Legal Futurism | New Constitutional Order in the Age of Digital Sovereigns
INTRODUCTION
Progress in technology has created an age of Digital sovereigns with their meta platforms permeating, shaping and mediating our day-to-day lives. The rise of these Digital sovereigns with the influx of digital revolution is threatening the idea of Nation States, much more than liberalism or globalization ever could. The threat primarily arises with the permeating impact of algorithms & Big-tech companies as they erode the ‘shared identity’ of the citizens of Nation-States, ultimately degenerating the significance of the Constitution.
CONSTITUTION — TRADITIONAL NOTION OF ‘SHARED IDENTITY’
Constitution has traditionally been understood as the shared set of norms (values, principles) that give legitimacy to the basis of any legal order.[1] In its minimal sense, these set of shared norms (rules, principles or values) create, structure, and possibly define the limits of, government power or authority.[2] As per H.L.A Hart’s notion of “rule of recognition” — Constitution is the rule of legal order that it is ultimate in that it certifies that validity of all other rules.[3]
The normative validity of Constitution as the ‘rule of recognition’ in a particular legal system arises from the shared sense of history of its subjects. The shared belief of citizens in a particular set of values owing to their common history is the underlying reason that gives legitimacy to the working of the legal order in any given ecosystem. It was the collective freedom struggle of Indian citizens against the colonial British invaders that led to the emergence of their shared identity that fructified in the form of Independent India. This shared history of collective freedom struggle is the underlying basis that gives normative validity to the Constitution of India, the Grundnorm [4] which came into force on 26th January 1950.[5]
RISE OF ALGORITHMS & BIG-TECH COMPANIES — NEW CONSTITUTIONAL ORDER
EROSION OF SHARED IDENTITY
Today, the role of Big-tech Companies into the multifarious aspects of our every-day life has assumed greater significance with their exponential improvements in algorithms. This has led to the emergence of what is known as the “global village”. Interestingly, today with seamless digital connectivity, participants of the global village are experiencing the same reality, but watching it through countless tinted glasses. Jean Francois Lyotard describes this condition as the “the postmodern condition”, which is the condition of fragmentation.[6] There are a fragmented array of narratives, which have caused a reality crises leading to what Lyotard calls differend, a situation where conflicting parties cannot even agree on the rules of resolution.[7] The shared sense of history which gave normative validity to the underlying basis of a legal system, i.e. the Constitution is getting eroded today with fragmented ‘Netflix’ choice narratives. The decentralization of information sharing technologies and the rise of Big tech platforms has allowed individuals to preserve events, create narratives, effectuate perceptions in real-time, that do not necessarily correspond to the objective factual reality. The Global village, as McLuhan would say, is ensuring maximum disagreement on all points.[8] Therefore, there are no avenues left in so far has formation of shared belief among the citizens of any state is concerned. On the contrary, Information dissemination is being utilized at the behest of various ideologues to push their agenda that has the effect of distorting a stable consensual reality. Numerous digital tribes have emerged, each carrying their own tints of reality which has the effect of distorting the traditional idea of statehood.
EMERGENCE OF ‘DIGITAL TRIBES’ & EROSION OF STATEHOOD
The Treaty of Westphalia, structured the Modern World in 1648 when it defined Nation States as the only sovereign entities to regulate territories that represent Countries today.[9] Numerous factors galvanized Nation states to establish their sovereignty on a long term basis and assert it through precise demarcation of borders on a larger area. Even today, armed conflicts take place because borders are challenged and thus depicting that notion of sovereignty is primarily linked to territories.[10]
Having said that, nearly half a millennium later is the geographical space still as significant? Are private players including Big-tech platforms not assimilating sovereign states’ small symbols? Mail went from being delivered by French postal service to Whatsapp text today. Physical topographical maps, which used to be produced by public and military institutions, now vest under the control of private actors such, as Apple or Google Maps.[11] Data is the most important raw material of our times, and only a handful of companies now hold economic power and influence.[12] These companies are no longer market participants.[13] Rather, they in their fields, are market makers, able to exert regulatory control over the terms on which others can sell goods and services. This has the effect of displacing government roles over time, replacing territorial sovereignty with ‘functional sovereignty’.[14]
DIGITAL WORLD ORDER — PREFACE FOR NOVEL CONSTITUTIONALISM
This emerging Digital World Order has led me to wonder — have we reached a time when Amazon can decide its own jurisdiction or charter city, or establish its special judicial procedures? The underlying network effects of its platform is the prime reason that has made Amazon truly powerful. As consumer rights shrivel with the rise of e-commerce feudalism, do we need a new constitutional order? With the proliferation of Digital Capitalism and the changing status of “Corporations as Court-House” — Big-tech platforms running their own dispute resolution schemes, shouldn’t a novel idea of constitutionalism be developed entailing creation, structuring or possibly defining the limits of these digital tribes instead of the government?
Solutions to the powers of the Big-tech Platforms will — without a doubt — be hard to advance as a political matter. But understanding this shift in the coming world order is important. Data access asymmetries will be one of the major power imbalance concerns that we would witness in the coming future, that should set the stage for the development of novel idea of ‘constitutionalism’ which atleast takes into account of these data access asymmetries concerns, if not anything else!
REFERENCES :-
[1] Pg 12, Philosophical Foundations of Constitutional Law — The Idea of Constitution: A Plea for Staatsrechtslehre, David Dyzenhaus.
[2] https://plato.stanford.edu/entries/constitutionalism/.
[3] H. L. A. Hart, ‘The Foundations of a Legal System’, in Hart, The Concept of Law 2nd edn. (Oxford: Clarendon Press, 1994), ch 6.
[4] H. Kelsen, ‘The Legal System and its Hierarchical Structure’, in B. L. Paulson and S. L. Paulson (trans), Introduction to the Problems of Legal Theory: A Translation from the First Edition of the Reine Rechtslehre (Oxford: Clarendon Press, 1992), ch V.
[5] https://www.india.gov.in/my-government/constitution india#:~:text=The%20Republic%20is%20governed%20in,force%20on%2026th%20January%2C%201950.
[6] See Jean Francois Lyotard, La condition postmoderne:rapport sur le savoir.
[7] See Mimetic Tribes of Cultural Wars.
[8] The Gutenberg Galaxy: The Making of Typographic Man.
[9] https://www.institutmontaigne.org/en/blog/end-nation-states-part-1-technology-induced-sovereignty-transfers.
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] From Territorial to Functional Sovereignty: The Case of Amazon Frank Pasquale.
[14] Ibid.
