Legalism and devolution of power in the public sphere: reflections on Occupy Wall Street.

• Author: Teachout, Zephyr

Introduction I. Process at Occupy Wall Street A. The Spokes Council II. Legalism and the Public Sphere III. Explanations for Legalism at Occupy Wall Street A. Heterogeneity of Occupy Wall Street B. Shared Culture of Occupy Wall Street C. Rejection of Representative Decision-Making in Occupy Wall Street Conclusion INTRODUCTION

In the fall of 2011, I spent several months at Occupy Wall Street as an observer, a participant in both the nightly General Assemblies and the Spokes Council, and as an active member of the Occupy Wall Street Activist Legal Working Group. I was also part of the legal team that worked on drafting a brief about the status of Zuccotti Park as a public forum. My reflections in this Essay are based on my personal experience with Occupy Wall Street, and the purpose of this Essay is to examine the peculiar relationship between legalism, the public sphere, and devolution of power that I witnessed there. The implications are larger and relate more generally to consensus organizing and legalism. This is not intended to be an exhaustive study of Occupy Wall Street, but rather an Essay about the culture that I experienced, and so the bulk of the stories and descriptions come from my own experience.

What interests me is how legalistic, bureaucratic, and process-focused the governance system at Occupy Wall Street became over time. Anyone who spent much time at the park and at the almost nightly meetings of the "Spokes Council" (the body which became responsible for project funds), would be struck by how much time the Spokes Council spent on fairly arcane points of process, and how little time they spent on substantive discussions. (1) For example, after a discussion about the amount of money available for bail for people arrested during protests, there was a lengthy disagreement not about the bail cap, but about whether or not to reopen the discussion about the bail cap. The decision-making body debated the appropriate process to use in determining whether or not to open the debate, with the group responsible for running the meeting repeating the rules of discussion several times, and hewing closely to those rules when they came to what they perceived to be the best interpretation. (2) It was the kind of debate one would imagine in a court, with many references to precedent; this type of discourse is not what one imagines as the grammar of a protest movement. Yet rules and process were discussed hundreds of times in this way, when there were other possible debates to be had--about strategy, for instance, or ethical debates about the scope of protest.

I use the frame of legalism to explore what I witnessed. The term "legalism" refers to a cultural commitment to following rules, and an association between morality and rule-following. (3) In a legalistic culture, the laws are more important than the reasons for the laws, and rule-following is a greater virtue than being good. At its peak--September 2011 through November 2011--Occupy Wall Street was curious because it was simultaneously legalistic and anti-legalistic. Many of the Occupy Wall Street protesters were committed to unmasking ideologies, including the ideology related to the "legality" of certain practices, and some openly promoted civil disobedience against the rules of the state. At the same time, the internal culture of Occupy Wall Street was a highly legalistic organizing culture, with a highly rigid and quasi-totemic "process" which was frequently referred to and discussed. The rules of expression and rules of decision in the two primary decision-making bodies of Occupy Wall Street, the General Assembly and the Spokes Council (whose processes I describe in the bulk of this Essay), became the common grammar of the movement. Meeting discussions tended to direct themselves to a discussion of rules and rule-following. And morality was implicitly invoked--failure to follow the Occupy Wall Street "process" was sometimes seen as a violation of the community norms, not merely a technical failure.

This observation is particularly interesting because the stereotype of devolved or "bottom-up" (4) organizing is that it is chaotic and does not conform to a rule-following and rule-invoking culture. One need only sift through the various descriptions of Occupy Wall Street to find a consistent strain characterizing the movement as a disorderly one. In November 2011, one editorial in Bloomington called the Occupiers "disorganized bands." (5) A writer for a Phoenix paper said that "Occupy Wall Street is so disorganized it doesn't even appear to have specific leadership, or hierarchy," explicitly associating a state of organization with the existence of an established hierarchy. (6) Perhaps more interesting is the idea that is reflected in these images that bottom-up, grassroots decision-making is likely more disorderly. A writer for Business Insider wrote last fall:

From the beginning of time two forces have vied for influence over us. One is bottoms-up, decentralized, and emergent. The other is top-down, centralized, and directed. The first force catalyzes change and divergence, while the second tends toward order and convergence. The first gives birth to new ideas, and the second enshrines them. (7) The association between decentralization of power, devolution of power, and disorderliness and lack of rules exists elsewhere. For example, Amy Cohen writes that political philosophers associate "a rejection of the kind of centralized legal regulation favored by liberal advocates of the New Deal state" with "an embrace of informal, flexible, lay, and even extralegal problem solving." (8) Critics of libertarians Dorf and Sabel, for instance, associate their project with a rejection of law because they place lawmaking and law-creation at a decentralized level. (9)

I do not think there's much doubt that Occupy Wall Street was highly decentralized, with power distributed at the most grass-roots level. (10) Its apparent disorder, however, masked a high degree of rigid rule-following. Occupy Wall Street's example suggests that the association of the devolved with the non-legalistic may be misplaced, especially if the "bottom-up" culture has a commitment to each member having an equal political voice. A "bottom-up" culture dedicated to ensuring that people do not get marginalized--especially one in which consensus is the rule of decision--may lead to rules and rule-following and the culture of legalism that accompany that devolution. The actual experience of Occupy Wall Street poses a challenge to theorists who celebrate the Habermasian ideal of a public forum, or deliberative democrats who idealize political fora in which there is universally recognized political equality and a right to speak and engage. It doesn't undermine their basic moral claim (that such a sphere politically and morally justifies its legitimacy), but it suggests that at least in some instances, a public sphere in which everyone has an equal voice may be a highly legalistic one.

Habermas developed the ideal of a communicative sphere in which there would be critical discussion leading to consensus around matters of common concern. (11) The deliberative democratic political theorists, likewise, are proponents of radical political equality and the possibility of consensus. (12) Like Habermas, deliberative democratic theorists argue that political legitimacy derives from open rational discussion in which speakers are presumed to have political equality. Occupy Wall Street was an extraordinary experiment in the public sphere ideal and deliberative democracy, and it suggests that while such processes might work, the pathologies of legalism may appear to threaten the process. Political equality and consensus norms may--not must but may--lead to rule-based communicative culture instead of a public morality.

I want to frame the discussion of Occupy Wall Street within two mid-century critiques of popular culture. The first is Judith Shklar's critique of the culture of legalism. (13) The second is Jurgen Habermas's critique of rationalized, commercialized, and feudalized public discourse. (14) What I find so interesting is that a movement that almost precisely matches Habermas's essential elements would end up having so many of the features of legalism that Shklar critiques, and some echoes of the "juridification" that Habermas critiques. (15) In Part I, I briefly describe the rules and communicative culture of Occupy Wall Street and the legalism that I witnessed there. In Part II, I introduce the idea of legalism and the idea of the public sphere. In Part III, I provide several tentative hypotheses explaining the existence of legalism at Occupy Wall Street.

1. PROCESS AT OCCUPY WALL STREET

   Within the media, Occupy Wall Street was often associated with disorder, chaos, and a lack of structure. Occupy Wall Street was often described in terms of its spontaneity and amorphousness. Some critics called the encampment "amorphous" and "leaderless" and described it in terms of the lack of a clear vision or set of demands. (16) The language of press articles often suggested an absence of process. While Occupy Wall Street was leaderless, however, it was not without structure. People could just show up and speak, but in order to speak they had to abide by a strict set of rules of engagement. They could only speak by signing up on a "stack," only speak on the topics that were on the agenda, only speak for two minutes, and only speak about the agenda items in a highly constrained set of ways. They could not introduce a new proposal, for instance, without having previously gone through a committee that would allow them to introduce a proposal. They could only speak to whether or not they supported a proposal during one specified time period; at other times they could ask clarifying questions about a proposal or provide amendments. In short, Occupy Wall Street was governed by a fairly formal set of...