CrowdLaw, Legitimacy and the Quality of Lawmaking

Marta Poblet speaks at the CrowdLaw conference in Bellagio

Marta Poblet speaks at the CrowdLaw conference in Bellagio

Sometimes our lives become like dreams. This is how I felt in the meeting on “Crowdlaw: People-Led Innovation in Urban Lawmaking” that took place at the Bellagio Rockefeller Center by the Lake Como, Italy, on March 13-17, 2018. You look at the lake, look at the snowy Alps, look at the flowers in the gardens, breathe that fresh air, and work hard, discuss endlessly, and collaborate fruitfully with an amazing group of people integrated by scholars, civil servants, developers, and activists, coming from the six continents. That’s it. That was one of the most intense and productive meetings I’ve ever taken part in. And one with a very special atmosphere of good mood and companionship (and music by night!). It is not surprising that in such a moving place and with such a good company, the meeting came up with excellent results.

One of the panels in the meeting had the purpose to clarify the relationship between crowdlaw, political legitimacy, and the quality of law and policymaking. This is a crucial and pressing issue for crowdlaw, since its fundamental promise is precisely that technology-driven citizen engagement in processes of law and policymaking, under the right circumstances, may have a very positive effect not only on the legitimacy of such processes, but also on their quality, effectiveness, and efficiency. The most important challenge for crowdlaw obviously consists in identifying those circumstances. But before addressing that issue, those interested in crowdlaw will need to achieve a clear understanding of what are the exact effects that crowdlaw aims to produce. Unfortunately, this is an area where disagreement and much conceptual confusion are predominant, and where more theoretical work still needs to be done.

The panel started with three different, complementary kick-off presentations from the following three participants:

  • Hélène Landemore, a political philosopher from Yale University (US).
  • José Luis Martí, a legal philosopher and democratic theorist from Pompeu Fabra University of Barcelona, Spain.
  • Marta Poblet, a legal sociologist from RMIT University (Melbourne, Australia).

Hélène Landemore started analyzing the sources of legitimacy, in advancing some content of her forthcoming book on open democracy. She theorized that we might be turning from a conception of democracy based on citizens’ consent to power articulated basically through elections to another based on the exercise of such power by citizens themselves in a way that might be compatible with political representation, but not necessarily dependent, always, in all circumstances, on electoral representation. She argued that a modern, open idea of democracy should be based on six institutional principles: 1) empowerment rights; 2) democratic deliberation; 3) majoritarian principle; 4) complex representation; 5) rotation and 6) transparency. Landemore focused on the sixth. She pointed out that transparency possesses a great instrumental value to participation, to the benefits of such participation, to accountability, and to the education and transformation of citizens’ political culture. And she identified its downsides as well: namely, the possible trade-offs between transparency and security, efficiency, and the quantity and quality of participation. Hélène ended up articulating a defense of transparency as a default principle of democracy, one that anyhow must make some room for some limitations and exceptions.

3dd263cd-e5ac-4875-89c0-b26c293ce386

Helene Landemore speaks during a session at the CrowdLaw Conference in Bellagio

José Luis Martí complemented Hélène’s talk by introducing explicitly a distinction that is central to modern political philosophy: the distinction between justice and legitimacy. The goal was to move to a previous, conceptual level of analysis in order to grasp the meaning of the concept of ‘quality of law and policymaking’. Assuming that such concept is an evaluative one, and therefore that it needs to be grounded on some kind of normative standard against which law and policymaking might be assessed, I argued that justice and legitimacy should precisely be the obvious points of departure in trying to identify such standard. I finally claimed that, despite the lack of conceptual clarity and agreement, there was significant overlap among the different literatures that have tackled with the idea of the quality of decision-making, from political and legal philosophy, through the theory of legislation, the theory of regulation, and the theory of adjudication, to economic and management theory, in relation to the identification of the concrete elements or indicators of quality. Most of such disciplines identify procedural requirements that apply to the process of law, policy, or decision-making, as well as substantive ones that should be met by the law, policy or decision being made. I ended up presenting a tentative list of all those elements.

IMG_2966

Jose Luis Marti speaks during a session at the CrowdLaw Conference in Bellagio

Marta Poblet presented the counterpoint to the previous, more theoretical talks. She argued that we can and should learn from current experiences in political participation, especially from those strongly based on technology. Elaborating on examples such as the secessionist social movement in Catalonia, or the crowd-sourced constitution-making processes in Mexico D.F. and Iceland, Poblet argued that civic tech is making possible for citizens to mobilize and be present in a variety of channels that transcend the traditional limitations for massive participation. According to her, these new technologies applied to social and political participation may be of particular help to find solutions for many of the conundrums identified by political theory, as for instance James Fishkin’s trilemma. According to such trilemma, there are three goals that can’t be satisfied simultaneously: 1) political equality, 2) mass participation, and 3) quality deliberation. Poblet held that adopting certain kinds of civic technologies may allow us to reach a significant amount of each of these goals altogether in a way that is unprecedented. Marta finished her intervention by presenting her proposed taxonomy for crowd-civic systems, based on a distinction between three different models of democracy: the liberal, the republican, and the deliberative/epistemic one. Marta’s comments exemplified very well how crowdlaw may learn, develop, and refine from induction over existing experimentation, as much as from theoretical analysis.

The panel continued with a long, open discussion over the main issues raised by the panelists that helped to ground some consensus among all the participants over them: the relationship between legitimacy and the quality of law and policymaking, the potential sources of such legitimacy, the significance of transparency, the concrete indicators of the quality of lawmaking, or the convenience of elaborating an index of crowdlaw that might be applicable to urban contexts to assess the existing practices of citizen participation and the lawmaking processes, as well as some form of quality certification process.

There was even room for Udi Shapiro, a computer scientist and mathematician from the Weizmann Institute of Science in Israel, to present his proposal, with his co-author Nimrod Talmon, on how to make law drafting collaborative, potentially open to everyone, and truly egalitarian. That was an excellent example on the kind of technical knowledge crowdlaw needs to rely on in order to make its promises a reality.