From movements to constitutions. How to think in a networked and open source constitutional process

By Ismael Peña-López
ICTlogy (ISSN 1886-5208). Issue #109, October 2012


Notes from the Digital culture, networks and distributed politics in the age of the Internet. From the Global Spring to the Net Democracy, organized by the Communication and Civil Society programme of the IN3 in Barcelona, Spain, in October 24-25, 2012. More notes on this event: comsc.

Round table: From movements to constitutions. How to think in a networked and open source constitutional process
Chairs: Tomás Herreros

(see after time 1:00:00)

Is it true that citizens (Spaniards, Greeks, etc.) are lab rats upon which we can play socio-economic experiments?

What has been the role of the European Union before the economic and financial crisis?

There is only an exit to the crisis with a commons-based economy, a new way to understand politics and participation, etc.

These movements are based on self-communication and higher rates of participation. And the difference between activists and non-activists are blurring, as participation comes naturally with being informed, providing and opinion and getting in touch with one’s peers.

With this changing times, what is the role of traditional politics?

Rubén Martínez Dalmau (Professor in Constitutional LAw, Universidad de Valencia)

There are concepts like “separation of powers” or “administration of sovereignty” that should be addressed carefully. So, before asking how to do things, we should above all ask ourselves why some things should — or should not — be done.

Why a constituent process?

Because, historically, constitutive democracy is an emancipatory process: it has provided more rights to the citizens than never before. Modern constitutions introduce the concept of the sovereignty of the people, which becomes very important in order to control power and its management.

Although modern constitutions have improved empowerment and have evolved (positively) along the years, there still are some glitches that need being fixed: many times, constitutions are nominal (state principles) but are not normative (and thus require a deployment of further regulation). A good example of that is health, housing, etc. though they are mentioned as rights in many constitutions, they do not count as such if they are not reflected in positive laws (as it often happens). Consequence? Parts of the constitution are not applied.

Another glitch is the difference between constituent power and constituted power. Constitutions are the manifestation of regenerative powers. But if representatives do not change their behaviours according to (new) constitutions, the constituent and regenerative power becomes but reproductive power. The glitch of the glitch is when representatives (the constituted power) are the ones that change or write the constitutions (the constituent power). This is a total contradiction in the very core of the concept of a constitution.

Thus, there is a need to break (1) the nominal parts of the constitutions and (2) the hope or mirage that constitutions can be changed by the people but actually only constituted powers can do it. We need not fight for a reform of the constitution, but for a rupture.

The qualitative leap between the 15M and the 25S is putting the stakes on the constituent power as the basis of a rupture against the constituted power — very much like many Latin American constitutions that were reformed or rewritten in the nineties.

The constituent process is not the only exit, but it might be the best one. On the other hand, the constituent power is a power that many times needs fighting the constituted power; thus, many times the legitimacy of the constituent process begins with a clash of powers. There is a need for a transitional process that will not be “the” transition, but a real transition time that links the preceding constitution with the following one, where consensus have to be reached, and based on a deep democratic maturity.

Emmanuel Rodríguez (Observatorio Metropolitano de Madrid)

There are many political institutions that instead of disclosing democracy, they actually close it: only some specific actors are acknowledged as such and the rest of actors is set aside of the democratic process. Besides representative institutions closing democracy, mainstream media have lately proven unable to channel the public opinion. Same with labour union, that have shifted towards representing only a specific part of the workers. Last, but not least, the economic power, whose jurisdiction has escaped the area of influence of all other powers.

[here comes a thorough explanation of the growing power of international finance, getting much bigger than any country’s GDP] The defence of economic and finance powers has become a political priority, with the Maastricht Treaty as the most significant “constituent” example.

Summing up, while the economy is fully integrated at the European level, politics (or civil rights) are not so. Until a total parallelism is achieved, full democracy within Europe will be an illusion.

Digital culture, networks and distributed politics in the age of the Internet (2012)

If you need to cite this article in a formal way (i.e. for bibliographical purposes) I dare suggest:

Peña-López, I. (2012) “From movements to constitutions. How to think in a networked and open source constitutional process” In ICTlogy, #109, October 2012. Barcelona: ICTlogy.
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