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
Date Written: March 1, 2017
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: Suggested Citation