Friday, January 20, 2012

Open Source Legislation?

Gus diZerega argues that democracy is a spontaneous order. In the broadest sense of political action, it certainly is. In the sense of government as a set of organizations, it is not. Of course, the first requires the existence of institutions and organizations, so in a real sense, if democracy is the first, it is also necessarily the second as well. One can argue about whether or not protests are part of a democracy proper, but if they are not, then you probably believe government is necessarily an organization and cannot be a spontaneous order.

But what if citizens participated in the creation of legislation. Rarely does a government actually contribute to a spontaneous order developing into more of a spontaneous order as opposed to trying to develop it into an organization. Certainly things like SOPA, PIPA, the ongoing concentration of power in the hands of the Presidency, etc. are strong indications of a move away from spontaneous order and toward government becoming more of an organization. However, there is also the OPEN Act, which is an alternative to SOPA and PIPA, and may or may not be much better. Why, then, bring it up? Because of the way the legislation is being created: democratically. If you go to the OPEN website, you "can annotate the bill with comments and suggestions for its author, much like they would a Wikipedia document. There's a field where you can submit your e-mail address to receive updates about changes to the bill and its path through the maze that is our legislative process." Truly democratic bill creation? So it seems. Of course, the final arbiter of what does in fact go in is the sponsor, meaning the legislation is not truly a spontaneous order. But there is at least some possibility of ideas coming up the sponsor would not have otherwise come up with.

I am not going to argue that such a process will come up with better bills. Maybe it will, maybe it won't. Maybe it will be a mixed bag. But if all bills were created this way -- and were required to be created this way -- we would have a much more open process. We would see what is in the bills before they were voted on, we would see their creation, and we would have a hand in that creation. It is not quite common law, which does not require legislation, but it is no longer "experts" designing laws for the rest of us.
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