It is understandable that, despite the wealth of material about participatory society, no one has written at length of the legal vision suggested by this new society.[1] Lawyers are not a sexy subject for many activists to talk about: they reside in the coordinator class, many of them work to protect government and big business interests, and the legal structure they work within is largely designed to perpetuate a world order that participatory society (parsociety) aims to flip on its head.
But it’s just going to be a fact of life that law is a part of participatory society. Even in a society run without capitalism people will still try to exploit one another. Even in a society run without representatives beholden to the powerful rules of one place will conflict with the rules of another. Even in a world of equality and perfection people will still make mistakes.
Law should not be thought of as a problem to be overcome for a new society. It is rather a tool that can be used to help the new society grow and protect its values. Law is not inherently pro-corporate, anti-employee, and so on. Lawyers can be part of parecon’s balanced job complexes along with everyone else. The key is not to avoid discussing law, but rather to find a legal vision consistent with participatory society.
This essay aims to develop a "participatory law" for a participatory society, or parlaw.
Basics of Parlaw:
Reverse Federalism/Subsidiarity:
Some of how law works in parsociety has already been fleshed out for some degree, mainly from Professor Shalom’s Parpolity essay. People meet in nested councils to make laws, with the smallest councils having only 25-40 members. There are courtrooms that handle dispute resolutions, even if judges aren’t appointed in the usual way.
Nested councils do create a division of power between federal and local government, but this federalism is totally different from what we have now. Whereas we have national law trumping state law trumping local law, in parsociety primary councils often have more authority than higher level councils. In other words, there is no Supremacy Clause in this system like in the US Constitution. Higher level councils only make laws to the extent that regional, inter-council deliberations are necessary, such as planning a coordinated response to stop the spread of viruses (well, unless you can get away with an uncoordinated response because your viruses are so well trained they respect your territory’s sovereign boundaries). There is a term for this style of government in international law: the principle of subsidiarity, which says that decisions should be made by the smallest unit of government possible. Think of parlaw as being subsidiarity all the way down to the roots.
Consent:
The power of the primary councils emphasizes what is really the primary value in participatory society: consent. Modern democracy also emphasizes consent as a primary value, but this new society incorporates consent to an entirely different degree.
We currently vote for representatives that make laws on our behalf or even have referenda on specific issues (in some states), but numerous forces transform a government flowing from our consent into a complete fiction. Representatives are difficult to recall and impeach, even when they dramatically subvert their constituents’ wishes. We can only vote for representatives that conform to a limited number of political platforms that we have no say in developing. Complex political issues involve technical expertise which representatives acquire instead of the public, which creates i) more dependency on representative’s judgments, ii) less understanding of the issues by the citizenry who are not deliberating the issues themselves, and i+ii) a vicious circle. National security decisions are deliberately kept away from us without evaluation from any disinterested group. People who feel so disenfranchised that they wish to leave the democracy are arrested and thrown in jail (or go to another democracy with the exact same problems).
Where’s your consent? Robert Paul Wolff accurately describes that a "benevolent elective kingship" could create a comparable relationship between governors and governed.[2]
A participatory law tries to push the consent idea to a limit more consistent with consent’s primacy in any good government. By institutionalizing higher level representatives returning to their lower level councils "whenever possible," people have direct opportunities to challenge and recall their representative, if necessary. People deliberate decisions in their local councils to make laws, giving them incentive and opportunity to make laws conforming to a wide variety of viewpoints and to acquire the expertise that comes from governing. Increased deliberation leads to increased transparency in national security and other decisions. Finally, secession is protected as a constitutional right, so people who want to withdraw from society on principle have an institutionalized opportunity to withdraw. This kind of law can finally deliver on modern democracy’s unfulfilled promise to all of us: a government of, by, and for the people.
This new level of consent still has to have some limitations, and it is a remaining challenge to participatory society to determine where these limits belong. Some limits have been discussed, such as Professor Shalom’s statement in his ParPolity essay that sometimes secession can be blocked (at ¶6.9), such as when a resource rich area wants to selfishly leave their country. This exception to the constitutional right of secession is a limit to consent. The fact that constitutional rights exist at all is a limit on consent, albeit a necessary one. What rights should be constitutionally protected? What exceptions should exist? Presumably high council courts determine Constitutional exceptions (like secession’s limits), but by what standards should they make these consent limiting decisions?
All of these are good questions, and participatory society advocates have to carefully describe why parlaw’s limits on consent are strictly necessary, whereas modern democracy’s limits are not. Regardless, there is a lot more consent embodied in parlaw than the current system.
Custom:
Besides the issues surrounding consent, another question remains as to how to handle holes in the legal structure. One advantage of having powerful central authority dictating everything is that one small group can fill a gap in the law very quickly and affect the entire nation. The problem is that they fill these gaps in a way that diminishes the law’s fairness and justice. By contrast, better laws get made by the federated council structures, but the decentralized structure of participatory society means that legal disputes would regularly arise before a primary council has an opportunity to deliberate a particular issue.
The solution to this problem is to incorporate a brand of law largely removed from the American legal system: customary law. Customary law is defined internationally as customary practice undertaken out of a sense of legal obligation. If two councils behave in a certain way long enough, then this practice actually becomes a law conscribing their behavior. Freedom of movement restrictions or the meanings of legal guarantees (what would a right to health entail, or a right to an environment, for examples) could be determined by customary law if no council law existed on the subject. Customary law can fill these legal gaps and create a fully functioning legal system.
An Example:
To see how these features of participatory law work in practice, consider the question of individual drug use. Drug legalization divides progressives – is it an issue of personal freedom or a cancerous force that requires some regulation? In the current system the choice is made for us from above by our representatives. A parsociety can better accommodate people’s individual preferences. Here’s how, using some street names from my home of San Francisco:
Let’s say we have two Councils on 2 different streets called Guerrero and Valencia. Guerrero Council votes to legalize drugs while Valencia Street does not. The next level higher council containing representatives from both streets (called the Mission Neighborhood Council) also votes to legalize drugs. This higher level vote is used to resolve conflicts in the laws between the two streets. Here’s the array of possible scenarios stemming from this setup:
1. I live on Guerrero Street and do drugs on Guerrero Street within the legalization law’s parameters. There is no legal sanction.
2. I live on Valencia Street and do drugs on Valencia Street. I am punished within the Valencia drug ban’s parameters.
3. I live on Guerrero Street and do drugs on Valencia Street. Now there is a conflict and laws, and the Mission Neighborhood Council’s law governs. Since this higher council comprising representatives from both streets has legalized drugs, I do not face any legal sanction.
4. I live on Valencia Street and do drugs on Guerrero Street. The Mission Neighborhood Council law applies again, and there is probably no legal sanction (see my fifth comment below the example).
5. Someone from a neighborhood that has banned drugs does drugs in the Mission Neighborhood. Now the law of the next higher level council, the San Francisco Council, governs the dispute under the conflict of law principles articulated above.
Finally! We have a law on a controversial issue that is so fluid it can actually reflect differing opinions on different streets. No more being disenfranchised, no more government by the elite, no more living in an illusion of consent. But a lot of collateral issues arise from this example that need to be addressed:
First, must every primary council debate every single issue for this legal structure to work? It sounds like a pain; fortunately, we don’t have to go that far. Every member of every council need not actively decide every issue; they just need to have an opportunity to deliberate every issue. If you have no energy on drug legalization, then don’t go to the meeting that week. If you have more energy on the abortion vote the following week, then go to that meeting instead. The key point is that everyone is invited to both meetings.
Second, how could people ever know what the laws are if they change from street to street? Admittedly, parlaw involves a lot of coordination between groups. But this is a technical problem, as opposed to an ideological one. It’s also a bit of an overstated problem – the current state of internet and cell phone technology makes the coordination issue more surmountable than at any point in human history.
It’s also worth remembering that if people behave a certain way long enough then the customary practice may become customary law. If Valencia Street’s drug ban is never enforced over a sufficient period of time and a person visiting that street is arrested, then that person can compellingly argue that drug use has been decriminalized on Valencia Street by custom. This appeal to customary law can protect people who made a good faith mistake in understanding the laws in any given place.
Third, can anything be done to make this multiplicity of laws less confusing and more streamlined? The answer is absolutely. I find it useful to think of the essence of parlaw as a kind of tradeoff between efficiency and fairness. The price of the laws being made and implemented more fairly is that they may function less efficiently. This is not necessarily a bad thing; we make this kind of tradeoff all the time. For example, in American law we exclude evidence from criminal trials if the police obtained it illegally; even relevant, accurate evidence. This exclusionary rule is a tradeoff of efficiency for fairness; parlaw behaves similarly, but across a much wider set of behavior.
The difference in parlaw from the current system is that people get to choose when they want the laws to be more efficient and when they want them to be more fair. If Guerrero and Valencia Streets, worried about confusion, just vote to follow the drug policy of the Mission Neighborhood Council then they can do that. But if Guerrero Street is the only street in America that wants legalized drugs and they want it badly enough (efficiency be damned!), then they can legalize drugs under parlaw if they are not hurting anyone else. In modern America they would all be arrested – the difference is a big one.
Fourth, and looking specifically at scenario #4, do we really want a society where someone on Valencia Street is allowed to fragrantly violate their council’s laws simply by moving one block to Guerrero Street? This particular objection is unfairly stated. Any law applies to a person and a territory; if one or the other changes than there is nothing unusual about the law changing. No one would say that an American 19 year old who grabs a drink in Mexico is flagrantly violating American law. Similarly, no one would say that a person driving on one street with a speed limit of 40 MPH is flagrantly breaking the law when their street’s speed limit is only 30 MPH. American drinking laws don’t apply in Mexico; speed limits are similarly rooted to a person driving on a specific street. This dynamic also exists with parlaw, just with more legal malleability on a micro, street to street level.
Fifth, a legal problem could exist if someone takes drugs on Guerrero Street and then causes some drug-related problems back on Valencia Street (maybe the avoider under the influence starts damaging people’s homes, for example). Now maybe the drug legalization law’s impact is no longer personal/local. A council court would be needed to resolve this problem assess the true impact of the law. If the Mission Neighborhood Court decided that this particular drug legalization law had a discernibly harmful neighborhood level impact, then they invalidate the Mission and Guerrero laws. This result does not mean that Guerrero Street still can’t have legalized drugs, but it does mean that they would have to go back to the drawing board to create a more measured law that lessened the harmful impact on Valencia Street.
Comparing Parlaw to Existing Law:
Lest anyone think this all sounds too fanciful to ever come true, I have news for you. This participatory law framework works a lot like the international legal system now.
Think about it. International law is also decentralized, except instead of councils we have countries. Consent to a given international law is almost always a prerequisite to that law being enforced against a state; this is how the United States can evade so many international obligations simply by not signing onto them (and I would argue that this is a problem of the US being a hegemonic national power, and not a problem with how international law preserves national consent). The World Court can not hear a case unless the country consents or the UN Security Council, hardly a legal organ, compels your attendance. Customary law is also a signature feature of international law as articulated by Article 38 of the statute creating the World Court.
The main difference between international law and parlaw is that the former is much more protective of state’s domination over their boundaries. But a lot of the principal theorists developing international law in the early 20th century were very critical of giving unwavering allegiance to the concept of state sovereignty. German theorist Hans Kelsen said that state sovereignty is not essential for international law to work and said that anyone saying otherwise would be lending a purely political argument the appearance of a logical argument.[3] Hans Morgenthau, a key cog in developing the discipline of international relations, also saw state power politics as a set of "tragic choices" and wanted a world government with an international police that could cross sovereign boundaries.[4] Finally, Hersh Lauterpacht forcefully argued that the liberal statehood of his day was "an insurmountable barrier between man and the law of mankind."[5]
So maybe state sovereignty isn’t needed in international law. By distinguishing this difference and given the many similarities between international law in parlaw, makes comparing these legal systems useful in a couple ways. First, a decentralized law on a global scale is possible – it currently exists. Second, the tangible successes and failures of international law can be used to help participatory society advocates understand how parlaw would work in practice.
Why People Comply With International Law & Why They Would in Parlaw:
For example, one problem in international law worth considering through a participatory lens is that people don’t comply with international law as much as they should. A number of factors have been teased out of studies of legal compliance that have been found to increase compliance.[6]
First, empirical studies have shown first that treaties negotiated by those most affected (like elite groups negotiating economic treaties) lead to better compliance than treaties negotiated by people primarily for third parties (like human rights treaties). Second, the potential for reputation damage leads to better compliance, so anything that makes states more reliant on each other and increases interdependency should increase compliance. Third, in a related point, anything that makes a government more beholden to transnational interests (NGOs, activists, community economic interests, and "moral entrepreneurs" both at home and abroad) also has been found to increase legal compliance. These forces push to internalize international laws as domestic laws, which give them more enforcement power.
The fact that these kinds of forces lead to better compliance with international law is promising for participatory law, since, once again, the two systems have a lot in common. A parsociety emphasizes deliberative democracy, so more treaties would be negotiated by the people most affected by them. A human rights treaty in a parsociety is no longer made by (often unelected) political elites, but rather by leaders who have risen from the ranks of an equal society and therefore have direct incentives to push for better compliance. As for interdependence, a parsociety is the most interdependent system imaginable in an industrialized society. A gigantic nation hogging global resources can’t exist in a parsociety because of parecon’s emphasis on resource sharing, participatory planning, and remuneration by effort and sacrifice. Because political and legal power is much more localized in a parsociety than a modern democracy, groups like activists are better able to encourage incorporating broader federation agreements into their council’s laws.
Conclusion:
Articulating the basic contours of parlaw helps make it easier to understand how law would work in a new society being run on participatory principles. The similarity between parlaw and international law is useful to both have an existing legal system available for comparison and to counter any objection that parlaw can’t be possible.
There are some other potential objections to parlaw that are beyond the scope of an article like this one that merely introduces the model. Here are two of them for further reflection:
1) On this interdependence issue, one nice feature of parsociety’s interdependence is that it creates a cosmopolitan identity. People would care more about each other across national boundaries because, well, there aren’t any. The problem is that we currently live in a world of jingoism, flag waving, and strongly rooted Americanness. This isn’t a theoretical problem, as it is possible for a national identity to change (Kosovo’s recent independence is a final confirmation of a change in national identity, for example). Practically though, creating a cosmopolitan identity can be difficult if strong nationalist ideas placed in our minds by the media, the political elites, the schools, and others prevail. In over to get the full benefits of interdependence, the public’s strong attachment to their own people/country/nation has to be "unwound" in some way so that a broader perspective can blossom.
2) Parlaw may be an odd model that works at both extremes, but not in the middle. A fully interdependent global participatory society can completely marginalize any rogue council and get very strong compliance and buy-in into the system. Conversely, in a very small community (such as an indigenous group or a single household) it is very easy to deliberate and run things in a participatory way. The problem becomes when half the world is participatory and half the world is still run by unfair systems like modern democracy or dictatorship. If parlaw is a tradeoff of efficiency for fairness, then the more ruthlessly efficient countries could use violence to weaken or destroy the more enlightened part of the world. This arguably is what happened in anarchist Spain during the Spanish Civil War. The best way to address this objection is to somehow build such a critical mass of support that parsociety becomes able to defend itself from sinister, undermining forces.
Matt Halling is currently in his final year of law school at University of California, Hastings. He can be reached at [email protected]. This essay is a condensed version of a student note that will be published in the forthcoming Fall 2008 Hastings International & Comparative Law Review.
[1] Title is inspired from No Gods No Masters: An Anarchist Anthology (Daniel Guerin ed., AK Press 2005) (1980).
[2] Robert Paul Wolff, In Defense of Anarchism 30 (1970).
[3] Hans Kelsen, Introduction to the Problems of Legal Theory 124 (1992) (1934).
[4] For more on Morgenthau, see Martti Koskenniemi, The Gentle Civilizer: The Rise and Fall of International Law 1870-1960 449 & 469 (2002).
[5] Hersh Lauterpacht, International Law and Human Rights 77 (1950).
[6] All these studies are cited and analyzed in the law review note and are available upon request.
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