adjusting to the digital revolution. However, from an objective standpoint, the current constitutional moment does not represent a radical upheaval. We are not facing a change of paradigm that is forever transforming the shape of our constitutional identity. We are not witnessing a transition from democracy to technocracy, for example. Digital constitutionalism does not advocate a tabula rasa of our core constitutional values. On the contrary, it is deeply rooted in these foundational principles.
Digital constitutionalism champions the translation of these principles in the context of the digital society. Innovation, of course, occurs – it suffices to think to the fact that digital constitutionalism seeks to limit the power of private actors too. The societal context unavoidably imposes similar changes. However, this does not subvert the original constitutional paradigm founded on the values of democracy, the rule of law, the separation of powers, and the protection of human rights. Digital constitutionalism perpetuates these constitutional principles in a mutated social reality: in the digital society, the DNA of contemporary constitutionalism is ultimately preserved(2).
Dr Edoardo Celeste is Assistant Professor in Law, Technology and Innovation at the School of Law and Government, Dublin City University.
1) Ingolf Pernice, Staat und Verfassung in der digitalen Konstellation, Tübingen 2020, S. 234-235.
2) For a more detailed analysis of digital constitutionalism, see Edoardo Celeste, Digital constitutionalism: a new systematic theorisation, International Review of Law, Computers & Technology, 33:1 (2019), pp. 76- 99, DOI: 10.1080/13600869.2019.1562604.
Listen here to the full talk by Edoardo Celeste: