Type: blog post

By Beth Simone Noveck and Gabriella Capone

The Living Library’s Selected Readings series seeks to build a knowledge base on innovative approaches for improving the effectiveness and legitimacy of governance. This curated and annotated collection of recommended works on the topic of CrowdLaw was published in 2018, and most recently updated on February 13, 2019.

Introduction

The public is beginning to demand — and governments are beginning to provide — new opportunities for the engagement of citizens on an ongoing basis as collaborators in public problem-solving rather than merely as voters. Nowhere is the explosion in citizen participation accelerating more than in the context of lawmaking, where legislators and regulators are turning to new technology to solicit both public opinion and know-how to improve the legitimacy and effectiveness of the legislative process.

Such participatory lawmaking, known as crowdlaw (also, CrowdLaw), is a tech-enabled approach for the collaborative drafting of legislation, policies or constitutions between governments and citizens. CrowdLaw is an alternative to the traditional method of lawmaking, which is typically done by the political elite — politicians, bureaucrats, and staff — working in legislatures behind closed doors, with little input from the people affected. Instead, this new form of inclusive lawmaking opens the legislative function of government to a broader array of actors.

From Brazil to Iceland to Libya, there is an explosion in new collaborative lawmaking experiments. Despite the growing movement, the field of participatory lawmaking requires further research and experimentation. Given the traditionally deep distrust of groups expressed in the social psychology literature on groupthink, which condemns the presumed tendency of groups to drift to extreme positions, it is not self-evident that crowdlaw practices are better and should be institutionalized. Also, depending on its design, crowdlaw has the potential to accomplish different normative goals, which are often viewed as being at odds, including: improving democratic legitimacy by giving more people a voice in the process, or creating better quality legislation by introducing greater expertise. There is a need to study crowdlaw practices and assess their impact.

To complement our evolving theoretical and empirical research on and case studies of crowdlaw, we have compiled these selected readings on public engagement in lawmaking and policymaking. For reasons of space, we do not include readings on citizen engagement or crowdsourcing and open innovation generally (see GovLab’s Selected Readings on Crowdsourcing Opinions and Ideas) but focus, instead, on engagement in these specific institutional contexts.

We invite you to visit Crowd.Law for additional resources, as well as:

CrowdLaw Design Recommendations

CrowdLaw Twitter List

CrowLaw Unconferences:

• Session 1: What We Know & Still Most Need to Know About CrowdLaw
• Session 2: Need for Experimentation & Collaboration
• Session 3: On the Verge of Disruptive Change….Designing to Scale Impact

Annotated Readings

Aitamurto, Tanja – Collective Intelligence in Law Reforms: When the Logic of the Crowds and the Logic of Policymaking Collide (Paper, 10 pages, 2016)

• This paper explores the risks of crowdsourcing for policymaking and the challenges that arise as a result of a severe conflict between the logics of the crowds and the logics of policymaking. Furthermore, he highlights the differences between traditional policymaking, which is done by a small group of experts, and crowdsourced policymaking, which utilizes a large, anonymous crowd with mixed levels of expertise.
• “By drawing on data from a crowdsourced law-making process in Finland, the paper shows how the logics of the crowds and policymaking collide in practice,” and thus how this conflict prevents governments from gathering valuable insights from the crowd’s input. Poblet then addresses how to resolve this conflict and further overcome these challenges.

Atlee, Tom – vTaiwan (Blog series, 5 parts, 2018)

• In this five-part blog series, Atlee describes in detail Taiwan’s citizen engagement platform vTaiwan and his takeaways after several months of research.
• In order to cover what he deems “an inspiring beginning of a potentially profound evolutionary shift in all aspects of our collective governance,” Atlee divides his findings into the following sections:
  • The first post includes a quick introduction and overview of the platform.
  • The second delves deeper into its origins, process, and mechanics.
  • The third describes two real actions completed by vTaiwan and its associated g0v community.
  • The fourth provides a long list of useful sources discovered by Atlee.
  • The fifth and final post offers a high-level examination of vTaiwan and makes comments to provide lessons for other governments.

Capone, Gabriella and Beth Simone Noveck – “CrowdLaw”: Online Public Participation in Lawmaking, (Report, 71 pages, 2017)

• Capone and Noveck provide recommendations for the thoughtful design of crowdlaw initiatives, a model legislative framework for institutionalizing legislative participation, and a summary of 25 citizen engagement case studies from around the world — all in an effort to acknowledge and promote best crowdlaw practices. The report, written to inform the public engagement strategy of the Autonomous Community of Madrid, can apply to crowdlaw initiatives across different contexts and jurisdictions.
• CrowdLaw advocates for engagement opportunities that go beyond citizens suggesting ideas, and inviting integration of participation throughout the legislative life-cycle — from agenda-setting to evaluation of implemented legislation. Additionally, Capone and Noveck highlight the importance of engaging with the recipient public institutions to ensure that participatory actions are useful and desired. Finally, they lay out a research and experimentation agenda for crowdlaw, noting that the increased data capture and sharing, as well as the creation of empirical standards for evaluating initiatives, are integral to the progress and promise of crowdlaw.
• The 25 case studies are organized by a six-part taxonomy of: (1) the participatory task requested, (2) the methods employed by the process, (3) the stages of the legislative process, (4) the platforms used, from mobile to in-person meetings, (5) the institutionalization or degree of legal formalization of the initiative, and (6) the mechanisms and metrics for ongoing evaluation of the initiative

Faria, Cristiano Ferri Soares de – The open parliament in the age of the internet: can the people now collaborate with legislatures in lawmaking? (Book, 352 pages, 2013)

• Faria explores the concept of participatory parliaments, and how participatory and deliberative democracy can complement existing systems of representative democracy. Currently the first and only full-length book surveying citizen engagement in lawmaking.
• As the World Bank’s Tiago Peixoto writes: “This is a text that brings the reader into contact with the main theories and arguments relating to issues of transparency, participation, actors’ strategies, and processes of institutional and technological innovation. […] Cristiano Faria captures the state of the art in electronic democracy experiences in the legislative at the beginning of the 21st century.”
• Chapters 4 and 5, deep dive into two case studies: the Chilean Senate’s Virtual Senator project, and the Brazilian House of Representatives e-Democracy project.

Johns, Melissa, and Valentina Saltane (World Bank Global Indicators Group) – Citizen Engagement in Rulemaking: Evidence on Regulatory Practices in 185 Countries (Report, 45 pages, 2016)

• This report “presents a new database of indicators measuring the extent to which rulemaking processes are transparent and participatory across 185 countries. […] [It] presents a nses ew global data set on citizen engagement in rulemaking and provides detailed descriptive statistics for the indicators. The paper then provides preliminary analysis on how the level of citizen engagement correlates with other social and economic outcomes. To support this analysis, we developed a composite citizen engagement in rulemaking score around the publication of proposed regulations, consultation on their content and the use of regulatory impact assessments.”
• The authors outline the global landscape of regulatory processes and the extent to which citizens are kept privy to regulatory happenings and/or able to participate in them.
• Findings include that: “30 of the sampled economies regulators voluntarily publish proposed regulations despite having no formal requirement to do so” and that, “In 98 of the 185 countries surveyed for this paper, ministries and regulatory agencies do not conduct impact assessments of proposed regulations.” Also: “High-income countries tend to perform well on the citizen engagement in rulemaking score.”

Noveck, Beth Simone – The Electronic Revolution in Rulemaking (Journal article, 90 pages, 2004)

• Noveck addresses the need for the design of effective practices, beyond the legal procedure that enables participation, in order to fully institutionalize the right to participate in e-rulemaking processes. At the time of writing, e-rulemaking practices failed to “do democracy,” which requires building a community of practice and taking advantage of enabling technology. The work, which focuses on public participation in informal rulemaking processes, explores “how the use of technology in rulemaking can promote more collaborative, less hierarchical, and more sustained forms of participation — in effect, myriad policy juries — where groups deliberate together.”
• Noveck looks to reorient on the improvement of participatory practices that exploit new technologies: a design-centered approach as opposed a critique the shortcomings of participation. Technology can be a critical tool in promoting meaningful, deliberative engagement among citizens and government. With this, participation is to be not a procedural right, but a set of technologically-enabled practices enabled by government.

Peña-López, Ismael – decidim.barcelona, Spain. Voice or chatter? Case studies (Report, 54 pages, 2017)

• Peña-López analyzes the origins and impact of the opensource decidim.barcelona platform, a component of the city’s broader movement towards participatory democracy. The case is divided into “the institutionalization of the ethos of the 15M Spanish Indignados movement, the context building up to the decidim.barcelona initiative,” and then reviews “its design and philosophy […] in greater detail. […] In the final section, the results of the project are analyzed and the shifts of the initiative in meaning, norms and power, both from the government and the citizen end are discussed.”
• A main finding includes that “decidim.barcelona has increased the amount of information in the hands of the citizens, and gathered more citizens around key issues. There has been an increase in participation, with many citizen created proposals being widely supported, legitimated and accepted to be part of the municipality strategic plan. As pluralism has been enhanced without damaging the existing social capital, we can only think that the increase of participation has led to an improvement of democratic processes, especially in bolstering legitimacy around decision making.”

Simon, Julie, Theo Bass, Victoria Boelman, and Geoff Mulgan (Nesta) – Digital Democracy: The Tools Transforming Political Engagement (Report, 100 pages, 2017)

• Reviews the origins, implementation, and outcomes of 13 case studies representing the best in digital democracy practices that are consistently reviewed. The report then provides six key themes that underpin a “good digital democracy process.” Particularly instructive are the interviews with actors in each of the different projects, and their accounts of what contributed to their project’s successes or failures. The Nesta team also provides insightful analysis as to what contributed to the relative success or failure of the initiatives.

Suteu, Silvia – Constitutional Conventions in the Digital Era: Lessons from Iceland and Ireland (Journal article, 26 pages, 2015)

• This piece from the Boston College International & Comparative Law Review “assesses whether the novelty in the means used in modern constitution-making translates further into novelty at a more substantive level, namely, in the quality of the constitution-making process and legitimacy of the end product. Additionally, this Essay analyzes standards of direct democratic engagements, which adequately fit these new developments, with a focus on the cases of Iceland and Ireland.”
• It provides four motivations for focusing on constitution-making processes:
  • legitimacy: a good process can create a model for future political interactions,
  • the correlation between participatory constitution-making and the increased availability of popular involvement mechanisms,
  • the breadth of participation is a key factor to ensuring constitutional survival, and
  • democratic renewal.
• Suteu traces the Icelandic and Irish processes of crowdsourcing their constitutions, the former being known as the first crowdsourced constitution, and the latter being known for its civil society-led We the Citizens initiative which spurred a constitutional convention and the adoption of a citizen assembly in the process.

Bernal, Carlos – How Constitutional Crowd-drafting can enhance Legitimacy in Constitution-Making(Paper, 27 pages, 2018)

• Bernal examines the use of online engagement for facilitating citizen participation in constitutional drafting, a process he dubs “Crowddrafting.” Highlighting examples from places such as Kenya, Iceland, and Egypt, he lays out the details the process including key players, methods, actions, and tools.
• Bernal poses three stages where citizens can participate in constitutional crowddrafting: foundational, deliberation, and pre-ratification. Citing more examples, he concisely explains how each process works and states their expected outcomes. Although he acknowledges the challenges that it may face, Bernal concludes by proposing that “constitutional crowddrafting is a strategy for strengthening the democratic legitimacy of constitution-making processes by enabling inclusive mechanisms of popular participation of individuals and groups in deliberations, expression of preferences, and decisions related to the content of the constitution.”
• He suggests that crowddrafting can increase autonomy, transparency, and equality, and can engage groups or individuals that are often left out of deliberative processes. While it may create potential risks, Bernal explains how to mitigate those risks and achieve the full power of enhanced legitimacy from constitutional crowddrafting.

Finnbogadóttir, Vigdís & Gylfason,Thorvaldur – The New Icelandic Constitution: How did it come about? Where is it? (Book, 2016)

• This book, co-authored by a former President of Iceland (also the world’s first democratically directly elected female president) tells the story the crowdsourced Icelandic constitution as a powerful example of participatory democracy.
• “In 2010 a nationally elected Constitutional Council met, and four months later a draft constitution was born. On the 20th. of October 2012, The People of Iceland voted to tell their Parliament to ratify it as its new constitution.” Four years later, the book discusses the current state of the Icelandic constitution and explores whether Parliament is respecting the will of the people.

Mitozo, Isabele & Marques, Francisco Paulo Jamil – Context Matters! Looking Beyond Platform Structure to Understand Citizen Deliberation on Brazil’s Portal e‐Democracia (Article, 21 pages, 2019)

• This article analyzes the Portal e‐Democracia participatory platform, sponsored by the Brazilian Chamber of Deputies. Since 2009, the online initiative has provided different opportunities for legislators to engage with constituents and representatives through various methods such as surveys, forums, and collaborative wiki tools. Hence, the article examines the participatory behavior of Brazilian citizens during four particular forums hosted on Portal e-Democracia.
• The researchers confirmed their hypothesis (i.e., that debates with diverse characteristics can develop even under the same design structures) and also drew several additional conclusions, suggesting that the issue at stake and sociopolitical context of the issue might be more important to characterizing the debate than the structure is.

Alsina, Victòria and Luis Martí, José – The Birth of the CrowdLaw Movement: Tech-Based Citizen Participation, Legitimacy and the Quality of Lawmaking

• This paper introduces the idea of CrowdLaw followed by a deep dive into its roots, true meaning, and the inspiration behind its launch.
• The authors first distinguish CrowdLaw from other forms of political participation, setting the movement apart from others. They then restate and explain the CrowdLaw Manifesto, a set 12 collaboratively-written principles intended to booster the design, implementation and evaluation of new tech-enabled practices of public engagement in law and policymaking. Finally, the authors conclude by emphasizing the importance of certain qualities that are inherent to the concept of CrowdLaw.

Beth Simone Noveck – Crowdlaw: Collective Intelligence and Lawmaking

• In this essay, Noveck provides an all-encompassing and detailed description of the CrowdLaw concept. After establishing the value proposition for CrowdLaw methods, Noveck explores good practices for incorporating them into each stage of the law and policymaking process
• Using illustrative examples of successful cases from around the world, Noveck affirms why CrowdLaw should become more widely adopted by highlighting its potential, while simultaneously suggesting how to implement CrowdLaw processes for interested institutions