We,the Replicated: Constitutional Revolutions After Digital Twinning and Cyber-Physical Social Systems

Abstract

This article examines how digitalization challenges the foundations of constitutionalism and, in particular, the notion of constitutional revolutions. It contends that Cyber-Physical Social Systems (CPSS), whose advent is already under way in industry, infrastructure, city management, mobility, and housing, have set a new logic in motion that relies on the replication of the social world through the so-called ‘digital twinning’. Drawing on societal constitutionalism and social theory, the article argues that this has significant consequences for how power is constitutionalized, since the emerging ‘smart’ governance tends to permeate society and to dissolve the abstraction necessary for constitutional revolutions. While contemporary proposals from constitutional theory, such as digital constitutionalism and cybernetic socialism, address these transformations, they fall short of reviving the radical dimension of constitutional change. Finally, the article looks at how to re-specify the revolutionary legacy and how the notion of constituent power could play out vis-à-vis the digital sphere.

In contemporary research on digitalization, the inquiry of its constitutional implications assumes pride of place. ¹ It seems unanimous that new technologies exert transformative effects on legal and political processes. New technologies change the way we make decisions, how we conceive of ourselves as individuals and collectives, and, most notably, how power is constituted and exercised. There are already distinct proposals under way for a ‘digital constitutionalism’ (Celeste 2019; Golia 2023; Pollicino and Gregorio 2021). They cover a vast array of problems, starting with what it could mean to have fundamental rights in the digital space or whether we can assign legal personhood to algorithms, robots, or interfaces (Teubner and Beckers 2022). It is asked how to reconcile the ‘normative clash between the rule of law and the rule of tech and how to define the spaces for the rule of law to limit the exercise of unaccountable powers in the digital age’ (De Gregorio 2023, 59). Yet, this article argues that more is at stake than how to apply constitutional essentials, such as the rule of law, democracy, or fundamental rights within a separate, digital sphere. It contends that ‘Cyber-Physical Social Systems’ (CPSS) are already in the course of affecting our societies and their characteristic modes of social differentiation (DeNardis 2020; Radanliev et al. 2021; Zhou et al. 2020). This may have severe repercussions on the constitutional tradition as a whole, which will be explored in the following.

The article departs from the assumption that constitutionalism represents an overarching historical-evolutionary device. It has always served for both: constituting the exercise of power in society and providing the grounds for changing existing, constituted orders. As evidenced by a large number of studies on constitutional history, the constitutional tradition has grown from an interplay of legal regulation and revolutionary change. ² It not only juridified societal interaction but also resulted from constitutional revolutions. Of pivotal importance is what Harold J. Berman has called in his seminal study ‘Law and Revolution. The Formation of the Western Legal Tradition’ the ‘becoming immanent of the transcendence’ (Berman 1983, 178). ³ In the constitutional tradition, he writes, ‘there is a tension between the ideals and realities, between the dynamic qualities and the stability, between the transcendence and the immanence (…). This tension has periodically led to the violent overthrow of legal systems by revolution’ (Berman 1983, 10). In a similar vein, Hauke Brunkhorst has argued in his ‘Critical Theory of Legal Revolutions‘ that the distinction between transcendence and immanence was transferred by law to the ‘immanence of society’ (Brunkhorst 2014, 27). Following this line of analysis, the constitutional tradition has always internalized the option of radical change. It allowed the existing legal order to be revolutionized in the name of higher-ranking law. Thereby, it provided a foothold for transcending what is given, keeping the future of society open.

In the following, this article examines how digitalization affects this legacy. The first part analyzes emerging ‘Cyber-Physical Social Systems’ (CPSS). It identifies a new mode of societal differentiation that departs from how established social systems operate. The second part clarifies the arising constitutional repercussions. It demonstrates that CPSS privilege a logic of government (managing and administering society) over the exercise of rule (representing coherence and hierarchy of the constitutional order). They sideline the notion of constituent power, so central to the revolutionary legacy. Against this backdrop, it turns out that not only recent legal but also recent socialist-cybernetical approaches to the digital sphere have pains to address the arising issues. The final part explores how to re-specify the revolutionary legacy by inquiring if and how the notion of constituent power could play out.

From Social to Cyber-Physical Social Systems: A New Mode of Differentiation

Constitutions are concerned with constituting and limiting the exercise of power through law. Moreover, they regulate the interaction of different social spheres, such as politics, law, the economy, or the sciences. They not only constitute public authority but also society. ⁴ The ambition is holistic since constitutional orders establish a higher-ranking law that allows the respective community to reflect on its foundational procedures, commitments, and historical learnings. When it comes to how constitutional orders are challenged by digitalization, a lot hinges upon whether it is considered a partial social area – such as the internet, social media, or platforms – in need of being constitutionalized or whether it reaches further and transforms society as a whole, be it in the direction of a ‘next society’ (Baecker 2007), a comprehensive ‘platform capitalism’ (Srnicek 2016), or a new era of an encompassing ‘algorithmic governmentality’ (Berns and Rouvroy 2013). Echoing such insights, the advent of new technologies cannot be confined to a particular sector of society. Rather, they transform how social communication is mediated, power is exercised, and individuals conceive of themselves and of society as a whole. Therefore, it seems compelling to start on the more general level of how social systems operate. As will be argued in the following, we can identify the advent of Cyber-Physical Social Systems (CPSS), which proliferate new modes of differentiation. The section begins by recalling the inherited role of abstraction in social systems. It then highlights how CPSS depart from them, with profound consequences for constitutional orders.

At the outset, it may be apt to recall how social systems are configured in modern societies. The characteristic functional differentiation of social systems, such as politics, law, the economy, the arts, or the sciences, relies on processes of abstraction. This already provided a starting point in most approaches to making sense of modern society, from Karl Marx to Max Weber, both of whom highlighted the advent of abstract social forms in the economy (commodity form) and in politics (state form and bureaucracy). But contemporary systems theory has qualified these abstractions more closely: Social systems rely on self-referential communication circuits that distinguish themselves from their respective ‘social environments’ and follow their obstinate codes (such as power-superiority/power-inferiority in the political system, law/unlawful in the legal system, and true/untrue in the scientific system). ⁵ By giving abstract form to matter, they reduce complexity, carry out their specific functions, and adapt to ever-changing social circumstances.

This is visible in constitutional orders as well. It is not by accident that the forerunners of systems theory, such as Niklas Luhmann, Talcott Parsons, and Gunther Teubner, were especially concerned with constitutionalism (Luhmann 2004, 120 ff.; Parsons 1964; Teubner 2016). From this perspective, it legally constitutes systemic communication circuits and regulates interaction between them. It abstracts from given social complexity by relying on formal procedures as well as general norms and conceptions, such as ‘rights’, ‘the people’, ‘the common good’, the ‘welfare state’, and ‘academic freedom’. They need to be interpreted, applied, and respecified, most notably in political legislation or by courts and constitutional adjudication. Further, constitutions must be considered instances where a ‘structural coupling’ takes place (Teubner 2016, 30 ff.). By ‘structural coupling’ one has to understand that the interaction of law, politics, and other social systems is marked by differentiation, as well as by mutual support (e.g. legal procedures constitute political legislation and protect economic property). Against this backdrop, these couplings are not reducible to the political constitution of the state. We encounter constitutional couplings in other spheres of society as well – be it in the sciences, the economy, or the arts. In all of these spheres, power relations and specific communicative media are constituted and limited through higher-ranking legal regulation (Teubner 2012, 15 ff.).

However, constitutions do not exhaust themselves in regulating social complexity. They stabilize normative expectations. ⁶ Such normative expectations are being upheld, even in cases of deception. Most paradigmatically, they can be detected in fields, such as law, politics, morals, and religion: I vote for a certain party even if it has lost in the preceding election or is second in the latest opinion poll; we stick to legal norms even if they are massively breached; I believe in God even though I get sick and will at some point die. In all of these instances, the initial expectation does not match what is given. Normative expectations do not guarantee immediate success. They are motivated by more fundamental or long-term considerations. However, they perform crucial functions. On the one hand, they are a source of stability since they safeguard consistency over time, but on the other, they trigger more radical types of social change through providing a foothold for counterfactual aspirations and scenarios.

In our contemporary world, however, we witness new systemic configurations – and one may speculate whether they will remain partial or whether they will undermine the inherited modes of regulating society. The driving force is technological achievements, which make it possible to build fine-grained ‘cyber’ representations of the social world and establish dense coupling and feedback chains between physical, human, and social entities (Radanliev et al. 2021). In the research on digitalization, this has been investigated under various headings, such as the ‘metaverse’ (which replicates the ‘universe’ on a meta-level) or the ‘internet of things’, extending wired networks to all kinds of physical entities. ⁷ In the meanwhile, in fields as different as infrastructure, industry, health, mobility, and city management, the notion of CPSS has become prevalent. ⁸ In CPSS, social and physical processes are connected through a cyber-layer and constitute a communicating system. The communication is organized via the virtual cyber replication – a twin to the social and the physical layer. The virtual cyber-twin is coupled with the real world in real-time (see Figure 1).

Figure 1.

Cyber-Physical Social Systems (CPSS).

An early and influential definition stems from 2002. It was presented in the context of lifecycle management. Here, it was assumed that a ‘digital informational construct about a physical system could be created as an entity on its own. This digital information would be a “twin” of the information that was embedded within the physical system itself and be linked with that physical system through the entire lifecycle of the system’ (Grieves and Vickers 2017, 92). The arising infrastructures have already started to become part of our daily lives, such as in ‘smart’ homes, ‘smart’ cities, or ‘smart’ traffic regulation (Cassandras 2016). Not least, the notion of CPSS has amounted to a focal point in the research on digitalization across a wide range of disciplines (DeNardis 2020; Helbing and Sánchez-Vaquerizo 2023; Korenhof et al. 2021).

The most illuminating example is new factories that rely on a virtual cyber-factory, which replicates the human workforce, machines and technology, available resources, and circulation patterns and communicates via feedback chains with the real factory (Schaupp and Diab 2020; Tao et al. 2019). The advent of smart factories is already under way in the automotive industry and supply chain management. Companies such as BMW, SAP, or SIEMENS are in the course of establishing their factories, administrative units, and supply chains as a ‘shared, immersive, persistent physics-based digital space where humans and machines interact with one another, and with data, enhancing the physical world as much as replacing it’ (Hughes and Immermann 2024, 4). Within these factories and units, different levels of social interaction and physical entities (such as machines, computers, and smartphones) are connected through the real-time communication between a replicated cyber-level and the real world. The basic innovation consists in the following: CPSS erect a cyber replication of the ‘real’ world and connect both levels through feedback loops.

Further, CPSS play a crucial role in ‘planetary’ or ‘Earth governance’ (Dryzek, 2016; Kotzé, 2020; Wadlig, 2025). ⁹ Here, government administrations, often in cooperation with digital corporations, are already modelling the interaction of ecological and social systems. They create digital twins that collect all data, from human movements to the things around us to wind and ocean currents. Since 2022, for example, the European Commission has been running an initiative called ‘Destination Earth’. It is geared to erect a ‘highly accurate digital model of the Earth (a digital twin of the Earth)’ (https://destination-earth.eu) that can be used to make adjustments to changing ecological and social conditions. To this end, the technical requirements are being created at various levels, but in the future, all possible institutions will be able to access them in order to optimize their governing activities.

The characteristic mechanisms consist of a specific technique – ‘twinning’ – that constructs a virtual twin of the real world (i). Henceforth, a real-time interaction between the social-physical world and the twin is established to the point that the difference between them is erased (ii). Upon closer inspection, we will find that the configuration of abstraction processes at stake differs from those of inherited social systems.

Digital Twins

(i) By using AI and Big Data, it has become possible to correlate the available data in a way that crosscuts the existing differentiation of social systems. Comprehensive social patterns are identified and used to determine decision-making and regulation. A poignant example stems from US criminal law, where legal courts decide bails and punishments after an algorithm has correlated all the data from a vast range of contexts, such as housing, the health system, or existing debts (Brenner et al. 2020). Similar phenomena can be observed in the case of social welfare administration (Eubanks 2018). Here, data from a vast array of social contexts are correlated, and benefits are automatically assigned to or denied from the affected citizens.

Now, in CPSS one can discern a move beyond such recognition of patterns. The material-physical infrastructure – the ‘things’ surrounding us – as well as humans and their social life are all integrated within an encompassing cyber-system. ¹⁰ Thus, a CPSS can be defined as ‘a system of interconnected systems (computers, cyber-physical devices, and people) “talking” to each other across space and time and allowing other systems, devices, and data streams to connect and disconnect’ (Yilma et al. 2021, 2). Thereby, CPSS are able to cope with large chunks of data and, on these grounds, erect a virtual layer that does not abstract from the real world but replicates it or at least approximately mirrors it. ¹¹ All kinds of data are correlated, and patterns across contexts are detected. Consequently, a cyber-twin is established, which replicates the prevalent interaction patterns. It becomes possible to experiment with the data, forecast scenarios and their probability, and return a feedback chain to the real world, providing either prepared data, offering nudges for decision-makers, or even taking automatic decisions by algorithmic design. The cyber-twin tends not to abstract from the social world but to mirror the available data and perpetuate what is registered. ¹²

Real-Time Optimization

(ii) Second, close communication between the real world and its digital twin becomes possible. Changes on the virtual level are directly integrated into the real world and vice versa – the twin and the real world enter immediate optimization. A ‘real-time acquisition from the physical world and information feedback from the cyberspace’ is observable (Wang and Wang 2016, 3). ¹³ In the research literature, this is often discussed as bi-directional data flow (Grieves and Vickers 2017, 92). Therewith, the distinction between the virtual representation and the world blurs. Changes on the virtual level become part of the real world and vice versa without any relevant time gaps. The twin ‘is no longer separate from the system but in fact is the system itself’ (Batty 2018, 818). It overcomes abstraction processes as it is geared at ‘minimising the temporal and spatial distance between the representation and the represented: by being realtime and connected to the physical entity by means of a bi-directional data flow (…)’ (Korenhof et al. 2021, 1757). A telling example is again industry: The real factory – the machines, the workforce, their circulation, etc. – is replicated in a comprehensive virtual model. It becomes possible to experiment and forecast what is likely to happen in the future and, once explored, to optimize the regulation (e.g. the allocation of resources and production cycles, etc.). In new smart factories, the twinning has reached a point where changes on the cyber level are integrated into the production process, for example, it makes no difference whether a calibration is changed in the real machine or in the cyber-twin. On closer inspection, this pushes the feedback chains in the direction of real-time optimization since the distance between the physical-social world and its virtual representation is no longer discernible.

Taking into account the characteristic features of CPPS, it turns out that how systems cope with complexity undergoes a fundamental change (see Figure 2). The central innovation consists in correlating large chunks of data, erecting a virtual twin, and coupling through immediate feedback loops with the real-existing social body. It becomes possible to make predictions about the future and govern conduct and decision-making. As Figure 2 outlines, CPSS exhibit a different mode of differentiation that contrasts with established functional differentiation. Instead of relying on abstraction from societal complexity, they operate through twinning and smart real-time optimization.

Figure 2.

Modes of Differentiation.

At first sight, this may seem quite positive. As argued by the sociologist Armin Nassehi, we become aware that we live in a society that is structured by recurring and, in most cases, predictable patterns. He emphasizes that ‘digitalization only makes these regularities visible (…)’ (Nassehi 2019, 44). It may even be that CPSS help us to take decisions and behave more adequately because we are able to do better justice to societies’ complexity. A smarter regulation can enter the stage, and a perfect immanence of society seems within reach: The cyber layer enjoys a certain level of autonomy. It analyzes the data, is able to experiment with it, calculates different scenarios, and forecasts what will be. Consequently, it could overcome the typical flaws of social regulation, such as short time horizons, bureaucratic self-interest, epistemic misconceptions, normative overload, and exaggerated idealism. Orit Halpern and Robert Mitchell try to capture this change towards effective optimization through what they call the ‘smartness mandate’: ‘(…) the smartness mandate embraces the ideal of an infinite range of experimental existences, all based on real-time adaptive exchanges among users, environments, and machines. Neither reason nor rationality is understood as necessary guide for these exchanges, for smartness is presented as a self-regulating process of optimization and resilience’ (Halpern and Mitchell 2023, 4). Taking these observations into account, one may speculate whether CPSS pave the way for a more reliant societal regulation. They signal a paradigm shift: from systems that govern through abstraction and differentiation to those that regulate through replication and synchronization. The constitutional question that follows is not simply how to regulate these technologies, but whether they affect constitutionalism as a whole.

Constitutional Revolutions: Rule and Government

Building on the previous section’s argument, it may be apt to legally restrain CPSS with regard to fundamental rights, transparency, privacy, bias, or property issues. But as will be argued in the following, there lurks a more far-reaching problem because CPSS reconfigure the modes of power inherent to the constitutional tradition. In this section, the article analyzes how these modes of power have evolved throughout constitutional history. On these grounds, it will be demonstrated that CPSS totalize a logic of government to the detriment of constitutional rule and revolutionary change. This is done in two steps: In the first step, drawing on insights from constitutional history, it is recalled that the constitutional tradition has always relied on combining two different modes of power: ‘rule’ and ‘government’. In the second step, it is inquired how ‘rule’ has been connected to revolutionary change. These insights are finally used to refine the constitutional analysis of CPSS.

Two Modes of Power

In the first step, it is worth emphasizing that constitutional orders combined different modes of power in the way they regulated society. Most notably, a fundamental tension between two distinct modes has always been stressed ¹⁴ : On the one hand, constitutional orders constitute the exercise of rule (Herrschaft). They aim to represent the unity and the coherence of the political order while abstracting from societal complexity. But on the other hand, a lingering tension exists with what has been called ‘government’ – public authorities administering societal interaction and proceeding from problem-solving and management. As noted by the Philosopher Giorgio Agamben, both ‘political paradigms’ tend to support each other from a ‘functional’ point of view but remain ‘antinomical’ because they rely on conflicting rationalities and foundations (Agamben 2011, 15).

In order to explain what is at stake in this tension, it may be apt to recall its roots in constitutional history. The antinomic relationship can be traced back to the conflict between sacerdotium and regnum in medieval Europe. ¹⁵ The notion of sacerdotium delineated the sphere of the Catholic Church, its primacy, unity, and transcendent ambition, which was represented by priests and monks. In contrast, regnum designated the distinct activity of administering profane problems. Though constituting a coherent and symbolic body, the church had to govern in the real world and also address the needs of real, existing believers. In the intellectual scene of the Middle Ages, the relationship between both spheres was a constant matter of concern. Most paradigmatically, the tension appeared in the Papal Revolution of the eleventh and twelfth centuries in the ‘Investiture Controversy’, which revolved around the power play between Pope Gregory VII and the princes and kings. Pope Gregory claimed the primacy of sacerdotium over the sphere of regnum (Tellenbach 1996, 109 ff.). His revolutionary program was expressed in the ‘Dictatus Papae’. With these 21 short sentences, the Pope strived towards constitutionalizing all worldly powers. Provoking the princes and kings, the church claimed the constituent ‘competence-competence’ in all matters and even dismissed and appointed political and administrative officials. Harold J. Berman, the chronicler previously mentioned, argues that the Papal Revolution must be considered the primal scene of the constitutional tradition because it transferred the transcendence of sacerdotium to the plane of immanence, ‘incarnating’ the renewal of society:

‘It was not transcendence as such, and not immanence as such, that was linked with the rationalization and systematization of law and legality in the West, but rather incarnation, which was understood as the process by which the transcendent becomes immanent’ (Berman 1983, 178).

Berman posits that the struggles around the papacy paved the way for a recurring pattern of social change through constitutional revolution. From then on, the privileged option to incite radical change consisted in confronting legal order with the incarnation of an abstract revolutionary law and subverting the order in the name of either a just constitution anchored in ancient times or one to be realized in the future. In the words of Berman, each revolution ‘has sought legitimacy in a fundamental law, a remote past, an apocalyptic future. (…) Each eventually produced a new system of law, which embodied some of the major purposes of the revolution’ (ibidem, 18). In the aftermath of the Papal Revolution, the basic tension between sacerdotium and regnum was transposed from the controversy between the church and the princes to early modern statehood. The political sphere replicated the arising tensions (Thornhill 2011, 32). On the one hand, the advent of public authority went hand in hand with the proliferation of concepts such as sovereignty, rights, or commonwealth – all of them somewhat reminiscent of sacerdotium. On the other hand, the distinct activity of governing was intensified. It was not so much concerned with these abstract issues but with concrete problem-solving and the administering of society. The paradigmatic example was the spread of the so-called Polizey in early modern Europe which was used as an umbrella term for the regulation of social life on the administrative level – ranging from poverty to the use of alcohol. ¹⁶

As evidenced by Michel Foucault in his ‘History of Governmentality’, the tension between rule and government resurfaced from the eighteenth century onwards with new intensity. Administrative apparatuses that tackled specific problems, such as commerce and the economy, health, and education, were reinforced. Moreover, the ‘population’ became an object of government during this time. ¹⁷ According to Foucault, this turn to governing the population stood in contrast with the ‘exercise of sovereignty’ as a site of rule because it was not concerned with asserting authority but with steering social conduct (Foucault 2007, 73). One could observe that the notion of a corps social, composed of individuals on a demarcated territory and in need of being governed, was consolidated. ¹⁸ Government activity was geared towards cultivating this social body, and it gathered data in order to do justice to the existing social patterns. Hence, as argued by Foucault, modern statehood resulted from new forms of knowledge (such as political economy, statistics, and probability studies) and relied on a specific ‘governmentality’ as the new dominant mode of power. ¹⁹ But it was not yet possible to replicate the social body as a comprehensive cyber-body. Rather, the emerging administrative state was defined by different branches of regulation (apparatuses in prisons, schools, the health system, the economy, etc.). It dealt with the iterating social patterns and assigned specific roles, such as the ‘prisoner’, the ‘student’, and the ‘believer’, to the individuals. In all of these contexts, it was still necessary to abstract from the multitude of the people. These abstractions provided functional benefits. It became possible to reduce societal complexity, assert state authority, and establish the differentiation between the political sphere and other societal spheres, first and foremost, the economy (Thornhill 2011, 193 ff.).

Constituent Power and Revolutionary Change

In a second step, it needs to be noted that the expansion of government was only half the story. The constitutional revolutions of the eighteenth century transformed the sphere of rule. They were driven by the assumption that the exercise of rule must be derived from a higher-ranking law. The respective constitutional norms were not meant to safeguard existing social patterns but to revolutionize them by ‘overthrowing’ the ancient régime (Habermas 1974, 87). ²⁰ The constitution did not solely reflect what was already the case but what should be realized in the future (even if it did not conform with actual social practices). The ultimate source of lawmaking was located in the constituent power of the people. From now on, the constitution emanated from the power of the people to constitute politics and society. The ‘people’ was defined as the foundational force at the heart of the community. It retained the right to revolutionize the constitutional order and remained partially outside the reach of constituted powers. ²¹ The notion of the people did not coincide with the multitude of the population. It was meant as an abstract category that should be concerned with self-legislation and the exploration of the common good. ²² Certainly, the most influential expression of this abstraction can be found in Rousseau’s well-known distinction between the people’s volonté générale and the multitude’s volonté de tous. Accordingly, the volonté générale does not result from an arithmetic operation that aggregates opinions. It abstracts from the given in a sphere of deliberation among free and equal citizens. ²³ Though secularizing the notion of the people, the revolutionary approach was still reminiscent of sacerdotium. It did not replicate the social world, but it abstracted from and, when necessary, countered and even destituted social reality (Garapon and Lassègue 2021, 207). ²⁴

Therewith, revolutions became an option in social and political life. They can occur again, and this reality is more than just poetic expression. Far-reaching consequences emerge through the internalization of disruptive change and subversion in the overall constitutional framework (Kalyvas 2005; Lindahl 2007). Although the constitutional order may not be the outcome of identifiable revolutions and revolves around reform and gradual adaptation, revolutionary change remains an enduring scenario: The pouvoir constituant looms in the background of pouvoir constitués. ²⁵ It inserts the option of radical social change into the preponderant managerial government of law, politics, and society. The constitution provides a standpoint from which society is able to reflect on the adequateness of the existing order and the actual state of society, keeping the horizon of history open. Thereby, as argued by Hauke Brunkhorst in his comprehensive study on legal revolutions, constituent power attains an ‘evolutionary significance’ as societies become able to innovate and transform themselves beyond the established, already ‘constituted’ avenues (Brunkhorst 2014, 9).

We can use these two steps in order to refine our analysis: As we have seen, the passage to CPSS relies on the extended capacities to replicate and govern the social body. They shift the constitutional tension between rule and government in favour of the latter. This may sound like good news. CPSS could provide fertile ground for more adequate regulation, overcoming traditional obstacles to rationalizing societal regulation, such as limited and subjective knowledge, long time horizons, or bureaucratic self-interest. However, there lurks a regressive and anti-revolutionary flipside (see Figure 3): The cyber-replication of the social body may lead to conservative consequences because it erases the immanence of the transcendence and undermines the necessary abstraction processes. It tends to totalize the sphere of government and conceive of the people not as an abstract entity capable of inciting constitutional revolution but as an aggregate of ‘data populations’ in need of being governed (Halpern and Mitchell 2023, 36 ff.). ²⁶ While being entangled in ever-expanding loops of optimization, the systems themselves can neither be abolished, liberated, or revolutionized, nor subverted, refounded, or destituted, since the arising cyber-government is always inclined to perpetuate existing patterns and correlations.

Figure 3.

CPSS and the constitutional tradition.

In sum (see Figure 3), the immanence of the transcendence is displaced by an immanence of optimization. Hence, CPSS are likely not to account for radical, disruptive, or revolutionary options that take part in our social world. A conservative approach to history is asserted, which does not acknowledge that revolutions are one of its crucial drivers. In this regard, one can identify socializing effects of CPSS as they spread a governmental logic in approaching all societal issues.

The Revival of Cybernetic Socialism

The pressing question arises whether constitutional theory already responds to the expanding smart government of CPSS. As we have seen, CPSS rely on the ability to govern ‘data populations’ and crosscut established social systems. But the shifted balance between rule and government may not give rise to suspicions. The turn to CPSS could demonstrate crucial advantages. It might seem a rational improvement. Why not govern better, faster, and more responsively? Moreover, constitutional principles, such as freedom of speech or non-discriminatory equality, could profit from the increased capacity to disperse power, objectify procedures, and free decision-making from bias (Sunstein 2022). Hence, it may be compelling to constitutionalize CPSS and control new power relations. In this context, it seems worth recalling that recent strands in constitutional scholarship examine ‘the spaces for the rule of law in an algorithmic society’ (De Gregorio 2023, 59). It is inquired how fundamental rights and inherited distinctions, such as between the public and the private, can be realized in the digital sphere. ²⁷ From this perspective, for example, the plea for an ‘Internet Bill of Rights’ should be the starting point for strengthening fundamental rights and counteracting the potential biases of new technologies. In particular, the ‘horizontal application of fundamental rights vis-à-vis private parties’ is called for (Pollicino and Gregorio 2021, 16). Further, algorithmic regulation itself amounts to a crucial object of constitutionalization. As algorithms regulate communicative circuits on a higher-ranking level, they need to be legally regulated (Perez and Wimer 2023). Not least, whether oversight boards or participatory mechanisms can establish digital citizenship on behalf of the users has been inquired. Another recurring theme is algorithmic bias. Here, it is revealed how AI systems and algorithms exacerbate discrimination and social inequalities (Botelho 2024). In the light of these discussions, a rule-of-law approach seems to be the way to go: While – once – the powers of the administrative state were constitutionalized, now the expanded regnum of tech needs to be restrained by law (see, e.g. Huq 2020).

But the question remains how to take the shifted balance of rule and government and the revolutionary legacy of constitutionalism into account. This is the point where participatory approaches to digital democracy become attractive. It is not surprising that we witness a revival of a distinct constitutional project in the current debate: Cybernetic socialism, which relies on a fundamental critique of new power relations (Apolito 2020; Lavanderos 2022; Morozov 2019). At first sight, it may seem like a promising reaction pattern to revive the notion of radical social change. However, as will turn out in the following, it needs further scrutiny and, in its present form, fails to address the ‘immanence of the transcendence’.

In order to understand the recent resurgence of cybernetic socialism, one needs to recall the socialist constitutional tradition that took off in the nineteenth century. ²⁸ Its main assumption was that capitalism’s liberal constitution suffered from internal flaws. From this perspective, it safeguarded the concentration of wealth, power, and property in the hands of the few. The argument was twofold: On the one hand, liberal constitutions rely on an atomistic conception of legal subjectivity and start from the assumption of seemingly ‘natural’ competition among individuals. ²⁹ On the other, they restrict self-legislation because it may not touch upon private property. As already evidenced by Marx in his seminal early writings from the 1840s on the ‘Jewish Question’ and the ‘Critique of Hegel’s Philosophy of Right’ (Marx 2010a), liberal constitutions are inclined to block the extension of democracy to other societal spheres, most notably material production and reproduction in the economy and the family. A ‘true democracy’ – as heralded by Marx in the ‘Jewish Question’ (Marx 2010b, 30) – should overcome the limitations of the liberal constitution and socialize the economy as well.

However, there was always fierce opposition to this critique of liberal constitutionalism. The main argument was that ‘socialization’ – that is, the organization of society according to the needs and interests of the people and the dispersion of social and economic power – was a laudable idea that, nevertheless, encountered severe problems if realized. In the twentieth century, this was expressed in the widespread saying that socialism was ‘good in theory but failed in practice’. The objection was elaborated by the forethinkers of neoliberalism, Ludwig von Mises and Friedrich Hayek, in the ‘socialist calculation debate’ in the 1930s. They debated whether it was beneficial to organize the economy according to societal needs. ³⁰ The obvious background to this controversy was the turn towards socialism in many countries of the world, but also towards more state-led approaches in capitalist economies. In this context, Hayek and von Mises made their case against socialism. They argued that collective planning proved unable to cope with the flood of information and complexity. From their perspective, decision-making becomes inefficient and undermines all sorts of innovation through imposing long-lasting spirals of deliberation in large bureaucracies. Thus, planning is likely to collapse into the rule of bureaucratic elites. In contrast, the neoliberals privileged free markets, entrepreneurial activity, and the price mechanism, which allocates knowledge and encourages innovation through competition in a decentralized manner (Biebricher 2018; Slobodian 2018). Major insights of the calculation debate have always accompanied the strive for more adequate modes of social organization throughout the twentieth century. The seminal proposals for economic democracy and market socialism from the 1960s and 1970s onwards can be seen as already reacting to the arising problems. ³¹

Obviously, the turn to CPSS changes the scene. Since it becomes increasingly possible to model a corps social that cuts across social contexts and establishes immediate feedback loops to the real world, the severity of the aforementioned objections dwindles. In principle, CPSS can cope with a high level of complexity in short time horizons. An economy that corresponds to the needs and interests of the actual society and circumvents large bureaucracies seems to be in reach. Historically, such options were already examined within early cybernetic socialisms in the 1960s and 1970s on both sides of the Iron Curtain, which aimed at establishing more refined control mechanisms in the economy (Lavanderos 2022). They relied on the latest advancements in cybernetics during the post-war period. The notion of cybernetics was derived from the Greek kybernetes which designates steering and governing. It was meant to capture complex systems of regulation and control that could be identified in fields as different as the military and the first steps of computer technologies after the Second World War (Pickering 2010; Wiener 1965).

While different countries in the Eastern Bloc and actually existing socialism were already experimenting with more flexible modes of planning, the seminal case for cybernetic socialism was Salvador Allende’s Chile from 1970 to 1973 (Medina 2014). It did not solely socialize big business but also relied on cybernetical regulation. Without going over all the ramifications of the Chilean trajectory, it is worth inspecting the notion of democracy that grounded the cybernetic turn. The aspirations of one of the leading cyberneticians, Stafford Beer, are telling at this point. He was ruminating about the introduction of the so-called ‘algedonic meters’ (Gardiner 2022, 8). Beer envisaged the people being connected through TV and specific sensors that monitored how the emerging cyberfolk reacted to governmental policies, either through uttering ‘algos’ (Greek: pain) or ‘hedone’ (Greek: pleasure). ³² Every citizen was able to choose between degrees of happiness and satisfaction through algedonic meters. According to Beer, this would then allow for an immediate democratic ‘socialization’, that is, the organization of society through the constant monitoring of social needs, humours, and interests.

In the 1970s, Chile’s democratic socialism remained episodic, but one can find support for its renewal in new digital technologies. ³³ They make it easier to introduce responsive planning, which is open to innovation and copes with the flood of information. It is not surprising that a contemporary strand of research revives socialist cybernetics as the most promising avenue for constitutionalizing society and connects it to CPSS (Nardelli et al. 2023). Planning procedures could rely on ‘self-determining cells that are connected through horizontal and vertical links that involve verbal negotiations on the best use of scarce resources, as well as a centralizing force to resolve the coordinative complexity of the task. (…) optimization algorithms could assist in determining contestable solutions’ (Grünberg 2023, 131). Against this backdrop, cybernetic socialism turns out to be a distinct constitutional project: It would seek to address the massive concentration of power and property relations in the digital realm. Then, it would constitutionalize CPSS in a way that is responsive to the actual needs and interests of the population. As we have seen, technology plays a crucial role in this process. It may not replace political deliberation or collective decision-making all the way down, but it would combine it with a ‘digital feedback structure’ that allows for responsiveness and innovation (Morozov 2019, 53 ff.). ³⁴

Socialist cybernetics asks how to democratize and socialize the governmental logic. However, Beer’s ‘algedonic’ conception of democracy is telling at this point: it takes the immediate needs of the population into account, which are then mediated by a plurality of institutions on different levels. Thereby, it endorses the shifted relationship between rule and government while ‘democratizing’ the side of government. But the arising smart-socialist governance still lacks a revolutionary dimension that constitutionalism once internalized through constituent power. If CPSS are not just new technologies but a new regime of power, then what is needed is not only legal regulation or democratization but also the search for re-specifying the ‘becoming immanent of the transcendence’ (Berman).

Respecifying Constituent Power: Destituent Inversions

So far, it has been argued that CPSS undermine the inherited interplay of politics, law, and society, since it becomes possible to replicate societal patterns and steer them via immediate feedback chains. This leads to severe repercussions on the constitutional tradition. The most significant transformation concerns the relationship between governance and rule. In this context, it was contended that the strife for restraining the power of CPSS (digital constitutionalism) or democratizing them (cybernetic socialism) may be apt but tends to lose sight of the revolutionary dimension. Taking up this observation, it will be asked in the following whether we are able to respecify revolutionary change and constituent power to CPSS.

In order to do so, the article focuses on the characteristic inversion that animated constitutional revolutions throughout centuries. We can make sense of it as follows: Once social orders reflected themselves as being constituted through a higher-ranking law, relying on the ‘people’ as constituent power, revolutionary change amounted to a lingering option. Spreading out from the interaction of Roman law and Christian theology in the high Middle Ages, the politico-legal grammar could be inverted in order to destitute, reform, or revolutionize constituted powers. In these cases, political movements established a certain distance to the existing societal order from within constitutional form. The notion of constituent power served as a major point of reference. Political movements staged themselves as incarnating the ‘people’ or, at least, as bringing a popular will to the fore. They reclaimed popular sovereignty and opposed it to the existing power-holders – up to the point where they claimed to express the ‘whole’ and constitute a new higher-ranking law. One can make a long list of how this constituent inversion played out that spans from the early bourgeois revolutions to the nascent labour movement, from the struggle for national liberation to the collapse of actually existing socialism (Calhoun 1982; Laclau 2005; Rosanvallon 1998). Admittedly, political contestation was triggered in various instances and was articulated by a variety of social groups. But nevertheless, all these movements drew in one way or another on a revolutionary conception of constituent power. They staged themselves as ‘the people’ and inverted the politico-legal grammar of the constitutional tradition against the existing order.

The constituent inversion was already vibrant in the foundational outburst of the Great French Revolution as demonstrated by Michael Sewell in his study on the storming of the Bastille (Sewell 2005, 225 ff.): The Parisian population stormed the Bastille prison on July 14, 1789. But then, the assembly of the Third Estate tied up to the politico-legal grammar of popular sovereignty in the subsequent days. It interpreted the insurrection as an act of constituent power of the people and declared itself as representing the nation as a whole in the aftermath. Thus, the assembly of the Third Estate underwent a transition. It staged itself as national assembly that wielded sovereignty. According to Sewell, the revolution must be conceived of as an ‘articulation between two modes of activity (…): on the one hand political and philosophical claims about the sovereignty of the people (…), on the other, acts of crowd violence of the sort that the Parisian populace used to defend themselves and the National Assembly from the king’s troops on July 14’ (ibidem, 236). Once popular sovereignty was ‘up for grabs’ (ibidem, 245), it served as a central device through which existing constituted powers could be revoked. However, recalling the argument of this article, the advent of CPSS and Digital Twinning erases the option of inversion against constituted powers from within. This leads to the question of whether we have to abide by these outlooks. Is there some leeway for a re-specification?

In the research on digital constitutionalism, we can already identify one attempt that was concerned with this set of issues. From the 1990s onwards, scholars from neo-Marxist Italian operaismo highlighted such inversion within systems of digital control (Hardt and Negri 2000, 60; Negri and Hardt 2004, 91 ff. Pasquinelli 2014; Christodoulidis 2026). This transferal needs to be scrutinized, as it already grappled with the relocation of constituent power. Here, it was assumed that late capitalist societies undergo a process of ‘real subsumption’ under the expanding logic of capital. This was conceived of along the lines of the ‘fragment on machines’ – a chapter of Marx’ preparatory writings for Capital, the ‘Grundrisse’ (Marx 2010c, 80 ff.). In these passages, Marx emphasized that the forces of ‘living labour’ remain the foundation for modern machines and automatization. By living labour, one has to understand not only manual labour but also the shared knowledge resources that flourish from cooperation in the labour process. Marx emphasized that this ‘general intellect’ amounts to an ‘immediate productive force’: ‘(…) knowledge has become an immediate productive force, and hence the degree to which the conditions of the social life process itself have been brought under the control of the general intellect and remoulded according to it’ (ibidem, 92). Under conditions of automatization, however, living labour becomes objectified. Marx proceeds: ‘In machinery, objectified labour physically confronts living labour as the power which dominates it and actively subsumes it under itself (…)’ (ibidem, 83). Thus, the arising capitalist control tends to dominate ‘general intellect’ as it aims at safeguarding property relations.

Drawing on this line of analysis, operaist approaches engaged in a decisive move from the 1990s onwards. They identified constituent power with living labour and general intellect. In his seminal book on constitutional theory, Toni Negri argued that ‘living labour, instead, embodies constituent power and offers it general social conditions through which it can be expressed: constituent power is established politically on that social cooperation that is congenital in living labour (…)’(Negri 1999, 33). ³⁵ According to Negri, the collision between living labour and new systems of control already attains constitutional quality. An ‘inversion of the inversion’ is envisaged: While capitalist systems of control invert living labour, it is conceivable that this ossified inversion is – again – re-inverted by the multiple resistances of living labour. Against this backdrop, resistances against systems of control appear in a different light. They are not reducible to being simply resistant or critical, but at their heart they must be understood as being connected to constituent power. Consequently, the ‘inversion of the inversion that capital has operated against work is, in the “Fragment on Machines,” not an operation of overthrowing, but an operation of constitution’ (Negri 1991, 163). Taking its cue from such considerations, resistances surrounding the digital sphere – ranging from free software movements to hacker activities and worker’s strikes in the Tech-Industry – were reconstructed as expressions of constituent power, possibly reclaiming ‘swarm intelligence’ (Negri and Hardt 2004, 91 ff.; Wark 2004). Rightly understood, they were seen as bearing the potential to invert the general intellect within the digital sphere in a vertical direction – the ‘general intellect from below’ against the ‘systems of control from above’.

This move came at a price. The notion of constituent power was decoupled from the politico-legal grammar of the constitutional tradition and overgeneralized to all sorts of resistant practices. But this was the explicit aspiration: To resurrect a notion of constituent power that stood at a distance from the inherited conception in constitutional law. According to Paolo Virno, for instance, constituent power differs from the ‘progressivist notion of popular sovereignty’ as it cannot be embodied in a sovereign unity or acquire a ‘juridical personage’; rather, it can only be expressed in ‘forms of nonrepresentative and extraparliamentary democracy’ (Virno 1996, 200). Thus, he accused the inherited constitutional tradition of misconceiving constituent power’s connection to the immanent forces of living labour. On these grounds, Virno rejected the dialectic of constituent powers and constituted power as it seemed to be entangled in the history of dominating control from above. He considered popular sovereignty to be a repressive instrument used by the capitalist class. Virno, as well, collapsed living labour and general intellect into constituent power and decoupled the latter from the inherited notions within constitutional law and politics.

At this point, we encounter a missing link. Admittedly, one can resurrect such an alternative tradition and locate constituent power in living labour. But nevertheless, throughout history, political systems were revolutionized through the inversion of constitutional law. Even in economic class struggles – at least from a certain point on – social movements inverted the already existing constitutional grammar and turned them against constituted powers (Laclau 2011; Möller, 2023). Subsequently, this allowed raising general claims and making use of power resources (law, legislation, constitution-making, and state’s monopoly of force) in order to effectively transform societies. The appeal of constituent power did not only reside in bringing horizontal types of cooperation ‘from below’ to the fore but also in connecting them to constitutional form and, thereby, concentrating power in order to revolutionize societies. When respecifying the legacy of constituent power to CPSS, the central problem consists in the fact that they lack the typical inversion mechanism. This is why the simple transferal, as recapitulated here, of constituent inversion to the digital realm tends to fail.

In contrast, a sound re-specification would start differently: It would ask whether and how the inherited mode of inversion and its distinctions (constituent power/constituted power; immanence/transcendence) can be re-specified. A more promising approach may already be under way in research on digitalization. In this context, we can observe a growing emphasis on disconnection. For instance, still taking its cue from the operaist tradition, Matteo Pasquinelli has argued in his recent study on the advent of AI that we ‘first we should engage in a meticulous work of deconnectionism, undoing – step by step, file by file, dataset by dataset, piece of metadata by piece of metadata, correlation by correlation, pattern by pattern – the social and economic fabric that constitutes them in origin’ (Pasquinelli 2023, 198 f.). In a similar vein, it was argued that we have to ‘contest the underlying objectifications of the entire trajectory of technology’ (Joque 2022). While in the 2000s, there was still some hope that resistances in the digital realm could incite social change, CPSS’ invasiveness has led to the point where a politics of disconnection seems more plausible.

It may also be of deeper significance that we witness the spread of ‘rights to disconnect’ as well as legislation on the circumstances of the digital sphere (see e.g. EU’s Digital Service Act). ³⁶ For instance, in France, Germany, Italy, Greece, or Slovakia a ‘right to disconnect’ was introduced in labour law (Ray 2016; Rosita 2019). It asserts that workers may have the right to disconnect from company communication and remain unattainable for days or hours. There are several options to make sense of it. One can see it as a social right in the long history of labour law. But one could also consider it as a classical liberal right in the sense that it protects the employee’s autonomy and privacy, which are partly detached from professional communication, inhibiting the totalizing urge of availability for the job. Such tendencies could be extended and gain a new quality as a political right that pervades society. ³⁷ Such rights to disconnection would fix, on the constitutional level, that disconnections may be a persistent trump that counters the expanding sphere of smart government. The right to disconnect would acknowledge the existence of non-digitalized spaces and practices that may be used for processes of fundamental reflection and, in some cases, for deactivating, transforming, or revolutionizing the architecture of certain CPSS. However, it needs to be noted that the direction of inversion is situated differently in this case. Here, the constitutional rights dimension is ‘inverted’ against CPSS’ totalizing urge not from ‘below’ but from a horizontal direction: The constitutional politics/law nexus is used to inhibit and undermine the CPSS smart governance. Thereby, it moves beyond digital constitutionalism and radicalizes its ambition: It uses law in order to destitute its totalizing urge.

In the light of this observation, we may be inclined to reposition the inversion issue. As we have seen, there lurks a peculiar mismatch between the constitutional nexus and the manner in which CPSS are operating. Transferring notions of constituent power, or simply applying them, runs the risk of not taking these mismatches into account. Then, we would locate constituent power and the potential of revolutionary change on the site of data populations while ignoring that abstraction processes are not available and the concomitant aggregation of effective power resources has no foothold.

It could be, however, that exactly these mismatches allow for relocating the inversion mechanism as playing out not within CPSS, but in a horizontal direction between CPSS and the established nexus of law and politics. At least, it needs to be acknowledged that we live in a historical juncture that resembles not yet a perfect society of control under the auspices of CPSS but rather an interregnum. We live in a state where competing modes of ordering coexist and are clashing vis-à-vis each other. The constitutional nexus of law and politics is still available while CPSS and Digital Twinning are in the course of usurping terrain, not least bolstered by big tech companies. Given these conditions, the scope for inversion is transformed: It does not only creep within one system but also between these different modes of social ordering. If this holds, popular sovereignty – the dialectic of constituent and constituted powers and the concomitant forms of action such as law, rights-claims, and legislation – can still be used in order to invert a competing mode of ordering at the foundational level. Consequently, constituent power may thus assume a ‘destituent’ function in the first instance. It could be the starting point for aggregating power in order to block, limit, or dismantle adjacent systems of control in the name of the people. By preserving spaces of disconnection, it would keep the revolutionary legacy available, and it may open up new spaces in which the immanence of transcendence may step in at a later point.