Accountability and Sortition

In some sense, sortition side-steps the entire issue of “accountability,” in that none of the “legislators” on an allotted jury have any constituents to hold them accountable. For legislators, “accountability” assumes a division of interests or preferences between constituents and legislators, typically with elections (and the threat of removal) being used like a leash to keep the legislators in line, and prevent them from straying too far.

Jane Mansbridge of Harvard, who became president of the American Political Science Association in 2012 and authored the book “Beyond Adversary Democracy,” points out two approaches to accountability. The first is the “sanction” model of accountability (the dog leash). The other is selection of representatives who naturally, without external incentives, seek to represent the interests of constituents because they are congruous with their own.

Sortition expressly seeks to prevent “accountability” of legislators to the rationally ignorant, ill-informed, and fleeting preferences of the general population, while also preventing accountability to political and monied elites. I want my legislators to act as I would act if well informed, not as my current superficial understanding may suggest. So, with regards to legislative performance, sortition needs a different term than “accountability,” as a measure of its performance.

However, I think accountability absolutely IS the appropriate term for discussing the performance of the executive functions of government. But the accountability should be to allotted juries that are well-informed, rather than merely to an ill-informed and media-manipulated citizenry. Here sortition can play an important role in constituting juries for constantly monitoring the performance of government, with the job of hiring and firing executives.

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18 Responses

  1. >I want my legislators to act as I would act if well informed, not as my current superficial understanding may suggest.

    Agreed, but it would be a tough call if both ex-ante choices and ex-post sanctions were ruled out. Deliberative democrats like Mansbridge also assume that the sheer power of reasons can resolve the inevitable differences of preferences and beliefs that exist within a given population. I don’t think many of us would share that confidence and this would suggest a judicious combination of sanctions and congruity. Why does it have to be either/or? I think we should also be mindful of precedents — the only successful historical implementation of sortition certainly did not rule out the adversarial joust or sanctioning those who failed. Deliberative democracy is a normative project and there is always a danger in conflating “is” and “ought”, based on highly optimistic assumptions that human agents will behave in the way that Herr Habermas says they ought to.

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  2. Terry,

    You write

    > The other is selection of representatives who naturally, without external incentives, seek to represent the interests of constituents because they are congruous with their own.

    and

    > So, with regards to legislative performance, sortition needs a different term than “accountability,” as a measure of its performance.

    This but the situation described in the first sentence is exactly what sortition creates. (“Accountability” does seem like a misnomer for this situation – the proper description seems to be “alignment of interests”.)

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  3. Yoram,

    How can “alignment of interests” (an a priori claim) be a measure of performance? (only available ex post). It would appear that you are seeking to define the effect in terms of the cause (ie an empty tautology). Elected representatives can, and do, seek to make claims regarding the alignment of their interests and/or actions with the interests of their constituents and these claims are tested, ex post, by accountability mechanisms. No such mechanisms are available to a sortition-based polity.

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  4. I haven’t thought through the parallels for modern day, but it is noteworthy that in Athens there was pre and post scrutiny accountability measures for magistrates (executive function), but for legislative function the sanctions accountability was ONLY applied to the PROPOSERS of laws, and NOT they jury or assembly that might passed a “bad” law. They were deemed to have been misled. A lobbyist and legislative staffer who get a corrupt provision of law inserted into a bill that harms the public, under this analogy, might be charged, brought to trial and punished.

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  5. Terry,

    Fair point, but Athenian practice did, as you acknowledge, make proposing legislation a risky practice. Their concern was not really corruption, it was the prosecution of “unsuitable” or “inexpedient” laws (see my conversation with Andre: https://equalitybylot.wordpress.com/2013/10/06/david-van-reybrouck-against-elections/#comment-7336). The modern analogue of the prosecution of unsuitable laws is the ex-post accountability of political parties at the next election. What would the modern analogue of this be for a sortition-only polity, or must we rely on Yoram’s tautological claim for the alignment of interests?

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  6. To emphasise the riskiness of making unsuitable legislative proposals in Athens, Demosthenes liked to praise the legislative practices of the Locrians, who required all those proposing new laws to do so with a rope tied around their neck, which was tightened if the law was rejected. Pasquino (2010) observes that many of the practices of Solonic (elective) democracy were consciously adopted by the founders of modern representative government, having read about them in Thomas Aquinas’ Summa Theologica, but Hansen regrets that they did not adopt Athenian methods to ensure the ongoing accountability of elected officials. In this sense electoral democracy needs to be even more accountable.

    Which makes it even more odd that you wish to abandon the modest ex post sanctions that we have, in the belief that the allotment process will secure the automatic syncing of interests with the wider political community. Needless to say I agree that this is true when we are dealing with aggregate well-informed judgment; not so with the proposal function. If the proposals are simply to emerge from the deliberations of the microcosm not only will they fail to be representative (for the reasons that we have rehearsed many times before) but accountability will have been sacrificed as well for the reasons that you have stated.

    Demosthenes claimed that the competitive nature of political leadership was a vital aspect of Athenian democracy in the forensic speech (Dem.20) that Andre has drawn our attention too, so I’m puzzled as to why you wish to privilege modern speculations over ancient experience.

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  7. Keith,

    I agree that individual members of a jury need to be held accountable TO THE LAW (against bribery, etc.), but how could accountability apply to POLICY decisions of a jury? WHO would they be accountable to IN THE FLESH? They have no constituents, and It wouldn’t work to hold them accountable by referendum by the citizens as a whole who haven’t learned the information the jury heard. The only scenario I can imagine is accountability to ANOTHER allotted body…perhaps a bi-cameral approach, either simultaneous or sequential.

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  8. Terry,

    I’m glad that we agree regarding the impossibility of the collective accountability of an allotted jury. Whilst the scenario of accountability to another allotted body is certainly imaginable, it would lead to the problem of infinite regress — who would this second jury be accountable to, and who guards the guardians? You can split a sample as many times as you like, but it doesn’t change its essential (unaccountable) status. As in Athens, it was only be the proposers who were accountable (the jury were merely held to be deceived), hence my claim that you are throwing out the baby with the bathwater, such is your concern to avoid elections at any cost.

    PS In my last post on euthynai (on the other thread), I should make clear that I’m referring here to the principle of accountability (euthyna) as oppose to the practice of the Athenian courts for magistrates to provide account at the end of their tenure. In the fifth century politicians were held to account by ostracism, but this worked very poorly as it reduced the cognitive diversity of the political leadership and led to policy cycling. So it was replaced by political trials, in which the leaders had to defend their whole persona (including their policies). The modern equivalent of this would be elections. We’re all aware of the flaws of the electoral process, but it’s better than nothing, especially as all policy proposals have to run the gauntlet of an allotted jury.

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  9. […] a recent post Terry Bouricius argued that democratic politics is all about establishing a ‘congruity of […]

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  10. About accountability and democracy-through- sortition
    *** In a democracy-through-sortition, the one possible modern version of dêmokratia, critical decisions are taken by the dêmos through allotted bodies. “Accountability” is not a relevant concept for a sovereign body (clearly, there is individual accountability in case of corruption, for instance). Accountability to another political entity would mean transferring sovereignty to this entity, who would have “the last word”. As for accountability of an allotted body to the general dêmos, it would be absurd, if only because in modern societies we cannot organize serious deliberations of the general dêmos.
    *** As for administrative functions, accountability means overseeing of conformity to rules, of efficiency in execution and of lack of abusive behavior. The “euthynai” in ancient Athens had such a function. For modern complex administrative networks, audits would be necessary, carried or overseen by allotted bodies.
    *** The problem is for the “rhêtores kai stratêgoi”, following the Athenian wording . The “rhêtores” are the politicians who are usually heard by the dêmos about the choice of the best policy, who are considered as serious advisors. The “stratêgoi” are the managers of military affairs (not only war itself); actually the Second Athenian Democracy included as well financial managers. In a complex modern dêmokratia, most of the political fields would need a manager, not only military and financial sectors.
    *** Some persons dream of a modern dêmokratia without politicians. It is an utopia, and a dangerous one, because it could cover absence of regulation of this “class”. The politicians, or maybe better, the “statespersons”, will exist in any system, and the problem for the sovereign is to prevent them to coagulate into an oligarchy. The ancient French monarchy had its statespersons, and even the despotic-minded Louis XIV had some famous ones, as Colbert. The ancient dêmokratia has its statespersons, and its own ways of preventing the coagulation of an oligarchy; a modern dêmokratia, in so different a world, will have to look for its own ways.
    *** Let’s consider, for simplicity’s sake, an independent agency; for instance an agency in charge of overseeing and regulating blood transfusions. An allotted body would have to consider the different possible policies, and ask advices from the concerned statespersons. After the decision, this allotted body would have to elect a manager – and, clearly, to take him among those who favored the chosen policy. What means here “accountability”? If the policy has bad results (I hope not as bad as the disastrous results of the policy of the French polyarchy, leading to mass AIDS infection of hemophiliacs ), the sovereign body could say “either the policy you proposed was bad, or your management of it was defective” and sanction the responsible statesperson. By moral and political sanctions, if there is no patent abuse.
    *** I implicitly supposed that the policy chosen by the dêmos through the relevant allotted body was approved by at least some statespersons, with among them at least a serious manager. An exception would be of low probability, and the proposal would need closer attention. In such a case the management itself would be carried by an allotted body. But, frankly, such a case seems only of pure theoretical interest.

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  11. How, more exactly, do you imagine “Statesmen” existing in a sortition democracy? I can see that persuasive, well-informed, clever and charismatic individuals who take a keen interest in policy might seek to advise and steer the allotted bodies, but couldn’t such individuals come and go on an issue-by-issue basis, with no formal status, and no class of statesmen. ANYONE who wished could offer proposals (as In Athens), but only a small portion of the population would actually do this. Are you calling these self-selected people “statesmen” or are you imagining some formal process (such as election) for designating statesmen?

    Likewise, political parties would probably exist as public persuasion organizations (rather than contesting elections), just as countless single-issue advocacy non-profits would still exist…but they need no formal status in a democracy.

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  12. Andre,

    >The ancient dêmokratia has its statespersons, and its own ways of preventing the coagulation of an oligarchy; a modern dêmokratia, in so different a world, will have to look for its own ways.

    In the fifth century the mechanism was ostracism, in the fourth century it was the political trial. I have consistently argued that the modern equivalent is the principle of election (losers are “ostracised” and winners are held to account at the next election). The modern principle of the division of labour (and separation of powers) would suggest that we keep the rhêtores separate from the stratêgoi (as in fourth-century Athens). Whilst the latter (managers) could be appointed and held to account by allotted bodies, the former (politicians) are selected (and judged) on the merit of their proposals. As Andre points out the notion of politics without politicians is a dangerous utopian fantasy. Whilst its true that politicians could self-select and then be judged by an allotted microcosm, I can’t imagine that the vast majority of citizens who are disenfranchised by the allotment process would be content to play no role whatsoever in deciding how they should be governed. Given the long and bloody struggle for the franchise, do you really think it will be renounced so casually?

    >Accountability to another political entity would mean transferring sovereignty to this entity, who would have “the last word”.

    Absolutely, this was the argument provided by the Old Oligarch in defence of the dêmokratia. Unfortunately demos turannos didn’t lead to to good governance, hence the conservative 4th century reforms which replaced the tyranny of the demos with nomos turannos — the tyranny of the laws. The Greeks would have viewed kleros turannos (random tyranny) as little more than a sick joke.

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  13. Terry,

    > How, more exactly, do you imagine “Statesmen” existing in a sortition democracy?

    The statesmen would be one type of executive, hired, monitored and (if need be) dismissed by an allotted body. Other types of executives would be employed in other areas of government activity.

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  14. Imagining statespersons in a sortition democracy, Terry Bouricius says “ I can see that per-suasive, well-informed, clever and charismatic individuals who take a keen interest in policy might seek to advise and steer the allotted bodies, but couldn’t such individuals come and go on an issue-by-issue basis, with no formal status, and no class of statesmen. (…) Likewise, political parties would probably exist as public persuasion organizations (rather than contesting elections), just as countless single-issue advocacy non-profits would still exist…but they need no formal status in a democracy.
    *** Generally speaking, it is dangerous not to acknowledge legally the social realities. Ok, the Athenian democrats did it. In the First Democracy, statesmen in political competition came usually from the high nobiliary families –as Clisthenes, the founder of the democracy, himself. In the Second Democracy we see clearly a distinct “political class” which never got a legal status. But this aversion towards any distinction brought drawbacks. Politicians as ordi-nary citizens were allowed to receive gifts from their friends without interference, “if there was no intent contrary to public interests” – the road was open to corruption.
    *** The control of the dêmos over the “political class” could nevertheless have some effi-ciency, through the political trials. That was linked to the deeply agonistic Greek culture, and cannot be copied mechanically.
    *** Another form of control existed. A would-be politician, when asking for a seat in the (allotted) Council, could be subjected to a political exam (“dokimasia”) and if he was rejected because of his oligarchical leanings his political prospects were low.
    *** In a modern dêmokratia the regulation of the “political class” may be different given the situation. Some proposals:
    • Any person seeking to be selected as “manager” of a ministry or an independent agen-cy has to be accepted in a legal “political class” of authorized candidates, after under-going a political exam excluding those with a political past against dêmokratia (a modern “dokimasia”, by an allotted jury);
    • Any manager at the end of his responsibility is subject of an examination of his behav-ior, by an allotted jury; he is excluded of the class if he is found guilty of abuses;
    • The members of the “political class” have some specific obligations of financial trans-parency;
    • Any “public persuasion organization” could be subjected to a scrutiny by an allotted jury, not about the validity of its objectives (for nuclear energy or against it, it is not the point) but about the transparency of its funding, its democratic internal function-ing, its links to opponents of dêmokratia …. the idea being not to forbid expression to dubious people, the freedom of political speech cannot be infringed in a dêmokratia, but to inform the dêmos of the character of his would-be advisers.

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  15. About the Athenian ways of preventing the coagulation of an oligarchy, Keith Suther-land says “In the fifth century the mechanism was ostracism, in the fourth century it was the political trial. I have consistently argued that the modern equivalent is the principle of election (losers are “ostracised” and winners are held to account at the next election)”
    *** Ostracism was in the laws of the Second Athenian Democracy, through formal traditionalism, but it had fallen out of use. In the First Democracy, where statesmen in political competition came usually from the high nobiliary families, we can think of ostracism as a means of ending temporarily strife between the “bigmen”. It has been rightly considered as the final form, civilized and softened, of the “politics of exile” which we see in the aristocratic bloody strifes of the Archaic Greece.
    *** I agree with Keith about the Second Democracy political trials as mean of pre-venting the coagulation of an oligarchy. But I would add the “honorific decrees” and the corresponding competition. Actually the trial “about the Crown”, the most famous of the political trials, between Aeschines and Demosthenes, followed an honorific de-cree.
    *** “Election” by itself is not contrary to the sovereignty of the dêmos, who can choose a minister as an autocratic king can choose one. We get out of dêmokratia when there is election of a “representative”. In modern complex societies, we need managers, and not only for financial and military affairs, and I agree that election to ministries (or managements of independent agencies) would be a part of a “political career” of a statesperson in a modern dêmokratia.
    *** The general dêmos, in the Second Athenian Democracy, had given many re-sponsabilities to the legislative and judicial juries, keeping the last word only about peace and war. It is clear that in a society big enough (for a Greek City) and not so primitive, the Assembly lacked time and citizen availability to rule correctly on all matters. In complex modern societies it is impossible for the dêmos to rule seriously through general assembly (tele-assembly) and general vote. Democracy-through-sortition is now the one option for dêmokratia. This is true for the establishment of laws, for the choice between policies, and for the choice of managers carrying the pol-icies.

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  16. Keith Sutherland says “The modern principle of the division of labour (and separation of powers) would suggest that we keep the rhêtores separate from the stratêgoi (as in fourth-century Athens).”
    *** In the Second Athenian Democracy financial officers were statesmen. Right, military officers were often (not always) more or less “professionals”. We must re-member that in ancient Athens there were no high public servants. The stratêgoi were ministers of war and generals. The “depolitization” of the stratêgoi came from their professional military specialization. In a modern dêmokratia, the minister will be a statesperson elected to carry the chosen policy, and the generals will be military public servants.

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  17. Keith Sutherland says “I can’t imagine that the vast majority of citizens who are disenfranchised by the allotment process would be content to play no role whatsoever in deciding how they should be governed”
    *** I answers “I know that a good deliberation by the general dêmos is impossible. I think that the one way for the people to rule is through sortition. Therefore I don’t feel “disenfranchised” by a “democracy-through-sortition”. And I don’t think our system allows really the citizens to decide how to be governed. The “European Constitution” was rejected by the French referendum, and later practically the same text was voted by the “representatives” of the French people. You can say that in the referendum there was no good deliberation. Or that the representative election by general vote is a fallacy. I think both sentences are right.

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  18. Andre

    I agree with your response to Terry that it is dangerous not to acknowledge legally the social realities, including the ubiquity of political and economic elites. Also agree that Athens was a deeply agonistic culture with no modern analogue. But I’m sceptical that modern versions of dokimasia and allotted scrutiny will work to contain this power — these guys are just too smart and well-resourced. I don’t see that there’s any practical alternative to letting them slug it out in the public arena (competing for the honorific crown) and for the demos to pick the winner (either indirectly by choosing persons or directly by choosing policy proposals). If the power to choose is in the hands of the demos, then the only downside will be populism, but it is the task of allotted scrutiny to decide, after due deliberation, whether the winning proposal fulfils the general interest criterion. In the 4th century, legislative proposals had to pass the initial hurdle of the popular vote in the general assembly to set up a nomothetic panel — both elements (popular support and allotted scrutiny) were an intrinsic part of demokratia. Why do you suggest that a modern demokratia should exclude the former? The Greeks would have regarded rule by randomly-selected committees as a form of oligarchy and would have executed anyone who proposed it.

    Ostracism may have had its origins as a way of keeping the peace between warring aristocratic factions, but Eder is adamant that in the fifth century it was (effectively) a mechanism for (de)selecting political leaders. The reason it fell out of use was that it reduced cognitive diversity and led to policy cycling, hence its replacement by the political trial. The modern analogue is election.

    >“Election” by itself is not contrary to the sovereignty of the dêmos, who can choose a minister as an autocratic king can choose one. We get out of dêmokratia when there is election of a “representative”. In modern complex societies, we need managers, and not only for financial and military affairs, and I agree that election to ministries (or managements of independent agencies) would be a part of a “political career” of a statesperson in a modern dêmokratia.

    I’m glad that we agree (with Rousseau) on this, although I would prefer elections for policy proposals, managers being better appointed on the merit principle. Remember that in Rousseau’s scheme all policy proposals originated with the elected magistrates, the only thing that could never be alienated was the decision by the sovereign body. If, in practice, this amounted to little more than ratification this is because ministers were elected to implement policies that were in the general interest, so there was a positive feedback loop. The only difference we sortinistas are proposing is that the decision should be by a statistically-representative microcosm of the sovereign as in large states it is not feasible for everyone to deliberate in person.

    >We get out of dêmokratia when there is election of a “representative”.

    We need to be mindful of Pitkin’s two variants of political representation — standing for and acting for. The former is a judgment role and requires the descriptive representation that can only be achieved by allotment, whereas the latter is the active role of the statesperson as you (following Rousseau) describe above. Election is perfectly suitable for the appointment of the statesperson.

    >Democracy-through-sortition is now the one option for dêmokratia. This is true for the establishment of laws, for the choice between policies, and for the choice of managers carrying the policies.

    Not so, it is only suitable for the first function (the establishment of laws).

    >In a modern dêmokratia, the minister will be a statesperson elected to carry the chosen policy, and the generals will be military public servants.

    Agreed (but you are contradicting here your paragraph immediately above).

    >I think that the one way for the people to rule is through sortition.

    Agreed, in the sense of ruling as sovereign judgment. But we still need statespersons to make the arguments for or against (the European Constitution or whatever) and to implement the resulting judgment.

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