The language of digital constitutionalism and the role of national parliaments

Abstract

Attempts to establish constitutional provisions for the Internet have been promoted since the late 1990s, mainly by the global civil society and intergovernmental organisations. More recently, a new wave of digital constitutionalism has emerged from the nation-state level, and particularly from national parliaments. In order to better understand this process, the article seeks to investigate, from both a theoretical and an empirical perspective, whether and to what extent parliamentary initiatives exhibit specific political features compared to constitutional attempts emerging from other kinds of sources. Further, the study aims to assess if drafting initiatives overlap or, rather, respond in different ways to different constitutional concerns.

Keywords

Constitutionalism digital constitutionalism digital rights fundamental rights internet bill of rights internet governance parliament

Introduction

The aspiration to an Internet constitution is nothing new. Several initiatives aiming at formalising a universal set of Internet-related rights and governance principles have already emerged between the late 1990s and the early 2000s, mainly from civil society and intergovernmental organisations. More recently, a new wave of digital constitutionalism has emerged from the nation-state level, and particularly from national parliaments. In the last few years, in fact, parliamentary assemblies all over the world have been increasingly developing sophisticated normative approaches to Internet-related issues, gaining an important – although not yet fully recognised – role on the global scenario. In some countries, such as Brazil, Philippines, Italy, New Zealand and Nigeria, parliamentary initiatives have been characterised by constitutional aims. In other words, they have been seeking to perform the fundamental functions of classical constitutionalism in the Internet sub-system, by producing acts directed to the establishment and protection of digital rights, the limitation on the exercise of power on and through digital networks, and the formalisation of governance principles for the Internet. Some authors reasonably ascribe the causes of this new ‘international constitutional momentum’ to Snowden's revelations about electronic mass-surveillance programs (Zalnieriute, 2015). That covert set of policies developing intrusive systems and operations would have not implied just a proliferation of drafting initiatives of digital constitutions, but also a qualitative innovation, stimulating a normative response by territorial authorities, such as national parliaments, which were previously absent from, or certainly not prominent in, the Internet normative landscape. At the same time, government-led mass surveillance is not the only threat posed by the development and spread of digital networks to fundamental rights and democratic governance, and it cannot explain alone the emergence of new attempts of digital constitutionalism. In fact, several constitutional concerns have been raised with regard to the Internet: from the right to access (Mathiesen, 2012) to the freedom of expression and association (see Kulesza, 2008); from privacy and data protection (Bygrave, 1998) to informational self-determination (Rouvroy and Poullet, 2009); from censorship and content filtering (Deibert et al., 2008) to data discrimination (Wu, 2003); from the governance of online platforms and algorithms (Gillespie, 2010; Pasquale, 2015) to issues concerning the impact of proprietary software and opaque architectures on the rule of law (Lessig, 1999; Santaniello, 2010), or the impact of business models adopted by Internet corporations (i.e., the so-called ‘gig economy’) on social rights and inequalities (Sargeant, 2017).¹ This whole set of challenges, and their increasing scale, is urging new and varied forms of constitutional responses. If NSA-leaks have accelerated the emergence of new actors attempting to constitutionalise the Internet, the involvement of territorial authorities in defining rights and principles for the global Internet is a process with deeper roots, and wider consequences.

In order to better understand this process, the article seeks to investigate whether and to what extent parliamentary initiatives differ from other constitutional attempts emerging from different arenas and involving different actors. In the first section, we frame the debate on digital constitutionalism into the wider discussion on the challenges posed to constitutionalism by the rise of transnational, private-led modes of governance. In particular, the article focuses on Teubner's theory of transnational societal constitutionalism and on its critics, and elaborates upon them an analytical framework to inform data collection and analysis. In the second section, the article presents an empirical comparative study on 59 documents, carried out through a statistical-textual analysis, which has the goal to highlight relevant semantic dimensions underlying the discourse on digital constitutionalism, and to identify specific features of parliamentary initiatives in relation to other kinds of authors. Finally, we interpret and discuss the findings and advance observations about the reasons and functions of parliamentary initiatives within the wider movement toward digital constitutions.

Theoretical framework

Transnational governance and the challenges to constitutionalism

Scholars agree that globalisation and the emergence of transnational phenomena, among which the Internet is an emblematic case, challenge state sovereignty and lead to the emergence of ‘new modes of governance’ (Héritier, 2002; Rosenau, 2000), where an increasingly important role is played by non-state actors voluntarily engaging in horizontal, decentralised relationships (Mayntz, 1999). These modes of ‘governance without government’ (Peters and Pierre, 1998; Rosenau and Czempiel, 1992) or at least ‘governance with government’ (Börzel, 2010), represent highly debated alternatives to top-down, hierarchical forms of governance by government and by state (Börzel and Risse, 2010; Risse, 2010). Some controversial aspects of these structures and processes concern their democratic legitimacy and their impact on fundamental rights, which are both core issues in constitutional theories.

As Grimm (2016) pointed out, the rise of transnational modes of governance brings a twofold challenge to constitutionalism. It blurs the boundaries between public and private (with private actors carrying out public functions) as well as between inside and outside the state (with states ceding part of their sovereignty to supra or extra national entities). Thus, on one hand, the involvement of private actors in public functions has proven to be a controversial trend as ‘transnational business conduct has the potential to threaten many of the concerns of international human rights law’ (Scott and Wai, 2004: 287). On the other hand, the permeability of territorial sovereignty weakens state's authority as well as the core principles of liberal democracy such as self-governance, representation and popular sovereignty (McGrew, 1997: 12).

According to some scholars, these processes lead to an inevitable decline of constitutionalism (Fried, 2000; Loughlin, 2010; Vesting, 2004). Constitutionalism, they argue, is conceivable and can work only in the context of the nation-state within which it has historically developed, since only this entity has gained both an identification with a polity able to play the role of a pouvoir constituant, and the concentration of public power that allows a comprehensive regulation. From this point of view, not only the erosion of nation-state sovereignty dramatically affects constitutionalism at the national level, but also it cannot be replaced at the international or transnational levels, where there is no single polity and pubic power is dispersed.

Other scholars have contested this stance and identified in the ‘constitutionalisation’ of international law the remedy to the weakening of national constitutions and to the challenges posed by transnational processes. This perspective emphasises the possibility of limiting, organising and controlling a pre-existing order, rather than looking for a ‘legitimatory monism and a unilateral form of law-production by a political subject’ (Möller, 2004: 335). Indeed, in some cases, international law has been replacing ‘its traditional, horizontal paradigm of the sovereign equality of states with a more vertical, constitutionalist paradigm’ (Gardbaum, 2008: 234). Thus, what is outlined here is an ‘integrated international legal order’ (De Wet, 2006) able to bind states beyond their consent in the name of a global community interest; a ‘compensatory constitutionalism’ (Peters, 2006) that completes and fills the gaps created by globalisation in domestic constitutional systems. However, theories about the constitutionalisation of international law mainly rest on international treaties and still assign a crucial, if not exclusive, role to the state. This approach seems to be ill-suited to address a multi-layered, transnational and privatised system as the Internet is.

In this regard, an alternative view could be found in Gunther Teubner's theory of global societal constitutionalism which, building upon social systems theory, grounds constitutionalisation on social dynamics of differentiation among sub-systems (such as the economy, science, transport, health, mass media and digital networks), rather than on political processes involving nation states or a unified global authority.

Global societal constitutionalism

According to Teubner, the emergence of transnational regimes makes it clear that political constitutions are unable to regulate the whole society, and that social sub-systems tend to gradually develop self-constitutional norms (Teubner, 2013). These norms have both a constitutive and a limitative function (Teubner, 2012). The constitutive function secures the autonomy of a social sub-system by establishing for it a set of specific decision-making procedures, governance principles and institutions in order to ‘liberate the potential of highly specialised dynamics’ (Teubner, 2004: 12). The limitative function, instead, defines the limits of a sub-system's operations, in order to ‘institutionalise mechanisms of self-restraint against its society-wide expansion’ (Teubner, 2004: 12). Through constitutive and limitative functions, a social sub-system delimits its own sphere of autonomous activities and, at the same time, prevents its own rationality from expanding in such a way as to endanger the autonomy of other sub-systems, the integrity of individuals and the general process of social differentiation. From this perspective, modern constitutionalism, with its classic functions of both institutionalising and limiting the autonomy of politics (Calise and Lowi, 2010; Sartori, 1995) is just one historical case of a more general process. This case concerns the political sub-system that has been constitutionalised within and against a historically determined entity, the state. According to Teubner, similar processes of autopoietic constitutionalisation also operate into other sub-systems, since political, state-centred constitutions do not fit every constitutional need in every social sub-system. Within this theoretical approach, fundamental rights play a crucial role as they guarantee ‘the multiplicity of social differentiation against swamping tendencies’ (Teubner, 2004: 12). Indeed, fundamental rights fulfil both an inclusionary and an exclusionary function (Teubner, 2011a). The inclusionary function guarantees a universal access to the specific ‘communicative media’ of that sub-system (power for politics, money for economy, knowledge for science and so on), allowing the participation in constitutive rules’ production.

The exclusionary function, instead, echoes the traditional concept of fundamental rights as legal instruments of power limitation. Nevertheless, in this systemic view, violations of fundamental rights do not stem from states or corporations per se, rather they origin from what Teubner calls ‘autonomous matrix’ (Teubner, 2011a: 209), that is an anonymous power process that expands its own operations and logics squeezing the autonomy of individuals, institutions and social processes; a rationality that reflects the totalising tendencies of autotomised sub-systems. According to Teubner, these matrices are the real counterparts of a specific kind of fundamental rights, i.e., human rights, as they concern the ‘endangerment of individual's integrity of body and mind’ (Teubner, 2011a: 211). Then, in this view, human rights are counter-institutions that embody the resistance of ‘flesh-and-blood human beings against the structural violence of the matrix’ (Teubner, 2011a: 213).

Hybrid constitutionalism

Limitative norms, in Teubner's view, are self-restraints that a subsystem spontaneously imposes upon itself. Accordingly, the safeguard of fundamental rights within a specific sub-system lies on internal dynamics. This could be seen as the rejection of any normative intervention coming from outside the social sub-system. At the same time, Teubner understands constitutionalisation as a process of ‘structural coupling between sub-system and law’ (Teubner, 2004: 20), where autopoietic, informal norms and formalised, binding laws combine with and influence each other (Teubner, 2011b: 249). Notwithstanding the recognition of the relevance of formal law and politics, Teubner's societal constitutionalism mainly refers to a constitutionalisation ‘beyond the nation state’ (Teubner, 2012) made of constitutions evolving ‘in transnational political processes outside the nation state and, simultaneously, […] outside international politics in the global society's “private” sectors’ (Teubner, 2013: 45). Consequently, the role of nation-state actors is generally underplayed in Teubner's work, and this is the main issue upon which criticism of Teubner's stances has been advanced. Verschraegen, for example, maintains that:

it seems unlikely that purely informal constitutionality […] will be significant enough to secure access rights (to medication, education, the internet, etc.) and prevent further dangers to the integrity of institutions and persons in regions in which statehood is absent or limited. (Verschraegen, 2011: 227)

Verschraegen supports a different concept in Teubner's work, that of ‘hybrid constitutionalisation’, explained by Teubner in the following way:

What is required is a form of ‘hybrid constitutionalisation’: the exercise of state power, the enforcement of legal rules, the strong influence of social countervailing power from other spheres – media, public discussion, spontaneous protest, intellectuals, social movements, NGOs, trade unions – must apply such massive external pressure to the expansionist function systems that their self-limitations become truly effective. […] The challenge is to combine external – political, legal and social – impulses with internal self-limitation. (Teubner, 2010: 20, 21)

The concept of ‘hybrid constitutionalisation’ allows the connection and holding together of different kinds of constitutional norms and functions with a heterogeneous cluster of actors, and it encourages the investigation of the specific contribution of each type of actors to the development of the digital constitutionalism discourse. For this reason, this concept seems particularly suitable in order to take into account those types of actors, such as national parliaments, which have been underestimated in previous studies.

Empirical analysis

Working hypothesis, definitions and methodology

Working hypothesis

After having contextualised the project of an Internet constitution within a wider set of challenges posed by transnational private-led modes of governance to modern constitutionalism, in the next paragraphs, we conduct in-depth empirical analysis on a set of documents including declarations, charters and laws concerning Internet-related rights and governance principles.

Our working hypothesis (H) is that the hybridisation of the discourse on digital constitutionalism, which has come to involve different kinds of actors, implies a sort of ‘functional differentiation’, where each actor tends to develop a particular focus on the constitutional function that best reflects its concerns and points of view. This hypothesis can be further articulated into two sub-hypotheses:

H1: Different authors of analysed documents (civil society organisations, epistemic communities, international organisations, national governments, multi-stakeholder fora and parliaments) tend to develop peculiar approaches to digital constitutionalism;

H2: National parliaments are particularly suited to develop limitative rules and in particular exclusionary rights; since their historical development has been inextricably intertwined with the attempt to establish limitations on the exercise of power.

We explore these hypotheses by analysing documents’ language, understood as a system of symbols and meanings that plays a key role in the construction and transformation of social and political reality (Berger and Luckmann, 1966; Fischer and Forester, 1993; Schmidt, 2010). After all, constitutional theory itself has recognised that ‘the creation of a legitimate constitutional regime depends on a prior commitment to employ constitutional language, and that such a commitment is both the necessary and the sufficient condition for constitution making’ (Schweber, 2007: 7). In this view, ‘participating in the constitutional discourse and even creating a constitutional regime itself mean the acceptance of a very specific language with its key words and conceptualisation’ (Jakab, 2016: 3). Thus, we can distinguish ‘key elements of constitutional vocabulary’, which should be viewed as ‘historical responses to different social challenges’ (Jakab, 2016: 85), reflecting the political philosophy, concerns and points of view of the actors who promoted them. Consequently, the language used by several kinds of actors in their drafting exercises of an Internet constitution can be taken as a gauge of their specific contributions to the constitutional discourse, highlighting tensions and dimensions that structure such a process.

Case selection

In order to select documents to be included into our corpus of analysis, we adopted the working definition of digital constitutionalism developed by Gill, Redeker and Gasser as: ‘a set of otherwise divergent initiatives; that each one seeks to engage with political rights, governance norms, and limitations on the exercise of power on the Internet in some fundamental way’ (Gill et al., 2015: 5). The corpus of the analysis is composed of 59 documents, collected through a literature review and web searches, and sifted according to the following three criteria:

The document has to perform at least one of the typical functions of a constitution: protecting rights, limiting power or establishing governance norms and principles (this is the reason why we excluded some documents expressing just policy concerns rather than constitutional aims);

The document has to address at least two different rights or governance principles (for this reason, we excluded issue-specific charters and declarations);

The document has to be drafted by a collective subject (for this reason, we excluded declarations proposed by individual sources).²

Methods

This work investigates the language of digital constitutionalism resorting to a statistical textual analysis, the Lexical Correspondence Analysis (LCA). This technique applies factorial correspondence analysis to a textual corpus, and detects the most specific lexical forms for each text analysed or for each category employed to group the texts. More specifically, LCA allows synthesising the information of the corpus and identifying latent semantic dimensions expressing the relations between lexical forms (Benzécri, 1992). For each pole of a factor, it is possible to distinguish a group of lexical forms that give a significant contribution to the construction of the factor itself and that define the substantive meaning of each dimension. LCA returns a multidimensional factorial space where lexical forms, texts or categories are represented as points with their own factorial coordinates. Proximity among points in the factorial space is equivalent to semantic proximity, and indicates association among them within the corpus (Di Franco, 2011; Lebart and Salem, 1988).

In this study, LCA is employed to reconstruct the semantic dimensions underlying the discourse on digital constitutionalism, and to verify if specific actors produce specific vocabularies reflecting particular constitutional concerns and functions.³ In order to provide a more in depth interpretation of data, the quantitative analysis has been combined with a qualitative reading of the whole texts, as well as of the most relevant terms pointed out by statistics, considering the discursive context within which they are placed.

Findings

General attributes of the corpus

The corpus is composed of 59 documents, which have been drafted by different proponents belonging to eight types of actors: civil society (22), intergovernmental organisations (15), multistakeholder fora (5), parliaments (5), political parties (2), private actors (4), technical and academic community (3). The corpus is made of 159,581 occurrences of 8,365 different words, and presents a low lexical richness index (type-token ratio) that equals 5%, highlighting the presence of recurrences and suggesting the use of a specialised language. Thus, the corpus satisfies the criteria to be considered suitable for statistical treatment of data (Bolasco, 1999; Lebart and Salem, 1988).

LCA: Factors

The LCA allowed us to identify two main dimensions (corresponding to the first two factors, expressing the 17.17% of total inertia⁴) of the discourse on digital constitutionalism, and enabled us to map terms and documents on a bi-dimensional plan (Figure 1).

Factor 1 (x-axis) resounds Teubner's distinction between constitutive and limitative functions. Indeed, the positive pole (limitative functions) presents several terms which refer to those limits established in order to ensure that online courses of action do not endanger institutions, persons and individuals as well as the Internet sub-system itself.

Particularly, in this case, the limits to the Internet sub-system's operations are established through the language of hard law and enforcement, with terms such as violation, imprisonment, fine, punish, amend, penalty, rule, unauthorise, unlawful, court, lawful, cyberdefence, cyberintelligence, cybercrime, prohibition, authorisation, violation, etc. The negative pole (constitutive functions), in its turn, is characterised by lemmas related to social norms, fundamental rules, governance principles and institutions, which ensure the autonomy of the Internet sub-system (governance, society, stakeholder, knowledge, participation, inclusive, multistakeholder, democracy, dialogue, country, community, international, agenda, regional, global, declaration, cooperation, intergovernmental, consensus, multilateral, universality, information society, WSIS, Internet governance, Internet Governance Forum, etc.).

Factor 2 (y-axis) echoes the tension between ‘anonymous matrices’ and ‘human rights’ described by Teubner. Indeed, on the positive pole (anonymous matrix), we can find a series of terms referring to the structural dimension of the Internet, concerning its technological, infrastructural and institutional facets (ICT, network, telecommunication, implantation, device, plant, equipment, computer, infrastructure, finance, investment, secretary, plan, program, policy, outcome). The negative pole, on the contrary, gathers words closely related to the protection of human rights on the Internet (right, human rights, personal data, user, individual, protect, surveillance, freedom of expression, freedom, Internet rights, data protection, collect, filter, profile, respect, restriction, disclosure, etc.)

LCA: Quadrants

We can interpret the four quadrants resulting from the intersection of the two dimensions on a Cartesian plane as follows:

The upper-right quadrant results by the intersection between of the ‘autonomous matrix’ and the ‘limitative function’ poles, and it identifies an area of ‘Defensive Norms’, which are meant to protect the Internet sub-system as a whole. Its substantive meaning is defined by terms that refer to policy and regulation (govern, regulation, rule, plan, provision, department, office, etc.) of digital technologies (ICT, telecommunication, network, code, etc.), and particularly to law enforcement issues (imprisonment, intellectual property, penalty, punish, prohibition, violation, seizure, etc.) and security concerns (cybercrime, terrorism, protection of children, etc.). These norms discipline the conduct of actors in order to preserve the boundaries and the integrity of the Internet sub-system. This function is clear in the case of norms aiming at ensuring the security, stability and reliability of the Internet. Nevertheless, such a function could also be observed for what concern the use of lemmas such as child protection, property and hacking. In all these cases, norms protect actors as Internet users, or investors, because they are part of the Internet social sub-system and their trust is a fundamental component for the functioning and development of the Internet. On the contrary, these norms do not protect the autonomous sphere of individuals as threatened by the systemic logic.

On the upper-left quadrant, the combination of the ‘constitutive function’ pole with the ‘autonomous matrix’ pole defines an area of ‘Institutive Norms’. Most of the terms we find in this space refer to the institutionalisation of governance mechanisms and self-organising processes of the Internet sub-system (governance, stakeholder, inclusive, multistakeholder, community, agenda, cooperation, intergovernmental, consensus, multilateral, universality, information society, WSIS, Internet governance, Internet Governance Forum, capacity building, digital divide, multilingualism, civil society, international organisation, management, etc.). These terms are used within discourses that pursue systemic goals of further expansion and development of the Internet. For example, the lemma ‘digital divide’, which could be theoretically referred to as an inclusionary issue, is rather often addressed by documents as a necessary condition to allow further Internet development.

The lower-left quadrant, matching ‘constitutive functions’ and ‘human rights’ poles, define an area that corresponds to Teubner's ‘Inclusionary Rights’. Indeed, in this space we can find terms related to:

democratic and participatory processes (democracy, participation, people, equality);

fundamental political rights that must be considered essential even within the Internet subsystem in order to allow people to influence decision-making processes in the digital realm (freedom of expression, freedom of association, association, opinion, freedom, minorities);

a free and not discriminatory access to the Internet (Internet access, public access, accessibility, neutrality, net neutrality);

the set of preconditions that enable people to have informed participation in the information society (digital literacy, right to education, right to knowledge).

In sum, all these facets refer to the building of an active net-citizenship capable of participating in the self-production of rules and structures of the Internet social sub-system.

Finally, the lower-right quadrant combines the ‘limitative functions’ and ‘human rights’ poles resulting in an area that could be referred to what Teubner calls ‘Exclusionary Rights’. It refers to the protection of the autonomy and integrity of individuals, persons and institutions from the expansionist tendencies of sub-systems and from their operations. This protective function is pointed out by terms such as access, anonymity, block, collect, data protection, filter, individual, personal data, profile, protect, protection, right to access, safeguard and surveillance. Such terms appear within discourses involving the intervention of public authority or some binding provision so as to guarantee the effectiveness of Internet rights (court, lawful, legal, obligation, public authority). Also a lemma such as ‘right to access’, which should be expected to be in the inclusionary rights quadrant, is often used within discourses related to the limitation of the faculty of sub-system's operators to prevent Internet access to individuals, persons and institutions.

LCA: Proponents' positions

For what concerns the distribution of different kinds of authors within the factorial space (see Figure 2), we can observe that different types of actors tend to be collocated in specific positions of the factorial plan.

Most civil society charters are placed on the ‘Human Rights’ pole, and particularly in the ‘Inclusionary Rights’ quadrant, where they are the most numerous group. Intergovernmental documents are mainly placed on the ‘Constitutive Function’ pole, and more precisely in the ‘Institutive Norms’ quadrant that is almost monopolised by them. The Council of Europe represents a relevant exception since all its documents are on the ‘Human Rights’ semi-plan. Also multistakeholder declarations tend to be placed on the ‘Constitutive Function’ pole, even if they are not gathered in a specific quadrant. All the four texts drafted by private actors are situated on the ‘Human Rights’ pole, and three of them in the ‘Exclusionary Rights’ quadrant. Further, it should be noted that two of these documents, the ‘Global Government Surveillance Reform’ and the ‘Informed Societies: Towards a Code of Conduct for Government Leaders’ are attempts of the private sector to influence and limit governments rather than the private sector itself. Finally, all the five documents drafted by parliaments are placed along the ‘Limitative Function’ pole. Four of them in the ‘Exclusionary Rights’ quadrant, while the Magna Carta for Philippine Internet Freedom is the only document in the ‘Defensive Norms’ quadrant, which focuses on law enforcement.

The other categories of proponents are instead dispersed among different quadrants: the three texts drafted by governments are placed one in the institutive, one in the inclusionary and one in the exclusionary quadrants; the two drafts by political parties are one in the inclusionary and one in the exclusionary quadrant; the three ones by technical and academic communities are placed two in the ‘Institutive Norms’ quadrant and one in the ‘Exclusionary Rights’ quadrant.

Discussion and conclusion

The empirical analysis confirms the hypotheses according to which: (1) the hybridisation of the discourse on digital constitutionalism has led to a ‘functional differentiation’ among the actors involved; and (2) in this scenario parliaments have been specialising in the development of ‘Limitative Norms’ and ‘Exclusionary Rights’. Indeed, findings show that four types of actors tend to be placed into specific quadrants, each one contributing to the discourse articulating a specific constitutional function. Most of civil society's documents are placed in the ‘Inclusionary Rights’ quadrant (and all toward the ‘human rights’ pole); intergovernmental organisations are mainly placed in the ‘Institutive Norms’ quadrant; parliaments and private actors in the ‘Exclusionary Rights’ quadrant. The co-presence of private actors and parliaments in the same quadrant may seem unexpected, but it is fully consistent with the concept of hybrid constitutionalism, where constitutional pressure is exerted both from inside the social sub-system (by private actors), and from outside (by political authorities). From this point of view, the Magna Carta for Philippine Internet Freedoms, which is the only document placed in what we have called the ‘Defensive Norms’ quadrant, represents the most evident attempt to influence Internet social norms from outside, and precisely from the side of the legal system. Such results lead to further considerations about the process of constitutionalisation of digital networks.

As Teubner has explained:

A constitution is always bridging two real ongoing processes: from the viewpoint of law it is the production of legal norms, which is interwoven with fundamental structures of the social systems; from the viewpoint of the constituted social system it is the production of fundamental structures of the social system which at the same time inform the law and are in turn normed by the law. The important effect of structural linkage is that it restrains both – the legal process and the social process – in their possibilities of influence. (Teubner, 2004: 20)

In the case of the Internet social system, the fundamental structures correspond to its software and architectures, as Teubner explicitly states mentioning Lessig's concept ‘code is law’ (Lessig, 1999). Consequently, digital constitutionalism has to be interpreted as the interplay between the social process of network design and the legal process of Internet-related law-making. Both these processes may be influenced by the political process of Internet-constitution drafting, which serves as a discursive linkage between the social and the legal processes. The empirical analysis of this discursive linkage has highlighted that recent parliamentary initiatives are introducing relevant novelties into the discourse on digital constitutionalism. Notwithstanding also other actors recommend limitative norms, parliaments’ language do not completely overlap with that of previous initiatives, rather it is complementing, or hybridising, digital constitutionalism by trying to anchor it to formal, legal processes.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

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