- Imagine that you’re contributing to creating laws
Imagine that expert citizens like you can contribute with their knowledge to suggesting the contents and opportunities for writing new laws or monitoring existing ones to check their effectiveness. It’s true, no-one can imagine a state governed through a continuous call on citizens -we’d end up collapsing. Just as no-one, on the other hand, can ignore the advantage of involving and encouraging their voluntary participation in legislative development. Today, imagining the use of artificial intelligence (as large companies do in other contexts) to suggest which law project to take part in based on our experience, tastes or interests is no longer a dream.
At the end of the 17th century, John Locke legitimised government based on two key ideas, (i) the agreement of those governed, and (ii) the creation of a majority. Something which, three centuries later, continues to work in the same way. Today, Parliament still represents us creating laws; as a result, democratic legitimacy should never be diminished by the addition of new players, expert citizens, to the legislative co-creation process. At most, the process would be enriched.
- What has changed today since Locke’s time? ‘Connection’ as the key element in the construction of a new paradigm and some of its effects.
A connection to unite things (the internet of things) and people (social media) through technologies (blockchains) and tools (big data and AI) unthinkable in the time of Locke or Montesquieu. As a result, the separation of power could easily be represented by a decentralised system of checks and balances using blockchain technology. The technological factor has, therefore, created a new architecture of reality that is necessarily changing our values, ideas and needs.
As a result, a new source of power, outside bureaucracy, has been created – an organised, intelligent and transparent mass that contrasts power without élite (Brexit) and differs from bureaucratic power. The élite has moved, deployed and decentralised. The élite has joined the mass. An élite, however, that doesn’t see itself as an élite because it isn’t based on traditional values like inheritance and co-opting – fundamental for the conservation of power – but is, instead, guided by other references, like merit and contribution (smart citizens). We’re thinking of a group of scientists who analyse the genome in different parts of the world, acting in an organised, intelligent and transparent way.
- What is Crowdlaw?
It’s an alternative to the traditional method of drafting laws, carried out by professionals and politicians (the bureaucratic élite) who work behind closed doors and represent popular will. It’s also a solution to the crisis of trust in politics. As the last Edelman report (edelman-trust-barometer-2018) highlighted, “Trust in Government remains very low at 36 per cent and the majority feel as though their views are not represented in politics today”. The citizen demands new methods of exploiting collective intelligence and the experience of people outside votes, including new ways of improving legislative processes. On the other hand, there are clear synergies between Crowdlaw intentions and the agenda established by the Open Government Partnership to promote parliamentary-legislative opening and try out innovative solutions to make the legislative process more open and collaborative.
- Examples of Crowdlaw
There are various interesting examples of the application of Crowdlaw: (i) Mi Senado Colombian citizens can react and vote in parliamentary plenary sessions in real time and receive push emails to inform them when the plenary sessions are convened so that they can take part; (ii) Parlement et Citoyens, a platform that allows the French public to make suggestions for legislation through an on-line consultation process; (iii) vTaiwan which is guiding Crowdlaw through a system where citizens use social networks to suggest and authorise the proposed policies, for example, the regulation of Uber.
- Legal Design as a Crowdlaw key
Designed in the right way, participation can improve the legitimacy and effectiveness of the legislative process. On the other hand, if participation processes are designed without taking account of the needs of citizens and parliamentary institutions, the result will be the generation of disinterest.
- The ‘points of contact’ change
Inviting participation when the law has already been written is not enough. Processes have to be activated to enable the citizen to contribute with their experience before the drafting of the law (ex-ante) and at its implementation stage (ex post), i.e. when its effective application starts. A proactive, iterative model has to be exploited as an alternative to a reactive, non-iterative system. Let’s look at some examples:
In Finland, the Citizen’s Initiative law enables individuals to suggest new laws, the European Union has adopted its citizens’ participation law, in Spain, Article 133 of Law 39/2015 sets out that before the preparation of a Bill or regulation, there must be a public consultation through the web portal of the relevant administration which asks for the opinion of the people and most representative organisations potentially interested by the future law on (I) the problems to be solved with the initiative, (II) the opportunities that would arise from its approval, (III) the aims of the law, and (IV) possible alternative solutions, both regulatory and non.
B) Ex post
An interesting example is the ‘Evidence and Fact Checks’ used by the United Kingdom Parliament, which invites evidence on proposed policies relating to questions ranging from driverless vehicles to smart cities through questions like, “Has the Government shown that the implementation method for the policy has been based on evidence on what works?”
C) ‘DÉBAT PUBLIC’ as a collective process in the application of the law
It’s important to stress how Tuscany Region has followed up Regional Law 69/2007, the first in Italy on participation, through Regional Law 46/2013 on ‘Public discussion and promotion of participation in the drafting of regional and local policies’, which has regulated public discussion, meaning the “process of information, public discussion and participation” compulsory, for example, for all public works with a value of more than Euro 50 million. Further, Article 22 of the Legislative Decree of 18 April 2016 (Public Contracts Code) states that, for large infrastructure works with relevant impact on the environment, cities and the structure of the area (…), use of the public discussion procedure is compulsory. On Friday 24 August 2018, Prime Ministerial Decree 76/2018, which sets out how monitoring the application of the public discussion should take place, came into force. The decree applies to works that require significant investment. For example, work that extends for more than 15 km and, in any case, has an investment value for all the contracts planned of Euro 500 million or more, net of VAT. These are laws that show that Italy is moving forwards in the implementation of the ‘débat public’.
- The law becomes a service
It’s not enough to state, “We’ve approved 100 laws,” because the fundamental question is “Do they work?” In other words, the law is not just a means but also an end. For example, if a law to reduce pollution is approved, there should be key indicators to measure whether the law has achieved its purpose or not.
- Agile + Crowdlaw
Before the appearance of ‘Agile’, when a company wanted to obtain new software it could take two years to develop a linear project. When the project finally saw daylight, it was usually found that the latest technical developments or the specifications that, at the time could be essential for the end user, hadn’t been included. So what happened at that point? ‘Patches’ could be added or the project could be started again from scratch. The same thing happens with the development of a law, which may have a long process that is not very effective. Therefore, new touchpoints able to collect citizens’ experience and feedback freely and voluntarily need to be established at every point of the process. In addition, transverse, multi-disciplinary teams able to unite expert civil society with the bureaucratic system are required.
- Crowdlaw a 360 gradi
Analysing Crowdlaw from the point of view of the state and civil society, the need to acknowledge that many other centres of power, i.e. companies, operate alongside the state can be understood. Crowdlaw will also create companies that are not only more democratic but also more effective, with a higher level of engagement and commitment by employees, with a positive impact on the image the company wants to convey outside. Company rules and policies can also be co-created. There’s a space in each company, sometimes quite large, for collective intelligence. The two great hierarchical power blocks (top down), large companies and the public administration can’t stand the pressure of the forces pushing from the base (bottom up) for long. Crowdlaw is a not only desirable and possible but also largely inexorable aim.