Communities, however, are different. Consider the “competition” among, say, MMOGs. You join an MMOG and spend months building a character in that community. You also collect assets — buildings you’ve built, or weapons you’ve acquired. Both resources are a kind of capital. The set of relationships you’ve developed are the social capital; all the stuff you have is the physical capital.
If you then become dissatisfied with life in your chosen MMOGs, you can leave. But leaving is costly. You can’t transfer the social capital you’ve built, and, depending upon the game, you may not be able to transfer the physical capital either. Like choosing to join a different frequent flyer program, the choice to join a different MMOG is a decision to waste certain assets. And that fact will weaken the competition among these rule-sets.
I don’t mean to overstate the point. Indeed, as markets have developed for selling assets within MMOGs, and the nature of the games has become standardized, some argue that it is becoming much easier to move from one game to another. In real space you also can’t easily transfer social capital from one community to another. Friends are not fungible, even if they can give you connections at your new home. But physical assets in real space are transferable. I can sell what I don’t want and move what I do. Always. In MMOGs, not always.
Paradoxically, then, we might say that it may be harder to change communities in cyberspace than it is in real space. It is harder because you must give up everything in a move from one cyber-community to another, whereas in real space you can bring much of it with you.[14] Communities in cyberspace may in the short run have more power over their citizens (regarding social capital) than real-space communities do.
This means that the picture of competing rule-sets in cyberspace is more complex than Post suggests. The pressure on competition is potentially greater in turn. That might motivate a desire in cyberspace communities to shift toward citizen-sovereignty, but, again, there’s not much evidence of that shift yet.
There is a second, more fundamental skepticism. Even if we could construct cyberspace on the model of the market — so that we relate to spaces in cyberspace the way we relate to toothpaste in real space — there are strong reasons not to. As life moves online, and more and more citizens from states X, Y, and Z come to interact in cyberspaces A, B, and C, these cyberspaces may well need to develop the kind of responsibility and attention that develops (ideally) within a democracy. Or, put differently, if cyberspace wants to be considered its own legitimate sovereign, and thus deserving of some measure of independence and respect, it must become more clearly a citizen-sovereignty.
This same dynamic happens in real space. There are many institutions that are not “sovereign” in the sense that they control how people live, but are “sovereign” in the sense that within the institution, they control how people behave. Universities, social clubs, churches, and corporations are the obvious examples of institutions that gain a kind of autonomy from ordinary government. This autonomy can be thick or thin. And my suggestion is that it gets thicker the more the institution reflects values of citizen-sovereignty.
This kind of sovereignty is expressed in the law through doctrines of immunity. A corporation has certain immunities, but that depends upon it fitting a particular corporate form. Churches have a certain immunity, but it is increasingly challenged as its governance becomes more alien.
Communities in cyberspace will earn a similar immunity more quickly if they reflect citizen-sovereign values rather than merchant-sovereign values. The more responsible the communities become, the more likely real-space governments will defer to their norms through doctrines like immunity.
This maturation — if it is that — is obviously a long way down the road. It depends upon an increasing self-recognition by members of these cyberspace communities that they are, in a sense, separate, or complementary communities. It depends upon an increasing recognition among noncommunity members that there’s something distinctive about these communities. Some are optimistic that this will happen. As Dan Hunter and Greg Lastowka write:
Courts will need to recognize that virtual worlds are jurisdictions separate from our own, with their own distinctive community norms, laws, and rights. While cyborg inhabitants will demand that these rights be recognized by real-world courts and virtual-world wizards, they will need to arrive at these rights themselves within the context of the virtual worlds.[15]
We’ve seen something similar to this progression in our own history. There was a time when the United States was really “these united States”, a time when the dominant political reality was local and there were real differences of culture and values between New York and Virginia. Despite these differences, in 1789 these states united to establish a relatively thin national government. This government was to be minimal and limited; it had a number of narrow, strictly articulated purposes, beyond which it was not to go.
These limits made sense in the limited community that the United States was. At the time there was very little that the states shared as a nation. They shared a history of defeating the strongest army in the world and a purpose of growing across an almost endless continent[16], but they did not share a social or political life. Life was local, exchange was relatively rare, and in such a world limited national government made sense.
Nevertheless, there were national questions to be articulated and resolved. Slavery, for example, was a mark on our country as a whole, even though the practice was limited to a few states. There had been arguments at the founding about whether slavery should be left to local regulation. But the Constitution was founded on a compromise about that question. Congress was not permitted to address the question of the “importation” of slaves until 1808.[17] After that, it could, and people, increasingly, said that it should. Slavery continued, however, to be a stain on the moral standing of our nation. Congress could eliminate it in the territories at least, and some argued that it should do so in the southern states as well.
Opponents to this call for Congress to cleanse our nation of slavery were of two sorts. One type supported the institution of slavery and believed it was central to southern life. They are not my focus here. My focus is a second type — those who, with perfect integrity and candor, argued that slavery was a local issue, not a national issue; that the framers had understood it not to be a national issue; and that the national government should let it alone.
However true that claim might have been in 1791 or 1828, it became less plausible over time. As the nation became socially and economically more integrated, the plausibility of saying “I am a Virginian first” declined, and the significance of being a citizen of the nation as a whole increased.[18]
This change came about not through some political decision but as a result of a changing economic and social reality. Our sense of being members of a national community increased until, at a certain stage, it became impossible to deny our national citizenship. A war produced that recognition. The Fourteenth Amendment wrote it into the Constitution; economic and social intercourse made it completely real. And as this change took hold, the claim that issues like slavery were local became absurd.
14.
In the time since
15.
F. Gregory Lastowka and Dan Hunter, "The Laws of Virtual Worlds,"
16.
Or at least three of the four regions in the early United States shared this history; see Fischer,
17.
Article V of the Constitution states (obscurely no doubt) that "provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article." These clauses state: "(1) The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten Dollars for each Person"; and "(4) No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."