Multilevel constitutionalism and e-democracy

04 May 2016 by Ingolf Pernice on Constitutionalism

As a scholar of constitutional law, of European and international law, having along the way gathered some knowledge of the workings of the internet, I am happy to present some perhaps somewhat revolutionary thoughts about governing in the future. The issue I was asked to deal with was: Governing the 21st century. Here are my thoughts about it.1

Let me start with a question: Who is the sovereign today? My answer is: the individual in a democratically organised multilevel system of political action that includes the global level. And this is possible, as I will explain, thanks to the internet and, more specifically, through e-democracy.

My proposition is based upon the recognition of human dignity, that means both, self-determination of everybody, and the mutual respect of the other, his or her otherness, based on diversity as a value of our society. And in our society we can organise our life and self-determine our conditions of life so to make best of it, on all levels: in our families, local communities, regions, states and, if you like, at supranational or even at a global level. Take the perspective of the mature, civilised individual, who associates, as appropriate for achieving common objectives, and defines herself as:

  • a citizen of her local community

  • a citizen of her region or subnational district

  • a citizen of her nation-state

  • perhaps also, as is the case for me: a citizen of a supranational union: I am a European Union citizen, - and

Let me ask: what are the reasons and conditions for us, people from all around the world, not to perceive us also as citizens of the world – or as “global citizens”?

This is the question of the 21st century. Yet, in 1795 already Immanuel Kant spoke about world citizenship (Third Definitive Article for a Perpetual Peace). It is worthwhile indeed to read his “perpetual peace”. It is the question of the 21st century - at least if we wish that this century becomes a century of peace and liberty, of solidarity and prosperity for all. I do wish so, definitely, for the sake of humanity.

In fact, we already have several political identities, related to the diverse levels of political communities to which we belong: each level serves certain tasks, for certain purposes of common public interest. As the case may be, each level has its own constitutional setting: institutions, responsibilities and powers, decision-making procedures, with some definition also of the rights and obligations of the individuals being citizens of the respective political community. Governance, already today, thus, has a multilevel structure. And to understand this in terms of constitutional law, I propose to talk about “multilevel constitutionalism”. With this concept I try to explain the European Union; and this is what I propose to extend to the global level.

What is new about multilevel constitutionalism? It is the perspective of the individual – that is, in terms of democracy, the only source and origin of legitimate or sovereign powers exercised by public authorities, at whatever level it may be.

In academic writing, you can find a broad debate on “global constitutionalism”, where the main trend is to argue for a binding character of some international law upon states, with a view to protect human rights and to preserve peace: taming the prince! The prince, here, is the state. Binding international law would represent a sort of external constitution for each country. But this is not the reality. As we know, states – sometimes just their governments – feel sovereign, and there is little hope that this will change, except for very convincing reasons.

The European Union, questioning states’ sovereignty

Taming the prince, means questioning states’ sovereignty. Take the example of the European Union. Its institutions exercise sovereign rights they are entrusted with for special purposes. The result is, as the European Court of Justice says, that member states gave up parts of their sovereignty for the benefit of a functioning European Union.

But who has conferred these sovereign rights to the European institutions, who could really do so, and for what purposes?

The common answer is: the member states. My answer is: the citizens of the member states. By contracting through their national institutions the establishment – or better: the “constitution” – of the EU the citizens of the Member States have given themselves the status as citizens of the Union.

The primary purpose was: preserve peace, after centuries of terrible wars among the peoples of Europe. Other purposes were: secure prosperity and welfare for all, and freedom and the protection of human rights, through “an ever closer Union among the peoples of Europe”, as the Preamble of the EU-Treaty states.

Here is my answer to the question of the 21st century, laid out earlier:

The condition for us, people from all countries of this world, to perceive us as global citizens would be a global constitutional setting by which we create the institutions, powers and procedures for achieving objectives of our common interest, to act in matters that are beyond the reach of national or even supra-national authorities.

Be sure, this does not mean a global state. Other organisations can have a constitution too, at least in a post-national, functional sense.

But there are at least three important questions I will try to answer step by step:

  1. Why should we endeavour to adopt the identity of global citizens through a constitutional process with the aim to set up institutions vested with the power to act?

  2. How could a constitutional setting look like for democratically and effectively implementing the responsibilities of such institutions, and what is their relationship to our states?

  3. What is the specific role of the internet and e-democracy in this constitutional process, and for the later operation of institutions set up for the purposes that may justify them?

The first question regards the democratic deficits of our present system of sovereign nation-states.

The second is related to the concept of multilevel constitutionalism as a possible way-out of the existing sovereignty-trap we are still in.

The third is critical insofar as we have no experience with e-democracy connected to global constitutionalism, so we approach new territory.

Let me shortly sketch out the main ideas at the basis of the answers to these questions. My observation is simple: if democracy means self-government, or self-determination of the individual, than provisions for legally binding regulation at the global level are not only an option, but a necessity. This said, the internet is not only a subject for such regulation, but primarily a new instrument that makes it possible: global democracy through the internet.

The first question: why should we do this?

Why should there be a global constitutional setting for regulation beyond the state, why global citizenship?

Some people feel as global citizens already today; they travel around the global village without even noting the different countries and cultures, they speak many languages and make business across borders: cosmopolitans. This is part of what global citizenship is about.

More important is that relationships among people around the world are becoming denser, people travel, meet, communicate, associate, and this not only for the good; they may also organise crime or terrorism, so abusing the freedoms, facilities and the internet for bad purposes. Massive migration due to war, adverse economic conditions or climate change threatens existing social structures. This all speaks to a need for regulation.

As David Held (1995, p. 16) observed already in the 1990s, the global interconnectedness increases the external effects of national politics:

“National communities by no means exclusively make and determine decisions and policies for themselves, and governments by no means determine what is appropriate exclusively for their own citizens.”

Let me just name a few examples:

  • Climate change: low-lying islands, such as countries in the Pacific will perish in the sea. This is not a consequence of their domestic policies.

  • Why are nuclear plants in the northern hemisphere, where the wind from west is the rule, generally located at the eastern border of each country?

  • The global financial crisis was the result of certain policies in the US. The consequences hit the economies of other countries worldwide.

  • Can we accept that powerful banks determine the destiny of our countries through global financial transactions made within seconds via the internet?

True, we should not blame the banks for using the freedoms given to them. What we should do is: setting limits, a global legal framework for their action, as necessary for preserving democratic self-determination of our countries. And this framework needs to be democratically established, as an expression of self-determination of the citizens of our countries, acting together as global citizens through global institutions.

Tackling climate-change or regulating the global financial markets, fighting against organised crime and international terrorism or protecting human rights effectively in failed states or in the context of totalitarian regimes, but also ensuring the openness and security of the internet, privacy and data protection all raise the same question: how could a single state acting individually deal with these issues?

Democracy means also the capacity to act effectively in matters of concern. Only common action and binding regulation at the level where the problem appears is a solution. If the state does not have the power, the necessary institutions have to be established beyond the state. Jürgen Habermas (2012, p. 15) rightly says:

“In view of a politically unregulated growth in the complexity of world society which is placing increasingly narrow systemic restrictions on the scope for addition of nation states, the requirement to extend political decision-making capabilities beyond national borders follows from the normative meaning of democracy itself”.

The second question: a constitutional setting at the global level?

What can a constitutional setting look like for democratically and effectively implementing policies beyond the state? What is the relationship to our national constitutions? This is where multilevel constitutionalism comes in:

We would not strive to creating a world state, with a world parliament and a world government. Copy and paste of the state model is not an option, for many reasons.

Immanuel Kant already said that it would lead to tyranny. The idea of a world parliament as a legislative body in the traditional sense, faces the problem of size. It would either be too big to function properly, or it would not be representative for the diversity of cultures and political preferences.

My vision for a global constitutional framework for regulation in some key areas is more modest. It is built upon functioning democratic states and supranational organisations, additional and complementary to our states, and necessarily less rigid, and above all: based upon the rule of law, action through law – with no physical coercion, no police, no army.

From the perspective of the individual, the conceptual model was already presented by James Madison (1787-88) in the Federalist No. 46:

“The federal and state governments are in fact but different agents and trustees of the people, instituted with different powers, and designated for different purposes.

What we need, thus, and what seems to be possible today thanks to the internet and e-democracy, is the establishment of a global layer of political discourse, of will-formation and – as I would call it: of validation of – normative processes resulting in common principles, standards and, as felt appropriate, binding regulation for limited, well determined policy fields.

The architecture of the system would be governed by the principle of subsidiarity: only where states or supranational organisations are unable to effectively achieve the desired results, can global institutions be competent. We have some experience in Europe for how this principle works for the attribution of responsibilities and powers, as well as for their exercise.

Though David Cameron is not happy with it, it works pretty well. The system could be improved, yet also for global ruling.

Against the backdrop of the experience with internet governance, and drawing from experiences in the Rio-process at large, I believe that at least five elements of a regulative system for global issues should be considered:

The establishment, by the UN, of a Global Governance Forum (GGF). It would follow the example of the very successful Internet Governance Forum (IGF).2 The GGF would not take decisions, but offer the space for an open, organised, inclusive and structured multi-stakeholder discourse on the relevant questions to be tackled. Its function is rather a brainstorming and mind-setting function; people who participate on the spot or on-line would learn from each-other, develop ideas and better understand diverse interests, perspectives and preferences.

Insights and ideas from the GGF are the basis for the elaboration of principles and standards by a body to be established following the model of NETmundial (2014).3 Let us call it: Principle-setting body (PSB). The principles and standards would be adopted by consensus, without being legally binding. But processes of monitoring, best practices and peer review could be applied for encouraging the respect of the principles by states and organisations.

The classical form of validation and legal concretisation of the principles would be international conventions. Yet, as we experience, it is not only difficult to negotiate meaningful legal obligations – the Paris Agreement on climate change (Harvey 2015) is a recent example –, but it is often not sure that they are implemented properly. More importantly, citizens and the civil society have little to say. The more international treaties tend to lay down self-executing law in each state – some talk about “Weltinnenrecht” (domestic global law), the more effective democratic participation of the citizen is in need. – My proposal, thus, is to give the General Assembly of the UN the power to decide upon the validation and concretisation of the principles and standards with qualified majority. But, to become binding law, the consent by the global citizens is required. This is to be achieved through a system of e-voting at the global scale, possibly organised by the United Nations Secretariat.

If legal provisions that are directly applicable to the citizens are adopted at the global level, the system must include both, an effective protection of the fundamental rights and a Global Court of Justice (GCJ) in charge of the judicial review. The competence of this Court could be extended to decide upon questions of implementation of the global law so as to make sure that it is equally applied in all countries.

Both the regulation and the case-law of the CCJ should be subject to review-processes. An open global discourse on the effects and necessary improvement could lead to new initiatives within the GGF and the PSB and ensure a dynamic development of global law at large.

The third question: a possible role for the internet?

What is the specific role of the internet and e-democracy in this constitutional process, and for the later operation of the institutions finally set up for the purposes that may justify them?

Part of the answer was already given: E-voting. But let me shortly explain why only in the age of the internet the vision of democratic regulation at the global level can be seen as a realistic option.

Or, in other words, what is it to allow saying: governing the 21st century means self-government of the citizen in a multilevel system including a global level of regulation.

I do not need to rehearse, at this spot, the benefits of the internet related to the access to information, education, communication, social networking and deliberation in real time, with no borders and the potential to include everybody everywhere.

Nor do I need to remind problems that exist with regard to the digital divide, that is a democratic divide, net neutrality, mass surveillance, data security and protection, privacy and all abuses of the internet. To deal with these problems effectively is a first priority, it is the basis of the trust people can have in the internet, and therefore, it is the condition for the application of the internet in governing the 21st century.

In some respect, indeed, there is a vicious circle. Trust is the condition for the full application of the internet, while a properly functioning internet may be the condition for establishing a system for regulation as necessary for re-establishing trust.

The solution seems to be a pragmatic step by step constitutional process, that is lead hand in hand with arrangements among the stakeholders making sure that people support the process for their own benefit.

There are four important aspects to be mentioned, where the internet has a decisive relevance:

  • Unlimited and real-time access to information, education, culture for all citizens interested in participating in the political discourse at all levels.

  • With the internet, for the first time, it is possible to envisage a global public sphere to emerge. Deliberation is possible, across borders, in social networks, discussion fora. This includes, as already mentioned, the on-line participation in the IGF and NETmudial, or the future institutions established following these models.

  • Encouraging experiences made with direct participation of citizens in constitution-making processes. One is the “futurum” website opened in 2001 by the Constitutional Convention that elaborated a draft Treaty on a Constitution for Europe. A second example is the attempt in Island of what was called the “first crowd-sourced constitution”. Lessons to be learned from the two examples could help to develop an internet-based participative process, including for the establishment of a global constitutional setting.

  • E-voting and e-referendums, as a mode of direct democracy at the global level. It is true that experience so far with e-democracy is rather limited and academic writing tells us that it does not change the democratic system fundamentally.

This, however, could be different if a new setting is organised following the lines proposed by Majid Behrouzi (2005): His “theory of direct-deliberative e-democracy”, developed for reforming the US constitution with a view to empower the citizen, gives us a number of insights that are helpful for designing a system of e-voting for the global citizen called to directly participate in global decision-making processes.

I shall not bore you in summarising his theory. What is essential, however, are three points he makes that are particularly important:

  1. The citizen should be regarded as the real sovereign: Behrouzi understands Rousseau in an individualistic way:

    “the sovereignty of the people turns out to be the sum total of the individual sovereignties of the individual citizens who comprise the demos”;

  2. E-voting of the citizens shall be based upon a process of education, learning and public deliberation related to the subject at issue.

  3. Elected experts and trustees acting as “guardians of the citizens” set up the agenda for the voting exercise, and in some way also participate, as a special assembly, in the final decision.

The weight of the citizen’s e-vote in the decision-making process, finally, depends on the voter turnout. This would encourage participation, but also leave the power in the hands of the institutions, if people are not interested.

Conclusion

Even if we understand that there not only is a need for global regulation on global issues, but that this is even a requirement of effective democracy, a constitution setting up the appropriate institutions and procedures will not be done from one day to the other. There is a long way to go for achieving it. Yet, the internet and e-democracy, in particular, may make it possible.

The process will include establishing democracy in many countries where it is not existent yet, let alone in failed states that even do not have a government at all. It will include coming to what Hasso Hofmann (1993, p. 367-369) called a mutual promise of human dignity among people, as a basis for solidarity not only within a state but also at the global level, and to the recognition of human rights worldwide. Also the technical requirements for free and equal access to the internet are yet to be set up. All of this, however, may be a question of time. More important is:

If we learn to take ourselves seriously as the owners of our political system, it is the internet that allows us to establish digital democracy at the global level and so to govern, ourselves as global citizens, the 21th century.

References

Behrouzi, Majid (2005) : Majid Behrouzi, Democracy as the Political Empowerment of the Citizen. Direct-Deliberative e-Democracy (Lexington Books, Lanham)

Habermas, Jürgen (2012): The Crisis of the European Union. A Response (Polity Press, Cambridge)

Harvey, Fiona (2015), Paris climate change agreement: the world's greatest diplomatic success (The Guardian, 14 December 2015). Retrieved 21 April 2016: http://www.theguardian.com/environment/2015/dec/13/paris-climate-deal-cop-diplomacy-developing-united-nations

Held, David (1995): Democracy and the Global Order. From the Modern State to Cosmopolitan Governance (Stanford University Press).

Hofmann, Hasso: Die versprochene Menschenwürde, 118 Archiv des öffentlichen Rechts, p. 353.

Hamilton, Alexander/Madison, James/Jay, John (1787/88), The Federalist Papers by Alexander Hamilto, James Madison and John Jay. With an Introduction and commentary by Garry Wills (Bantam Books, New York 1982).

Internet Governance Forum (2016), Website available at: http://www.intgovforum.org/cms/.

Kant, Immanuel (1795): Perpetual Peace: A Philosophical Sketch. Retrieved 21 April 2016 from: https://www.mtholyoke.edu/acad/intrel/kant/kant1.htm

Footnotes

1. An earlier version of this textserved as the basis of a talk on “Gobernar el Siclo XXI” that was given at the “Congreso del Futuro V” in Santiago de Chile on 23 January 2016. The presentation and subsequent discussion (spanish translation) can be seen athttp://janus-1.senado.cl/#1453573470. For a more elaborate version of this proposal see Ingolf Pernice, E-Democracy, the Global Citizen, and Multilevel Constitutionalism, In Corien Prins, Peter Lindseth, Colette Cuijpers, Monica Guise (eds.), Digital Democracy in a Globalised World, 2016 (forthcoming).

2. Retrieved 21 April 2016 from: http://www.intgovforum.org/cms/

3. Retrieved 21 April 2016 from: http://netmundial.br/

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