Abstract
The advent of Information and Communication Technologies (ICTs) brought a fast development of urban centers, and a debate emerges on how to use ICTs to enhance the development and quality of life in cities and how to make these more efficient. The object of this paper has as the analyze whether or not the traditional regulatory model, based on a system of sanctioning behavior divergent from the normative prescription by the postulates of digital governance. For the elaboration of this paper, we use the method of deductive approach. This way, along with the prominent literature and the experience of good international practices, we must recognize the need for an “intelligent” regulatory modeling thus being, we presented a contribution to building a new legal paradigm toward the enhancement of democratic processes in smart cities, structured on the postulates of Crowdlaw (collective production of the legislative process). Last, we believe that the contributions arising out of this work may fill some of the gaps existing in terms of legal theory production on the regulatory modeling for participative governance.
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Notes
- 1.
The tension among the norms are referred to as responsiveness between regulation and the legal system in general. In this sense, Saddy and Greco [7] illustrate this scenario on the study "Terms of Adjustment of Conducts in sanctionative procedures in the Brazilian State)." In which the authors discourse on the different logics of legislations that regulate the economic activity, foreseeing divers normative species (fines, warnings) on the Federal Law of Administrative Procedure in this country. Such sanctions may be commuted, meaning that it is up to the legislator to apply the sanctions or to dissuade the infractor from celebrating agreements (replacement/suspension) through the Agreement of Adjustment of Conduct. Greco illustrates this scenario in the study "Terms of Adjustment of Conducts-TAC in sanctionative procedures in the Brazilian State," according to the best public interest. Meanwhile, these authors punctuate that not always Brazilian laws allow the use of TAC, through regulatory agencies, identifying three possible situations. "(I) cases in which sectorial legislation expressly establishes the possibility of TAC by regulatory agencies. (II) cases in which sectorial legislation does not establish such possibility, but regulatory norms authorize negotiation, case by case, to overcome infractions established at an infra-legal plan. Furthermore, (III) cases in which there is no provision in legislation, nor normative resolution to the case." It is thus suggested that in complex scenarios, it is up to the administrations to adopt a vanguard position, electing consensual strategies of regulation, also called soft-regulation. The current position of the administration must be tied "not only with the act of decision, as it was the administrative tradition, but well beyond that, also with the result of what was decided." Saddy and Greco [7].
- 2.
Crowdlaw is an emerging practical field developed by GovLab, a research and action center based on Tandon School of Engineering of New York University. Beth Simone Noveck and Stefaan Verhulst founded the referred Center, in 2012, to promote the design of more open, more efficient, and networked governmental institutions using data, technology, and crowdsourcing. In the year of 2014, GOVLAB adopted the term Crowdlaw to refer to every possibility of citizens becoming collaborators and co-creators of all types of legislative activities, including legislation, regulation, and constitution. Available information in http://www.thegovlab.org/project-crowdlaw.html. Access in: August 2019. GOVLAB [8].
- 3.
Many other interesting projects came to our knowledge. Just to mention a few more, we highlight a project from Iceland, a country that is considered by many as a "Better Reykjavik," and popular participation in the different steps of the legislative process, see the case of Madrid, Law 39/2015, article 133. "Participation of citizens in the procedure of elaboration of norms classified as laws and regulations. 1. Before the elaboration of the project of law or the law, a public consultation must be undertaken through the portal of the respective Administration, in order to get the opinion of individuals and more representative organizations that might be affected by the future norm." Moreover, still, the case of Brazil, Resolution Project nº 217, of 2017, whose aim is to modify the Regulation of the Chamber of Deputies, in a way to include dispositions that turn the public consultation (of the phase of the report of projects law) into a phase of the legislative process. Ferri [10].
- 4.
By way of illustration, it may be referred the case "City Observatory," adopted by the City of Madrid/ Spain, characterized by a permanent organ of citizen's participation competent for debating the cities issues, to propose the convocation of widespread consultation and to make recommendations to the municipal organs. The referred Observatory was regulated by "Acuerdo del Pleno," of the 20 January 2020. Available in: https://www.madrid.es/UnidadesDescentralizadas/UDCMedios/noticias/2019/01Enero/29Martes/Notasprensa/Reglamento%20Observatorio%20de%20la%20Ciudad/ficheros/Acuerdo%20de%20Pleno%20Rto%20Observatorio%20original.pdf. Access in: Jan 2020.
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Acknowledgements
This work has been supported by the CAPES Foundation, Ministry of Education of Brazil (by CAPES under Grant nr. BEX—1788/15-9), and also to the JusGov-Research Centre for Justice and Governance, and to the FCT Fundação para a Ciência e Tecnologia within the Project Scope: UID/CEC/00319/2019.
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Bernardes, M.B., de Andrade, F.P., Novais, P. (2021). Regulatory Modeling for the Enhancement of Democratic Processes in Smart Cities: A Study Based on Crowdlaw—Online Public Participation in Lawmaking. In: Yang, XS., Sherratt, R.S., Dey, N., Joshi, A. (eds) Proceedings of Fifth International Congress on Information and Communication Technology. ICICT 2020. Advances in Intelligent Systems and Computing, vol 1183. Springer, Singapore. https://doi.org/10.1007/978-981-15-5856-6_54
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