There are often powerful considerations in favour of having distinct authorities with distinct jurisdictions and constitutions and procedures to address certain problems that are not well treated if approached from the point of view of the state, whether that word refers to nation-states or members of a federation.
An obvious case is that of a river system that impinges on many states in a long chain from the sources of the various streams that contribute to it to its final discharge into the sea, if it gets that far. What each state does or permits in the light of its own interests often impinges on many of the others, particularly those nearer to the end of the chain. One solution where all the states in question are part of the same federation is simply to hand the problems of conflicting interests over to the feds, who should be able to take an impartial view.
In practice that is often unsatisfactory. It may reduce the riverine interests to pawns in federal politics. It may lead to federal meddling in the whole range of state interests in land management to the detriment of those interests. Different federal authorities may intervene in ways that are influenced more by a desire to have a uniform policy on some matter across the federation than by attention to the particular problems of that river system. So it seems most desirable to have an authority that is focussed on arriving at good solutions to the complex problems, ecological, commercial, recreational and developmental that it throws up. In ensuring a balanced input into the decision processes of such an authority sortition on various bases is likely to give better results than standard voting practices. It is not just a matter of the divergent interests of the states, but of balancing various ecological considerations against each other and against a variety of commercial or consumer interests. I’ll return to this point below.
Different patterns of representation will be appropriate in other supra-state matters that have no particular geographical basis, such as the regulation of the international monetary system, or intellectual property and a growing host of things in the increasingly complex problems we set ourselves.
The great objection to the multiplication of authorities is that it means multiplying agencies with power. Power inevitably tends to get abused. Multiplying sources of power is to multiply sources of oppression and of struggles for power. Leaving them uncontrolled is a recipe for disintegration, putting them under a single supreme authority a recipe for tyranny.
These objections depend on two assumptions:
1. That they increase the scope and impact of punitive authorities.
2. That their social effects are mainly to add to the sum of prohibitions that reduce people’s freedom.
Both assumptions are unwarranted. In both cases sortition can ensure that these dangers are minimised.
1. It is neither necessary nor efficient for each specialised authority to have its own means of enforcing its decisions. In a case such as that of the river basin it would be normal practice for each of the states involved to agree in signing a treaty setting out the limits of the riverine authority’s jurisdiction to agree to incorporate the new authoritiy’s regulations into its own legal system. So any breach of those regulations could be prosecuted in the courts, either as a criminal matter or, more usually, as a suit for damages of one sort or another.
That would increase neither the scope of what was regulated nor the enforcement needed, but just make both more effective and efficient., removing a chaotic mass of state regulations in favour of better ones.
Why would the states agree to do that? Sometimes because of widespread public concern about the river and the many problems that have emerged about it. Sometimes for an easy life, unloading thorny problems in regard to which they are likely to fail on to others. Sometimes because their bargaining position, e.g. at the end of the chain, is weak, and they are much more likely to get an acceptable deal from an independent authority than from a round of bargaining.
In many important matters it is not necessary for there be any such legally binding agreement. An international authority that sets standards of safety for certain consumer products may set generally recognised standards. The result will be that it is generally assumed that responsible manufacturers and retailers will find it easiest to conform to those standards, if only to protect themselves against possible litigation for damages, and the serious consequences for their reputation that can follow such publicity.
2. The salient aspect of authorities in day-to-day experience is that they stop people doing things that they want to do. Sometimes that is welcome protection against harms that others might inflict onus. Sometimes it is an irksome restriction on our own freedom. The extremes are familiar, ranging from the tough self-reliant type who can “look after himself” and resents anybody else interfering with that, to the timid souls who want to be protected against anything that upsets them. There is no foolproof procedure for striking an ideal balance between the restrictions that increase our net freedom by making it possible to do things easily and securely at little cost to good citizens and restrictions that impede certain legitimate activities or enable some villains to misuse them. Unfortunately it is easy to notice the unpleasant restrictions, while taking for granted the protective situation they underpin.
More positively, when it comes to deliberately constructed public goods, the quality of those goods is expressive of our identities as members of the relevant communities. A great part of one’s personal identity consists in having one’s own personal attachment to many such goods, shared with different but overlapping groups of people. Such groups usually have open boundaries, ranging from lovers of certain kinds of entertainment or recreation to services that are vital to one’s way of life. The benefits of particular arrangements to produce or protect such goods in their various circumstances are impossible to quantify precisely, because public goods by definition have no market price. But they do have costs of production, most of which do have clear market prices, and we have to come to an agreed assessment about whether their benefits outweigh the costs, and about how the costs are to be met.
It is much the same with our obligations to posterity. Most people would like to think that they are handing on to posterity a world that is at least as good as they inherited. The hard-nosed responses: What has posterity ever done for me? or just: What’s in it for me? are not just inimical to community, but impoverish the people who adopt them, imprisoning them in a world of their own making that cuts them off from most of the things that make life worth living. Even the most self-satisfied need at least the illusion that others acknowledge the worth of what they do.
On the other hand our needs for public goods are easily and regularly exploited by those who insist that there is just one right answer to what our various communities need. That answer can be ensured only by a single power with the capacity to regulate whatever it sees as necessary to give effect to its judgements. Not only dictators, but many who think of themselves s democrats, think of the nation-state in this way. Whatever the people decide by an allegedly democratic procedure, such as a majority vote, is right. Hence the interminable problem about circumscribing the range of matters the people can decide and justifying the title of various procedures to be what Rousseau called “the General Will”, as distinct from the mere aggregate of “the will of all” or the will of the majority.
There is a great deal to be said for conferring on a single well regulated body the monopoly of the legitimate use of organised violence to punish breaches of important arrangements. What I want to claim is that it is not necessary to entrust all decisions about those arrangements to the institution that is charged with enforcing them. To some extent that is already generally recognised. Most modern democratic constitutions make some effort to separate legislative from enforcement agencies. They also provide a means whereby individuals and organisations my make binding arrangements among themselves; independently of any endorsement by the legislative authority and rely on the enforcement institutions to enforce those arrangements.
Unfortunately, our narrow concentration on the nation-state as having the exclusive right to decide on any matter of general concern has led to a rigid dichotomy between such matters and matters that are purely private. As I tried to show above, there are plenty of public goods that cannot be dealt with in terms of that dichotomy. The community is not a machine dedicated to a single purpose. Nor is it simply an aggregate of individuals, but an ecosystem of great complexity. However, the suggestions I would make for the use of sortition to set up independent authorities on a large scale are a long way from such practical politics as we have at present. So I’ll attempt to give a practical real life instance where it might be a practical way out of an impasse in a small matter, where change may be possible.
Not far from where I live there is a derelict complex of hospital buildings situated in a large and very pleasant waterfront park. The suggestion has been made that the buildings might provide emergency accommodation for refugees from the Middle East. The buildings have become derelict because the local council insists that they ought o be demolished and the site harmonised with the park. The state government, which owns the site, would like to sell it to provide public funds. The federal government, which has responsibility for refugees, does not want either to buy the land or to refurbish the old buildings for the benefit of the state. A stalemate.
If there were an independent authority charged with the project of using those buildings for a limited time to provide emergency accommodation for refugees until a more satisfactory solution was available, it might well be able to negotiate around these various differences and bring in a lot of support for the project from other sources. So it might allow both the state and the local municipality time to arrive at some compromise. So they would provide the necessary authorisations or leases. Without committing itself to an expensive program, the Feds might be ready to contribute to the project what it costs them to provide for refugees on a per capita basis. Other donors might be happy to support such an authority financially and in other ways where they would not want to give either to the feds. It all depends on the authority being seen as needed, but as making no demands beyond what is needed.
It is unlikely that a purely private body would receive the cooperation of governments in such a matter, but a well-organised body fully open to scrutiny, and on which they had some representation, might well be more acceptable to them. They would probably insist on appointing representatives rather than having them chosen by lot from a suitable panel, but could be persuaded that the other members of the governing body of the enterprise could be chosen by lot from various groups with the relevant kinds of experience that seems desirable in coming to decisions about the different aspects of the enterprise. That would include, of course, some chosen from the refugees. In my kind of scheme I would hope that it was emphasised that the people so chosen are not there to represent anybody, but because of what, particularly in virtue of their experience, they ought contribute to the good management of the enterprise. Both their peers and the people who choose to follow or contribute to their fully public deliberations would judge their performance in that perspective.
The standing of such specialised authorities with the general public will depend on conventions that grow out of experience, establishing certain ways of dealing with common problems as best practice. Sortition in most circumstances makes collusion to abuse power very much more difficult to institute in the first place and to cover up as new members are fed into the governing body one by one instead of all at once. There can also be independent bodies, appointed by sortition, that scrutinise the claims of other bodies to complete transparency and evaluate their performance. In these ways it seems possible to build up an ecosystem of authorities of different kinds, with limited lifespans and evolving functions that have just so muck authority as they need to perform their functions, acting without any great plan for the whole, but coordinating their activities where desirable with other cognate bodies.
Such a vision does not assume any change in human nature, but only many changes in the roles, incentives and knowledge that constitute the opportunities that people have to indulge and develop their drives. Some institutional practices offer seductive opportunities for greed, violence and cruelty. Others can render those temptations much less attractive.