Metamorphoses in Democratic Governance

When the Athenians reintroduced democracy in 403 the aspiration was to return to the ‘ancestral constitution’ – the lost golden age of Solon and Dracon (Hansen, 1999, p.175) – democracy type one in Aristotelian parlance. Fifth-century democracy had allowed the people’s judgment to be corrupted by demagogues in the Assembly, hence the wish to recover respect for the laws:

In 403 the Athenians returned to the idea that the laws, not the people, must be the highest power and that the laws must be stable, even if not wholly entrenched. (p.174)

Henceforth the powers of the Assembly would be limited to issuing temporary/specific decrees (psephisma), whereas any change to general/permanent laws (nomos) would be subject to trial by a jury of nomothetai. These were to be composed of persons selected randomly from the group of 6,000 older male citizens who had sworn the Heliastic Oath. The main purpose of the nomothetai was the overtly conservative one of ensuring that proposed changes were consistent with past laws – only if ‘there is no [relevant] law I will give judgment in consonance with my sense of what is most just’ (Heliastic Oath, quoted on p.170).

The role of the fourth-century Assembly was primarily to issue decrees (including treaties), elect magistrates and summon People’s Courts and nomothetai into being. Legislative courts had no power of initiative and the role of jurors was limited to listening to advocates for and against the proposal, deliberating within and then determining the outcome by secret vote. The power of initiative was:

(a) in the Assembly, or (b) by any citizen, or (c) by magistrates, namely the thesmothetai  . . . the Council is involved in the legislative procedure in so far as it calls and fixes the day’s programme for the Assembly meetings which will prepare the setting-up of nomothetai, and brings the proposal for the new law before the Assembly (p.168-9)

That’s not to say that the Council had purely an administrative role, as ‘in every case the legislative procedure must have involved one or more (open) probouleumata’. Nevertheless the legislative initiative was in the hands of the assembly of the people and any citizen could put up a ‘repeal’ law (p.166) and ‘it is the Assembly that decides whether a revision of the code is needed’ (p.168). The Assembly ‘retained the initiative in legislation’ (p.153).

The restored democracy also placed a greater reliance on electing key magistrates (100 in total): ‘It was in fact these elected financial magistrates who were more or less responsible for the revival of Athens after the defeats.’ (p.160)

Whilst there is no reason for modern proposals for sortition to be overly constrained by ancient practice, we should acknowledge that we are standing on the shoulders of giants. The restored democracy lasted for eighty-two years and was only destroyed by the overwhelming military power of Philip of Macedon.  It’s no coincidence that the principal survivor of Athenian practice is the trial jury, and there is a strong case for reinstating it for the trial of legislation. Those, however, who wish to propose an entirely new model for a legislature, in which allotted bodies are handed unprecedented new powers need to provide a convincing rationale for the decision to depart from ancient practice in such a radical fashion.

Ref

M.H. Hansen (1999), The Athenian Democracy In the Age of Demosthenes (Bristol Classical Press).

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13 Responses

  1. One thing that I didn’t make entirely clear was that the purpose of the 4th-century reforms was to make it as difficult as possible to change the laws. Demosthenes “tells admiringly the story of the Lokrians, who changed only one law in 200 years, because they had the marvellous custom that any proposal for a change of law must be made with a noose tied round the neck, and if the proposal was defeated the noose was drawn tight” (p.174). The multiple hurdles (boule, assembly, nomothetai) in the legislative process can be seen as an ancient example of constitutional checks and balances. And “anyone who proposed a motion was answerable for it, and, if convicted, for instance of making an unconstitutional proposal, might be mulcted with a gigantic fine that would leave him atimos [deprived of political rights] (p.145).

    Athenian democrats would have been horrified at the prospect of a tiny group of random dictators sitting around and dreaming up new laws, without any checks on their whims. Of course we should not feel obliged to follow ancient practice, but those who claim Athenian provenance for a fully-powered klerotocratic assembly are simply wrong as a matter of historical fact. Such a system of government has no historical antecedents at all, so should be treated with due caution.

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  2. Keith,

    I thought that appeal to tradition has gone out of fashion centuries ago.

    > Those, however, who wish to propose an entirely new model for a legislature, in which allotted bodies are handed unprecedented new powers need to provide a convincing rationale for the decision to depart from ancient practice in such a radical fashion.

    Why? You might as well claim that anyone proposing any change in any system needs to explain how and why their system is different from any other system ever tried. The arguments for having a system in which the agenda is set by an allotted body have been explicated over and over on this blog. I can refer you again to two recent posts, for example: 1, 2.

    BTW, it just so happens that, spin things as you will, the Athenian system did have its agenda set by an allotted body – the Boule. No law or decree could have been proposed and discussed in the Assembly or voted on by the Nomothetai unless the Boule put the item on the agenda (Hansen pp. 256-257).

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  3. Yoram,

    Hopefully we can discuss Greek history without ending up in our usual cul-de-sac. I confess I haven’t got as far as Chapter 10 in my rereading of Hansen, but would not deny that the assembly secretariat* was responsible for putting an item on the agenda. However, although the council set out the agenda, this is not the same as saying that the agenda arose from their internal debates:

    “Demosthenes in his speech Against Timokrates says that the correct procedure of legislation is to go first to the Council and then to the Assembly, and if the Assembly gives its blessing, finally to the nomothetai” (pp.256-7).

    In other words any citizen could approach the council with a legislative proposal, which was often only nominally the proposal of a council member (p.145). In the above quote there are four agents involved:

    1. The original proposer
    2. The council
    3. The assembly
    4. The legislative court

    Your proposal for a modern analogue is to remove 3 of these agents, leaving all power in the hands of an allotted council. My original proposal was for 1, 3 and 4, but Terry has convinced me of the need to retain 2. I’m sure we can agree that, from a purely historical perspective, my proposal is considerably closer to 4th-century practice than yours. It’s also likely that the fit is on account of my conservative inclinations, as opposed to your plans for radical social transformation (hence your wish to abolish constitutional checks and balances in favour of a single institution).

    * This was the description of the boule in Landemore, Manin and Urbinati (2008)

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  4. > Your proposal for a modern analogue is to remove 3 of these agents

    No. The only element that should clearly be eliminated is the assembly which is a mass political body.

    Naturally, every person can approach the council or individual council members with proposals. How these proposals are handled is up to the council and its members.

    As for having an allotted “legislative court”, I don’t have a strong position one way or another – there are valid arguments both ways. The detailed design of the legislative process should be up to an allotted body and can be redesigned as necessary on an ongoing basis, so there is no need to ponder such fine points at this early stage.

    Also, “my proposal” (actually, if we insist on attaching names to the proposal it could possibly be Callenbach’s and Phillips’s names, but not mine) is not aimed at creating an analogue of the Athenian system. It is aimed at creating a democratic system.

    > I’m sure we can agree that, from a purely historical perspective, my proposal is considerably closer to 4th-century practice than yours.

    Again, I don’t think this matters much, but no. Your proposals are aimed at creating an elitist system while the Athenian system had a pretty strong democratic element (largely due to the power of the allotted Boule).

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  5. Keith wrote:
    “the principal survivor of Athenian practice is the trial jury…”
    Just for historic accuracy it should be noted that the trial by jury we have today did not descend from Athenian practice. It is an example of parallel invention, completely separate and independent of Athenian traditions. It started with an authority (like a sheriff) selecting people who might know something about the crime or the alleged perpetrator, or who could be trusted to keep the interests of the crown foremost, and only after a long time did the custom of selecting random citizens who were typical of the community develop.

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  6. Yoram,

    Most Athenians would have known someone who was serving on the council, so it would have been relatively straightforward to approach a serving member directly — not so in large modern states. As for the parallel between ancient and modern democracy, Hansen is clear that the purpose of the 4th century innovations was to reduce legislative output to a trickle. In this respect it’s not dissimilar to the legislative gridlock built in to the US Constitution. This was the intention of both Demosthenes and Madison, in order to ensure that popular passions should have time to abate prior to legislative judgment. This would suggest that the existence of a final legislative court is essential, in which case the principal disagreement between Yoram/Campbell/Terry and myself is the ongoing need for mass democracy. Whereas I would seek to put Demosthenes-Madisonian checks on popular passions, you would simply not let them in in the first place (I see the latter as potentially dangerous, as passions do generally need some sort of expressive outlet, even if it’s only that of a safety valve). You (paradoxically) see mass democracy as a way of preserving elite control of the system, whereas I see it as a necessary component of securing democratic consent (essential from the perspective of social stability). You see the generation of legislative proposals from the internal workings of an allotted group as democratic, whereas I see it as random, arbitrary and liable to be dominated by a small handful of opinionated and/or high-status persons. Out of fairness I think we should all respect the sincerity of our opponents’ positions, even if we disagree as to whether the outcome will be as they intend. I would have hoped that this would enable us to engage in thought experiments and other forms of argumentation but we have both been disappointed in this respect, hence the need to limit the debate to matters of historical fact, rather than speculation.

    Terry,

    That’s an interesting point about the evolution of the trial jury. It would certainly suggest that authoritarian institutions are open to democratisation by the addition of an allotted element, and that a process that was originally designed to ensure (arational) impartiality could then be seen to have a “representative” function (the citizens chosen were not just random, they should also be typical). Jan Burgers has an interesting paper on this, which shows that the democratisation of the American jury came as late as the 1960s.

    I do think the relationship between the arational (random) and the rational (typical) functions of sortition needs further work, in particular as to whether sortition selects predominately typical (average) persons or whether this only applies at the level of the group. To my mind the latter is true, hence the need to focus purely at this level of analysis. It would be interesting to know if the outcome of trial juries would have been (epistemically) better in the absence of jury-room deliberation, but justice has to be seen to be done and majority verdicts are not generally seen as sufficient when depriving someone of their life or liberty. This didn’t seem to bother then Athenians much, but there were some horrifying miscarriages of justice.

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  7. There is one mass electoral function that I think has merit…which is a recall or popular vote of no confidence of an executive (who had been appointed by an allotted body). If a majority of voters deem a chief executive to be worth replacing, then that is all the evidence we need. However, the replacement should also be chosen by a new allotted hiring panel. In other words, the reason for voting to recall isn’t a matter of wanting to get YOUR guy in.

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  8. Surely the rejection of an executive is just as open to abuse (public ignorance or elite manipulation) as the appointment of the same. I don’t see any difference in principle between the two decisions.

    My concern is, as always, the demanding criterion of rule by the consent of the governed. I’m having an ongoing argument with my PhD supervisor on this — he claims that we either hold to the mystical notion of consent as an act of will, or else follow Hume and give up on it completely. But Hume’s critique was of the ahistorical social contract, so I question as to why we must we choose between the rock (mystical acts of will) and the hard place (meaningless fictions). I argue instead a commonsense heuristic approach — if it makes no difference whether or not I attend in person, then why would I consent if I attend but not if I don’t? All that is required is a demonstration of consistency between the decision output of different population samples. No doubt this fails the Humean impossibility claim (inference to universals by induction), but in practice we are perfectly prepared to infer universals from repeated observations of the same phenomena, so long as the evidence is consistent. If that’s good enough for science then it’s good enough for human affairs. Evidence of inconsistency between the decision output of different samples of the population would be a refutation of heuristic consent-by-proxy — if it would make a difference to the outcome if I attend in person then I would not consent to a decision taken in absentia. So the consent-by-proxy thesis is open to testing by the standard Popperian mechanism of falsification. I suppose I need to save up now and commission Fishkin to do the social science experiment.

    If we must insist on retaining mystical acts of will, then the appropriate unit from a democratic perspective is the general will (as opposed to the whims and fancies of concrete individuals). If the different samples return the same decision outcome then they are all samples of the general will, to which (by definition) I consent as it is my own will. Hopefully that should keep the mystics and romantics happy as well as those of us who like to keep their feet firmly in contact with the ground.

    The notion of the consent of the governed is central to both moral philosophy and practical politics (assuming we don’t want to live in a police state), so Yoram, Campbell and yourself really need to come up with a falsifiable demonstration of how an all-sortive polity would fulfil the consent criterion. I know your concerns are primarily epistemic, but I don’t think you can completely ignore the moral case for democracy, especially if the result of ignoring it is that people take to the streets.

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  9. Yoram,

    Just finished chapter 10 and would note Hansen’s conclusion to the section on the boule’s role in legislative decision making:

    “The Council prepared the business of legislation just as it did that of the Assembly decrees, though the decisions were taken by the nomothetai (as by the people in the Assembly) on the basis of motions proposed by ordinary citizens” (p.257)

    This is the four-stage process that I argued above should be followed for a modern version of 4th-century democracy. Hansen also emphasises the deme-based selection process (which would thereby make it easier for ordinary citizens to get an item on the initial Council agenda). The relationship between Councillors and their fellow deme-members would not have been entirely dissimilar to an MP and her constituency (apart from the different balloting methods employed).

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  10. “Consent of the governed” can only be tacit (the population’s failure to rise up in revolt). Even if all adults participate in a referendum adopting a constitution and it passes unanimously, over time those who consented die and are replaced with a new generation, or those who voted for the constitution might simply change their minds and no longer consent. In what meaningful way do people consent to the system of government in their own country, other than by not moving away or revolting?

    It seems to me that the best that can be achieved is to have periodic referenda on whether a constitution (form of government) should be confirmed of amended. Many states in the U.S. once had automatic reviews of their constitutions, or constitutional conventions, every X years. Unlike existing governments, sortition can’t boot-strap ITSELF into existence. It seems that any adoption of an allotted system of government would have to be established through some sort of referendum (or less likely by being imposed by an elected government or the victors of a revolution).

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  11. Terry,

    I agree that the social contract theory of consent focuses on constitutional issues and foundation myths. To my mind this is little better than Kiplingesque Just So stories. My concern is with the far more demanding problem of consenting to actual legislative outcomes. This was also Rousseau’s concern and it required him to posit the notion of the general will, which cannot be represented and required everyone to consent in person. However it can be sampled, so the challenge, for those of us who still believe that the people should consent to the laws made in their name, is how to sample informed public opinion in a way that is consistent between samples — I would claim that this is possible if the mandate of the allotted assembly is severely constrained and that this is open to empirical confirmation/refutation. If it were confirmed by experiment then the consent would no longer be hypothetical.

    Whether or not such consent is tacit is a moot point. If it makes no difference whether a) I attend and consent myself or b) attend vicariously (by proxy), does it make sense to call a) real consent and b) tacit? If we take a heuristic (rule of thumb) perspective then the distinction is unimportant. More importantly such an outcome would be viewed as legitimate in the eyes of the general public as they can have their cake and eat it (i.e. get the legislative outcomes they would have chosen without having to bother to turn up). But that would not be the case if the legislative outcome were to vary significantly between samples.

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  12. >BTW, it just so happens that, spin things as you will, the Athenian system did have its agenda set by an allotted body – the Boule.

    This is what Headlam has to say on this claim:

    “The council was not, as we are apt to think, a dignified deliberative body, where men met together quietly in oder to discuss and prepare schemes for the public welfare, which should afterwards be laid before the Assembly and receive its sanction . . . It was not a deliberative, but an executive body; it was concerned not with policy, but with business” (p.57)

    Although this is from a very old book (1891), Manin, Urbinati and Hansen are broadly in agreement. To Headlam the reason the council was chosen by lot was in order to safeguard the supremacy of the assembly. Any proposal to increase the power of the allotted council at the expense of the popular assembly would have been viewed by the Athenians as oligarchic. It’s interesting to note though that the 4th-century transfer of legislative powers from the assembly to the legislative courts was not seen as oligarchic, presumably on account of the ad hoc nature of the latter (combined with the vote in the assembly that there was a case for legislation).

    Headlam also views the graphe paranomon as an analogue of modern elections

    “The verdict [of a political trial] was not on the accusation, it was on the whole life of the man; it was a vote of confidence or non-confidence given by the people as a result of their observation of his political career, a vote of the same kind as that which in England is given at a general election” (37).

    This would suggest that politicians who make proposals that turn out not to be in the interests of the people should suffer the consequences. Although we need not be bound by precedent, it’s always better to build on the experience of our predecessors, rather than just relying on armchair thought experiments and then making misleading claims as to their provenance. My own (four stage) proposal, by contrast, is a direct analogue of Athenian political practice, tilted slightly towards the Greek notion of ‘moderate’ democracy. Hansen insists that even after the 4th-century reforms Athenian democracy was still ‘radical’, hence my increased role for election and appointment.

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  13. PS:

    “The fact that an orator was always held [personally] responsible for any motion proposed by him shows that the council had not power seriously to alter the matter of a decree, ant that in the exercise of its Probouleutic duties it did not in any way concern itself with the wisdom of the policy proposed.” (Headlam, p.60)

    ‘Orator’ (rhetor) is translated as ‘political leader’ by Hansen, and these were a tiny minority of semi-professional politicians.

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