Spectator call for nomothetai to decide Britain’s membership of the EU

Sir: Peter Jones (25 May) is right to draw an unfavourable comparison between ancient and modern democracy, but he is focusing on the wrong institution. The Athenian council was merely the secretariat for the general assembly, and the legislation passed by the assembly was often as erratic as modern referenda. After the restoration of democracy in 403 bc, legislation was entrusted to nomothetai — large randomly selected juries that, unlike modern parliamentarians, were obliged to listen to the arguments of well-informed advocates for and against the proposed law before deciding the outcome by secret vote

If David Cameron wants the people do decide. . .

read on: http://www.spectator.co.uk/the-week/letters/8921081/letters-285/

This proposal, written in response to André Sauzeau’s proposal for minimal reforms, was submitted as an article (see below) and originally accepted for publication by the Spectator, but ended up cut down into a short letter. The Spectator website has a comments section, so suggest we use that as an opportunity to kick-start the conversation on sortition there, rather than commenting on this forum.

Full article:

Put the EU on Trial

By Keith Sutherland

The answer to Britain’s EU problem is not a public referendum, it’s an adversarial judicial inquiry in front of a large citizen jury, selected by lot

The success of UKIP in the recent elections has led to unprecedented soul searching within the political class in general and the Conservative Party in particular, with no fewer than three former cabinet ministers arguing that Britain should leave the EU. David Cameron has committed the party to a referendum on EU membership, but the public often just use referenda as an excuse to put two fingers up to the government. There is an urgent need to find a more reliable mechanism to allow the people to make a well-informed decision on what is arguably the most important issue in contemporary politics.

Judicial inquiries have, on the whole, a good procedural record – the Hutton Inquiry into the role of the BBC in the death of David Kelly was widely praised for its well-balanced and highly public proceedings. The problem was the lack of democratic participation – there being no jury to decide the outcome. The inquiry verdict (guilty) was entirely down to m’lud – in this case a lord justice who had spent most of his time in Northern Ireland’s Diplock courts and whose conclusions were coloured by his own thinly-concealed contempt for the media. The Leveson Inquiry could be criticised along similar lines, and its additional failing was the adoption of the continental system of the examining magistrate, who summons his own witnesses and permits no cross examination. Although the press were on trial (again), there were no lawyers for the defence. Leveson was unimpressed by Private Eye editor Ian Hislop’s suggestion that the inquiry might like to call some members of the public and ask them why they bought the News of the World. “I don’t think”, retorted the noble lord, “we’ll necessarily do it in quite that way”. Lord Justice Leveson wrote his own report (albeit with a little help from Hacked Off) – how different the outcome of both inquiries might have been if they had followed normal trial procedure, with adversarial exchanges followed by a decision by twelve randomly-selected ‘good men and true’ (in fact the jury would have to be much larger in order to be considered representative, but more on that later).

Why not adopt a similar approach – an adversarial judicial inquiry before a randomly-selected citizen jury – as an alternative to a referendum? There is nothing remotely new about the juridical approach to policy-making. Athenian democracy – invented by Cleisthenes in 508 BC – is normally categorised as a form of ‘direct’ government, as every (male) citizen was entitled to attend and vote in the general assembly (ecclesia). But this meant poorly-informed snap decisions under the influence of charismatic demagogues, which led to the emptying of the public coffers and a disastrous defeat in the Peloponnesian wars. So in 403 BC the Athenians established a system of legislative courts (nomothetai) and every new law had to run the gauntlet of adversarial debate in front of a jury comprised of several hundred citizens selected by lot (they even devised a special machine called a kleroterion to make the draw). The proposer(s) of the new law would argue for it and the Assembly would appoint advocates to oppose it, but the outcome was decided by the randomly-selected jury voting in secret.

Although Aristotle was hostile to government by popular assembly he praised this ‘wisdom of crowds’, concluding that, under the right conditions, ‘the many’ (hoi polloi) judge certain matters better than individuals or small groups. This is because of the sheer diversity of perspectives involved: “for each of them may possess some part of goodness and wisdom; and when they get together, as the mass may be a single man with many feet and many hands and many senses, so it may be with their character and thought.”

The truth of Aristotle’s conjecture was proved in 1785 by the Marquis of Condorcet’s Jury Theorem, according to which a jury is increasingly likely to converge on the ‘right’ answer as its numbers increase (assuming independence of judgment and a minimal threshold of competence). And there is a wealth of modern research evidence to suggest that the ‘cognitive diversity’ produced by large randomly-selected juries is the best way of deciding important issues. Election, by contrast, tends to select people of similar backgrounds (lawyers, Oxbridge PPE graduates, policy wonks etc) who are often prone to the malign ‘groupthink’ effects that are characteristic of homogeneous assemblies. The psychologist Richard Tetlock’s demonstration that ‘expert’ political judgment is little better than average has now been widely replicated.

Stratified random selection is also the best way of establishing an assembly that represents the entire population ‘descriptively’ – a ‘portrait in miniature’ of the entire citizen body, as US founding father John Adams put it. A randomly selected group of a few hundred would be almost exactly 50/50 male/female and would be an accurate reflection of age, socio-economic category, political leanings etc of the whole citizen body to a level of statistical confidence of over 90%.

And this is not just a matter for political theorists and statisticians. Professor James Fishkin’s Centre for Deliberative Democracy at Stanford University has been conducting social science research experiments along these lines for over twenty years in countries all over the world. Fishkin’s Deliberative Polling (DP) experiments demonstrate that ordinary citizens are perfectly capable of deciding complex issues when presented with balanced information and advocacy and empowered to deliberate together over a period of a couple of days. (Fishkin’s notion of deliberation is derived from the Latin liber (weight) so the role of the citzen jury is to silently ‘weigh’ the competing arguments before registering their vote.) The success of the experiments has led him to claim that the deliberative verdict of the microcosm in the DP indicates what everyone would think under ideal circumstances: “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.”

But then why not provide balanced information and advocacy to everybody prior to a referendum? The problem that plebiscites share with electoral democracy is ‘rational ignorance’ – it makes no sense for voters to take the considerable time and effort required to inform themselves properly on election or referendum manifestos as each individual vote carries negligible causal weight. As NYU political scientist Russell Hardin memorably put it, “having the liberty to cast my vote is roughly as valuable as having the liberty to cast a vote on whether the sun will shine tomorrow.” The other problem with referendums is that voters often decide simply not to answer the question, and merely return an overall verdict on the government

Fishkin’s DPs have mostly had an advisory role; the only time that the results were automatically adopted was in the People’s Republic of China. In 2005 the Communist Party leadership in Zeguo province commissioned a Deliberative Poll of a random sample of 235 citizens to determine public priorities in infrastructure spending. Even though the popular preferences indicated after the information and deliberation sessions were entirely contrary to their own, the party leadership duly implemented them, leading Fishkin to salute the Chinese for developing an entirely new model of democracy that “may set an example for public consultation in many settings around the world”.

If we don’t want to be outdone by the Chinese in democracy as well as everything else, we would do well to look seriously at these experiments, and where better to start than with an issue that has caused so much heartache to the Conservative Party for so many years. Who would the advocates be for an adversarial inquiry on Britain’s membership of the EU? The arguments for and against in the 1975 referendum were coordinated by cross-party umbrella groups and the same would be the case for a new referendum, public inquiry or Deliberative Poll. There would be no shortage of those seeking to advise and inform.

But however good the advocacy, referendums indicate, putting it charitably, poorly-informed preferences. Much better to assemble a representative microcosm, or ‘mini-public’ as veteran Yale political scientist Robert Dahl terms it, and allow them to weigh the competing arguments as a proxy for the rest of us. No doubt political jury service would be just as tedious as its judicial namesake, so those of us who fail to draw the lottery ticket would be the lucky ones.
Keith Sutherland’s books The Rape of the Constitution? and A People’s Parliament are published by Imprint Academic.

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11 Responses

  1. The piece by Peter Jones that Keith is responding to is here:

    So Mr Cameron is offering us the faintest prospect of a referendum on the EU. Ancient Athenians would have laughed him to scorn.

    Meeting in the Assembly roughly every week, Athenian males over the age of 18 decided all Athenian public policy. But since there were thousands of them, who could hardly just turn up and decide what to discuss on the spot, the day’s agenda was prepared for them by the Council. This consisted of 500 Athenian males over 30, drawn by lot from those who put themselves forward. Each councillor served for one year only, and could never serve for more than two. One of the Council’s main functions was to receive business, determine if it needed action, and if it did, put it in the shape of a motion for the Assembly to debate. Socrates served as a councillor; we hear of him preventing a highly emotional Assembly from passing a decree, because it was illegal.

    The motions put by the Council to the Assembly could take one of two formats: a precise form of words (‘the Assembly should decree that…’), or a question (‘The Assembly should discuss what to do about…’). But in all cases, it was the controlling principle of Athenian democracy that the Assembly was sovereign. If the Assembly did not like what the Council had proposed, it could throw it out, amend it, put forward an entirely different version or ask the Council to do so.

    Politicians and chatterati, of course, abhor such ‘populist’ politics. But when one considers what the Athenian people could have done — agreed pensions for life, debt abolition and redistribution of land, seized the wealth of the rich, executed the aristocrats — it may suggest that if you give the people such Council-guided responsibility, they will rise to it. So what do we get? An EU referendum (i) in four years’ time, (ii) only if Cameron is returned, and (iii) only if we wring concessions out of Brussels. But if Brussels remains obdurate, then no referendum. But surely the whole point… oh, forget it. Cameron’s contempt for us is thoroughly reciprocated.

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  2. Peter Jones seems to be making comparisons of modern and Ancient Greek politics on a regular basis – may be interesting: http://www.spectator.co.uk/author/peter-jones/

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  3. Thanks Yoram. On the subject of Peter Jones’s original post, on Tuesday I met up with Peter Rhodes, who’s book on the Athenian Council is probably the definitive work and quizzed him on the degree to which the Council was a deliberative agenda-setting body in the modern sense. He was less sceptical than I anticipated, and said there wasn’t enough evidence to indicate one way or the other. I mentioned Headlam, who argues the case that it was just an administrative body and he said that he hadn’t read his book for some time.

    So I think I need to recant my strong argument against the boule as agenda-setting (as opposed to mediating the suggestions of others). But it’s one thing claiming that the council played an active role in setting the agenda in Athens, when a simple majority of citizens could claim to have served at least once in their lifetime, and the modern equivalent, where only a miniscule number would ever hope to be allotted. So the former would have been democratic in the rule-and-be-ruled sense; not necessarily so the latter case.

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  4. Keith, I simply cannot make sense of your uninhibited praise for the Athenian jury and equally uninhibited criticism for the Athenian Assembly. It seems to be an uncritical embrace of a view of 5th century Athens as “democracy gone crazy,” a view now (I think) largely rejected. The design features of the Assembly and the Jury seem too similar to me to support such a charge. Like assembly decisions, jury proceedings were very brief. Indeed, correct me if I’m wrong, but the jury presentations were strictly time-limited while the assembly debates were not. Like assembly meetings, the jury listened to a bunch of orators who might be long on rhetoric and short on substance. Like the assembly, the jury decided without any effective conversation between ordinary citizens. One cannot even say that “rational ignorance” applies here; if you were at the assembly, it didn’t cost you any more to listen and think carefully than if you were on a jury. That doesn’t deflate the case for a modern-day Nomothetai; I rather like the idea myself. But I think it’s wildly overblown to equate the Athenian assembly with the modern referendum.

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  5. Yes, that’s certainly Josh Ober’s view (as opposed to, say, Hansen and Rhodes, the latter being pretty scathing about Ober’s “postmodern” project). The problem that Ober (and yourself) have to address is why was it that the Athenians believed it necessary to reform the legislative process in order to establish the “rule of law rather than men”? Why bother to take the trouble to redesign something that isn’t broke and to replace it with something just as bad? Even Peter Rhodes, who takes issue with Hansen’s focus on formal constitutional institutions, acknowledges that the 403 reforms were certainly intended to overcome some of the deficiencies in Assembly-based decision making. I don’t have Hansen’s book to hand right now, but he does make the claim that court proceedings were considerably longer than Assembly debate which often lasted only 10 minutes or so. I don’t dispute the fact that the courts were subject to demagogy but in the nomothetai the attempt was made to ensure that the demagogy was well-balanced via Assembly-appointed orators (as in the modern Anglo-American trial system).

    Having said that, Rhodes does chide me for being a little unfair to the Assembly: “I think [you are] too pessimistic: a high proportion of those attending were holders of some office at the time or in the recent past, and though demagogues might exercise a malign influence I think the Atrhenian assembly was a reasonably well-informed and sensible body. What was perhaps a greater weakness was that, without modern political parties and party discipline, the assembly was inconsistent in its decisions and not even a Pericles could be sure that the assembly would vote as he wanted always or on a particular occasion.”

    Fortunately my proposal does not require an exact analogy with Athenian practice, which would not be possible in any case (given the need for representation in large political communities). All I need to do is to make the uncontroversial observation that referenda do not return a considered verdict on anything, so a deliberative mini-public would do a better job. Strictly speaking, there is no need to cite Athenian practice at all but, as a conservative, I always like to propose innovations that are tried and tested.

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  6. My understanding is that on regular juries, each side got something like an hour. Is that right? Don’t know what it was for the Nomothetai. As for the Assembly, I’m sure a lot of routine decisions would be made in ten minutes or less, but I sincerely doubt big decisions (like going to war) were made that fast.

    One more point worth adding on this subject. Correct me if I’m wrong, but neither the juries nor the nomothetai were selected randomly from the entire population, or even the entire population of adult male citizens. They were selected randomly from a pool of volunteers, which could (and probably did) look very different from the general population. So in that regard, the juries and the assembly weren’t all that dissimilar; neither would give you the descriptive representation as you would like it.

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  7. Yes that’s right, the juries were formed by double sortition from a pool of volunteers and this would have distorted representativity (in addition to the inbuilt bias towards the old, the poor and citizens who lived in Athens). But powerful social pressures encouraged political participation — most citizens would have held office or undertaken jury service once or several times in their life. Not so in modern liberal democracies where you have to be distinctly odd to engage in politics, hence the need for lottery participation to be quasi-mandatory, in order to ensure accurate statistical representation. All this would constitute a departure from Athenian practice.

    Incidentally Peter Rhodes pointed out that we don’t actually know how the nomethetai were appointed, we just assume that the process was the same as with the other juries. It’s also the case that the kleroterion machines were introduced later in the fourth century.

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  8. Peter,

    The Nomothetai were randomly selected from the same pool of 6,000 randomly selected volunteers over the age of 30 that made up the “jury pool” for that year. In addition to age, they were seen as different than the Assembly in that they also took the Heliastic Oath to be impartial and fair. The proposed law change was essentially put on trial with advocates and opponents. The law trial could take a full day, but I don’t think they ever extended into a second day.

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  9. Melissa Schwartzberg gave an interesting talk last week in London at the Institute for Historical Research on “Voting and Judgment in Assemblies and Juries in Classical Athens”. In the talk she contrasted the personal motivation of Assembly voting with the (supposed) impartiality of jury voting. The talk though was mainly on the law courts (dikasteria) as opposed to legislative courts (nomothetai). She disagrees with Hansen regarding the importance of the Heliastic Oath, but some modern equivalent would be necessary in a modern incarnation as part of the general decorum required to encourage decision-making in the national interest.

    >The proposed law change was essentially put on trial with advocates and opponents.

    I can’t imagine a better way of resolving the Britain/EU issue and any other controversial decision. It would be a huge improvement on a referendum and would attract public support if it was demonstrated to be truly representative. The best way would be to have (say) three parallel nomothetai and require unanimity. It would be hard then to dismiss the decision outcome as anything less than the considered verdict of the whole citizen body: “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). I proposed this yesterday to Douglas Carswell MP, a leading advocate of democratic innovations, and am awaiting his response. Hubertus Buchstein also contacted me saying he was discussing a similar approach to deciding Germany’s austerity approach to Eurozone fiscal deficits.

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  10. By the way, that was me, terry, as anonymous (new web browser that didn’t automatically log me in.)

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  11. Terry,

    Your perspective on the nomothetai is clearly from Hansen. This is Rhodes’ gloss:

    “Kleroteria were not introduced until some way into the fourth century. They were used to allocate jurors to courts, and we don’t know how nomothetic panels were made up. . . The nomothetic panels were made up from men registered as jurors. On lawcourt days there were several courts meeting, so jurors had not only to be picked to serve on the day but to be allocated to particular courts. On nomothetic days, if nomothesia ran in parallel to ordinary courts men will have had to be allocated to nomothesia or to one of the other courts; but if ordinary courts were not meeting at the same time, then allotment will have been needed only if more men turned up than were required, to determine which of the men who turned up should actually serve. And I don’t think our evidence allows us to say which of those two scenarios actually occurred.”

    I responded to him that, although we can’t be certain of the details, it would be hard to imagine any other principle than the lot for constituting the nomothetic panels, the only issue being whether it was a single or double sortition.

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