Essays & conversations about constitutional moments on the Net collected by the Berkman Center.

Tacit Governance

Essay by David Weinberger, May 12, 2008

Since governance is, like speaking, co-extensive with the rise of civilization, it’s curious that it has such a bad name. Or perhaps it’s not so curious. Governance, as an explicit social structure, codified and implemented, arises when tacit governance fails. At its best, explicit governance is a response to a breakdown. It rarely restores a society to its prior, unbroken state.

Governance is made explicit as a scar. Scars are useful. They can even be honorable. But they generally mark wounds. The lack of explicit constitutions and explicit rules often is a sign of health.

The vastest stretches of the Internet’s surface are as yet unblemished by explicit governance. Tacit governance, however, is the surface of the Net. The Net is most of all a new social space in which people gather in groupings familiar and odd. All human intercourse has some form of governance, for otherwise the participants have no way to talk. Conversing (in its broadest sense) requires not only a common language, but also some set of core expectations about the boundaries of the conversation. Those expectations steer the conversation; “governance” comes from the Greek for steering.

The expectations that steer human intercourse are rarely laid out, in the real world or on line. Since our interactions always occur within some context, we assume the norms of that context: In Boston, we’d be fine with our cab driver spontaneously expressing support for the Red Sox, but we would be surprised if the cab driver pulled over, unasked, to show us how well she plays the tuba, no matter how well she plays it. There is no explicit rule about this because there doesn’t need to be. If, however, cab drivers start regularly giving curbside tuba performances, a “You are entitled to a tuba-free cab” rule will be posted. Rules can also be useful guides to norms when we can anticipate cultural strangers may be coming along for the ride.

The fuzziness of norms is their strength. We need the looseness of norms to enable us to be with one another in surprising ways. The narrower, more explicit, and less ambiguous the norms, often the deader the social interaction: “Come now, Marjorie, you know that we raise our hands before speaking.” Norms are not rules that have yet to mature. Rules are norms that have failed.

Governance and rules often arise when norms not only fail to cover important cases that have arisen, but when – as is typical – they don’t provide ways to resolve conflicts about themselves. For example, informal discussions, on and off the Net, sometimes find themselves talking about the discussion itself. Person One says: “Can we please stay on the topic?” Person Two says: “I didn’t realize we had an agenda.” In the real world, Person Two may just peel off and talk to Person Three a few feet away. On line, where the discussion itself may have some ontological claim – it’s got a name, a place, a history, maybe a membership – People One, Two, Three, all the way to Person n, may try to work out the norm for the sake of the discussion. Perhaps a rule will emerge — “Kindly keep your comments on topic” – and perhaps the group will fork or die. Once enough rules have been hammered out, a FAQ may emerge, or an introductory message permanently pinned to the top of the discussion board. Some rules may call a ruling class into existence: “Maria is the Flame Mistress. Use harsh words and you will answer to Maria.” The rules may get codified not only in the sense that they’re written down but that they develop their own cryptic expression – for example, Godwin’s Law, or the outburst “WP: BITE” at Wikipedia that reminds experienced Wikipedia’s not to bite the newbie’s—a shibboleth by which the old hands recognize one another. Knowledge of the rules can itself become part of the fabric of the group.

This is one reason why so few groups on or off the Net begin with an explicit constitution. The task of creating explicit agreement is so onerous and so fraught with unexpressed expectations that groups usually need the cohesion – the implicit connections – provided by living together via norms to survive the constitutional moment.

Explicit governance that arises in response to a failure of norms is inevitable and organic, although at times it can be disruptive and acutely painful. Governance that is imposed from without is almost always mainly harmful. It thinks clarity and precision are virtues,
when in fact they drive out the gentle negotiation by which problems are solved and, more important, by which groups become more than merely well-regulated collections of individuals. This is true online and off.

But there is something special about tacit governance online: It is mediated by software, and software comes with some abilities and not others. Code is constitution. Of course that’s true of real world media as well, but the media that we’re used to in the real world have been so limited that their implicit governance has felt more like limitations than possibilities. How can you talk about the affordances of a telephone system for social interaction without beginning with its overwhelming limitation: You can only talk, it’s really designed for talking to just one person at a time, you generally reach someone by interrupting her. Eventually you may get around to considering sending faxes and navigating phone trees by pressing numbered buttons, but the essence of the telephone is expressed by its overweening lack of ambition. Net applications, on the other hand, tend to be rich in possibilities. And even when they are not, we inhabit them with our own inventions. For example, if you were to write a user manual for Flickr, it’d have more sections than any normal person would want to read. And, even so, that’s not enough for us. Flickr lets us annotate photos by drawing boxes on them with notes attached. If you come upon a photo with concentric boxes drawn on it, there’s a very good chance you’ve come upon people who are arguing about some feature of the photo, using Flickr’s affordances in a way Flickr never anticipated. Flickr’s affordances are a type of tacit governance. So are the nested boxes effortlessly invented by its users. But it will not seem like governance until someone nests boxes in an “inappropriate” way, and someone else draws a box around them all and says, “Dude, stop inserting your spammy boxes in the middle of our conversation.” The moment at which Flickr has to post rules for using nested boxes is the day that the nested box norm has failed.

Every new rule is a scab covering tender flesh. Or so we should hope.

When governing bodies look at the Internet, they see its unruliness. But most of the swirl of the Net is in fact governed by rules so deeply implicit that even to surface them would disrupt the creative social work underway. The overwhelming preponderance on the Net of tacit governance over explicit is a sign of the Net’s depth, importance, humanity, health and success.

David Weinberger is the author of Joho the Blog and a Fellow at the Berkman Center for Internet and Society at Harvard Law School.

Comments (4)

    • Crosbie Fitch wrote:

      Bob Way, well done for calling this bunch of conservative Harvardians on their unwitting hypocrisy.

      It is time to reclaim all published works as first class members of the public domain. Time to cut the illegitimate strings attached to them for their publishers’ benefit.

      The Internet reveals copyright for the 300 year old anachronism that it truly is, and at the same time usurps it as a far better means of publishing an author’s work, and, I argue, a better means of enabling their audience to reward them for it.

      Contrary to popular belief, the US constitution does not sanction copyright, for its suspension of the public’s cultural liberty is not necessary to secure to authors and inventors the exclusive right to their writings and discoveries.

      See Constitutional Sanction.

    • Profoky Neva wrote:

      Computer code is not constitution. Code is merely bureaucratic, narrow and blind regulation — yes/no, black/white. No need to prettify it merely because it appears in cutting-edge technology in cyberspace.

      Constitution at least in the Western liberal context implies consent of the governed and framers who shape law and a Supreme Court that interprets law in a living and organic way. Code is not law; it is wielded arbitrarily by coders who themselves do not submit to the rule of law. Code is essentially a fence — or actually in many cases, a gun.

    • “We want to shine light on the nuances at the margins of decision-making online.”
      John Palfrey
      http://publius.cc/preface/

      While we are pointing out watershed moments in history, please mark May 12, 2008 down as the day “the public domain” was ceded without a fight.

      On that day, the most revered intellects in the country came together to “foster an on-going public dialogue,” which documents for “the public in meaningful and relevant ways” the “constitution-making moments” and to “create a durable record of how the rules of cyberspace are being formed”–and copyrighted it.

      I find David Weinberger puts it best when he says, “The lack of explicit constitutions and explicit rules often is a sign of health.” Yet without any suggestion of deliberate irony, his exposition on “Tacit Governance” is undermined by emblazoning it with an explicit governance document more than twice its length. “Every new rule is a scab covering tender flesh.” Unfortunately, this one is a self-inflicted wound.

      When Hamilton, Madison, and Jay signed their essays “Publius” they clearly understood them not as individual works of authorship, but as contribution to the public discourse. I doubt they would have had the same effect on the public consciousness had they been followed with, BY EXERCISING ANY RIGHTS TO THE WORK PROVIDED HERE, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE…

      By saying that even our communal discussion and historical record cannot be considered (nor assigned to) the “public domain”, this body has made a “tacit” statement that this copyright concept no longer has any validity.

      If a forum with Publius.cc’s stated goals cannot exist in the public domain it should be noted. Then perhaps we can get on to documenting the demise of sections 107, 108, and 109 as well.

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