Digital Constitutionalism: How Fundamental Rights are Turning Digital

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.

Digital Constitutionalism: How Fundamental Rights are Turning Digital

1. Are we witnessing a change of our constitutional norms?

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’.

2. What are the values of 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.

Listen here to the full talk by Edoardo Celeste:

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