Il contributo del costituzionalismo sociale alla teoria giuridica della società digitale: inquadramento e prospettive di ricerca

THE CONTRIBUTION OF SOCIETAL CONSTITUTIONALISM TO THE LEGAL THEORY OF DIGITAL SOCIETY: FRAMING AND PERSPECTIVES. The article analyses the relationship between societal constitutionalism and digital society from both an analytical and a normative perspective, addressing three issues: 1) the value of societal constitutionalism for the so-called digital constitutionalism; 2) the translation of the principles of constitutionalism into digital society, also for transformative purposes; 3) the potential consequential need for new constitutional policies and practices. To this end, the article first develops a critique of state-centric approaches, characterised by an almost exclusive focus on the state in constitutionalisation processes and (political) power as the privileged object of constitutional law, as well as individualistic approaches to the interpretation and application of fundamental rights. This deconstruction is followed by a pars construens, aimed at offering a partially different framing of some of the issues raised by digitalisation/ datafication processes. In particular, the contribution focuses on the dangers arising from what is defined as the ‘double colonisation of the digital space’, as well as on potential counter-strategies, again inspired by societal constitutionalism. Finally, the article recalls the research perspectives opened up by the approach here adopted, as well as their links with lines of research and scholarly strands that, while not explicitly resorting to the language of constitutionalism, variably deal with the relationship between digital technologies and law, notably when it comes to issues related to the definition of “digital constitutionalismµ, the role of conflict, different regulatory approaches, and systems theory.