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| Pix Credit ChatGPT per author instruction |
Spanish language version HERE.
I am delighted to be able to participate in the International Symposium: The Technological Paradigm Shift in International, Transnational, and European Law organized by my brilliant colleague and friend Fabio Bassan and sponsored by (and held at) Roma Tre. The Program follows below and I am excited to listen to, and eventually read, the marvelous interventions of the participants.
The recent evolution of technology is changing the paradigms of life and social relations. It also produces a significant impact in legal and economic relations on European, Transnational and International levels. Malicious use of technology can be decisive for the outcome of an election, but it can also produce benefits for the protection of fundamental rights, or for the welfare state. It can decisively assist a state's war apparatus, and it can protect and preserve peace. It shifts multinational corporations into private orders, even potentially endowed with their own currency, and enables forms of protection of individuals and the community from them as well. It can result in a huge expenditure on electricity, but also in a reduction in environmental impact.My contribution is titled The Virtual Platform Within the Temples of Law: Law and Platform as Subject and Object of the Other. The remarks follow below and may be accessed here as well. A short abstract gives the reader the gist:
Nevertheless, the result is not neutral: oversight of the use of technology is slower than technological evolution, and it amplifies the limits of Transnational, Supranational, International law. * * * In this conference we aim to debate on the implications of the issue in its various applications, and to understand whether there is a path of cooperation that can replace all or part of the current confrontation scenario.
These remarks examine the dialectics of legal subjectivity under conditions in which law is increasingly encoded, operationalized, and enforced through technological systems that exceed human cognitive capacity. It asks whether digital platforms have altered the fundamental vectors of legal subjectivity and sovereignty, shifting authority away from human-centered legal orders toward techno-mediated regimes. Using the biblical figure of Samson as an extended metaphor, the paper contrasts a traditional view—platforms as vessels subject to external sovereign control—with a more radical alternative in which the platform itself becomes both edifice and agent, exercising autonomous will. Building on Fabio Bassan’s Digital Platforms and Global Law, the analysis traces contemporary regulatory trajectories: transnational private ordering, state–platform production agreements, and intermeshing public–private norms. It considers the nature of the subjectivity of platforms by reference to the analogous problem of the subjectivity of the multi-national enterprise; each is both an object, a passive object-space defined by the actions and placement of traditional legal subjects, and the system for ordering those relations. While Bassan’s framework plausibly treats platforms as vessels embedded in evolving legal structures, these remarks pushes further, suggesting that platforms may emerge as independent regulatory subjects, potentially sovereign in their own right. As automated and generative decision-making systems internalize governance functions, platforms may constitute their own normative orders, translating control back to humans only as needed. The result is a future of competing sovereignties that destabilizes traditional categories of law, authority, and subjectivity.
The Spanish language version (versión en castellano) of the Remarks may be accessed here--ENGLISH; ESPAÑOL.The English language version also follows below.
These images suggest the progression behind which is located the transformation of legality and its subjects.
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Pix credit here (Athens central market)
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And here is what ChatGPT produces when asked to write a simple code for a self contained market ("Below is a minimal, self-contained “marketplace” example implemented as a single-file web app (HTML + CSS + JavaScript). Assumption: you want a simple digital marketplace where users can list items for sale and purchase them locally (in-memory)—no backend, no payments, no auth. This is the smallest useful scaffold you can later extend to a real system."):
<html lang="en">
<head>
<meta charset="UTF-8" />
<title>Simple Marketplace</title>
<style>
body {
font-family: Arial, sans-serif;
margin: 40px;
background: #f5f5f5;
}
h1 { margin-bottom: 10px; }
.container {
max-width: 700px;
background: white;
padding: 20px;
border-radius: 6px;
box-shadow: 0 2px 6px rgba(0,0,0,0.1);
}
input, button {
padding: 8px;
margin: 5px 0;
}
button {
cursor: pointer;
}
ul {
list-style: none;
padding: 0;
}
li {
display: flex;
justify-content: space-between;
padding: 10px;
border-bottom: 1px solid #ddd;
}
</style>
</head>
<body>
<div class="container">
<h1>Simple Marketplace</h1>
<h3>Add Item</h3>
<input id="name" placeholder="Item name" />
<input id="price" type="number" placeholder="Price" />
<button onclick="addItem()">List Item</button>
<h3>Market Listings</h3>
<ul id="market"></ul>
</div>
<script>
const market = [];
function renderMarket() {
const ul = document.getElementById("market");
ul.innerHTML = "";
market.forEach((item, index) => {
const li = document.createElement("li");
li.innerHTML = `
<span>${item.name} — $${item.price}</span>
<button onclick="buyItem(${index})">Buy</button>
`;
ul.appendChild(li);
});
}
function addItem() {
const name = document.getElementById("name").value;
const price = document.getElementById("price").value;
if (!name || !price) return alert("Enter name and price.");
market.push({ name, price });
document.getElementById("name").value = "";
document.getElementById("price").value = "";
renderMarket();
}
function buyItem(index) {
const item = market[index];
alert(`You bought ${item.name} for $${item.price}`);
market.splice(index, 1);
renderMarket();
}
</script>
</body>
</html>
The Virtual Platform Within the Temples of Law: Law and Platform as Each Other’s Subject and Object
Larry Catá Backer
Remarks prepared for International Symposium: The Technological Paradigm Shift in International and Transnational and European Union Law; Session on Technology and International and Transnational Legal Subjectivity, Roma Tre, Rome, Italy 29 January 2026
ABSTRACT: These remarks examine the dialectics of legal subjectivity under conditions in which law is increasingly encoded, operationalized, and enforced through technological systems that exceed human cognitive capacity. It asks whether digital platforms have altered the fundamental vectors of legal subjectivity and sovereignty, shifting authority away from human-centered legal orders toward techno-mediated regimes. Using the biblical figure of Samson as an extended metaphor, the paper contrasts a traditional view—platforms as vessels subject to external sovereign control—with a more radical alternative in which the platform itself becomes both edifice and agent, exercising autonomous will. Building on Fabio Bassan’s Digital Platforms and Global Law, the analysis traces contemporary regulatory trajectories: transnational private ordering, state–platform production agreements, and intermeshing public–private norms. It considers the nature of the subjectivity of platforms by reference to the analogous problem of the subjectivity of the multi-national enterprise; each is both an object, a passive object-space defined by the actions and placement of traditional legal subjects, and the system for ordering those relations. While Bassan’s framework plausibly treats platforms as vessels embedded in evolving legal structures, this paper pushes further, suggesting that platforms may emerge as independent regulatory subjects, potentially sovereign in their own right. As automated and generative decision-making systems internalize governance functions, platforms may constitute their own normative orders, translating control back to humans only as needed. The result is a future of competing sovereignties that destabilizes traditional categories of law, authority, and subjectivity.
1. Introduction.
I will be speaking to the dialectics of subjectivity in the face of tech, that is on the question of whether tech itself has upended the conversation about subjectivity in the context in which the text of law is now encoded in language beyond the capacity of humans. In other words, has tech now changed the rules of the game of subjectivity in a way that changes the vectors of legal subjectivity. Within that interplay, one might presume, notions of sovereignty become critical in the sense that the sovereign object is now in play—states (for the human centered conceptual universe in which we mostly operate consciously), the transnational (public internal structures/legalities and private law production/societal relations, and platforms as virtual territorializations within which subjectivity is re-arranged or confused.
To those ends I offer up an illustration of my point. The images reference the well-known story of the Israelite judge hero of the Book of Judges Chps 13-16, who having betrayed his own vows is betrayed, in turn, by the Philistine woman Delilah, his hair cut (the sign of his strength), his eyes gouged out and then humiliated he seeks redemption but at the cost of his own life. Let me suggest the two stories that technology, and technological kompetenz suggests. The first, on the left, is the conventional image, Samson, shorn of the outward elements that signify his power calls on God, the true source of that power to bring down the temple of the Philistines and die along with them. The second, on the right, suggests an alternative way of looking at this—here Samson is not shorn of his hair and it is he by the invocation of his own will that pulls down the temple of the Philistines. Samson is the platform, as well as its edifice. The relevant question, then, focuses on the temple, its old ordering, the new embodiment of power, and its own attributes. Professor Bassan suggests that our techno-kompetenz, our platform Samson, remains a vessel, the subject of legal ordering, the expression of which must change with the times in observable ways. That is plausible, from the perspective of the human.
Nonetheless, it may be worth a minute to consider the alternative, that the only thing that survives into the future is the platform. It is the platform that will determine not just its own constitution, but also the language and cognitive structures within which it will forge its own reality. In that context, and at its most radical, I will pit forward the possibility that platform, itself, remains a regulatory or legal subject. However, its subjectivity will be bound by a different sovereignty, one that may well explode the old categories—law, subjectivity, connection, authority. . . . control, in favor of something new, something inhuman, that to the extent it is necessary to do so as it relates to humanity and its management, will be translated back to the human in forms that humans will be taught to understand, and perhaps to need.
To that end I start with Fabio Bassan’s brilliant baseline—Digital Platforms and Global Law—around which I will wrap my own remarks today. Professor Bassan posits that the complexities of legal systems and their structures have become all the more so in the face of the new generation of virtual realities and legal fictions that tech has made possible. This is all the more so with respect to that one corner of virtual realities and legal fictions that tend to affect the human communities more ostentatiously—virtual factories that create digital content or services—that Professor Bassan focuses on. He suggests trajectories of regulation that must break free from old categorizations, and perhaps also to come extent the old barriers of sovereignty embedded within states. These transpose the regulatory project inward, within platform systems, and outward within the spaces in which platforms engage with other and usually traditional forms of regulatory spaces. The essence suggests a transposition of the essence of the EU directive out into other regulatory planes—of traditional legislation (whether at the national, international or transnational level as framing, leaving to its legal subjects the tasks of implementation and compliance. At the same time that arrangement must break the boundaries of traditional sovereign hierarchies precisely because platforms may not be merely autonomous but perhaps also increasingly independent of them—some of them anyway.
From that Professor Bassan can consider a three pronged supra-nationalization of legal ordering. The first touches on the transnationalization of contractual relations between platforms and their communities through uniform private law or the development of global standards and expectations. The second focuses on the globalization of production agreements between states and platforms—a reterritorialization from beyond the state and back into it. The third looks to the elaboration of intermeshing standards and rules and application protocols that suit all parties. The result, in Professor Bassan’s words is an “intricate interweaving between digital platforms, user communities, states, supranational and international organizations [that aggregates and rationalizes] a joint operation of national laws, transnational and international law, primarily private, secondarily public (as regards organizational rules), and also subsidiary (as regards regulation). “ (p. 143). It is, in effect, the rationalization of structural coupling between autonomous but related subsystems—the legal orders of states and of platforms undertaken within the platform that is international public and private regulatory space.
That is my starting point today. I follow Professor Bassan’s pathways, but perhaps it will take me to a very different place. I have divided these into five categories: (1) platform definition as cognitive regulatory starting points; (2) signifying eco-systems and orders; virtual realities and legal fictions; (3) The enterprise of the human; the human in the regulatory machine; and efforts at self-control—data and data protection (4) the platform from object to subject to sovereign; and (5) competing sovereignties.
Let us briefly consider each of these in turn.
2. Platform Definition as cognitive starting points.
One defines the spaces of reality by defining and signifying those objects that matter to that construction. Here one starts by defining legal subjects—one defines them by reference to the acts or power that constitutes them as objects with benefits—that is as objects holding rights, capacity and duties, recognized as such by the communal expression of a superior force. Here one encounters definitional pathways: technical characteristics (how it operates); interactivity (what it does); law (for whom and under what conditions can operation do what it does. Professor Bassan offers a functional definition: hardware or software structures that provide tech based services and tools, programs and applications, that are to be used to distribute, manage and create digital content and services.
Nonetheless, it might be useful to think about platforms in two others respects, both of which find their way in Professor Bassan’s analysis. The first are platforms as legal objects. In a sense, platforms might be considered as the objects around which legal subjectivity is addressed. That was a point raised in Professor Bassan’s critique of the regulatory environment. But it is also one that has dogged other structures of transnational activity beyond the power of states to manage entirely—multinational corporations for instance. In the context of platforms, legal subjectivity attaches to those entities that create structures; it attaches to entities and individuals that provide tech based services, tools, programs and applications, as well as those who distribute, manage and create. It does not apply to hardware and software (objects without legal subjectivity) as such. In essence, one might ask, does legal subjectivity apply to a space—for that is what one is engaging with, or does it apply better to those traditional subjects of law that either ring the space (and by ringing it give the space definition), or that act in it. A
This is the essential question of the story of Samson with which the remarks started—is Samson the vessel for the projection of Divine will, or is he his own projection with consequences applied by the Divine. Professor Bassan recognizes public and private regulation as communicating vessels. Might the same thing not apply to the space that is the platform itself.? One can regulate around platforms, but for it to be regulated it must somehow constitute itself, not as the aggregation of consequential effect but in itself. To do that, one requires an inversion in the relationship between the platform itself and the generation of hardware and software structures, the provision of good and services, and the distribution of digital content.
The second is platforms as out-law, that is as existing outside of the protection and coercive reach of law. To some extent that defines a potentially broad area of activity. That a thing or actor exists outside the law does not mean that the thing lacks personality; it lacks only the recognition of that personality in law. And even that is not true—the law des extent recognition of the legal personality of criminal enterprises and of bandit and terrorist gangs. That recognition extends only to the extent necessary to suppress the organization along with its members. In that respect, and as a matter of pragmatic limits, it might become clear that platforms that are not merely objects, may also be subjects but not of the law of States but of the law or rules or expectations that lie elsewhere than in the traditional structures of law built around states and their international institutional instrumentalities.
Now the object becomes clearer—what one is dealing with here are the arrangements around tightly interconnected societal elements within intertwined aligned collectives. The issue is not necessarily about platforms, as such, it is about a specific class of platform, or their legal subject components, agents, instruments, and institutional apparatus, whose operation within the collective structures of politics must be aligned to the realities of emerging conditions, ones in which the old structures and theories of control just don’t work anymore.
3. Signifying regulatory cages; virtual realities and legal fictions.
From the frying pan of definition it is only a small leap to the fires of regulatory cognition—something like a self-referencing process for selecting and organizing thought, belief, emotion, facts, and ideas about the “nature” of things and how “things work.” For regulatory cages, Professor Bassan considers two. The first are eco-systems , the interactive, interdependent and interrelated elements of which are qualified by, as, and through iterative transactions in markets/platforms). The second are orders, institutions and power arrangements in and through states and other sovereign actors.
Legal orders represent the fundamental glue that holds the current structures of human collective social relations together. The dialectics between the structures, institutions and language of politics—its legal structures, language, institutions, and cultures—manifest the core premises of that ordering. Hierarchy of power and legitimacy and authority follow. That is inevitable under the olde ordering now many thousands of years in the making. In that context, to speak of platforms was to speak of empty spaces. Platforms were the market spaces near the center of old towns. These were defined by the buildings around them –the institutions of state within the solid buildings of the municipio; the institutions of normative ordering represented by the buildings housing the church; and the varied buildings housing those who were engaged in the variety of activities that took place in, across, or around that empty space—producers and consumers of goods and services, those who transported and delivered the goods, and the instrumentalities of order. The platform was a consequential place and state of being. And thus again the focus on defining actors and subjects of law and regulation. In this sense all production could be understood as eco-systems defined by reference to all of its components, each of which could be understood as actors rather than as spaces on or through which action occurs.
It is in the sense of the development of consensus and expectation, of rules, by all actors around and in the platform space—the marketplace—that one can speak of a consequential autonomy—not of the space itself but of the actors who are free to produce a self-referencing set of governance expectations in the shadow of others . This I sometimes called the emerge of the law of non-state governance systems. Nonetheless, I still wonder whether one speaks here to non-state systems or to actors who are the components of that system or to their actions which accumulating give that non-state system form.
Yet all of that was crafted while humans roamed alone. Humanity has created something in its own image and has set it loose within the structures of its own collective and institutional spaces. Nonetheless, at least in its early stages, up to the present moment, the alignment of new, virtual, forms, with old passive spaces, remains strong. Municipio, chiesa, mercante, cliente, transporto, soldati, these were the actors that mattered as much in virtual spaces as they did in the old town squares, in building in which people bought and sold things and the like. But now instead of turnip merchants on old town Lucca, one has Airbnb, Uber, Meta, each of whom create the spaces within which they operate defined by a virtualization, the digitalization of the structures necessary to contain the activities of these merchants within the subjectivity of the larger legal spaces within which it is possible for them to operate.
Orders, legal or regulatory orders, along with the interactive activities to which they relate both as activity and actor (subject), then define a way of approaching the structuring of social relations that incorporates the active principle and that ignores or makes invisible its passive elements. To speak of platforms, then, at this stage, is to speak in metaphor. One evokes the space, but one is interested in the surroundings that give it form, and the actors and activities that may be profitably undertaken there. Nonetheless—there is no “there” “there”. It makes sense, then, that the regulation of actors who engage in activities in virtual spaces (platforms) and those who are drawn to those spaces for their own ends, tend to be as fractured and varied—and to some extent incoherent, an important element of Professor Bassan’s analysis—as the legal subjects that come within the gaze of law. In that respect, platform law suffers the same structural issues as the equally frustrating legal-regulatory approaches to multinational enterprises, itself a component of the regulatory framework for supply and production chains in and across states, as well as the separate treatment of its normative component (sustainability and human rights) and the distribution of the value added of production through taxation.
And yet, and yet, the day is coming, as Professor Bassan notes, for the self-constitution and liberation of the platform itself. It comes not with or through those structures—municipio, chiesa, soldati, mercante, cliente, transporte—but through technology itself. Or more precisely it comes as the platform acquires its own self-consciousness through a power to think and act for itself. For that decision making is transferred from the corporate board and the humans in Meta, for example, from producers and consumers, and is transferred to automated systems of decision making overseen by generative intelligence. We are almost there. An increasing number of steps in the process of regulating these passive spaces and especially of managing what goes in in them has been automated. Steps, parts of steps in decision making. It is when the great enterprises, the state, the church, and consumers and producers themselves become legal subjects of automated decision making and decision making systems originating in the platform, that the platform will become animated, and with it the locus of law will shift. But not yet.
Its glimmerings, however, are nicely extracted and used by Professor Bassan, and rightly so. It is true enough, for example, that strictly speaking empty spaces do not displace the objects/actors that give them form. This is my market square illustration. At the same time platforms, and especially virtual platforms do displace. And they are likely to displace much more energetically in the future. Empty spaces filled with actors and defined by those edifices whose own space taking gives the platform space its (passive or consequential) form, provide the vessel within which the components of platform action can acquire a form, normative framework, and regulatory behavioral expectations that are autonomous of and that represent a synergy of these components into a more coherent (perhaps not unified) form. The market square, like the Place de la Revolution in Paris, can become a space in which those gathered or operating within it may organize a separate self-consciousness that may be deployed to further their joint enterprising, or deployed to resist, bargain with, or destroy the surrounding structures. During the Terror, the Place de la Revolution might have been said to be not merely a space, but the action oriented manifestation of the spirit of the Republic.
4. The enterprise of the human; the human in the regulatory machine; and efforts at self-control—data and data protection.
It is at this point in the analysis that one bumps up against the contemporary debates about platform governance, one which looks backwards toward the regulation of those legal subjects operating in and through platform spaces; and one that looks forward to the regulation of automated decision making that threatens to upend the current lebenswelt of regulatory reality by forcing a recognition that the platform space is indeed alive; and it is alive as its own regulatory subject! That accounts for what sucks up virtually all of the air in the spaces in which we gather for advancing the regulatory project. Current eco-systems of regulation (state, inter and trans-national, international, private) that consume and digest its subject (platforms) by reference to its objects (operation, interactivity, territories) remains the order of the day. Again states and other actors regulate platforms the way that multinational enterprises are regulated—not as system or as webs of relationships but as the entities that have be recast as the legal subjects of platform spaces and the activities undertaken in and around them.
Professor Bassan suggests a move toward the layered regulation of those spaces as places and crossroads. He suggests the emerging character of the platform as system rather than as consequence of active actors. That is effectively the same trajectories of evolution if the regulatory responses to multinational enterprises with periodic fixations on the normative elements of the moment. In Europe with respect to MNEs that has focused on human rights and sustainability, with the extension of the form and spirit of EU directives into compliance based regulatory supervision regimes—the Corporate Sustainability Due Diligence Directive, the Taxonomy Directive, the Directive on non-financial reporting and the like. But it has also been subject to retrenchment as a political matter from after the report of Mario Draghi and its focus on simplification. The same applies with respect to regulatory efforts around platforms. Multi-layered efforts around the objects and processes in and through platforms, but the platform remains an empty space. And where it is meant to be filled—in the case of platforms with respect to artificial intelligence and other forms of automated decision making, there is also simplification in the face of retreat of the regulatory project in the rest of the West.
That moves one to the regulatory efforts around platforms. One appears less concerned with the governance of the platform than of the actions and undertaking within the platform, its products, and the commodities, the objects, persons and processes necessary and necessarily consumed in the process of production—including the consumption if law. One speaks here to the law of commodification, of course. To those ends the law must distinguish between legal objects and legal subjects. For that purpose it is first necessary to identify legal objects—those things, processes, persons, interactions, relationships, consequences and uses that are of interest to the law-state, or to any regulatory apparatus in the contemporary ordering of managerial power. Data is an essential commodity in the regulation of platforms. One does not regulate platforms, one regulates data in platforms, or better still, one specifies the rights and duties of legal subjects respecting data. At the same time, regulatory sub-systems attempt the same—through internal and private law mechanisms within action pathways in enterprises and in the relation between legal subjects attached to the same data object in ordering their public and private law relations.
It is here that the human remains very much at the center of the regulatory machine, however one parses that term. The complication arises where the pathways, where the control , of legal objects, are no longer primarily attached to a human. That then touches on the law of automated decision making in platforms, and to the extent that it is centered in a platform, on the autonomous regulatory character of the platform not as space but as regulatory actor in its own right. It is here, though that resistance is fierce—at least among those who still believe in the centrality of the human to the project of human ordering. The notions, now embedded in national and international instruments, as well as in the expectations of legal subjects with their own scope of authority, is to insert the human within automated and generative decisions making systems, especially where those processes are regulatory in form or human consequential in effect.
For platforms of the sort that Professor Bassan is concerned—for the virtual factories of digital content, services, etc.—the connection to the human is both direct and intimate. One speaks here not merely of systems, of spaces, of the autonomy of regulation, or of the commodified and packaged aggregations of the product of human essentialization into objects that can be marketed on one or another platform. One speaks here to the intimately human at the core of the Western and European project of individual human dignity, and of the consequences of that core ordering premise for the legal subjects hovering around and in virtual digital content platform factories. Therein lies the contradiction of the project of platform governance—the contradiction of digitalized spaces the object of which has always been measured against the consequences to the physically human. And it is precisely in that context that the regulatory fracture of the current model—focused on the functionally differentiated bits of digital content production—fails the human.
5 The platform from object to subject to sovereign.
And yet all of this leads back to Professor Bassan’s fundamental insight with respect to tech based virtual markets—to platforms as the factories of digital content. For, as I have been suggesting sotto voce, even as the legal regulatory project speaks to platforms but aims at the component elements of the legal the platform itself has been acquiring an objectivity that then serves as a framing structure for the development of its own system of objectivity and subjectivity among its internal content, actors, processes, and engagements. subjectivities that in the aggregate constitute the universe of users, producers and consumers of the actions and objects within that platform.
That, in turn, requires the confluence of a variety of factors. The recent history of movements around the regulation of multinational enterprises—as objects, processes, systems—as platforms for coordinated economic production—provides a useful template in that respect. The first touches on the development of a regulatory solidity within the coordinated operations of the Mne, within its platform. That, in turn, is a function of private law (its internal regulation), and its ability to turn that regulation into constituting directives, not merely commands within an operating system. That is, where the MNE has used its own private law to constitute itself as something greater than and apart from, both its state based constituent parts, and from the regulatory nets of its constituent forms. The second touches on the development of a set of normative drivers, of a core of value based expectations, that are shared by a community of participants. Sometimes this has been derived from the production of values narratives at the international level—the development and deployment of the UN Guiding Principles for Business and Human Rights effectively acknowledged a space of private law around which an MNE platform could constitute itself as a function of compliance with values and expectations reflecting international law and norms. The third touches on the ability to draw all critical actors within the normative orders that are constituted around the MNE. That requires the construction of systems of interpenetration between the MNE internal system and the external systems within which and through which the MNE must navigate. To a substantial degree that produces hierarchies of overlapping compliance—compliance with its own internal rules at the greatest level of generality, with contextually relevant compliance obligations locally and strategic movements of activity among localities to maximize both sovereign authority and the protection of the integrity of the system. To those ends, normative internationalism and contextual compliance becomes the means by which MNE “middle powers” navigate their own autonomy. The template applies with perhaps greater force to the digitalized platform.
6. Competing sovereignties.
That leaves open the question—what is it that has been liberated from the State and its legal ordering? Secondarily one might wonder how far that liberation extends. Professor Bassan, reflecting contemporary thinking focuses on human (national, transnational) and virtual (platforms, process, pathways). What emerges from this short discussion, however, may be somewhat richer. Legal subjectivity is critical to the regulation of the components—that actors and objects (or at least the impacts of the objects on actors) that engage in activity within or through the platform. That legal subjectivity is most acute within traditional forms—the state and its domestic orders. Yet the platform is more than its components, and, indeed, it does not align with the limits of state power. It is also necessarily fractured, and barely coherent even as within a single platform, or platform function. Legal subjectivity, then, extends itself by shifting from command to constitution. It creates objectives and frameworks, goals and normative edifices; it also permits the space necessary for the platform to manage these directives and compliance expectations. In one sense the platform becomes the space within which its relevant components are reconstituted as privatized organs of administration. In another sense that framework opens the door to what is a first a subordinate autonomy (of method and form), but ultimately of autonomy across a larger number of domestic orders. That latter tendency is augmented where the domestic legal order is itself a subject of a superior organ—if not of law then of normative constraints.
In this way the platform can serve as its apparatus. By serving as an institutional structures for component compliance across fields of law that apply unevenly to some or all of those component elements. Across the breadth of its operations, however, the platform begins to (re)constitute itself not as a passive space but as the institutional structure for the elaboration of its own legal subject. The platform may serve as the fictive space where its components may be aggregated for purposes of compliance. At the same time the platform may itself become its own legal subject. That process transformation is in turn augmented where the internal legal subjects of the platform are neither physical or fictive legal subjects (or their objects) but instead where they are the automated or generative manifestations of platform autonomous decision making, including decisions about the operationalization of the duties and responsibilities of its own internal constitution and engagement with “outside” sovereignties.
Again, this is as messy as the notion of platform. Two examples bring this into contemporary realities. The first is wrapped up in the 2024 contest between the constitutional order of Brazil embedded within the competences of its courts and Starlink in which the Brazilian courts exploded the notion of “veil piercing” to effectively create a platform around Elon Musk’s business interests in a fight over control of the social spaces of political debate in Brazil. The second involved Tik Tok in Columbia in which the Columbian Constitutional Court ordered the social media site to restore the account of a user wrongly blocked asserting power over TikTok even in the absence of any physical presence in Columbia. IN the former case the Brazilian courts pushed back against the assertion of self-legal subjectivity by a platform through the use of traditional legal bases now reinvented. In the latter case the court projected its own constitutional norm systems into a global platform on the basis of “effects”—a powerful extraterritorial doctrine now turned from other states to other states of sovereignty.
In both cases, State courts deploying their own legal architectures (economic‑group doctrines, constitutional rights, tutela) to confront platforms that increasingly function as autonomous normative orders with their own internal rule‑systems. They also give a concrete sense of how the “temple” of traditional law is trying to reassert itself against a Samson‑platform that does not sit comfortably within old jurisdictional and subjectivity categories. The platform will contain within itself competing sovereignties even as it continues to strengthen the basis of its own self-subjectivity. At the same time it will also generate its own superstructure through which these competing sovereignties will be utilized as objects, or factors in the production of the digital goods and services toward which it was created. To understand the coming nature of the platform in autonomous terrains, one ought to keep an eye on the evolution of the global enterprise and its layered autonomy—of Starlink, and Toyota, and Chevron—among others.
7. Conclusion.
I will leave this discussion here with this thought on the coming nature of digital globalization: Platforms will continue to evolve as legal subjects, as legal objects, and as subject, like law, only to itself (techno kompetenz-kompetenz) and thus only to its own law in accordance with its own rule of law. The Temple of Baal has fallen, but Samson is also dead. The platform remains. What emerges from the rubble has yet to assume a form. In the meantime one can expect a frenzied effort, like the bacchanal at the Temple of Baal in Gaza, to construct traditional legal structures and to evolve it in human layering between local, national, regional and international human institutions. In the meantime the platform Samson will generate a power of his own either from out of himself or as a conduit of an exogenous voice. It will become itself, apart from the Temple, and in the process, the situation may eventually cause the fall of the temple of traditional law. If I were the high priest of Baal in Gaza I might watch out for the self-generating and autonomous platform who will not be chained to olde structures and methods.
* * *
THURSDAY
9.00 – 9.30
Welcome speeches
Prof. Massimiliano Fiorucci, Rector, Roma Tre University
Prof. Massimiliano Celli, Director, Department of Business Economy, Roma Tre University
9.30 - 10.00
Symposium Introduction
Prof. Fabio Bassan (Roma Tre University)
10 – 13.30
Session I (plenary)
I.1 Technology, methods and sources of International and Transnational law
Chair: Prof. Eyal Benvenisti (Cambridge University)
Prof. Giuseppe Nesi (University of Trento – International Law Commission)
Prof. Benedict Kingsbury (New York University)
I.2 Technology and democracy
Chair: Prof. Giuliano Amato (President Emeritus of the Italian Constitutional Court)
Prof. Francesco Pizzetti (Emeritus, University of Tourin)
Prof. Cass Sunstein (Harvard University)
Light Lunch
Session II (parallel sessions)
14.30 – 19.00
II.1A Technology and international and
transnational legal subjectivity
Chair: Prof. Fausto Pocar (Emeritus,
University of Milan)
Prof. Larry Catá Backer (Pennsylvania
State University)
Prof. Alberto Oddenino (University of
Turin)
II.2A Technology and peace
Chair: Prof. Andrea Renda (European
University Institute - CEPS)
Prof. Mariarosaria Taddeo (University of
Oxford)
Prof. Mary Ellen O’Connell (University
of Notre Dame)
Prof. Michele Giovanardi (CMI - Martti
Ahtisaari Peace Foundation - University
for Peace)
II.1B Technology in Courts
Chair: Prof. Attila Tanzi (University of
Bologna)
Prof. Bart Custers (Leiden University)
Prof. Francesca Ferrari (University of
Insubria)
II.1C Technology and the family
Chair: Prof. Maria Caterina Baruffi
(Bergamo University)
Prof. Neive Rubaja (University of Buenos
Aires)
Prof. Cristina González Beilfuss
(University of Barcelona)
II.2B Technology and security
Chair: Prof. Giampaolo Maria Ruotolo
(University of Foggia)
Prof. Arianna Vedaschi (Bocconi
University)
Prof. Gabriele della Morte (Catholic
University, Milan)
II.2C Technology and One Health
Chair: Prof. Elisa Scotti (University of
Macerata)
Prof. Carmen Bullon (FAO) - Prof.
Francesca Coli (Scuola Superiore
Sant’Anna)
Prof. Emmanuel Kasimbazi (Makerere
University)
Social Dinner
FRIDAY
Session III (parallel sessions)
9.30 – 12.30
III.1A Technology and fundamental
rights
Chair: -Prof. Marco D’Alberti (Judge,
Italian Constitutional Court)
Prof. Thérèse Murphy (Queen’s
University of Belfast)
Prof. Roberto Baratta (Roma Tre
University)
III.2A Technology and investment
Chair: Prof. Giorgio Sacerdoti (Emeritus,
Bocconi University)
Prof. Maria Chiara Malaguti (Catholic
University, Rome)
Prof. Mira Burri (University of Lucerne)
III.1B Technology and the digital
welfare state
Chair: Prof. Antonella Sciarrone
Alibrandi (Judge, Italian Constitutional
Court)
Prof. Silvia Ciucciovino (Roma Tre
University)
Prof. Anton Ming_Zhi Gao (National
Tsing Hua University)
III.2B Technology and currency
Chair: Prof. Gianluigi Tosato (Emeritus,
Università La Sapienza)
Prof. Ugo Malvagna (University of Trento)
Prof. Chiara Zilioli (European Central
Bank)
Light Lunch
Session IV (parallel sessions)
13.30 – 16.30
IV.1A Technology, competition and
intellectual property
Chair: Prof. Giovanni Pitruzzella
(Judge, Italian Constitutional Court)
Prof. Marco Ricolfi (Turin University)
Prof. Thibault Schrepel (Amsterdam
Law and Technology Institute)
IV.1B Technology, savings and capital
markets
Chair: Prof. Maddalena Rabitti (Roma
Tre University - Commissioner, IVASS)
Prof. Filippo Annunziata (Bocconi
University)
Prof. Andrea Sacco Ginevri (Roma Tre
University)
IV.2A Technology, economic
sustainable development and
climate change
Chair: Prof. Sheila Foster (Fordham
University)
Prof. Alexandra Harrington (Lancaster
University)
Prof. Maciej Sokolowki (Warsaw
University)
IV.2B Technology and protection of
the sea
Chair: Prof. Ida Caracciolo (Judge,
Itlos)
Prof. Guillaume Le Floch (Universitè
de Rennes)
Prof. Andrea Gattini (Padova
University)
IV.2C Technology and space law
Chair: Prof. Elda Turco (ASI)
Prof. Francis Lyall (Emeritus,
University of Aberdeen) *
Prof. Philippe Achilleas (Université
Paris-Saclay)
IV.1C Technology and data protection
Chair: Prof. Michele Vellano (Turin
University)
Prof. Cosimo Monda (Maastricht
University) *
Prof. Christopher Kuner (University of
Copenhagen)
Session V (plenary)
17.00 – 17.30
Conclusions. The technological paradigm shift. Challenges in international,
Transnational and European Union law.
Prof. Fabio Bassan (Roma Tre University)
------------------------------------------------
Symposium Scientific Director: Fabio Bassan
Scientific Committee: Maria Caterina Baruffi, Fabio Bassan, Agostina Latino, Alberto
Oddenino, Elisa Scotti.
---------------------------------------------
The Technological Paradigm Shift in International
Transnational and European Union Law
Introduction
The recent evolution of technology is changing the paradigms of life and social relations. It also
produces a significant impact in legal and economic relations on European, Transnational and
International levels. Malicious use of technology can be decisive for the outcome of an
election, but it can also produce benefits for the protection of fundamental rights, or for the
welfare state. It can decisively assist a state's war apparatus, and it can protect and preserve
peace. It shifts multinational corporations into private orders, even potentially endowed with
their own currency, and enables forms of protection of individuals and the community from
them as well. It can result in a huge expenditure on electricity, but also in a reduction in
environmental impact.
Nevertheless, the result is not neutral: oversight of the use of technology is slower than
technological evolution, and it amplifies the limits of Transnational, Supranational,
International law. The European (as well as, in a different form, the Chinese) approach of
managing technology by placing it in a regulatory matrix consistent with its own fundamental
principles and rights, contrasts with the more market-oriented approach of Anglo-Saxon
countries, the United States in primis. The confrontation over technology thus seems to be
becoming a clash between jurisdictions and not just between companies on the market. A
comparative approach helps in interpreting current dynamics.
In this conference we aim to debate on the implications of the issue in its various applications,
and to understand whether there is a path of cooperation that can replace all or part of the
current confrontation scenario.
This approach corresponds to the Zeitgeist, on the level of international relations but also in the
European Union, to identify shared principles which each country or area can apply in
accordance with its own legal traditions.
Session I (plenary)
I.1 Technology, methods and sources of International and Transnational law
Technological advances influence the methodologies used in study and practice as to the
formation, interpretation, and application of International and European Union law.
Technologies have created new areas of law: cybersecurity, regulation of artificial intelligence,
regulation of autonomous weapons, genetic engineering, data sovereignty, and have changed
the assumptions for the interpretation and application of law in other areas (among all: space
law). Digital archives and data analytics enable constant and precise monitoring of
international custom, or the application of treaties (for example, satellite technology is being
used to monitor environmental treaties, and blockchain can improve transparency in trade
agreements). Technology has also transformed the way evidence is presented and analyzed in
international courts.
This evolution requires a multidisciplinary approach, which is not neutral to the different
methods applied in international law: some are more effective than others in interpreting
practice.
The sources of transnational law are evolving quickly along with markets, whose development
is increasingly determined by technology. Best practices in markets become benchmarks that
national authorities or supranational organizations then turn into standards. Hence, it is now
established that there is no opposition between soft law and hard law: they are the steps of a
single ladder. In some cases, in the European Union, standards are not enough: an executive
act of the Commission, or a legislative proposal, is required. In any case, standards that
constrain markets arise from markets, according to the dynamics of the 'regulatory circle.'
International norms also follow new dynamics drawn by technology: treaties incorporate
transnational norms, bringing them to the level of international law, which then becomes
'porous,' permeable to the evolution of Transnational law.
I.2 Technology and democracy
Technology provides transparency and accessibility of information never experienced. At the
same time, there are an increasing number of cases in which the Courts, national and
international, declare the illegitimacy of elections determined by the interventions, direct or
indirect, of transnational corporations that influence the will of the voters. Again, there is an
interpenetration of public and private law, subjects of international law (states) and
Transnational law (corporations), on the domestic level, where reserved domain and with it, a
part of sovereignty, are eroded by 'private powers’.
Session II (parallel sessions)
II.1A Technology and international and transnational legal subjectivity
Technology is transforming some transnational digital societies into full-fledged private legal
orders, with which sovereign states (as well as the European Union) must deal, in some cases
by imposing behavior, in other cases by negotiating the applicable rules, and in others by using
them as instruments in international relations. These private orders also often adopt receptive
referrals to the norms of international law. This shift calls for reflection on the issue of
international and transnational subjectivity on the level of relations between 'powers,' no longer
just states.
II.1B Technology in Courts
While technology offers many benefits for international courts—like faster communication and
access to evidence—it also requires careful legal, procedural, and security considerations to
address the complex issues it raises.
Different countries have varying laws regarding digital evidence, data privacy, and cybercrime.
This can complicate jurisdiction and enforcement of rulings across borders. Establishing which
legal system applies in cases involving multiple countries can be complex.
Few examples of the impact of technology in Courts relate to: Evidence Collection and
Authentication (digital evidence such as emails, social media posts, and electronic documents
need to be properly collected, preserved, and authenticated); ensuring the integrity and chain
of custody of digital evidence across jurisdictions is challenging; data privacy and
confidentiality (handling sensitive data raises concerns about privacy rights and confidentiality,
especially when sharing evidence internationally; Courts must balance transparency with
protecting personal information); use of technology in proceedings (virtual hearings and remote
testimonies have become common: ensuring fairness, security, and accessibility in virtual
proceedings is essential); cybersecurity risks (Courts are vulnerable to hacking, data breaches,
and cyberattacks, which can compromise case information and undermine trust in the judicial
process); standardization and cooperation (lack of uniform standards for digital evidence and
procedures can hinder international cooperation; International bodies are working towards
harmonizing rules, but differences still exist); speed and efficiency (technology can speed up
proceedings but also lead to information overload or technical delays if not managed properly);
ethical and procedural challenges (ensuring that technological tools are used ethically and that
procedures are transparent and fair is vital).
II.1C Technology and the family
Continued advances in science and technology, coupled with the opening of national borders
globally and the mass use of technological means of information and communication, have
resulted in a relativization of space, which affects family law. While traditionally the focus was
on the relationships between transnational family members, more recently it is filiation as it
arises that comes into consideration, in close connection with new reproductive techniques
through the processing of oocytes, sperm or embryos, in cases where spontaneous
conception, for whatever reason, is extremely remote or impossible. These techniques differ
profoundly, but both in the case of heterologous fertilization and gestation for others (GPA) pose
problems of private international law and EU law, due to the use, where prohibited in the
country of origin, of foreign clinics, thus giving rise to a transnational phenomenon. Reflection
is therefore necessary, considering domestic and international case law on the protection of
individual rights with regard to the choices made by individual jurisdictions, in the context of
free movement and the Union's competencies in this area, as well as the typical institutions of
private international law to protect national interests.
---------------------
II.2A Technology and peace
Technologies are a decisive support on the plane of conflict, including war, but at the same time
they can be tools (yet inadequately investigated) for international and transnational
cooperation, growth and peace.
Technologies that are functional (ontologically or in terms of use) for peace are increasingly part
of an ecosystem, predominantly composed of NGOs, but their coordination on the
multinational and transnational level is still lacking.
The use of technology for peace (“tech-for-good”) involves legal, political, economic, and
ethical issues that transcend national borders and require new models of transnational
governance.
II.2B Technology and security
The rise of cyber threats has forced the development of international legal standards to deal
with cyber-attacks, espionage and cyber warfare, with the aim (on the external level) of
protecting national security in inter-state relations and (on the internal level) of public and
private orders, the privacy of citizens.
II.2C Technology and One Health
The fundamental interrelationship between human health, animal health, and the environment
has been recognized since ancient times. In contemporary relations, the principle of 'One
Health' originated in 2004, and has developed across disciplines (starting with biomedical)
especially in the last decade, where it has emerged as a unifying concept that highlights the
critical role of technology, data, information, and knowledge in facilitating interdisciplinary
collaboration across States. The main application domains of One Digital Health cover FAIR
data integration and analysis, disease spread surveillance, antimicrobial stewardship, and
environmental monitoring.
Session III (parallel sessions)
III.1A Technology and fundamental rights
The protection of fundamental rights is decisive in the current historical turn, characterized
both by the technological revolution and by changing relations between 'powers' (States and
multinational corporations, public and private orders), in which rights are among the few
cardinal points that still stay, though not unchanged. Scientific and technological innovation,
and digital and algorithmic technologies, raises questions in terms of rights and freedoms that
are being addressed at both constitutional and supra-national, European, Transnational and
International levels. The spread of digital technologies affects the protection of freedom of
expression, data protection, but more generally it changes both the mobile perimeter of rights,
individual and collective (from identity to self-determination), which are increasingly
fragmented, and the tools by which they must be enforced, imposing an investigation of the
effectiveness of protections on the concrete level of enforcement.
III.1B Technology and the digital welfare state
The digitization of welfare policies, service delivery, and labor has led to increased social
control and surveillance, which is declined in very different ways in today's prevailing and often
opposing areas of influence of the European Union, the United States, and China. Inclusion and
control represent two extremes of protection, individual and collective, and the evolution of
public and private power over individuals. National rules, supranational rules (starting with
European Union ones), and international treaties form a matrix characterized by a necessary
rigidity in principles, and flexibility in the determination and application of rules.
---------------------
III.2A Technology and investment
The impact of digitization on international investment law is still limited but has much room for
development. Governments and scholars are questioning whether and, if so, to what extent
digital assets can benefit from the protections of international investment treaties; whether and
how technology can make dispute resolution systems more efficient and effective; whether and
to what extent national protection strategies (increasingly, according to ’golden power’
paradigms) apply to technology (e.g., with limitations on market access, restrictions on data
transfer, impositions of “algorithmic transparency”) and at the same time take advantage of it
(e.g., through the adoption of automated decision-making processes).
III.2B Technology and currency
Currency, until recently evidence of the effectiveness of state power, is now also an instrument
of private power. International rules, effective in relations between States, are thus
supplemented by transnational rules. On digital currency, States and transnational companies
compete to achieve partly different goals. The balance of post-modern monetary law, following
the Bretton Woods agreements as amended in the 1970s, has broken down. In the current
phase of comprehensive rethinking of the system, the power relationship between states-
powers is likely to change significantly, supplemented by the relationship with private powers.
Session IV (parallel sessions)
IV.1A Technology, competition and intellectual property
Competition law has recently changed its reference matrix because of technology: private
digital orders raise new issues that require new approaches even before new tools.
EU competition law divides further from U.S. antitrust law: ex ante regulatory obligations
overlap with the, classical, ex post, applied based on quantitative tests. Technology forces
reconsideration of markets on the level of even geography: principles that were firm just a few
years ago become unenforceable, and new matrices and coordinates are needed. Intellectual
property, copyright, patent matters, have a historical relationship with technological progress,
which is one of their prerequisites, and with which they often end up being identified. However,
the revolutionary nature of recent innovation now pushes these matters to the edge of the
perimeter of protections: blockchain on the one hand (especially when public and thus open
source) and artificial intelligence pose new challenges on unexplored terrain.
IV.1B Technology, savings and capital markets
Savings and capital markets are one of the main brakes and limitations of globalization.
The reduction of barriers to the free movement of products has not been followed by that of
finance, which of the former is the main support.
The European Union is now filling the gap, to become a key player in a new 'regionalized
globalization'.
Technology is the main enabler of a single European but potentially global market.
IV.1C Technology and data protection
The protection of personal data was born and developed with technology, and it has become a
pivot, but also a parameter of legitimacy both of the use of technology and of its development,
as to the market and to its oversight.
This is the elective ground of the clash of States’ approaches and safeguards. As such, it is an
interesting laboratory of potentially broadly applicable solutions.
---------------------
IV.2A Technology and sustainable economic development
Technological evolution and sustainable development seem today to be opposing and
irreconcilable phenomena. In truth, it is precisely technology that can become an enabling
factor for sustainable development (e.g., energy transition, sustainable transport, resource
management), and thus help to solve the new critical issues, on the economic, social and
environmental level, that technology poses, and to reduce their risks (environmental costs,
climate actions, or environmental conservation). Priority appears to be given to the issue of
governance and international cooperation to achieve the goals of sustainable economic
development with respect to the technological tools available.
IV.2B Technology and sea protection
There are numerous recent technological developments that have a significant impact on the
law of the sea and which should be interpreted in light of the UNCLOS principles of
sustainability and equity: for the exploration of the seas; for the extraction of raw materials; for
the exploitation of renewable energy; for the protection of biodiversity; for maritime
cybersecurity; for the safe navigation of ships; for port automation; for seabed operations and
naval operations on the continental shelf; for unmanned and autonomous warships and
military aircraft; for the delimitation of continental boundaries and platforms; for monitoring
and enforcement of jurisdiction over the seas; and for the resolution of maritime boundary
disputes.
IV.2C Technology and space law
Surveillance, protection and information (to earth), and protection and exploration (to space)
are revolutionized today by technology, which enables functions that were until recently
unthinkable, and reduces the cost of developing and implementing projects. New solutions
arise for space debris issues, ethical issues, and applicable regulations for States and for
private companies; solutions that impose flexible legal systems suitable for efficiently
governing the growing capabilities of space technology. Global cooperation (between States,
and between States and transnational companies) on technology, law, and ethics is a
prerequisite for efficient governance.
Session V (plenary)
Conclusions: the technological paradigm shift. Challenges in International, Transnational
and EU law.
The final session draws conclusions about the current relationship between technology and
public and private international law, transnational law, and the law of the European Union, the
study of which is enriched, thanks to technology, with new tools but also new objects of
analysis, in a path of hybridization between branches of law but also between law, economics,
science, and ethics.
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