Digital Common Law: Moving from Government to Governance
To traditionalists, the idea of self-organized governance may seem visionary at best and wacky at worst. To the rest of us who are witnessing the slow-motion collapse of large, rigid institutions, the appeal of bottom-up, participatory systems of governance is obvious. We need governance institutions that are trustworthy, effective and socially legitimate – descriptions that are not readily applied to many forms of government and policymaking.
For huge segments of the population, it’s an open secret that the social contract is now a rigged game. That's what the Arab Spring, the Indignados in Spain, the Internet protests against the proposed PIPA/SOPA laws, and the Occupy protests were all about. While government suffers from lots of unfair criticism, governments are in fact plagued by political gridlock, legal complexity, bureaucratic limitations, the “pay to play” ethic, and the sheer expense of lobbying and litigating to advance one’s interests. No wonder so many people are disillusioned by the promise of "democracy."
The questions for our time are, Can we develop new institutions that work better and recover some measure of social trust and political legitimacy? Can we forge a new social contract? If government is unlikely to change much, can we move to new forms of governance?
As I see it, the chief challenge is not just to diagnose what’s wrong, but to build working alternatives and new grand narratives to help re-orient our thinking. Given the ubiquity of digital technologies and especially the Internet, I think some of the most attractive answers are going to come from digital spaces. The networked world keenly understands the value of open, participatory networks and the more efficient, socially legitimate outcomes it can produce.
My friend and colleague John Clippinger, a leading tech thinker and entrepreneur, and I recently wrote a short paper suggesting that some sort of re-alignment in governance is inevitable:
As more of life and commerce is mediated by digital technologies and Internet platforms, the tensions between legacy institutions (centralized, hierarchical, control-based) and emergent social practices on open networks (distributed, participatory, emergent) are intensifying. For years, such tensions have been deliberately ignored or finessed – but that approach may no longer be possible. The structural deficiencies of existing online systems are spurring the search for better, more practical approaches to governance, law and policymaking in an age of open networks…..
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