Law in Action

The armchair constitution-building on this forum has been, for the most part, abstract and speculative, so I’d like to bring it down to earth with a specific case-study. The recession in the UK has been serious and the consensus amongst economists is that any enduring recovery will be export-driven, as the home market is still highly indebted. In the last two years the domestic market in China has grown rapidly and most countries are now targeting their exports in that direction (the UK currently accounts for only 1% of Chinese imports). But China has an appalling human rights record, leading some to say that the UK should have a similar policy to China as with South Africa in the apartheid regime. Thus we have a classical political dilemma, so let’s explore possible outcomes in the light of three constitutional models:

1) Electoral democracy

In opposition Conservative ministers made a lot of dog-whistle noises about human rights abuse in China, but prime minister Cameron is currently heading a high profile trade delegation to China (including the Chancellor of the Exchequer, the trade minister and the education secretary). When interviewed by the UK media, Cameron makes the obligatory (abstract) comments about human rights but is adamant that UK economic interests come first. There is no evidence that the UK ministers are applying any pressure on the Chinese government, and it’s hard to understand how they could, as everything the UK has to offer can be sourced from other countries.

2) Allotted assembly with agenda-setting powers

It’s plausible to imagine that an allotted member might have very strong views on the human rights issue, leading her to advocate a proposal to legislate for a trade embargo on China, unless the government pulls out of Tibet and abolishes capital punishment for anything other than (say) murder. Although the proposal is likely to be defeated during the ensuing debate by those who privilege jobs and other economic concerns, there is no guarantee of balanced advocacy and government trade and finance ministers would have no right to speak (unless invited by the allotted members). The same would be true for spokesmen for trades union and employers’ organisations (TUC, CBI, IoD etc). If the bill was passed then the “general will” represented by the allotted vote would automatically become law, given the opposition of advocates of this model to the checks and balances that characterise most working constitutions.

3) Two-stage process (elections and allotted chamber)

If the initial electoral process was sufficiently open-access, then it’s plausible that a Chinese trade embargo, or similar sanction, would be promoted as a policy option. If the proposal passes the primary process (minimum threshold of online signatures) then it would be on the ballot and its supporters and opponents could issue the relevant propaganda to the electorate (subject to the tight constraints of the statutory limits on campaign finance.) If the proposal (or proposers, if based on a party-aggregation ticket) win the election then it goes for allotted scrutiny. As the allotted body is a microcosm of the electorate it would have a good chance of becoming law, but government ministers and elite advocates (trade unions and employers’ organisations) would have an ex-officio right to address the assembly. One might imagine that such advocates would seek to quantify the likely effects of the trade embargo on jobs and the tax rises that would be required to pay for the subsequent increase in unemployment (given the statutory responsibility of the finance minister to balance the books over the economic cycle). But the final decision would be in the hands of the allotted microcosm.

Returning, briefly, from the real world to the normal discourse of this blog, how would such a debate be described in terms of the interests of elites and the masses? To my mind, positions 1 and 3 would represent the interests of the masses (which happen to coincide with corporate interests) whereas 2 might be characterised as the minority preoccupations of the chattering classes.


56 Responses

  1. Surely, we here on Equality-by-Lot, all sensible, educated men, can immediately see how childish the vulgar concerns of the masses, stoked by the irresponsible demagoguery of the chattering classes, are. True, the Chinese government, with its illegal invasion and brutal occupation of foreign lands, with its killings of political dissidents as well as other innocent victims, is a vile and despicable organization. But, clearly, despite the best sentiments of its citizens, shared by any true hard-working (or independently wealthy) Briton, from the esteemed residents of the corridors of Oxford to the most wretched denizens of the East End, the UK simply, if regrettably, cannot afford to do anything about it.

    Surely, we here, all sensible, educated men, can see that if only government was firmly in the hands of sensible, educated men, just like us, then sensible policy would be pursued, sensible policy that is being urged upon us by all sensible and educated experts in the arcane field of economics, sensible policies that are focused on safeguarding jobs, profits and the omni-beneficent forces of the free market – policies that would, indubitably, yield the prosperity that we all so wish to see. However, being sensible, educated men, but also men of delicate sensibilities, we do not wish to have the masses deluded by their ignorance and vulgarity into thinking that such a government of sensible, educated men does not represent the true interests of the masses. It is obvious to us that the masses, if they only have the chance to enjoy the light shed by the representatives of reason, erudition and sophistication, rather than be allowed to wallow in their superficial and infantile semi-intelligible train of thought (if one could dignify the cranial activities of the average person by this term), would soon come to understand the true facts of this complicated, and often harsh, world which we inhabit – or at least enjoy some semblance of understanding that would suffice for them in order to appreciate the wisdom of their betters. It is with these noble aims in mind that we must pursue the reform so ably and so tirelessly promoted by the honorable Mr. Sutherland.


  2. Sorry Yoram, but I’ve tried several times to penetrate the sarcasm to try to understand what you are trying to say, but had to give up in the end. Bear in mind that I’m advocating a plurality of expertise — generally speaking the Trades Union Congress and the Institute of Directors have little in common (for example in their reaction to the fiscal policies of the UK coalition government). The point that I’m trying to make is the simple Marxian one — economic interests tend to predominate over other concerns, and your new model parliament is more likely to undermine the economic perspective than either the status quo or my dualist alternative. Whether or not you approve of the priorities of the demos, that’s what we mean by “democracy”.

    Also, although I don’t want to be seen as an apologist for oriental despotism, it’s interesting to contrast the official Chinese response to the DP with that of western power elites. I also imagine the Chinese authorities are quietly satisfied with their own response to public order issues in contrast to the smashing up of the Conservative party HQ this week by a tiny group of anarchists under the cover of a student protest march.



  3. I think the message is that you are getting unbearably arrogant, Keith Sutherland. Who’s doing armchair constitution-writing? You are, with your highly specific “demarchy”-style proposal.

    I favor an incremental approach, where I lobby for greater use of Citizen’s Assemblies, and set no upper bounds on what should eventually be decided by them – it’s up to the people to decide when to stop. I’m not writing any constitutions, I want a Citizen’s Assembly to do that – when the time comes that people want it.

    You, by comparison, already seem to have the constitution drafted, with yourself as the founding father. And you don’t merely say other proposals are a bad idea, you say they are illegitimate. That if the assemblies want to put different restrictions on themselves than you, or want to use self-restraint on a case by case basis instead of writing it in stone, they are not merely wrong, but practically evil.

    You are even open about seeking a constitution biased to your specific political views.

    And now you want to make the debate less theoretical, so you conjure up a “real world” example (really a dubious thought experiment)… revealing that you think giving extra influence to the entrenched interests – labor unions and rich people who would be harmed by an embargo – is a good idea, since it would increase the odds of the outcome you obviously think is best.

    Said plainly: You want a chance to tip the scales in your favour – as a representative of us in the chattering classes – by giving special privilege to our own class in addressing and setting the agenda for the assembly.

    No, what this example has shown me is that you are bad at distinguising between the outcomes you want, and the outcomes that are just – the ones the people actually want. Maybe the people would regret laying an embargo to China. Maybe they would regret not doing it. But either way that is their error to make – or avoid, as the case may be. If it happens, it’s important for both us chattering elites and (the rest of) the people that they can say: “we did it to ourselves”. Not “the electoral elite tricked us” or “they didn’t give us any good options”.


  4. “Maybe the people would regret laying an embargo to China. Maybe they would regret not doing it. But either way that is their error to make – or avoid, as the case may be.”

    In other words give them enough rope and let them hang themselves. All I’m proposing is the normal checks and balances advocated by liberal pluralist theorists, as opposed to the unicameral totalitarianism advocated by Yoram and yourself. As for my cautious and conservative prejudices, these are held by many (most?) citizens.

    Regarding your use of the word “elite” I confess I’m now completely confused. Who exactly constitutes the elite? — elected politicians, trade union leaders, Institute of Directors, the military-industrial complex, Rupert Murdoch, opinionated members of allotted agenda-setting bodies, commentators on this blog? I think this is one word that has passed its sell-by date. The point that I was trying to make was that most working people would be harmed by a trade embargo and yet you are portraying this as kow-towing to elite interests. Forgive my puzzlement.

    Regarding my thought experiment, I was rather hoping for a measured and critical response, rather than just a torrent of sarcasm and abuse. As for constitution building, this should be based on 1) clear conceptual distinctions, 2) measured deliberation and 3) a study of how things have worked out in the past, rather than leaving it to a Darwinian process, red in tooth and claw. Whereas I do agree that ordinary political decision making should be in the hands of an allotted assembly, the same no more applies to the design of political institutions than the design of the space shuttle. Successful institutional design requires the three qualities outlined above. My own constitutional proposal has benefited enormously from the conversations that I have had over the last ten years or so and has been transformed (and, hopefully, improved) as a result of this dialectical process, so I’m not sure why you describe me as “arrogant”.



  5. Keith, the elite we are talking about now is the loudmouths, the people eager to take the word and make strong statements to the assembly, the people willing to seek offices in political parties and labor unions, to write letters to the editors, to blog and comment at blogs, etc. In other words, the opinionated. The ones who think they have the answers, or at least more and better answers.

    You remember? The very group you worried would dominate an allotted assembly. We are a part of that group, never forget!

    But you do forget. You think you know the interests of the non-activists better than they know themselves. You don’t trust them to make their own decisions, and you think that if they try, they will get dominated by activists-the wrong ones, as opposed to the right one: you! (“enough rope to hang themselves”)


  6. And as to arrogant, you belittled our discussion and proclaimed your thought experiment “from the real world”. It’s from your imagination, colored by your prejudices, so its every inch as useless as any of or previous discussions. If you don’t see how this is arrogant, you aren’t very good at observing yourself.


  7. You’ll be relieved to hear that I can’t see anything that merits a reply.


  8. Blimey! What a horrid blogsite! Robespierre and Danton re-born! If I were you, Keith, I would take your thoughtfulness elsewhere.


  9. > What a horrid blogsite!

    Well, it is in the nature of debate that spirits get heated occasionally. Keith himself has not been too much of a stickler for decorum – neither here, in the comments Harald refers to, or in other threads (e.g., here he accuses me of conspiracies).

    More substantially, when one’s politics so clearly assert one’s superiority over others, it is a bit odd to complain when others show impatience with one’s position.


  10. “More substantially, when one’s politics so clearly assert one’s superiority over others”

    Not sure what this means; my only claim was to have spent many years thinking about constitutional issues. This has nothing to do with day-to-day politics, where I think my own judgment is no better or worse than anybody else.



  11. Constitution-making is not a mere matter of competence. It’s quite possible to propose a constitution favoring your own interests and political preferences. One could even do it, and claim that such privileges are in the best interest of everyone concerned. That doesn’t make it any better.

    For instance, property qualifications for voting have been enshrined in many constitutions, on the argument that the poor, having little or no stake in the preservation of the current social order, couldn’t be trusted to defend it.

    The question then was, of course, why should they? Indeed, why shouldn’t they plan revolt and revolution? Either the enfranchised consider the disenfranchised’s interests as inherently illegitimate (redistribution? egalitarianism?), or they think the disenfranchised aren’t capable of understanding their own good – change would hurt them more than they know, like an embargo against China! Either way, the disenfranchised have no reason to give consent to being ruled.

    Maybe the people will want to favor economic and social stability. Maybe they will even want to place formal restrictions on themselves to that effect.

    But the system cannot start out with such bias. If they choose a different way, no “space shuttle designer” of constitutions has any business declaring that illegitimate.


  12. Although a constitutional convention is unlike a regular legislature (where there are only two voting lobbies), nevertheless I’m glad of the opportunity to compare and contrast my proposal with the existing UK procedure for constitutional change (e.g. the Royal Commission for the Reform of the House of Lords [Wakeham commission]).

    In both cases the public are invited to send submissions to the commission website. In my proposal the ranking of the submissions would be down to a public vote, in the Wakeham case the decisions were made by the commission secretariat, and those chosen were invited to act as advocates for their proposals to the commission. Although my proposal is considerably more democratic, Wakeham did include a lot of radical and interesting suggestions, including Anthony Barnett’s proposal for an allotted second chamber. Most serious views on the role of a second chamber benefited from being heard.

    In my suggestion the suggestions that passed the initial public vote would be offered before an allotted assembly who make their final choice on the basis of the deliberations of the assembly; in Wakeham’s case the Great and the Good made their recommendations which were then completely ignored by the government, because there was no democratic mandate. [Similarly with the Hutton enquiry — no-one criticizes the impartiality and publicity of the enquiry per se, the problem was that there was no jury to come to a considered verdict.]

    Let’s now compare my proposal with the Gat/Korneliussen argument for an allotted agenda-setting body. In a random assembly very few people would have thought much in advance on fundamental constitutional issues and those who have would be unlikely to have studied the area in depth over a long period of tim. But there might be a few people who have an agenda, and their proposals would be unduly priviliged. Even if by some fluke there were a member/members who had thought throught the issues in depth, there would be no mechanism of finding out if the public in general assented to the proposal.

    Successful legislation requires a judicious mix of the ballot (in both senses of the word), expertise and advocacy, hence my binary proposal.



  13. > my only claim was to have spent many years thinking about constitutional issues. This has nothing to do with day-to-day politics, where I think my own judgment is no better or worse than anybody else.

    And yet, without any apparent hesitation or reflection, you assume that the policy you prefer in your hypothetical scenario is superior to the policy that you presume average people would prefer (unless you, or people like you, properly guide them).


  14. So what is your response to Socrates and the flute-player/pilot? Given that it is the representatives of the people that will pay the piper and call the tune, why the visceral opposition to expert opinion? (which the assembly is entirely free to ignore). Average people can, and will, make their own mind up and the choice of experts will also have been determined by standard democratic principles. Yet you would have us reject all this by privileging the views of a tiny group of citizens, most of whom would have no particular views on the issue (unless guided by the emergent elite of the allotted assembly). I’m genuinely puzzled as to why Harald and yourself are advocating such an eccentric policy.


  15. > So what is your response to Socrates and the flute-player/pilot?

    So can I take it that you are now acknowledging that you are making an argument based on a supposed superiority of your (and Socrates’s) judgement (in general, not in the particular area of your expertise) over the judgement of the average citizen? Your argument is that while the average citizen will not bother to solicit the advice of experts (unless forced to do so), you and Socrates have the good sense to seek expert advice. Isn’t this so?


  16. You are conflating three separate issues:

    1) Socrates argued that flute-playing and piloting require expertise (resulting from years of effort and study) and I’m arguing the same for the design of political institutions.

    2) The decision on whether or not to include expert advocacy is institutional (part of the design of the deliberative assembly). In my model it is mandatory and grants certain bodies ex officio privileges, in yours its entirely at the whim of the allotted members.

    3) The final judgment is in the hands of the allotted members and is based on complete equality.


  17. The question here is very specific: as you portray things, you know that you should listen to the experts, while the average person does not. Why is that?


  18. I’m sure the average person would want to listen to experts, the question is who should appoint them. My proposal is for a plurality of influences on the allotted assembly (elected advocates and ex officio appointments [elites in your parlance]) whereas you are granting unlimited power to a small group of randomly-selected citizens.



  19. You asserted above that, unless forced to listen to the experts, the allotted chamber will quite possibly act without having first solicited such sage advice. If the average person would want to listen to the experts, how is that a likely possibility?


  20. Not sure what you are referring to, do you mean:

    “Yet you would have us reject all this by privileging the views of a tiny group of citizens, most of whom would have no particular views on the issue (unless guided by the emergent elite of the allotted assembly)”

    This is just the obvious point that most people have no particular view as to the best procedure for constitutional reform, just as most people can’t play the flute or pilot (a ship). Therefore members of an allotted assembly would be likely to follow the view of the tiny number who do have such a view and there would be no way of ensuring balanced advocacy. And this leaves out the much more important issue of why you think everyone else (who was not included) should assent. This is all blindingly obvious and I can’t see why you have a problem with it.


  21. In the scenario in your post, situation 2 (agenda setting allotted chamber) yields a different result from that of situation 3 (allotted chamber with expert debate), according to you, because in situation 2 the members fail to call experts to debate the matter. Why would they fail to call the experts if “the average person would want to listen to the experts”?


  22. It’s getting a little tedious repeating myself but the point at issue is pluralism — not leaving everything (including the choice of experts) to a tiny allotted microcosm. I’m a pluralist, who believes in checks and balances and you consider this position to be that of a “Madisonian reactionary”. That’s really all there is to be said on this particular matter.


  23. What is tedious is your habit of trying to cover obvious contradictions in your positions by using slogans and name dropping. I asked a very simple question, and you are doing your best to avoid it.

    Why, if it is so clear to you that any rational person would seek the advice of experts before deciding on policy, would a chamber of average people refrain from doing so?


  24. I agree that they would consult experts (hence the “including the choice of experts” in my last message), but I’m opposed to everything (including the choice of experts) to be left in the hands of one all-powerful group (the allotted citizens). This is because I’m a pluralist, and believe in checks and balances. (By “the choice of experts” I meant which experts they choose, rather than whether or not to choose experts.) I don’t see how I can possibly answer your question more clearly.


  25. So, they chose the wrong experts, and therefore came to the wrong conclusions, in your example 2. Agree?


  26. There is an inherent danger in leaving everything down to the whim of a small group. Pluralists like me believe in checks and balances and also that there are objective standards of expertise, which are located in an institutional structure. That’s why I’ve gone back to university in my dotage to do a politics PhD. In my prior research and writing I’ve relied on my own choice of correspondents and references, but I am now entrusting that to the judgment of my supervisor. No doubt you would see this as just kow-towing to existing power elites.


  27. You’re an individual. You’re free to kow-tow to whoever you wish, as long as you only do it on your own behalf only.

    But you’re dodging the question. In your example, they chose inferior experts, and so came to the wrong conclusions. Or is there another explanation?


  28. > In your example, they chose inferior experts, and so came to the wrong conclusions. Or is there another explanation?

    And so, a dozen comments later, and despite all the attempts at obfuscation, it is as clear as it was in the beginning, that Keith is making an argument from superiority. It is clear to him that he is more qualified to determine policy than the average person. Whether this is because he has the sense to ask the experts while the average person does not (as was his original position), or because he asks the right experts while the average person asks the wrong experts (as is his current version of his argument) makes little difference.

    As this post makes abundantly clear, the immutable point in Keith’s world view is that those ideas that he prefers are better and should be treated preferentially to the ideas that are preferred by others. The rest is just trappings.


  29. “It is clear to him that he is more qualified to determine policy than the average person.”

    I do believe that I’m well qualified to act as an advocate for my position, but the final determination should be in the hands of the allotted assembly. Returning to my earlier example, the Royal Commission for the Reform of the House of Lords heard an extremely wide variety of reform proposals (including a proposal for an allotted house and other such radical notions) — most of those who appeared before the commission would fit into your “elite” category, but they were all either constitutional experts or people who had thought long and hard about the problem. The problem with the commission wasn’t the elite nature of the advocates it was the determination process — this was left in the hands of the (elite) committee and the government, so nothing happened at all as it lacked a democratic mandate. The same is true of the Hutton Enquiry, the only problem was there was no jury.

    Given that it is the allotted assembly that determines the policy, advocates will need to tailor their proposals to suit (as in Harrington’s example of the two girls dividing the cake — “you choose and I’ll divide, or I’ll choose and you divide”).

    Now I’ve clarified that, I’ll rest my case as we’re in danger of driving any sensible folk away with this rather tedious dialogue.



  30. You have not clarified what I’ve asked. You seized upon another point brought up by Yoram Gat, and once again did not answer directly: Do you think the allotted chamber will tend to choose inferior experts?

    I want a clear answer from you because I don’t want to try to read between the lines any longer. It gives you too much room to say I’ve misunderstood.


  31. > I do believe that I’m well qualified to act as an advocate for my position, but the final determination should be in the hands of the allotted assembly.

    We all (or at least very many of us) feel that we are qualified to advocate for our own position. There are, however, too many of us to all advocate, so some filtering mechanism has to be used. Democratically, the filtering should be handled by the allotted chamber. You, on the other hand, believe that you (or the elites you put your trust in) have the right to dictate who the advocates will be.

    > “you choose and I’ll divide, or I’ll choose and you divide”

    That is exactly it. In your view, the elites should have (at least) an equal say to that of the rest of society, even if the elites are a tiny minority. This may have appealed to the sensibilities of Harrington in the 17th century, but by today’s standards it is absurd. It is really hard to get behind a reform plan that is so outdated.


  32. > I want a clear answer from you because I don’t want to try to read between the lines any longer. It gives you too much room to say I’ve misunderstood.

    It appears, Harald, that you will not get a straight answer to this question, but I think that the point has been well established: Keith is assuming that his political ideas deserve a privileged treatment, for no other reason than that – clearly – they are the views of “sensible men”.


  33. “Do you think the allotted chamber will tend to choose inferior experts?”

    There’s simply no way of knowing, but it isn’t prudent to leave it to pure chance. The reason that I find your and Yoram’s attitude so puzzling is that in every other domain we privilege skill and experience, yet you feel that politics is different, as the only value that you are prepared to consider is numerical equality:

    “In your view, the elites should have (at least) an equal say to that of the rest of society, even if the elites are a tiny minority.”

    The point is not that they should have an “equal say”, it’s that elites should advocate positions and articulate arguments, but the judgment should be down to the allotted chamber. The main argument against Harrington (by people who have taken the trouble to read him) is that his argument is *too* modern and fails to honour the moral principles of classical republicanism — see for example Jonathan Scott, “The Rapture of Motion: James Harrington’s Republicanism,” in Nicholas Phillipson and Quentin Skinner, eds., Political Discourse in Early Modern Britain (Cambridge: Cambridge University Press, 1993), pp. 154–163.


  34. Letting an allotted chamber choose its own experts is not “leaving it to pure chance”.

    Some questions are inherently apolitical: There is a correct answer and a wrong answer. For such questions calling on experts is a good idea. Let’s call them E-questions.

    Other questions are inherently political: Your answers to them depend crucially on who you are/who you represent/who you want to favor – your interests. Here, calling on “experts” is a bad idea, anyone calling themselves experts are likely out to “bake their own cake”, as we say here. Let’s call them I-questions.

    Whether a given question should be treated as an I or E-question, is itself an I-question! Even when the non-expert deciders make the the wrong decision, and call an apolitical question political, and refuse to call on experts. it had to be their choice to make.

    When the representative group (non-experts) make the wrong choice, and take decisions for themselves that they should have delegated to experts, they suffer consequences. They will have regrets. They will try harder not to do it next time.

    When experts make the wrong choice, and take decisions that had been better left to the non-expert but impartial assembly, they profit from it themselves. They will not learn. They will not have any incentive to do the right thing next time – quite the opposite.

    In my eyes, you are an “expert”, trying to turn a question of interests into a question of fact/expedience. You are trying to bake your own cake, whether you realize it or not.


  35. Letting an allotted chamber choose its own experts is leaving it to pure chance in the sense that the lottery principle is based on chance alone. It’s possible that the allotted members will have the knowledge necessary to secure balanced advocacy but not very likely, hence the need to secure this outcome using institutional means (rules).

    “Other questions are inherently political: Your answers to them depend crucially on who you are/who you represent/who you want to favor – your interests. Here, calling on “experts” is a bad idea.”

    Hmm, what you are saying here is that there is no role for expertise in politics (‘calling on “experts” is a bad idea’) as it’s all just a question of interests and opinions. Indeed the use of scare quotes indicates that there is no such thing as expertise in political matters. I think you would struggle to find support for this extreme view, even on this forum.

    As to the E/I distinction, I’m not so sure that this is as solid as you imply, partly because I agree with your own quasi-Darwinian perspective (learning through suffering consequences) and partly because I think Condorcet’s theorem *is* applicable to the political arena (after all this was the prime focus of his work). I’m a little alarmed that you think Darwinian learning is the best we can do for a legislative assembly, much better to get it right the first time (Condorcet’s point). Given the time-scale for learning processes your assembly would require very long membership, at which point it would completely cease to be descriptively representative. By contrast a DP-style assembly has a lifespan similar to any other jury, hence its claim to be descriptively representative.

    Bear in mind also that everyone suffers as the result of bad decisions, not just the tiny few who happen to have been selected. If they got it seriously wrong they might even get lynched by the aggrieved masses!

    “When experts make the wrong choice, and take decisions that had been better left to the non-expert but impartial assembly.”

    In my proposal experts are *denied* judgment (voting rights); all decisions are taken by the non-expert but impartial assembly. I’m surprised that you don’t seem to understand this point, as I’ve laboured it repeatedly.

    All experts will seek to feather their own nest (Harrington anticipated Hume’s scepticism over impartial rationality, arguing that elites were simply better at articulating their own interests than anybody else), hence the need for *balanced* advocacy. This is also true for the allotted assembly, hence the need for a minimum size — “extend the sphere, and you take in a greater variety of parties and interests” (Federalist, 10,¶20).


  36. > There’s simply no way of knowing […]

    As happens so frequently, you are again revisioning your own story. In your original post you claimed that you are able to predict what the allotted chamber would decide. (And that it is obvious that that decision would be inferior to what would be your own decision.)

    > […] but it isn’t prudent to leave it to pure chance.

    Of course – it is much more “prudent” to let educated, reasonable people (such as your humble self) to make those important decisions.


  37. > The reason that I find your and Yoram’s attitude so puzzling is that in every other domain we privilege skill and experience

    Can it really be the case that you do not understand this very simple point despite it having been explained over and over?

    The question is not whether to rely on skill and experience, but on whose skill and experience to rely. The democratic way is to let the representative body decide that question, while you want to let people like you – whom you so implicitly consider as having superior judgement – determine who the “experts” are.

    This, by the way, is also Socrates’s fallacy. In the analogy to the pilot or the flutist, it is assumed that everybody acknowledges their superior abilities. If that is the case, then it is obvious that their advice should be followed – and therefore their advice would be followed whether or not they are formally put in a privileged position. The audience of the flutist chose to attend her concert – they weren’t forced to do so. The captain of the ship chose her pilot – she didn’t have someone else dictate a “balanced set of piloting advocates” to her.

    The only reason Socrates (and you) want to put your “experts” in a privileged position is that unless your “experts” are in this privileged position, people would often choose to listen to other voices, voices that have as much a claim to being “experts” as do your preferred “experts”.


  38. There are two problems with leaving the choice of experts to the allotted assembly:

    1) How would they know who the experts were in any particular case? Of course you don’t really care, as your repeated use of scare quotes shows you don’t really believe in expertise. I assume therefore that you agree with Harald that there are no matters of fact in political decision making, only interests and opinions.

    2) Given the likelihood of the agenda being set by a small number of members with strong views (although you deny this), why would they want balanced advocacy? If you believe strongly in something, the last thing you want is a convincing argument against your position. Granted that Juvenal’s quis custodiet problem is infinitely regressive, at least with my proposal the choice of experts is in the public domain and according to agreed principles, rather than being left (in effect) to pure chance. Ruling out Plato’s solution, all we are left with is the separation of powers. Your faith in the ability of the assembly to police itself is touching but self-regulation in political matters has a distinctly patchy record.


  39. > How would they know who the experts were in any particular case?

    How, indeed? By relying on people like you to tell them? You would be the “expert on experts”?


  40. You’re taking statements out of context. I feel like I’m having an argument with a lawyer, rather than someone trying to cooperate in finding the truth.

    I stated that there are some questions whose answer depends crucially on your interests and values, rather than on knowledge. Someone claiming to be an expert on such an issue, really claims that his interests and values are inherently superior. That’s why he’s an “expert” in scare quotes only. You should be scared of such experts.

    I call these questions political questions.

    But nowhere did I say all questions are purely political. Sometimes, our interests and values are aligned, and our course of action depends only on the facts.

    When that is the case, I call it a factual question.

    The question of which issues are political, is itself a political question.

    If we agree on the “why’s”, we can leave the “how’s” to the experts. But whether we agree sufficiently on the “why’s” to leave the decision to experts, is not a decision we can leave to experts.


  41. Analytically, and in practice, it’s hard to draw a distinction between knowledge and interests/opinion, that’s why I’m not prepared to leave *any* decision to experts. My doctor can explain the symptoms and recommend the treatment; ditto with the garage that fixes my car, but ultimately it’s *my* decision whether to go ahead. I might even choose to go for a second opinion and then weigh up (deliberate) the outcome.

    In public affairs this is the role of the deliberative assembly, which all of us agree should be appointed by random selection. But you still need expert input to enable rational judgment. Whilst no doubt there might be something in the claims of practitioners of voodoo medicine or someone who wants to fix my car by bending spoons, we would normally privilege membership of the Royal College of Medicine or the Association of Motor Manufacturers. There are accepted public methods of accrediting experts and it doesn’t help to call them “experts” as this implies that the spoon bender is equally an “expert”. So let’s ban scare quotes from this debate.

    In a court of law experts are confined to a witness or advocacy role, all decisions being in the hands of the jury. If that works for the law courts then why not the High Court of Parliament?


  42. I’m all for experts as advisors. But not privileged advisors: We both agree that accredited doctors are better than voodoo doctors, but by what authority do we (you and I) decide? Even if we sit down and agree that we are more qualified to decide this than the public, they won’t necessarily accept our judgment.

    There can be no short cuts in educating the public. If you want to avoid the “darwinian tooth and claw” that you complain about, you need to go out and educate the people about which experts can be trusted – not rely on institutional privilege.

    There are accepted public methods of accrediting experts.

    Accepted by whom? Not the public. The prevalence of spoon-bending in (alternative) medicine is proof enough of that. And not the media: I’m sure we between us could list more than a few phony experts on political, economic and statistical matters often consulted by them.

    If anyone could be “experts on experts” today it should be the media, but their results are not inspiring.


  43. “you need to go out and educate the people about which experts can be trusted”

    I wouldn’t presume — that would be privileging my own choice and judgment.

    “The default state is that everything is public, and all your business is my business.”

    I’m glad you have made that clear, as that means both Yoram and yourself share a similar perspective on economic prehistory (normally described as primitive communism). Or are you just arguing a normative case? Anyway, thank you both for putting your cards on the table for all to see. That means that all of us who are labouring to reform and improve the liberal democratic perspective can safely ignore you both!


  44. No, I don’t make any statements about history. I’m arguing a normative case, yes: If you meet someone, and you have absolutely no prior relationship to them (including through other people), you can have no a-priori expectations of privacy, property or non-interference from them.

    (You are still obliged to treat them as you want to be treated, so this doesn’t excuse the Pizarros of the world.)

    I wouldn’t presume — that would be privileging my own choice and judgment.

    You don’t seem to worried about that in your constitution-writing attempts. The privilege of your public communication skills are nothing to the privilege of setting up a constitution tilted to the interests and values you feel are most important.


  45. Once again you are failing to observe the distinction betwen advocacy and judgment.


  46. P.S. — and as for the relationship with strangers, yes I do have an a-priori expectation that they will not interfere with my privacy or property (and vice versa). That’s what we call civilization and the rule of law. Do you wish us to return to the state of nature?


  47. We are in the state of nature, now as always. Civilization and rule of law happens after we meet (and recognize mutual obligations), not before.


  48. For the source of the following see

    Selection of members of legislative bodies not elected by population

    Members of the United States Senate, and houses of state legislatures whose members represent political subdivisions not based on population, shall be selected by a multi-stage nominating process that first randomly selects precinct panels of twenty-four, who then elect a person from each precinct, from among whom are randomly selected twenty-four persons for the next higher jurisdiction or district, and thus by alternating random selection and election to the next level, when they reach the top level, the number of randomly selected candidates shall be five, who shall be the nominees on the ballot for the final election by general voters, except that general voters may write-in other persons. Voters may vote for more than one nominee, using the method of approval voting. There must also be an alternative of “none of the above”. The nominee receiving the most votes shall be declared elected, unless “none of the above” wins, in which case the position shall remain vacant.


  49. For the source of the following see

    Selecting electors for president and vice-president

    The electors for president and vice-president shall be selected in each state by the following procedure:

    1. An initial panel of citizens qualified to vote in that state equal to one hundred times the number of electors to be selected from that state shall be selected at random, in a process that shall be supervised by a randomly-selected grand jury specially empaneled for that task;
    2. Members of this initial panel shall take an examination in which each shall recite from memory 20 randomly selected clauses of this Constitution, and shall receive a score of one for each clause he or she is able to recite without error;
    3. A second panel shall be selected from the first, consisting of ten times the number of electors to be selected, with the odds of selecting each weighted by the score he or she received in the examination, and with exclusion of any who scored zero;
    4. Members of the second panel shall meet, and each shall rank all the others in descending order of civic virtue, giving a score indicating the rank consisting of the number of panelists for the highest down to one for the lowest;
    5. The electors shall then be selected from this second panel at random, but weighted by his or her average rank from the previous round of peer assessments.


  50. I’m inclined to think that this complicated mixture of election and sortition (as in medieval Florence and Venice and also Harrington’s Oceana) fails to respect the distinct properties of these two forms of balloting. Leaving aside the negative function of sortition (undermining factionalism and corruption) the positive function is accurate descriptive representativity which is essential from a democratic perspective. As soon as you elect, the principal of distinction applies, and the resulting body will no longer be representative. Cognitive diversity (an essential element of reliable decision-making) is also undermined by election.

    But these are aggregate functions and only apply to group behaviours such as voting. Policy proposal and advocacy are individual speech acts and better suited to the electoral process. So I would prefer to keep election and sortition entirely distinct (other than wrt the limited negative function of undermining factionalism and corruption).


  51. What you are proposing seems very far from being a representative government. I don’t see the ability to recite sections of the constitution as being an indication of merit. Also, how would the panelists be able to evaluate the civic virtue of others? These are people they just met. Finally, what’s the purpose of eventually handing off power to professional politicians? This is exactly the problem with the current system.


  52. Representivity and democracy are means to an end, not ends in themselves. The utility which any system of governance should seek to maximize might be stated as follows:

    The greatest good for the greatest number, that does not unduly risk the survival or interests of future generations beyond the third, and that does not unduly burden the rights of individuals or minorities.

    The first part of that is classic Benthamian utilitarianism. It is modified with the principal design aims of the U.S. Constitution — protecting rights, not just the rights of those now living,but also the rights of posterity. It is also a “good” that weighs liberty and virtue more highly than security or material prosperity.

    The critical design problem is to prevent public action without the consent of a majority, but also prevent the majority from tyrannizing individuals or any minority. Representivity is important for the first part, but will generally need to be checked by nonrepresentative mechanisms for the second part. One way to do that is to balance representivity with what we might call deliberativity, which is achieved by having a manageably small number, perhaps 12-15, of representative individuals meet together, given a specific problem to solve, kept free from distraction, given all the information they need, and not allowed to emerge until they have agreed on a solution. Sortition can be a good way to narrow the size of the body while maintaining rough representivity, but the people will and should want the ultimate body to have better than average knowledge and skill, as well as be without prejudice or undue outside influence. Avoiding prejudice is usually achieved with some kind of screening process like voir dire for juries, and avoiding undue influence by sequestering the body from outsiders, perhaps keeping them anonymous, and having them serve for only a short period of time.

    The interests of posterity can be understood in terms of the discount rate for assessing the importance of future good for those in the present. If we have a graph with “good” as the Y-axis and time measured in units of generations, and define “interest” as the area under the curve, then the curve falls exponentially from an initial value of 1 at the discount rate. For a discount rate of about 18% the area under the curve for generations > 3 will exceed that for the present and next two generations. So the above utility specification is equivalent to requiring the discount rate to be <18%. This medium does not support presenting the math.

    To answer your questions, requiring people to memorize the Constitution it a minimal test of willingness to perform the duties of the office and of mental discipline and aptitude, that can be tested objectively. Alternating random selection with election and other tests for merit, if done right, will not be likely to finally result in selection of professional politicians in the sense of those who are ambitious to hold office or are backed by large numbers of supporters who expect a return on their investment in him, which tends to select for sociopaths and narcissists.

    Generally, we want decisions to be made by the wisest among us who don't want the job too much, and who will listen and give due regard to the interests of all stakeholders.


  53. That’s very well put and I hope that the principles you outline would attract broad agreement. The trouble is how to put it into practice in such a way that the citizens chosen to deliberate and the decisions that they come to will be acceptable to the whole population. This is a serious challenge and I’m sceptical that your proposals would find the necessary support (especially if they can be dismissed as the views of right-wing constitutional fundamentalists). The key problem is the concentration of decision power in the hands of a tiny number of citizens.

    One of the reasons that I’m disposed to separate advocacy and judgment (and election and sortition as the corresponding mechanisms) is that it’s easier to construct a clear justificatory narrative as it involves consulting the view of ALL citizens (but determined in two different ways). This would pass muster as democracy, whereas your proposal wouldn’t and I think that’s a problem that would be hard to overcome, whatever the epistemic merits of the decision process. It’s Plato’s guardians, but picked in a different way.


  54. Jon,

    You give a widely held view from Plato and beyond that “we want decisions to be made by the wisest among us…” I argue that this is a nonsensical desire, as there are no such people. there is mounting evidence that optimal problem solving and decision making in most areas (outside purely technical questions) benefit from diversity of cognitive styles more than expertise. The research by Scott Page and his proven “Diversity Trumps Ability Theorem” are instructive. A diverse group will almost always out-perform a homogeneous group of experts, except on purely technical issues. Others like Philip Tetlock have shown that most political “experts” are essentially no better at predicting future political outcomes than chimpanzees throwing darts.

    I would argue that there is no such thing as an expert in making political decisions. The “wise” sought by Plato, Madison, and you are imaginary when it comes to deciding for a society “what is to be done.”

    This is one of the huge benefits of sortition. In addition to enhancing representativeness, it can also enhance diversity (which your plan undercuts), both of which are desirable for public decision making.


  55. Jon,

    I agree that democracy is a means to an end – “greatest good for the greatest number” – but it is also a way to define the end itself. If not the people themselves, who is to tell what counts as “good”?

    As for rule of the wisest, I think we can all agree on that, but the point is that we would disagree on who is wise. The allotted representatives can, should, and probably will seek the advice of those whom they consider as wise. Therefore, any attempts to filter the sortition pool are merely attempts to manipulate the selection of the “wise” so that they agree with the ideas of some, and disagree with the ideas of others.

    (In my mind, by the way, the willingness to memorize texts by heart is more of an indication of single mindedness than an indication of mental discipline and aptitude – not an attitude I would consider desirable in a decision maker.)


  56. Agree with Yoram; however wisdom (in this context) is an indication of sound judgment. This still requires balanced information, without which the judgment is likely to be partially-informed prejudice (sic). There is no particular reason to believe that a randomly-selected group would choose to inform itself in a balanced way, as allotted members would most likely turn to the sources suggested by the newspapers that they happen to read (or, worse still, follow the lead of high-status members of the assembly who appear to know something about the issue in hand). In this country (the UK) that would suggest that the information provided would be anything other than balanced. The alternative approach (adopted by organisations that strive to be impartial, like the BBC and the designers of Deliberative Polls) is to seek opposing viewpoints. This makes for a bit of a Punch and Judy show, but the dialectic approach has more hope of producing balanced information than leaving it to random happenstance. Citizens need to be challenged by exposure to opposing viewpoints, rather than just seeking the advice of those they consider wise.


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