Law in Action

The armchair constitution-building on this forum has been, for the most part, abstract and speculative, so I’d like to bring it down to earth with a specific case-study. The recession in the UK has been serious and the consensus amongst economists is that any enduring recovery will be export-driven, as the home market is still highly indebted. In the last two years the domestic market in China has grown rapidly and most countries are now targeting their exports in that direction (the UK currently accounts for only 1% of Chinese imports). But China has an appalling human rights record, leading some to say that the UK should have a similar policy to China as with South Africa in the apartheid regime. Thus we have a classical political dilemma, so let’s explore possible outcomes in the light of three constitutional models:

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“Representation and Randomness,” Part Two

After a long hiatus, I’d like to return to commenting on Constellations’ recent symposium on “Representation and Randomness.” (See part one of this review.) To take up where I left off…

Hubertus Buchstein entitled his contribution to the symposium “Reviving Randomness for Political Rationality: Elements of a Theory of Aleatory Democracy.” In this contribution, Buchstein promises to “show that incorporating the factor of chance might…be of interest for contemporary democracies in terms of reform policy and how it could be achieved in practice.” In doing so, he attempts an ambitious array of tasks. The paper begins by “listing five potential functions of the lottery in the realm of politics” (p. 436). It then briefly considers the reintroduction of lotteries to modern politics via the American jury. (Two small historical quibbles: while it is true, as Buchstein says, that U.S. law has required random jury selection only since 1968, the practice was used at various times since the early days of the Republic. Also, the random selection of American military conscripts predates the Vietnam War. It was used in World War II, for example.) Then it addresses some theoretical problems raised in contemporary democratic theory (primarily by Habermas). Then it examines various recent small-scale projects involving randomly-selected citizens (notably James Fishkin’s deliberative opinion polls). Then it considers how random selection might address the problems of contemporary democratic theory that were raised earlier. It concludes with a few additional reform proposals involving random selection that might be worthy of further consideration.

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