Digital Constitutionalism

The digital society is the stage of human society development we are experiencing and the future is not clear.Compared with the traditional "land" resource-based agricultural society and "fossil" resource-supported industrial society,the digital society's resource base has become with non-consumable and non-physical data and algorithms,data and algorithms have become the new productivity and the root of the problems of the new society.Generally speaking,algorithm problems are mainly manifested in algorithmic discrimination and algorithmic power.Algorithmic discrimination refers to the prejudice of discrimination,exclusion or preference directly or indirectly based on race,color,gender,religion,political opinion,nationality,ancestry,or social origin when algorithms are coded,collected,selected,or trained with data.Algorithmic discrimination is mainly caused by built-in coded gaze,limited,irrelevant or incorrect training data,discrimination by algorithm black box modeling methods or different combinations of the three.In the digital society,algorithmic power has become a new form of power.The core of understanding algorithmic power is not the power of algorithmic technical systems,but the algorithm as a technical system is mapped to the power transformation process in the social system:decision algorithmization,algorithm legalization,and power granulation,which is of more substantive significance for understanding how algorithm system as technology has social power.For data issues,the internal problems of data are mainly the mass of data,data security,data privacy,data pollution,and the external data problems are mainly big data brother in politics,data colonialism in economy and data darwinism in culture.The influence of digital technology on the constitution is mainly reflected in the rise of constitutional value and private power.The trinity formula of the constitutional value system includes human rights,the rule of law and democracy.Under the influence of the development ofdigital technology,it also faces human rights risks and new possibilities for human rights,power imbalances in the rule of law system and new possibilities for democracy.In terms of the rise of private power,the private power led by digital platform,with its dominant advantages and resources,quasi-regulatory role and quasi-state,has a destructive impact on the public-private dichotomy of constitutional theory,third party effect of fundamental rights and the nation-state theory.Therefore,the connotation of the constitution is facing the possibility of disintegration.The constitutional moment for the digital society has arrived.Needless to say,the constitutional moment of the digital society has come.Therefore,the study of the impact of digital technology on the constitution,which is a major constitutional issue,will also contribute to the generation of constitutional norms of this issue and be included in the new constitutional order.The response to the constitutional moment caused by digital technology is a major realistic issue that requires theory and system design.In theory,the jurisprudence study of predicting and imagining the future Fali is the starting point of the theoretical logic of the constitutional moment of the digital society.Without the imagination and prediction of the future Fali,it is difficult for the constitution to see and know the changes in time,and it is difficult to deal with the unpredictable constitutional challenges caused by the rapid development of digital technology.Data rights are included in the framework of the fourth generation of human rights,the rights to benefit from digital science as the welfare strategies of digital technology,the meta-regulation scheme for the governance of algorithmic issues,and the construction of a flexible constitution,all of which are the system design strategies available for selection.In these system design strategies,it is divided into right protection mode and power regulation mode.On the one hand,the protection mode serves as the protection shield of rights.The right to data is incorporated into the fourth-generation human rights framework.This human right-based digital technology development strategy can respond to the data development reality of the digital society.The rights to benefit from digital science as digital technology well-being strategies can solve the problem of inadequate inclusion of the fourth-generation human rights for vulnerable groups.The enjoyment of the fourth generation of human rights that digital human rights is the embodiment of digital science benefits,and the benefits of digital science is the purpose of digital human rights of the fourth generation of human rights,which is also in line with Rawl's second principle of justice: people in a digital society should have full and equal access to digital rights,but for the smallest beneficiaries of scientific welfare in the field of digital technology,The rights to benefit from digital science should be used to balance equality and achieve fairness and justice.On the other hand,the regulatory model is often used as a sharp sword to constrain power.The meta-regulation scheme for algorithm problem governance: algorithmic self-regulation governance,platform self-regulation governance,and government regulation which have legitimacy in the constitutional framework,is a feasible scheme to respond to the digital society's algorithm governance problem.The construction of resilience constitution is beneficial to re-examine the adaptability of the constitution without damaging the core value of the constitution in the digital technology risk world,which provides a new perspective for thinking about the challenges and crisis response of the constitution and finally for dealing with the real crisis.Generally speaking,constitutional resilience is the ability of the constitution to respond to challenges and eventually deal with the real crisis.It is mainly reflected in the three aspects of constitutional recovery,constitutional resilience and resilience dividend,which can minimize risks or turn risks into opportunities.To sum up,these are all selective decentralized strategies in the response strategies of the constitutional moment of the digital society.In addition to the above decentralized strategies,the digital society also needs a holistic theoretical framework and strategy of "digital constitutionalism" to face the current digital society,the future digital society's constitutional governance and the sustainability of the constitutional governance in the digital society.Constitutionalism is not stagnating,but also creatively adapting to the digital environment to germinate new vitality.Digital constitutionalism is the third stage of constitutionalism after liberal constitutionalism and social constitutionalism.The premise of digital constitutionalism is creating digital constitution.Creating digital constitution isrelated to the Internet,big data,artificial intelligence and other emerging digital technologies,involving the three main bodies of individuals,enterprises and governments.More attention should be paid to the legal impact of big data and algorithms.The most appropriate digital constitution is the overall legislation,and the special digital constitution is the most consistent with the consideration of the integration of the constitutional system.A digital constitution is good.It's better not to distinguish Internet constitution,big data constitution,artificial intelligence constitution or even blockchain constitution.Digital constitutionalism is a special form of social governance,which is mainly governed by digital constitutionalism.Digitalization is the media of digital constitutional system.Digitalization is not only the object of supervision in the legal relationship of legal acts,but also the tool and parameter of law itself to perform the duties of supervision subject.Formal constitutionalism has established formal constitutionalism rules for digital constitutionalism.If the constitutionalism is to be carried out in a fair and reasonable way,it must be endowed with substantive ideal elements:limiting the power expansion of all parties to the constitutionalism and protecting the basic rights of individuals.In addition to this,an extensive debate on the values of digital constitutionalism may be more conducive to an in-depth understanding of digital constitutionalism.Civilization is merely an advance in taste: accepting,all the time,nicer things,and rejecting nasty ones.It is also the progress of empathy and civilization: it should benefit not only those in the circle,but also those outside the circle.Therefore,digital civilization means embracing digital technology that is good for human well-being.Digital technology should not only benefit those who are familiar and able to afford digital technology,but also those who are unfamiliar or unable to afford digital technology.The expression of civilization and the system of it require institutional measures.Constitutional governance is the highest embodiment of human civilization.Naturally,digital constitutional governance is the institutional vision of a new digital civilization.The connotation of digital constitutional civilization is focused on two aspects,that is,national civilization in the era of digital civilization is measured by the degree of digitization achieved,which is mainlyreflected in the degree of digital infrastructure construction centered on digital technology.On the other hand,it is measured by the level of constitutional civilization.Digital constitutionalism in theory is something that needs to be developed,and it can only be accomplished through actual digital constitutionalism.However,in practice,we should not overestimate digital constitutionalism.This is not a panacea.