Good Onlife Governance: On Law, Spontaneous Orders, and Design
The information revolution is affecting our understanding about the world and about ourselves: we are interconnected informational organisms that share with biological organisms and engineered artefacts “a global environment ultimately made of information,” i.e., what Luciano Floridi calls “the infosphere” (Floridi 2013). A crucial feature of this new environment has to do with the complex ways in which multi agent (human/artificial) systems interact. This informational complexity challenges concepts and ways of reasoning through which, so far, we have grasped basic tenets of the law and politics. The starting point of the analysis concerns the use of information and communication technologies (ICTs): whereas, over the past centuries, human societies have been ICTs-related but mainly dependent on technologies that revolve around energy and basic resources, today's societies are increasingly dependent on ICTs and, moreover, on information as a vital resource. In a nutshell, we are dealing with ICTs-driven societies (Floridi Forthcoming).
What this huge transformation means, from a legal and political viewpoint, can be illustrated with the ubiquitous nature of the information on the internet. The flow of this information transcends conventional boundaries of national legal systems, as shown by cases that scholars address as a part of their everyday work in the fields of information technology (IT)-Law, i.e., data protection, computer crimes, digital copyright, e-commerce, and so forth. This flow of information jeopardizes traditional assumptions of legal and political thought, by increasing the complexity of human societies. ICTs-driven societies are in fact characterized by a collective behaviour, which emerges from large networks of individual components, without central control, or simple rules of operation. In addition, these systems present a sophisticated signalling and information processing, through which they adapt to the
Fig. 1 The legal complexity of ICTs-driven societies
environment and, what is more, spontaneous orders evolve through such informational complexity. Although, in his seminal book The Sciences of the Artificial (new ed. 1996), Herbert Simon used to warn that complexity is “too general a subject to have much content,” he pinpointed cases where this approach to the complexity of the subject matter can particularly be fruitful: “particularly classes of complex systems possessing strong properties that provide a fulcrum for theorizing and generalizing can serve as the foci of attention” (Simon 1996, p. 181).
Here, we can start appreciating how the complexity of ICTs-driven societies affects canonical tenets of legal and political thought, in four different ways. Figure 1 helps me illustrate this informational approach to the complexity of current legal systems.
First, the idea of the law as a set of rules enforced through the menace of physical sanctions ( e.g., Kelsen 1949) often falls short in coping with the new legal and political challenges of the information revolution: identity thefts, spamming, phishing, viruses, and cyber attacks have increased over the past decade, regardless of harsh national laws like the US anti-spam act from 2003. Furthermore, a number of issues, such as national security, cyber-terrorism, availability of resources and connectivity, are systemic, that is, they concern the whole infrastructure and environment of today's ICTs-driven societies and, thus, these issues have to be tackled at international and transnational levels. Unsurprisingly, national law-making activism is short of breath, and this is why constitutional powers of national governments have been joined—and even replaced—by the network of competences and institutions summarized by the idea of governance. Leaving aside how this profound transformation affects the sovereignty of national states, much as democratic processes and models of political legitimacy, attention should be drawn to how often the modern state's monopoly of power and legitimate violence is over in this context. National sovereign states, although still relevant, should be conceived as one of the agents in “the formation and stewardship of the formal and informal rules that regulate the public realm,” that is, how Hyden, Court and Mease define the notion of governance (in Grindle 2005, p. 14).
Second, the scenario of ICTs-driven societies appears increasingly complex since the quantity of information grows and its theoretical compression decreases (Chaitin 2005). To be fair, this trend is not new: some have summed it up with the very process through which pre-modern communities converted into industrial and ICTs-related societies, up to current post-industrial, or ICTs-driven, societies (di Robilant 1973). Others have traced this complexity back to the emergence of
spontaneous orders with multiple political and legal sources: for instance, in Chapter 2 of the first volume of Law, Legislation, and Liberty (1973), Hayek affirms that “one of our main contentions will be that very complex orders, comprising more particular facts than any brain could ascertain or manipulate, can be brought about only through forces inducing the formation of spontaneous orders” (Hayek 1982, p. 38). Whilst this latter analysis dwelt on the forces of local customs, international uses, and transnational markets, what is original today concerns the evolutionary processes of spontaneous orders that are ICTs-dependent, ubiquitous and, well, “complex.” Contemplate the political, legal and economical relevance of what scholars present as network effect (Pagallo 2006; Pagallo and Ruffo 2007; Ormerod 2012). On this basis, legislators, policy makers and, generally speaking, governance actors shall preventively understand the nature of the field in which they aim to intervene or, maybe, to interfere: in a word, today's kosmos and the evolution of spontaneous orders “onlife” as opposed to the taxis of governance and the constructivism of political planning.
Third, the information politics of ICTs-driven societies is far more complex than ICTs-related ones because governance actors should not only be grasped as determining the rules of the game through laws, statutes, agreements, and so forth. In addition to the traditional hard and soft law-tools of governance, such as national rules, international treaties, codes of conduct, guidelines, or the standardization of best practices, the new scenarios of the information revolution have increasingly suggested the aim to govern current ICTs-driven societies through the mechanisms of design, codes and architectures. Admittedly, some of these technological measures are not necessarily digital and yet, current advancements of technology have obliged legislators and policy makers to forge more sophisticated ways to think about legal enforcement. All in all, most of today's legal and political challenges of the information revolution have to do with the twofold features of “generative technologies” (Zittrain 2008), such as, say, the personal computers and the ways PCs ubiquitously transmit information on the internet. Although this technology allows innovation, experimentation and the wide-open Web of creative anarchy, PCs permit the spread of spam, viruses and copyright infringements, that call into question the aforementioned notion of the law as (i) made of commands; (ii) enforced through physical sanctions; (iii) within the territory of a sovereign state. Some countries, like China, have built up systems of filters and re-routers, detours and dead-ends, to keep internet users on the state-approved online path. Other states, such as France or South Korea, have endorsed the so-called “three strikes”-doctrine, as a part of the graduated system which ends up with the user internet disconnection after three warnings of allegedly copyright infringements. At the end of the day, we should evaluate governance actors as game designers that deal with the twofold features of generative ICTs, in accordance with the different aims design may have, namely the aim to change people's behaviour, the aim to decrease the impact of harm-generating conducts; or, even, to prevent such harm-generating conducts from occurring.
Finally, the increasing complexity of today's ICT-driven societies affects the meaning of traditional legal concepts, such as reasonable foreseeability, liability, responsibility, and “legal causation.” Consider the use of unmanned aerial systems (UAS), and the current debate on whether and how we should change the EU Regulation 216/2008 and even the 1948 Chicago Convention on International Civil Aviation, so as to allow the (semi-) autonomous flight of the drones. Here, we have to pay attention to the responsibility of UAS operators, manufacturers, maintenance and safety contractors, air traffic controllers or contracting parties, that interact with autonomous or semi-autonomous machines, to avoid ground damage, air-to-air collisions, communication interferences, piracy, environmental concerns, illegal searches in constitutional law, down to violation of the landowner's right and claims of nuisance and trespass in tort law. The increasing capability of machines to be “independent of real time UAS-pilot control input,” according to the UK Defence Standards definition of autonomous flight (2011), impacts on the traditional ability of philosophers (and lawyers) to sever the chain of responsibility via notions of causation and “fault.” In his 1996 paper Liability for Distributed Artificial Intelligence, Curtis Karnow (Karnow 1996) proposed the example of “a hypothetical intelligent programming environment which handles air traffic control” such as “Alef.” The advancement of AI technology and, generally speaking, of autonomous artificial agents would ultimately break down “classic cause and effect analysis.” Additionally, it seems problematic to determine the types of harm that may supervene with the functioning of an entire processing system such as Alef's. In the phrasing of Karnow:
No judge can isolate the 'legal' causes of injury from the pervasive electronic hum in which they operate, nor separate causes from the digital universe which gives them their mutable shape and shifting sense. The result is a snarled tangle of cause and effect as impossible to sequester as the winds of the air, or the currents of the ocean ( op. cit.).
The different ways in which this flow of information jeopardizes basic assumptions of the law and politics is stressed throughout this volume. Luciano Floridi calls for “a new philosophy of politics among us” Yiannis Laouris draws the attention to how “future societies will have to design and implement technologies and policies to safeguard the true individual human rights and freedom” Sarah Oates dwells on the nature of the public agora that “should be conceptualized and protected in a way that tips the balance away from the elites and toward the citizens” May Thorseth insists on the possibility of public use of reason in the realm of digital transition, since “a virtual reality may very well be communicative in a Habermasian sense” Charles Ess and Mireille Hildebrandt cast light on modern Western conceptions of liberal democracies and power relations in non-state societies, so as to “illuminate questions of trust and virtual experiences as critical components of 'onlife' in new ways”. Whilst these issues are intertwined with the impact of digitalization “on our processes of knowing,” Judith Simon presents such issues as “the epistemic responsibilities in entangled digital environments.”
In this chapter the aim is to reassess these ideas in connection with the concept of “governance” and, in particular, of “good enough governance” as developed by the United Nations over the past decades, that is, from Kofi Anan's inauguration speech as UN Secretary-General in July 1997, to work by Merilee Grindle (2002, 2005, and 2010; however, I will refer only to Grindle 2005). Consequently, this chapter is presented in four sections: as in Plato's early dialogues, it seems fruitful to start with
some definitions in Sect. 2, namely the different ways in which scholars refer to the idea of “governance.” Then, attention is drawn to three different levels of analysis that concern the notion of “good onlife governance,” that is, the ethical, legal and technological challenges of the information revolution, as examined in Sect. 3. Next, the focus is on the kosmos-side of the “onlife experience” via the network approach illustrated in Sect. 4: the aim is to emphasize how the topological properties of today's ICTs-driven societies and their kosmos affect the political planning of lawmakers and, hence, any good onlife governance. Finally, these ideas are deepened with the distinction between game players and game designers in Sect. 5. In addition to the traditional hard and soft law-tools of governance, the governance of complex multi-agent systems that interact “onlife,” does increasingly hinge on the technicalities of design mechanisms.