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What is digital constitutionalism?

31 July 2018

Over the past few decades, the incessant development of digital technology and its disruptive impact on contemporary society have affected the relative equilibrium of the constitutional ecosystem. A series of normative counteractions are emerging to face the challenges of digital technology and restore a condition of relative equilibrium. Edoardo Celeste argues that digital constitutionalism is an appealing notion to explain the current constitutional moment. This blog post provides a definition of digital constitutionalism, identifies its aims and clarifies its relationship with the notion of constitutionalisation of the digital environment. It eventually suggests that the concept of digital constitutionalism has also a programmatic value. It spurs us on to analyse which changes digital technology has produced so far in our society, to reflect on which principles we want to maintain, and to speculate on which solutions we could envisage for the future.

Read further: Mapping the Constitutional Response to Digital Technology’s Challenges

On the one hand, we have many more possibilities to exercise our fundamental rights, such as freedom of expression. On the other hand, digital society is characterised by new threats. Still, we are not surrendering to this change. A series of normative counteractions are emerging to face the challenges of digital technology and restore a condition of relative equilibrium. In this context, I argue that digital constitutionalism is an appealing notion to explain the current constitutional moment. However, what is digital constitutionalism?

A good shorthand

Short, easy to remember, evocative. But also a bit of a tongue-twister, pretentious and dramatically nebulous. I was desperately in search of a shorthand for my doctoral thesis and, after repeated failures in elevator pitches and alike, I eventually discovered this expression in the existing literature. Digital constitutionalism was employed in several disciplines, such as communication studies and political science, and even in some legal branches. However, this notion was always used with a slightly different and, at first insight, incompatible meaning. I also noticed that a constitutional law account was missing. Subsequently, further analysing the existing scholarship on digital constitutionalism, I realised that a solution to reconcile those positions could be found. The aim of this post is to condense my thoughts on the topic. If you are interested in this matter, you will find a more extensive discussion in my HIIG working paper.

A declination of modern constitutionalism

The first difficult task was to provide a definition of digital constitutionalism. In the existing literature this notion was simply used without defining it or, sometimes, it was defined in a functional way. I therefore started deconstructing this expression. ‘Digital’ is the adjective used to refer to information technology. ‘Constitutionalism’ denotes the ideology corresponding to a system of government, called constitutional, that emerged in the last years of the XVIII century to replace absolute monarchies and is still the dominant model in many countries. Therefore, in light of these definitions, putting ‘digital’ besides ‘constitutionalism’ has two major implications. Firstly, it allows us to understand that we are talking about the modern, and not the historical, conception of constitutionalism. Secondly, one can deduce that here ‘digital’ does not refer to ‘constitutionalism’, but it is rather an adverbial conveying the idea that this constitutionalism is somehow related to the digital environment. In conclusion, digital constitutionalism itself seems to be a shorthand denoting a declination of modern constitutionalism which involves the digital environment.

The aim of digital constitutionalism

So far, we have only defined digital constitutionalism in relation to another concept, modern constitutionalism. The next step will be to stop playing with these Russian dolls and really understand what digital constitutionalism could mean in practice. The reference to modern constitutionalism is useful because it represents our starting point. Modern constitutionalism is the ideology that promotes a series of norms and institutions for the well-functioning of our society. More precisely, its purpose is to guarantee an equilibrium among all the actors involved as well as the protection of a set of guarantees in favour of all individuals. Therefore, the idea of digital constitutionalism suggests us that this function is played in relation to the digital environment. This statement can be interpreted in different ways and is intentionally left vague because it reflects the plurality of aims of digital constitutionalism. The latter could seek to reduce the unbalance among the actors of the digital society as well as to protect the rights of Internet users, just to make a couple of examples. To put it simply, in order to understand the aim of digital constitutionalism we need to think about modern constitutionalism and translate its purposes in the digital society.

Constitutionalism vs. constitutionalisation

However, we do not need to forget that digital constitutionalism is an ideology. Of course, not an ideology in the Marxist sense, not a set of deceiving beliefs. Rather, in a more neutral way, a group of ideals, principles, values. This is an important aspect to underline because there is the risk to confuse digital constitutionalism with its outputs. For example, a legislation which defends the rights of Internet users is not digital constitutionalism, but it is certainly one of its output. Digital constitutionalism identifies the set of values that have led to the adoption of this legislation. In this way, it is possible to distinguish between the level of ideals, values and principles, which corresponds to digital constitutionalism; its outputs, such as a new legislation; and the process which led to the production of that output, which we can call constitutionalisation. Constitutionalisation is therefore the dynamic aspect of constitutionalism; constitutionalism in action, one could say.

A concept to explain the current constitutional moment

Thanks – you may think – this is very nice, but it is a bit too abstract. What is this concept useful for? I argue that digital constitutionalism is a notion which allows us to identify one of the main directions of current constitutionalism. Over the past few decades, digital technology has transformed our society. Individuals can now enjoy unprecedented possibilities of exercising their fundamental rights, but, at the same time, new threats have emerged. Digital constitutionalism represents the set of traditional constitutional values which have been adapted to face the new challenges of the digital environment. Digital constitutionalism requires all stakeholders to react against the drawbacks of digital technology and, at the same time, provides the ideals, values and principles which should guide this constitutional response.

A value to be cultivated for a better future

The idea of digital constitutionalism is not purely descriptive, but has also a programmatic value. It spurs us on to analyse which changes digital technology has produced so far in our society, to reflect on which principles we want to maintain, and to speculate on which solutions we could envisage for the future. If we want to have a democratic system, and all the series of guarantees we now possess also in the next future, we need to react to the challenges of digital technology, identifying our leading constitutional values and understanding how to translate them in the digital society. In this sense, digital constitutionalism is the projection of an ancient challenge, initiated by our ancestors centuries ago. Constitutionalism has always advocated for a system of balances and guarantees, and I strongly believe that its values should represent our lighthouse also in the digital society.

This post represents the view of the author and does not necessarily represent the view of the institute itself. For more information about the topics of these articles and associated research projects, please contact info@hiig.de.

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