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digital constitutionalism, constitutional theory, societal constitutionalism, legal pluralism, systems theory, liberal constitutionalism, critical theory, digital platforms, surveillance capitalism, platform economy, content moderation, Oversight Board
Abstract:
This article analyses the critical potential of digital constitutionalism using the instruments provided by societal constitutionalism. The central argument is that, in order to address the challenges posed by new technologies, digital constitutionalism should embrace a more explicitly critical discourse, questioning several assumptions of liberal, state-centred constitutional theory. Digital constitutionalism could then be framed as a theory for the digital age and as an opportunity for a reckoning with the inner contradictions of modern constitutional theory. This article has three goals. First, linking different discourses within digital constitutionalism while highlighting its own critical potential. Second, offering some preliminary proposals based on such reflection. Third, bringing digital constitutionalism closer to the broader galaxy of global constitutionalism. After the introduction, section II offers an overview of societal constitutionalism, highlighting the elements of critique toward liberal, state-centred constitutionalism. Section III reconciles societal constitutionalism and digital constitutionalism, focusing on the latter’s definition and three functionally differentiated systems: politics, economy, law. For each of them, it highlights analytical and normative gains and points at proposals to be further developed. Section IV concludes.
