The Constitutionalisation of the Digital Ecosystem: Lessons from International Law

Abstract

A complex process of constitutionalisation is currently under way within contemporary society. A multiplicity of normative counteractions is emerging to address the challenges of the digital revolution. However, there is no single constitutional framer. 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 fiefs of the private actors, within the civil society. This paper examines to what extent international law scholarship may offer a useful theoretical toolbox to understand the multilevel phenomenon of constitutionalisation of the digital ecosystem. International law theory indeed already projected the notion of constitution beyond the state dimension, helping explain how the emergence of globalised problems in the digital ecosystem necessarily engenders the materialisation of a plurality of constitutional responses. It will be argued that the sense of this Gordian knot can be deciphered only if these emerging constitutional fragments are interpreted as complementary tesserae of a single mosaic. Each one surfacing with a precise mission within the constitutional dimension, each one compensating the shortcomings of the others to achieve a common aim: translating the core principles of contemporary constitutionalism in the context of the digital ecosystem. Constitutionalising the digital ecosystem is not synonymous of en bloc codification, but rather represents a gradual process of translation of principles and values. Constitutionalisation does not merely imply the imposition of new constitutional rules, but also includes a substantial bottom-up societal input. All the various scattered components of the process of constitutionalisation of the digital ecosystem equally contribute to substantiate the ideals and values of digital constitutionalism, which represents a new theoretical strand within contemporary constitutionalism aiming to adapt its core values to the needs of the digital ecosystem.

Keywords: international constitutional law, constitutionalisation, globalisation, compensatory constitutionalism, digital constitutionalism