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Bottom-Up Constitutionalism: The Case of Net Neutrality

Transnational Legal Theory, 7 (04), pp. 524–552 doi/10.1080/20414005.2017.1300678, University of Zurich i-call Working Paper No. 2017/01.

29 Pages Posted: 5 Apr 2017 Last revised: 7 May 2017

Christoph B. Graber

University of Zurich, Faculty of Law; Berkman Klein Center for Internet and Society, Harvard University

Date Written: March 1, 2017

Abstract

Net neutrality is no longer only a battle cry of a few Internet romancers but has evolved into a key value for contemporary society that is being institutionalised as a constitutional right. With the help of sociological systems theory, this text argues that the social and legal institutionalisation of constitutional rights need to be distinguished. Commonly, constitutional rights emerge from society before they are reformulated in the legal realm. Using the example of the United States, the paper shows empirically that net neutrality is about to emerge as a new fundamental value and right. Its constitutionalisation is happening bottom-up, driven by social movements, Internet activists and advocacy groups, and further, in an interweavement of civil society dynamics with the legal system. The question is whether constitutional structures have already become identifiable. The last section discusses the relationship between social and formal constitutional structures from a legitimacy and democracy perspective.

Keywords: Transnational constitutionalism, digital networks, net neutrality, legal sociology, sociological systems theory

JEL Classification: K1

Suggested Citation

Graber, Christoph B., Bottom-Up Constitutionalism: The Case of Net Neutrality (March 1, 2017). Transnational Legal Theory, 7 (04), pp. 524–552 doi/10.1080/20414005.2017.1300678, University of Zurich i-call Working Paper No. 2017/01. . Available at SSRN: https://ssrn.com/abstract=2941985 or http://dx.doi.org/10.2139/ssrn.2941985

Christoph Graber (Contact Author)

University of Zurich, Faculty of Law ( email )

Treichlerstrasse 10
Zurich, 8032
Switzerland

HOME PAGE: http://www.rwi.uzh.ch/lehreforschung/alphabetisch/graber_en.html

Berkman Klein Center for Internet and Society, Harvard University ( email )

Harvard Law School
23 Everett, 2nd Floor
Cambridge, MA 02138
United States

HOME PAGE: https://cyber.harvard.edu/people/cgraber

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