The dominant developmental democratisation literature is limited by its focus on developing countries, and relatively circumscribed explanation of how democratisation occurs. In response to these limitations, the paper offers an alternative conception of democracy, drawing upon the political process model. Here, democracy is a regime establishing a set of legal relationships between government and subjects. Those relationships feature participation and protection which are relatively broad, equal, categorical and binding. Democratisation, in turn, refers to the movement towards these legal relationships. The model addresses gaps in the dominant democratisation literature by providing a theory applicable to developing countries and well-established democracies, as well as explaining how democratisation occurs in the legal context.
Whereas previously elites and experts controlled constitution-making, recent processes, such as in Iceland and Chile, suggest that digital tools have the capacity to bring “the people” back into the equation. Scholarship in this field has largely remained normative in its outlook. While there is a growing body of quantitative research in constitution-making, detailed qualitative analysis of the practical implementation of such processes is still missing.
This paper puts forward an ethnographic framework for tech-driven constitutional reform. Such an approach focuses on who makes use of digital tools, as well as why and how; their place in the overall process vis-à-vis traditional law-making institutions; and how the will of a “digital pouvoir constituant” becomes embedded in a new constitutional framework (or not). Such an analysis will allow for new insights into the democratising potential and limitations of an emerging “digital pouvoir constituant”.
Well aware of the reservations of Aristophanes, Plato, Aristotle and Montesquieu to the participation of the people in the judiciary and the reflections of Hamilton and Madison on judicial review, this paper advocates the need of updating and contextualising their opinions in the era of the network society. The paper adopts a historical methodology and reviews several examples of popular participation in constitutional interpretation. It also employs experimental philosophy to work out the possibility of crowdsourcing including le pouvoir constituent dérivé, i.e. giving direct constitutional interpretation to the people.
The paper further addresses the opportunities and risks that this method poses in the present-day. In order to minimise the risks, the last part of the paper analyses the substantive, formal, technical and temporal limits of the practice of crowdsourcing constitutional interpretation.
This paper assesses how constitutional crowdsourcing, that is to say, the participation of the people in democratic constitutionalism by means of Internet platforms, impacts constitutional rights. Constitutional crowdsourcing gives rise to opportunities and challenges in this area. It opens-up fresh possibilities for the exercise of democratic rights by individuals and groups previously excluded from democratic deliberation, political expression and decision-making. However, at the same time, these kinds of strategies create risks to freedoms and equality. The protection of constitutional rights in these processes depends on assessing such risks and minimizing them.