Debating Digital Constitutionalism: A Benthamian Perspective

Speaker: Guillaume Tusseau, Professor of Public Law (Sciences Po)

Chair: George Letsas, Professor of Philosophy of Law (UCL Laws)

About the Seminar:

The research explores the concept of digital constitutionalism, drawing on the thinking of Jeremy Bentham to offer a critical and constructive interpretation. Digital constitutionalism refers to all initiatives aimed at regulating digital technologies through constitutional principles such as the protection of fundamental rights or the limitation of power. This phenomenon is not limited to a simple interaction between law and digital technology, but reveals a profound transformation of normativity, where technologies themselves become vectors for the production of norms.

Two main dynamics have been identified: on the one hand, the influence of digital technology on constitutional institutions; on the other, the influence of constitutional law on digital technology. Digital constitutionalism is structured around two major axes: the protection of fundamental rights and the reinvention of the separation of powers. This involves both adapting traditional rights (freedom of expression, privacy, equality) to the challenges of digital technology and recognising new rights specific to the digital environment, such as the right to disconnect, data portability and neuro-rights. At the same time, digital technologies are disrupting the traditional functions of public authorities. Artificial intelligence is used in the justice system, in administration and even in legislation. These developments are challenging traditional institutional balances. Some private actors, such as digital platforms, are developing quasi-constitutional structures. These entities are adopting mechanisms for governance, control and protection of rights without going through states, illustrating a self-constitutionalisation of the digital world. Research also emphasises the normativity specific to computer code. Unlike traditional law, which can be broken, code imposes irreversible technical constraints: what is not permitted by the software architecture is simply impossible. This normativity of necessity, or “anankastic”, replaces the normativity of duty, or “deontic”. This calls into question the very possibility of disobedience, which is essential in a constitutional democracy. Power is now exercised not through the law, but through the technical design of systems, which poses a major risk to individual autonomy and the separation of powers. Digital platforms combine the functions of legislator, executive and judge. This confusion of powers is contrary to the fundamental principles of constitutionalism. It is all the more problematic because it is exercised by private actors motivated by economic interests. Algocracy, or government by algorithms, refers to this opaque, centralised and unaccountable power. It is a form of technological despotism, where citizens have neither control nor effective recourse.

Contrary to expectations, Jeremy Bentham, often associated with surveillance and panopticism, offers conceptual tools for thinking about digital constitutionalism. He considers constitutional law to be a binding law, based on moral and popular sanction. The power of the sovereign rests on the people's habit of obedience and disposition to obey, which can be withdrawn. Bentham proposes the idea of a Public Opinion Tribunal, capable of controlling those in power through criticism, transparency and publicity. Transposed to the digital realm, this court could take the form of citizen campaigns, ethical labels or co-regulation mechanisms. The article thus envisages co-regulation involving all stakeholders: states, businesses, citizens, NGOs and experts. Initiatives such as trusted flaggers, moderation boards and ethical labels are attempts to reintroduce democratic control mechanisms into the digital space. Finally, approaches such as digisprudence aim to integrate constitutional values into the design of technologies, making code more transparent, contestable and respectful of rights. Digital constitutionalism, although still under construction, deserves to be considered in the light of Benthamian philosophy, which emphasises the limitation of power, transparency and citizen participation.

About the Speaker:

Guillaume Tusseau was trained both in political science and law. After holding positions in the Universities of Paris II (Panthéon-Assas) and Rouen, he is currently Professor of Public Law at Sciences Po Law School, in Paris, and a member of the Institut universitaire de France. He has been a member of the Conseil supérieur de la magistrature (French High Council for the Judiciary) from 2015 to 2019. His main areas of interest are comparative constitutional law and legal theory, both fields in which he has extensively taught and published, with further information here.

Among his latest publications are: ‘The Legal Philosophy of Jeremy Bentham’: Essays on ‘Of the Limits of the Penal Branch of Jurisprudence’, Guillaume Tusseau (ed.) (Routledge, Routledge Research in Constitutional Law Series, 2014), ‘Debating Legal Pluralism and Constitutionalism: New Trajectories for Legal Theory in the Global Age’, Guillaume Tusseau (ed.) (Springer, 2020), ‘Contentieux constitutionnel comparé. Une introduction critique au droit processuel constitutionnel’ (Lextenso, 2021), 'Research Handbook on Law and Utilitarianism' (Edward Elgar, 2024), and ‘Droit constitutionnel et institutions politiques’ (Le Seuil, 2024).