Workshop: Constitutional Theory and Internet Law

What we can observe is a growing web of legal norms that regulate governance aspects of the Internet. Some of these norms are legally binding; other are closer to what some scholars call soft law. In order to take stock of these developments, what are the patterns of legalization in the internet?

The draft paper

The aim of the paper is to propose such an explorative typology that can bring some systematic order into the plurality of Internet norms. The framework built by the author Osvaldo Saldías in his conference paper may not be exhaustive, but it already sheds some light into future challenges that society should expect.

The workshop

The workshop set out the prospective types provided in the paper which are (a) positivation of soft law; (b) legalization through complementarity; c) pure legalization; and d) conflicting legalization. The results reveal that different types of Internet norms also contain a considerable potential for mutual conflicts. Whenever this occurs, we will have to make some significant choices related to the prevalence of certain social goods over other. Since the Internet environment is not a democratic republic, we cannot resort to significant procedural rules that could ordinarily prescribe hierarchies. However, the results of my typology also seems to suggest that there is considerable room for ordering principles and values according to deliberative arrangements or public reasoning. Although research on Internet governance has provided valuable insights into actors, processes, and interests, the time seems right to focus on the proto-legal order that is already in place. The normative question is already waiting for us: How should we deal with this nascent web of Internet laws? The paper claims that unless we shut down the Internet, we will have to engage in dialogue about the “c” word; “c” as in constitution.

The workshop was chaired by Prof. Kim Lane Sheppele. A response on the paper were given by Prof. Christoph Möllers and Prof. Franz Mayer.

Discussion & remarks

The presentation of the paper resulted in a lively discussion and interesting remarks of new persepectives. The discussion surrounded questions and concepts of constitutionalism and the soft law approach, the role of the nation state in emerging multi-stakeholder environments and means of private rule-making.