Lawrence Lessig famously stated that “code is law”:
The primary idea, as expressed in the title, is the notion that computer code (or “West Coast Code”, referring to Silicon Valley) may regulate conduct in much the same way that legal code (or “East Coast Code”, referring to Washington, D.C.) does. More generally, Lessig argues that there are actually four major regulators — Law, Norms, Market, Architecture — each of which has a profound impact on society and whose implications must be considered.
In a sense, then, the pincer movement is utterly complete. Whilst a parliament of lawyers is taken over by a posse of businesspeople, exerting undue influence over our democracy, from the other side – the side of coders and software architects everywhere (and by everywhere I mean Google, Apple, Amazon, Microsoft, Facebook and Twitter; as well as, even, I have to say, open source projects such as Mozilla, LibreOffice and WordPress itself) – our behaviours, our attitudes, what we can do or not do with our possessions, what we can say, how we say it, the kinds of things that strike at the very heart of our economies and define what we are as human beings … all the above is equally structured by people who run transnational behemoths for the benefit of certain ways of seeing or doing.
Now I’m not, for the moment, passing judgement on those mindsets in question. All I’m saying is that to date our society – our democracy – has been based on the rule of law as defined by lawyers. Our parliaments are stuffed full of ex- or practising lawyers; our politicos all speaking with the care and general prevision of those who might avoid a future trap cleverly set by an ever-watchful media class.
But if what Lessig has sustained for quite a while now is in any way true, the kind of profession which dominates our democracy is entirely the wrong one for our times. If more law is being made in the online constitutions we now all operate under for our communication, peer-to-peer exchanges, commerce and gaming than is being made in our parliaments, surely we need a parliament stuffed with those who understand the new tools.
Otherwise, we depend on the good faith of people working behind closed corporate doors to create online and connected offline worlds with a sensibility and sensitivity to the needs of a wider democracy.
The current situation is, in fact, as follows: it’s as if we had a civilisation where the more money and wealth you had, the more right you had to tell citizens what to do.
Which surely can’t be the case.
The solution then? As per the title of this post: we need a parliament not of lawyers – or not only of lawyers – but, rather, more importantly, of coders and software engineers. Only then will we be able to not just track the changes in technology that take place and their impact on our societies but also implement and engage from the very beginning a wider citizenship in democratic debate.
We need a new and parallel parliament – parallel, at least, to start out with – which writes the rules of how we should act and behave through software code itself. Much as books, as core repositories of information, have developed into films and latterday websites, so the legal code which once ruled our civilisations is giving way to billions of lines of software.
Any legal professional worth his or her virtual salt must understand the implications.
Any political professional who cares about democracy must accept that patching up 19th century code, as SOPA, PIPA and ACTA have tried to do, is simply going about the job to hand in a totally inappropriate way. We’ve been creating the software tools and their permissions and ways of seeing and doing before typing their rights and responsibilities in the legal parliamentary code of old. Inevitably, if we choose to act thus we are going to fail miserably.
We are buying the horse blindfold, without examining its mouth before it’s too late.
We need to start at the beginning of the process; not come in way beyond the end of its implementation.
What needs sorting – and opening up to public scrutiny – are the software constitutions themselves. It’s not open government we need any more but an engagement of end-users – let’s call them virtual voters – before software code is written and implemented; before it impacts on our societies.
It’s not open source code we need to promote (though that, of course, is virtuous) so much as open source process.
Not open government but the kind of open Internet we still have not seen.
A parliament of societally focussed coders, then – able to communicate and liaise with the above-mentioned virtual voters?