What Constitutes a Constitution?

As a rapidly growing number of communities whose rules run as code draft formal, written constitutions for their projects, it is becoming apparent that an advanced understanding of the structure and function of constitutions is not being adequately applied. The ways that the common conceptualization of constitutions falls short in effectively guiding these communities’ governance, however, highlight the precise places where this conceptualization is most in need of revision.¹

This article outlines how we can reapply these concepts to questions of governance unique to such communities. We will see how the more robust understanding of the structure and function of constitutions offered in this article can provide novel answers to the unique set of questions posed by the governance of distributed networks.

What Is a Constitution?

If one looks up the word “constitution” in the dictionary,² one finds an array of interrelated but distinct definitions:

1a: the basic principles and laws of a nation, state, or social group that determine the powers and duties of the government and guarantee certain rights to the people in it

1b: a written instrument embodying the rules of a political or social organization

2a: the physical makeup of the individual especially with respect to the health, strength, and appearance of the body

2b: the structure, composition, physical makeup, or nature of something

3: the mode in which a state or society is organized

especially: the manner in which sovereign power is distributed

4: an established law or custom

5: the act of establishing, making, or setting up

It is impossible to proceed without clarifying the relationships between these seven senses of the term. We begin by folding Definition 4 (“an established law or custom”) into Definition 5 (“the act of establishing, making, or setting up”) and differentiating them from the remaining definitions, insofar as 5 names a process, rather than offering any insight into what the product of that process is, while 4 names one of the products of that process without providing the requisite context. From here, the picture clarifies substantially: Definition 2b (“the structure, composition, physical makeup, or nature of something”) is an umbrella concept, under which Definition 2a (“the physical makeup of the individual especially with respect to the health, strength, and appearance of the body”) clearly falls. Definition 1a (“the basic principles and laws of a nation, state, or social group that determine the powers and duties of the government and guarantee certain rights to the people in it”) and Definition 3 (“the mode in which a state or society is organized especially: the manner in which sovereign power is distributed”) are also both subsets of Definition 2b, which makes sense, as 1a and 3 are two ways of saying the same thing. Finally, Definition 1b (“a written instrument embodying the rules of a political or social organization”) is a special case of the general concept identified in definitions 1a and 3.

In other words, the first thing that most people think of when they hear the word “constitution” is in fact the most limited (and limiting) sense of the word. Clearly, our existing understanding of constitutions is quite jumbled: Per the schema above, it is possible to talk about a formal, written constitution (1b) being part of an organization’s overall social constitution (1a/3), which is in turn part of the general constitution (2b) of that organization. All of these constitutions are themselves the products of a process called “constitution” (5). In order to say anything nuanced about this topic (or any other), however, one must first have unique terms with which to refer to its component parts.

In our multidisciplinary research, we have found that the confusion around constitutions can be readily resolved by first “zooming out” (that is, reformulating our understanding of the concept with a greater degree of generalization) and then “zooming back in” by subjecting this new understanding to a functional decomposition.

To begin this process, we will start with the existing definition with the highest degree of generality, 2b: “the structure, composition, physical makeup, or nature of something.” Keeping 2a (“the physical makeup of the individual especially with respect to the health, strength, and appearance of the body”) in the back of our minds, due to its conceptual proximity to our primary definition (2b), we then recast these definitions in functional terms: If the existing definitions try (and fail) to tell us what a constitution is, we will reformulate them in such a way that they instead tell us what a constitution does. In this case, we would say that an entity’s constitution structures, composes, physically makes up, or determines the nature of that entity.

Put differently, the function of a constitution is to delineate the boundaries of a particular organization or entity, entrenching elements of its composition relative to that organization’s regular processes of decision-making, as well as against the broader array of legal, social, economic, and environmental forces that make up its context(s). This constitutive function operates to reinforce the coherence of that entity in the face of both internal and external pressures, such that it can dynamically evolve through its interactions with both its members and its environment while nonetheless retaining its identity.

Once we identify the above as the function of constitutions (which we will refer to as the constitutive function), it becomes apparent that the dictionary’s varied definitions of the word are simply an array of possible implementations of this constitutive function. “[T]he basic principles and laws of a nation, state, or social group that determine the powers and duties of the government and guarantee certain rights to the people in it” are the most obvious mechanisms through which organizations of the types named demarcate certain of their characteristics as constitutive. This entrenches them at a level that cannot be modified without going outside that organization’s regular process; fractally, “a written instrument embodying the rules of a political or social organization” is simply a particular form that these mechanisms can take.

The first thing that most people think of when they hear the word “constitution” is in fact the most limited (and limiting) sense of the word.

An organization’s constitutive infrastructure consists of all of that organization’s implementations of the constitutive function, accounting for the relationships between these implementations.³ Like all infrastructure, constitutive infrastructure has some elements that can be architected, that is, deliberately designed in order to ensure that they fulfill the requisite functions and are fit to a given organization’s context. For example, written, formal constitutional documents are a form of constitutive infrastructure that history has shown to be particularly well-suited to the needs of centralized nation-states. These written documents serve to constitute both legal and cultural elements of the nation-state. Nonetheless, nation-states are composed of other (privately and publicly administered) civil infrastructures such as power grids, banking systems, and religious organizations (to name just a few). Plainly, the nation-state is embodied by a host of distinct but interrelated infrastructures and institutions.

For organizations that coordinate online, software is a primary form of constitutive infrastructure. Self-executing “smart” contracts are a particularly potent example of constitutive infrastructure precisely because they can be implemented, administered, and enforced uniformly in code, rather than implemented through written documents, administered by a bureaucracy, and enforced by a legal system. These particular properties make such technologies suitable for infrastructuring procedural elements of an organization’s constitutive function.⁴ Code of this kind stands in contrast to the often nebulous “social contract,” which arguably binds constituents irrespective of their consent. In many cases, these alternative mechanisms for “constituting” a community will prove better suited to that community’s specific situation, needs, and aspirations than would a formal, written constitution.

Contextualizing the Constitutive Function

The elements that make up an organization’s constitutive infrastructure will, by definition, contribute to the process of constituting that organization’s internal and external boundaries. This process, however, can be further broken down into subsidiary processes: determining which people are (and, by extension, are not) subject to the organization’s governance, mapping the environment that the organization operates within, and defining the purpose that animates the organization, motivating the ways that its people interact with its environment.⁵

People refers to an organization’s internal context: who it includes, how it structures the interactions between members, and the pressures that these elements exert on the organization’s boundaries from within. The organization in question draws an external boundary separating its constituent members (or “body politic”) from outsiders, by defining criteria for citizenship, membership, and/or participation. At the same time, the diversity of values, desires, and skills found among the constituent members of a given organization exerts an influence on the shape of an organization’s internal boundaries; a well-constituted organization is one whose constitutive infrastructure adequately and accurately embodies the values and wants of its members.⁶

Environment, on the other hand, refers to an organization’s external contexts: everything that remains distinct from an organization once it is constituted. An organization’s environment exerts various forms of pressure (e.g., regulatory, legal, economic, or cultural) on the shape of an organization’s boundaries from without. To the extent that the external environment influences how the organization chooses to conduct itself, it is able to exert pressure on the shape of the organization’s internal boundaries as well.

Finally, an organization’s Purpose can be thought of as its mediating context: the set of attractors that orient the exercise of the various mechanisms through which the organization mediates the relationships between its internal and external contexts. When information flows from that organization’s environment to its people, its purpose informs its interpretation of that information; when information flows from its people to its environment, the organization’s purpose informs its choices (which may in turn affect its environment) and the manner in which that information is transmitted. An organization’s purpose is temporally mediating, as well; an organization moves toward its purpose through time.

A well-constituted organization is one whose constitutive infrastructure adequately and accurately embodies the values and wants of its members.

People, Environment, and Purpose collectively define the circumstances in which an organization constitutes itself. Constitutive infrastructure manifests and entrenches a boundary between People and Environment, mediating activity pursuant to Purpose. Infrastructures, by their nature, enable a set of other activities, and they evolve on a slower timescale than the activities they enable.⁷ Different kinds of constitutive infrastructure may have markedly different modalities for change. For example, written constitutions have “secondary rules” (the rules governing governance and its procedures), while software products have version control⁸ and continuous integration and continuous deployment (CI/CD) frameworks.⁹ What is important to recognize about both of these mechanisms for change is that they are entrenched more deeply than the infrastructures they modify. Mechanisms for adapting constitutive infrastructure may also be referred to as Governance Surfaces.¹⁰

Provisioning Constitutive Infrastructure

The understanding of constitutions offered in this article makes it clear that written constitutions are just one kind of constitutive infrastructure, which encompasses a significantly wider range of social and technical mechanisms. Thus, it becomes apparent that many of the organizations currently considering a formal, written constitution have already constituted: They have already developed significant constitutive infrastructure through their code, protocols, social norms, and the emergent process of institutional ordering that is governance itself.¹¹

In cases where such an infrastructure is already fulfilling the constitutive function for an organization, there may be no benefit to translating that infrastructure into a more formal “Constitution,” a document external to the processes that already constitute the organization. Insofar as there are identifiable gaps in the constitutive function, it may be appropriate to provision additional constitutive infrastructure, but before doing so, constitutional designers for such organizations must be attentive to the existing balance of constitutive forces we have defined.

The pre-existing constitutive forces determine the scope and form of additional constitutive infrastructure that is possible (and, within that, desirable) for a given organization. Constitutional best practices are therefore organization-specific to a great extent, and can directly implicate regulatory liability depending upon how the organization in question is capitalized and how its ownership or membership interests are structured.

Dynamical Systems Group is actively engaged in research and development projects applying the constitutive infrastructure framework for model-based institutional design, especially leveraging emerging technologies such as AI and self-executing code as institutional materials. We invite collaboration from those looking to navigate this exciting frontier.

Suggested citation: Zargham, M., Alston, E., Nabben, K., & Ben-Meir, I. (2023). “What Constitutes a Constitution?” Dynamical Systems Group. https://www.dynamicalsystemsgroup.com/blog/what-constitutes-a-constitution