Global Technology and Legal Theory

Transnational Constitutionalism, Google and the European Union

Guilherme Cintra Guimarães

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9781032241098
• eBook ISBN: 9780429594625
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The rise and spread of the Internet has accelerated the global flows of money,

technology and information that are increasingly perceived as a challenge to the

traditional regulatory powers of nation states and the effectiveness of their constitutions.

The acceleration of these flows poses new legal and political problems

to their regulation and control, as shown by recent conflicts between Google and

the European Union (EU).

This book investigates the transnational constitutional dimension of recent

conflicts between Google and the EU in the areas of competition, taxation and

human rights. More than a simple case study, it explores how the new conflicts

originating from the worldwide expansion of the Internet economy are being dealt

with by the institutional mechanisms available at the European level. The analysis

of these conflicts exposes the tensions and contradictions between, on the one

hand, legal and political systems that are limited by territory, and, on the other

hand, the inherently global functioning of the Internet. The EU's promising

initiatives to extend the protection of privacy in cyberspace set the stage for a

broader dialogue on constitutional problems related to the enforcement of fundamental

rights and the legitimate exercise of power that are common to different

legal orders of world society. Nevertheless, the different ways of dealing with the

competition and fiscal aspects of the conflicts with Google also indicate the same

limits that are generally attributed to the very project of European integration,

showing that the constitutionalization of the economy tends to outpace the constitutionalization

of politics.

Providing a detailed account of the unfolding of these conflicts, and their wider

consequences to the future of the Internet, this book will appeal to scholars

working in EU law, international law and constitutional law, as well as those in the

fields of political science and sociology.

1 Constitutionalism and world society

The future of constitutionalism in world society is uncertain. This is certainly no surprise. On the one hand, the future itself is a temporal horizon that cannot be observed in the present. Notwithstanding all rational planning, projects and expectations, “the future cannot begin”.¹ On the other hand, constitutions were first invented in a revolutionary context to liberate society from its bonds to the past and provide for its “open future”, a future that is now already past.²

There is a growing body of literature in the fields of constitutional and international law on the role of constitutionalism in world society. Would constitutionalism, traditionally connected with the historical formation of nation states, still have something to say in the age of accelerated globalization or would we now be facing its twilight?³

Although there is no consensus about the answer to this question, the prospect of a unifying global constitution with the same compact, holistic and general features as the national ones does not seem feasible, given the increasing fragmentation of global law.⁴ Decentralizing tendencies toward the transnationalization and privatization of global legal regimes pose new and serious challenges to state-centered constitutionalism and call for a re-thinking and renovation of constitutional theory.⁵

This first chapter addresses these more general issues of legal and constitutional theory in order to provide the basic theoretical background for the further development of the book. It initially deals with the modern concept of constitution from a sociological perspective, according to which the novelty of constitutions is not necessarily found in their content, but in the specific way they connect law and politics in the historical formation of nation states (1.1). The idea that nation states and their constitutions are currently being challenged by the process of globalization, which is now a commonplace in the social sciences, is then described as a consequence of the gap between the structural changes brought about by modern society and their semantic descriptions. Modern society has always been a world society. The progressive realization of that causes some anxiety in the modern semantics of constitutionalism (1.2). Constitutional theory, thus, reacts with an inflationary use of the concept of constitution, which is itself temporalized with recourse to the category of “constitutionalization” (1.3). Instead of focusing on the potential emergence of global constitutions, it seems more promising for constitutional theory to focus on the transnational constitutional (or transconstitutional) conflicts between different legal orders of world society (1.3.1). Two specific subjects of the current discourse on constitutionalism beyond the state are then briefly analyzed, because of their particular relevance to the main object of the book: the EU (1.3.2) and transnational corporations (1.3.3).

1 Luhmann (1982) The Differentiation of Society, p. 271ff.

2 Koselleck (2004 [1979]) Futures Past.

3 Dobner and Loughlin (eds) (2010) The Twilight of Constitutionalism?; Zagrebelsky, Portinaro and Luther (eds) (1996) Il Futuro della Costituzione.

4 Fischer-Lescano and Teubner (2004) ‘Regime-collisions’; Koskenniemi (2005) Global Legal Pluralism; Cassese (2009) I Tribunali di Babele.

5 Teubner (2012) Constitutional Fragments.

1.1 Constitutions and modern society: content and form

One of the most common distinctions of constitutional law is that between constitutional content and constitutional form. The first refers to the topics that are usually dealt with by a constitution, its content properly speaking, such as the democratic organization of the state and the protection of fundamental rights. The second refers to the formal support provided by law to the institutionalization and self-limitation of power, the fact that the constitution is treated as paramount or higher law, which makes possible the legal control of political decisions, especially the judicial review of legislation.⁶

While some general issues related to the basic organization of society and politics were the object of an ancient philosophical and political debate in the western tradition, including the ideas of separation of powers and inalienable rights initially advanced by early modern theories of the social contract and natural law, the idea of the constitution as a legal norm that institutionalizes the political form of the nation state is definitely a modern invention.⁷

A modern and rather unexpected invention, constitutions were certainly the object of conscious and rational planning by the revolutionaries who tried to overcome the old regime and its stratified form of social organization at the end of the eighteenth century in Europe and North America. However, constitutions are also the result of evolution, in which the intentions and expectations of individual and rational actors play only a limited role.⁸

6 On the role of law as a formal support to the constitutionalization of power and the special case of countries, such as Great Britain, that do not have a written constitution: Sajó (1999 [1995]) Limiting Government, p. 9ff.

7 Fioravanti (1999) Costituzione; Luhmann (1996) ‘La costituzione come acquisizione evolutiva’. On a broad sociological concept of constitution as the institution that provides for the differentiation and abstraction of the medium of political power, a concept that denies a radical distinction between modern and pre-modern constitutions: Thornhill (2011) A Sociology of Constitutions, p. 10ff.

8 Luhmann (1996) ‘La costituzione come acquisizione evolutiva’, p. 83ff.

The full development of the constitutional form, which entails that not only is positive law created by political decisions, but also that politics itself is submitted to the supervision of the courts, is a long process. A process that has been more or less accomplished by a great number of nation states during the nineteenth and twentieth centuries, along with a series of wars, catastrophes, coups d’état and authoritarian dictatorships. Despite its close connection with the enlightenment’s ideals of progress and emancipation, the history of constitutionalism is also, to a great extent, the history of authoritarianism and the state of exception⁹, a history of both inclusion and exclusion. This may indicate that the fears of the past usually overtake the hopes of the future as the main reason for the adoption of a constitution.¹⁰

In any case, the novelty of the constitution lies more in its form than in its specific content. In the particular way that it connects law and politics and, by doing so, contributes to the stabilization of the new basic structures of modern society. In the language of systems theory, the constitution provides for the structural coupling between law and politics.¹¹ A process that is itself connected to the functional differentiation of modern society as a whole, and the parallel development, on the one hand, of structural couplings between politics and the economy by means of taxation, the public budget and the regulation of the monetary medium, and, on the other hand, of structural couplings between law and the economy by means of the institutions of property, contract and the modern business enterprise.¹²

The constitution may be sociologically described as an instrument or artefact by means of which the legal and the political systems of modern society can achieve high degrees of autonomy while keeping structural links to each other. A fact that decisively contributed to the dissolution of the hierarchical and stratified order typical of European medieval society. With a common reference to the constitution, both law and politics have progressively disconnected themselves from their bonds to a cosmological semantics that projected its normativity into the present, becoming, thus, able to re-orient their operations toward an open future.¹³

These bonds with the past were represented, mainly, by the rules on dynastic government and the principles of natural law, which provided a normative and hierarchical foundation for the political and legal organization of society. With the dissolution of the old regime and the secularization of its cosmological semantics, these foundations lost their normativity. As a result, law and politics had to find (or rather invent) their own foundations. The constitution offered, then, an alternative to deal with these new problems (or paradoxes) of self-reference, providing a sort of common mechanism for cross-legitimation and mutual effectiveness.¹⁴

9 Agamben (2003) Stato di Eccezione.

10 Sajó (1999 [1995]) Limiting Government, p. 1ff.

11 Luhmann (1996) ‘La costituzione come acquisizione evolutiva’, p. 85ff.

12 Luhmann (1996) ‘La costituzione come acquisizione evolutiva’, pp. 113–114; Luhmann (2008 [1993]) Law as a Social System, p. 381ff. Teubner (2012) Constitutional Fragments, p. 108, also mentions the institutions of competition and currency as forms of the structural coupling between the legal and the economic systems. For legal purposes, competition may be understood as a sort of general condition for the lawful use of property and the lawful exercise of the freedom of contract. The modern business enterprise, to the extent that it constitutes a mix of both property and contracts, is also a form of the structural coupling between the legal and the economic systems.

13 Luhmann (1996) ‘La costituzione come acquisizione evolutiva’, p. 100; Corsi (2002) ‘Sociologia da constituição’.

On the one hand, the new sovereignty of the people, its unlimited power to limit itself, was anchored in a set of organizational, procedural and also substantive norms designed to regulate the self-generation and self-limitation of power by means of power.¹⁵ On the other hand, the complete positivization of law, the fact that law regulates the conditions for its own production, was stabilized with the help of interpretative methods that attributed the creation and modification of law to the political decisions taken by the people and their representatives.¹⁶

Regular channels of legitimacy and effe...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgments
• Acronyms and abbreviations
• Introduction
• 1. Constitutionalism and world society
• 2. The architecture of cyberspace
• 3. Disrupting markets and tax bases
• 4. Privacy, social memory and global data flows
• Conclusion
• Bibliography
• Index