Rethinking Athenian Democracy

I’ve just finished reading Daniela Cammack’s PhD thesis (one chapter was presented recently here by Peter Stone) and would warmly recommend it — it’s mercifully short and extremely readable (available to download on the Harvard website). Chapter 3: The Most Democratic Branch? The Assembly vs. the Courts is of particular interest as it seeks to overturn the view that a) the assembly was the primary institution of Athenian democracy and b) the fourth-century reforms were conservative in nature. Cammack’s interpretation supports Yoram and Terry’s view that the switch in emphasis to randomly-selected institutions was in order to enhance the rule of the demos, rather than being a juridical a check on popular sovereignty (the view of Hansen, Ostwald, Sealey [and myself]). The courts (both legislative and juridical) were much less open to manipulation by elites as a) speech rights were restricted to litigants and persons elected by the assembly, b) isegoria was balanced by the use of a water clock and c) secret voting meant that it was harder to intimidate citizens into voting in any way other than by their considered judgment (aided by the higher minimum age and need to swear the dikastic oath). She provides several examples of assembly decisions that were heavily influenced by factional and elite domination
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The take-home message of the chapter (p.172) is:

The form of representation used in Athens, the selection of a representative sample, is perfectly familiar to modern political science and proved to be an effective way of creating and protecting popular rule in Athens. It would be worth exploring how far it might also be used to benefit modern democratic politics . . . An inspiring starting point is E. Callenbach and M. Phillips, A Citizen Legislature . . .

This chapter is available individually on SSRN

Cammack, however, is sceptical regarding the claim that the lot-selected bodies were deliberative in the modern ‘external-collective’ sense of the word, as discussed in the thread initiated by Peter. She only devotes one paragraph to the council, in which she speculates (the primary sources are largely silent) that the deliberative style of the council may well have been similar to the assembly — i.e. a small number of semi-professional “politicians” speaking and the majority simply listening and then voting. Her focus is throughout on the allotted courts as the primary institution, so provides comfort to kleroterians, but not deliberative or epistemic democrats, as the courts were not deliberative in the Habermasian sense of the word.

Here’s the abstract of the thesis

Conventional accounts of classical Athenian democracy represent the assembly as the primary democratic institution in the Athenian political system. This looks reasonable in the light of modern democracy, which has typically developed through the democratization of legislative assemblies. Yet it conflicts with the evidence at our disposal. Our ancient sources suggest that the most significant and distinctively democratic institution in Athens was the courts, where decisions were made by large panels of randomly selected ordinary citizens with no possibility of appeal.

This dissertation reinterprets Athenian democracy as “dikastic democracy” (from the Greek dikastēs, “judge”), defined as a mode of government in which ordinary citizens rule principally through their control of the administration of justice. It begins by casting doubt on two major planks in the modern interpretation of Athenian democracy: first, that it rested on a conception of the “wisdom of the multitude” akin to that advanced by epistemic democrats today, and second that it was “deliberative,” meaning that mass discussion of political matters played a defining role. The first plank rests largely on an argument made by Aristotle in support of mass political participation, which I show has been comprehensively misunderstood. The second rests on the interpretation of the verb “bouleuomai” as indicating speech, but I suggest that it meant internal reflection in both the courts and the assembly. The third chapter begins the constructive part of the project by comparing the assembly and courts as instruments of democracy in Athens, and the iii fourth shows how a focus on the courts reveals the deep political dimensions of Plato’s work, which in turn suggests one reason why modern democratic ideology and practice have moved so far from the Athenians’ on this score.

Throughout, the dissertation combines textual, philological and conceptual analysis with attention to institutional detail and the wider historical context. The resulting account makes a strong case for the relevance of classical Athens today, both as a source of potentially useful procedural mechanisms and as the point of origin of some of the philosophical presuppositions on which the modern conception of democracy and its limits depends.

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83 Responses

  1. After the defeat of Athens by the Spartan-Persian allies, the Assembly declined from 30-50,000 in the fifth century to 4,000 in Aristotle’s time. That the courts rose in importance is clear, but the demes are likely to have retained and probably expanded their role. The Assemby of the Great Days was, after all, huge by any standards- far beyond any elected legislature and even far beyond a party convention. The Assembly, the Council, the demes and the courts were all vital components of the Democracy, as were the temples in their way.

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  2. Democracy is a numbers game. The more citizens who participate, the more democratic the government. 30-50 thousand is more democratic than 4 thousand. Political equality is the hallmark of democracy: every and any citizen can speak at will. Aristotle said in more than one place that elections are anti-democratic and best suited to aristocracy.

    Arthur D. Robbins

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  3. No question about it: Democracy means power to the Many. But it wasn’t easy to accommodate all those people, many or most of whom lived out in the sticks and had to travel for Assembly meetings.. And they didn’t have loudspeakers. The meeting space only held 6,000, so they did need to improvise a bit.

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  4. z13z13z,

    > the Assembly declined from 30-50,000 in the fifth century to 4,000 in Aristotle’s time

    Really? Not that it really matters in terms of the discussion below, but I don’t believe this is true. What’s your source?

    Arthur,

    > Democracy is a numbers game. The more citizens who participate, the more democratic the government. 30-50 thousand is more democratic than 4 thousand.

    This view is a fundamental mistake, in my opinion.

    What does it mean to participate? Does casting a vote count (for a candidate or in a referendum) as participating? Does showing up to assembly meetings an listening to speeches count as participating? Isn’t it clear that those who set the agenda and the speakers have much more political power than those who merely listen and vote?

    Democracy is not about “participation”. It is about political equality.

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  5. For once in my life I find myself in complete agreement with Yoram (and equally mystified by the numbers quoted by z13z13z). I would also now accept that the 4th Century reforms were more radical than conservative as this explains why contemporaries like Aristotle viewed 4th Century Athens as an extreme form of democracy. As Cammack argues, we are guilty of seeing the rule of law through modern eyes, largely under the influence of the Platonic view of justice as an approximation to an objective form, whereas Athenian democrats viewed it as the considered verdict of the citizens (or a representative sample thereof). I will need to rewrite my thesis to take this on board.

    The only point I would still take issue with is how best to democratise the agenda-setting process, but we’ve discussed that at length elsewhere.

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  6. I have no idea which numbers you object to, but they come from common estimates. Believe what you will.

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  7. z13z13z,

    > the Assembly declined from 30-50,000 in the fifth century to 4,000 in Aristotle’s time.

    How is it possible to have an assembly numbering 30-50,000 in a space that could only accommodate 6,000? You appear to be confusing the total number of citizens with the average attendance at a meeting of the ecclesia (assembly). This did vary between the 5th and the 4th century, but nothing like to the extent you are suggesting. Interestingly the assembly site was hugely enlarged towards the end of the fourth century, but this was after the demise of the demokratia.

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  8. Keith is correct, that the numbers 30,000 – 50,000 are the commonly mentioned estimates of the total number of citizens (males over the age of 18 born to free Athenian mothers). The Assembly space (pnyx) is believed to have allowed around 6,000 to participate at any one time. This is one reason I refer to Athens as a form of representative democracy…whether by lot in the courts, magistrate committees, legislative panels, and Council, as well as in the Assembly itself, only a very small sample of citizens were ever making political decisions on behalf of the whole citizenry.

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  9. Let us say that the number of citizens who could participate in the Pnyx debates in 5th century was 30,000 and that in the 4th century it dropped to 15, 000 (I am making up the number) due to a change in governmental structure. If that were true then 5th century Athens was more democratic. Over the course of a month or two it is possible that all 30,000 participated in the debates.

    Democracy is about political equality. The opportunity and privilege to participate in making decisions is what creates democracy. The fact that only a portion of the citizenry participates on a given occasion does not change the meaning of the word democracy.

    In the USA 535 congressmen speak for over 300 million Americans. There is no opportunity for us to enter into the debates and speak for ourselves. That is what makes our government an oligarchy. Power is not shared among the entire citizenry. There is no political equality. In 5th century Athens there was.

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  10. Getting back to the main point of this post, I think this is a good point of discussion. Unlike some here, I don’t think Assembly is an institution that can be completely done away with, but it is still important to realize that it was only one part of a democratic society that had many reinforcing components.
    Aristotle, for example, did see the courts as being ‘the real’ important factor in democracy, as ‘the people’ not only made laws but also interpreted them.

    We tend to focus on Assembly, basically because that is the only part of ancient democracy the average person can even remotely relate to today. Thus, the public discussion tends to stick there.

    But the position of the courts does raise questions for us, especially when it comes to constitutional rights protection. There is definitely a substantial modern stream of thought to the effect that courts of this nature should NOT be following public opinion, no matter how strong that opinion it is. Also, as a society, I would say we are much more individualistic than ancient peoples tended to be, ie. a lot more set on our individual rights protection.
    Since we’re very far away from a democracy right now, I’d favour tackling the Assembly/sortition point first and leaving the position of the courts to a time when we’ve gathered more info about how democracy is working in our time, but eventually it will be an issue that will have to be dealt with.

    Interested to see what others’ thoughts are on this point…

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  11. > constitutional rights protection

    Are you implying that professional courts are better protectors of constitutional rights than popular courts? If so, on what grounds?

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  12. Roslyn,

    >We tend to focus on Assembly, basically because that is the only part of ancient democracy the average person can even remotely relate to today.

    The only institution of Athenian democracy that has survived into modernity is the randomly-selected jury. Granted that most people don’t know that juries had a law-making role in Athenian democracy, nevertheless the principle (that the decision of the jury represents that of all citizens) is a familiar one. By contrast, nobody has any experience of lawmaking by large assemblies in which everyone participates directly. The main thrust of Daniela’s thesis is that the courts, not the assembly, were viewed as the primary democratic institution at the time, that the view of Athenian democracy that has been handed down into modernity is mistaken and that the notion of a professional court is a Platonic aberration.

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  13. Keith,

    > For once in my life I find myself in complete agreement with Yoram.

    Hey Keith don’t throw down your foil yet!

    The scene is an Athenian assembly space at dusk. Blades are drawn. Roslyn, Arthur, Terry, bsh, Andre, z13z13z & others (stage left) look on with great excitement as, with a circular parry you beat Yoram’s close quarters lunging feint, but in doing so are subsequently forced into performing an awkward diagonal balestra.

    You’re both wounded but it’s a moment of great athleticism caught with dramatic chiaroscuro lighting, and I need to maintain that sense of balance + tension!

    The cartoon is almost complete.. my studio assistants have started preparing the pigments for mixing and I’m almost ready to apply the intonaccio…

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  14. Roslyn,

    We focus on the assembly because that is where the critical decisions are made. War vs. Peace; how monies are to be spent: these are critical decisions for any society and the legislators are the ones who decide them.

    Arthur D. Robbins

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  15. Yes, I should have said “the citizen body,” rather than the Ekklesia, but the citizens were the Ekklesia. The logistical limits of 6,000 and the travel distance for rural citizens presented obvious problems for the Democracy.
    of the fifth century.

    As for the 4th century, I recently saw a paper asserting that Antipater’s 2,000 drachma property qualification set the citizen body at 4,000 rather than the accepted 9,000; but I should have just mentioned the conventional figure. Whatever effect the property restriction had, the previous level of 21,000 is accepted by the likes of Ste Croix.

    But I was attempting to point out that Democracy included a complex and ingenious set of institutions: the Ekklesia, the courts, and much more.

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  16. Barnaby:> Hey Keith don’t throw down your foil yet!

    I tried fencing for a couple of years but I was so bad at it that I took up rowing instead — I guess that improves my credentials qua Athenian democracy!

    z13z13z:> As for the 4th century, I recently saw a paper asserting that Antipater’s 2,000 drachma property qualification. . .

    The focus of Cammack’s thesis (and this forum) is the fourth-century demokratia, not the period of Macedonian rule.

    >the likes of Ste Croix

    A propos nothing in particular, I published his festschrift, in which “Croix” described himself (ironically) as “hag-ridden by his instinctive aversion to the ownership of property . . . [and] contaminated by the Marxist heresy”. (Cartledge and Harvey, 1985, pp. 376-7)

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  17. One historical footnote…Keith refers to the modern randomly-selected jury system as “The only institution of Athenian democracy that has survived into modernity.” This is an example of parallel cultural invention and in no way was passed down from Ancient Greece. Jurors in medieval England were appointed by a sheriff as trusted men who might have first-hand knowledge of the defendant and the case at hand – nothing random about it. The system evolved following the Catholic Church’s decision to discontinue involvement in trial by ordeal. The re-invention of random selection for juries occurred later.

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  18. Thanks for the clarification Terry, is there no evidence that the subsequent randomisation of juries was in any way a reflection of Athenian practice? Even if that remains the case, there is clearly a parallel between juries past and present, but I can’t think of a single modern analogue of the assembly (apart from the public plebiscite). And I don’t believe referendums are generally viewed in a positive light.

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  19. Roslyn,
    >There is definitely a substantial modern stream of thought to the effect that courts of this nature should NOT be following public opinion, no matter how strong that opinion it is.

    I find Dahl’s arguments on this matter persuasive.

    Do the courts represent a better decision-making process than the democratic process of your choice? In some areas, probably. But a constitutional court’s scope is much broader than these limited areas.

    I believe a better focus would be on making the core democratic decision-making process as robust as possible, with added safeguards only to delay action in certain sensitive areas. That’s probably the best we can do anyway. If support for some action—constitutional or otherwise—persists over generational time scales, that support will inevitably work its way into every element of a government derived from the people. In the end, the rights of the people and the shape of constitutional government itself are matters of convention whether we would like them to be or not. Constitutional courts should probably be designed with this reality in mind. Their verdicts should only carry sufficient weight to average out momentarily passions and make sure the people know what they are doing when they act in certain sensitive areas.

    Keith,
    >And I don’t believe referendums are generally viewed in a positive light.

    I suppose that would depend on the corners of the Internet you frequent. I recall reading an opinion poll (which I can’t for the life of me find) showing that Californians favor keeping their initiative/referendum mechanism by huge majorities despite the problems it has cause. Though, to be fair, that may simply reflect the remarkable degree of contempt that most Californians have for their state legislature. And there’s this Gallup poll showing strong support for a federal-level initiative/referendum mechanism in the US. http://www.gallup.com/poll/163433/americans-favor-national-referenda-key-issues.aspx

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  20. Naomi,

    Fair point. All I’m seeking to argue is that most people are familiar (and reasonably comfortable) with the randomly-selected jury as a decision-making body. It’s true that juries are asked to determine matters of fact, rather than preferences, but most people also understand that opinion polls can accurately reflect (raw) policy preferences. So all that is needed is to imaginatively combine two familiar institutions and I think most people would be able to do that. Therefore decision making by stochation would not be hard to understand and this would be just as Athenian in origin as the assembly. If it’s the case (as Daniela argues) that the Athenians viewed stochation as a more reliable way of expressing the will of the demos than the assembly then this would also suggest that the courts should be the focus of those of us who seek to reform modern democracy along Athenian lines.

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  21. The focus of Cammack’s thesis (and this forum) is the fourth-century demokratia, not the period of Macedonian rule.”

    Athenian sovereignty had an uneven course in the 4th century, which began after all, with Athens totally defeated. She retained a vestigial autonomy and the customary institutions however deformed under Macedonian rule, much as she had under Spartan/Persian rule.,
    But I will return to cheerful silence on forum topical matters..

    “the likes of Ste Croix

    A propos nothing in particular, I published his festschrift, in which “Croix” described himself (ironically) as “hag-ridden by his instinctive aversion to the ownership of property . . . [and] contaminated by the Marxist heresy”. (Cartledge and Harvey, 1985, pp. 376-7)”

    That would be Crux, I gather. I take Ste Croix at his word that he was a Marxist heretic but it looks like Marxist orthodoxy to me. Thankfully, he gets it out of his system in the first hundred or so pages of his Class Struggle and turns to fruitful pursuits. .

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  22. >Athenian sovereignty had an uneven course in the 4th century, which began after all, with Athens totally defeated.

    One of the many things that I learned from Daniela’s thesis is that the two oligarchic coups were enabled by the domination of the assembly by factional interests. Her suggestion is that the reforms were in order to prevent such things happening in the future — i.e. to strengthen the demokratia; whether they would have prevented the decisions that led to the defeat is another matter (as such matters were still the province of the assembly).

    >That would be Crux, I gather.

    Yes, indeed. The “anonymous” review of CSAGW at the back was by GEM himself.

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  23. That sounds like a sensible thesis, but the Democracy, as I say, was never the sole element of the Democratic constitution. It was complex and remarkably sophisticated.
    The Boston town meeting, which was a great engine of Revolution in the 1770s, had a similar history. It was said to be run by manipulative cliques. and was abolished in the 1820s- apparently with the support of hoi polloi.

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  24. That’s very interesting — especially as the New England town meeting is usually held up as a good example of participatory democracy in action. I guess any form of mass democracy will always be dominated by busybodies and anyone with an axe to grind. With election at least you get to choose your own busybody. With sortition, especially the quasi-mandatory variant, the ratio of busybodies to ordinary Joes will be the same as in the target population — the problem then is ensuring that the microcosm is not dominated by the busybodies who manage to slip through the net.

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  25. Keith,
    New England town meetings (which persist in hundreds of towns) are somewhat analogous to the Athenian Assembly, but like the modern jury are the result of independent re-invention, rather than derived from Greek democracy. The New England town meetings arose from colonial meetings of residents as owners of colonial corporation charters, and from the tradition of religious congregationalism in which the members of the church made budget and “legislative” decisions and elected leaders. It is ironic that so-called “democracy” in the U.S. has corporate and Protestant Christian roots, with no connection to Greek democracy at all.

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  26. *** Sutherland writes « Cammack’s interpretation supports Yoram and Terry’s view that the switch in emphasis to randomly-selected institutions was in order to enhance the rule of the demos, rather than being a juridical a check on popular sovereignty (the view of Hansen, Ostwald, Sealey [and myself]) ». Actually, the 4th century reforms might have both aims.
    *** But what disturbs me in this sentence is the idea of the allotted courts as « a juridical check on popular sovereignty », implying the idea of intrinsic opposition between “rule of law” and “rule of the dêmos”; opposition which is part of some ancient and modern discourses against dêmokratia.
    . *** When the ancient enemies of popular sovereignty invoked the “rule of law”, they thought actually about immutable laws, or laws which might be changed only with the consent of the “wise” fraction of the society; with this idea, there was actually an opposition with the sovereignty of the dêmos, whose will to change laws – eventually coming from an undemocratic past – would encounter small groups with veto powers; practically the reactionary fraction of the elite.
    *** Nowadays, the supporters of the polyarchic model cast often themselves as defenders of the “rule of law”. They use it, in a so-called democratic system, to give power to Courts the relationship of which with universal suffrage is very fuzzy, or nil. They use it likewise to justify qualified majorities, giving veto powers to minorities and favoring legal status-quo – in a dynamic modern society, that does not mean social status-quo, that means free ride to the de facto social powers wanting to avoid any control on the direction they give to the society.
    *** But the opposition of “rule of law” and “rule of the dêmos” is not something intrinsic. The Second Athenian Democracy system, with the procedures of “graphê para nomôn » (against decrees of the Assembly contrary to laws) and « graphê nomon mê epitêdeion theinai » against laws (as contrary to long-term civic interests, especially constitutional principles and democratic values) was intended to establish the ”rule of law” without infringing the people’s sovereignty. I think that here the Athenian model can be useful quite directly for a modern dêmokratia.

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  27. *** Roslyn Fuller writes (october 14) about courts in charge of protecting constitutional rights : « There is definitely a substantial modern stream of thought to the effect that courts of this nature should NOT be following public opinion, no matter how strong that opinion it is. »
    *** There is a problem about the exact meaning of “opinion” which has many meanings in French, and, it seems, in English. Let’s clarify, from a specifically political and democratic point of view.
    *** The opinions as considered in “opinion polls” are, implicitly or explicitly, statements made as answers to questions without specific deliberation. This “primary opinion” may be very diverse. Some among the polled practically don’t have any idea about the subject, either they don’t answer (and this very reasonable choice amounts practically to an “abstention”), or they answer (because they don’t want to look uninformed, or they want to please the poller, or they don’t want to “abstain”) – this answer will be unstable. Others may have very precise thought about the subject, but often along processes lacking deep information and many-sided discussion, therefore very sensitive to bias and manipulation. And there are intermediary cases. The poll adds all that and gives a “public opinion” result.
    *** In the countries where criminal cases , at least some of them, are in charge of juries of “ordinary citizens”, the final verdict comes from “secondary opinions” of these citizens; “secondary” because they follow legal procedures considered as allowing good information and deliberation. In case of a much-mediatized crime, a “primary opinion” may exist, given by polls. The secondary opinion of the jury may be different, because the jurors may change their mind through the judicial process. The votes in Athens of the Assembly (and the legislative juries) may be considered as given from “secondary opinions”.
    *** But the judicial juries, which in the Second Athenian Democracy had the last word in internal subjects, correspond as what I would call a “tertiary opinion”: with a procedure allowing a better deliberation than in Assembly, but, too, centered on long-terms interests (that including constitutional points of view). Let’s consider the Law of Leptines, crushed it seems by a judicial jury after a famous Demosthenes’ speech. It was voted (by a legislative jury we must think) from good practical reasons: solving financial problems of the States through cancelling tax loopholes. The judicial review, centered by principle around long term interests, allowed Demosthenes to argue against the law invoking parameters which could have been overlooked in a debate centered on the State money hardships.
    *** This is the democratic way of, for instance, protecting constitutional rights.
    *** The polyarchic usual way is to give this function to Courts which are very far from being constituted by allotted citizens. Why are they deemed to be good for this function? First argument, usually not explicit: the judges will follow the opinion of the legal elite, morally and intellectually superior to the average citizens. But if we accept this kind of elitist argument, we should give all political powers to relevant elites. Second argument: the judges have a “professional conscenciousness” about protection of constitutional rights whereas the average citizens will have only a general civic point of view. Well, this is a sound argument, but we must fear that the judges will easily (and even uncounsciously) cover the political sensitivities of the elite they belong under “constitutional rights” – the right of free speech covering, for instance, a right of big corporations to pour as much money as they want into political campaigns … It is clear that the sovereignty of the dêmos implies that the last word about constitutional rights must belong to an allotted jury. The protection must be aimed through adequate procedures of “third opinion” as in Athens.

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  28. Athens and the other Democracies were self-governing communities where the Assembly decided on war and peace, alliances, etc A modern town meeting decides on traffic lights and liquor licenses. The same must be said of the once fiercely independent cantons of the Swiss Gray League.
    .
    In the 18th century, though, the New England assemblies were important factors in the Revolutionary movement. Jefferson’s vision of “ward republics” was inspired by his understanding of the Saxon Hundred, but he recalled rather fondly that the New England towns had made the earth shake under his feet in opposing his embargo, and pointed to them as proto-ward-republics at the least.

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  29. Andre,

    >But what disturbs me in this sentence is the idea of the allotted courts as « a juridical check on popular sovereignty », implying the idea of intrinsic opposition between “rule of law” and “rule of the dêmos”

    Daniela’s thesis endorses pretty much everything you say in your post (that’s why I said that I would need to rewrite my own thesis in the light of it). If you read her work I doubt if there will be much there that you would disagree with.

    >But the opposition of “rule of law” and “rule of the dêmos” is not something intrinsic. . . I think that here the Athenian model can be useful quite directly for a modern dêmokratia.

    Yes that’s true, but I’ve never advocated a modern demokratia. My preference is for politeia (mixed government). This requires a certain distance between the rule of law and popular sovereignty. The distinction doesn’t have to be intrinsic (as Platonists believe), it can be just a Burkeian respect for tradition (accumulated wisdom) over and above the immediate will of the current generation. That’s why the 4th-century reformers spoke of returning to the patrios politeia (a Greek phrase that doesn’t appear in Daniela’s thesis, so far as I recall).

    >First argument, usually not explicit: the judges will follow the opinion of the legal elite, morally and intellectually superior to the average citizens. But if we accept this kind of elitist argument, we should give all political powers to relevant elites.

    It’s possible to accept this argument and still believe that the demos has other virtues that should be reflected in a mixed constitution. It doesn’t have to be all or nothing (unless you are a democratic fundamentalist).

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  30. Andre,

    > But if we accept this kind of elitist argument, we should give all political powers to relevant elites

    Moreover, who is this “we” who accept this argument?

    If “we” is the demos, then there is no need to force the demos to give up its political power, since it will anyway follow whatever the elite recommends, recognizing its wisdom.

    Therefore, “we” cannot mean the demos – it refers to an elite group, which believes itself to have the wisdom required to recognize its own wisdom which justifies usurping the demos. In other words, this argumentation is transparently circular and boils down to “we appoint ourselves to be your rulers”.

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  31. Athenian courts were hardly breeding grounds for a legal elite: There were no lawyers and arbitration had a strong role. It was the Demos wearing the hats of court- similar to the Macedonian “appeal from Philip Drunk to Philip Sober.

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  32. Yoram

    >“we” cannot mean the demos – it refers to an elite group, which believes itself to have the wisdom required to recognize its own wisdom which justifies usurping the demos.

    That is only true from a platonist (synchronic) perspective. In the Burkeian (diachronic) worldview “we” refers to a combination of the past, present and (conjectural) future generations. That’s why the 4th century reformers harked back to the ancestral constitution. Daniela’s thesis would have been better had she acknowledged this (but she had a polemical point to make).

    Your “presentist” perspective puts you back in bed with Plato (although he would have viewed his perspective as beyond temporality). Perhaps the only difference between the elite and the demos is that some members of the former have a longer memory (they’re normally called “historians”).

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  33. *** Terry Bouricius underlined that the Western jury system was a Western (English) invention, “in no way passed down from Ancient Greece“. Keith Sutherland asked “is there no evidence that the subsequent randomization of juries was in any way a reflection of Athenian practice? »
    *** I don’t remember such evidence, but it must be asked from English historians, as French revolutionaries did copy England. I think randomization of juries could be linked to the rise of the « equality » idea in the West. At least we can say that for the last step of randomization in France (loi du 28 juillet 1978), with direct sortition from electoral lists; the reform aimed explicitly to eliminate any kind of social class selection.
    *** An influence of the Athenian model would have led to establish big juries and give them power in politically sensitive subjects. In French history, I know only one instance: a proposal, during the 1848 revolution, by the philosopher/romantic socialist Pierre Leroux (an eccentric thinker, and seen as eccentric even by other romantic revolutionaries). He proposed a « National Jury » of 300 members to judge not only the subversive crimes, but likewise the charges against the ministers and the elected representatives (his constitutional model was a complex representative model). The jurors were to be chosen by lot – locally, in the departments and the colonies (the 1848 French colonies are the overseas departments now). I must acknowledge I don’t know the contemporary reactions to this proposal, which has been almost totally forgotten since.
    *** Anyway even Leroux proposal seems a democratic-minded extension of the English-style criminal jury: his « National Jury » was intended to judge wrongdoings by politicians, not to have the last word about legality, constitutionality etc of political decisions (even if it could easily have slipped to political debates).

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  34. *** Keith Sutherland writes (October 16, 6:58 pm) that the different virtues of elites and dêmos might be “reflected in a mixed constitution. It doesn’t have to be all or nothing (unless you are a democratic fundamentalist)”. That amounts as labeling any supporter of popular sovereignty as a “democratic fundamentalist”.
    *** I am afraid that “fundamentalist” might be a label with a somewhat fuzzy meaning.
    *** Sometimes, it refers to groups with a literalist bent. As some Christians who are against the idea of human evolution from an inferior being, because it seems contrary to the letter of the Bible. When I was young, some people did consider that a quote of Marx or Engels could close a debate. I think that the modern supporters of dêmokratia may be interested by what said Montesquieu, or Rousseau, or an ancient author, but I am not literalist, and I don’t know any literalist democrat.
    *** Or it may refer to people who stick to a model of the past, without acknowledging the useful or necessity of adaptation to modernity (in France, often labeled “Integrists”). As some Moslems who would like to organize a 21st century society along the social rules established by religious medieval scholars in a very different world. It is erroneous to describe the modern supporters of dêmokratia as fundamentalist followers of ancient Athens. They would like to establish a system of sovereignty of the dêmos, but I think most of them are very conscious that does not imply copying slavishly the ancient Athenian commonwealth. Especially not among the kleroterian democrats, who think modernity makes necessary and practicable to go further than Demosthenes Athens in the use of sortition. As for me, I refer often to the specific characteristics of modernity and its implications.
    *** Actually Keith seems prone to label “fundamentalist” any supporter of modern dêmokratia because this model has a simple principle of sovereignty, giving it to a definite holder (as the model of absolute monarchy, or pure aristocracy). His own model of “mixed commonwealth” (“politeia” in the restrictive meaning of the word in Aristotle) is a model without simple principle, without a defined holder of sovereignty. But the simple principle does not imply a simplistic system liked only by simplistic minds. Actually the Second Athenian Democracy was sophisticated enough. Such a procedure as “graphê para nomôn” baffled Hume (see his essay “of some remarkable customs ») and even the (democrat-minded) Castoriadis (“an appeal of the people against itself before itself, which opens an abyss for us to reflect upon”).
    *** The simplicity of the democratic sovereignty principle is neither a valid argument against dêmokratia, nor for it. It is irrelevant. If Keith wants to convince us of the superiority of a “mixed commonwealth” with a component of popular sortition, OK, but with relevant arguments. He will have especially to convince us that this “mixed commonwealth” will not be for a big part “oligarchy in disguise”, as in the most famous instance, the Roman one; and, if not, that the constitution will not destroy rationality and moral accountability, the political results being of nobody’s reponsability.

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  35. Andre,

    >Actually Keith seems prone to label “fundamentalist” any supporter of modern dêmokratia because this model has a simple principle of sovereignty

    Yes, that’s right — I apologise for my choice of words, but I am implacably opposed to the principle of popular sovereignty. In my model the allotted sample of the demos has the last word/whip hand/trump card but there are other players in the game. Proposals and advocacy are (primarily) the responsibility of politicians and there are constitutional safeguards in place to ensure the rule of law. This strikes me as a direct analogue of the Athenian demokratia, where the rule of law had a diachronic element (aka the patrios politeia) rather than the “presentist” aspect that Daniela focused on in her thesis. Pace Aristotle, 4th century Athens was not an example of popular sovereignty.

    To my mind politeia has five advantages over popular sovereignty:

    1) The rule of law (in the diachronic sense), rather than the rule of men. This is anathema to “progessives”, but progress is just a secularised version of Christian eschatology.

    2) The people who make proposals and argue for and against them are more likely to know what they are talking about.

    3) Constitutional safeguards to protect minorities and entities that are not capable of representing themselves (the environment, non-human species and future generations).

    4) Accountability (through the need to secure re-election and/or pension rights). It’s not perfect but it’s an improvement on the harlot’s prerogative.

    5) Joined up government and fiscal rectitude.

    There are almost certainly other benefits, but that’s all I can think of right now. In comparison to politeia, popular sovereignty does look a bit like democratic fundamentalism. I think we should also be alarmed that the term “sovereignty” originated in Bodin and Filmer’s justification of absolute monarchy. Rousseau may have turned it on its head, but that’s what Marx did to Hegel and look what a fine mess that led to.

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  36. Keith,

    The rule of law is the rule of men, faintly disguised. Said Thomas Hobbes, law is “the word of him that by right hath command over others.”

    Arthur D. Robbins

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  37. Arthur,

    >The rule of law is the rule of men, faintly disguised.

    Yes that’s right, but respect for patrios politeia (aka constitutional safeguards) extends the rule to several generations, as opposed to exclusively privileging those who happen to be around today (and who may well change their mind tomorrow). And the Greek concept of nomos, which changed over the years, does include a perspective that suggests natural law. I don’t think the notion of legal positivism would have been sympathetically received during the 4th century — that’s one of the reasons the Athenians made the distinction between laws (nomoi) and decrees (psephismata). According to Hansen a law was “a general rule intended to be valid for all time” (1999, p. 404, my emphasis).

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  38. Keith,

    Here are the words of Thomas Paine on the subject of generational rule,

    “Every age and generation must be free to act for itself in all cases as the ages and generations which preceded it. The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies….It is the living, and not the dead, that are to be accommodated.”

    Arthur D. Robbins

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  39. Keith,
    It’s funny. The more you explain your position the less well I feel I understand it. You are “implacably opposed” to popular sovereignty but seem to see the people as the only viable source of legitimacy. Not tradition or the adherence to agreed upon rules as Terry has argued. Yet deviations away from an overarching principle like popular sovereignty are inherently arbitrary. You could do as you’d like and stack the deck in whatever way seems most reasonable to you. In the end you simply have a set of rules. If those rules are erected by an appeal to the people, directly or through a stochastic body, then they can be amended/repealed though a similar appeal regardless of that the rules themselves say regarding their amendment.

    If reverence for the rules of the game are an adequate principle upon which to build a government, then the sort of arrangement Terry and others have endorsed is perfectly viable, given the right set of popular beliefs/values. If not, then any system built without the foundation of popular sovereignty is equally as untenable.

    Regarding generational issues… giving a previous generation’s rules priority simply enshrines the outcomes of a particular generation’s deliberations at the expense of the current generation’s (better informed, actually) deliberations. Caution is needed, of course, but we shouldn’t go overboard.

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  40. Arthur,

    My goal is not to privilege the dead (their views can always be overturned by a supermajority), only to provide a check against passing whims. This is nothing more than the commonsense view that every vehicle needs a brake pedal as well and an accelerator. I’m not sure how well Paine and Condorcet got on, but that was certainly the latter’s view.

    Naomi,

    If you look at my five points they are all based on the need for diverse human perspectives — constitutionalism is a mix of popular will, tradition and rule-following. Why do we have to choose any of these exclusively? In my proposal the people (as represented stochastically) always have the last word, it’s just that they don’t have the only word. Call it the precautionary principle if you like.

    >deviations away from an overarching principle like popular sovereignty are inherently arbitrary.

    What is arbitrary about my five points in favour of politeia? They all strike me as both reasonable and principled.

    >the people [are] the only viable source of legitimacy

    That’s ultimately true, but we need to temper the perspective of the few who happen to be gathered in the room at any one time by longer-term and broader interests, and that requires constitutional constraints. Anything else is just demos tyrannos and only democratic fundamentalists would want that.

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  41. It is not “the Few” who are gathered in the Democratic room but the Many, . Anything else is just oligarchy and only oligarchic fundamentalists would want that.
    A Democratic constitution would require an institutional framework that ensures extensive deliberation beforehand and opportunities for reconsideration afterhand. I would indeed wish to rely upon councils selected by lot to play a role in the latter, but empowering them to require a reconsideration vote by the Demos- or multiple reconsiderations- would be adequate.

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  42. >Why do we have to choose any of these exclusively? In my proposal the people (as represented stochastically) always have the last word, it’s just that they don’t have the only word. Call it the precautionary principle if you like.

    I guess I don’t see constutionalism, tradition, and rule-following as being inherently counter to the principle of popular sovereignty. Rules and respect for precedent are both probably necessary to elucidate and realize the general will (where such a thing can be said to exist) in the first place. The existence of rules and precedent around parliament is not counter to parliamentary sovereignty. Such things exist due to both the preference of parliament itself and human nature concerning the weight naturally given to precedent. It’s the same idea. “Implacable” opposition to popular sovereignty strikes me as a bit more substantive than the simple acknowledgment that rules and delays to prevent rash action are needed.

    Of course, your list goes well beyond tradition and rule-following, into areas we have largely covered at length already.

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  43. > If Keith wants to convince us of the superiority of a “mixed commonwealth” with a component of popular sortition, OK, but with relevant arguments.

    The point is, however, that convincing “us” may be how Sutherland likes to spend his afternoon, but it has no normative force since “we” (or any self-selected group) should not be the ones making decisions on how decisions should be made. Decisions about decision-making procedures should be made democratically.

    This is the foundational (or “bootstrapping”) problem for any non-democratic system. If the people cannot be convinced that power should be handed off to a certain elite then how would handing that power off to the elite be justified? If, on the other hand, the people can be convinced that power should be handed off to an elite then it is no longer a non-democratic system – it is a democratic system where the people choose to follow a particular course of action (namely, the one suggested by the elite).

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  44. >My goal is not to privilege the dead (their views can always be overturned by a supermajority), only to provide a check against passing whims.

    Placing the views of the dead behind a supermajority absolutely privileges them. Unless of course we are talking about views that were passed by a supermajority to begin with. That is not objectionable. In any case something enacted by a simple majority can almost certainly be overturned by a simple majority. We see this all the time in the developing world. Constitutions passed by a simple referendum are overturned in latter referenda like clockwork without a thought being given to the formal amendment procedure.

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  45. To state the obvious, Sutherland’s wish to grant power to elites is directly derived from no more and no less than his belief that he would find their decisions to his personal liking. One would have to be quite naive to believe that he (and people similarly professing reverence for “tradition”) would make the same proposals if the established elites could be expected to use their powers in different ways.

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  46. Keith,

    In the realm of political philosophy there is one fundamental issue: minority rule vs. majority rule. For the past two thousand years or so the minority has been in charge. The minority has led the human species to the brink of extinction. The majority is our only hope.

    Arthur R. Robbins

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  47. Naomi,
    You wrote
    >” We see this all the time in the developing world. Constitutions passed by a simple referendum are overturned in latter referenda like clockwork without a thought being given to the formal amendment procedure.”
    And this is also true of the United States. The Articles of Confederation contained an amendment procedure requiring unanimous approval by the states… but the committee that drafted the new Constitution (rather than drafting amendments to propose to the Articles of confederation, as was their charge from Congress) inserted an adoption rule into the new document that the new constitution would go into force if just 9 of the 13 states ratified it in conventions.

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  48. Having outed myself some time ago as a conservative, I suppose I shouldn’t be surprised to find myself in a minority of one on a forum entitled Equality by Lot. Conservatives have little time for abstractions like liberty, equality, fraternity and popular sovereignty, as we are more concerned about muddling along with each other and making the best of a bad job. Designing political systems on the basis of a single principle never works — for example the Russian soviets were supposed to establish the dictatorship of the proletariat (aka “popular sovereignty” and “real democracy”) but ended up as a key element of party rule. As I argued earlier (and nobody has sought to refute my claim), fourth-century Athens was a mixed constitution, not an example of popular sovereignty. The conservative tendency to privilege the past is on account of the need for political institutions to demonstrate their viability in practice, rather than merely on paper. Can anybody provide a single example of popular sovereignty in practice?

    Yoram:> Sutherland’s wish to grant power to elites is directly derived from no more and no less than his belief that he would find their decisions to his personal liking.

    My constitutional proposal, in which the allotted representatives of the demos have final decision power, is a modern analogue of 4th century practice. Direct isegoria is impossible in the extended republic, hence the need for election and other representative mechanisms. I’ve no way of know a priori whether the resulting elite isegoria will or will not be to my personal liking.

    My alleged elitism pales into insignificance compared to most of the people working in this field. I’ve just finished editing/typesetting John Burnheim’s new book The Demarchy Manifesto, due for publication early next year. John’s demarchic committees are not intended to be statistically representative of the general public and he has no time for popular sovereignty or the will of the people, in fact he now acknowledges that the answer to the rhetorical question posed by his first book on this topic (Is Democracy Possible?) is a resolute “no” (and neither is it desirable). The only reason for using sortition is to whittle down the number of self-nominated busybodies in an impartial manner and the decision output of the demarchic committees has to be judged on epistemic, rather than democratic, grounds.

    Regarding the rest of the academy, both the “constructivist turn” in representation studies and the more recent “representative turn” in democracy studies have strongly anti-democratic entailments. A couple of weeks ago I attended a workshop for a book project that includes some of the leading theorists in this field (Saward, Rehfeld, Urbinati, Disch and others). Andrew Rehfeld presented a paper seeking to rebut Pitkin’s claim that representation has inherent normative and democratic entailments and argued that we need to view representation more in terms of its Hobbesian origins (dismissed by Pitkin as a confidence trick). And Mike Saward relegates consideration of the democratic legitimacy of representative claim-making to what amounts to little more than a footnote in his influential book The Representative Claim.

    Stuck in between this rock and the hard place occupied by the democratic fundamentalists that dominate this forum, I sometimes feel like a lone voice crying in the wilderness. I note however that Equality by Lot has 409 followers, of whom only around 9 comment regularly, so I would be intrigued to learn if any of the other 400 would like to join me in the desert.

    Naomi:> I guess I don’t see constitutionalism, tradition, and rule-following as being inherently counter to the principle of popular sovereignty.

    Ok, then we are disagreeing over the meaning of words. The general meaning of the term “constitutionalism” is a check on popular sovereignty.

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  49. Care to provide a working definition of popular sovereignty? Thefreedictionary.com defines popular sovereignty as, “the doctrine that sovereign power is vested in the people and that those chosen by election to govern or to represent must conform to the will of the people,” and constitutionalism as, “Government in which power is distributed and limited by a system of laws that the rulers must obey.” I don’t see an irreconcilable contradiction so long as the system of fundamental laws is set and amended by means that are ultimately democratic in nature. The “will of the people” is also a phrase which requires a working definition on its own. Is it necessarily a majority? Can it require a supermajority instead? Unanimity? How about the considered judgement versus the base opinion of the masses? What if the people want to exercise their will through a process that would limit rashness? I really don’t care. It’s a matter of semantics. As long as we know what we are all talking about it shouldn’t matter.

    Too much rests on semantics. Take, “designing political systems on the basis of a single principle never works,” for example. How do we define “single principle,” or even “principle”? If we define single principle such that only the chief holders of practical political power are included (not their subordinates) then we see quite a few successful governments built upon the principle of rule-by-election-winners. Likewise, there are surely examples where all the political players held power due to hereditary (either from the inheritance of offices or wealth). The *stability* from multi-principle systems comes from the incorporation and domestication of the independently powerful. The representation of separate estates in the past would be an example. A more modern case would be the disproportionate influence of wealthy, famous, well-connected people in electoral governments. Their support shores up the system. It’s healthy (and probably necessary) from an institutional stability perspective. The number of principles or mechanisms is not the point. If we abstract too far away from the underlying reasons and focus excessively on semantics it becomes all too easy to generalize more than is defensible.

    It’s a bad idea to turn this into a conservative/liberal issue. There is nothing about the mainstream left precludes caution or constitutionalism. Only on the extremes. And that’s true of the extremes in general. You yourself are pushing radical untried reforms that would overhaul the British constitution. As I believe you’ve noted in the past, some would take issue with you describing your position as conservative. These labels are not adding anything to the discussion. Everyone is pushing the reforms they believe are necessary for various reasons. The reasons are what merit discussion. All you do when you bring up this sort of thing and paint people’s views with such a broad brush is drive away potential allies. The focus needs to stay on process. Any change to be implemented willfully, by fiat, rather than through natural institutional evolution, needs to be agreeable to the large majority of people. If you make it about conservatives *winning* then you will find only allies on the right. In the end that will not be enough to bring about any sort of lasting reform.

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  50. Naomi,

    If you choose to define constitutionalism as the will of the people (aka popular sovereignty), as expressed over a long period of time and incorporating checks and balances arrived at by a democratic process that allows due influence from those best qualified to opine on such matters, then I think we are in agreement. But contrast this to the frequent calls on this forum for “real” democracy operationalised as “convene a random sample and allow them to decide [anything]” and you will understand why I feel the ongoing need to distinguish between the competing ideal types of popular sovereignty and constitutionalism. It’s not just semantics, it’s how political institutions are designed and the multi-faceted designs that you and I have suggested are very different from the proposals of (say) Yoram and Terry, that rely on a single principle (random selection).

    >If you make it about conservatives *winning* then you will find only allies on the right.

    My only concern is that the number of conservatives that are active on this forum can be counted on one hand, if not one finger, hence my claim to be a lone voice crying in the wilderness. I don’t see how that counts as triumphalism.

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  51. “a democratic process that allows due influence from those best qualified to opine on such matters”
    The “best qualified” are always found in the mirror.

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  52. >The “best qualified” are always found in the mirror.

    Note that I used the word “opine”, rather than “judge”. As a general rule the opinion of someone who knows what they are talking about is preferable to someone who has no prior experience or knowledge of a particular domain. But if the subject matter is accessible (unlike, say, quantum physics), then most people are adequately qualified to judge which opinion is most agreeable to them. Most citizens have little knowledge regarding most of the topics that are dealt with by legislatures, but are perfectly capable of listening to a well-informed debate and determining the outcome. This is the standard argument for politeia.

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  53. Note that the operative term is not “opine” but “due influence.” But okay, you’re referring to “expert testimony.” That presents a problem in any system. Experts don’t necessarily agree any more than amateurs. Nor are the Few more astute than the Many in choosing expert advice.

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  54. And who (to repeat once more the refutation of this transparently false argument Sutherland never tires of regurgitating) would judge who is best qualified to opine?

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  55. In every other domain we employ heuristics such as competitive examinations, professional qualifications, per review, open market competition etc, to decide what counts as expert opinion, so why does this not apply to this domain? I acknowledge, of course that political decision making is not an epistemic procedure, hence the need to decide the outcome by stochation. Too choose one example, I have no idea as to whether the UK should remain part of the EU, as I have no expertise in economics, constitutional law etc, but would be happy to help adjudicate between the competing arguments on the issue according to my own preferences.

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  56. PS that should have been “peer review” not “per review” (I was responding on my mobile phone).

    >Nor are the Few more astute than the Many in choosing expert advice.

    I don’t think that’s true. Expertise is generally regarded as an elite function, so “the Few” might be in a better position to know where to look for expert advice. And market factors come into play — in the case of the EU referendum there are currently two anti groups slugging it out between them (only one will gain official status) and UKIP, a political party set up to campaign for withdrawal, has recently gained a lot of electoral support. Persons selected by lot would also resort to heuristic shortcuts, but absent elite input, may well just opt for columnists in their chosen daily newspaper. This would lead to anything but balanced expert advocacy as tabloids outsell broadsheets by a considerable factor and most tabloids share an anti-EU perspective. All this supports the case for politeia, as opposed to popular sovereignty.

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  57. Expertise is generally regarded as experience in a field and an understanding of its mysteries. There are no “experts” on the EU, only partisans.

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  58. That’s where the jury comes in — in the judicial court to decide guilt or innocence, and in the legislative court to register its informed (aggregate) preference, as a proxy for the informed preference of the target population.

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  59. Unless the “jury” has access to information denied to the “legislature,” they are no more informed than the “legislature.”

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  60. If by “legislature” you are referring to the whole population (voting directly in the EU referendum) then the jury will have considerably more information, as they will have listened carefully to the debate between the partisans for each cause. Are you suggesting that “partisan” is of necessity a pejorative term? The problem with UK public enquiries (apart from the lack of a jury) is the absence of partisanship, as there is no counsel for the defence.

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  61. “If by “legislature” you are referring to the whole population (voting directly in the EU referendum)”
    But of course I’m not..

    “then the jury will have considerably more information, as they will have listened carefully to the debate between the partisans for each cause.”

    And why will they be more attentive than their neighbors?

    ” Are you suggesting that “partisan” is of necessity a pejorative term?”

    Of course not.

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  62. z,
    A basic tenet for those of us advocating forms of sortition is that having a relatively small group (hundreds rather than millions) of average citizens charged with making an important decision is the only way to overcome rational ignorance…(If I know I have one vote out of millions I intuitively understand that my one vote has a vanishingly remote chance of making any difference, and thus I can’t be bothered to spend days or weeks learning all about the issue at hand, and society won’t pay everybody for that vast amount of human labor of millions of citizens on each issue.) But society can pay a smaller random sample to take time off their regular job, and the participants can have the motivation to learn and take it seriously (as they do on criminal juries). Mass politics is ALWAYS either manipulated by elte powers, or ill-informed. Elections introduce a raft of other distortions (special interest influence, narcissism, corruption). Only sortition can allow democracy to work well.

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  63. Selection by lot is certainly indispensable for a Democracy, but so is face to face discussion. .

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  64. In a direct democracy in a small polis, everyone can (in theory) discuss every issue face to face and then decide what to do about it in the assembly. This is not feasible in large modern states, so our concern here is how to simulate this in a statistically representative microcosm. Some people argue that society is divided into the elite and the masses and, seeing that random selection will privilege the masses, it doesn’t matter who is included in the sample. I would counter that it matters a lot in pluralistic multicultural states.

    This is really an empirical matter, as it would be possible to convene parallel samples and see if face to face discussion in the different samples leads to the same outcome. And this has been done already: Fishkin has done three DPs for Texan utility companies, and they came to different conclusions. My claim is that this is on account of the face to face discussion element of the DP, so steps have to be taken to ensure that the discussion is representative, and this will, must likely, require some serious constraints, as large scale democracy presupposes representation.

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  65. “(in theory) discuss every issue face to face and then decide what to do about it in the assembly. This is not feasible in large modern states,”
    Nor was it possible in the large old Athenian Democracy, which was built upon 150 demes where ideas and propositions could be argued out over ouzo. The Council of 500 was drawn from the demes.

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  66. The council was merely a collective magistracy that acted as the assembly secretariat. The assembly, and later the legislative courts, were the principal lawmaking bodies. In no sense can any of these bodies be viewed as a locus for face-to-face deliberation. Deliberation certainly took place in the demes and in the agora, but this is also true for the modern public sphere — the challenge being how to ensure that this affects lawmaking in a representative way.

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  67. *** I wrote “if we accept this kind of elitist argument, we should give all political powers to relevant elites ». Yoram Gat asked « who is this “we” who accept this argument? »
    *** By “we” I refer to the people who read this blog, many of them may be strongly democrats, but others may be interested by the social use of sortition whereas having doubts about the democratic-sovereignty-through-minipublics.

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  68. *** Yoram Gat wrote (October 20, 7:13 pm): “If (…) the people can be convinced that power should be handed off to an elite then it is no longer a non-democratic system – it is a democratic system where the people choose to follow a particular course of action (namely, the one suggested by the elite) ». I don’t agree. Giving power to somebody is not « following a particular course of action ».
    *** Let’s consider a “mind experiment”. In a society one tenth of the people is free (the higher QI fraction, or another criterion, or by lot). The other are slaves but each ten years they are entitled to choose their master among one hundred candidates, for ten years of slavery. I don’t agree that this free choice is enough to make them free citizens.
    *** Let’s suppose the French people has to choose every 10 years between the different political models the Western intellectual tradition knows: absolute monarchy, polyarchy, dêmokratia, various kinds of aristokratia, various kinds of dictatorship … This choice is not the same thing as a dêmokratia. If the French dêmos chooses another system than dêmokratia, it is not true that it is a “democratic choice”.
    *** Let’s suppose a French dêmokratia. The sovereign, i.e. the French people deems himself unable to govern and handles the power to an elite of some kind. Yoram Gat says it will be continuing dêmokratia. I don’t agree. It will be another political system, with consent by the dêmos. Let’s imagine a traditional absolute monarchy, where the king and his family become converted to Trotskyite ideas, and the country gets a totalitarian system of this brand. Because the royal lineage consents to the new system, Yoram Gat will say that it is always absolute monarchy! No, there was an abdication. A dêmokratia may abdicate, either explicitly, or implicitly (for instance canceling isêgoria, which is a necessary element of the system). In every system, there are possibilities of abdication.
    *** Yoram Gat is confusing abdication of power by a sovereign and deference of a sovereign towards a specific person or elite, giving them a strong influence. Such strong influence may have bad consequences, and may affect some qualities of the democratic model, but there is dêmokratia as long as, about any law or major political choice, there is a deliberation where any voice is heard, including those external to the “revered” elite, including the dissenting voices in this elite, followed by a vote where the dêmos – through a minipublic – is entitled to issue a decision, including a decision against the wishes of the majority of the elite.
    *** I add that democratic isêgoria will have a tendential eroding effect upon any kind of deference.

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  69. Agreed. When the Athenian assembly decided by a democratic vote to hand power to the oligarchs this marked a (temporary) cessation of the demokratia. The same can be said regarding the “perceived legitimacy” perspective on democracy outlined in Mike Saward’s book The Representative Claim. Democracy requires ongoing (representative) isonomia and isegoria — abolish either of these two and the system is no longer democratic. The definition of democracy is an institutional and ideological one, rather positivistic (the result of some prior decision taken by a democratic vote).

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  70. “The council was merely a collective magistracy that acted as the assembly secretariat.”
    No, the council was not “merely.” The Assembly couldn’t meet frequently. and the Council was its executive committee. Without the Council, the Assembly would have been as useful as a beached whale.
    The deme assemblies could hardly have avoided discussing the measures their allotted representatives were to consider in the Council, We cannot tell from the information we have, but it would have made sense for the deme assemblies to “instruct” their representatives as was the custom in the early American Republic..

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  71. Andre,

    I think that the crucial point in most of your thought experiments is the matter of a single point of irrevocable commitment. (The first thought experiment is different [and is not relevant for the issue being examined] because it assumes a constrained choice to begin with [i.e., the ruler must be a member of the elite], in which case whatever choice is made, it is clearly not a democratic choice.)

    Once you remove the assumption of an irrevocable commitment, and assume that the delegation of power persists only as long as the people give this delegation their informed and considered approval, then I think it is clear that the arrangement is democratic.

    In fact, I think that generally (as your thought experiments demonstrate) any system that involves points where high stakes, long-term decisions are made is anti-democratic. This is one of the reasons that I believe the emphasis often made on constitutional conventions is wrong. Any democratic system must have an ongoing constitutional process in which the constitution can be changed on an ongoing basis.

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  72. Yoram:

    >Once you remove the assumption of an irrevocable commitment, and assume that the delegation of power persists only as long as the people give this delegation their informed and considered approval, then I think it is clear that the arrangement is democratic.

    That sounds like a reasonable description of electoral democracy.

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  73. > That sounds like a reasonable description of electoral democracy.

    Only if you believe that a mass vote on an elite-determined agenda can express an informed and considered group decision.

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  74. >Only if you believe that a mass vote on an elite-determined agenda can express an informed and considered group decision.

    OK, so the system of government resulting from the decision to alienate sovereignty to an elected oligarchy would still be democracy, iff the decision was taken as a result of the free deliberation of a randomly-selected microcosm? And the same would be the case if the decision was to alienate sovereignty to a dictator, a computer system or the Delphic Oracle? And, so long as the decision was open to revision on an ongoing basis by another allotted sample, the system of government would continue to be democratic, even if approved by the allotted body/ies on purely epistemic criteria (bread, circuses or whatever)?

    This might make sense to a proceduralist, or contractarian but most definitions of democracy involve ideological and/or institutional criteria that would draw a sharp distinction between these very different forms of government.

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  75. I don’t see this as being a proceduralist criterion but a substantive one. Democracy means that policy is determined according to the informed and considered opinions of the people. The rest is, as we say in engineering, implementation details. If the people choose to provisionally delegate decision making to some person or some body, so be it.

    In fact, to a large extent such delegation is hardly avoidable since in any rational system relying on professional services is inevitable. It could be argued how closely the allotted can monitor, and occasionally overrule, the professionals, and to what extent policy making can be divided into areas so no single professional person or body holds too much power. But avoiding delegation altogether is hardly conceivable. To some extent this seems to be what Burnheim’s demarchy is aiming at, and this is indeed one of the reasons the system he proposes seems unrealistic.

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  76. Yoram,

    So, subject to the above caveats, there would be no difference in principle between delegation to elected representatives or a dictator — both outcomes would be democratic? Bear in mind this is not a Rousseauian model — in which the sovereign makes the policy decisions and then delegates the operational side to the executive magistrate — we are talking about the alienation of sovereignty, and this would normally be viewed as contravening democratic norms.

    I don’t quite understand your perspective on Burnheim. According to John’s new book, notions of popular sovereignty and the will of the people are chimeric, so there’s nothing to delegate. All that’s required is sensible and pragmatic solutions to everyday problems — demarchy would best be described as a form of aleatory platonism. Although John’s first book has a section on statistical representation, he has now firmly rejected such an approach, sortition only being of interest for its prophylactic benefits.

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  77. *** I am not sure of understanding Yoram Gat views about “delegation of power” . He wrote “ Once you remove the assumption of an irrevocable commitment, and assume that the delegation of power persists only as long as the people give this delegation their informed and considered approval, then I think it is clear that the arrangement is democratic » but likewise « any system that involves points where high stakes, long-term decisions are made is anti-democratic ». Does that means that delegation of power by the dêmos is to be accepted, but not for high-stakes or long-term decisions ?
    *** If this is the idea, i agree (with the provision that delegated powers must be overseen through audits, to be sure that the entities exercizing the delegated powers do not extend their field.)
    *** We must remind that not only laws, but many concrete decisions about individual points may have high stake or long-term effects.
    When the French government sells arms to the Saudi Arabia government which will be used for instance against Yemeni shiites, it is a concrete individual one-time decision, but maybe not a short-term low-stake one.

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  78. .*** Keith Sutherland wrote (October 20) « I think we should also be alarmed that the term “sovereignty” originated in Bodin and Filmer’s justification of absolute monarchy. Rousseau may have turned it on its head, but that’s what Marx did to Hegel and look what a fine mess that led to »
    *** It seems that Keith considers the idea of sovereignty as intrinsically linked to absolute monarchy, and « turned on his head » by a very personal « intellectual coup » of Rousseau. This is a simplistic view. « Kurios » for sovereign is a word much known by Aristotle, and « to kurion » means the sovereign entity (people, elite, king, tyrant,…) – see Pol. 3,10,1 ; 1281, a-11. Bodin took the idea into the first Western work of political philosophy, and if I remember well for him democracy was a kind of sovereignty, even if it was an inferior and unperfect kind. I did not read Filmer; as far as I know, he was a strong supporter of absolute monarchy. But the intellectual interest for sovereignty did not stick to this specific political choice. Spinoza, slightly later than Filmer, used the same concept (in Latin “summa potestas”), and he was not monarchist – actually he was democratic-minded, as seen in some words of his “Tractatus theologico-politicus”. Unfortunately, he died when beginning the “Democracy” chapter in his “Tractatus politicus”. This unfinished book is enough to demonstrate that thinkers of the Classical West could use the sovereignty idea without being suspect of merely covering an advocacy of absolute monarchy.
    *** An abstract concept of sovereignty may include the “mixed commonwealth” model, or the polyarchic model, at least if we speak about a sovereign state (an “imperium” in Spinoza’s Latin). In such a state we have a complex system which issues political decisions, including the implicit decisions of political status-quo.
    *** In French media we can often see sentences as “the French and European courts are useful to protect citizens from abuses of political power “ – as if the power or courts would not be political! The wide concept of of sovereignty is especially useful here, to lead us to take a systemic point of view: all the elements of polyarchy are parts of a system, which issues political decisions, including the implicit decisions of leaving space to the de facto powers.

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  79. Andre

    I believe Yoram was referring to the (revocable) delegation of sovereignty, not administrative decision-making.

    On the issue of sovereignty, I’m not an expert in the history of political thought, but I attended all the meetings of the Popular Sovereignty Project at QM http://projects.history.qmul.ac.uk/hpt/projects/ and (so far as I remember) the speakers mostly argued that sovereignty, while having its roots in antiquity, was primarily an early-modern concept. This is certainly Habermas’s view in his book on the Public Sphere, where he contraposes the “will” of the sovereign prince with the “opinion” of his advisers. And the modern understanding of democratic sovereignty, with its associated notion of the will of the people, owes more to Rousseau than any other thinker (certainly not Spinoza).

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  80. André,

    > Does that means that delegation of power by the dêmos is to be accepted, but not for high-stakes or long-term decisions ?
    > We must remind that not only laws, but many concrete decisions about individual points may have high stake or long-term effects.

    Ok – I agree that you put your finger on a difficult point. As you note, this point is not specifically about delegation. Any decision whose effects cannot be fully reversed (and of course this to some extent is the case for every decision) constrains future policy and is therefore deprives power from future decision makers. If those future decision makers are the demos, then it deprives the demos from some of its power.

    To the extent this is unavoidable it is hard to criticize a system which suffers from this problem (and of course, every system would suffer from this problem). However, systems that artificially amplify this effect by deliberately introducing high-stakes, long-term political commitments where none have to be made are faulty, and because they deliberately reduce democratic power, are undemocratic.

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  81. *** Keith Sutherland wrote (October 25): “the modern understanding of democratic sovereignty, with its associated notion of the will of the people, owes more to Rousseau than any other thinker (certainly not Spinoza). »
    *** I agree, sure. The political influence of Spinoza was small, the Rousseau’s influence was great – at least concerning values and myths. Because Spinoza kind of thinking and writing had a small popular appeal. And because, as I said, he died when beginning the chapter « democracy » .*** But it was not my point. My point was that Spinoza’s case demonstrated that the sovereignty concept was not intrinsically linked to absolute monarchy, and that its use by Rousseau was not something very personal, as Keith clearly was claiming.

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  82. *** Keith Sutherland quotes as scholarly consensus (October 25): “that sovereignty, while having its roots in antiquity, was primarily an early-modern concept. »
    *** Sure. The sovereignty concept implies a sovereign State, as were the ancient Greek cities and as were the early-modern States (kingdoms or republics). It was not well adapted to feudal times, with their complex networks – when the king of England could be duke of Normandy and count of Poitou, therefore vassal of the king of France. ..
    *** Some say nowadays that globalization takes us back to these pre-sovereignty times, and that therefore we must give up the sovereignty concept. I suspect strongly they would like to get rid of the popular sovereignty concept – which is becoming dangerous now as the technology may « give us back Athens ».

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  83. *** Yoram Gat wrote « In fact, to a large extent such delegation is hardly avoidable since in any rational system relying on professional services is inevitable. It could be argued how closely the allotted can monitor, and occasionally overrule, the professionals, and to what extent policy making can be divided into areas so no single professional person or body holds too much power. But avoiding delegation altogether is hardly conceivable »
    *** I agree. I remind that the standard ISO9002 is an useful tool to control networks, and could be adapted to the working of a dêmokratia. By using at least partly alloted auditing teams, it would be possible to minimize the risk of elite connivance between the professional networks and the auditing teams.
    *** Keith Sutherland writes about the “Rousseauian model — in which the sovereign makes the policy decisions and then delegates the operational side to the executive magistrate ». Actually the Rousseauian model delegates much power, and Rousseau’s “sovereignty” is restricted to the pure legislative power. That results from the « static » political view of Rousseau – totally unsuitable for our modern world – and from his « legicentrism », extreme even for his time. He goes as far as to exclude from sovereignty acts as initiating wars and concluding peaces (Social Contract, book 2, chap. 2). I don’t think any modern democrat will follow these Rousseauian ideas. Here Keith could speak of some kind of “fondamentalism” !

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