Digital Common Law

= a new sort of socio-legal-technical governance regime.

Discussion

By John Clippinger and David Bollier:

"Digital common law is a bottom-up, voluntary, user-driven system that establishes context-specific norms for governing a given online community/market. While broad parameters of law continue to be set by legislatures, executive branch agencies and courts, the point of this social-legal-technical ecosystem is to embed as many fundamental principles of decision-making, oversight, and enforcement as possible into the software design and network protocols themselves.

We consider this a natural progression in the evolution of law. A system once based on oral, social forms and then later written, institutional forms must move into the digital realm and become algorithmic. That is to say, it makes sense in the digital age for people to use self-learning, data-driven network computing as instruments of law. They can provide a reliable, effective way to identify and represent collective sentiment, and to oversee and enforce such sentiments. The basic principle of digital common law is to use open network systems to formalize mutual accountability and shared intentions. Distinct communities and/or participants on open networks can invent and define their own operational norms to suit their needs, subject to general public policy mandates. The system can be highly attentive to shifting circumstances and preferences, and make suitable modifications without the impediments that afflict conventional law and policy.

Digital common law is not a fanciful idea, but an eminently practical and attractive idea now that so much commerce and everyday life occurs on digital platforms. As noted, conventional government has trouble effectively legislating and regulating digital activities because it cannot keep up with their faster innovation cycles and fastchanging social norms. Government antitrust lawsuits, for example, can take years to resolve, by which time remedies for the entire original offense may have limited or counterproductive impact. Privacy regulation, too, can take a long time and be fraught with uncertainties, which in turn provoke an elaborate collective gaming of the process rather than straight-forward regulation and compliance.

To be sure, digital structures will not displace government; there will continue to be a need for antitrust law, privacy regulation, consumer protection, and so forth. But digital structures can enable new types of consensual governance that will almost certainly be more flexible, effective, and evolvable than existing structures. By moving from a system of external regulation focused on compliance and punishment to one that internalizes feedback and governance into the (digital) system itself, we can expand the “solution space” for effective regulation. In many circumstances, too, digital common law will be seen as more responsive and socially legitimate than existing systems of law and policy. It can avoid the huge costs, uncertain liabilities, and problematic social acceptance of government policymaking, while providing a hosting infrastructure on which more adaptive, context-specific and politically neutralized solutions can emerge. The idea is to use open networks to “learn” from user behaviors and databases, and to let systems self-organize their own innovative responses over time.

If the contours of digital common law and its institutions remain a bit fuzzy, it is precisely because the goal of an open platform is to evolve these new forms over time through user participation, much as the World Wide Web, open source software, and countless other network-based ecosystems have evolved in unexpected ways through mass participation. Digital common law regards governance institutions as emergent systems that will arise through repeated experimentation and tests animated by the social ingenuity and mores of users. As a selforganized project, it will embed principles of transparency, integrity, and accountability into the system itself; such principles tend to make social governance regimes more legitimate, stable, and self-sustaining. The infrastructure that we envision will naturally elicit diverse sorts of experiments in a variety of venues; from this process, consensually acceptable rules, social norms and institutions will emerge. On such an open, exploratory platform, governance modalities will have less to do with traditional ideologies or jurisprudence than with their sheer functionality and user acceptability. What matters is that “the consent of the governed” will be richly served by the co-construction of governance rules by participants themselves.

This practice-based approach draws directly upon Oliver Wendell Holmes, Jr.’s classic critique of common law as a generative, self-correcting process, and upon the anthropologist Claude Lévi-Strauss’ notion of bricolage as a process of constructing something new from whatever exists at hand. In his 1881 essay, “The Common Law,” Holmes noted, “The first requirement of a sound body of law is that it should correspond with the actual feelings and demands of the community, whether right or wrong.” One of the great virtues of common law has been precisely that it is based on disaggregated real-world experiences and the accepted social customs of ordinary people. It can therefore evolve and mutate as new conditions arise while still reflecting the sentiments of ordinary people in their actual local circumstances. This insight led to Holmes’ famous passage: “The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.” Lévi-Strauss’ notion of bricolage astutely captures the basis of so much Internet-based creativity today, and yet reflects the animating principle of common law, as described by Holmes.

As digital technologies become smarter and more interconnected, we need a network infrastructure that can enable self-organized, bricolage-style governance: a digital common law. Instead of a strict adversarial system that assumes most of the burden for identifying misdeeds and imposing punishments, we need a system that welcomes trial-and-error experimentation and learning, and then aggregates feedback and errors in order to point register progress in advancing toward consensual “goal sets.” When self-corrections are integrated into the granular, everyday activity of a community, any “sanctions” are experienced more as gentle peer corrections and admonishments, and less as formal, law-driven punishments. Such a system is more robust and efficient because it welcomes an ongoing process of experimentation, feedback, and testing in the context of local conditions, while generalizing rules as possible. If the algorithmic bases of the digital common law are sufficiently refined, any external oversight, regulation or voting becomes moot. The system automatically yields clear signs when one method works better than another, and when one approach has greater social acceptance while others are reviled.

The real challenge, then, takes place at a meta-level: designing the right combination of metrics for identifying and validating a group’s online behavior, and enabling social practice and digital common law to co-evolve over time."

Source

• Working Paper on Trust Frameworks and Self-Governance; ID3 Workshop, May 31, 2012