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We begin by examining the key purpose of a constitution: the definition and allocation of governmental power. Following this – using examples – the chapter proceeds to illustrate the various functions that such devices are meant to perform and the differing forms that constitutions can take. It then goes on to introduce the UK constitution, noting its key characteristics and comparing them with those of constitutions elsewhere.
This chapter aims to analyse the evolving technological and legal intersection between content and data in the algorithmic society. The shift from parallel track to overlapping layers of these two fields contributes to examining platform powers and understand the role of European digital constitutionalism. The first part examines the points of convergence and divergence between the legal regimes introduced by the e-Commerce Directive and the Data Protection Directive. In the second part, two examples shows how the relationship between the two systems has evolved, looking in particular at how technological convergence has led to overlapping layers between the the fields of content and data which were conceived on parallel tracks. The third part examines the role of European digital constitutionalism with a specific focus on three paths of legal convergence.
This chapter underlines how, in the field of data, European digital constitutionalism would not suggest introducing new safeguards but providing a teleological interpretation of the GDPR unveiling its constitutional dimension. The first part of this chapter focuses on the rise and consolidation of data protection in the European framework. The second part addresses the rise of the big data environment and the constitutional challenges introduced by automated decision-making technologies. The third part focuses on the GDPR underlining the opportunities and challenges of European data protection law concerning artificial intelligence. This part aims to highlight to what extent the system of the GDPR can ensure the protection of the right to privacy and data protection in relation to artificial intelligence technologies. The fourth part underlines the constitutional values underpinning the GDPR to provide a constitutional interpretation of how European data protection law, as one of the more mature expression of European digital constitutionalism, can mitigate the rise of unaccountable powers in the algorithmic society.
This chapter analyses the path leading the Union to shift from a liberal approach to a democratic constitutional strategy to address the consolidation of platforms powers. This chapter aims to explain the reasons for this paradigmatic shift looking at content and data as the two paradigmatic areas to examine the rise of a new phase of European digital constitutionalism. This chapter focuses on three phases: digital liberalism, judicial activism and digital constitutionalism. The first part of this chapter frames the first steps taken by the Union in the phase of digital liberalism at the end of the last century. The second part analyses the role of judicial activism in moving the attention from fundamental freedoms to fundamental rights online in the aftermath of the adoption of the Lisbon Treaty. The third part examines the shift in the approach of the Union towards a constitutional democratic strategy and the consolidation of European digital constitutionalism.
This chapter highlights the reasons for the turning of freedoms to more extensive forms of private power by online platforms. Understanding the characteristics of platform power is critical to understand the remedies mitigating this constitutional challenge. This chapter analyses the two interrelated forms through which platforms exercise powers in the digital environment: delegated and autonomous powers. The first part of the chapter analyses the reasons for a governance shift from public to private actors in the digital environment. The second part examines delegated powers in the field of content and data while the third part focuses on the exercise of autonomous powers competing with public authority.
Chapter 6 considers the legal basis on which linked data is used and disclosed for research in the three jurisdictions under consideration. The bodies of law relevant to research using individual-level data without consent are examined. The chapter describes how these bodies of law regulate the use of data and balance the relevant private and public interests in play. The chapter critiques these bodies of law in terms of clarity and consistency, including consistency with the human rights norms and ethical principles discussed in previous chapters.
This chapter underlines how European digital constitutionalism supports the introduction of remedies in the field of content to protect freedom of expression in the algorithmic society. The first part of this chapter analyses the shift from a liberal economic narrative based on the metaphor of the free marketplace of ideas to the rise of online platforms power in moderating online content. Precisely, it focuses on the logic of content moderation, the rise of the algorithmic public sphere and the challenges to the protection of the right to freedom of expression raised by the private enforcement of fundamental rights. The second part focuses on the current status quo, underlining the first step of European digital constitutionalism to limit platform power and focusing on the horizontal effect doctrine as a potential way to fill the regulatory gap in the field of content moderation. The third part provides the approach which European digital constitutionalism would design to address the challenges of content moderation focusing on rethinking online media pluralism through transparency and procedural safeguards.
This chapter introduces the research questions, methodology and structure of the book. The first part defines the primary goal of the book consisting of reframing the role of constitutional democracies in the algorithmic society and introduces the notion of digital constitutionalism. The second part underlines the path of constitutionalisation which has led to the rise of multiple entities expressing their norms and spaces. The third part underlines the talent of European constitutionalism to react against the consolidation of digital powers while the fourth and fifth part defines the research questions and structure of the book.
This chapter argues that the characteristics of European digital constitutionalism would lead to find a third way escaping polarisation. The primary goal of this chapter is to underline how the talent of European digital constitutionalism would promote a sustainable growth of the internal market while protecting fundamental rights and democratic values in the long run. The first part of this chapter focuses on the relationship between digital humanism and digital capitalism underlining the potential path characterising the European approach to artificial intelligence technologies. The second part examines how European digital constitutionalism would lead to a third way between public authority and private ordering. The third part underlines to what extent the Union would likely extend the scope of its constitutional values to address the global challenges of artificial intelligence technologies. Once this chapter addresses the potential road ahead of European digital constitutionalism, the fourth part summarises the primary findings of this research.
Using numerous topical examples and a clear structure, this third edition textbook provides an accessible, discursive and scholarly treatment of the key contemporary issues in UK public law. Drawing upon their extensive teaching and research experience, Roger Masterman and Colin Murray offer an engaging account of the key topics which make up a constitutional and administrative, or public, law syllabus. Controversial issues and broader debates are highlighted throughout the text, allowing the reader to develop a strong understanding of both the application of key topics in the field and the socio-political context in which the constitution has developed. This fully revised edition includes detailed analysis of recent significant cases, the constitutional implications of the Covid-19 pandemic and a dedicated chapter on the consequences of Brexit.
Quantitative approaches are gaining popularity in German legal research. The analysis of large corpora of legal text may be supported by text mining methods. In this study, we employ topic modeling—which aims at retrieving the “topics” of a corpus—to identify words related to certain areas of law present in the case law of the German Federal Constitutional Court (FCC). This information is then evaluated by legal experts and used to show significant content-related differences between the two most frequent types of proceedings before the FCC. Technical and somewhat unstable areas of law, such as tax law, social law, and civil service law, are significantly overrepresented in referrals for judicial review, whereas areas of law characterized by well-developed case law and judicial doctrine appear substantially more often in constitutional complaints. This insight may come as a surprise due to the fact that the Court’s material scope of review is identical in both types of proceedings. Our considerations do not, however, seem to apply to private law. Though we recognize the methodological and epistemological concerns regarding the heuristic nature of topic modeling, this study exemplifies its productive use in complementing, rather than replacing, more traditional techniques of analysis in legal studies.
The book ends with two conclusions: First, Member State fiscal sovereignty is a permanent constitutional constraint upon the application of fiscal federalism theory in the European Union. Second, hard budget constraints and market discipline are indispensable for the guiding principles of price stability and fiscal discipline in a decentralised federation bound by the fiscal sovereignty of its Member States. In sum, the model chosen for European fiscal federalism must preserve the fiscal sovereignty of its constitutional democracies, and it must have market discipline under hard budget constraints. As for the selection of an appropriate model for EU fiscal federalism, this book proposes that three constitutional tests for fiscal sovereignty identified in Chapter 1, and the five determinates of fiscal discipline identified in Chapter 8, provide an intersecting set of criteria for determining which models of fiscal federalism are compatible and implementable within the boundaries of the European legal order.
This chapter engages in a comparative examination of cause lawyering in the prisoners’ rights and animal rights movements. Drawing on the rich literature on cause lawyering and social movements, and on American constitutional law, it discusses the similarities and differences in the possibilities for legal advocacy concerning the rights of incarcerated persons and the treatment of non-human animals. The chapter offers a descriptive account of three areas in which these movements might be studied through a comparative lens – countering invisibility; facilitating moral suasion; and overcoming disenfranchisement. The chapter suggests that these comparisons might lead public interest lawyers working in these respective spaces to share ideas about strategic approaches and potential similarities that might be employed to overcome common barriers to progress. It also explains that this typological model for comparing cause lawyering might be employed by scholars in examining relationships between and among other social movements.
Chapter 1 evaluates competing EU and member state claims over the constitutional boundaries of ‘constitutional identity’ and Kompetenz-Kompetenz in the European legal order, and identifies two constitutional boundaries of the EU legal order which will impinge on the selection of fiscal federalism models for the EU. The first is fiscal sovereignty. Member state fiscal sovereignty is a permanent constitutional constraint on the application of fiscal federalism theory in the EU. The Union can have no powers other than what the member states have given it, and nemo plus iuris, what the member states have given it is limited by their own ‘constitutional identities’ – of which fiscal sovereignty lies at the core. The second is comprised of the fundamental guiding principles of price stability and ‘fiscal discipline’ (sound public finances, and sustainable balance of payments) binding on the mandate for EMU itself under Article 119(3) TFEU.
This article examines the reasons for different constitutional approaches to platform governance across the Atlantic. By adopting a comparative perspective under the lens of digital constitutionalism, it analyses the move from converging to diverging strategies of the United States and the European Union to address platform governance. From a liberal approach inspired by the US framework at the end of the last century, the European Union has moved towards a constitutional democratic strategy as demonstrated, for instance, by the launch of the Digital Services Act. On the other side of the Atlantic, the United States has reacted to the consolidation of platform governance by maintaining a liberal approach based on a vertical paradigm driven by the First Amendment. Given these democratic and liberal approaches, this article explains how the different constitutional premises of the United States and the European Union have produced diverging responses to the power of online platforms, thus underlining different expressions of digital constitutionalism across the Atlantic. The first section of the article introduces the rise of digital constitutionalism as the primary research angle to study the trans-Atlantic approaches to platform governance. The second section compares the European and US responses to the rise of platform powers. The third section focuses on the implications of these different constitutional strategies on a global scale.
This book bridges the study of European constitutionalism with the study of 'fiscal federalism' – the subfield of public economics concerned with structuring public finances between different levels of government in federal states. On one axis, this book delves into European Union and Member State constitutional law from all EU Member States in order to investigate and identify the existence of permanent constitutional boundaries that will impinge upon the selection of proposed models for EU fiscal federalism. On the second axis, this book engages the study of fiscal federalism in order to determine which institutional configurations known to that field remain legally and economically implementable within those boundaries. It provides a far-reaching investigation of which models of fiscal federalism are compatible with the constitutional boundaries of the European legal order.
One of the central themes of Democracy in America is the dawning tide of democratic equality. In Tocqueville’s view, this equality – understood as uniformity – represents the future of modern democratic society. Rogers M. Smith argues in this chapter that, even though Tocqueville’s assessment of America as a world of democratic equality may be unreliable, his reckoning with these issues nonetheless proves instructive for how we confront challenges of diversity and inequality. Tocqueville’s worries concerned excessive equality and uniformity, but today’s dilemmas increasingly involve inequality and differential treatment. Rather than treating everyone equally, in what Smith calls a “post-Tocquevillean America,” we confront the challenge of trying to secure diversity and equity by differential treatment of some groups. Smith argues that we ought to be prepared to offer special accommodations and differential treatment for groups so long as these do not substantially harm the civil rights of others and are consistent with the broader ends of substantive equality. Although Tocqueville’s vision of the challenges of democracy may diverge from our own, his thoughts remain illuminating of contemporary challenges of diversity and inequality.
Brexit involves a fundamental reshaping of relations between the UK and the EU and its member states, including Ireland. As the Preamble to the Protocol recognizes, this represents ‘a significant and unique challenge to the island of Ireland’. Since the conclusion of the 1998 Agreement, the EU has provided a critically important, if often invisible, underpinning of the peace process in Ireland. In the wake of Brexit, Northern Ireland is a ‘place between’. On the one hand, it is no longer part of the EU and Protocol Article 4 confirms that it is part of the customs territory of the UK. On the other hand, under the WA and the Protocol, Northern Ireland retains its special relationship with Ireland and remains subject to a substantial body of EU law. If Brexit involves a shift in the legal framework for EU–UK relations from EU law to international law, that shift is incomplete, particularly for Northern Ireland. And, for Ireland, including in its relations with Northern Ireland, Brexit serves to reinforce the bonds with the EU. This is reflected in the role and status of the Protocol in Irish law, which is examined in this chapter.
In this article, I bring together three recent ideas from political theory and constitutional law. The first is the notion developed by Jürgen Habermas and Markus Patberg of a pouvoir constituant mixte. Complex polities such as supra-state federations should be understood as constitutional entities that combine two or more authorizing subjects. The default “mixed” conception is that of dual sovereignty, split between the federations’ member collectives and member individuals. The second idea is that of Stephen Tierney, that sub-state national societies should be seen as involved in struggles over constituent power. The third is the idea and practice of sovereignty referendums, which I illustrate by looking at the 2017 Catalonia independence referendum. I contend that, at a minimum, sovereignty referendums, especially lost ones, should be understood as strategies to bring about, shift or complement constituent powers, in achieving compound or mixed sovereignty. Finally, I venture into some ideas about the criteria of legitimacy for such endeavors, in distinguishing the activation of constituent powers from their articulation and exercise.
Conventional workplace law includes the law of collective bargaining and employment contracts. This chapter argues that, to fully understand how law constructs worker power, industrial democracy, and political democracy, workplace law should greatly broaden in scope. The “new labor law” should encompass components of many fields of law that influence worker power and democracy as much as many components of conventional labor law. These additional components are lodged in domestic and international finance law, social wage law, constitutional law, communication law, tax law, and many more fields. The chapter applies the new labor law to critique and offer proposals to reconstruct existing law in the service of empowering workers in the workplace and polity, within both capitalist economies and imagined democratic socialist regimes.