[RESEARCH PAPER] Taking Chaos Seriously: from Analog to Digital Constitutionalism, by Guillaume TUSSEAU

In 1999, the Constitution of the “Republic of Chaos” recognised as a citizen “any biological or digital entity capable of thinking and desiring,” as well as cyborgs and androids. All these entities must respect the principles of national sovereignty and democracy “which apply not just within the Abode of Chaos, an analog enclave super-imposed on the national territory of France and a gateway into Cyberspace, but also within the digital territory of the Republic of Chaos.” As the topic of digital constitutionalism is gaining momentum, what could be read as a kind of joke should be taken seriously. Reviewing concrete examples, I propose to offer a cartography of the current uses of the grammar of constitutionalism to address technological evolutions and their impact on basic rights and contemporary governance. “Thin” digital constitutionalism emerges as an expansion of analog constitutionalism. It manifests itself in the private Charter of Human Rights and Principles for the Internet, the Brazilian 2014 Marco Civil da Internet [Lei 12.965/2014], or the Digital Rights Charter presented by the President of the Spanish Government in 2021. It consists of adapting notions such as free speech, equality, privacy, participation, or pluralism to the new tools the rights’ holders use and the new threats that result from using them (mass surveillance, personal profiling, influencing elections, lack of literacy, etc.). “Thick” digital constitutionalism more originally corresponds to what Teubner presents as the self-constitutionalisation of social spheres. A hierarchy of norms, basic values, procedures for dispute resolution, etc. progressively develop. The creation of Bitnation in 2014 testifies to the relevance of social contract theory. Meta’s Oversight Board, to which people can appeal if they disagree with decisions made about content on Facebook or Instagram mimics a constitutional court. Both perspectives account for the efforts digital constitutionalists make to ensure the two basic functions of constitutions: protecting fundamental rights and limiting power. From an epistemological perspective, constitutionalism appears as a specific way to frame social, political or moral issues. Three main readings allow the deconstruction of the possible ideological rationales for a conceptual transfer from the analog to the digital sphere. One is a discourse of hope, where the values of the XVIIIth century Revolutions are preserved. Another is a discourse of skepticism, where constitutionalism mostly appears as an insurance policy for public and private powers in search of legitimation. The last one is a discourse of hopelessness, based on Lassalle’s thesis according to which whenever one party invokes a constitution as its battle cry, it is as if this power structure was already dead.

Dr Guillaume TUSSEAU was trained both in political science and law. After holding positions in the Universities of Paris II (Panthéon-Assas) and Rouen, he is currently Professor of Public Law at Sciences Po Law School, in Paris, and a member of the Institut universitaire de France. He has been a member of the Conseil supérieur de la magistrature (French High Council for the Judiciary) from 2015 to 2019. His main areas of interest are comparative constitutional law and legal theory, both fields in which he has extensively taught and published.

Among his latest publications are: ‘The Legal Philosophy of Jeremy Bentham’: Essays on ‘Of the Limits of the Penal Branch of Jurisprudence’, Guillaume Tusseau (ed.) (Routledge, Routledge Research in Constitutional Law Series, 2014), ‘Debating Legal Pluralism and Constitutionalism: New Trajectories for Legal Theory in the Global Age’, Guillaume Tusseau (ed.) (Springer, 2020), ‘Contentieux constitutionnel comparé. Une introduction critique au droit processuel constitutionnel’ (Lextenso, 2021) and ‘Droit constitutionnel et institutions politiques’ (Le Seuil, 2021).