User:Tecknow/Code of Conduct Development
What sort of document is a code of conduct
The temptation to assume it is a contract
It's understandable that many people, especially in a makerspace, would imagine that a code of conduct (CoC) is like a shrink-wrap license or other contract, and therefore assume everyone in the space must agree to the CoC in some way. Licenses and contracts are everywhere. Websites and commercial software have user agreements; open source software and the creative commons are communities and movements held together by licenses; even many of the physical things that we buy often try to insist that they're governed by contracts and not as sales, because they contain software or for other reasons. When you combine this with the reciprocal desires to give people fair warning about what expectations are and the desire to avoid surprises, it's easy to see the temptation to view the CoC as a contract.
Contracts are not the whole of the law
The force of a code of conduct for a private space or event does not come from contract law. It's backed up by the authority to revoke someone's right to be in the space, to declare someone a trespasser if needed. Its power therefore comes from property law. It doesn't really bind the visitors and ordinary members who come into the space. It explains how the power of the owner or leaseholder, which already exists, will be used. It protects the organization from accusations of using their power recklessly.
This distinction is important. The onus is always on the people with the power to use it judiciously. Their responsibility to the community is not nullified or even necessarily diminished if someone says they weren't warned or found their way into the space without accepting the CoC.
The CoC should be as accessible as possible and then followed regardless. People are not required to agree to a code of conduct when they visit restaurants, stores, and other businesses yet those businesses can still control their space. The same is true here.
Disclaimer
I'm not a lawyer, I'm definitely not your lawyer, and the above explanation is not legal advice. I'm confident of the above explanation because I've lived through its application so many times. But a narrow experience doesn't provide general expertise. Many things are, or derive their power from, contracts, such as the membership agreement at PS1.
A personal disclosure
I will always, always, take a dim view of attempts to cast a code of conduct as a contract requiring agreement. I have spent a great deal of time in convention spaces and people who are determined to behave badly, such as by exposing convention=goers to hate speech or symbols, very often try to argue that since they didn't buy a badge they're not actually attending the convention so the CoC doesn't apply and the convention cannot ask them to stop or remove them. Thankfully this essentially never works. But treating a CoC like a contract that requires everyone's agreement to have force validates their efforts to find loopholes that will allow them to continue doing harm.
What do we want the CoC to accomplish
Some tempting failure states
- It's tempting to write a CoC that doesn't require judgement but this is not actually possible.
- It's tempting to try and design procedures that can be operated to produce good results even by people who want to do harm. This isn't possible either.
- It's tempting to view the CoC as a recipe that will produce a good member if followed, but it's not for that.
