125 Pages Posted: 16 Jan 2003
In the spirit of Jurgen Habermas's project of linking sociological observation with legal philosophy, this Article analyses the Internet standards processes - complex nongovernmental international rulemaking discourses. It suggests that the Internet Engineering Task Force (IETF) standards discourse - a small, slightly formalized, set of cooperative procedures that make the other Internet discourses possible - is a concrete example of a rulemaking process that meets Habermas's notoriously demanding procedural conditions for a discourse capable of legitimating its outcomes. As evidence, the Article offers a social and institutional history of the IETF's Internet Standards process; and argues that participants in the IETF are engaged in a very high level of discourse, and are self-consciously documenting it. Identifying a practical discourse that meets Habermas's conditions removes the potentially crushing empirical objection that Habermas's theory of justice is too demanding for real-life application, although it does not prove its truth.
Habermas's work provides a standpoint from which social institutions can be critiqued in the hopes of making them more legitimate and more just. Armed with evidence that Habermasian discourse is achievable, the Article surveys other Internet-based developments that may approach his ideal or, as in the case of the Internet Corporation for Assigned Names and Numbers (ICANN), that already claim a special form of legitimacy. This Article finds most of these other procedures wanting and argues that the existence of even one example of a functioning Habermasian discourse should inspire attempts to make other decisions in as legitimate and participatory a manner as possible.
Habermas seeks not only to define when a rulemaking system can claim legitimacy for its outputs, but also to describe tendencies that affect a modern society's ability to realize his theory. Speaking more as a sociologist than a philosopher, Habermas has also suggested that the forces needed to push public decisionmaking in the directions advocated by his philosophy are likely to come from a re-energized, activist, engaged citizenry working together to create new small-scale communicative institutions that over time either merge into larger ones or at least join forces. Like Habermas's idea of a practical discourse, this may sound fine in theory but is difficult to put into practice. New technology may, however, increase the likelihood of achieving the Habermasian scenario of diverse citizens' groups engaging in practical discourses of their own. Technology may not compel outcomes, but it certainly can make difficult things easier.
A number of new tools such as slash servers, blogs, wiki webs, community filtering tools and e-government initiatives show a potential for enabling not just discourse, but good discourse. While it is far too soon to claim that the widespread diffusion and use of these tools, or their successors, might actualize the best practical discourse in an ever-wider section of society, it is not too soon to hope - and perhaps to install some software.
JEL Classification: K10, K40, K30, Z13
Suggested Citation: Suggested Citation
Froomkin, A. Michael, Habermas@discourse.net: Toward a Critical Theory of Cyberspace. Harvard Law Review, Vol. 116, No. 3, January 2003. Available at SSRN: https://ssrn.com/abstract=363840 or http://dx.doi.org/10.2139/ssrn.363840