[Contribution to the

Reimagining Society Project hosted by ZCommunications]

parecon and parpolity.  The hyperlinked writings are worth reading in their entirety to get all the details, but the basic idea is that society’s basic political units are primary "nested" councils of people who make the laws; these councils are small enough that everyone can deliberate decisions (think about 40 people or so).  These councils federate with each other by sending delegates to higher level councils and society is built from the bottom up.  Nothing like a national centralized government exists; decisions are only made on a large scale to the extent that there is a common interest justifying taking authority away from the primary councils.  Laws are made only to govern the number of people affected, irrespective of countries or national boundaries.   If you don’t have nations then you can’t have "international" anything, including international law. 

Really the question for a new society is one of global law: what would law look like at the largest level of the federation of participatory communities.  If you want an explanation on whether a participatory society should have law at all and the basics of how it would work, I’ve written on this topic

 already.  

What problems of modern international law need to be addressed to make it functional in a new society?  The biggest problem with international law today is not the content of the rules but the selective justice in implementing them.  Society today has two kinds of international law: the regular kind and what Jose Alvarez calls

hegemonic international law (subscription required) where big boys like the United States do not have to follow the same laws as everyone else.  Global law has to solve that problem; the challenge for global law is to develop rules in such a way so as to make them "stick" across a wide variety of councils and communities.

In this essay I’ll outline a two part framework for global law.  Global law should i) impose a minimum baseline of protection that binds all actors making laws.  Beyond that baseline, ii) people should be allowed to organize and regulate themselves however the hell they want.  First I’ll explain how the global law baseline could look, then suggest some thoughts on how people could expand upon the baseline through participatory lawmaking.

The Baseline:

Why Have a Baseline:

The baseline rules for global law are going to be things that are so universally desired that they should be enshrined as rules of the game.  A right to life or a prohibition against discrimination are two examples of baseline rules that hopefully everyone can get behind on some level.  If a community in a participatory society wanted to engage in apartheid or child prostitution, then they should not be allowed to do so even though that is how they wish to manage themselves.  That’s the idea of the baseline – certain fundamental rules that cannot be crossed.

Why do we need a baseline?   It is tempting to think that a baseline is a needless insertion of coercive authority in an otherwise participatory process.  No mistake about it; the idea of a baseline is as rigid and inflexible as the laws existing now.  If anything more than an absolute minimum number of rules comprises the baseline, then the participatory process is destroyed and the new society would start to look an awful lot like the old one.

That said, you still need the baseline.  Maybe, enlightened reader, your community would be a wonderful, well-managed place even without a baseline.  However, picture the most racist, bigoted, prejudiced person you have ever met in your life.  They are part of the new society, too, and they may want to be governed by an entirely different set of rules.  They are entitled to do that, but there has to be some limit to their law making power.  You don’t want the community next to you to reinitiate slavery in the name of self management.

That’s the point of the baseline; it’s a necessary, justified, widely agreed upon limit on the creativity of the participatory process. 

What is the Baseline:

But what would these rules be?  Some of the baseline rules would be enshrining the participatory process itself: the nested councils, delegates, federated councils, etc.  A new society by definition needs to explain the basic process by which it works; think of the description of the three branches of government in the US Constitution as an example.  Perhaps a larger point of contention is going to be what rights get classified as baseline rules.  These basic rights would have to be chosen very carefully and enshrined in something like a Constitution to properly convey their significance.  Every national constitution currently in existence is generally premised on the same idea; some rules are special enough that they get special significance in a special document. 

Rather than looking to any one national constitution for help with deciding the baseline rights of a new society, I’d like to suggest that human rights law would be a useful place to start when deciding what the baseline rules should be under a global law. 

There are several reasons why it makes sense to have human rights in mind when drafting a baseline.  First, human rights law already aspires to be a kind of global baseline.  The very term "human rights" in major international treaties and declarations is attempting to explain the minimum, "common standard" of treatment that everyone is to receive simply for being human.  Second, using international law as a baseline avoids some potential controversy that would be created if the new baseline document includes the words of some national constitutions and not others.  Third, human rights law privileges economic, social, and cultural rights (right to education, health, etc.) in addition to the civil and political rights

 enshrined in documents like the American Constitution (free speech, equal protection under the law, etc.).  Both kinds of rights merit inclusion in the baseline document.

An opening essay like this one does not have to decide exactly what rules would or would not be in the baseline document of a global law.  Nor will it decide whether some of the basic rules could be temporarily taken away in times of emergency; such rights are called "derogable norms" under international law.  All I am saying, echoing Stephen Shalom’s opening essay on this point, is that a new society would need such a document.

The Legal System Beyond the Baseline:

 With the baseline in place, people can manage their own lives and make their own rules to their creative limits.  Indigenous law.  Religious law.  Laws the same as the ones in the old society.  Laws based on the French civil code.  Or the American Constitution.  Or the UN Charter.  Or the opinion page of the local newspaper.  This part of the political process really shows off the virtues of a participatory lawmaking; lawmakers not driven by narrow ideologies can more easily draw from a richer array of sources than the politically deadlocked two party systems so common today.

Rules that affect the lives of people beyond their primary council will be voted on by other affected communities.  Councils will interact with other councils on laws of common concern and deliberate at higher level councils as appropriate. 

An Example of how Participatory and Global Law Interact

Perhaps an example would be useful.  Let’s say Primary Council A wants to legalize same sex marriage while its immediate neighbor, Primary Council B, does not.  Same sex couples could marry in Council A and not in B; the two laws coexist.  Given the size of the primary councils, this is a dramatic difference from lawmaking today, as two different streets might have two different marriage laws.  If a same sex couple with one person from A and one from B wish to wed, then there is a conflict of laws that is decided by the A&B Council level that comprises both communities.  This is the basic idea of how the participatory legal process works.  Notice how society is not necessarily more or less progressive; it is merely more reflective of the people’s will. 

There are only two situations where either council could not independently create the sort of marriage law they wish: i) when another community is substantially affected by the primary council’s marriage rules, or ii) if a baseline right is infringed upon.  Courts could resolve both these issues if disputes arise. 

As for the first situation, Council A could go to court and argue that Council B’s stance on same sex marriage harms their community.  They could try and argue that Council B’s law has a discriminatory effect on homosexuals in Council A, or that marriage restrictions in Council B make it unreasonably difficult for Council A citizens to marry.  In other words, the challenging council is arguing that Council B’s law is really not of local character and that Council A is sufficiently affected to justify a joint A&B deliberation be made on the same sex marriage issue.   

As regards the second situation, Council A could try challenging Council B’s law by arguing that a baseline right is infringed upon.  Maybe a denial of same sex marriage violates a basic non-discrimination right in a new society or a right to equal protection under the laws, since some can marry under the law and others cannot.  Perhaps even the right to marry the person of one’s choice is a fundamental right in a participatory society; it depends on what the baseline rights are.  A successful court challenge on the violation of a baseline right would invalidate Council B’s law entirely. 

This process at the A&B level is how the seeds of a global law would get planted.  Everything repeats at higher level councils; the A&B council marriage laws interact with the C&D marriage laws and so on up the federation.  The process continues until the marriage laws everywhere are deliberated upon by an appropriate number of people and in a way consistent with the baseline rights. 

Virtues and Challenges Raised by the Example:

There are several virtues to be highlighted in the above example.  First, notice how cautiously authority is taken away from the primary council level.  Legal challenges are in place to ensure that this authority is only taken away when it is necessary or highly justified.  Second, the rules of society are much more reflective of people’s opinions or beliefs.  Global laws are built upward from small communities, rather than from diplomats, presidents, or professional statesmen.  Rather than being at the mercy of a state or national legislature, a group of 40 people could gather together and set a marriage law that makes sense to them.  Third, the baseline rights guide the creative process so that the flexibility that comes from participatory lawmaking is only used in constructive ways.  In this sense, challenging laws in a participatory society would not be dramatically different from what happens now.  When people challenge the constitutionality of a law in the Untied States they are similarly arguing that America’s baseline rights are being violated.

The above example and global law generally also raise several challenges.  I will raise and respond to one potential problem, leaving the rest up for discussion.  Perhaps a pluralistic participatory society is too unmanageably complex to work.  No one could keep up with all the variations in the marriage laws across different councils, nevermind the thousands of other aspects of life that a society must also address.  Imagine driving a car where half the cars must drive on the right side of the street and the other half on the left side.  Complicated!

The problem is pretty clear, but there are several reasons for why a self managed set of communities guided by baseline rights would actually be simple enough to work.  I’ll rattle them off in bullets:

a) Society Can Simplify the Law When Needed. 

If people think that society is too complex then, in a participatory society, they have the authority to streamline it and make it simpler.  People could look at their communities, decide that varying marriage or traffic rules are too unwieldy, and then negotiate compromised solutions.  The fact that society can chose a more varied set of laws does not mean they have to; choosing to have uniform laws across councils is a choice that is always available in this kind of society.    

b) Complexity Problems are Not Theoretical Problems.  

By this I mean that the current centralized government system operating often invokes unjustified authority in the name of making uniform laws.  The problem with the current system is a problem of first principles: laws created by centralized legislatures can never accurately depict what society wants because they are run by professional legislators instead of the people directly affected by the law.  Saying you have a representative in Congress acting on your behalf is an illusion; your "representative" just got elected on the wings of a massive public relations campaign where an army of well paid marketing experts did everything possible to convince you that your representative understands your dreams and your problems. 

I wrote more about this problem in an older article on participatory law

By contrast, having a self-managed society that struggles with the complexity of its realization is a problem with executing the vision, not with the vision itself.  The complexity of the world becomes more and more within the ordinary person’s grasp all the time.  Imagine if in the 18th century United States the Founding Fathers had access to internet, smart phones, and modern polling technology.  Do they still build a country that elects one representative for thousands?  Or was that just the most self management that was available in 1789?  How you answer those questions depends on whether you think the motives of the revolutionaries were noble ones, but you get the point.  Having a rock solid vision with some complexity is better than the other way around because as technology makes it easier to deal with society’s logistics then the rock solid vision will still be there.

c) No One Really Knows the Laws of Society Now.

It is not in government’s best interests for the people to know the laws.  People who know their rights becomes disobedient when the government tries to take their rights away from them.  They resist when cops illegally arrest them.  They refuse to fight when the government launches illegal wars.  They don’t waive their flags and choke up during the national anthem when they know the law is selectively enforced.

So the laws of society are largely hidden, for the most part.  Consider – how do you know the laws of the place where you are reading this?  It is highly unlikely that you actually sat down and read the relevant statutes.  Even if you were to try to read the laws, most of them are written in sophisticated legal jargon that only people with legal training can fully understand.  Most people know the laws from watching how other people behave in the world and by using common sense and good judgment; the overwhelming majority of the laws you obey you have never read or even have had told to you.  People only consult attorneys or try and research the law in the comparatively rare situations where their conduct is going to lead to some unusual result outside the normal realm of rules they deal with in everyday life.

Modern society also has layers of laws that all govern peoples’ lives and coexist all at the same time.  These laws are given to them by government, culture, religion, family, etc.  All these layers also have sublayers: government laws could be federal or local, religious law could derive from the Quran or the Bible or the Torah or on and on. 

The tremendous legal variation from council to council in a participatory society is not so impractical when you consider modern society in this light; the practicality of a pluralistic legal world is on display right now.  When you take into account the virtues of participatory lawmaking, then some progress is being made here.

People in a reimagined society would drive their cars on the same side of the road as everyone else even if there was no traffic laws.  People who genuinely do not know the marriage rules in a given place would discover these rules when they tried to wed; the complexity is dealt with in its natural course.  The baseline rules exist to make sure that no one loses their ability to challenge laws wrongfully made. 

The key to the complexity issue is this: when people say that building global laws in a reimagined society is a nice idea but unworkable in practice, they are comfortably ignoring the legal fiction that the current system works the way they think it does.  

Conclusion:

Developing the legal elements of a new society is an extremely complex undertaking.  What principles and procedures should organize a participatory courtroom is a major area of the participatory vision that needs to be explored.  The content of the baseline, both society’s structure and its fundamental rights, is another topic worthy of discussion.  In a way this opening essay says very little; there needs to be a minimum level of legal protection for human beings in a participatory society and beyond that society can evolve and grow in ways consistent with those basic values.  Many modern societies purport to work the same way.  The distinction here is that this new society would be built around different processes and with different rights so that society propels itself forward in different, hopefully better, ways.