Introduction

The chapter introduces the book’s key themes. Regulating communicative spaces is shown to be a historical constant. The chapter then situates the study within internet scholarship and defines key concepts, such as internet, internet law, internet governance, and the concept of normative orders. Next, it sets out the six hypotheses that are tested, developed, and ultimately upheld in the study, followed by an explanation of the methodological approaches taken for the analysis contained within each chapter. The chapter also contains an overview of the study’s chapters, including sections on the genealogy, ontology, legitimacy, finality, and impact of the internet’s normative order.

Theorizing Order(s) on the Internet

Chapter 5 shows the potential of theoretical approaches to solving the normative crisis on the internet. In turn, key theories of order in the broader sense are presented and discussed. Though the majority of these theories were not posited with a view to the internet, the present study draws from their epistemic potential for the regulation of the internet. Theories (and key representatives of that theory) include systems theory (Luhmann/Teubner), constitutionalization/global constitutionalism (Pernice), transnationalism (Viellechner, Calliess), legal pluralism (Seinecke), multinormativity (Forst), network theory (Vesting), interoperability theory (Palfrey, Gasser, Weber), massive online micro justice (De Werra), conflict studies (Mueller), and infrastructuralization (DeNardis). Further, the study assesses the historically sedimented discourses on internet governance and their influence on ordering the internet as well as more recent attempts to “define online norms.”

The Normative Order of the Internet in National Legal Orders

Chapter 7 takes a close look at the norms of the normative order of the internet and studies how they are integrated into national legal orders and especially how non-traditional norms, such as standards and soft law—a legal “tertium” next to national and international law—are legitimated through national legal processes. The chapter shows that national legal orders have recognized international law and national law. Monism and dualism have emerged to explain how the two dominions relate to each other: the choices range from subordination to coordination with varying primacies. Together with global constitutionalists, the study goes beyond this debate. It will argue that this tertium of normativity has been recognized by national orders: normative instruments that are neither “national” law nor “international” law, but part of the normative order of the internet. This enrichment of the legal vocabulary has been called a “change in the composition of the medium of law” by Jürgen Habermas.

Normative Disorder on the Internet

This chapter is dedicated to identifying the countervailing forces to the project of establishing a normative order of the internet. Chapter 4 makes the case that internet regulation today is in normative disarray. Due (inter alia) to normative dissonance and politico-economic preferences of rational actors between normative players and the disconnect between regulatory layers, the internet has partially fragmented. Normative froth, normative friction, and normative fractures are exemplified as elements of disorder. The overall fragmentation of the internet is described in more detail as being caused by technical, political, and legal developments. However, the forces at work are truly centrifugal in that they are only “apparent” when experienced from within the system. Observing from the outside, there are actually centripetal forces at work, keeping objects within the rotating system. These “centripetal” forces, including technical elements of the internet, the “internet invariants,” but also shared commitments to internet integrity are key elements of (the self-constitutionalization of) the normative order of the internet.

The Normative Order of the Internet

Chapter 6 presents in detail the normative order of the internet based on the notion of a necessary identification of, and turn toward, a nomos of the internet, which is embedded in, and configures, the normative order of the internet. The study shows that this order has many facets, contains national, international, public, and private norms, but has importantly developed its own normative logic, instruments and rules on the relation of actors and its own conception of the legitimacy of norms. The normative order provides a normative infrastructure in which the internet’s nomos, including its means of normative production and justification, are anchored. The study will determine norms belonging to the normative order of the internet to be those that have a material (non-trivial) and a normative (not merely factual) connection to the internet as a network of networks. These norms will be shown to be formally and materially legitimated. Formal legitimation will be shown to be achievable through symbolic validation through norm emergence in processes involving multiple actors. Material legitimation is possible through norms being determinate enough for their purpose (thus allowing for non-binding instruments), coherent with the core principles of the normative order of the internet, consonant with the order’s values as expressed in its principles, and adhering systematically to the normative order as a whole.

Conclusions

The concluding chapter sums up the main themes of the book: this study has established the emergence of a normative order of the internet. This order integrates norms that are materially and normatively connected to the use and development of the internet at three different levels (regional, national, and international), of two types (privately and publicly authored), and of different character (from ius cogens to technical standards). The consideration of the initial hypotheses, as addressed in the preceding chapters, is summarized and brought together here, demonstrating the logical progression and overall coherence of the study’s discussion, arguments, and final conclusions.

Law and Governance of the Internet

Chapter 3 analyzes existing international legal rules safeguarding internet integrity and presents the evolution of internet governance as a global regime for the internet. While there exist no international treaties directly protecting the internet (or protecting states and society from its dangers), indirectly protective norms exist both in treaty law and customary international law. Further, the majority of established principles of international law are relevant for the use and development of the internet. By describing existing elements of the internet’s order and the normative dynamics that have shaped the evolution of internet-related principles, especially related to internet governance, Chapters 2 and 3 together set the scene for the discussion of normative disorder on the internet.

Foundations of Online Order

Chapter 2 opens with a foundational analysis of regulatory approaches to technology. In particular, the chapter’s sections sketch the regulation of ICTs through time, the criticality of the internet in its societal context, and the importance of protecting the internet in the common interest. Thereafter, special challenges of internet regulation are examined, including the role of non-state actors (intermediaries) and the flexible use of non-traditional regulatory means, such as code and algorithms. The chapter concludes with a consideration of which of the study’s hypotheses as to the hybridity of the internet and the importance of values-based normativity are borne out by the foregoing analysis.