Equality by Lot

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.

References

Anna Coote and Jo Lenaghan (1997), Citizens Juries: Theory into Pratice (London: IPPR).

Joseph Schumpeter, Capitalism, Socialism and Democracy (NY: Harper and Row).

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36 Responses

  1. So, free-market anarchism with a deliberative function based on sortition? Which begs the question, what’s the point of the deliberative function?

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  2. Dear all

    Here are some thoughts on why a mixed system seems a priori more advisable in the current situation:

    – first for tactics: any inclusion of sortition-based mechanisms in our current western political systems will need to be adaptive, as disruptive changes seem quite unlikely.

    – second, for prudence: as we say in Spanish “it’s better to do experiments with sparkling water” – i.e. it’s better to make changes gradually as a trial and error process. Today’s citizens have been educated in a system which promotes a private-consumer attitude to politics, hence, a transition to politically fit citizens will need some time which only comes with experience and practice.

    – third, more fundamentally, I believe in the wisdom of mixed systems and balance of power among different branches of government. This is usually a good antidote against absolute power and fatal decisions as those mentioned in the post. Remember that Athens was not at all a system based only on one source of power, and instead a political framework with sophisticated checks and balances between actice citizenship, assembly, sortition-based institutions and elected magistracies.

    By the way: my impression (from the literature on sortition that I know) is that a thorough analysis of positive and negative incentives for a good functioning of allotted chambers is still in its infancy. It would be naive to think in terms of the purported good-natured man or woman as the only basis of this system. The existing men and women have to be taken as a starting point, with their virtues and vices. Only proposals which duly ellicit the appropriate incentive structure for the correct functioning of such chambers based on the predictable behaviour of their members will be taken seriously…

    Jorge

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  3. Hello Martin, good to hear from you again

    “The point of the deliberative function” is to deliberate and then to determine the outcome via the casting of votes. Where do you get the free-market anarchism from?

    Jorge: I agree with 99% of what you say, but I’m not sure about the checks and balances in Athenian society, otherwise would Socrates have been executed? The pressure to homonoia (same-mindedness) in Athens was overwhelming and this is one reason why I argue against pure democracy. Although Aristotle is the original source for the doctrine of mixed government, Polybius is stronger on checks and balances, hence the distaste for pure Athenian democracy throughout the renaissance of republicanism. But I agree that if there’s one thing that we need to learn from history it’s the folly of the search for a single organising principle in politics and the danger of basing this on optimisitic assumptions regarding human nature.

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  4. Hi Keith
    I’m no scholar on Athenian democracy, but I think that from Mogen Hansen and Bleicken’s work one can infer how sophisticated the political system was.
    There have been many interpretations on what went wrong in Socrates’ case (or the one on the Arginusai disaster) or why today we think that something went wrong (some argue that Socrates was partly guilty because of his rigidness and others say that the climate in Athens was specially upset at that time with regard to the spiritual father of many of the oligarchs…) –

    In any case, these cases (in more than 160 years of democratic system) are possibly exceptional cases in exceptional times where the checks and balances did not work properly for some or other reason (for instance, as Hansen discusses in length some of the checks and balances were further developed in the fourth century BC).

    But I don’t want to discuss whether that system was perfect or not (surely it was not) but just to stress the indisputable fact that the institutional framework in Athens was very sophisticated and built on different legitimating principles (the voluntaristic part of “ho boulemos”, the democratic assembly, the egalitarian magistracies, the charismatic general-leaders, etc) – hence, I see there a lesson for today, both for not continuing with a system controlled by professional politicians only as well as against a proposal which would endow one single allotted chamber with all powers…
    jorge

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  5. Good to be back, Keith. I’m almost recovered.

    I was suggesting a precis of your description of what Yoram appears to be advocating, not what I think you might be advocating. I, too, would like to see Yoram describe what he actually is advocating. Sniping from cover is easy.

    I reckon it’s possible to design a single organising system but that checks and balance are absolutely necessary to overcome what Hobbes’ posited as the ‘state of nature’ in Leviathan. However, I don’t believe permanent overseeing elites are necessary in such a system.

    In referencing the organisation of Athenian democracy and its relative sophistication, I think it’s important to remember that everyone could walk to the assembly.

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  6. Should the ministry of education be run by a committee of ordinary parents, or a group of “parents” who all went to public school and a few select Universities.

    Would a committee of ordinary parents, focus on the concerns of ordinary parents? Would the fact that ordinary people end up running the education system mean that teachers have far more incentive to ensure that each an every person they teach reaches a standard that means they could be part of the committee that runs the education department?

    I think in this case there is absolutely no doubt that education run by and for parents would dramatically improve the general standard and largely remove the “educational fads” which so harm teaching.

    On the other hand, I’d have to be persuaded that a department of industry, wouldn’t result in severe economic damage (at least until everyone were sufficiently well educated in economics to understand what their actions meant).

    Also, I don’t personally want to see the removal of MPs. I think ordinary people benefit from having specialist advocates and so constituency MPs are a vital part of parliament.

    However, why not have the upper house selected by a panel of ordinary people? This is such a simple and straightforward solution to “making the present house more democratic” without making it a political horse fair, that I really can’t see why more people haven’t pushed for it.

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  7. Jorge: Most grateful to you for explaining the diversity underpinning Athenian governance. My emphasis on homonoia (same-mindedness) has more to do with the Athenian abhorrence for factionalism, which is compatible with the diversity of legitimating principles that you point out.

    Martin: I’m not sure if Yoram would describe himself as a free-market Anarchist, and Hobbes is probably not the ideal source for checks and balances as his work was a development of Bodin’s philosophy of indivisible sovereignty. Hobbes might have liked Yoram’s all-powerful AC, especially if it votes to abolish itself! I agree that the last thing we want is permanent overseeing elites, in my book it’s the other way round — the AC is overseeing the meritocracy (appointed ministers) and deciding whether to accept or reject the policies of the political elite in the deliberative chamber. But the important point is, as you point out, that the Athenians could all walk to the assembly; the problem is how to extrapolate Athenian principles to large-scale modern states.

    Scottishsceptic: I agree that ordinary parents would be much better than an elite group of “parents”, but there is a danger here of conflating policymaking, scrutiny and administration. At the moment we expect the breed of superheroes that win elections to combine all three functions. Would it not be better for the AC (“ordinary parents”) to decide whether a legislative proposal is an education fad or a genuine improvement (policymaking)? Education ministers could then be appointed on merit alone to implement the policies (administration), under the scrutiny of a (standing) education committee, composed again of ordinary parents (oversight). And there’s no reason why such a model would not work for industry or any other ministry, so long as there was proper separation of the executive, policymaking and oversight functions. The structural tensions between the three would help compensate for the end of factional yah-boo politics.

    If you look closely at the advocacy and remonstrating role of existing constituency MPs, very often they are interfering with the work that should be done by local councils (housing, benefits etc). The removal of constituency MPs would lead to a much-needed revival of local politics. And when MPs take up a “local” cause at national level, this is often in response to media pressure. I do think the constituency MP is something of an anachronism in an age of instant electronic communication, which would enable advocacy at a distance.

    Anthony Barnett and Peter Carty’s book The Athenian Option does argue for an upper house appointed by sortition. To my mind though the upper house should be a chamber of expert advocacy (the current House of Lords already approximates this). The lower (popular) house seems like a more suitable place for sortition. In fact the advocacy function of local MPs would be better served by a chamber of specialist advocates — very often MPs do little more than act as intermediates by writing to the relevant ministry, having no independent powers of their own.

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  8. I’m broadly sympathetic with Yoram Gat. At least he’s talking about something that it makes sense to call ‘democracy’, rather than conflating that term with liberalism.
    On liberal ‘checks and balances’: is the practical argument that it’s simply easier [a] to educate or acculturate a citizen body so that they blindly venerate centuries-old institutional practices that have the indirect side-effect of occasionally preserving liberal values, than it is [b] to educate or acculturate a citizen body directly into liberal values themselves? That might be plausible, but I’d have to withold judgment pending more evidence; if that’s not the argument, I don’t see where Gat’s vulnerable to the liberal critique.
    On Socrates and Arginusae: isn’t there a danger, as Jorge implies, of castigating the good in the name of the perfect? Athens did seem to nourish a culture that was liberal in some respects, so why can’t other societies do the same or even better alongside ‘unchecked’ Athenian institutions?
    On ‘checks and balances’ again: the problem is that they’re both of two things, [a] opportunities for elite domination and [b] restrictions on bad policy-making. An egalitarian or democrat should want to castrate [a] as far as possible without also castrating [b]. Tom Paine once proposed that a unicameral assembly ought to be randomly segmented into two or three parts before each major piece of legislation, with the requirement that some time elapse between each part’s voting on the measure. That seems to capture the spirit of [b] without letting [a] run amok.

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  9. Jason: My argument has consistently been for mixed government in preference to democracy, so no conflation is involved. Yoram, however, has consistently argued for sortive democracy but has acknowledged that this would permit all manner of majoritarian decisions that would have been constrained by the plural institutions of a liberal constitution. As to whether majoritarian abuse could equally well be countered by education and acculturation is an open question, but the precautionary principle might make us hesitate to put it to the test. Rhetorical questions such as “why can’t other societies do the same or better?” are difficult to answer, but prudent policymakers might prefer to to start with actual societies and cultures, rather than hypothetical possibilities. No doubt the crooked timbers of humanity can, in principle, be straightened out, but history is full of the calamitous results of assuming that they will straighten themselves, once freed from the burden of “centuries-old institutional practices”.

    I’m sympathetic to Tom Paine’s proposal, which was very similar to Condorcet’s argument for time lapses during the legislative process (Nadia Urbanati’s book is very good on this). But as an advocate of mixed government (rather than a democrat) I’m unsympathetic to any single principle as the sole determinant — be that election, sortition, appointment on merit or heredity. We’ve discussed Harrington’s cybernetic model before in our earlier email exchange and, IMHO, so long as the final decision is in the hands of the popular chamber, then the elite is obliged to formulate policy proposals that are in the interests of the popular chamber. So democracy wins in the end.

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  10. Some system of checks and balances could certainly exist within a sortition democracy. Having duplicative bodies tackle the same issue, or building in a time lag are two examples. I agree that it is best to separate powers in some way…I refer you to what I call the “cookie principle.” When kids must share a cookie, the kid who breaks it into pieces is not the same one who decides which kid gets which piece.
    Alternatively, having some super-majority requirement for certain kinds of measures, or a slow-to-amend constitution, as in the U.S. is a possibility.

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  11. Terry: “I refer you to what I call the “cookie principle.” When kids must share a cookie, the kid who breaks it into pieces is not the same one who decides which kid gets which piece.”

    That’s the analogy Harrington uses in his Commonwealth of Oceana (although his example is cake, as they didn’t have cookies in the seventeenth century). The only difference is that in Harrington’s model the kid who breaks the cookie and the kid who chooses are selected by different methods. This is because Harrington argued that members of the upper house — an “aristocracy of merit” (high social mobility was a prerequisite) was better equipped to argue interests than members of the lower house. But Harrington was adamant that the final power of decision was exclusively in the hands of the lower house. However the upper house was effectively constrained to propose measures that would appeal to the lower house, hence my reference to Harrington’s cybernetic constitution. My proposal is very similar to Harrington’s, the only difference being that the upper “advocate” house is elected and the lower house appointed by sortition.

    The cookie principle implies a distinction between the active and judgment aspects of the representative function, which are conflated in most political systems (see Madison’s analysis in Federalist 10). Hannah Pitkin argues in The Concept of Representation that descriptive representation [as realized by sortition] is only suitable for the judgment function, active representation requires election, so the cookie principle is best realized by two houses constituted by two distinct principles (election and sortition), rather than simply subdividing the AC.

    If the latter policy is adapted then it doesn’t constitute a check/balance as the same population is being sampled in the same manner in both cases. So if the policy being proposed is to persecute a minority community, then there is a high probability that both houses will react in the same way.

    This is also reasonably likely when two democratic principles (election and sortition) are also applied as it is the same population that is being consulted in two different ways. Hence the need for additional constraints — an independent judiciary, independent “defence” advocates, appointed executive and (preferably) hereditary head of state. It’s impossible to check democracy with democracy, the only effective solution is a mixed constitution incorporating the liberal principle of inalianable natural right.

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  12. “There would be a minimum age requirement but the equality principle would rule out any other restriction on the franchise.”

    Why should there be no restriction at all? 1) All political and related administrative offices, and also the ability to influence or participate in political decision-making, shall be free of any formal or de facto disqualifications due to non-ownership of non-possessive property or, more generally, of wealth. The Chartists called similarly for “no property qualification for members of Parliament – thus enabling the constituencies to return the man of their choice, be he rich or poor.” While the struggle against formal property qualifications was most progressive, even freely elected legislatures are almost devoid of the working poor, especially those who are women. Moreover, this is in stark contrast to disparities in typical campaign financing and in access to lobby groups. Unlike the Chartist demand, by no means does this demand in the grammatically double negative (“disqualifications” and “non-ownership”) preclude the very illiberal disenfranchisement of the bourgeoisie – and other owners of the aforementioned types of property – as one of the possible measures of worker-class rule. In fact, the original Soviet constitution deprived voting rights from the bourgeoisie and others even on more functional criteria such as hiring labour for personal profit.

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  13. Hi Keith,

    Much as I am flattered by having this post phrased as a response to my positions, I think this formulation is unfortunate since is conflates substantive issues with the matter of how well (or poorly) you represent my opinions. I don’t have a particular reason to doubt that you are presenting my opinions as you understand them, but I do find your presentation rather inaccurate, and simply false at times, so I have to try and set the record about my views straight before addressing any substance in your comments.

    Before I address any such issues, I will again point out that your claim that I am a moderator of this blog is misleading. Most of my activity on this blog is unprivileged – I post articles and comments, just as anyone else, including you of course, could do, and just like quite a few, including you of course, do. The few privileged activities I do carry out are mechanical editorial functions that allow essentially no discretion (deleting spam, or clearing comments mis-classified as spam, formatting posts or adding keywords, etc.). I exercise no influence over the content of the blog through those editorial functions.

    Regarding my positions:

    1. While I reject popular elections as a democratic tool, I never said that “all appointments must be made by lot”. An empowered allotted chamber can (and inevitably will) make quite a few skill-based appointments to handle various matters. (We have in the past discussed these matters, so I am not sure why you chose to put things in the misleading way you did.) The reason I use quotes (“skill”) is that skill is in the eyes of the beholder. When the AC makes skill-based appointments, the skill is in the eyes of the AC.

    2. I also never said anything about a single all-powerful chamber. In fact, that is clearly an impossibility since a single chamber cannot handle all political decisions – there are simply too many of them. The question of whether the legislature should be unicameral or bicameral is in my opinion a relatively minor issue that has little point of being decided upon at this stage. Other arrangements partitioning government powers between various allotted chambers can also be imagined. (I do think that political power should not be spread too thin, since then the various ills of mass-politics kick in.)

    3. Your description of my analysis of the a situation in which it is the considered and informed opinion of the people that an anti-democratic step (such as, say, transferring power to an elected body) should be taken not only bears no resemblance to my view, it simply is incoherent. I know that you cannot be bothered to look up citations, but I am not above such trivialities, so those interested can have a look here: February 18, 2011 at 6:08 am.

    Now, substantively: Your argument is a standard issue appeal to the old and worn out canard of the “checked democracy”. Robert Dahl has dispatched this kind of argument decades ago, first in 1956 (Preface to Democratic Theory) and again in 1989 (Democracy and Its Critics). I would be very surprised if others have not preceded him by centuries. The canard can be decomposed into two claims, both false. The first is that a certain elite (“the guardians”) is inherently virtuous and can be trusted to take care of certain core values. The second is that the guardianist system that results from granting such an elite ultimate decision powers can still be described as a democracy (albeit a “checked democracy”). The second argument is transparently false and doesn’t need refutation. The first argument is an anti-democratic argument, that could theoretically be true, but which defies common sense and which has been historically disproved over and over again.

    The only reason the whole “checked” democracy canard still has any legs is that it is so convenient to elites. If anyone still feels it has any value, I suggest turning to Dahl 1989, specifically pp. 188-191.

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  14. Jacob,

    > While the struggle against formal property qualifications was most progressive, even freely elected legislatures are almost devoid of the working poor, especially those who are women.

    This, of course, is a feature of the electoral system. The way to address this is not by restricting the membership of the legislature, but by changing the selection system.

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  15. Jacob

    My concern is not with a property franchise (negative or positive) but with the ability of allotted members to understand complicated legislative bills. A minimum age requirement is sensible in this respect but my prejudice (for which I’ve been attacked) is for a modest IQ requirement — just sufficient to ensure that allotted members can understand the issues they are deliberating over. The threshold would need to be very low and bills would also have to be phrased in plain English (or whatever the vernacular). I refer to this as a prejudice as Fishkin managed to get by without such restrictions, so am open to persuasion.

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  16. Yoram

    Many thanks for pointing out the inaccuracies in my presentation of your views, for which I apologise.

    Regarding the issue of “checked democracy” I agree entirely that the notion of a virtuous guardian elite is bullshit. This notion plays a residual function in Madison’s thought — due to his adherence to the “faculty” psychology that was prevalent at the time, which did argue that certain classes of people were more capable of disinterested behaviour (a hangover from Calvinist notions of “the elect”). But Madison was sceptical about this — “enlightened statesmen will not always be at the helm”, hence his prime reliance on establishing a mathematical equilibrium of interests (Pitkin draws a sharp distinction between Burke and Madison, along these lines). My preference, as you know, is for Harrington’s cynical view of elite interests being shaped and constrained by the need to secure popular support (see my correspondence with Terry, above). Liberal theories of mixed government (unlike their classical forebears) do not primarily rely on the virtue of any particular group of citizens, although (as I’ve just admitted) modern theory still contains a residual appeal to classical notions of political virtue.

    I think you would have to admit, however, that you have on occasion suggested that ordinary people/the masses are more virtuous than the elite(s) on issues like environmental protection and have cited public opinion surveys to support your view. I view this as just as romantic as Madison’s concept of “a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice etc. etc.”

    Regarding your second substantive point, I’m happy to admit (along with M.H. Hansen) that I’m NOT a democrat, but an advocate of mixed government. Quentin Skinner wrote a wonderful essay in 1973 on Dahl, pointing out that the word “democracy” was of little value as “to apply the term is not only to describe the state of affairs, but also to perform the speech-act of commending it”. So why don’t we drop it and switch to demarchy?

    Going back to the three numbered clarifications of your position:

    1) I’m glad that we agree on the need for skill (rather than “skill”), although you have stated clearly that judges should be appointed by lot from the same franchise pool as members of the AC, so you clearly don’t see the interpretation of law as having any special skills. But we’ve debated the issue of how skilled posts should be filled so many times now that it’s probably best not to revisit it again.

    2) The position of unicamerality or bicamerality is only trivial if you argue (as you do) that each chamber should be established on the same principle (allotment). But I’ve already addressed this issue in my response to Terry.

    3) Apologies for attributing the “abolish democracy” point to you — I see now that it was just a response to Peter. But in seeking to define democracy in terms of “the mental state of the members of the group” this puts it on an extremely fragile foundation (see, for example, William Golding’s Lord of the Flies) and reinforces the need that such fragility should be checked by the other elements that make up a robust mixed constitution. Otherwise you will end up relying on similar optimistic assumptions that Dahl castigated in your earlier citation.

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  17. keithsutherland, let me ask you a question: Do you know how the sausage is made?

    The sausage I’m referring to in this case is IQ tests.

    It’s a matter of history that IQ tests were developed by British upper-class men in order to justify the domination by British upper-class men of everyone else. Really. Look up those guys. They have been reformed several time since (among other things, to permit women to be equal to men), but only to save them as a tool for attacking the egalitarian ethic.

    If you demand any test of such type as a prerequisite for enfranchisement, you’re rejecting the idea of political equality itself. The whole point is that you have political rights not because of who or what you are, or because some wise men think you will use it well: You have it because you have an interest in the outcome. You have it because it is your business.

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  18. Harald

    I’m very aware of the contentious history of IQ and have been criticised on this point many times before. I just think sortinistas need some way of checking that allotted members can understand what is going on. This should be a very minimal threshold, and it struck me that IQ was a less acculturated test than education. But I’m aware that this will be offensive to all those who seek absolute equality at all cost (Barbara Goodwin has been my most vocal critic in this respect).

    But if you reject intelligence or education tests a priori, then why not also exclude minimum age thresholds? After all one of the most astute commentators on this blog is aged 13 (see the last commentary on The Party’s Over). Mark would clearly pass every IQ and education test with flying colours, knows more about politics than most of us put together and yet is disenfranchised by the minimum age criterion. So where do you draw the line?

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  19. > I just think sortinistas need some way of checking that allotted members can understand what is going on.

    No, we do not. Not beyond being able to seek out a place where they can register their desire to affect the outcomes of government. Yes, I don’t think there needs to be a set minimum age for participation (this goes for our present system of elections as well). Mark should be welcomed as a participant of democracy, not because he’s smart, but because he has realized and accepted that he has an interest of his own in participating.

    By the way, the idea that society will collapse if we permit this is no different from the identical assertions which were made when enfranchising women and unpropertied men.

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  20. I’m with Harald. I think it’s highly desirable to have the broadest possible range of interests and life experiences brought to bear upon decision making. The need to explain policies in a way that can be understood by all those who might be affected by them, including the young and infirm, would impose a worthwhile discipline on policymakers as well as providing an incentive for better education. It might also go some way towards preventing elitist jargon being used by as a barrier to wider participation.

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  21. “This, of course, is a feature of the electoral system. The way to address this is not by restricting the membership of the legislature, but by changing the selection system.”

    That’s the same argument numerous “democratic socialists” raised when calling for universal suffrage. The mechanical notion of this leading to the hyped “class legislation” didn’t work in the long term.

    I agree on the sortition, but like the Paris Commune and other examples other measures are needed. The possibility of disenfranchising economic elites from “the ability to influence or participate in political decision-making” is a lot bigger and illiberal in scope than what the Soviet constitution said about who’s not eligible to merely vote or be elected.

    “My concern is not with a property franchise (negative or positive) but with the ability of allotted members to understand complicated legislative bills. A minimum age requirement is sensible in this respect but my prejudice (for which I’ve been attacked) is for a modest IQ requirement — just sufficient to ensure that allotted members can understand the issues they are deliberating over. The threshold would need to be very low and bills would also have to be phrased in plain English (or whatever the vernacular). I refer to this as a prejudice as Fishkin managed to get by without such restrictions, so am open to persuasion.”

    I’ll leave you guys to discuss quota sampling and various forms of probability sampling to facilitate this (cluster, probability-proportional-to-size, stratified).

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  22. Six random comments. First, the question of the size of an AC is an interesting one. Keith points to the literature on deliberation suggesting that you don’t want more than two dozen or so people attempting it. But as Yoram has pointed out, there’s nothing stopping an AC from organizing itself internally however it likes. It could certainly spin off committees to deliberate and report back to the main group if it wanted. A more realistic threshold might be the so-called “rule of 150,” which excites Malcolm Gladwell so much. The idea is that 150 is the largest group of people who can operate together as a community, with everyone really knowing everyone directly. But even this number is smaller than most legislatures. A relevant book here is Jeremy Waldron’s THE DIGNITY OF LEGISLATION, which investigates the topic of why legislatures are so big.

    Second, I think there’s a lot of good stuff on how much free speech there was in Athens. I seem to recall that Moses Finley’s DEMOCRACY ANCIENT AND MODERN is good on this point. As for Socrates–well, his efforts at a defense were downright terrible. He was almost trying to piss of the jury, especially during the penalty phase. There’s no way to make an adversarial criminal justice system work properly if the defendant doesn’t try his best to defend himself.

    Third, tell me if this is a fair characterization of the difference between Yoram and Keith. Yoram wants an AC to be the ultimate decision-making authority. Keith doesn’t want there to BE an ultimate decision-making authority. I’m inclined to side with the latter perspective, but that brings me to…

    Fourth point: I don’t see why checks and balances need be viewed as checks on democracy. I here recommend the work of my friend Melissa Schwartzberg. She wrote an interesting book on constitutional entrenchment called DEMOCRACY AND LEGAL CHANGE, and has a new book forthcoming on supermajority rules. She points out that if you want to do things like slow decision-making down, encourage deliberation, etc., there are ways to do it without resorting to anti-democratic measures. One can, for example, require constitutional amendments be passed in several successive legislative sessions, or (as Yoram has suggested) require AC endorsement plus a referendum. Those are just two possibilities.

    Fifth, age requirements. One interesting proposal on this topic was made by Jon Elster and Rune Slagstad in the introduction to their edited volume CONSTITUTIONALISM AND DEMOCRACY. They suggest that the voting age should be set at the lowest value of X such that a majority of people over the age of X agree that everyone X or older should be allowed to vote. You’ll probably find that 90% of people 30+ think that everyone over 30 should be allowed to vote, but only 10% of people over 10 think that everyone 10+ should be allowed to vote. You get the idea.

    Finally, one idea this blog might wish to consider is doing some kind of reading group. There’s a very interesting regular reading group on Public Reason, another blog I read regularly. Check it out–

    http://publicreason.net/

    Now I should add that I do NOT have the time to participate in yet another reading group. (Maybe in the fall, after I’ve relocated across the pond.) But we have had a number of books mentioned on this blog as being of great importance to the topic of sortition. Might make sense for the group to consider reading one of them.

    OK, that’s way too much for now. But hope it helps.

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  23. > They suggest that the voting age should be set at the lowest value of X such that a majority of people over the age of X agree that everyone X or older should be allowed to vote. You’ll probably find that 90% of people 30+ think that everyone over 30 should be allowed to vote, but only 10% of people over 10 think that everyone 10+ should be allowed to vote. You get the idea.

    This system at least has the advantage of not enshrining an age limit. But if 90% of the people agree ten-year olds should not be allowed a vote, how hard would it be for those 90% to overrule any irresponsible policy proposed by the ten-year olds? And if it’s an issue reasonable people can disagree on anyway, why not listen to what the kids have to say?

    If the majority wants to disenfranchise a group, I say make them do it on a case to case basis. Let the over-18 collectively pledge to never force through a proposal if it would rely on the under-18’s to pass. I’m confident that in such a situation, we over-18’s would quickly find that playing the disenfranchement game is not worth it.

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  24. First of all, I’m delighted that such a cheeky and confrontational post should have generated such a wide range of comments, and all (to paraphrase Kenny Everett) in the best possible taste!

    I agree with Martin that the prime onus must be on the drafters of parliamentary bills to use plain language, but I’m puzzled by Harald’s claim that “being able to seek out a place where they can register their desire to affect the outcomes of government” is all that matters, as this smacks of rational (or even irrational) ignorance and I thought we were all committed to informed deliberation. If the latter then surely anyone too stupid to weigh up the options (deliberate) cannot be part of a deliberative assembly. Otherwise we might just as well continue with the old form of rational ignorance.

    Regarding the minimum voting age, kids like Mark (if he really is 13, which I find hard to believe!) clearly deserve the franchise, so the issue ultimately is intelligence, not age, hence my preference for the dreaded IQ-test. The argument against the enfranchisement of women and unpropertied men was to do with stakeholding, not stupidity.

    Peter, actually I agree with Yoram that the AC should be the ultimate decision-making authority. Where we differ is that I argue that there should be four constraints on the available options for the AC: 1) the practical exigencies of administrative government (meritocracy), 2) a popular mandate (electoral democracy), 3) balanced independent advocacy and 4) universal human rights (independent judiciary). Yoram, if I understand his views correctly, would argue for there to be no external constraints on the AC.

    Dicey, of course, argued the case for fighting fire with fire (the referendum as a check on parliamentary democracy), but I don’t understand how sampling the same population in two slightly different ways can provide a robust check, but then I’m no democrat. Those of us who argue the liberal case for the separation of powers or the republican case for a mixed constitution would seek to check democracy by other principles. I don’t see why we are so in awe of the god that failed — Quentin Skinner (1973) was right in that democracy as a concept has become so contaminated with evaluative baggage that it is no longer a useful descriptive tool.

    As for the AC subdividing into small groups, of course that’s possible, but then it would cease to be descriptively representative (its only claim to validity), so it would be self-defeating exercise. But there’s nothing to prevent a large AC from exercising the judgment faculty. The Athenians had no problem with juries of 500, so long as there was balanced advocacy and the jury was limited to a voting role. This is the best historical example we have of sortition in practice, so I’m puzzled as to why there is so much pressure on this blog for the jury to assume additional powers, seeing as it then ceases to be descriptively representative. An advocate making a speech is only one person, whereas the aggregate vote of a large body “represents” the whole community (Pitkin makes the argument much better than me). I’m the worst person to be defending democracy, but it’s clearly the case that an AC ceases to be democratic as soon as it loses its aggregate nature — any individual actions (proposing a bill, making a speech etc) within the AC do NOT possess any sort of democratic mandate, they are simply the acts of a (randomly-selected) individual. (Yoram has already partly conceded this point in an early comment.) The only sort of individuals who claim they can “describe” the whole community are the likes of Tony Blair, Adolph Hitler etc.

    I’m all for a reading group. Look forward to your arrival in Dublin. Ireland is a good candidate for sortition as many (most?) members of the Dail simply inherited their father’s seat, and voting (at least until the day before yesterday) was largely tribal. Most Irish politicians have had no experience of commercial life as few have held jobs in the private sector. If Ireland had an AC it’s less likely that they would be in such a mess.

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  25. Harald,

    I don’t think the case of children is the same as other cases, since most people consider children as being unable to represent their own interests well. This is reflected in many other ways in which children are treated in a paternalistic manner by the law. Will you advocate abolishing all laws which treat children as having reduced competence compared to an adult?

    In societies like ours, in which children are a small minority, allowing children to serve may not matter much (except to the children delegates themselves, BTW, who might find themselves targets for manipulation in various power struggles). But in a society where children make up a larger part of the population, this may be quite dangerous.

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  26. Recently a woman caused furore in Norwegian government by turning up in the wandering hall to talk to the politicians. Normally, this is an unremarkable event, as politicians frequently invite various interest groups and lobbyists to do just that.

    However, this woman was special – in many ways. She had Downs syndrome, and came to protest the suggestion that everyone should be offered free early ultrasound – an offering which has very little medical benefit, unless you count selective abortion of people like her.

    With Downs syndrome you literally have half the brain of a regular person, yet you are more than capable of understanding what goes on around you, and to care. Should people like her a priori be denied the right to bring their concerns to the attention of their fellow citizens, their rulers? Not in my country, thank you very much. If you’re aware enough to care, we must assume you’re capable of speaking up for your interests – if we turn out to be wrong, the worst that will happen is a useless voice in the allotted body. However, if we deny the voice to someone who might legitimately have used it, we do serious injustice.

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  27. Nicely put Harald — I think we all agree now that any thresholds for competence must be kept to the absolute minimum. How to operationalise that is tricky, but perhaps if the assembly is large enough it won’t be an issue anyway.

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  28. > Will you advocate abolishing all laws which treat children as having reduced competence compared to an adult?

    Not at all. But I’d consider such laws very much a legitimate concern for children, I do not trust adults to get them right entirely on their own. The question of whether someone should have a voice in government is quite different from other restrictions. Don’t we agree competence isn’t the reason people deserve representation?

    That children’s interests need to be represented somehow you surely agree as well. The question is, should they be forced to trust someone else to do it, or should they have the option of trying for themselves?

    > in a society where children make up a larger part of the population, this may be quite dangerous.

    Yes, but in such societies, leaving children’s interests in other hands is also more dangerous. Sure, where attitudes toward children are poor there may certainly be practical problems. But the challenges a ten-year old faces in deciding who to trust, who to listen to etc. are not all that different from the ones adults face – in a lot of cases, we will be “children” too.

    Remember that I propose young people have to make a conscious decision to participate (we can take steps to ensure that the decision is reasonably independent as well). Younger children are unlikely to do that in large numbers. Those who do so will probably call on and have great respect for the policy experts called mom and pop – and there’s nothing inherently wrong with that.

    There is the problem of attitudes toward children. Sadly, just about everywhere they are poor. Even here in Norway, where domestic violence against children is illegal, we have a long way to go. I see this in large part as a symptom of children’s lack of standing – I imagine if we disenfranchised people over 70-75, that group would soon face many of the same unwarranted negative attitudes.

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  29. > Don’t we agree competence isn’t the reason people deserve representation?

    Sure – but having reduced competence makes it possible that your interests are best represented by someone else.

    As a parent, I am willing to state unequivocally that I am at a better position to take care of my children’s interests than they are. I am not willing to make the same statement about people with Downs syndrome and the elderly, and certainly not about people who fail some arbitrary test composed by some other people with their own interests to promote.

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  30. > having reduced competence makes it possible that your interests are best represented by someone else.

    It’s possible that my interests are best represented by Stoltenberg, or you or Keith for that matter. But I think the fact that I don’t think so matters.

    I’m a parent too. Sure, I’m in a better position to take care of my son’s interests right now – the question is whether I will be the day he says I am not.

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  31. > Sure, I’m in a better position to take care of my son’s interests right now – the question is whether I will be the day he says I am not.

    My kids are already trying to assert that this is the case on various occasions – don’t yours? I listen, but I reserve the right to make final decisions.

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  32. The debate seems to have got hung up on restrictions to participation. I’d suggest they’re not particularly important in the big scheme of things.

    Here’s my take on the issue and a few other thoughts to kick around:

    Are restrictions based on age and intelligence really necessary? I believe participation should be both a right and responsibility for all citizens. Thus participation in an assembly should be compulsory, albeit with plenty of practical exceptions. For example, needing regular nappy changes, being in full time education, being infirm or being confined for the safety of the community would all be valid reasons to opt out. On this basis, children would have an equal opportunity of participation and would be free to do so provided they could persuade their teacher to let them off school, their dad to walk them to and from the assembly each day and their mum to make their packed lunch. Mark might well be able to achieve that outcome.

    Unlike the current system of jury service in England and Wales, which is burdensome to the point where most intelligent people try to get out of it, I think participation in an assembly should be properly compensated so that no one loses out. Indeed, human nature being what it is, I think participation should be incentivised with, for example, free use of public transport or public leisure facilities (swimming pools, health clubs, golf clubs etc).

    I think the period of participation should be sufficient for the needs of the process but not so long that it damages the career opportunities of participants. Three months at a time is the best solution I have arrived at.

    My earlier point about the Athenians being able to walk to the assembly was based on the tenet that democracy can only really exist in the village. Rather than a single national assembly, one has to think in terms of layers of inter-related assemblies working from a community council level up to the national assembly and onwards to international assemblies.

    Tackling Keith’s point about IQ from a different angle, I think it is important to employ a modern systems-based approach to decision making so that everyone, no matter whether they are shy or outgoing, above or below average intelligence, an adult or a child, has an equally valid opportunity of contribution. Juries are invariably swayed be the most forceful participants.

    If structured and organised properly, people will come to see service on an assembly as a benefit to be looked forward to rather than dreaded.

    I agree with Keith that it is necessary to have a separate and independent judiciary. However, I imagine Keith’s advocacy function being drawn from the judiciary since I see it as being more to do with process.

    I envisage a professional executive, appointed by the assembly, being responsible for implementing policy and I also propose a forum, separate from the assembly, also constituted by sortition, which would formulate policy. Anyone could petition the forum and vested interests would be able to make representations to it. The forum would prepare policies to be debated, amended and ultimately approved by the assembly.

    Where there’s an assembly, there’s a forum. So forums exist for formulating local policies as well as national policies. Supervisory bodies, police authorities, health authorities etc, would be organised on demarchic lines.

    I reckon the above arrangement would provide the checks and balances necessary to govern the welfare of all.

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  33. If the assembly is large enough and the bills clearly drafted then I guess it should be able to handle a few folk who can’t really understand what’s going on (Callenbach and Phillips turn this into a virtue, and Surowiecki also argues for a bit of grit in the oyster). I’m more unsure about the age qualification, but agree with Martin that we shouldn’t get bogged down in what is in fact a peripheral issue.

    Although I use the word “advocate” I don’t intend it in the sense of a legal functionary. It refers to the right of the majority party/ies to act as advocates for manifesto bills in the AC and the need for experts to argue the opposing case. I’m much taken by Mark’s suggestion for a quota system using sortition within the membership of professional bodies to select the advocate pool:

    https://equalitybylot.wordpress.com/2011/02/03/the-party%E2%80%99s-over-blueprint-for-a-very-english-revolution/#comment-1130

    I think your case for a forum to generate policies is entirely undemocratic but will explain why in detail in another post that I’m currently preparing. No doubt the comparison will be with the Council of 500, but Boule proposals were then voted on by the entire citizenry, not so in the case you are proposing.

    But I agree that participation in the AC has to be well-rewarded and (in effect) compulsory if it is to be truly representative.

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  34. […] becomes even worse when one considers the generation of legislative proposals by an AC (or an allotted forum, in Martin Davis’s parlance). Although comparisons have been made with the Athenian Council of […]

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  35. From where I sit I’m increasingly becoming aware of a head of froth and bubble that is obfuscating the pure liquer beneath. Election by lottery with its wondeful cure-all properties to the present system is so superior to what we have is beyond question. The EL system will not only change the mechanics of appointing representatives but will change the very mindset and responsibility of those chosen and/or deferred. The focus of government immediately centers on the LAW (Constitution/Contract ) and away from the criminal personalities that now plague it. Just imagine the military draft and representatives as those inducted as soldiers answering the call and doing their DUTY. Once put into motion we will wonder why any other system was ever used. hdh

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  36. “its wondeful cure-all properties”

    This has been the rallying cry of revolutionaries down the ages, but it never quiteseems to work out quite the way they wanted it. Although you consider it just a head of froth, I really would appreciate a rejoinder to my argument that a pure sortive system is even worse than our current debauched arrangements in my latest post:

    https://equalitybylot.wordpress.com/2011/03/03/what-sortition-can-and-cannot-do/

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