Pauline Wong is the Assistant Director of IP Osgoode and Taylor Vanderhelm is a JD candidate at the University of Alberta.
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We begin with this post by Massimiliano Trovato, originally posted on June 27, 2011, in the Comments section of Media Laws. Trovato examines the social media spin on consent being the source of all legitimate political authority. Lovato asks, does crowdsourcing the reform of the Icelandic Constitution create a more legitimate instrument? And would it be feasible to replicate it on a larger scale?
Lysander Spooner And Constitutions 2.0
Massimiliano Trovato is a member of the Media Laws Steering Committee and a member of the Executive Team and a Fellow of the Istituto Bruno Leoni.
In 1867, legal theorist, entrepreneur, abolitionist and individualist Lysander Spooner famously argued that the US Consitution (or any constitution, for that matter)
has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago. And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years. And the constitution, so far as it was their contract, died with them.
Whether or not you agree with Spooner’s rather extreme position, the issue of consent as a basis for any legitimate political authority rests at the core of much of modern legal philosophy and needs to be taken seriously. This is why Iceland’s shot at crowdsourcing the drafting of its incoming Constitution deserves a close look.
A public call for revising the foundations of Reykjavík’s democracy emerged in the aftermath of the financial crisis that severely hit the country’s economic institutions. A 25-member Constitutional Council was elected to finalize a draft that will have to be submitted to the Parliament for approval – and after that undergo a referendum.
Here comes the tasty part. Since April, the Council has been posting draft clauses on its website every week for the people to comment and discuss. It channels further debate through its Facebook, YouTube, Flickr and Twitter accounts, and its meetings are open to the public and streamed live. Citizens can scrutinize the process and have a say in the writing, if they feel like it.
Is this arrangement replicable? Does it really address Spooner’s concerns? Of course Iceland, with a population of 320,000, has a better chance at wiki-democracy than most other countries around the world. And it is true that public involvement still falls short of Spooner’s strictly contractual criterion.
However, Iceland’s experiment hints at the potential impact of technology on the political process and paves the way for more transparent, more participatory institutions.
The original posting of this comment on Media Laws can be found here.