Digital constitutionalism Assignment | Essay Help Services

digital constitutionalism is a relatively new concept. content moderation on social platforms is problematic, as we do not know how platforms are managing their content: hate speech. debate between freedom of information vs. censorship platforms have evolved and now have gained constitutional momentum. They have power concentrated in their hands, which is what is effectively an example of societal constitutionalism as regarded by Teubner. Habermas, Celeste, Suzor, Graber, Keller, Zittrain, Teubner (relevant authors)

Gunther Teubner
Societal Constitutionalism:
Alternatives to State-centred Constitutional Theory
Storrs Lectures 2003/04 Yale Law School.
I. A Right of Access to Cyberspace?
A group of globalisation critics are suing a commercial host provider of the
Internet. They are appealing to the principle of free speech in order to enforce
their alleged right of access judicially. The host provider who offers content
providers the possibility on its computers to set up websites, had long got caught
up in the tangles of state attorneys and private collective actions because some
of the websites contained child pornography and Nazi propaganda. The decisive
factor came with the decision of the Paris Tribunal de Grande Instance, Order of
20 November 2000, ordering Yahoo Inc to bar access by French users to
auctions of Nazi objects1 The final blow came with the new trends toward publicprivate
co-regulation which exempts providers from liability when they cooperate
with state agencies.2The provider thereupon electronically barred access to all
websites where it regarded the risk of criminal or civil actions as too high. The
bar also affected political groups rated by Compuserve as politically radical or too
close to violent protest campaigns. In a civil action, these groups are now
seeking to compel access to the host provider.
The case ties together in a single focal point a range of fundamental problems
that the digitisation of communication is throwing up anew. It is not just technical
legal questions of compulsory contracting for private providers, a right of access
to internet institutions, the validity and implementation of national norms in the
transnational internet, or the third party effect of fundamental rights in cyberspace
that are up for debate.3 Rather, we are faced with the more fundamental
1 TGI Paris, Ordonnance de réferé du 20 nov. 2000 at
http://www.juriscom.net/txt/jurisfr/cti/tgiparis20001120.htm. This decision confirmed the earlier
ruling of May 22, 2000 ordering Yahoo! to block access to material that was judged illegal to
display in France under Article R. 645-1 du Code Pénal. See TGI Paris, Ordonnance de réferé du
22 mai 2000 at http://222.juriscom.net/txt/jurisfr/cti/tgiparis20000522.htm.
2 USA: 1990 Protection of Children from Sexual Predators Act, Section 42 U.S.C. § 13032; 1998
Digital Millenium Copyright Act, 17 U.S.C. 512 (C). Europe: Directive 2000/31.
3 These issues, particularly problems of free speech in the internet, are discussed in B Frydman
and I Rorive, “Regulating Internet Content through Intermediaries in Europe and the USA”, 23
Zeitschrift für Rechtssoziologie 2002, 41-59; B Holznagel, “Meinungsfreiheit oder Free Speech
im Internet: Unterschiedliche Grenzen tolerierbarer Meinungsäußerungen in den USA und
Deutschland”, 9 Archiv für Presserecht 2002, 128-133; B Holznagel, “Responsibility for Harmful
and Illegal Content as well as Free Speech on the Internet in the United States of America and
Germany” in C Engel (ed.), Governance of Global Networks in the Light of Differing Local Values
(Baden-Baden, Nomos, 2000); B Holznagel, “Responsibility for Harmful and Illegal Content as
well as Free Speech on the Internet in the United States of America and Germany” in C Engel
(ed.), Governance of Global Networks in the Light of Differing Local Values (Baden-Baden,
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question of a universal political right of access to digital communication.
Ultimately, problems of exclusion from global communication processes are
raised. In the background lurks the theoretical question whether it follows from
the evolutionary dynamics of functional differentiation that the various binary
codes of the world systems are subordinate to the one difference of
inclusion/exclusion.4 Will inclusion/exclusion become the meta-code of the 21st
century, mediating all other codes, but at the same time undermining functional
differentiation itself and dominating other social-political problems through the
exclusion of entire population groups?
From the many problems our harmless legal case raises, I wish to single out one
question: how is constitutional theory to respond to the challenge arising from the
three current major trends—digitisation, privatisation and globalisation—for the
inclusion/exclusion problem? That is how today’s “constitutional question” ought
to be formulated, by contrast with the 18th and 19th century question of the
constitution of nation-states. While that had to do with disciplining repressive
political power by law, the point today is to discipline quite different social
dynamics. This is in the first place another question for theory. Will constitutional
theory manage to generalise its nation-state tradition in contemporary terms and
re-specify it? Can we, then, make the tradition of the nation-state constitution
fruitful, while at the same time changing it to let it do justice to the new
phenomena of digitisation, privatisation and globalisation?5
II. Reactions in Constitutional Theory
Contemporary generalisation and re-specification—this is a problem where
several ambitious attempts to postulate a universal world constitution beyond the
nation-state have laboured away at in vain. This is true of legal efforts to see the
United Nations Charter as the constitutional law of the “international community”
put into force by a world sovereign and legitimising the exercise of global political
power.6 It is, however, also true of a number of philosophical endeavours in the
Kantian tradition to conceive a universal world constitution where the introduction
of new political institutions and procedures of global statehood is supposed to be
Nomos, 2000); DJ Goldstone, “A Funny Thing Happened on the Way to the Cyber Forum: Public
vs. Private in Cyberspace Speech”, 69 Colorado Law Review 1998, 1-70.
4 For inclusion/exclusion in global society, N Luhmann, Das Recht der Gesellschaft (Frankfurt,
Suhrkamp, 1993) 582ff.
5 On the use of historical experience for the globalisation of law, P Zumbansen, “Spiegelungen
von Staat und Gesellschaft: Governance-Erfahrungen in der Globalisierungsdebatte” in M.
Anderheiden, S Huster and S Kirste (ed.), Globalisierung als Problem von Gerechtigkeit und
Steuerungsfähigkeit des Rechts: Vorträge der 8. Tagung des jungen Forums Rechtsphilosophie,
20. und 21. September 2000 in Heidelberg (Stuttgart, Steiner, 2001).
6 Explicitly B Fassbender, “The United Nations Charter as Constitution of the International
Community”, 37 Columbia Journal of Transnational Law 1998, 529- 619; P Dupuy, “The
Constitutional Dimension of the Charter of the United Nations Revisited”, 1 Max Planck Yearbook
of United Nations Law 1997, 1 – 33.
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used to set up a federative centre and forum of common world internal policy.7 All
attempts can be reproached with not generalising the traditional concept of the
constitution sufficiently for today’s circumstances, nor re-specifying it carefully
enough, but instead uncritically transferring nation-state circumstances to world
society. In particular, the changes the concept of constitution would have to go
through in relation to sovereignty, organised collectivity, hierarchies of decision,
organised aggregation of interests and democratic legitimacy, if no equivalent of
the state is to be found at world level.8
There is more realism in attempts to dissociate state and constitution clearly, and
explicitly conceive of a global constitution without a world state. This innovative
construction has most recently been exhaustively deployed in the debate on the
European constitution, but at world level too, the attempt is made to track down
constitutional elements in the current process of an international politics that has
no central collective actor as subject/object of a constitution.9 Especially the
attempt to see the co-existence of nation-states as a segmental second-order
differentiation of world politics and their interaction as a spontaneous order of a
secondary nature, a “world constitution of freedom”, lend a world constitution respecified
in this way as a structural link between decentralised world politics and
law quite a different shape.10 Yet here too the generalisation does not go far
enough to do justice to the decentralisation of politics in world society. In
particular, this sort of spontaneous constitution of states has to contend with the
problem of whether and how non-state actors and non-state regimes can be
incorporated in the international process of constitutionalization.
This shortcoming is in turn the starting point for positions that explicitly transform
actors not traditionally recognised as subjects of international law into
constitutional subjects.11 These actors are on the one hand international
7 O Höffe, “Königliche Völker”: Zu Kants kosmopolitischer Rechts- und Friedenstheorie (Frankfurt,
Suhrkamp, 2001); J Habermas, Die postnationale Konstellation: Politische Essays (Frankfurt,
Suhrkamp, 1998); J Rawls, “The Law of Peoples“ in S Shute and S Hurley (ed.), On Human
Rights: The Oxford Amnesty Lectures (New York, Basic Books, 1993).
8 A brilliant critique of the “great normative phantasmogories” of a political world society offers A
Schütz, “The Twilight of the Global Polis: On Losing Paradigms, Environing Systems, and
Observing World Society” in G Teubner (ed.), Global Law Without A State (Aldershot, Dartmouth
Gower, 1997).
9 On Europe C Joerges, Y Meny and JHH Weiler (ed.) What Kind of Constitution for What Kind of
Polity? Responses to Joschka Fischer (Florence: Robert Schuman Centre, 2000) Robert
Schuman Centre, Firenze 2000); U Di Fabio, “Eine europäische Charta”, 55 Juristenzeitung
2000, 737-743; A v Bogdandy, “Supranationaler Föderalismus als Wirklichkeit und Idee einer
neuen Herrschaftsform: Zur Gestalt der Europäischen Union nach Amsterdam” (Baden-Baden,
Nomos, 1999); on the constitution of the international community, R Uerpmann, “Internationales
Verfassungsrecht”, 56 Juristenzeitung 2001, 565-573; CTomuschat, “Obligations Arising for
States Without or Against Their Will”, Recueil des Cours 1993, 195-374.
10 S Oeter, “Internationale Organisation oder Weltföderation? Die organisierte
Staatengemeinschaft und das Verlangen nach einer ‘Verfassung der Freiheit'” in H Brunkhorst
(ed.), Globalisierung und Demokratie: Wirtschaft, Recht, Medien (Frankfurt, Suhrkamp, 2000).
11 Important steps toward a constitutional pluralism on the global level, N Walker, “The Idea of
Constitutional Pluralism”, 65 Modern Law Review 2002, 317-359; C Walter, “Constitutionalizing
4
organisations, multinational enterprises, international trade unions, interest
groups and non-governmental organisations as participants in global decisionmaking,
and on the other individuals, only hesitantly and marginally accepted by
international law as legal subjects, as the bearers of fundamental and human
rights.12 Implicitly, such pluralist conceptions recognise that the processes of
digitisation and global networking are decisively carried by non-state actors, the
existence of which a world constitution too would have to take cognisance of.
The question is, however, whether a merely personal extension of a
constitutionalisation process is still adequate, and whether quite different
structures and processes ought not to be included.
Finally, yet a further step is taken by ideas of the horizontal effect of fundamental
rights, no longer asserting fundamental rights-positions exclusively against
political bodies, but also against social institutions, in particular vis-à-vis centres
of economic power. Nation states are supposed to have corresponding protective
obligations imposed upon them, in order to combat threats to fundamental rights
in areas remote from the state13. Even if this debate is only at the very
beginnings in the international sphere, in view of the massive human rights
infringements by non-state actors it points out the necessity for an extension of
constitutionalism beyond purely intergovernmental relations.14
III. The Thesis: Constitutionalisation without the State.
These four concepts of a global constitution constitute quite dramatic extensions
from the constitutional tradition, yet ultimately they cannot free themselves of the
fascination of the nation-state architecture, but merely seek to compensate for its
obvious inadequacies with all sorts of patches, add-ons, re-buildings,
excavations and decorative facades— altogether merely complexifying the
construction instead of building ex novo. But the design error already lies in the
(Inter)national Governance: Possibilities for and Limits to the Development of an International
Constitutional Law”, 44 German Yearbook of International Law 2001, 170-201.
12 A Fischer-Lescano, “Globalverfassung: Verfassung der Weltgesellschaft”, 88 Archiv für Rechtsund
Sozialphilosophie 2002, 349-378.
13 M Ruffert, Vorrang der Verfassung und Eigenständigkeit des Privatrechts: Eine
verfassungsrechtliche Untersuchung zur Privatrechtswirkung des Grundgesetzes (Tübingen,
Mohr Siebeck, 2001); HD Jarass, “ Die Grundrechte: Abwehrrechte und objektive
Grundsatznormen. Objektive Grundrechtsgehalte, insbes. Schutzpflichten und
privatrechtsgestaltende Wirkung” in P Badura and H Dreier (ed.), Festschrift 50 Jahre
Bundesverfassungsgericht, (Tübingen, Mohr Siebeck, 2001); K Preedy, “Fundamental Rights and
Private Acts: Horizontal Direct or Indirect Effect? – A Comment”, European Review of Private Law
2000,125-133.
14 For the European context, D Schindler, Die Kollision von Grundfreiheiten und
Gemeinschaftsgrundrechten: Entwurf eines Kollisionsmodells unter Zusammenführung der
Schutzpflichten- und Drittwirkungslehre (Berlin, Duncker-Humblot, 2001); A Clapham, Human
Rights in the Private Sphere (Oxford, Oxford University Press, 1996); J Paust, “Human Rights
Responsibilities of Private Corporations”, 35 Vanderbilt Journal of Transnational Law 2002, 801-
825; P Muchlinski, “Human Rights and Multinationals: Is There a Problem?”, 77 International
Affairs 2001, 31-48.
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state-centring of the constitution.15 For all the courage to rethink the constitution
in a direction of political globality, in the light of an intergovernmental process,
through the inclusion of actors in society, and in terms of horizontal effects of
fundamental rights, they nonetheless remain stuck at seeing the constitution as
tied to state-political action.
At the same time they are tied to a strange distinction, between the poles of
which they continually oscillate.16 While the constitution ought institutionally to
confine itself to political processes, at the same time it ought to constitute the
whole of society. The political organisation of the state apparatus is supposed to
represent the constitution for the nation. This oscillation between the political
and the societal is transferred to world society today. If one can only manage to
constitutionalise the interaction of state-political institutions in international
relations, then that ought to be enough to produce a constitution appropriate to
world society. If this distinction was already problematic in the nation-state, then
in world society it has once and for all been overtaken. But what is there in the
blind-spot of the distinction? An all-embracing constitution for global society? A
network of national and transnational constitutions? An autonomous legal
constitution? Or what?
If in seeking to illuminate the blind-spot one abandons the state centring of the
constitution, then the real possibilities of constitutionalisation without the state
become visible. For constitutional theorists this amounts to breaking a taboo. A
constitution without a state is for them at best a utopia, but a poor one into the
bargain.17 But this formula is definitely not an abstract normative demand for
remote, uncertain futures, but an assertion of a real trend that can today be
observed on a world-wide scale. The thesis is: emergence of a multiplicity of civil
constitutions. The constitution of world society comes about not exclusively in the
representative institutions of international politics, nor can it take place in a
unitary global constitution overlying all areas of society, but emerges
incrementally in the constitutionalisation of a multiplicity of autonomous
subsystems of world society.18
The raging battles in the internet about cyberanarchy, governmental regulation
and commercialisation front-rank constitutional policy conflicts, the chaotic
course of which is gradually showing us the shape of nothing other than the
organisational law of a digital constitution.19 It is no coincidence that the
15 N Walker (above n. 11).
16 For this argument N Luhmann, Die Politik der Gesellschaft (Frankfurt, Suhrkamp, 2000)
201, 207f., 217.
17 D Grimm, “Braucht Europa eine Verfassung?”, 50 Juristenzeitung 1995, 581-591.
18 International law scholars who come close to this position are Walker (above n. 11) and Walter
(above n. 11) 188ff. It remains to be seen, however, whether they accept a radical legal pluralism
which embraces the notion of constitutionalization without the state, when it comes to “private”
governance regimes.
19 The debate between L Lessig, Code and Other Laws of Cyberspace (New York, Basic Books,
1999) and D Johnson and D Post, “The New ‘Civic Virtue’ of the Internet: A Complex System
6
famous/notorious Declaration of the Independence of Cyberspace uses the
constitutional rhetoric of the founding fathers, telling the
„Governments of the Industrial World, you weary giants of flesh and
steel … ,the global social space we are building to be naturally
independent of the tyrannies you seek to impose on us. You have
no moral right to rule us nor do you possess any methods of
enforcement we have true reason to fear“.20
One of the fundamental rights problems of the digital constitution presents itself
in our legal case. Whether a right to access vis-à-vis a host provider for the
internet exists or not is to be decided on the basis of the inclusion principles of
digital communication.21 It is not the principles of an external political constitution
(which one? The US-constitution? Other national constitution? A transnational
constitution?), aimed at power accumulation and policy formulation for the
internet, but the principles of an internet constitution proper, aiming at freedom of
communication and electronic threats to it, that is the adequate sedes materiae
of the digital constitutional norms. But these principles have still to be worked out
and validated in the course of constitutionalising the internet.22 The open
question in our case is whether business operators, even stimulated by economic
stimulation in private-public co-regulation, should be entrusted with deciding on
the limits of human rights.23
Extending the combat area, from Seattle to Genoa, what is taking place in the
conference halls and on the street is fights over a constitution of the global
economy, the outcome of which will give constitutional impetus to the World
Bank, IMF and WTO. A constitution of the global health sector is taking shape in
the fiery debates inside and outside science on embryo research and
reproductive medicine, and on the hunt for medically adequate equivalents for
traditional state-related fundamental rights. And since 11 September 2001,
attempts to institutionalise debates among world religions more strongly in legally
constituted institutions of inter-religious dialogue have been multiplying.
Model for the Governance of Cyberspace”,
http://www.temple.edu/lawschool/dpost/Newcivicvirtue.html 1998, is couched explicitly in
constitutional terms.
20 JP Barlow, Cyberspace Declaration of Independence
(http://www.eff.org.//Publications/John_Perry_Barlow, 2002).
21 The court decisions LG Bonn MMR 2000, 109 and OLG Köln MMR 2001, 52 dealing with the
parallel problem of access to a chat room of a provider attempt to develop legal principles of
internet-access on the basis of a strange mixture of property and contract. KH Ladeur,
“Rechtsfragen des Ausschlusses von Teilnehmern an Diskussionforen im Internet: Zur
Absicherung von Kommunikationsfreiheit durch netzwerkgerechtes Privatrecht”, 5 Multimedia und
Recht 2002, 787-792 asks explicitly for the development of a network-adequate private law.
22 For an internet-adequate transformation of the constitutional right of free speech in ICANNpanels,
see V Karavas and G Teubner, “http://www.CompanyNameSucks: Grundrechte
gegenüber ‚Privaten‘ im autonomen Recht des Internet?” in W Hoffmann-Riem and K-H Ladeur
(ed.), Innovationsoffene Regulierung des Internet (Baden-Baden, Nomos, 2003 forthcoming).
23 Frydman and Rorive (above n. 3) 59.
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IV. Three Trends of Development
To shift the focus from the one political constitution of the nation-state to the
many civil constitutions of world society, immediately raises the question what
circumstances justify overthrowing the model of an exclusively political
constitution that seems to have proven itself through the centuries. Very
schematically and in much abbreviated fashion, I wish to sketch out three secular
trends subverting state-centred constitutional thought and making societal
constitutionalism on a global level empirically and normatively plausible.
Diagnosis I: Dilemma of Rationalisation
Here the theory of societal constitutionalism developed by the American
sociologist David Sciulli supplies initial starting points.24 Starting from the
dilemma of the rationalisation process of modernity analysed by Max Weber, he
raises the question what counter-forces may exist to a massive evolutionary drift
manifested in four thrusts: (1) fragmentation of logics of action, with
consequences of highly advanced differentiation, pluralisation, and regional
compartmentalisation of separate social spheres; (2) dominance of instrumental
calculation as the sole rationality meeting with recognition across the domains;
(3) comprehensive replacement of informal co-ordination by bureaucratic
organisation; (4) increasing confinement in the “iron cage of servitude to the
future”, especially in social spheres. This drift would inevitably end society-wide
in a situation of intensive competition for positions of power and social influence,
highly formalised social control and political and social authoritarianism.
Additionally, it has the nature of a dilemma, because every conscious attempt to
achieve collective control over the drift itself gets caught up in this logic and only
strengthens the drift.25
The only social dynamic that has effectively worked against this evolutionary drift
in the past and can offer resistance in the future is, according to Sciulli, to be
found in the institutions of a “societal constitutionalism”:
„Only the presence of institutions of external procedural restraint
(on inadvertent or systemic exercises of collective power) within a
civil society can account for the possibility of a nonauthoritarian
social order under modern conditions.“26
24 D Sciulli, Theory of Societal Constitutionalism (Cambridge, Cambridge University Press, 1992);
see also D Sciulli, “Corporate Power in Civil Society: An Application of Societal
Constitutionalism”, 2001; D Sciulli, “The Critical Potential of the Common Law Tradition”, 94
Columbia Law Review 1994, 1076-1124; D Sciulli, “Foundations of Societal Constitutionalism:
Principles from the Concepts of Communicative Action and Procedural Legality”, 39 British
Journal of Sociology 1988, 377-407.
25 Sciulli 1992 (above n. 24) 56.
26 Sciulli 1992 (above n. 24) 81.

Struggles for a global Internet constitution:
protecting global communication structures
against surveillance measures *
a n d r e a s f i s c h e r – l e s c a n o
University of Bremen , Law Department , Universitätsallee GW1 , D-28359 Bremen