Over the last two decades a number of books and journal articles have advocated the integration of sortition into constitutional practice (as opposed to the purely advisory role of Deliberative Polling and citizen juries on electoral reform). With the noted exception of Callenbach and Phillips’ Citizen Legislature all of the proposals have been subject to powerful criticisms by Yoram Gat, the moderator of this blog. Gat has been remarkably consistent in his criticisms, his prime objection being that the proposals are insufficiently radical as, by retaining a statutory role for the plural institutions of liberal democracy, they fail to adhere in full to the principles of Athenian-style sortive democracy – i.e. equality by lot.
What Gat has failed to do to date, however, is to provide us with a detailed and comprehensive constitutional programme of his own, nor pointed us towards any material that he has published elsewhere, so as a result his own proposals have not been subject to comparable scrutiny. Having corresponded with him at considerable length – offline as well as on this blog – he has been admirably consistent with his views, making it possible to reconstruct such a model from our exchanges alone, and I have been alarmed at how illiberal the model has turned out to be. If the man that I construct in this post turns out to be only made of straw, then I apologise in advance and look forward to Yoram’s corrections in the commentary section, but I’m entirely confident that his personal commitment to equality will ensure that he will not seek to exercise his moderator powers by suppressing this post.
Gat’s argument is gratifyingly easy to understand – in order to ensure absolute political equality (he claims to be less concerned about economic inequality) and the end of domination of politics by a single powerful elite, a sovereign and all-powerful allotted chamber (AC) must be created. There would be a minimum age requirement but the equality principle would rule out any other restriction on the franchise. There is no specification as to what the size of the AC should be but, to ensure accurate descriptive representation, it would have to number several hundred. This immediately presents a problem, for it is intended to be a deliberative chamber, the maximum size for effective deliberation is reckoned to be between twelve and twenty-four and then only with skilled moderation (Coote and Lenaghan, 1997). This limit would not apply to an assembly that merely listened and voted (as in Rousseau’s general assembly or Deliberative Polling plenary sessions), but the sort of assembly that Gat has in mind would organise its own legislative agenda and debates without any statutory preconditions or external input. The likelihood that the proceedings would be dominated by a vocal minority should not be discounted in the absence of any institutional design to prevent such an occurrence.
Given Gat’s endorsement of Callenbach and Philips, it is presumed that initially the AC would replace the House of Representatives but would run alongside the Senate and the elected president. However this is purely for pragmatic (gradualist or experimental) reasons and does not imply an endorsement of the elective, aristocratic and meritocratic principles that these other institutions (claim to) embody. Gat’s rejection of electoral democracy is absolute and the word “skill” always appears in scare quotes whenever the appointment of competent government officials is discussed. He is adamant that all appointments must be made by lot, and this includes the judiciary. Just to avoid any confusion, the franchise for judicial and executive appointments is exactly the same as for the AC – all political and judicial appointments will be by lot, although even the Athenians reserved elections for certain magistracies involving specialist skills and the complexity of modern governance and jurisprudence dramatically outstrips that of the Athenian democracies.
Gat’s ultimate goal is that the AC should be all-powerful, without any of the constraints that are characteristic of the plural institutions of liberal democracy. The AC will not be constrained by the doctrine of the separation of powers, the older (republican) notion of a mixed constitution or a natural right notion of freedom under the law – this is because, according to Gat’s positivistic notion of unconstrained law-making, the sovereign body (the AC) could simply change the law according to its collective will. Indeed Gat recently claimed that the AC might even choose to abolish democracy and this would indeed be an entirely legal right. The AC might then decide to place all power in the hands of a single charismatic individual and this would be perfectly legal, just so long as the decision was arrived at by majority voting in the AC. Whether or not the sovereign body decided to follow such a course, it could also decide to pursue a policy of discriminating against an ethnic minority and might even decide to take this policy in the direction of a Final Solution and it would all be perfectly legal (and not subject to any external constraints).
I would not wish to suggest for one moment that such an outcome is likely to happen, but the issue is that it is possible and perfectly legal. However the plural constraints of liberal democracy are designed to make such an outcome impossible – as the much-derided Madison put it “If men were angels, no government would be necessary”. Or take Joseph Schumpeter’s endorsement of liberalism:
Let us transport ourselves into a hypothetical country that, in a democratic way, practices the persecution of Christians, the burning of witches, and the slaughtering of Jews. We should certainly not approve of those practices on the ground that they have been decided on according to the rules of democratic procedure . . . . There are ultimate ideals and interests which the most ardent democrat will put above democracy (Schumpeter, 1942, p.242)
Although Schumpeter was writing about (unchecked) elective democracy, the same principle applies to (unchecked) sortive democracy. Gat, however is adamant that checks, balances and all the other paraphernalia of liberalism are merely a way for the elite to continue to suppress the interests of the masses and must be totally done away with.
Unconstrained democracy (either elective or sortive) has the potential to be extremely illiberal. Although the final solution scenario outlined above is no longer likely in a civilized society, although perfectly possible (and Germany was one of the most civilized societies in eighteenth- and nineteenth-century Europe), one can imagine many other less melodramatic examples of the tyranny of the majority. Although his prime concern is political equality Gat has indicated a personal preference for absolute equality of income (without any mention of Rawlsian limits or other liberal constraints), and has recently argued against any formal constraints to ensure that the sovereign AC be obliged to take into account the interests of unborn generations. Thus if the AC decided to continue existing government policies of burdening future generations with intolerable levels of debt and the rape and pillage of the environment that would be perfectly constitutional. Although Gat cites public opinion surveys that indicate that ordinary folk are considerably more enlightened than the existing elite on environmental and financial matters, we would be ill-advised to rely on such benevolence on an ongoing basis. The goal of constitutional design is to provide institutional protection against worst-case scenarios rather than to simply assume the best.
In summary, why should the fate of a large nation numbering many millions or hundreds of millions (thousands of millions if future generations are included) be decided by a few hundred people selected, in Socrates’ phrase, “by bean”? If this is true democracy then perhaps Churchill was right all along and we’re better off sticking with the existing “least-worst” arrangements. We can at least kick the rascals out every now and then, whereas the decision of a sovereign AC to abolish democracy is irrevocable (without the spilling of much blood).
I await with interest Yoram’s response to my genuine attempt to flesh out the dystopian potential of his arguments.
Anna Coote and Jo Lenaghan (1997), Citizens Juries: Theory into Pratice (London: IPPR).
Joseph Schumpeter, Capitalism, Socialism and Democracy (NY: Harper and Row).
Filed under: Sortition |