1. Jean-Jacques Rousseau
The Swiss-born philosopher Jean-Jacques Rousseau is best known for his theory on the social contract and a citizen-focused perspective on governance that has helped lay the foundations of the principles of the French Revolution. The famous opening words of “The Social Contract or Principles of Political Right”, “Man is born free, but is everywhere in chains” render the idea that the legitimacy of governments can and should be questioned, as coercive intervention is most of the times against the interests and fundamental rights of the citizen. However, Rousseau had differentiated between two types of “General Will”: a governor-oriented type that is constructed and enforced by those who hold political power and has the purpose of creating obedient citizens (thus establishing a paradox through legitimizing “the chains”), and a utopian and democratic polity that revolves around and derives from the citizens’ will.
The latter is the sum of all the opinions of the members of a polity and is presented as being so strong and deliberate that it cannot be questioned (and those who do question it are in error). It was this theory that inspired the drafting of the well-known Article 6 of 1789‟s “Declaration of the Rights of Man and of the Citizen”, which stipulates that “Law is the expression of the general will. Every citizen has a right to participate personally, or through his representative, in its foundation. It must be the same for all, whether it protects or punishes. All citizens, being equal in the eyes of the law, are equally eligible to all dignities and to all public positions and occupations, according to their abilities, and without distinction except that of their virtues and talents. ”
It is exactly this idea that has encouraged one million internet users to sign the petition for Net Neutrality in the United States of America, and has inspired the likes of Paul Bernal to write about a “Symbiotic Web” that is centered on the internet users’ needs and interests. Regardless of their different opinions on the subject matter and the approaches they would have undertaken if they were decision makers, the tangled up in blue users have decided to find the common ground and come together for a greater purpose – thus constructing a general will.
However, Rousseau’s other conception of general will revolves around a more authoritarian, government-driven model: being “forced to be free”. This interpretation has been the backbone of many non-democratic models, as the nature, extent, and limitations of freedom can be questioned. As documented by The Freedom House‟s “Freedom on the Net Report”, there are many instances of internet censorship and interventions with freedom and privacy of the users, yet no clear example or statement can point to the paradox of being under a forced freedom.
2. James Madison
On the other hand, James Madison, one of the Founding Fathers of the United States of America (usually referred to as “The Father of the Constitution”) and one of the most reputed political theorists of all time, had published Federalist No.10 on November 22nd 1787 under the name Publius, as a part of the series that he, Alexander Hamilton and John Jay collaborated on for the purpose of promoting the ratification of the United States Constitution. The essay is notable for the innovative way of tackling the issue of factions in a time frame when unity was thought to be a mandatory prerequisite of the nation-building process.
Madison had defined a faction as “number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”. Furthermore, he presented the different ways in which factions can be approached from the point of view of a legislator and concluded that any arbitrary intervention is against the fundamental rights the federal Constitution wants to establish, but can also lead to unwanted results for the polity. Also, another specificity of Madison’s article can be observed once the reader discerns between the two apparently-antithetic terms that are emphasized throughout the text: “Union” and “Faction”. The writer doesn’t undermine the existence of a “public good” – in the sense that certain actions can be beneficial for all the stakeholders involved – but at the same time boldly states that having divided interests or approaches towards tackling an issue is a part of human nature: “the latent causes of faction are thus sown in the nature of man”. Also, the legitimacy of divided interests (with citizens and non-state actors opposing the vision of their rulers) is also encouraged, as Madison acknowledges that those in government are not always “enlighted”: “It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.”
If the American political theorist was to observe the dynamics or the internet, he would most likely be very concerned with governmental intervention that the network is or can potentially be subjected to. His idea of the federal government involved empowering citizens and organizations with effective means that would counterbalance unwise or abusive actions on behalf of the elected officials. Furthermore, Madison would most likely be an advocate of a universal act or charter that regulates the internet in general terms, whilst also creating a decentralized system with local governments that can enforce laws and policies suitable for the interests of the local communities. If universal privacy and a principle according to which real-life human rights become applicable on the internet would be enacted at a global scale through governmental agreement and both commercial and civil consent, then such a “Constitution of the Internet” is the closest model to an ideal type.
3. Polybius, Rousseau, and Madison on the Utopian Wide Web
The assumption of this model is that no radical changes should be brought, so that none of the three major stakeholders (governments, internet companies, and users) involved should receive a drastic loss of power. However, given the status-quo, it is the end user who has to walk on desolation row and adapt to various policy changes on which he or she has minimum influence or leverage – therefore, the Utopian Wide Web should provide more control over means and content to the users. For this, as Polybius would decree, a clear separation of powers and a system of checks and balances should be enacted both nationally and internationally – and this is where James Madison steps in. The international system is widely based on universalism, which sometimes tends to be a construction that is followed solely by liberal democracies. A federal type of constitution that, just like the Universal Declaration of Human Rights, is signed by nation states and regulates the conduct of the internet is a must in the process of constructing the Utopian Wide Web. Also, this constitution should be enforced by an international judicial body that can be appealed to from every state, regardless the regime type. However, there is no way for this constitution to be drafted without a certain extent of compromise. The general will, as defined by Rousseau, is not that obvious unless it is imposed; but it provides a way of reaching a common ground for a good that transcends petty and narrow personal, corporate, and governmental interests – thus establishing a document that can be agreed upon, that shall serve as a foundation until the winds of changes shift.
The Constitution of the Utopian Wide Web should cover and regulate elements of both governance and commercial law: first of all, the users should know when, why, and by whom they are being monitored – regardless the nature of the surveillance; secondly, the users should have to formally agree upon trade practices involving their personal data, in a way that makes them fully aware of the consequences; thirdly, governments should be allowed to collect data to a limited scale and a targeted audience, so that there is a “benefit of the doubt” principle that is applied for the users – data collection can be legitimate, well-intended, and undergone for security considerations, yet the mass Oceania-like surveillance might be abusive; internet companies should be more accountable in relation to governments, so that they can no longer evade taxes or provide illegal content worldwide from states that allow it – in this sense, there should be a larger-scale collaboration between states, that is guaranteed and assumed by the Constitution; in relation to the users, internet companies should become more accountable and persuasive within the legal framework established, especially when it comes to collecting, storing, and selling personal data – changing the rules during the game may be legitimized to some extent by social contract theory (or a notice that obliges the end user to comply to the new changes), yet limitations should be made to prevent abuses; last but not least, all the three stakeholders should work together in order to build a safer web and eliminate all the threats and sources of law infringement through a simple and comprehensive system of reporting that balances freedom of expression with libel law.
Jean-Jacques ROUSSEAU, “The Social Contract of Principles of Political Right”, Translated by G.D.H. COLE, Rendered by Jon ROLAND of the Constitution Society, Books I-III, 1762, Available at: http://www.constitution.org/jjr/socon_01.htm
James MADISON, “The Federalist No.10 – The Utility of the Union as a Safeguard Against Domestic Faction and Insurrection”, Daily Advertiser, November 22nd 1787, Available at : http://www.constitution.org/fed/federa10.htm
Freedom House, “Freedom of the Net Report 2014”, Available at: https://freedomhouse.org/report/freedom-net/freedom-net-2014
Paul BERNAL, “Internet Privacy Rights – Rights to Protect Autonomy”, Cambridge University Press, Cambridge, 2014, p. 53-82
Adrianne JEFFRIES , “Net Neutrality Petition Gets A Million Signatures”, The Verge, January 30th 2014, Available at: http://www.theverge.com/2014/1/30/5362166/net-neutrality-petition-gets-a-million-signatures-free-press
“Declaration of the Rights of Man and of the Citizen”, Human Rights and Constitutional Rights Page, Available at : http://www.hrcr.org/docs/frenchdec.html
Internet Picture: http://www.ip-watch.org/weblog/wp-content/uploads/2015/04/internet-freedom-freepress.png