4.4.4. Criticisms

It has been seen that even within the sometimes idealistic Internet technical community, it is rare to find a form of organisation that is governed solely by consensus. This is not so much because the cultural norms of the Internet are any less compatible in principle with consensual than with anarchistic ordering, as because consensus is an ideal case of anarchism, the conditions for which are difficult to realise in a pluralistic world.

This is particularly so in certain issue areas, and for certain types of dispute. These most notably include deep seated culture clashes that Dryzek refers to as “mutually contradictory assertions of identity,”[1] and clashes between competing claims of right, in which it is in neither party’s interests to agree to a consensual resolution. These two areas of difficulty will be dealt with in turn, before concluding with a brief look at some of the other deficiencies of consensual ordering.

4.4.4.1. Consensus and culture

It is a commonly expressed view that the “rough consensus” approach of the IETF is only suited to a largely technical organisation, that is capable of resolving disputes that arise between its members by applying principles that are, if not entirely objective, then at least widely shared. Whilst it may have been so in the past, the stakeholders of today’s Internet are no longer such a group.[2] As Lemley observes:

Even a brief look at the Net should dispel any notion that netizens are a homogenous group with a strong community of interest. White supremacists, libertarians, communitarians, and communists all coexist on the Net; so do rich and poor, black and white, nerds and literati. If we brought them all together in a room, virtual or real, it is doubtful they would reach even a rough consensus on virtually any subject.[3]

This is not a view confined to Internet cynics. Rather, it can be seen as an application of the broader and more venerable political theory of agonism, which holds that in any pluralistic community, conflict is inevitable and unending. The agonist spurns attempts to broker consensus within such communities, in favour of the accommodation of “a vibrant clash of democratic political positions.”[4] Mouffe contends:

We have to accept that every consensus exists as a temporary result of a provisional hegemony, as a stabilization of power, and that it always entails some form of exclusion. The idea that power could be dissolved through a rational debate and that legitimacy could be based on pure rationality are illusions, which can endanger democratic institutions.[5]

Bearing out the view that the scope for a pluralistic organisation to make decisions by consensus is very limited, Kofi Annan has described the case of the General Assembly of the United Nations:

In recent years, the number of General Assembly resolutions approved by consensus has increased steadily. That would be good if it reflected a genuine unity of purpose among Member States in responding to global challenges. But unfortunately, consensus (often interpreted as requiring unanimity) has become an end in itself. It is sought first within each regional group and then at the level of the whole. This has not proved an effective way of reconciling the interests of Member States. Rather, it prompts the Assembly to retreat into generalities, abandoning any serious effort to take action. Such real debates as there are tend to focus on process rather than substance and many so-called decisions simply reflect the lowest common denominator of widely different opinions.[6]

This does not imply that a more substantive consensus could not be achieved by a more effective process, involving prior deliberation about principles, norms, and rules rather than just bargaining.[7] However the root difficulty that remains is that to even begin to resolve a dispute communicatively requires what Habermas calls a “shared lifeworld”; a background consensus which provides the participants with resources for managing the conflict and reduces the scope of issues in dispute.[8] In a transnational and cross-cultural context, it may be that even this is lacking,[9] and that the only commonality between the parties will be their agreement to a minimal set of fair procedures.[10]

Dryzek, while frankly acknowledging that “[i]n a pluralistic world, consensus is unattainable, unnecessary, and undesirable,”[11] still maintains that democratic deliberation offers the best prospect of facilitating the development of substantive consensus from such a minimal shared base of agreement on procedural norms. In comparison to agonism which offers no solutions to the difficulties of reaching agreement in the face of clashes of culture and identity, Dryzek maintains that such contentious issues can be engaged deliberatively within a public sphere at some distance from the state, using appropriate communicative forms.[12]

Even granting this, it does not completely address the potential for cultural differences to impair deliberation. A specific case that illustrates just how intractable these differences can be is that of cross-cultural communication.[13] Cognitive linguists have determined that those who speak different languages actually think differently as well. In his pioneering work on linguistic relativity, Whorf wrote that

each language is not merely a reproducing instrument for voicing ideas but rather is itself the shaper of ideas, the program and the guide for the individual’s mental activity, for his analysis of impressions.[14]

Empirical research has supported this observation, for example demonstrating that all languages have lexical gaps in which it is literally impossible to express a thought that can be expressed in in other languages, and that attempting to fill these gaps by paraphrasing generates extraneous implications not present in the original.[15] Such deep problems of cross-cultural communication are troublesome for Habermas, who makes three idealising assumptions in his model of conflict resolution on the basis of reasoned agreement: that participants can assume that they each mean the same thing by the same words and expressions, that they each consider themselves rationally accountable, and that once agreement is reached the assumptions underlying their consensus (for example as to its truth or justice) will not subsequently prove mistaken. As he acknowledges, to the extent that these assumptions are not realised, agreements reached are open to challenge.[16]

There is no simple solution to such problems, though in general they point to the need for mechanisms by which participants in deliberation are encouraged (or forced) to become more linguistically and epistemologically cosmopolitan.[17] Needless to say, this is potentially an ambitious programme, which although capable of being pursued by deliberative means, may be time-consuming and require expert facilitation.

Having said that, the same sorts of problems are endemic to our multicultural world in many other contexts beyond that of deliberative democratic and consensual decision-making. In particular, there is no reason to think that an hierarchical or anarchistic form for a transnational governance network could overcome them to any greater extent than the deliberative democratic or consensual forms.

4.4.4.2. Consensus and rational choice

An additional limitation of which consensual forms of organisation are accused is that there are some issues that it would not be rational for participants to agree on by consensus. As this is essentially the same criticism as made of anarchistic ordering,[18] it will not be reiterated in full here.[19]

Instead, particular attention will be given here to one specific instance in which it is said that submission to consensual ordering would be irrational and indeed inappropriate: where there are (in Weinberg’s words) competing claims of right, for example between multiple applicants to ICANN for the right to manage new gTLDs.[20]

This criticism has both a narrow application and a broader one. In its narrow application, it holds that the determination of particular competing claims of right, or the distribution of wealth among particular parties, cannot be conducted by consensus. This much is doubtless correct. Certainly, Network Solutions did not consent to the admission of new entrants into its formerly monopolistic market for domain name registration—why should it have?

However, this charge can be accepted without derogating from the use of consensus as an organising principle for ICANN as a governance network. This is because the place of consensus within ICANN is at a policy development, not an operational level. Unlike under an anarchistic regime in which ordering always remains voluntary, it is possible for a consensual governance network to institutionalise the bureaucratic application of consensually agreed policies. Thus for ICANN, whereas policies covering gTLD issues in general are formed by consensus, the grant of custodianship of individual gTLDs by reference to these policies is an operational matter to be decided bureaucratically (or by some other consensually agreed or otherwise legitimate mechanism of governance, such as through markets—or better yet, a hybrid which corrects for market deficiencies).

Although the bureaucratic determination of competing claims of right will necessarily result in wealth being distributed between stakeholders unevenly (an outcome which the affected stakeholders probably could not reach consensus upon antecedently), this does not delegitimize the outcome. After all, for the liberal, consensus is not an end in itself but a means of pursuing the democratic principle. Thus a majority cannot deny a minority benefits that they have gained through a consensual process. Johnson and Crawford put this by saying that although “[t]he creation of new TLDs will have an effect on existing registries, registrars, registrants and various other parties like trademark owners ... [it] will not require any of these actors to implement or abide by a new set of rules.”[21]

The second and broader sense of the above criticism of Weinberg implies that consensus could never develop even around the domain name policies that underlie the determination of competing claims of right, due to the intervention of strategic interests. However, this is far from a foregone conclusion. If the procedures by which ICANN developed policy by consensus were more deliberative and its structures were more open, there is no reason why a consensual balance between the interests of all stakeholders could not be reached.

As it stands, ICANN’s stakeholders do not for the most part engage with each other in the policy development process, and therefore have no occasion to even attempt to reach such a compromise discursively. The process of seeking consensus by consulting stakeholders separately, aggregating their views, and attempting to balance them by executive fiat, is indeed open to criticism, but such criticism does not extend to decision-making by consensus in general.

4.4.4.3. Consensual deficits

The final group of criticisms of consensus-based decision-making to be discussed here relate to its potential to become dysfunctional even where complicating factors such as cultural difference and competing claims of right are absent.

One such dysfunction, the phenomenon of “groupthink,” is ironically most prevalent in more cohesive groups, because their members are reluctant to break the group’s consensus, giving them a propensity to make decisions rashly.[22] Conversely, consensus-based decision-making can lead to polarisation and deadlock,[23] whereby the views with which participants enter the discussion become entrenched in more extreme forms, so that consensus becomes more difficult and takes much longer to achieve. This phenomenon is most evident where the views in question run along stakeholder lines and the stakeholder groups are separated,[24] as occurs in a segmentally autonomous consociation, in ICANN’s SOs, and amongst members of self-selecting virtual communities.

These problems may be countered by the use of deliberative democratic techniques designed to introduce participants to a range of viewpoints other than their own (by requiring them to actively engage with other participants, and through the provision of factual background materials), and by requiring them to justify their views against these other perspectives through public reason. As these techniques have been described at length, no more time need be spent on them here.

A much more problematic dysfunction that is inherent to consensual decision-making is that minorities are granted disproportional power over the process. This enables them to abuse their effective right of veto by engaging in blocking tactics and other strategic games rather than seeking mutually satisfactory outcomes in good faith. A common solution to this is to allow for “rough consensus” in place of unanimity, though this can exacerbate the problems of limited deliberation and lack of accountability inherent in some forms of decision-making by consensus.[25]

Another common solution, which as we have seen is often used in conjunction with the first, is to structure the organisation as a hybrid between consensual and democratic or hierarchical decision-making, wherein either a majority, or a meritocratic elite (who should be consensually or democratically selected), have the institutional power to resolve internal disputes and deadlocks.

A third means to dissuade participants from the abuse of their right of veto is through the development of supportive norms that constrain the use of that power except where it is essential to protect deeply-held interests of the blocking party that the interests of the group ought not to be able to override.[26]

According to Butler and Rothstein, the applicable norms are trust, respect, unity of purpose, nonviolence, self empowerment, cooperation, conflict resolution, commitment to the group, active participation, equal access to power, and patience.[27] For Skelcher, the norms of cooperation and recognition of the equality of all parties are most central.[28]

There is no template by which such norms can be inculcated, but they tend to develop spontaneously when members of the network cooperate towards mutually beneficial outcomes, and also tend to be self-reinforcing.[29] This process of building social capital can be “kick-started” by the use of designs for deliberation that encourage participants to find mutually acceptable outcomes rather than to adopt adversarial positions.

But at the end of the day, perhaps the best defence of decision-making by consensus in the context of a transnational governance network is that the failure of consensus is a strong indication that it was not appropriate for the issue in question to be dealt with through the soft power of a governance network anyway, and that it should instead fall through to be dealt with by some other mechanism. Johnson and Crawford write:

Failure to reach a global consensus may be a success rather than a failure, however, because it leaves undisturbed the power of many diverse and decentralized actors to make their own decisions. These actors may find even better ways to proceed than might have emerged from a compromising committee.[30]

It can thus be considered that a consensual governance network is merely one supplier in a competitive market of governance solutions, and as in the case of the open source software development model, it is freedom of exit—the ability for participants to vote with their feet—that makes these suppliers accountable. The W3C has also conceptualised the process of seeking consensus as being market-driven, stating:

Groups strive to reach consensus in order to provide a single solution acceptable to the market at-large. If a group makes a decision that causes the market to fragment—despite agreement by those participating in the decision—the decision does not reflect a single market and therefore the group has failed to reach true consensus.[31]

In practice, the achievement of consensus between stakeholders will be central to the success of a transnational governance network no matter which of the four forms of organisation examined in this chapter it adopts. The main benefit of adopting the consensual form is that it also reflects this reality institutionally in the organisation’s design, thereby both providing an early gauge of the likely ultimate adoption of the network’s soft law output by its participants, and also ensuring in accordance with the democratic principle that those who are to be governed by that law are those responsible for writing it.

Notes

[1]

Dryzek, John S, Deliberative Democracy in Divided Societies: Alternatives to Agonism and Analgesia (2005), 218–219

[2]

Mueller, Milton, Ruling the Root: Internet Governance and the Taming of Cyberspace (2002), 163–164

[3]

Lemley, Mark, The Law and Economics of Internet Norms (1998), 1270

[4]

Mouffe, Chantal, Deliberative Democracy or Agonistic Pluralism (2000), 15–16

[5]

Mouffe, Chantal, Deliberative Democracy or Agonistic Pluralism (2000), 17

[6]

Annan, Kofi, In Larger Freedom: Towards Development, Security and Human Rights For All (2005), 40

[7]

Risse, Thomas, Let’s Argue!: Communicative Action in World Politics (2000), 20-1

[8]

Habermas, Jürgen, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (1996), xvi

[9]

See Section 3.4.3.3.

[10]

Cohen, Joshua, Democracy and Liberty (1998), 193

[11]

Dryzek, John S, Deliberative Democracy and Beyond (2002), 170

[12]

Dryzek, John S, Deliberative Democracy in Divided Societies: Alternatives to Agonism and Analgesia (2005)

[13]

Kymlicka, W, Citizenship in an Era of Globalization (1999)

[14]

Whorf, Benjamin L, Language, Thought and Reality (1956), 212

[15]

Levinson, Stephen C, From Outer to Inner Space (1997), 16–18

[16]

Habermas, Jürgen, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (1996), xv

[17]

Hilde, Thomas C, The Cosmopolitan Project: Does the Internet Have a Global Public Face? (2004), 120–122

[18]

See Section 4.1.3.

[19]

Though one response to that charge, the capacity for norms to support consensual processes, will be dealt with under the next heading.

[20]

Weinberg, Jonathan, ICANN and the Problem of Legitimacy (2000), 252; and see Mueller, Milton, Ruling the Root: Internet Governance and the Taming of Cyberspace (2002) , 216.

[21]

Johnson, David R & Crawford, Susan P, Why Consensus Matters: The Theory Underlying ICANN’s Mandate to Set Policy Standards for the Domain Name System (2000)

[22]

McCauley, Clark, The Nature of Social Influence in Groupthink: Compliance and Internalization (1987)

[23]

Isenberg, D J, Group Polarization: A Critical Review and Meta-Analysis (1986)

[24]

Dryzek, John S, Deliberative Democracy in Divided Societies: Alternatives to Agonism and Analgesia (2005)

[25]

Mueller, Milton, Ruling the Root: Internet Governance and the Taming of Cyberspace (2002), 216

[26]

Skelcher, Chris, Jurisdictional Integrity, Polycentrism, and the Design of Democratic Governance (2005), 105

[27]

Butler, C T & Rothstein, Amy, On Conflict and Consensus: A Handbook on Formal Consensus Decisionmaking (2004), 20–23

[28]

Skelcher, Chris, Jurisdictional Integrity, Polycentrism, and the Design of Democratic Governance (2005), 103

[29]

Uphoff, N, Understanding Social Capital: Learning from the Analysis and Experience of Participation (1999)

[30]

Johnson, David R & Crawford, Susan P, The Idea of ICANN (2001)

[31]

W3C, Process Document (2005), and compare also the stand-off between the competing SPF and Sender ID specifications referred to at Section 2.2.1.1.