This is the long version of an article published on ZNet last year outlining the basics of participatory law. The present work was published in the Winter 2009 Hastings International & Comparative Law Review (Official Citation: 32 Hastings Int’l & Comp. L. Rev. 237 (2009) – all page numbers preceded by a *). The long version greatly expands on every aspect of last September’s post and includes all my footnotes so the reader can see what scholarship I used as support for a participatory legal vision. Hope you enjoy it; comments and questions always welcome at [email protected].
Argentina was facing one of the worst economic crises in its history at the beginning of this decade, leading to millions of lost jobs and thousands of factory closures. [1] In response, over fifteen thousand Argentine workers to date have taken over the closed factories and are operating them themselves. [2] Workers manage all of the complexities of the enterprise without a corporate hierarchy or professional management. [3] The Zanon ceramics factory, closed in 2001 and "recuperated" by the workers soon after, is illustrative: every worker is paid the same wage (with a limited seniority exception), there are no hierarchies of personnel or administration, workers select representatives at assembly meetings, and the factory is run as a direct democracy. [4] The Argentine State has been hostile *238 towards these worker collectives, [5] which is not surprising given that the workers did not pay for the property they seized.
Several activists have characterized the recuperated factory movement, somewhat idealistically, as a movement for a self-managed society. University of Buenos Aires Professor Andrés Ruggeri emphasizes that the movement is motivated more by worker desperation than a new political vision. [6] Ruggeri also speculates that one reason the Argentine government is not violently repressing the recuperated factories is because the movement is not intended as a direct threat to the state. [7] The end goal of a recuperated factory is to try and compete in the same capitalist market as everyone else. [8] However, it is premature to categorize the movement in Argentina as a temporary self-management arrangement that will inevitably evolve back into corporate hierarchies. [9] Maybe these new factories do represent something new. In any event, the courage of the workers in Argentina has inspired others to consider the viability of a self-managed society.
The factory recuperation movement in Argentina has not gone unnoticed by the International Project for a Participatory Society ("IPPS"), an activist organization focused on developing a vision for a new and fairer society. [10] The group, which includes Noam Chomsky, Howard Zinn, and lesser known activists and professors from all over the world, believes that a participatory society, ("parsociety"), has four core values: (1) solidarity, (2) diversity, (3) equity, and (4) self-management. [11] These values are interpreted as a rejection of centralized states, privately owned property, and any form of political or economic elite.
IPPS is using the word "participatory" in a more radical way than typical political science literature. Participatory institutions are *239 generally advocated for as an improvement to, rather than a replacement for, modern representative democracy. [12] This work adopts the IPPS’ use of "participatory": a vision of a new society with new institutions. In short, a parsociety attempts to create as much individual empowerment and freedom "as one can imagine short of trampling on the comparative freedom of others." [13]
Some members of IPPS have already developed a participatory vision for certain elements of society. Longtime activist Michael Albert, a founder of IPPS, wrote in his book Parecon (participatory economics) that parsociety’s values suggest a rejection of both capitalism and communism. [14] Parecon instead advocates a new economic model with worker and consumer councils deliberating together to shape production and consumption in industrialized society. [15] In 2005, Professor Stephen Shalom introduced a vision for a parpolity (participatory politics) in which local councils make decisions, federate into larger communities, and in so doing build up the political structure in a radically new way. [16] Although Shalom sets up a basic judicial structure, [17] Shalom has yet to discuss a parpolity’s legal implications.
The courage of the workers in Argentina and the participatory theory of IPPS inspire an idea: What would the legal system of a parsociety look like? What existing legal tools can be used to help understand the consequences of "participatory law?" An activist alternative worldview, such as a parsociety, may be treated with *240 skepticism; admittedly many such visions tend to clothe a particular interest or preference in universal language. [18] However, even if lawyers doubt the stated advantages of parsociety, it may nevertheless be possible to benefit from discussing and developing a theory of participatory law.
Part I of this note develops a legal vision for parsociety: participatory law or "parlaw." Part II will then examine parlaw’s remarkable similarity to existing international law. Finally, Part III will analyze a threshold question raised by parlaw: why would individuals obey laws if there is no state demanding compliance? In order to answer the threshold question, Part III will look to international treaty compliance research to estimate if and why people would comply with parlaw.
The issues are relevant to both participatory activists and the legal profession. If parlaw resembles international law, then participatory activists could counter critics by showing that the legal system behind their vision is possible at a global level. If participatory (and, by extension, international) law is built on a more just and fair foundation than domestic law, then international law may serve as a model for challenges to and changes in domestic laws. This counterintuitive proposition suggests a new approach to international law that may help justify or explain the workings of the international legal system.
This note develops an overarching vision for a participatory legal system, rather than detailing how particular branches of law might change in a parsociety. There are many questions beyond the general scope of this work that would be interesting for further contemplation. How would corporate or property law change in a world where private ownership of the means of production is "removed from the economic picture?" [19] Would intellectual property law cease to exist altogether, or would it retain some application? How would procedural and evidentiary law change in the courtrooms of a parsociety? What kinds of constitutional rights are protected? These are all intriguing questions, but a basic framework has to be *241 designed and explained before this more concrete discussion can take place. This note merely aspires to propose a legal system based on participatory values and to show how many of its distinctive features have already been implemented in the legal world.
I. How Law Works Within a Parsociety
A. Justification for a Participatory Polity
1. The Current System: Modern Democracy
To understand why parsociety advocates reject the traditional power relations in a modern democracy, it is worth briefly exploring the current system’s ground rules. A fundamental assumption of democratic philosophy is that a government cannot be legitimate unless the people freely consent to empower it. [20] Freedom and consent are now considered central values in good government; [21] no serious thinker today advocates for the old days of subservience to a king, even a benevolent king. Inviting deliberation to secure consent for every political problem is impossible in a large society, so representatives are elected to enact the people’s will. Even if one did not get the representative of choice, consent to be bound is implied by continued membership in the state. [22] These points merely restate the classical social contract theory; men hypothetically consent to an absolute power, which, while it constrains their behavior, forms states *242 for the greater good of all. [23]
Every American high school student is given this tidy explanation for why modern democracy works, but consent is not preserved so neatly in practice. First, the complexity of the issues, the necessity of technical knowledge, and the secrecy involved in national security decisions all separate the representatives from the people. The end result is an "elective guardianship" rather than a democracy. [24] Second, unlike a principal-agent relationship, an individual voter can only vote their specific preferences to the extent their views conform to a limited number of party platforms (platforms the voter did not participate in making). It is extremely difficult for displeased constituents to recall their representatives, and even if successful, the voter must again choose from the same party platforms. Third, any hypothetical consent to a social contract fails if people lack the freedom to not enter the contract. [25] Instead, a person’s only "choice" is to forfeit freedom and obey, or resist and bear the consequences. [26]
This situation is democracy in name alone; a "benevolent elective kingship" could create a comparable relationship between governors and governed. [27] Representatives can vote independently of their constituents on any number of issues. Members of the public endeavoring to keep track of their representatives are unable to because of the complexity of the issues and classified information. This power structure creates an escalating disconnect with the public as political issues become more complex. Being denied relevant information and access to politics causes people to become more dependent on their representatives’ judgments and less able to verify *243 if the government is responding to their concerns. [28] The public is forced to rely on the unwavering benevolence of their leaders; thus the law created by such a system cannot meaningfully be said to derive from consent.
There are two responses to these critiques: i) "so what?" and ii) the current system is a necessary evil. As for the first response, the argument would be that, even if democracy is not preserved, a benevolent king (or the intelligentsia, or the vanguard party, etc.) could be a good thing so long as well-intentioned, well-educated leaders are put in charge. Professor Shalom describes the mistake of those who justify non-democratic rule by a better qualified elite as follows:
[The error is] not in thinking that there is lots of ignorance out there; nor in thinking that debilitating life circumstances often interfere with people understanding their true interests. Their mistake [is] in assuming that they were free of self-interest or ignorance, and that they knew the interests of others, with enough certainty to warrant suppressing those who disagreed. [29]
Defending a lack of democratic process by pointing to the public’s ignorance or false consciousness has justified horrific tyranny and untoward bloodshed for centuries. The "So what?" argument is severely lacking.
The second response, that the current system is a necessary evil, is more compelling and will take the rest of this note to answer. Even though representation may offer more freedom in theory than in practice, no better alternative presently exists. Reform proposals note these issues, but think the system can be saved by giving the public a more deliberative say in society. [30] For example, political scientist Kevin O’leary advocates for deliberative Assemblies and a national People’s House to complement the American House of *244 Representatives and Senate. [31] These bodies would involve more citizens in the political process in an attempt to create a more representative government. However, O’ Leary’s Assemblies can only make advisory opinions and the People’s House lacks the full power of the House or Senate. [32] In all meaningful respects, the hierarchy of power remains unchanged. This proposal does not and cannot fully solve modern democracy’s consent problems until people have the maximum authority possible to manage the diversity of their interests.
2. Creating a Participatory Polity
Parsociety attempts to address modern democracy’s shortcomings by radically redistributing societal power. [33] Society would primarily be run by local councils in which all citizens are entitled to a direct say in their governance. Councils would decide how to manage basic social services and production-consumption patterns. [34] Shalom estimates that the smallest unit would be a "primary council" comprising only 25-50 people. [35] These councils would then join with councils from other communities and set regional policy. Consequently, society is rebuilt from the "bottom up." The basic idea is to have decentralized authority; the new arrangement is organized more like a honeycomb rather than a spider web. [36] No state currently embodies this vision, but it is theoretically possible. If a state is just a particular set of relationships then, as Professor Thom Holterman suggests, "[w]hy not have the relationships structured differently?" [37]
*245 B. The Legal Structure of a Participatory Society: Parlaw
Any societal restructuring poses challenging questions, including how a parsociety’s legal order would work. Council democracy with collective resource ownership implicates several types of law: constitutional law for the society’s organization, contract law for inter-council agreements, customary law for the development of norms and rules, and procedural law to tie it all together. [38] Parlaw is designed to realize modern democracy’s unfulfilled promise: law is only legitimate if it flows freely from the people.
Any legal system underpinning a parsociety will have a few signature principles: (1) the primacy of voluntary association, (2) an increased role of custom, and (3) a new federal division of political power. Each of these aspects will be analyzed in turn.
1. Voluntary Association
Like modern democracy, parlaw’s obligations are founded on consent. However the latter more carefully reflects consent because it is based upon the public’s informed and deliberative decisions. Parlaw’s legitimacy comes from the fact that citizens, via councils, directly debated and shaped how the law should function. Thus if the law is violated, the violator has directly consented to any legal penalty through mutual association. Unlike the American Constitution, participatory law privileges local council laws over federal laws unless the law’s effect extends beyond the local area. [39] Laws of local or individual impact [40] could vary from one primary council to the next: *246 euthanasia, surrogate motherhood, drug legalization, and abortion are all possible examples. Furthermore, parlaw better protects consent by making secession a "constitutional right." [41]
In a system of parlaw, the right of secession, though constitutional, is not absolute. [42] For example, a small community with vast oil resources should be unable to secede without first promising to equitably share that resource. [43] An apt analogy can be made to divorce law, where a wealthier spouse is required to share certain resources. [44]
Given the broad right of secession, why would parlaw not descend into mere power struggles among competing factions? The answer is that parsociety’s relative wealth equality (resources are shared as per parecon) creates a community interdependence so deep that withdrawing from society risks marginalization from the rest of the world. [45] Nation states giving up power for the sake of interdependence historically stems from economic forces: the post-war European integration, for example, was primarily a byproduct of economic necessity. [46] Likewise, a parsociety is not based on altruism and sunshine: though secession is permitted, a small federation of communities forbidden from possessing disproportionate wealth has considerable incentive to negotiate any differences.
2. Custom
While much of the previous discussion of parlaw focuses on creating law through a stream of voluntary contracts, another basis of obligation must be customary practice. The only way to order such an infinitely complex group of communities is to emphasize *247 unwritten, or even unarticulated, customary practices. When people engage in customary practice because they feel legally obliged to do so, the practice becomes customary law. [47]
Customary law is legitimate because communities, absent state coercion, have endorsed particular conduct that is considered fair and reasonable. In other words, customary law rests on implied consent. [48] Because parlaw is likewise predicated on consent, it is possible to abstain, withdraw, or alter customary law, provided there is advance notice and a consistent objection to the practice. [49] For example, traffic laws in a parsociety will likely change little from the present; people will drive on the same side of the street as before out of convention and for the sake of safety. However, if a community wanted to drive on the other side of the road, they could by making a clear objection in a reasonable timeframe.
3. Federalism
Parlaw is based on a type of federalism where one has control over decisions proportional to the degree to which one is affected. [50] In this note, federalism is defined simply as the division of power between a federal government and regional governments. [51] However, *248 parsociety flips the traditional federalist balance of power on its head; local communities now have substantially more power relative to regional representative bodies. This framework creates a floating hierarchy, as opposed to a pyramidal structure where the people at the top develop the law for everyone else. [52]
In this structure the first level councils would choose a representative to attend the second level council. This second level council would then choose a representative to participate in the third level council and so on. In this way, the number of people represented at each level of counsel increases exponentially, as shown in the table below. The size of the first level council is a number chosen for illustrative purposes but is within the range of 25-50 that Shalom indicated. [53]
