Legalism and Devolution of Power in the Public Sphere: Reflections on Occupy Wall Street
Teachout, Zephyr, Fordham Urban Law Journal
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
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. …