overview - Dossier: Digital (De)regulations in Constitutional Democracy (Mediações, vol. 30, n.2 – 2025/2)
Organizers: Pedro Henrique Vasques (UNICAMP) and Lucas Baptista de Oliveira (Cedec and Flacso)
We take as our starting point that the model of social rights, as elaborated by democratic constitutionalism, is central to the neocosmopolitan project of human rights, and has faced impacts of two interrelated orders: the erosion of the political, economic, and social conditions of its realization, brought about by neoliberal governmental reason; and the emergence of new problems, resulting from technological changes (Koerner et al, 2019). Therefore, the practical experience of recent years has been marked by the ambivalent effects produced by the omnipresence of the digital in everyday life, from personal routines, social and economic interactions to relations with the State.
In all sectors, one can point not only to the intertwining of the positive and negative effects of the digital, but also to the reconfiguration it produces in forms of action and interaction, and in the modalities of objectification and subjectivation. For example, while digital technologies have brought productivity gains in economic activities, they have also created new domains of activity, provoked wealth transfers, reconfigured entire sectors of the economy, and changed forms of work and relations between workers. Mass unemployment in some activities, with effects of precarization and degradation of workers' conditions, is combined with the creation of new occupations, which require specific profiles and skills. In the broader context of competition among entrepreneurial subjects, corporations, and states, technological innovation would appear as a central concern in the government schemes of social conduct (Barry, 2001).
The changes have not been minor in democratic politics either. It can be said that constitutional democracy is affected in its multiple dimensions –normative-moral, juridical-institutional, decision-making processes, forms of collective action, etc. Its political processes are transformed and inflected, with decisive yet uncertain impacts on its continuity and existence.
One aspect of this change is the emergence of so-called populist, proto-fascist leaderships. The potentials opened up by the internet –for information, communication, and interactions between voters and politicians– initially showed their emancipatory potential, particularly for strengthening and deepening democracy. Electronic voting, media decentralization, independent real-time news production, as well as controls through computer means and the computerization of governmental procedures were aspects of a digital participatory democracy or e-government whose features became clear in the 2000s. That is to say, the 2000s were characterized by the emergence of many websites and software focused on interconnecting users and fostering social exchanges and links, as well as promoting the creation and circulation of content produced by these users –especially with the emergence of social networks (Gendler, 2021).
But the complexification of relations with the digital, especially through the improvement of data extraction mechanisms, allowed the development of hybrid warfare strategies, creating conditions for a political nightmare (Zuboff, 2019). The formation of Internet bubbles and the mass production and dissemination of fake news foreshadowed the creation of the so-called misinformation ecosystem. The processes of forming democratic will in the public sphere, which could be analogous to a market controlled by oligopolies, transfigured not into autonomous interactions in open spaces of communication, but into battlefields shaped by big technology companies (big techs) where organized actors, whether state or not, face each other daily in multiple spaces, supported by bots, algorithms, and other instruments that intensify and multiply interventions. Misinformation amplifies prejudices, contributes to hardening positions, intensifying polarizations, and unconditional support for leaderships that seemingly emerge out of nowhere and position themselves on the frontiers of democratic politics.
The 'agonization' (Mouffe, 2011) of interactions was similar in the legal field, where courts and other legal actors shifted from being 'managers' of the everyday life of a competitive society to a position of censors and interveners in continuous proto-political confrontations. The computerization processes of courts and legal instruments provided broad and cheap access to litigation, bringing the opportunity for argumentation and negotiation between perspectives of good life. However, this condition opened space for repeated conflicts, caused by multiple actors adopting complex strategies, in which courts become stages of public confrontations reflected and echoed in various planes of social interaction. The intensive use of artificial intelligence by various judicial agents and the adoption of automated judicial processes bring new layers of problems, raising new issues of access, equity, and respect for due process of law.
Initial analyses of artificial intelligence emphasized its deleterious effects on human agency. This would occur due to the deepening of inequality of capabilities, the brutal disparity of resources, and the impacts of those technologies on the subconscious processes of desire formation, driven by algorithms oriented by the imperatives of accumulation of big techs and the governments of major states (Eubanks, 2018; Morozov, 2018; Rouvroi and Berns, 2013; Srnicek, 2017).
The generalization of the use of digital algorithms, including communication between them, would have produced a mutual reinforcement effect of discrimination against the poorest, gender, ethnicity, and unconventional behavior patterns. Such mechanisms have created a normative aggregate outside the law –and sometimes against it– that codes the past, but does not build a future according to values and choices made explicit and deliberated (Koerner et al., 2019). More recent research has adopted the perspective of interactions and practices, showing tactics of resistance, inversion of positions, reversal of polarities. Diversified appropriations and possibilities of meaning have become a symbolic battlefield over digital technologies. (Lupton, 2019)
The perspective of algorithmic regulation initially seemed advantageous for addressing these challenges, insofar as its dual sense (regulation of algorithms by authority and regulation by algorithms, producing preconscious normativities) already indicated the strategic game of creation, resignification, reinvention, reversal of forms of regulation, and resistance. The term also indicates the necessary use of algorithms –or digital artifacts/devices– for controlling the production, operation, and effects of problematic algorithms, which implies the regressive problem of who controls the controller (Yeung and Lodge, 2019; Wischmeyer and Rademacher, 2020). But it is necessary to think beyond the circularity of algorithms and their control, to take into account the structural conditions (platform capitalism) or governmental rationality that shape digital production. Additionally, the effects of regulating human life by algorithms cannot be simplified, as here bureaucratic attitudes caused by repetitive processes of daily life are at stake, as well as, inversely, various forms of resistance (Koerner, 2021; Vasques, 2021).
This multiplicity of fields, dimensions, responses, and strategies implies the challenge of researching and reflecting on how to relate to these processes. The problem arises of elaborating the thresholds of regulation, rethinking the terms of control, and the possibilities of imagining and promoting schemes of political action, social uses of digital technologies, and perhaps promoting a kind of democratization of algorithms. There is even consideration of computerized systems compatible with other imperatives, dissonant in relation to competitive efficiency, and that thus enable other relationships with the forms of life of constitutional democracy.
Thus, the dossier proposes to receive works that analyze these strategies of 'algorithmic regulation' in and for constitutional democracy. In which the exposure of the effects and implications of digital technologies is worked from the point of view of the forms of reception, inflections, resistances, and imagination of responses to the challenges of this new situation.
