Why did the American founders ignore the case for sortition? It was well known at the time that sortition was one of the primary mechanisms of Athenian democracy and this explains why Madison and his Federalist chums (who were no democrats) ignored it. But even Antifederalists (who argued the democratic case for descriptive representation) failed to propose sortition as a means to establish a legislature that was a ‘portrait in miniature’ of the whole community. According to Bernard Manin it was philosophy – in the form of the Natural Right theory of consent – that was the principle cause of the ‘triumph of election’ (Manin, 1997, Ch.2). But is this true?
James Fishkin points out that the etymological root of ‘deliberation’ (deliberationem) is ‘weighing’ (2009, p.35), so when a randomly-selected assembly member of an allotted chamber (AC) ‘like me’ weighs up the arguments and judges accordingly then I am descriptively represented. But is it possible to take this further and argue that I thereby consent to the judgment of a randomly-selected assembly? The argument for this further claim would need to take the following lines (paraphrasing Fishkin, 2009):
- Someone ‘like’ me would, ex hypothesi, exercise judgment in the same way that I would myself. The argument does not require a definition of the ‘likeness’ criteria (age, gender, occupation, political preferences etc.), as the randomization process in principle reflects the incidence of any quality in the general population.
- The number of representatives ‘like me’ in an allotted assembly would be proportionate to the number in the general population. If the sample is not sufficiently fine-grained to accurately reflect the distribution of any quality deemed to be salient to the exercise of political judgment then the sample numbers would need to be increased accordingly: only a relatively small sample would be needed to provide an accurate gender balance, whereas the proportional representation of, say, albinos or molecular microbiologists would require a larger sample. The rapid growth of the polling industry is a testimonial to the accuracy and validity of the probability sampling principle.
- Therefore the aggregate judgment of the allotted assembly would represent the considered judgment of the whole population. This was the principle behind the nomothetai (legislative assemblies) introduced in fourth-century Athens.
- All electors are currently deemed to consent to the results of a general election, whether or not ‘their’ candidate was victorious; so the same principle should apply to the result of a vote in an allotted assembly (the only difference being the employment of one or other of the two mechanisms – election or sortition – that constitute a ‘ballot’.) Although one might argue that the ‘consent’ involved is at best tacit, hypothetical (or some other form of ‘useful fiction’), the same is true in both instances of the ‘ballot’.
But, according to Manin, this argument is false: ‘However lot is interpreted, whatever its other properties, it cannot possibly be perceived as an expression of consent’ (Manin, 1997, pp.84-5, my emphasis). According to Manin the only way of establishing consent is via the mechanism of the preference election. This is on account of the Natural Right theory that was dominant at the time of the birth of representative government. But are preference elections really an effective way of demonstrating consent, given that the aggregated outcome can only approximate the views of the average voter? How can one be deemed to have consented to an outcome that one did not personally vote for? An investigation of the strength of Manin’s argument requires a digression into the development of Natural Right theory – if in the end the notion of electoral consent has shaky foundations, then the Fishkinian alternative merits serious consideration, especially as the canonical narrative of electoral consent will be seen to rely on an archaic ‘corporatist’ perspective of the social orders which is of little relevance in an age that emphasises the sovereignty of the atomised individual.
Natural Right Theory
John Locke (1632-1704) is the best-known advocate of the principle that all legitimate government rests upon the consent of the governed. Just about the only thing that Locke had in common with his intellectual predecessor Thomas Hobbes was the shared belief that the ‘commonwealth’ (civic society) was the result of a ‘social contract’ between citizens (or subjects) and their government. Both writers are vague as to when and where this contract was signed. Hobbes – who did not have a high regard for historians (other than Thucydides, whose work he harnessed for rhetorical purposes) – argued, following Grotius and Selden, that the social contract was a logical deduction from observations on human psychology: given man’s innate combination of fearfulness, egoism and pride, the only rational (prudential) course is for all men to exchange their natural freedom for the order and protection of the sovereign. Given that each man’s imperative is the preservation of his own life, it matters little what form the resultant government takes so long as its sovereignty is unchallenged and peace is preserved. The context for Hobbes’s work was the Civil War, hence his wish for peace at any cost: it’s perfectly natural for the war-weary to consent to any form of government that will ensure that the pikes can safely be returned to the thatch or, better still, melted down and turned into ploughshares.
What a difference forty years makes: with the turmoil and bloodshed of the Civil War behind them, Locke and his friends and patrons could afford the luxury of desiring not just the protection of their lives, but also their liberty and property. The latter meant that all (property-owning) citizens should themselves consent to the tax-raising requirements of the executive. But this is where it all gets a little tricky, as Locke slips, without justification,
from insisting on the individual’s consent to taxation, to assuming the consent of only a majority, or even a majority of representatives. The slippage at [Locke, 1967] §140, p.380 takes place within a single phrase: However fair or necessary taxation is, ‘still it must be with his own Consent, i.e. the Consent of the Majority, giving it either by themselves, or their Representatives chosen by them’. (Hampsher-Monk, 1992, p.104)
What makes the problem even worse is the historical fact that the parliamentary ‘consent’ mechanism that Locke was describing had its origins not in the ‘bottom-up’ theorising of the social contract, but in the ‘top-down’ requirement of medieval kings for the towns and counties of the realm to send knights and burgesses to meet with the king’s council. Parliament was created for the convenience of the crown – during the thirteenth century it became an accepted rule that the representatives of those who were going to be most affected by taxation had to give their consent to it in parliament – the Q.O.T. principle derived from Roman law. Attendance at parliament was a ‘chore and a duty, reluctantly performed’ (Pitkin, 1967, p.3) and was in no sense considered a representative function. However ‘[t]he authorities who thus called for the election of representatives usually insisted that they be invested with full powers (plenipotentiarii) – that is to say, that the electors should consider themselves bound by the decisions of the elected, whatever those decisions may be’ (Manin, 1997, p.87). Thus electoral representation started out for the convenience of the executive, in order to establish the ‘consent’ of the ruled:
Once the delegates had given their consent to a particular measure or tax, the king, pope, or emperor could then turn to the people and say: ‘You consented to have representatives speak on your behalf; you must now obey what they have approved.’ (Manin, 1997, pp.87-8).
Very often the elected representatives of the people were merely asked to give their ‘seal of approval’ to what the authorities had proposed. There were usually no policy choices involved and the process was often limited to a mere ‘acclamation’ (ibid.). Philosophers were then recruited to justify this political imperative, resulting in the theory of Natural Rights:
[M]ost strong rights theories have in fact been explicitly authoritarian rather than liberal. Hobbes is representative, not exceptional. . . It is true that more liberal rights theories grew out of this conservative and authoritarian tradition . . . but the Grotian origins of these liberal theories cannot be ignored, for they were always uneasily close to their authoritarian counterparts (Tuck, 1979, p.3).
Given the tiny franchise of the late seventeenth century, and the domination of the Commons by the patronage of landed interests, MPs might very well have been unanimous in their opposition to levels of taxation that constituted an assault on their ‘natural right’ to hold property. Locke was no democrat: ‘he stands on the whole for the Whig grandees, entrenched in the House of Commons’ (Barker, 1971, p.xxvi). ‘In Locke by clear implication the test of membership is roughly equivalent to the forty shilling freehold’ (Franklin, 1981, p.125). Perhaps this is the reason that he appears not even to notice the conflation in his phrase: ‘his own Consent, i.e. the Consent of the Majority’. To a modern reader it is clear that one’s own consent may or may not coincide with the majority position but with a tiny, and relatively homogeneous, property-owning franchise, it may well have been that parliamentary representation was simply a case of ‘chaps like us’ who one could rely on to protect the family silver.
The construction of Lockean-style government-by-consent in a mass democracy of atomised individuals with disparate views and interests is a much more serious challenge. Hegel (like Burke), adopted the pre-modern perspective: political representation was via the corporations of civil society: ‘[deputies] are representatives not of individuals or a conglomeration of them, but of one of the essential spheres of society and its large-scale interests’ (Hegel, 2010, p.160). However, a representative assembly in a greatly expanded franchise becomes a congress of individual particular interests, so the distinction between the majority and minority positions becomes a very real one. How is it possible to maintain the principle that everyone should give ‘his own consent’ under universal franchise, with the inevitable conflict between the interests of a ‘multitude of particular men’?
Today, a person is deemed to be politically ‘represented’ no matter what, i.e., regardless of his own will and actions or that of his representative. A person is considered represented if he votes, but also if he does not vote. He is considered represented if the candidate he has voted for is elected, but also if another candidate is elected. He is represented, whether the candidate he voted or did not vote for does or does not do what he wished him to do. And he is considered politically represented, whether ‘his’ representative will find majority support among all elected representatives or not (Hoppe, 2001, pp. 283-4).
Consent by Proxy
Consent by the mechanism of preference elections is at best partial, tacit and approximate as it reflects only the consent of the majority (or at least its corporate representatives) and there is no obvious way for parliamentary representatives to accurately divine what the actual views of their constituents might be. But an alternative approach to electoral approximation, and better suited to a mass individualist society, is sortive representation by proxy – I may not attend (and consent or dissent) in person but, if the sampling process is accurate, there would be people like me present who could participate on my behalf, and their presence would be directly proportionate to how many people ‘like me’ there are in the wider population:
A representative microcosm offers a picture of what everyone would think under good conditions. In theory if everyone deliberated, the conclusions would not be much different. So the microcosm offers a proxy for the much more ambitious scenario of what would happen if everyone discussed the issues and weighed competing arguments under similarly favourable conditions (Fishkin, 2009, p.194, my emphasis).
But could representation by proxy ever be considered a form of consent? Can I be a party to a contract that I did not sign myself? This is certainly no worse than mythical social contracts that are either the result, in Hobbes’s case, of logical deduction of how a ‘rational’ person would choose to act or, in Locke’s case, ‘speculative economic history’ (Hampsher-Monk, 1992, p.90). And, as demonstrated above, the notion that consent is somehow embodied in electoral representation is only true under the near-unanimous conditions of the tiny property-based franchise of Locke’s time. So ‘consent by proxy’ would have to do very little work to improve on the dubious claims of consent by electoral approximation.
Fishkin’s Rome healthcare DP enabled elected officials to argue that the ‘perceived legitimacy’ of the DP results gave them the ‘cover to do the right thing’ (ibid., p.151) – the implication being that electoral success and legitimacy are anything other than synonymous (due to the widespread perception that elected officials are more often than not just ‘feathering their own nests’). The crucial issue is that of perceived legitimacy. A sophisticated knowledge of probability theory is required in order to understand how a sample can truly be representative of a target population. Probability theory was unknown in classical times, casting doubt on the claim that the lot was used as a method of random sampling, Dowlen (2008) arguing that sortition was primarily a mechanism to inhibit factionalism and corruption. But that does not rule out probability sampling as a way of representing public opinion in modern times (otherwise the opinion pollsters would all go bankrupt). All that is needed is to educate the wider public over the perceived legitimacy of the lot.
Barker, E. (1971), Introduction to Social Contract: Essays by Locke, Hume, Rousseau (Oxford: Oxford University Press).
Dowlen, O. (2008), The Political Potential of Sortition: A Study of the Random Selection of Citizens for Public Office, Exeter: Imprint Academic.
Fishkin, J.A. (2009), When the People Speak: Deliberative Democracy & Public Consultation (Oxford: Oxford University Press).
Franklin, J. (1981), John Locke and the Theory of Sovereignty (Cambridge: Cambridge University Press).
Hampsher-Monk, I. (1992), A History of Modern Political Thought (Oxford: Basil Blackwell).
Hegel, G.W.F. (2010), Philosophy of Right, trans T.M. Knox (Digireads.com)
Hoppe, Hans-Hermann (2001), Democracy – The God That Failed (New Brunswick: Transaction Publishers).
Locke, J. (1967), Two Treatises of Government, ed. P. Laslett (Cambridge: Cambridge University Press).
Manin, B. (1997), The Principles of Representative Government (Cambridge: Cambridge University Press).
Pitkin, H. (1967), The Concept of Representation (Berkeley, CA: University of California Press).
Tuck, R. (1979), Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge University Press).