This post is a contribution to the symposium What is Digital Constitutionalism? and not an official editorial position. We nevertheless welcome the author’s contribution and encourage further posts probing the meaning of digital constitutionalism and its limits as an analytical approach.
1. Digital constitutionalism’s inner tension
In the scholarly literature, it has become common to consider digital constitutionalism as a specific instance of societal constitutionalism, a broader theoretical framework outlined and progressively refined for more than ten years now. In particular, authors use societal constitutionalism to theoretically frame the emergence of new forms—public, private, hybrid—of normativity in the regulatory spaces opened by new technologies (see, e.g., here, here, here, and here). Even when they do not directly subscribe to such species/genus relationship, proponents of digital constitutionalism often refer to several elements of societal constitutionalism, notably in matters of transnational legal pluralism and dispute-settlement (see, e.g., here and here).
However, such references do not often go much beyond the description of ‘constitutional’ norms and constitutionalisation processes within the relatively autonomous digital sphere(s). More generally, they usually focus on the constitutive/foundational function that societal constitutionalism assigns to such norms, often overlooking the limiting one. Such use leaves the impression that, overall, societal constitutionalism only justifies and legitimises new forms of governmentality and unconstrained power centres.
Moreover, when it comes to concrete policy proposals, digital constitutionalism literature gravitates around a few—crucial, but still somehow narrow—issues, notably freedom of speech, privacy, safeguard of political/electoral processes, consumer protection, market competition. In addressing these issues, it typically builds on (Western) liberal constitutionalism as a sort of ‘default’, unquestioned matrix, whose basic principles only need to be adapted to the new fields and actors emerged with the digital technologies. To be sure, there is a rich and necessary (comparative) research on the different regulatory responses and policy proposals, focussing primarily on the US and European areas. However, with few exceptions, liberal constitutionalism (and political theory) paradigms are hardly assessed critically, even less so questioned. Among them, one may include the stark state/society divide; the stark public/private divide; the almost exclusive focus on political power as the object of constitutional constraint; the internal/external divide; state-centred legal monism; a static conception of law, detached from the ‘time’ of its application and its means of dissemination; the (economic) rationality of individuals, conceived as self-authorised, pre-social actors, detached from concrete societal constraints.
Precisely the overall absence of a self-aware critical discourse results in an intrinsic tension within digital constitutionalism as a field of study and a scholarly project. I posit that such tension between digital constitutionalism’s conceptual starting points and its concrete policy proposals requires and, at the same time, opens to a (partial) critique of liberal constitutionalism’s conceptual/sociological assumptions.
2. Exploring digital constitutionalism’s critical potential
Against this background, digital constitutionalism’s critical potential may be deployed in two directions. On the one hand (critique of digital constitutionalism), digital constitutionalism should be critically assessed in the light of its inner tensions, which somehow undermine its broader normative thrust. On the other hand (critique through digital constitutionalism), digital constitutionalism may represent a tool to critically assess the limits of liberal constitutionalism in one of the most relevant societal spheres of contemporary world society. In either case, digital constitutionalism is probably more disruptive than what many of its proponents are ready to admit.
More generally, such (self-)understanding of digital constitutionalism as a critical constitutional theory helps bridge the existing tension between its assumptions and its policy proposals, thus strengthening its normative potential and giving coherence to research and policy agenda.
But how should this critical potential be deployed? Societal constitutionalism offers some guidance.
Indeed, societal constitutionalism focuses on the reproduction of different communication media (understood as power, money, knowledge, information, etc.) in modern society as the central question to be addressed by constitutionalism (and constitutional theory). Underlining this focus is especially relevant in the light of the increasing transnationalisation/autonomisation of functionally differentiated systems (politics, economy, science, press, law, among others) at the level of world society. As communication phenomena, such media participate in the processes of social subjectification of both single individuals and collective actors—what Althusser most famously defined interpellation. As they all shape and encroach with social entities, not only the arbitrary exercise of power or the blind accumulation of profit but also the unconstrained reproduction of other communication media (information, knowledge, validity, among others) put at risk the integrity of human beings (the flesh-and-blood people), socially constructed persons, and social systems alike. In other words, constitutional problems do not derive only from the power imperative of politics or the commodification/monetisation imperative of economy, but also from the knowledge imperative of science, the innovation imperative of technology, the news/information cycle imperative of press, the validity imperative of the law, etc. Likewise, threats to human and ecological integrity do not derive only from purposeful actions of individuated actors but also from de-personalised social processes that cannot be traced back to single individuals and actors.
In this sense, societal constitutionalism advances a critique of liberal constitutionalism’s theory of fundamental rights. The latter gravitates around individuals conceived as rational, self-authorised, pre-social actors, detached from concrete societal constraints, and excludes social systems as right-holders on their own. In contrast, societal constitutionalism advances a theory of rights where individuals are not to be protected only from the arbitrary exercise of (political) power, but also from the de-humanising, alienating, instrumentalising potential deriving from processes of economisation, mediatisation, scientification, medicalisation, etc. Social control/manipulation—what, in the field of new technologies, Tristan Harris popularised as ‘human downgrading’—may well emerge when individuals are able to express a will ‘freed’ from the constraints of political power or economic need. At the same time, societal constitutionalism brings to the stage of constitutional theory the need to preserve the autonomy of different social systems from their reciprocal encroachments and colonising tendencies. As the COVID-19 pandemic has brutally demonstrated, the scientification of politics and politicisation of science are two equally dangerous sides of the same coin, mostly left unaddressed by liberal constitutionalism’s theory. Put differently, societal constitutionalism highlights the necessity to 1) consider potential violations to the integrity of human beings, persons and social systems alike; and 2) mobilise the trans-subjective potential of rights.
Seen through the lenses of societal constitutionalism, then, embracing the critical potential of digital constitutionalism means shaping research and policy agendas around the impact of digital technologies on distinct communication media (not only power or money) and their reciprocal interconnections. Digital constitutionalism is called to put at the centre of the stage the fact that digital technologies, on the one hand, create new possibilities for politics, economy, science etc. to control and manipulate individuals; and, on the other hand, allow for new forms of reciprocal colonisation (e.g., digital economy towards politics or science, or digital press towards politics). Prospectively, a recalibration of digital constitutionalism’s agenda—triggered by its full reconciliation with societal constitutionalism—offers both analytical and normative gains. However, such recalibration cannot occur without at least a partial redefinition of digital constitutionalism itself. Therefore, in the last section, I would like to advance a modest proposal to be expanded and refined collectively.
3. Recalibrating digital constitutionalism’s agenda: (re)starting with a definition
In their highly influential paper, Redeker, Gill and Gasser defined digital constitutionalism as a ‘common term to connect a constellation of initiatives that have sought to articulate a set of political rights, governance norms, and limitations on the exercise of power on the Internet’. They rely on societal constitutionalism to frame digital constitutionalism as the ‘process of constitutional rule-making that arises from social groups like civil society or transnational business corporations.’ However, as pointed out by Celeste, they included within the scope of digital constitutionalism only documents, charters, and declarations that explicitly aim to establish different types of ‘Internet Bill of Rights’ and focus on political questions and communities, thus denying the ‘constitutional quality’ of other types of norms, especially ‘private’ and ‘soft’ law produced by international organisations and private enterprises such as Facebook. Most importantly, the documents falling within the scope of their analysis overwhelmingly focus on freedom of expression, privacy, right of access to the Internet. Therefore, their definition is still anchored to the main tenets of liberal constitutionalism—notably the conception of constitutional norms as limitation to (political) power—and leaves out subtler dynamics of manipulation and systemic colonisation deriving from the impact of digitalisation on other communication media.
Celeste has proposed a more refined and comprehensive definition, explicitly based on societal constitutionalism. He defined digital constitutionalism as ‘the ideology which aims to establish and ensure the existence of a normative framework for the protection of fundamental rights and the balancing of powers in the digital environment’. As he also argues in another work, such ideology should permeate, guide, and inform the constitutionalisation of the digital environment, that is, the process that ‘aims to produce a series of normative counteractions to address the alterations of the constitutional ecosystem generated by the advent of digital technology.’ The advantage of framing digital constitutionalism in terms of ideology, that is, as a purely theoretical concept, lies—as Celeste puts it—’in the possibility to distinguish it from its implementation, its translation into reality.’ However, he proposes a somehow sanitised conception of ideology, merely understood as a structured set of values and ideals.
Building on such basis—and expanding on Althusser’s work and its reading by Fleur Johns in the context of data governance—I would conceive digital constitutionalism as an ideology, but in a thicker sense, that is, a set of socially constructed relationships of individuals to their real conditions of existence. This notion, in turn, implies dynamics of hailing/interpellation, that is, dynamics by which different social apparatuses and processes constitute individual and collective actors as social subjects. This conceptually thicker notion of ideology brings about an analytical gain, as it highlights that the constitutional questions of digital constitutionalism deal—should deal—primarily with the ways digital technologies affect and shape the social existence of individuals, collective actors, and social systems alike.
In this regard, Celeste’s notion of constitutionalisation as a process that aims to produce normative counteractions captures well the tasks to which digital constitutionalism is called. However, his insistence on these counteractions as a response to the alteration of a previous equilibrium gives the impression that digital constitutionalism deals with totally new constitutional questions, emerged only with digital technologies. In contrast, if one mobilises the critical potential of societal constitutionalism, digital constitutionalism deals with questions that have certainly assumed different quality and significance with the impact of digital technologies but, at their core, were already deeply rooted in the structures of liberal modernity.
Digital technologies and globalisation have not created but rather made more visible and urgent questions largely left unaddressed by (state-centred) liberal constitutionalism. The task of digital constitutionalism is not to regain some sort of paradise lost but rather to open the eyes to hell, as highlighted again by Fleur Johns in her critical review of Shoshana Zuboff’s work. The analytical gain of this definitional move lies in the fact that it helps better ‘see’ the subject matter of digital constitutionalism: not simply the regulation of digital technologies, but rather already existing constitutional questions re-shaped and made more urgent by digitality. In this sense, and to conclude, such a move seems necessary to frame digital constitutionalism in a more coherent, comprehensive, and possibly ambitious way, that is, as the general constitutional theory of the digital age. Only in this way digital constitutionalism will be able to rise to the level of complexity required by the issues it purports to address.