Constitutionalism in the Era of Private Power and the Fourth Industrial Revolution
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Editors’ note: This post is part of a joint symposium between the IACL-AIDC Blog and African Law Matters, featuring posts on the theme ‘Constitutional Transformations’ from participants at the World Congress of Constitutional Law in Johannesburg, South Africa 5-9 December 2022. Johannes Masing will speak at the Plenary on ‘Constitutionalism in the Era of Private Power and the Fourth Industrial Revolution’.
The concept of constitutionalism rests on the idea of democratic self-determination based on the rule of law. Self-determination over the national legal order includes the delimitation of private power as well as the shaping of a state’s economic order.
However, this genuinely national concept is losing its factual foundations. In the course of digitalization, economic and other activities are increasingly internationalizing. Their challenges can thus be less and less met on the basis of state constitutions. At the international level, however, there is no constitutional framework that would allow private power to be effectively constrained. There is no answer to be found yet.
Nonetheless, a certain uniting basis of constitutionalism even across borders may be found in human rights, which offer a starting point for making the idea of law a yardstick even at the international level. Human rights must thereby be understood as comprehensive legal ideas for the entire legal order. They must accordingly apply to relationships between private actors.
Only such an understanding corresponds to their roots in natural law as well as to their historical foundations, and accordingly such an understanding underlies the international covenants for the protection of human rights. If human rights are to be meaningful in our days, this must apply all the more in the information age. The case law of European courts, including the European Court of Justice and the European Court of Human Rights, not least the case law of the German Federal Constitutional Court, has been reflecting this for a long time.
Of course, fundamental rights have a different impact between private individuals than they do vis-à-vis the state. When limiting state action, fundamental rights protection has relatively clear structures. It follows the principle of minimization and is rather strict, being embedded in the asymmetrical relationship that marks the rule of law: the citizen is free, the state is bound as a trustee for the sake of the citizen’s welfare. Interferences with fundamental rights by public authorities must therefore be precisely defined, legitimized by law and reserved as far as possible. They have to be justified and minimalized: only such interferences are constitutional which are suitable and as unintrusive as possible (and remain sufficiently tempered). The burden of justification lies with the state.
In contrast, human rights protection between private actors is not guided by the same approach. In this case, the idea of asymmetrical freedom is not an adequate benchmark. Citizens face each other on an equal level with the same rights. Their legal relationship is of a symmetrical order: in principle, no free person is accountable to another, and there is no axiomatic need to justify private action in relation to others. The law is not aiming to minimize interferences with freedom, but to secure a balance that imposes inherent limits on either side. The aim of fundamental rights’ protection is to preserve freedom and fundamental rights on both sides equally.
Nevertheless, asymmetrical power is an important criterion for human rights protection between private actors, too. It is actually aimed at correcting imbalances of power in order to enable everyone to enjoy their fundamental rights. Consequently, the German Federal Constitutional Court has found that fundamental rights may also impose requirements which are just as strict, and in some cases possibly even stricter than when facing public authority.
Indeed, the issue here is not protection reflecting the asymmetrical relationship between freedom and public authority. All private actors remain bearers of freedom. But the resolution or at least mitigation of factual imbalances between private actors to allow equal participation in freedom and to secure symmetrical protection of fundamental rights is an important part of human rights protection.
“If human rights are to be meaningful in our days, this must apply all the more in the information age.”
Thus, as human rights must balance the respective spheres of freedom and equal rights, they need to be weighed up and their effects are less strict. They are largely open to legislative shaping and must be concretized, with all state powers having a role to play – depending on the respective constitution. However, there can be a cross-border basis to meet the new challenges of private power – for example on the internet, balancing the different fundamental rights such as freedom of expression, privacy and economic freedom.
However, here, too, the limits of the constitutional concept become apparent: internationally, human rights are no more than a common point of reference. It is true, they provide at least a basis for making not just power but also the law a starting point of the political order, even in international discourse. However, their implementation remains dependent on international cooperation - on cooperation between states as well as on transnational cooperation between state institutions, especially the courts. If we want to have any chance of meeting new and contemporary challenges, we must strengthen such cooperation and put aside national claims to exclusive representation. Alliances between regional organisations have a task and an opportunity in this respect.
Nevertheless, it is obvious that we do not have a constitution that guarantees the ideas of law and justice for international cooperation. Ultimately, the law of power dictates the rules guided by particular interests. This can be cushioned to a certain extent by understanding the mutual interests of working together - but no more. The comprehensive linking of law to equality and freedom, which constitutionalism promises, will diminish in the new world. We have to be ready for this.
