Minimal Reforms

“What minimal reforms would you like to see implemented given the reasons you advocate for sortition?”

The subject of this sentence is “minimal reforms”, so this would indicate an emphasis on practical implementation (or, even, incrementalism), as opposed to a blueprint for the New Jerusalem, Utopia, New Atlantis, Aleatoria or the Republic of Politdoche. The latter would require a different strand with a focus on utopian literature, revolutionary pamphlets, polemical tracts, diatribes and science fiction. I suggest also that if we are going to comment on other people’s suggestions we should avoid the use of sarcasm, sloganising and name-calling. (Note, though, these are only suggestions, rather than [authoritarian] edicts.)

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19 Responses

  1. The minimal reform necessary would be to establish a People’s Parliament in which ordinary citizens chosen by lot determined the outcome of the legislative debate. In a country such as the UK, which has no written constitution, this would simply require replacing one form of election mechanism (preference ballot) with another (election by lot) and it would have the added epistemic advantage that representatives would be obliged to listen to the debate before trooping through the lobbies on the sound of the division bell.

    No formal change would be required to the executive branch as the appointment of government officials by partisan means is a modern aberration with no formal constitutional status. It would be harder to envisage such an innovation in a country with a constitution written in stone such as the US.

    The proposal would leave an ongoing role for political parties, as the majority party/parties would have the non-exclusive right to introduce manifesto pledges as parliamentary bills. Given that modern politicians like to sub-contract all difficult decisions to expert commissions, politicians might well find such a minimal reform attractive. As such there is a greater chance of peaceful implementation than proposals that require the turkeys to vote for christmas.

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  2. Gil Delannoi, Oliver Dowlen, and I are putting the finishing touches on a report dealing with some concrete policy recommendations re: sortition. When it’s available, we’ll let everyone know.

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  3. By “minimal” reform I mean a step in the desired direction that has a realistic opportunity and may lead to further steps.
    A significant reform needs to put real decision-making power over some aspect of public policy (government), even if that authority is for a relatively minor or narrow realm of policy, into the hands of an allotted representative group. This might be an issue of zoning, street re-paving, healthcare benefits, etc. Advisory bodies don’t seem to me to have much potential for leading to further steps.

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  4. Getting the voters used to sortition is best approached by supporting moves to set up citizen juries on significant policy matters at appropriate levels of decision. See the website newdemocracy.com.au
    It has often been shown that such juries arrive at sensible decisions. Of course, they lack power, but it may become increasingly difficult for those who exercise power to ignore them once they become a feature of public life.
    My own view is that this process should lead to a decentering of power and the reduction of power-trading in which constructing political alliances counts for more in decision-making than the needs of those affected by the decisions in question.

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  5. Frankly, I can give only a provisional answer, as I am still thinking about the issue and sifting through the few experiments that have been done. My instinct is that a “new ideal notion of political organization” might be needed; but that is not what the question asks.

    At any rate, the question could use some refinement. What “minimal reforms” would work in one country with its culture may not in another. I will answer for my experience in the US.

    Many of the most important decisions are made not in the Legislature but through Executive agencies, such as the Federal Communications Commission, the Environmental Protection Agency, etc. This means that sortitive juries should take part both in law making and in “rule making” and in the “quasi-judicial” hearings inside Executive agencies. Moreover, because American judges are so powerful, a citizen jury should take part in the confirmation of Federal judges.

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  6. Yes indeed, but wouldn’t this happen automatically if the legislature was constituted by sortition? I don’t know the exact parallel in the US but in the UK every government department is overseen by a parliamentary select committee. The one area where this doesn’t happen is the confirmation of senior judicial appointments where our process (unlike the US) is supposedly non-political, although this is a contentious claim. As for the “new ideal notion of political organization” I don’t think this is going to happen any time soon (if ever), so doesn’t really fit with your own original question (“what minimal reform . . .?”)

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  7. @AhmedRTeleb

    Good news: you don’t need any reforms at all!

    Start a political party with a manifesto to govern exclusively by sortition (or direct democracy).

    If you’re unsure how such a system would work, test it out by running a youth parliament.

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  8. *** I agree with AhmedRTaleb : in many contemporary States we have various « autonomous public agencies ». In some of them we could propose control by an allotted body.
    *** Some political questions are reasonably separated from general policy, but important. There was recently in France a big fuss about not really « gay marriage » (rather accepted by the opinion) but about Medically Assisted Procreation and the legitimacy of surrogate mothers. Many would like a referendum on this issue. But the drawbacks are well known, including bad deliberation and binary choice. Instead of a general referendum, the decisions on this specific issue could be given to a « mini-populus ».
    *** Many societies (for business, cooperatives, mutual help, charities etc) are organized along a representative logic ; with often very poor control or supervision by the shareholders or members. A supervisory allotted body, using regular audits, could be a popular idea.

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  9. Andre: >Many would like a referendum on [medically assisted procreation]. But the drawbacks are well known, including bad deliberation and binary choice. Instead of a general referendum, the decisions on this specific issue could be given to a « mini-populus ».

    Absolutely, that’s what allotted juries are for, but they would need to be well informed and in a balanced way if their decisions were to represent the considered judgment of the whole political community. If different samples returned conflicting verdicts on the same topic then their decision would not be representative and the only way to ensure consistency would be for information and advocacy to be supplied by third parties. And surely this is true for every political issue? — not sure what you mean by “general policy” and why this would not be suitable for treatment in the same manner.

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  10. Minimal reform:
    It feels odd to agree with Keith, but yes, in a country with a Westminster-style parliamentary system, simply replace the ballot by sortition. This is of course a major change in its implications, but it is minimal in the sense that it is an easy concept to grasp, and for this reason might have a hope of being adopted one day. (Tee-shirts with “SORTITION!” in big letters, anyone?)
    I’d also like to see an independent salaries board for setting MPs’ salaries, and rotation of the Speaker every day or two.

    One might ask what happens in federations, eg Canada or Australia. Would the adoption of sortition exacerbate conflict between the federal government and the governments of the states/provinces? After all, the latter should be unnecessary for representation, indeed they would bias it, and in principle the executive functions could still be performed locally under the authority of the corresponding federal body. It might be hard to convince the Québecois of this, though (language education . . ), or even the Queenslanders or Tasmanians.

    In other countries, constitutional change probably wouldn’t come without a major crisis. Since these often come spontaneously as a dictator loses his grip, a simple concept like “a parliament like that of Britain, but chosen by lot” might have a chance of adoption, if it became widely enough known.

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  11. Thanks Campbell. André’s suggestion to focus on controversial issues where there is now a call for a referendum is a good one. In the UK difficult issues are usually farmed out to judge-led expert enquiries or Royal Commissions. All you would need to do to establish democratic legitimacy is add a jury. If you cast your mind back to the Hutton Enquiry, the public and media outcry was not the way the enquiry was run but the fact that the verdict was left to Lord Justice Hutton alone (one could make a similar argument regarding the Leveson Enquiry). Just imagine how different both enquiries would have been if the outcome was determined by a jury selected by lot. In terms of practical implementation this would simply put judge-based public enquiries on the same basis as any other court case, so should be acceptable to all and sundry. And if it works for one-off controversial issues, then why not for legislation in general?

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  12. Keith,
    >”Just imagine how different both enquiries would have been if the outcome was determined by a jury selected by lot. In terms of practical implementation this would simply put judge-based public enquiries on the same basis as any other court case, so should be acceptable to all and sundry.”

    A step in the right direction, by all means, and perhaps indeed widely acceptable. You haven’t mentioned the size of the juries you propose, but I fear that with a small jury a judge in his majesty could still abuse his powers, for instance by directing them to disregard all evidence he found inconvenient – or simply to overawe them with his (dare I breathe the word?) “illocutionary” power. (scare quotes). And of course if they are free to chat or deliberate amongst themselves, they could illocute each other. Does this not concern you? A jury of considerably more than 12 might have the courage to stand up to the judge, but obviously the cost might be very high.

    On the other hand, I can see a danger that a judgeless, all-citizen body might lapse into lynch law if confronted with prominent and highly unpopular persons suspected of skulduggery. Bankers? Muslims? Margaret Thatcher?

    I don’t pretend to know the answer for judicial enquiries such as you mention, but I do think there is a big difference between them and civil or criminal trials on the one hand, and legislating on the other.

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  13. And perhaps neither enquiry would have been necessary under a government chosen by lot.

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  14. Campbell,

    Yes, the jury would need to be of such a size as to counterbalance the illocutionary weight of the institutional factors (judge, expert witnesses, advocates etc). I imagine the 12-good-men-and-true formula was arrived at on account of cost, historically small-scale communities, and also the need for unanimous verdicts in criminal trials; a descriptively-representative jury would need to be at least one order of magnitude bigger. The cost of judge-led public enquiries is astronomical, so tagging on a jury wouldn’t make a huge difference. As you know I’m chary about jury-room deliberations and they certainly wouldn’t be necessary given the tonnes of CO2 already generated by the advocates/expert witnesses and the acceptability of a majority verdict.

    Bear in mind that this is in response to André’s suggestion as to what sort of innovation is practically feasible, given the only experience we have of sortition is in the trial jury. To extend the jury principal to public enquiries would be a tiny “modernising” step, especially as politicians hate referendums (as voters tend to vote based their own issues, rather than the one on the referendum paper). And if it can be demonstrated to work as a referendum surrogate then it wouldn’t be such a huge step to go for general legislation.

    The key issues are whether the result is sensible (epistemically) and whether it is seen to represent the informed decision of the general public (as opposed to the wishes of a small number of individuals). Given also that we would be dealing with very controversial issues it’s imperative that the proceedings are entirely public, and the advocacy is seen to be well-balanced. The problem with the Leveson Enquiry into the tabloid press was that Leveson chose all the witnesses and there were no advocates for the defence, so it was little more than a kangaroo court. If the proceedings were televised then the cameras would need to scan over the jury of 300 or so citizens regularly, demonstrating that it was a true portrait-in-miniature. If jury-room deliberation were (unwisely) permitted this would also need to be televised.

    Given Ahmed’s original question was regarding “minimal reforms” it would be great if we could find an initiative that we could unite behind. At the moment André’s proposal would appear to be backed by Campbell and Keith. Any other takers?

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  15. The key in my mind is that the jury have final authority (perhaps it would be acceptable to be subject to some sort of super-majority legislature veto). Which topic the jury tackles is less crucial (as a “minimal” reform), though I would steer away from things like “redistricting” that seek to shore up flagging legitimacy of elected legislatures.

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  16. Agreed. Referendums are generally binding, but judicial enquiries often lead to the issue being kicked into the long grass. Having a jury would give the process added legitimacy, making it more difficult for political leaders to ignore the decision. If controversial issues are involved politicians may well choose to take cover behind the decision, so I think this may well be pushing at an open door. Apart from André’s reproductive rights issues, other examples could include the legalisation of recreational drug use and assisted dying.

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  17. If I could PICK the issue for early use of a policy jury, I would prefer one where the jury was choosing between broadly acceptable alternatives, or where the public accepts that they just don’t know enough to have a firm opinion, rather than a case where much of the general public already has a distinct opinion (like abortion). People will tend to blame the use of sortition for selecting an option they happen to oppose. Sortition will from then on have opponents. While it is true that elected politicians would be more likely to give such “no-win” choices to a policy jury…the EARLIEST uses of sortition should IDEALLY be ones where the vast majority of citizens will happily accept the result, as a way of building a positive track record. Once the concept of sortition gains general acceptance, THEN more controversial topics can be tackled without strangling sortition in the cradle.

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  18. Yes, good point. I suppose that’s one reason why these forums have been on issues like electoral reform. Agree it needs to be an issue that people do care about, but on which are not particularly well informed. Perhaps the Japanese energy DP is a good example (although this was also controversial), but not abortion where it’s hard to shift a priori views. In the UK, ongoing membership of the EU might well be ideal — this would also demonstrate the need for balanced expert advocacy. The issue also has the merit of being on the referendum agenda and the source of great embarrassment (and electoral damage) to the coalition government. I would imagine that Cameron would love in principle to let a well-informed microcosm of the people decide, as it will enable him to shoot the UKIP fox — currently in danger of decimating his party.

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  19. This is not necessarily part of a minimal reform, but for anyone interested in philosophy of law, jurisprudence, a short editorial of mine on Google’s recent ‘goole.ps’ decision appeared recently on FairObserver: http://bit.ly/GooPal
    It’s but a sketch of a larger project that should soon materialize. At any rate, I feel that long term political reform should include a look at law and the nature of law.

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