25th IVR World Congress LAW SCIENCE AND TECHNOLOGY Frankfurt am Main 15–20 August 2011 Paper Series No. 060 / 2012 Series B Human Rights, Democracy; Internet / intellectual property, Globalization Massimo Cuono Proxy of Democracy? Metaphors of Connection as Arguments against Representation URN: urn:nbn:de:hebis:30:3-249189 This paper series has been produced using texts submitted by authors until April 2012. No responsibility is assumed for the content of abstracts. Conference Organizers: Edited by: Professor Dr. Dr. h.c. Ulfrid Neumann, Goethe University Frankfurt am Main Goethe University, Frankfurt/Main Department of Law Professor Dr. Klaus Günther, Goethe Grüneburgplatz 1 University, Frankfurt/Main; Speaker of 60629 Frankfurt am Main the Cluster of Excellence “The Formation Tel.: [+49] (0)69 - 798 34341 of Normative Orders” Fax: [+49] (0)69 - 798 34523 Professor Dr. Lorenz Schulz M.A., Goethe University, Frankfurt/Main Massimo Cuono, Sassari / Italy Proxy of Democracy? Metaphors of Connection as Arguments against Representation Abstract: This paper aims to assess the arguments that claim representative democracy may be enhanced or replaced by an updated electronic version. Focusing on the dimension of elections and electioneering as the core mechanism of representative democracy I will discuss: (1) the proximity argument used to claim the necessity of filling the gap between decision-makers and stakeholders; (2) the transparency argument, which claims to remove obstacles to the publicity of power; (3) the bottom-up argument, which calls for a new form of legitimacy that goes beyond classical mediation of parties or unions; (4) the public sphere argument, referred to the problem of hierarchical relation between voters and their representatives; (5) the disintermediation argument, used to describe the (supposed) new form of democracy following the massive use of ICTs. The first way of conceptualizing e-democracy as different from mainstream 20th century representative democracy regimes is to imagine it as a new form direct democracy: this conception is often underlying contemporary studies of e-voting. To avoid some of the ingenuousness of this conception of e-democracy, we should take a step back and consider a broader range of issues than mere gerrymandering around the electoral moment. Therefore I shall problematize the abovementioned approach by analyzing a wider range of problems connected to election and electioneering in their relation with ICTs. Keywords: Democracy, the Internet, Net, Disintermediation, Election Tout annonce, tout prouve, un système d’insubordination raisonnée, et le mépris des lois de l’Etat. Tous auteur s’érige en législateur. Mémoire des princes de son sang, 12 décembre 1788 The internet is a magnet for many metaphors. It is cyberspace or the matrix, the “information superhighway” or infobahn or information hairball, a looking-glass its users step through to meet others, a cosmopolitan city with tony and shady neighbourhoods, a web that can withstand nuclear attack, electric Gaia or God, The World Wide Wait, connective tissue knitting us into a group mind, an organism or “vivisystem”, a petri dish for viruses, high seas for informationpirates, a battleground for a war between encrypters and decrypters, eye candy for discreet consumers of a tsunami of pornography, a haven for vilified minorities […] and on and on. Wesley Cooper 1 1 W. Cooper, Internet Culture, in: The Blackwell Guide to the Philosophy of Computing and Information, ed. L. Floridi, Blackwell, Maldem 2004, 92. 1 I. Political metaphors from mechanical to electronical democracy In 1861 the Scottish physicist James Clerk Maxwell published his electromagnetic field theory. Electronic physics took a first step beyond yet without refusing classical mechanics: an object in motion continued to stay in motion unless a force was applied against it but introducing electronics, science was about to change. According to several social scientists, the advent of information and communication technologies (ICTs) made a similar revolution occur in politics: the World Wide Web could be an instrument to overcome some political limits of classic theories of democracy, such as the crisis of the party system and of political communities, the lack of deliberation opportunities or it could help increasing transparency of decision-making. 20th century theories of representative democracy2 focused on the procedural elements characterizing this form of government: electoral procedures to selected representatives, strong and strictly regulated institutions and a formalized bureaucracy, checks and balances to guarantee separation of powers, party system mediation for aggregating consensus… In other words, representative democracy has been tackled as if it was “mechanical”, following the modern metaphor – from Descartes and Hobbes – which describes political organizations as big mechanisms, as for example a clock: As in a watch, or some such small engine, the matter, figure, and motion of the wheels, cannot well be known, except it be taken in sunder, and viewed in parts; so to make a more curious search into the rights of States, and duties of Subjects, it is necessary, (I say not to take them in sunder, but yet that) they be so considered, as if they were dissolved, (i.e.) that wee rightly understand what the quality of human nature is, in what matters it is, in what not fit to make up a civil government, and how men must be agreed among themselves, that intend to grow up into a well-grounded State.3 21st century theories focusing on e-democracy, as political practices enhancing or replacing representative democracy through the use of ICT, mostly represent it with the metaphor of the brain.4 The diffusion of the Internet created a decentred and distributed system different from “mechanical democracy”, possible only with all gears in place: “When it comes to brain functioning it seems that there is no centre or point of control. The brain seems to store and 2 H. Kelsen, On the essence and value of democracy (1929), in: Weimar. A Jurisprudence of Crisis, eds. A. Jacobson, B. Schlink, University of California Press, Berkley 2000; J. Schumpeter, Capitalism, Socialism and Democracy (1942), Routledge, London 2010; R.A. Dahl, A Preface to Democratic Theory, Chicago University Press, Chicago 1956; N. Bobbio, What Alternatives Are There to Representative Democracy?, in: Which Socialism? Marxism, Socialism and Democracy, Polity, Cambridge 1988; G. Sartori, The Theory of Democracy Revisited, Chatham House, Chatham (NJ) 1987. 3 Th. Hobbes, De Cive (1642), Clarendon, Oxford 1983, 32. 4 P. Flichy, The Internet Imaginaire (2001), MIT Press, Cambridge 2007. 2 process data in many parts simultaneously”.5 The brain is different from the clock because it is an adaptive form of organisation where “pattern and order emerge from the process; it is not imposed”.6 The brain image seems to recall the living organism metaphors, typical of ancient political thought: such metaphors hinged on the natural and not artificial dimension, based on the logical priority of the whole (i.e. society) over its parts (i.e. individuals). However, the lack of a “regulative centre” distinguishes the brain from classical “organic” conceptions of the political, characterized by the image of the head leading the body. The Internet is considered as an interconnected adaptive form of organization that will revolutionize traditional democratic forms of government. It is not a coincidence that the image of the net has become fashionable today among political scientists to describe politics. This might be considered as a transposition of the metaphor of the brain from the philosophical to the political realm. Starting from governance studies, François Ost and Michel van de Kerchove described today’s politics and law as they are moving “from pyramids to nets”.7 This new way of describing human coexistence associates ways of both protecting the citizenry and of limitating individual liberty: The net metaphor refers, on one hand, to a protective structure connecting people horizontally instead of linking them hierarchically; on the other hand, it refers to cobweb structure that leads to the limitation of autonomy and freedom. The most significant concrete case of net-structured politics is e- democracy, since it is based on “net of nets” structure of the Internet.8 This paper aims to list and briefly assess the arguments that claim mechanical- representative democracy may be enhanced or replaced by an updated electronic version. Focusing on different elements defining representative democracy I will assess the ability of the net metaphor to consistently describe the (supposed) new form of democracy. The image of the pyramid was a successfully employed to describe the crucial aspects of several forms of government, including democracy where elections were conceived as a bottom-up start input for the political decision-making process – contrarily to autocracy where power descends from above – or where the tip of the pyramid was represented by the supreme law (i.e. constitution) regulating democratic coexistence.9 My claim is that the shift from the pyramid 5 G. Morgan, Images of Organisation, Sage, Thousand Oaks 2006, 73. 6 Ibidem. 7 F. Ost, M. de Kerchove, De la pyramide au réseau?: pour une théorie dialectique du droit, Publications des Facultés universitaires Saint-Louis, Bruxelles 2002. 8 Ivi, 116. 9 H. Kelsen, General Theory of Law and State (1945), The Lawbook Exchange, Clark (NJ) 2007. 3 to the net-image implies a shift of outlook on politics: a step away from the rational regularity of the “sphere” as proposed by Abbé Sieyès during the French revolution: I like to conceive of the law as if it is at the centre of an immense globe. Every citizen, without exception, is at an equal distance from it on the circumference the globe, and each individual occupies an equal place. Everyone depends equally upon the law; everyone offers it his liberty and property to protect.10 The web metaphor calls to mind the “gothic images of political space”11 different from enlightenment political metaphors.