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

The Virtues of Being Explicit – A Reply to “Tacit Governance”

Essay by David Johnson, May 14, 2008 in response to Tacit Governance

David Weinberger’s essay suggests that we are better off, at least in the realm of “governance” of online activities, when we don’t (or don’t have to) write things down. His point makes sense with regard to certain types of online groups, engaged primarily in discussion rather than collaboration, formed via voluntary participation by those who already share (or can easily adopt) common values, making collective decisions primarily about their own internal affairs. But it doesn’t provide much guidance regarding how to deal with conflicts among online groups that have different values and goals and that interact with and affect each other, or with groups that want to take effective action together in both the online setting and the real world. In those more complex settings, explicit governance is often not a “scar”, as he would have it, but rather the embodiment of our highest ideals about how to live together in a diverse world.

One must begin by asking “governance of whom? By whom?” The core question is always legitimacy. The core setting is always one in which one person doesn’t want to behave in the way preferred by others. And, as Weinberger himself hints, gradual progress towards *self*-governance represents the history of political and social enlightenment. But the libertarian instinct to avoid all rules founders on the fact that we engage in socially relevant acts in groups. The very creation of a strongly mutually-imagined group necessarily creates a set of goals and values (the goals and values of the group itself) that differ to some degree from those of every individual participant. We compromise in order to collaborate. Indeed, we can hardly be said to have goals and values of our own independent of those we adopt (or live with) in the context of relationships with others, in social groups. The problem of “tacit governance” thus involves the question when and how the values and goals of the group itself should be articulated. In many contexts, there is great value in being explicit.

Clear articulation of some particular set of values may be the only way to trigger our collective imagination, to galvanize productive cooperation towards a shared goal. It was not a sign of failure of some norm-based regime of “gentle negotiation” when the authors of the Declaration of the Rights of Man and Citizen tried to write down clearly what they hoped would become true about the relationship among citizen and state. Words have power. Clarity usefully constrains. It is only by being explicit about what the social group aspires to that we empower ourselves to play the roles necessary to make it so. As in physics, social “work” only occurs when force is applied in a particular direction, subject to constraint.

If the online world consisted mainly of groups engaged in discussion, minding their own business, Weinberger would have a persuasive point. But the Internet is far more powerful than that. It allows people who hate each other, or who want to impose various forms of harm on each other, to interact. To govern such destructive interactions, we need some combination of decentralized filtering (based on reliable forms of pseudonymous identification). We need to enable groups to avoid receiving packets from those who have a bad reputation or who have not been properly introduced — a net in which every actor is accountable in this sense to all others. There is no such thing as a tacit filter – your packets are either on the list to get through (or be blocked) or they are not. There is no virtue in vagueness when the goal is to empower online groups, acting together to serve their own goals and values, to decide who should be able to join and who should be excluded.

Moreover, we need to be explicit about the principles under which any given group (including local sovereigns) should proceed when deciding whether to defer to the internal decision-making (governance, if you will) of other groups. Should the practices and customs of a virtual world be treated with respect or second-guessed based on laws made by non-participants? Even if the customs of the online group are tacit, the principles that should be used to decide whether to defer to that form of self-governance must be made explicit if we are to develop a globally valid way of enabling diverse social organizations to operate. (I would suggest the principle of “congruence” – insisting on a substantial overlap between the group whose welfare is considered when establishing a rule or custom and the potentially distinct group whose welfare is affected by the resulting practices and rules.) We have to explicitly articulate such a principle in order to abide by it.

There is a key difference between online conversation and the use of online groups to coordinate group action. Maybe we don’t need many rules about who can say what next, especially if everyone is free to tune out. But we sometimes form online groups in order to accomplish real world goals that range from changing laws to making money. These groups are powerful in part because individual participants can play complementary roles. They are most effective when people can promise to play a particular role and be held accountable by the group for having done so. A social role involves a promise made with reference to an explicit set of group goals. We are best at making promises, and sticking to them, when they are explicit. The difference between a promise and a general expectation, perhaps differently interpreted, is the difference between success and failure in many social contexts. I’m sure Weinberger doesn’t favor tacit marriage, tacit employment, or tacit fiduciary duty on the part of his financial institution. When what we do in social groups matters enough, the costs of being explicit about our promises to one another are very low compared to the value created by the resulting increase in trust.

Groups work most effectively together when every member of the group can see themselves in relation to the others, when the group can see itself. We are just beginning to develop effective ways to use graphics to create such a social mirror. But we know that the most powerful approaches will involve the tendency of graphics to disambiguate. We will be able to indicate that “my argument responds specifically to *this* point because I have placed it *there* on the screen”. Or we will become more motivated to contribute to a group project as we see precisely how many other people are pulling their weight or how close we are to achieving our (explicitly stated) group goals.

Governance of various types has been “co-extensive with the rise of civilization” precisely because it is what allows us to work together in groups, to accomplish goals none of us could aspire to accomplish on our own, to make investments of time and attention and money that would be hopelessly risky unless some explicit and reliable forms of control of others reduced the risk of defection. We must articulate our highest aspirations in order to achieve them. The default condition of society is not a cozy (tacitly norm based) community. It is instead a world of less-connected (more socially isolated) individuals, a world with fewer effective social organisms, a world with less diversity and individually empowering choice about where to invest our scarce attention and effort. The explicit articulation of group goals, of participant promises to one another, and of principles on the basis of which diverse groups can coexist, are all necessary to create an increasingly complex and interesting world.

David Johnson is currently serving as Visiting Professor at New York Law School. He also devotes substantial time to the development of new types of “graphical groupware” software products. His previous legal practice focused primarily on the emerging area of electronic commerce, including counseling on issues relating to privacy, domain names and Internet governance issues, jurisdiction, copyright, taxation, electronic contracting, encryption, defamation, privacy, ISP and OSP liability, and intellectual property. He helped to write the Electronic Communications Privacy Act,
was involved in discussions leading to the Framework for Global Electronic Commerce , and has been active in the introduction of personal computers in law practice. Examples of some of his recent work can be seen here.