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Constitutional Crowdsourcing to Reconcile Demos with Aristos and Nomos

Publikation: Bidrag til tidsskriftTidsskriftartikelForskningfagfællebedømt

After the failed Icelandic experience of constitutional crowdsourcing (2009-2012), some of the country’s legal community, parliamentarians and policymakers affirmed that the constitutional draft proposed by the constitutional council of 25 citizens and approved unanimously on 27 July 2011, was unrealistic, unenforceable and against the legal and political tradition of the Nordic country. According to these legal experts, the final approval of that constitutional draft would have plunged the country into a totally unstable legal situation. The fully ex-novo character of the constitution would also disenable the judges to use jurisprudence to resolve the legal penumbras created by the potential application of the text. The people of Iceland focused excessively on the constitutional accommodation of human rights, leaving aside other essential factors that a constituent process might take off.

This paper first remarks on how revolutionary and innovative the constitutional crowdsourcing experience was. From Solon, Ephialtes and Cleisthenes that laid out the foundation of democratic Athens, to modern constitutions that have been penned by few people men, regardless of the political system in which it is framed, been liberal democracies or authoritarian states. Derrida stated there is a sort of “semantic indeterminacy” at the core of democracy and that constitutional crowdsourcing is a way to intervene in this indeterminacy. The Icelandic example enlightened that there is a way to mediate between the demos and the politeia. The paper follows analysing the Icelandic experience from a critical perspective to identify the elements that ended crowdsourced constitution. The paper will also deal with legal ontologies that are necessary to analyse when citizenry is participating in a legal experience. The final segment of the paper aims to obtain different elements to improve the constitutional crowdsourcing to be considered in future constituent processes around the world.

From a formal perspective the paper simulates a judgment between a Plaintiff Demos (representing “We the People” the entitled sovereign in the majority of our constitutional documents) and two Respondents Aristos (the economic and “intellectual” aristocracy, who occupies the position of the ancient monarch in modern constitutional democracies and will defend its socioeconomic privileges at the expense of a feasible democratic progress). The quaestio Iuris is whether constitutional crowdsourcing can be accepted as a constituent process, taking into account that it affects the highest legal and political norm that juridifies the state. The court in charge to issue the verdict is composed by the participants in the 4th Annual Conference of the Cambridge Journal of International and Comparative Law and each of the readers of this paper. The independence and objectivity of the court is presumed because of its composition (legal and political expertise) and the theme of the conference (the concept of democracy as a progress). In this sense, the question whether the concept of constitutional crowdsourcing should be accepted as a new core element of the definition of democracy seems to fit ideally with the topic under scrutiny. The quaestio jurisdicitonis is granted in a first instance by the call of the CIJCL and later by all the readers of the paper in a sort of universal Dikasteria. The grounds of admissibility are linked with the admission of the conflict as a valid assumption.
TidsskriftUkrainian Journal of Constitutional Law
Udgave nummer1
Sider (fra-til)1-25
Antal sider25
StatusUdgivet - 1 sep. 2017

ID: 182894768