Fonti private e legittimazione democratica nell’età della tecnologia

Private sources and democratic legitimacy in the age of technology

Abstract

The emergence of increasingly intrusive technologies in the lives of individuals, and sometimes indispensable for the satisfaction of primary needs or social rights (as occurred during the epidemiological emergency from Covid-19), poses a long series of problems, including those involving the ways in which we tend to regulate these phenomena. As is well known, in fact, political decisionmakers struggle to keep up with technology, which poses ever new and increasingly complex
problems. So technology, and in particular the big lords of algorithms (the so-called big tech) tend to self-regulate, to produce an effective right, observed on a global scale and, recently, even jurisdictionalised through the creation of real private judges. The private production of law in the field of technology is perhaps the last frontier of the process of disintegration of legal positivism, which sees the beginning of a work of fraying of the power to produce binding rules
(which, even if not "valid", are effective), no longer exclusively relegated to the hands of the deputy constitutional bodies. For some time now, scholars have been pointing out the deviation from the traditional models of government, based on exclusively public and political 'vertical' structures, and the arrival at models of governance, characterized by an everincreasing role of private actors. Today, the central problem consists in recovering from the circuit of democracy those rules and disciplines that are already given in certain 'private' sectors, such as technology, of central public interest. This is the challenge that technology poses to law, and law to democracy.