4.4. Consensual

Much like anarchism, consensus is a widely misunderstood concept. The word itself can be blamed in part for this, because it refers to the desired outcome rather than the process by which it is pursued.[1] A second reason for misunderstanding may be that there are so many consensus-based decision-making processes in use, with little consistent theory underpinning their design. As Butler and Rothstein lament, too “[o]ften, the consensus process is informal, vague, and very inconsistent.”[2]

Having said that, the fundamentals of the process of seeking consensus are conceptually very similar to those of deliberative democracy. Whilst there is much variation in the degree of agreement required to qualify as consensus, it need not amount to unanimity. Johnson and Crawford, for example, define consensus as having been reached when “opposition to a particular policy is limited in scope and intensity (or is unreasoned), and opposition does not stem from those specially impacted by the policy.”[3]

It can be seen that the elements of this particular test closely resemble those of deliberative democracy, specifically in the requirement that opposition to a proposal be reasoned, and that such opposition stem from those specifically impacted by the proposal. As for opposition being “limited in scope or intensity,” this simply substitutes a subjective standard (though a high one) for the objective test of a democratic vote.

Similarly, most of the advantages claimed for consensus are advantages of deliberative democracy also. For example, it is argued that by seeking to reach consensus—even if it is not achieved—the group’s members are encouraged to articulate their viewpoints persuasively and to actively seek acceptable compromise.[4] Public deliberation encourages them to do the same. Also like democratic deliberation, decision-making by consensus is an inherently egalitarian process, because all participants carry equal power to block agreement on a decision from being reached—and once agreement is reached, all can share a sense of ownership of the decision.

In fact perhaps counter-intuitively, the key difference between most consensual decision-making processes and the deliberative democratic process is not that the former require a higher level of agreement, but rather that they are in other respects procedurally less stringent than the latter. So for example, decision-making by consensus need not require that deliberation take place at all. Although it will normally be necessary for it to do so in order to bring all those involved to agreement,[5] it is also possible to gain consensus through purely strategic bargaining techniques.[6]

Some processes for decision-making by consensus do not even require all those amongst whom a consensus is declared, to have expressed their views on the issue in question. It is therefore possible for an organisation governed by consensus to declare that consensus exists on an issue to which not all of its members have even addressed their minds. As Johnson and Crawford point out, there would be no accountability behind such a declaration unless the organisation at least gathered and documented some evidence that consensus existed, by engaging in dialogue with its members.[7]

From the above it might be assumed that a consensual decision-making process would most likely be less useful than one based upon the more theoretically rigorous deliberative democracy for structuring an organisation’s decision-making procedures in accordance with the democratic principle. However, well-designed consensual processes can in fact be more useful in at two relevant circumstances.

The first is where it is impossible or impractical to satisfy the preconditions of deliberative democracy. ICANN, for example, purports to act upon the consensus of the entire Internet community,[8] which, until a universal online public sphere develops,[9] is not a body capable of public deliberation in the sense required by deliberative democracy. Another example is where the only criteria for decision-making are technical and objective, since in such a case the views of the organisation’s members would not be pluralistic as deliberative democracy requires.[10] Thus consensus is the standard of agreement within many technical standards organisations, including the IETF.[11]

The second case in which consensus-based processes can be employed where deliberative democratic processes cannot is where consensus is to be reached between groups rather than individuals (either in their own or in representative capacities). In common with its parent liberalism, deliberative democracy, even more so than representative democracy, has a very atomistic focus, based on the equal rights of individuals to participate in political deliberation. Lacking this theoretical baggage (or in some cases being grounded instead in communitarianism), the pursuit of consensus is a conceptually more suitable mechanism for reaching agreement at higher levels, whilst also adhering more closely to the democratic principle than representative democracy at those levels, due to the democratic deficits to which representative democracy becomes subject the further removed it is from the grass roots.

The relevance of this to the design of a network for the governance of Internet-related public policy issues lies in the fact that one of the most distinctive attributes of such a network is its multi-stakeholder composition. The individualistic focus of the discussion on deliberative democracy may have obscured the significance of the independence of each of the stakeholder groups. The conclusion of the preceding section has however brought this issue back into focus, by illustrating the disruptive tendency of governments to act unilaterally in democratic governance networks; a problem to which deliberative democracy offers no clear solution.

Notes

[1]

However its use will be retained here because alternative terms such as “collective decision making” (as in Saint, Steven & Lawson, James R, Rules for Reaching Consensus (1994)) are confusingly generic.

[2]

Butler, C T & Rothstein, Amy, On Conflict and Consensus: A Handbook on Formal Consensus Decisionmaking (2004), 9

[3]

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)

[4]

Gastil, John, Democracy in Small Groups (1993), 50–53

[5]

Steiner, Jürg, Amicable Agreement Versus Majority Rule. Conflict Resolution in Switzerland (1974), 5

[6]

Avio, Kenneth L, Constitutional Contract and Discourse Ethics: The Agreement Theories of James Buchanan and Jürgen Habermas (1997), 544–51

[7]

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)

[8]

Post, David G, ICANN and the Consensus of the Internet Community (1999)

[9]

Or an IGF-style open forum representing one in miniature is adopted by ICANN to replace its present rigid hierarchy of ACs and SOs: see Section 4.4.3 and Section 6.3.1.1.

[10]

Cohen, Joshua, Deliberation and Democratic Legitimacy (1989), 21

[11]

Though perhaps in denial of the fact that subjective public policy issues are also often engaged in the development of standards: see Section 2.2.2.