(Preliminary) Response to Lessig

A number of political theorists have concluded that the new set of technologies and practices known as the internet undermines some of the core epistemic, civic, and moral conditions for democratic culture.  See, for instance, my post on Cass Sunstein’s Republic.com 2.o.  I disagree with Sunstein et. al. but I find their arguments worth addressing.

One way of addressing these arguments is to take them seriously but to offer some kind of response, perhaps provisional, as to how the challenges contained therein might be met.  This is how I have been reading the work of cultural critic and Stanford Law Professor Lawrence Lessig (at least this is how I have been reading it this week).  Lessig’s work is probably the most important of that which tries to respond to the problems laid out by Sunstein and others.  It is the most important not only because the most influential, but also because the most radical. Lessig’s work is also usefully representative insofar as it aims to respond to the problems posed by seeking to restore the familiar equilibria of liberal democracy as we have known it for quite some time now.

In his brilliant (noting that it was published in 2001) book The Future of Ideas, Lessig argues that we need to start thinking about how to strike a “balance” between control and freedom, public and private, in internetworked contexts. There is much in this thesis that is attractive. Unfortunately, however, it rests on a central distinction in traditional liberal democracy which is no longer afforded us in our transformed political conditions today. These transformed conditions are, in part, wrought by internetworking itself. This is, however, part of Lessig’s point, and that is why his work is so important in the field just now. Lessig recognizes that the internet is profoundly changing the substance and structure of governance today. That is part of his point when he says in his book Code that “code is law” (2006/1999, 5). This claim is more cryptic than Lessig tends to let on but it can be provisionally summarized as suggesting that code effects limiting conditions on what we can do. In this respect, Lessig points out, code is no different from just about anything else with material effect: the shape of a spatula imposes material constraints on what we can do with it (2006/1999, 340-5). One consequence Lessig draws from his “code is law” thesis is a deep “pessimism” about governance in internetworked conditions insofar as we seem to have little idea of how to enact the new and much-needed forms of governance (2006, 8).

Despite this brightly advertised pessimism, Lessig does have in mind an ideal which might guide our attempt to reconstruct the problematization in which we find ourselves.  It is, in short, that ideal of balance noted above.  Lessig’s envisioned solution in The Future of Ideas is a “balance between public and private” (2001, xix; cf. 72).  In Code he similarly writes that, “always the rights of the private must be balanced against the interests of the public” (2006/1999, 277).  Lessig’s (re)solution is a single balancing act.  This proposal is envisioned in terms of a singular legal regime that will singularly regulate all the other important factors (technological, social, economic) conditioning our lives.  Lessig develops an impressive four-part theory of regulation (which he dubs the “New Chicago School” after the original “Chicago School” vision of bipartite legal-economic regulation) but then he gives up his gains by insisting that the legal regulatory regime can somehow exert control over all the others (cf. 2006/1999, 340ff., 130).  Lessig’s proposal hinges upon the singularity of law as the final regulator in a sense in which law too is itself singular and not plural.

But this is precisely the sort of ideal that internetworking effectively routes around, which is to say that internetworking rends this ideal.  If one does not like the way that a given legal regime is regulating the code that one uses, then one can in most instances write and deploy different code—the dying days of legal attempts to arrest such processes can be witnessed today in all those wasteful trials over file-sharing and file-piracy that will soon be plainly seen as a waste of energy.  Lessig’s positive message about how we can save liberal democracy in the face of the transformations of internetworking is decidedly rooted in an outmoded political theory.  The old-fashioned liberal balance that Lessig advocates is nothing less than the purification of public and private spheres that is no longer tenable today for the reason that the internet (and other forces too) has gradually eroded it.

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