The Jury’s Still Out

I recently completed jury service and wanted to share with this forum how it has affected my faith in the potential of randomly-selected legislative juries. I was impressed by the overall impartiality of the system – three sortitions in total (initial random selection from the electoral role, sortition from the jury pool (c.40) to a particular trial, followed by sortition from 20 potential jurors to the panel of 12 in the courtroom itself). I was pleased (and surprised) when the trial judge informed us that we were the judge of the facts, his job was merely to instruct us in the law. I was also impressed by the sample of citizens selected — it struck me as a reasonable cross-section of the general public, a wide variety of ages and backgrounds and a good level of general intelligence (much higher than I anticipated).

What about the deliberations and the verdict? The defendant was a director of a failed company who was accused of intent to defraud his creditors. Complex fraud trials are challenging for randomly-selected juries but this one only required a basic understanding of accounting terminology (balance sheets, trading P&L, solvency etc.). The jury deliberations, however, lasted for a couple of days and in the end we delivered a majority verdict which did not achieve the level of consensus required (10:2), so the judge stood us down, leaving the prosecution to decide whether or not to institute a retrial (at considerable public expense).

The experience has made me a little more sceptical about the potential for randomly-selected legislative juries for two reasons. The law on intent to defraud creditors is nuanced and requires three distinct conditions to be fulfilled: 1) that there was a high probability that creditors would lose their money and 2) that the director in question knew this to be the case and 3) that his behaviour would be deemed dishonest and unreasonable in the eyes of most business people (I paraphrase here, as I don’t have the statute to hand). We all agreed the defendant was guilty on conditions 1 and 3 but many jurors struggled with 2) as they were unable to jettison the privileged perspective of hindsight. The director admitted that the company had serious cashflow problems and was telling all manner of lies as stalling tactics to customers who had paid large deposits. He took no wages for six months and was also pumping in his own cash (and providing personal guarantees) in order to keep the show on the roads. He made no attempt to fraudulently prefer secured creditors in order to diminish his personal liability. The administrator’s report indicated that the company was indeed insolvent but previous audited accounts showed a strong balance sheet. The defendant also made large payments to creditors after the liquidation on account of his personal guarantees. As such the evidence for intent to defraud was, at best, scanty but the problem was that most of the prosecution witnesses were private creditors, who attracted the sympathy of many the jurors. The defendant resembled a shifty used-car salesman and attracted little sympathy from the jury. There was also a difficulty in distinguishing between moral sins (lying) and legal ones (criminal intent). I believe I was the only company director in the jury and, as such, the only one with direct experience of a director’s quandary in trying to keep a business afloat under difficult trading conditions. Judging by the views of some of my colleagues, most company directors would now be retained at Her Majesty’s Pleasure.

So what can we learn regarding the potential of randomly-selected legislative juries? Given that most citizens will have little direct experience of the legislative issues involved this makes me more sympathetic to John Burnheim’s proposal for demarchic panels, using sortition to choose impartially from a self-selected pool of those with an “interest” in a particular area of governance. But how is this compatible with the need to ensure a representative sample? In the trial example a representative sample would have required six ordinary citizens and six people with business experience; demarchic panels (on trade-related issues) might require a similar balance between producer and consumer interests and it’s not clear how a random sample from a volunteer base would generate the necessary balance. If stratification is required then what would be the criteria to securing a balanced panel? (And what about Madison’s argument that dispassionate judgment presupposes legislators who have no interest in the bill being considered?) These are highly politicised questions and it’s hard to see any objective way of determining them.

My other representation-related concern is regarding the differential ability to persuade. I flatter myself to think that the hung jury was the result of my own persuasive powers – I’m pretty sure that if I hadn’t been assigned to that particular jury then the defendant would have been wrongly (IMO) convicted. The task of a jury in a criminal case is an epistemic one – securing the “right” interpretation of the facts. But in a legislative trial there are (presupposing democratic norms), no “right” answers. A large (c.300) randomly-selected jury should be an accurate portrait-in-miniature of the whole citizenry and its verdict should reflect the considered beliefs and preferences of the majority in the country. Differentials in the persuasive powers of individual members of the citizen jury would distort its representative accuracy, so this would suggest a model of silent deliberation and voting as opposed to the rich deliberative exchange adopted by the criminal jury. Consensus verdicts are not required in legislative trials so, for the sake of accurate descriptive representation, the active deliberative function should be restricted to the parties acting for and against the bill (equivalent to the prosecution and defence advocates). There would be no need for jury retiring rooms.

47 Responses

  1. Thank you, Keith, for this personal account of your jury experience.

    Having also served on a criminal jury in Melbourne six years ago, I agree that it opens the opportunity to reflect on many questions about civil participation and sortition (which appeals to me).

    I am not supposed to tell you that mine was a drug importation case, and we acquitted. Oh, we were all confident that the defendant did indeed conspire to import a big bag of weed. But we were not there to make a moral judgement nor to decide what was “right”. No, our job was to ascertain whether the prosecution had done their job properly. Did they do what was necessary to prove their charge? In this case, they did not. Much of the so-called evidence was circumstantial, the police manipulated the defendant by intercepting the shipment and planting a decoy, and they did not administer the charge as required by law. Our job in the jury was to make sure that the police did not cheat. After all, juries of reasonable peers were brought in long ago to mitigate the excesses of state power.

    Judging the credibility of evidence is an appropriate activity for mini-publics, because it does not require that they become experts in the content matter, only that it is being handled appropriately by the experts and stewards of the system, and that sources for facts are credible–and that’s the very human judgement that requires a jury. So it’s not whether or not the facts are “right”, it’s a matter of whether they reflect the truth of the matter and come from trustworthy sources.

    But I think we too often invite mini-publics into discursive activity for which they are unsuited. With citizens’ juries (which are as close as we get now to Burnheim’s demarchic panels), too often the agenda expects the participants to become content experts and make decisions in place of the experts. It’s no wonder that experts, stakeholders and power-brokers don’t want public participation when their power is being explicitly usurped. Instead, mini-publics should be invited to do the “meta-” work of judging the veracity of the diverse claims made by interlocutors in the issue, and get to the heart of what really matters to the community. A good example is the Oregon Citizen’s Initiated Referenda review panel. Juries (whether criminal or legislative) should be seen to remove any arbitrariness or favour-serving in judicial, administrative and political action, and also to renounce the rubbish in the media that distorts rational discussion. Juries exist to keep the bastards honest.


  2. Thanks Ron, that’s very well put and I agree with pretty much all you have to say. I think the jury that you served on was either very well directed by the judge or contained someone [yourself?] who explained carefully to his peers that their job was to critically evaluate the evidence rather than to decide on what was “right”. In my own case it struck me that the prosecution was all bluster and no evidence — the barrister kept repeating that the defendant was a liar (fobbing off his creditors with all sorts of excuses) and that the firm was heavily overdrawn — both sins already admitted by the defence.

    In the criminal case no-one on the jury had a particular interest at stake, but this would clearly not be true for legislative juries. But of course elected legislators are far worse in this respect as they have to be judges and parties (in Madison’s terminology) at the same time, so a bunch of ordinary citizens are far more likely to judge in a disinterested way. Ideally (and pace Burnheim) jurors should be randomly selected from a pool that had no interest in the case under consideration (Madison’s ideal for the legislative judge). Whilst Rousseau exhorted legislators to always judge in the general interest this is a standard that is hard to achieve in practice, so better to exclude anyone from the legislative panel who had any interest. I’ve no idea how that might be possible (!) and will invite John to tell us why it would be undesirable. Those who argue that democratic politics is just the identification and pursuit of majority interests (as opposed to an epistemic judgment as to what is in the general interest) will of course also reject this argument tout court.


  3. Ron

    PS Jon Elster’s new book Securities Against Misrule would endorse your perspective on the role of juries. The book is based around Jeremy Bentham’s view that the role of political and juridical decision making is to prevent the operation of “sinister influences” rather than the discovery of “truth” or republican virtue. Elster’s view is that the role of political philosophy is to design a system of law-making in which both the people and their representatives are, as far as possible, impotent to do harm. It’s good to hear that the old Marxist has become somewhat conservative in his dotage!


  4. Keith
    I’m not a great fan of the jury system for criminal or civil matters, and I doubt whether it is very relevant to the committees I have in mind.
    What I propose is that in a particular area of decision where conflicting interests are involved, those who make the decisions should be representatives of those interests and attempt to negotiate between them the most acceptable compromise.
    That is very different from a panel that is trying to apply the law to a matter about which they have no experience. In NSW those accused of a crime may be given the choice of a jury trial or a judge alone. The statistics show that the judges acquit more often than juries and cost a lot less. Barristers can bamboozle juries much more easily than judges. In my scheme the higher order questions of equity and titles to representation are entrusted to people chosen by lot from a panel who have been nominated by their peers on lower order bodies as having the character and ability to handle such questions.
    One of my misgivings about Keith’s scheme is that it may not produce any better results than our present systems if the juries are limited to accepting or rejecting packages proposed by parties. On the face of it, if they are a representative sample of the populace, they are likely to make much the same decisions as our present electorates.
    My basic problem is how to get good decisions. One great strength of the market is that it depends on lots of particular transactions, in each of which the parties try to strike the best deal in view of their different interests. It is very surprising that the overall result is so good. In my youth socialists used to argue that the market is very wasteful
    compared to a planned economy. But we know they were wrong. I set out to show how the public good could be built up from a lot of particular decisions in an analogous way. But our political traditions are all in the socialist vein. I persist in thinking that my approach is worth trying, that centralised bureaucracy is what is wasteful, and that adversarial politics in a top-down scheme is a recipe for bad decisions. At present I’m working on a third edition to be released on line. After all, if I’m right, It is the most important book on politics since Plato! So I must be wrong.


  5. John

    >One of my misgivings about Keith’s scheme is that it may not produce any better results than our present systems if the juries are limited to accepting or rejecting packages proposed by parties. On the face of it, if they are a representative sample of the populace, they are likely to make much the same decisions as our present electorates.

    Yes, my jury experience has made me a little sceptical too. I was surprised by the extent that jurors appeared to be immune to rational discourse and filtered everything through the lens of their own life experience, the only exception being the waverers. The problem with the demarchic alternative is that “those with an interest” are the least likely to be waverers so you end up with a pork-belly decision mechanism, trading off one interest against another. And how do you ensure that interests are represented in statistical proportion to the majority interests of the general public? This can only be secured by choice (electoral or direct-democratic) or statistical sampling, volunteers being anything other than typical.

    At least juries are obliged to listen to the arguments for and against, even if they have difficulty understanding them fully and adopt cognitive filters that may not be particularly relevant. This, along with the general separation of judgment and advocacy, is a considerable improvement on our present democratic arrangements. I can understand the argument for the demarchic alternative, but don’t see how it can fulfil the representativity requirement that is fundamental to democratic politics. I also don’t understand the relevance of the market analogy as citizenship is, by definition, a compulsory mode of association in which we don’t get to choose which laws we are going to obey. And why should the market generate “good” solutions. This may be true in the case of (say) motor cars or computers, but when it comes to (say) culture the Reithian alternative is not without merit. Surely lawmaking is closer to the latter than the former.


  6. KeithPeople can only by what is on offer. What concerns me is not so much the final choice as what it is a choice between. In any centralised system we have a choice ultimately only between two comprehensive packages,each assembled by power-trading rather than the specific needs of the consumers of the constituent elements of the packages. Juries, like electors are going to choose between them on pretty subjective grounds. Evaluating all the diverse considerations that affect the value of such packages is beyond the capacity of mere mortals.
    As for laws, there is a great deal to be said. The sort of laws that are indispensable define conventions that are necessary for coordination in something the way that the grammar of a language enable communication. It is also necessary to prohibit acts that are demonstrably harmful to individuals or groups who cannot protect themselves, so they can go about their business in peace. Many such laws need to be universal, but not a great deal hangs on the sort of differences that there are between local conventions on such matters. We grow up in a particular set of conventions just as we grow up as native speakers of a particular language. They may need abit of tinkering, but nothing very serious.
    But in centralised systems law is seen as the supreme way of using its coercive power to shape the whole character of a society. So we have wars on drugs, sexism, racism, parental neglect and so on. I am convinced that these things need to be eliminated, but not by law. The most significant changes in such matters come about through discussion and people taking the relevant consideration into account in a host of particular contexts.
    One of my fundamental principles is that nobody should have a say in any matter that does not affect her legitimate interests directly and substantially. Admit that principle and it changes the whole point of discussions of representation. To that extent I’m a libertarian, but unlike other libertarians, I think public provision of certain goods is both desirable and very necessary. But in their specific character they are mostly the goods of particular publics, best organised by reference to a certain group of users, which, of course will be partly a matter of historical accident and will need to be redefined as circumstances change and also need to be coordinated with other agencies. I discuss all of this in general terms in the book, but developing it in practice is another matter.
    The evolutionary origins of our species involves the most improbable coincidences. My proposals depend on enormously improbable circumstances to succeed, but almost everything that happens is enormously improbably by reference to what preceded it!


  7. John,

    > One of my fundamental principles is that nobody should have a say in any matter that does not affect her legitimate interests directly and substantially.

    The obvious problem with this principle is that there is no objective way to determine what constitutes a “legitimate interest”, or a “direct and substantial” impact upon such a legitimate interest. Indeed, our society, like any society, is already nominally arranged according to this principle, for there is no society that will admit that power is exerted in a non-legitimate way (even if, in the extreme case, legitimacy is cast in terms of nothing but raw power).


  8. John

    >In any centralised system we have a choice ultimately only between two comprehensive packages

    That’s certainly the case when unitary governments are elected on simple majorities — they have to aggregate the choices into a comprehensive package. Not so with an ad hoc jury-based system — this would be a modern version of Athenian practice, whereby somebody proposes a new law and a legislative jury is established to deliberate on it (assuming the proposal has passed the threshold in a public votation). Just as demarchy involves subject-specific committees, jury-based democracy would also deal with each issue independently, so the problem is not so much centralisation as aggregation. The principal difference between the two proposals is self-selection (demarchy) as opposed to statistical representation (jury democracy). Jury-based democracy is also considerably less anarchistic/libertarian than demarchy as it presupposes a unitary executive arm to implement the decisions of the ad hoc nomothetic panels and ensure the necessary coordination (fiscal and otherwise).

    One thing that my recent jury service did convince me though is that ordinary people would take this responsibility very seriously, even though they may not have a direct interest in the matter under consideration — so there would be no need for self-selection. And I also stand by the view that those with an interest in the subject under debate would be far less likely to modify their viewpoint as a result of the discursive exchange than those who can judge in a disinterested manner. I would also agree with Yoram that there is no objective way to decide who has a legitimate interest — the volunteering principle would tend to privilege a certain type of person whose interest may not necessarily be more legitimate than someone who chose not to volunteer. I’m not in favour of government by anoraks and interfering busybodies.

    >What concerns me is not so much the final choice as what it is a choice between.

    That’s surprising, given your faith in markets. Surely politicians (and others) will make proposals that are likely to win favour with the majority of citizens? Or have I misunderstood what you mean by markets?

    >My proposals depend on enormously improbable circumstances to succeed.

    Ulp! Jury-based democracy is a lot more practicable.


  9. There is a crucial difference between a judicial (Anglo-American) jury and a legislative citizen jury; that distinction also implies a diffident type of “deliberation.” In the first case, jurors are asked to vote “yes or no” to pre-drafted questions according to very specific legalistic instructions. This may be no “deliberation” at all, neither in the common meaning of “deliberate” nor in the political science meaning envisioned by democratic theorists.

    That humans are not naturally inclined, without long training / discipline, to do “jury deliberations” says little about democratic deliberation and more about humans problem solving ability. It may be that we are built more to solve problems in small groups than to follows specific instructions given in jargon by men in black robes with no senses of humor.


  10. Keith
    There can be a lot of vagueness about what constitutes a legitimate interest. For my purposes it is a substantial material interest, meaning that it has direct effects on a person,s welfare, quite independently of their opinions. Once you bring in opinions, of course, there is not much limit to what people may take an interest in. In open discussion anybody can legitimately advocate whatever opinions they like about any matter they choose. But when it comes to negotiation between opposing material interests the range of those who are substantially and directly affected is quite limited and objectively determinable. It is a matter of straightforward causal relations.
    But all of this is dependent on whether you want to structure society from the bottom up or from the top down. Refer back to what I said above about law.
    As fro volunteering, if the people’s material interests are the same they should be swayed by the same considerations. There is no tight control over that. Some people vote on ideological grounds, even against their interests. I assume that that would tend to be less of a problem in a sortition, where the focus is on very specific issues, not idealised ones, and any such person will be in a small minority if their ideology is in any way idiosyncratic. The trouble about so many democratic schemes is that the people who decide have a lot of power over things in which they do not have to bear the consequences of their decisions. That can never be entirely eliminated, but must be minimised.
    People think it can’t be tyrannical if its is democratic, in the sense of everybody having an equal say in everything. That is bullshit.
    Robert Dahl came near to seeing this. He conceded that minorities rule, but thought it didn’t matter too much because it wasn’t always the same minority. The extreme libertarians concluded that government should only extend to matters wher the interests of all citizens are identical, defence against internal and external violence and a legal system capable of defending rights. That meant taht all other matters were left to the market, which means all power to the rich. That was justified on the theory that as the tide rises all boats rise. We now know that is false. The market is an admirable instution, but it cannot supply all social needs.


  11. John,

    > There can be a lot of vagueness about what constitutes a legitimate interest. For my purposes it is a substantial material interest, meaning that it has direct effects on a person,s welfare, quite independently of their opinions.

    This doesn’t reduce the vagueness at all, since “a person’s welfare” is completely subjective.

    > The extreme libertarians concluded that government should only extend to matters where the interests of all citizens are identical, defence against internal and external violence and a legal system capable of defending rights. That meant that all other matters were left to the market, which means all power to the rich.

    This is self-contradictory. The government would not need an enforcement mechanism if it only handled matters where the interests of all people are fully aligned. In particular it would not need to enforce ownership, without which “the market” doesn’t mean anything.


  12. John,

    I’m still confused as to whether or not you believe the market to be a suitable model for politics. On the one hand:

    >One great strength of the market is that it depends on lots of particular transactions, in each of which the parties try to strike the best deal in view of their different interests. It is very surprising that the overall result is so good.

    On the other hand:

    >All other matters [over and above the night-watchman state] were left to the market, which means all power to the rich.

    The modern political party, hollowed out of 99% of its membership, is the prime example of a market-based institution; in fact it would be more accurate to refer to such entities as brands or franchises. In the absence of ideological and class-interest constraints modern political leaders attempt to second-guess the preferences of the demos, floating policy proposals via focus groups and opinion pollsters before packaging them together to present to the electorate as an (in)coherent whole.

    I don’t have any particular issue with this, as markets have proved remarkably effective in most other domains (as you acknowledge). The problem is the need to aggregate policy preferences into a package and this inevitably introduces distortions. The jury-based democracy that I am proposing would be market-oriented (the need to pass the threshold in the public votation), but each successful proposal would be judged independently and would be subject to discursive scrutiny.

    >As for volunteering, if the people’s material interests are the same they should be swayed by the same considerations.

    That would mean the end of agnostic politics. I’m not aware of any political community that has achieved the sort of discursive consensus that you appear to be suggesting here.


    >It may be that we are built more to solve problems in small groups.

    That may well be the case (although I’m not aware of any ev. psych. evidence to back up the claim) but we now live in very large groups called states. This being the case (and assuming minimal democratic norms) the verdict of the small group has to be truly representative of the larger group and this rules out the free discursive exchange advocated by deliberative democrats.


  13. @Keith,
    Landemore cites evolutionary psych for a similar proposition, namely, that our “blind spots” in the form of the infamous “confirmation bias” may have serve an evolutionary function. She argues that this is why group deliberation works better than “internal deliberation.” People are better at arguing their own position and finding fault in others’ arguments, and this would only make sense if we evolved deliberating in groups. I might add this would also imply the superiority of the Anglo-American adversarial system over the continental inquisitorial system of justice for arriving at the truth.

    Here, I’m extrapolating a bit, and would cite my experience seeing students of both law and mathematics struggle to keep “extraneous information” out of their deliberation. It takes time, sometimes many months before they are able to “discipline” their minds to keep out the extraneous, although children can do it playing chess!

    Admittedly, I used the word “small group” without having a clear number in mind. At any rate, there remains a crucial difference between a group generating options, and debating the relative merits of each versus, and choosing between the binary “liable/not-liable’ or “guilty/innocent.” What this means for democratic theory I would not yet venture to have an opinion.

    Although the free discursive exchange seems more appropriate to “problem solving deliberation” and less so for “limited binary deliberation.”


  14. Ahmed,

    We had a seminar with Helene a few weeks ago at Exeter University and one of the main topics was an evaluation of her EP-based “argumentative theory of reasoning”. I agree that the theory would suggest the superiority of the Anglo-American adversarial system, but remember that there are two distinct cognitive mechanisms involved 1) persuading others and 2) evaluating the arguments of the persuaders. In the judicial trial context (that I’m suggesting extending to legislative trials) the first is the province of the advocates and the second the jury. There is no reason to think that the second mechanism is not amenable to deliberation within.

    No doubt both mechanisms evolved in the small-group context of the EEA (Pleistocine period) but we now live in an age of large modern states which presupposes representation in democratic decision making. The two cognitive mechanisms that Helene outlines still apply, but only if we keep them separate. A statistically-representative sample can evaluate the arguments of the persuaders on behalf of the whole population in a consistent manner (all samples of the same target population are liable to similar confirmation biases).

    Both commentators on Helene’s paper (myself and another PhD student) argued that the correlation between cognitive diversity and democracy in the proposal function is purely contingent or even negative. Crowd-sourcing or e-petitions might be a better way of establishing cognitive diversity than a group of randomly-selected persons. In the examples that she provides in chapter four, group deliberation plays a negligible role — for example in the New Haven neighbourhood watch group the solution to the problem (solar lighting) only required two people. This is just the sort of initiative that is suitable for crowd sourcing.

    Given that our interest on this forum is the potential of sortition for legislative assemblies, the focus on problem-solving deliberation is misguided. As Rousseau argued, sovereign legislative assemblies are concerned with the general rules of conduct, not specific instances. In the New Haven example the concern of the legislature would be the rules governing (Federal) stimulus money; the application of the rules in any particular case (e.g. the New Haven bridge project) is the task for the delegated government, and there is no particular reason to think that this need be organised along democratic lines. So by all means utilise rich deliberative exchanges within the delegated government, but the requirement for accurate democratic representation within the sovereign legislature presupposes an up/down binary choice on the part of the randomly-selected citizen jury. As Helene is primarily interested in the epistemic potential of cognitive diversity this leads her to underplay the constraints imposed by democratic norms (in fact I think the title of her book is something of a misnomer).


  15. Ahmed,

    PS Would it help if we were to make a clear distinction between 1) the epistemic and 2) normative problems? Would suggest something along the following lines:

    1. Epistemic (consequential)
    What is the best problem-solving mechanism in a non-specific domain like politics? (the general arrangement of human affairs). Given that one cannot know in advance what cognitive skills will be called on, the Landemore/Page/Estlund argument is that open deliberation amongst a cognitively-diverse group is the best mechanism. This is also close to John Burnheim’s argument for volunteer demarchic committees. I’m perfectly prepared to accept this claim, but argue that other mechanisms (crowd sourcing, e-petitions etc) may be just as effective, and I think that the relationship of this to democracy is, at best, contingent (and possibly even negative). So Helene was being disingenuous when she titled her book Democratic Reason.

    2. Normative (intrinsic)
    The freedom that is our birthright requires, as Rousseau reminded us, that we should all be the authors of the laws that we live by. In large modern states this is impossible, assuming the need for well-informed and considered judgment. The only available alternative is the judgment of a statistically-representative sample, but this requires that each sample should return the same judgment and that it should make no difference to the outcome whether or not I (or you) attend in person. Otherwise which judgment am I deemed to consent to? As to what constraints this places on the form of deliberation that takes place is open to empirical testing, but my hunch (augmented by my own jury experience) is that the brief would have to be limited to silent deliberation within, in order to prevent loudmouths like me distorting the outcome.

    I think if we keep these two aspects separate there will be less confusion. In many ways they correspond to the two-stage process that Rousseau advocated — the government proposes and deliberates and the sovereign people dispose. The constitution of the government could be via a variety of mechanisms (Rousseau preferred election), but the freedom requirement means that we all need to participate (vicariously or otherwise) in the disposing function. I have a long paper available indicating why I think Rousseau would have accepted a randomly-selected sample as fulfilling the freedom requirement.


  16. I agree that there should be a division between policy formulation (with epistimic elements), and final decision power (what do we as a community WANT). This is why I advocate two separate bodies.

    There is tremendous benefit from having a diverse group BEYOND those who would actively volunteer (due to having a direct interest) in formulating policies. This group probably would not be completely descriptively representative of the general population (though far more so than any existing policy-making legislative body). I would favor allowing those tapped to decline, so that only those willing to do the work would participate. The benefits come not just from the enhanced problem solving abilities of cognitively diverse groups, though that is a big reason. I seek the added perspectives that “outsiders” can bring. Thus, I don’t accept John’s principle that only those with “legitimate” interests should be involved. Obviously, Yoram’s point that there will rarely be an objectively obvious cutoff line seems obvious to me. If I have no children, some may say I don’t have a legitimate interest in the school system, as long as I am not taxed to support it…but I disagree, etc. Also, If the group is exclusively those with significant interests, would they decide only by unanimous consent? If not, and they use majority, then the decision is really being made when it is decided how many members from each side of the issue are included.

    I think that Keith’s proposal of crowd-sourcing proposals is also worthy of experimentation, but the default (at least initially) should be a diverse deliberative body chosen by lot among those who agree to do the necessary study. Then the final yes/no decision should be made by a separate descriptively representative jury.

    The reproducability of a final decision (by a different lottery drawing) is not such a big concern for me. I imagine society along the lines of this analogy… I am part of a large group, that needs to travel through a wilderness and find water, and food along the way. Nobody knows exactly what lies around the next bend, or where the needed resources can be found. Some members insist they are experts and can lead us safely, but they are in fact no better at making predictions than the rest of us, they merely BELIEVE they are better. Also they may have an ulterior hidden agenda (more interested in finding a rumored gold mine in the wilderness).

    I would agree to have a randomly selected group of my fellow members hear all the available information, and decide which way the whole group should travel, while I and others do the other work necessary to maintain the group. While it is true that a different randomly selected group might make a DIFFERENT decision about which way to travel, as long as the decision was made without control by the gold-seekers, I consent. There is no assurance the sortition group will make the best decision, nor the decision I would have made alone, nor the decision that a different allotted group might make, but the decision will be reasonable, and democratically acceptable.


  17. @Keith, yes, e-petitions or crowd-sourcing would serve as a (perhaps superior) source of diversity, and we should keep both consequentialist and normative reasons for democracy in mind. Neither of these, however, addresses the issue that the judicial jury, the subject of this post, is an entirely different animal than either a deliberative or dispositive body selected by lot.

    The deliberative body would presumably debate more freely, taking into consideration more and different kinds of information, than a judicial jury would. This is what I mean by “problem solving,” Landemore’s examples aside. Also as an aside, I am working on a review of her book, so I will hold my comments on her examples for the moment. I also take as given the two-stage process you mentioned, shelving the question, who does the deliberating.

    Where I think we disagree, and where I would second Terry’s last paragraph above, is your insistence that different allotted bodies should arrive at similar solutions. Firstly, I think this is an impossible threshold to achieve. How can one even know what one would have decided had one been selected? Even if you have a “transcript” of the deliberation, you could not predict with any certainty what you would have argued, reparteed, etc., had you been actually present.

    Secondly, the certainty requirement is the wrong thing to ask for at all. Most democrats, including at least Terry in the previous comment and myself, would settle for a more modest standard: that the decision was arrived at considered a wide variety of options in a non-biased way. Non-biased would meaning not systematically skewed. In short, as Terry summarized “reasonable and democratically acceptable.”

    Thirdly, implicit in the last statement, there are many good and democratically acceptable choices. Part of “consenting” to decisions of the group is being open to unknown possibilities, again given that certain minimal conditions are met to minimize bias. This is equally true in “paleolithic” or modern times.

    Where size does come into play is when considering non-bias, or representativity. The allotted sample needs to be large enough so that the biases cancel out, the required cognitive diversity occurs. Keith, if you buy into the double statistical reasoning then your comment about “distortions of speech acts” becomes irrelevant. Just as the properly chosen sample eliminates selection bias and pick a group diverse enough to include a maximal amount of cognitive diversity, it would be large enough to have “loud mouths” to mouthpiece the diversity of ideas, objections, arguments, repartees that each proposal deserves.

    But I have not talked about the “second-stage” dispositive body, and I have run out of space and steam. I see at least three issues here:
    1) can one actually keep the stages separate?
    2) does the voting occur only between two alternatives at a time? if so, how?
    3) doesn’t the “demarchy” or sortitive democracy simply collapse back into voting, by a randomly selected set of electors, between alternatives mysteriously presented from a larger public sphere?


  18. Terry,

    I’m glad that we are moving towards agreement, especially over the need to separate proposing and disposing. I’m agnostic with regard to the best mechanism for the former, my concerns are the representativity of the latter. I don’t share your confidence that our fellow-citizens will be prepared to trade it their miniscule share of political power for no share at all unless very exacting conditions are fulfilled. Most people have no particular knowledge about collective wisdom and statistical representativity, few also have your personal experience of the dysfunctional nature of elected decision-making bodies, and the democratic ubermyth runs deep.

    I know there is no particular reason to be beholden to past wisdom but I think we should at least take it seriously. Rousseau’s strictures on self-government are extremely demanding — the freedom that is our birthright will only be regained if we are the authors of our own laws. Whilst his ideal was direct democracy (in the sovereign assembly) this is not possible in large states hence my proposal for statistical sampling. If it could be demonstrated, both theoretically and practically, that it makes no difference whether or not you or I are included in the sample as the “output” would be the same, then I don’t see how any practically-minded person could argue that (assuming the majoritarian premiss) this was anything other than self-legislation. But that would not be the case if the “output” were to vary between groups.

    As well as the views of eminent political theorists, we need to pay attention to the one historical instance where this approach to law-making has been adopted — 4th century Athens. Proposals for new laws came from a variety of sources (suggestions by citizens to members of the council, deliberations within the council, direct proposals at the assembly) but the decision whether or not to appoint a nomothetic panel was taken by the general assembly, where every citizen had a voice. Does anyone have any figures as to how many proposals were voted down in the assembly and never made it to the legislative court? Every historian of classical Athens is adamant that the assembly was the key institution, the legislative court being (in effect) a delegated sub-committee, as it was not possible for everyone to deliberate together in a meaningful way. Whilst the Athenians may not have referenced the need for consistency, the decision to appoint larger courts for more important matters is an indication of the need for accurate representativity (the corruption issue already having been addressed by the secret vote). The rules of the court were very strict, only the two parties got to speak and the speeches were often prepared by professional logographers. Speech acts within the jury were disapproved as thorubos (disorder), so there is good reason to believe that if the same law had been put on trial before different juries with the same advocates that the outcome would have been the same.

    As you know my proposal is to create a modern analogue of 4th century practice, as this was a system that worked quite well. This would include a (virtual) assembly in which every citizen chose which legislative proposals should be put forward for deliberative scrutiny and takes careful steps to ensure that the verdict would be the same irrespective of who is included in the sample. I acknowledge that your scheme for the proposal function might well be the best and would humbly request that you reciprocate regarding my scheme for disposal.


  19. Ahmed,

    I agree that the trial jury and legislative jury are different creatures. The former is an attempt to discern the facts, and the burden of proof is on the prosecution (hence the requirement for unanimity). The legislative trial, by contrast, reveals nothing more than informed preferences and a simple majority “verdict” will suffice.

    My concerns with the distorting effects of speech acts in a legislative trial are only to do with the second stage (disposing). As I’m agnostic with regard to the proposing factor I’m happy to accept the arguments that you provide here regarding the constitution of randomly-selected policy forums. This has nothing to do with democratic norms as nobody needs to consent to a proposal, either in person or vicariously, as this is the task of the judgment (disposing) assembly.

    >1) can one actually keep the stages separate?

    Of course, in the 4th century there were three distinct temporal stages: boule, ecclesia and nomothetai; what I have suggested is just a modern version of Athenian practice. Different rules apply at each stage and Condorcet-style public deliberation would fill the temporal gaps.

    >2) does the voting occur only between two alternatives at a time? if so, how?

    As in Rousseau’s proposal (and modern legislative practice), up or down.

    >3) doesn’t the “demarchy” or sortitive democracy simply collapse back into voting, by a randomly selected set of electors, between alternatives mysteriously presented from a larger public sphere?

    (This is nothing to do with demarchy, as that is a single-stage process.) Yes, the disposal function in a sortive democracy does collapse back into voting, but there would be no “mystery” as to the source of the alternatives. The proposal function would be by randomly-selected policy panels (Terry’s suggestion), e-petitions, crowd-sourcing, electoral manifesto pledges or a combination of the above. Although I’m personally agnostic as to which is the best mechanism, the society in question would have agreed on which one(s) to use, so no mystery would be involved.


  20. Keith,

    We are already in agreement on the final jury process…though for different reasons. In my paper in the Journal of Public Deliberation I propose that the policy jury hear pro and con testimony, and vote by secret ballot without debate. My resaon has nothing to do with proxy consent (it makes no difference if I am present), but rather for epistimic reasons… to maximize the wisdom of crowds and avoid social, reputational and other information cascades.


  21. Terry,

    That’s encouraging, so the only policy issue dividing us is the need for all citizens to express a view on which policies should go forward for nomosthesia. I’m surprised how few people on this forum are interested in the intrinsic case for democracy (we should all be the authors of the laws we live by), most concerns are utilitarian, of either the epistemic or majority-interest variety. I imagine my references to Rousseau sound a little romantic and old-fashioned. But I’m still utilitarian enough to realise that constitutional proposals will only work if they meet with public approval and I can’t see that a proposal for the effective disenfranchisement of the vast majority of citizens will win a lot of votes (assuming that citizens will be required to vote to deprive themselves of the vote).


  22. @ Keith and Terry,

    Good that there is a common proposal on the table. It is still not obvious to me that it is possible to focus a (possibly large number) of proposal from the initiation or deliberation phase into simple binary choices taken two at a time. The things we take for granted, like the possibility to have “up or down” votes as you say, are sometimes the most complex. Btw, Landemore seems to do the same, assume that it is possible to map any number of proposals down to step-by-step binary choices.

    How do you propose it is done? Were Athenians able to do that? How?

    To make my question more concrete, imagine 5 (a very modest number if we include the possibility of e-petitions) proposals regarding a new bridge and how to pay for it. How would a policy jury (voting by secret ballot) choose among them without being able to amend, negotiate, bargain, etc..?

    [Ok, I will have to take a break from commenting for a couple of weeks, and I admit it is unfair and bad manners to raise an objection then leave the room.]


  23. Ahmed,

    You (and your epistemic colleagues) are conflating two different things: a) problem solving and b) lawmaking. Using examples from Helene’s book are one of the reasons for this confusion as the problem-solving task she focuses on (how to prevent crime in a particular place) is the job of delegated governments, not sovereign legislatures. The domain of the latter is (eg) should we have government-sponsored initiatives to encourage investment in renewable technologies. This was the Federal law that the New Haven neighbourhood committee tapped in to in order to solve their particular local problem.

    >How do you propose it is done? Were Athenians able to do that?


    1. Any Athenian proposes a new law to the Assembly (ho boulomenos).
    2. The Assembly votes on whether or not to set up a legislative court and appoints advocates to defend the old law.
    3. Randomly-selected court listens to arguments for/against and then records its up/down vote.

    My proposal is a modern version of Athenian practice. The modern version of (2) is the Swiss process of votation, whereby the public narrows down petitions and proposals to an up/down shortlist. This may not be the optimal path from an epistemic point of view but it’s what we call democracy and is the necessary price for public consent (especially if we are all being asked to put our hands in our pockets in order to pay for it). “He who pays the piper calls the tune” is universally true, even if the paymaster is tone deaf.


  24. Ahmed,

    In my scheme a large number of separate Interest Panels (made up of anybody who wants to be involved) draft proposals in response to a call for proposals from an Agenda Council. This is the stage at which there would be the five bridge proposals in you r example. I then propose that an allotted Review Panel of people willing to do the work engage in active deliberation, seeking input from experts and interested individuals and groups until they either select one of the five plans, or develop a new sixth version based on the raw material received. These Review Panels will serve for years and focus on a particular policy area (like legislative committees). They settle on a FINAL plan that goes to a more fully descriptively representative jury (serving for a week or so), which hears the pro/con presentations and votes the proposal up or down.


  25. Terry,

    Whilst I could certainly live with that, I wonder if there would be just too much sortition for the proposal to fly with both the general pubic and the existing powers that be. There might be a need for a spoonful of sugar (popular participation) in order for the medicine to go down with the public, and elected politicians might like to think there is still some small place for them in your Brave New World. I think you need to decide if your scheme is utopian or practical — if the latter then neither Rome or Aleatoria were built in a day. We need to start off from where we are and this will mean sleeping with the enemy. So what sacrifices would you be prepared to make for the sake of political expediency? (As a former elected official I’m sure this kind of horse-trading language will have a familiar ring.) Remember once you’ve introduced the principle (sortition) there’s good reason to believe that if it worked in one area then it would be extended into others. If we need to (initially) choose just one of the allotted panels I would go for the (final) legislative jury:

    — it’s readily imaginable via the parallel of the trial jury
    — it’s been demonstrated to work in deliberative polling experiments
    — it fulfils both the epistemic and democratic requirements
    — there are no obvious non-partisan alternatives

    The other panels are more conjectural and, as you acknowledge, other possibilities exist (crowd-sourcing, e-petitions, election, co-option etc). So, assuming your aim is not just utopian purism, if you had to pick just one panel in order to get the show on the road, which one would it be? I can see why you want to design a perfect system but you might devote a chapter of your new book to how to introduce this in practice and the sacrifices this would entail. Sofly softly catchee monkey; thin end of the wedge, Trojan Horse or whatever.


  26. Keith,

    My idealized system is intended to be like the North Star, to help decide which way to go. It is not a proposal that has any chance of adoption for quite some time. However, my notion of how to move in this direction is to initially find isolated policy areas where the current political elite are willing, or can be compelled to cede authority (for example, perhaps decisions about health care benefits) and to establish a democratic system for this policy area with NO electoral element. If a sortition system can successfully oversee health care (for example), perhaps pressure will build to apply the model to other public policy areas… steadily expanding what government functions are handled by sortition, and shrinking the realm dealt with by elections.

    I think such an approach is more likely to end in a sortition democracy than layering a sortition element onto an electoral framework. I was amused by Fishkin’s suggestion of having a “Deliberation Day” with allotted groups evaluating U.S. presidential candidates, and advising the electorate on who to vote for. I think it is certain that such allotted bodies would be mere vehicles for partisans to seek to manipulate, providing NO advance for sortition.


  27. Yes I agree sortition and election should remain distinct elements in the political system and that the former should have the last word (rather than just trying to improve the quality of electoral choice).


  28. >”One of my fundamental principles is that nobody should have a say in any matter that does not affect her legitimate interests directly and substantially.”

    This fundamental principle worries me.

    Do you mean that in the case, for instance, of the development of the port of Gladstone for coal export that only Queenslanders should decide? Only the citizens of Gladstone? Only the mining companies?
    Since the development arguably puts the Great Barrier Reef in peril, or at least the southern end of it, and since the GBR is a world heritage item, you might argue that everyone in the world should be entitled to vote.


  29. Yes, it is a serious problem deciding who has a legitimate interest in any matter and also how best to reconcile competing interests. John places his trust in negotiation within volunteer demarchic committees, but in an elective context this would be disparaged as pork-trading, and demarchy cannot share the legitimate claim of electoral systems to represent interests mathematically (proportionately or via a simple majoritarian principle). Burke’s model of deliberative democracy is based on “unattached” interests (represented “virtually”) but Burke assumes that the electoral process will return natural aristocrats who will rise to the task of discovering the laws of god and nature (I can’t imagine that John holds out such high hopes for his demarchs). I’m more disposed to Madison’s ideal of judges who have no particular interest in the matter under consideration. I would prefer Solomonic judgment to a random dictator with an interest in the verdict.

    I’m also not at all clear about whether John’s demarchic approach celebrates or vilifies markets. Third-way attempts to mediate between the two give us the worst outcome (market mechanisms without genuine consumer choice). I was astonished by a poster in our jury room which invited us as “customers” to rate the experience that we had on [OK I made up the URL, but the poster was genuine]. It’s a strange kind of customer who is subject to a fine or imprisonment if they don’t turn up!


  30. For Campbell Wallace
    on Gladstone harbour etc. Sorry I overlooked your point at first.
    That principle of giving representation in a matter only to those directly affected applies only within the bounds of legitimate interests. I agree that here is higher order problem of circumscribing legitimate interests, and I address that in my book.
    Clearly, there must be authorities that protect the ecological interests of future generations as well as the present one, and they must have the capacity to override decisions of lower order bodies on as impartial a basis as is possible.
    However, I argue that it is sufficient and desirable that they be specialised bodies, like the postal union or air traffic regulators, independent of the politics of other bodies


  31. for Keith
    What i want to remedy is well illustrated by Campbell’s example. In a parliamentary system everything is traded against everything else. So in the Gladstone case the Qld govt, the local community, the big miners and the Federal govt all have massive interests in supporting the project, The ecological lobby is weak, because dispersed, and so unlikely to influence the result in any electorate.
    But it is of a different sort from the other interests. It is a matter of justice and our obligations to posterity. It must place strong limits on the scope of the moves that the legitimate material interests are entitled to make.
    Proper standards in such matters should not be decided by political vote-trading, but by moral arguments. In this context detachment is important, as all sensible theorists have recognised. My proposals are designed to produce Solomonic
    judgements in such matters.

    MaRKET ARE WONDERFUL in exchanges between people who are equally capable of accepting or rejecting any deal that is on offer. But obviously markets cannot themselves ensure that is the case for very many people.


  32. Coincidentally the pol theory reading group in our department yesterday was on the notion of the “all affected interests” principle which originated in Habermas’s Between Facts and Norms and this appears to have become the inclusion criterion for deliberative democrats. But, as Campbell points out, who gets to decide which interests are sufficiently “legitimate”? (John’s chosen adjective). The answer, we were told yesterday is “calls for inclusion arise from experiences of exclusion” (Young, 2000). This all fits in with the search by the Frankfurt school of critical theory for new underdogs (excluded minorities) to replace the old one (proletarians), who failed to fulfil their allotted historical role (they opted to go shopping rather than to take to the barricades). Hence the emphasis of deliberative democrats on the representation of women, ethnic minorities, LGBT etc. The paper (Barnett, forthcoming) was clear that deliberative democracy has to be viewed within the context of of critical theory and most members of our political theory group were sceptical regarding the author’s clam that the DD emphasis on discursive, consensual communicative discourse was a worthwhile replacement for the traditional agonistic theory of political action.

    Where, IMO, lot-based democracy differs from regular DD (as epitomised by the decision-by-negotiation strategy of the demarchic committee) is that it embraces agonism, majoritarianism and proportionateinterests, as distinct from the “claim-making” of the “excluded”, and their self-appointed “representatives” (Saward, 2012). The judgments of randomly-selected groups would certainly not be Solomonic — they would merely reflect the considered preferences and beliefs of the allotted sample — ie informed public opinion (hopefully less “myopic” and “emotive” after the deliberative exchange).

    I think we should rightly be sceptical that a demarchic committee that was self-selected on the basis of affected interests would be any more dispassionate in its judgment — this is redolent of Douglas Jay’s now-derided claim that “the gentleman in Whitehall really does know better what is good for people than the people know themselves”. What we tend to forget that this is a quote from Jay’s 1937 book The Socialist Case. Perhaps this is a clue as to the origins of the Habermasian faith in rational discourse — critical theory is a reformation of Marxist theology which, if John Gray is right, can only be understood by reference to its origins in Christian eschatology. This would also make sense of Fr. Burnheim’s own life story.

    The problem with lot-based democracy of course is that it doesn’t include “external” affected interests — those that lie beyond the spatial or temporal boundaries of the particular demos that is being sampled. This is where I would agree with John regarding the need for “specialised authorities” and other constitutional safeguards to protect the interests of those excluded from the sampling process. I would even agree that those authorities might well be demarchic in nature.

    The other problem with allotted democracy is that there is nowhere for the buck to stop, as nobody carries the can for the decision. This indeed was the criticism by the contemporary playwrights of the harlot’s prerogative of the Athenian juror. The buck has to stop somewhere, hence a) my reluctance to reject the principle of election and b) my insistence on the need for a strong executive branch with ministers judged purely on their competence and probity in office. (Whether or not the chief executive is a surrogate monarch is beyond the remit of this post.) Political parties would be accountable for the policy proposals (duff policies would lead to defeat at the next election) and ministers who failed to ensure the trains ran on time would be booted out of office.

    In sum we need:

    Election and ho boulomenos (policy proposals)
    Sortition (democratic judgment)
    Demarchy/Monarchy (constitutional safeguards for excluded interests)
    Meritocracy (executive competence)

    Any single solution will fail.


    Clive Barnett (forthcoming), What do cities have to do with democracy?, Int. J. Urban and Regional Research

    Jurgen Habermas (1996), Between Facts and Norms, Polity Press

    Douglas Jay (1937), The Socialist Case, Faber & Faber

    Michael Saward (2012), The Representative Claim, OUP

    Iris Marion Young (2000), Inclusion and Democracy, OUP


  33. There are two aspects to political theorising about procedures:
    1. Identifying problems in present procedures and tinkering with them. And 2. Speculating about new procedures or introducing old ones into new contexts.
    So physicians versus genetic engineers.
    Political change is inevitably mainly Darwinian. A sequence of randomly generated changes in the gene pool open up new possibilities, most of which do not survive, while many old genes that are not particularly functional survive simply because changes haven’t thrown up anything better. We can only speculate about what will work under what conditions and on what scale. Background conditions such as information flows, cultural differences and economic conditions are vital.
    It is stupid to rule out a kind of procedure in advance. Different procedure may be useful in certain contexts.
    A couple of specific points.
    a) Sure the buck for every decision procedure must stop somewhere. But that does not mean that there has to be one place where they all must stop. A society is not a single organism ,but an ecosystem in which order is not imposed by a central genome, as it is in an organism, but by the mutual adaptations of many diverse genomes.
    b) It is nevertheless useful if you are contemplating introducing a new gene in a certain context to attempt to show what its results might be.


  34. John,

    I’m happy to agree with all the above:

    1. As a conservative pragmatist I’m inclined towards anything that has a proven track record, hence my obsession with creating a modern analogue of 4th-century political practice (rather than just cherry-picking the elements that fit in with a preconceived notion of political equality). Unfortunately, given the 2,500-year hiatus and the very different conditions between large modern states and the classical polis this requires genetic engineering rather than tinkering, but at least we still have the blueprint for a working design (that evolved to a mature state over three centuries, far longer than modern representative democracy). So the watchmaker would have his eyes wide open as the random mutation has already taken place. It would be more a case of Jurassic Park (an unfortunate parallel, but you get the point). The random mutation model is entirely apposite for the consideration of ancient practice as it’s clear that “democracy” was the accidental by-product of the Solonic and Cleisthenic reforms — the Greeks only became self-consciously democratic a long time after the events on the ground. I also like the organicist-evolutionary metaphor that you are using as it’s very compatible with the functional analysis that is at the root of my own approach in this area.

    2. I’m all for the multiplication of buck-stops. The political accountability provided by elections is very different from the accountability of government officials appointed and retained/dismissed on merit, and these mechanisms would apply to two different categories of political agents. It’s not entirely clear how demarchic committees would be accountable — is this joint and/or several accountability and what would be the likely consequence of the publicity requirement on the internal functioning of the committee? It’s hard to see how this is possible in a group of randomly-selected volunteers who have no clear relationship with their “constituents” (or are they only accountable to their peers?).

    3. As a trained social scientist now dabbling in political theory I agree that it’s important to attempt to show the likely results of the introduction of new genes. This involves making clear analytical distinctions between the various components of the political process (advocacy, judgment, interests, epistemic vs normative considerations, statistical vs active representation etc) and demonstrating how various mechanisms (election, sortition, demarchy, appointment etc) might be suitable for any of those components. Ideally this should be expressed in the form of empiricial hypotheses — eg my testable claim for the need to limit the deliberative mandate of a legislative body to up-down voting in order to ensure consistent statistical representativity. I note also the 20-year research archive of the DP, and this will inevitably privilege the selection of this particular gene.


  35. Keith, we’re in danger of agreeing too much.So letme throw in a few matters on which we may disagree.
    For me the fundamental problem is that of making good decisions about public goods and getting them accepted.
    It is not at all obvious what constitutes a good decision or how that relates to getting such decisions accepted.
    Present practices and almost all present theory assume that the oublic goods that matter are primarily those of the sort of community we call a nation. So each nation should have its own government to make the relevant decisions for it as a whole. So particular interests within the nation must not be pressed in a way that endangers national unity and international matters are seen as residual problems to be solved in the interests of the nation. The democratic way of deciding what is in the interest of the nation is by the votes of the majority of its citizens.
    Nowadays we have mostly modified this simple picture to include some minority rights within the nation and some recognition that nations have obligations to a wider community of nations.
    The basic picture came abpout by an evolutionary process by which the power of monarchs was destroyed and the vote made available to all without restriction.
    I think we are agreed that the present structures and procedures are not producing very good decisions, for many reasons. But we disagree about how to go about improving the situation. The general Klerotarian remedy is to substitute ordinary citizens, chosen by lot for professional politicians chosen by plurality or majority votes, mainly because that procedure would ensure that the legislature would be
    representative of the community. We both think that that would not of itself produce good decisions, because we both think that producing suitable proposals of the sort legislatures need to consider is a task that is beyond the powers of an unorganised group of people with no prior experience of the whole range of considerations involved. I agree that you do face up to that difficulty realistically and that your scheme could sell be an improvement on our present procedures. I give it zero chance of being accepted.
    I think we need to start more modestly by chipping away at hte state, transferring decision on particular public goods to people who are best placed to make good decisions about them. I want to begin with particular services, where the people who use those services are the judges about what they need, and will accept the judgement of their peers, chosen by lot to give a sample of the different social groups involved, precisely because they are directly affected in one way or another. But the task is not easy. Budgets are limited and the young and the old, the well-heeled and the poor, country and city often have different priorities in such matters as health care, education and community facillities. But these diverse authorities need not be governed by any national policy, only reconciled and coordinated. On this experience we might evolve better and more diverse ways of handling the problems of the laws that constitute the framework within which the base-level operations take place. Many of the most important, tackling specific global problems will need to be supra national.


  36. John,

    I agree about the supra-national nature of most political problems but, in the absence of a supra-national demos, I bracket that out of current considerations. I don’t understand, for example, how the business of the EU could be conducted by supra-national demarchic committees, as opposed to the Council of Ministers.

    Please would you provide an example of how demarchy might be instituted at your chosen level, how different committees might be reconciled and coordinated and (more importantly) how their decisions might be funded. It’s hard to think of an instance where all affected interests are represented that is fiscally self-sufficient, absent the complete reorganisation of society along libertarian anarchist lines. Are you suggesting, for example, that health care should be entirely self-funded and reorganised on a market basis? I’m sure the likes of Murray Rothbard would find this sort of demarchy very attractive and note, of course, that the term was derived from Hayek. I think it’s time to flesh out your arguments with some actual examples.

    >I agree that your scheme could well be an improvement on our present procedures. I give it zero chance of being accepted.

    Four conditions would be necessary for its acceptance:

    1. An ongoing role for elected politicians.
    In my proposal political parties would be responsible for advocating legislative proposals. Parties that made proposals with good epistemic outcomes would be rewarded in subsequent elections and this would preserve an important form of accountability. This was good enough for political leaders in the ancient world.

    2. Demonstration of accurate statistical representativity.
    Experiments can be done with multiple statistical samples deliberating over the same policy proposals. If it can be demonstrated that they all come to the same verdict then it would make no difference which citizens are chosen, so why should anyone feel disenfranchised by the process? (assuming basic majoritarian norms)

    3. Sensible epistemic outcomes.
    The cognitive diversity and wisdom of crowds research literature indicates that the decision output of randomly-selected bodies is no worse than elite groups. Confidence would increase over the years Bayesian-style if citizen juries had a good epistemic record.

    4. Separation of powers.
    My model assumes a formal separation between legislative and executive functions and would require strong and stable government. Given that even in fused constitutions like the UK 3 out of 5 civil servants already work for government agencies with appointed chief executives, this would just be an extension of existing trends.

    So why do you rate the practical feasibility of my proposal so low?


  37. Keith,
    I agree about the desirability of your scheme in terms of traditional ideas of democracy as centralised popular representation, giving everybody an equal say in everything. It would be an improvement to the present system. I want to deny some of the premises on which it is based, eg that everybody should have an equal say in everything. I want to chip away at the state, getting away from nationalism internally and internationally. Identifying the nation with the state is a bad thing.
    That in theory. In practice I think it has zero chance of getting up, because there is no group with the political motivation and power to get it on the agenda as the sort of thing that might get adopted by referendum. Of course, I may be wrong about that.

    On the international level the EU would be an ideal place to start. The council of ministers don’t get very near the substantial issues of managing the bureaucracy. They are there to look after their national interests. They make a hash of the big issues, eg the euro, the emissions trading scheme.
    I would have a supervising committee for each of the branches of the EU bureaucracy consisting primarily of people with a lot of experience in that particular field. I haven’t enough detailed knowledge of how the EU works to make specific proposals, but they would need to be representative of the functional elements involved in the area, not of popular opinion.
    As for the more local staring points. I suppose that in the NHS there is some thing like an East Midlands Health authority with some degree of independence within the system. Why not start there?


  38. >I suppose that in the NHS there is something like an East Midlands Health authority with some degree of independence within the system. Why not start there?

    That would be a disastrous context for a volunteer demarchic committee. Whilst the entire population is affected by healthcare policies, those with an “interest” would be predominantly producers (doctors, nurses, ambulance-chasing lawyers and healthcare workers in general) and patients’ advocates with an axe to grind on account of clinical malpractice. It would also be possible for the private healthcare industry to flood the selection pool with “volunteers” in order to lobby from the inside. Most people who encounter the health service are reasonably content with the outcome (although they might seek some improvements), but the only way to include them in a deliberative body would be via statistical sampling — a volunteer pool would be more akin to a nest of vipers.

    >many are interested in experimenting with deliberative democracy right around the world, including China, where the regime ought to realise that it would be a good way of responding to pressure for democratisation without introducing multi-party politics.

    China is the obvious candidate, and the regime has already recognised its potential by sponsoring an infrastructure DP in Zegou province. The Chinese government are the biggest user of opinion polling in the country, hence their interest in the DP procedure. They are particularly comfortable with this format as the Party has a monopoly over the questions that are asked and gets to implement the verdict. They would hate demarchy as it would undermine their grip on power. I wrote a piece on Chinese Democracy for OpenDemocracy a few years ago:

    I think there is huge potential for jury democracy in both the East and the West but the only role (and it is a vital one) that I can see for demarchic committees is as a constitutional safeguard to preserve the interests of those that fall, both temporally and spatially, outside the current demos.


  39. Interests in health care etc.
    One of the great motives for rejecting public provision of important services is that such provision is based on a bureaucrat’s idea of what we want, rather than our specific needs. There are always many questions about the centralisation of various facilities, about the emphasis on domiciliary v Hospital care, which facilities get expensive MRIs and so on that need different answers in different circumstances. What the bureaucrats inevitably do is choose the cheapest and administratively most convenient option. The most common objection in the US to government schemes is that whether you get treated is ultimately decided by whether the system can afford it. You have no say. Of course, you don’t have much say in what your health fund allows when it comes to the crunch! Consumer choice is largely illusory.
    Sortition and volunteering.
    What is at issue in any sensible representation is getting a sample that is representative of the different interests involved, not a representative sample of those who volunteer! Committee work can be very boring and time consuming. It is a big imposition on most people, but it can have its compensations if one is actively interested in coming to grips with other points of view and evolving mutually advantageous solutions. There is no substitute for interest. If you make it compulsory for those who are chosen they may well take their duty seriously but resent the imposition. They will be just like juries, as Keith says, merely rejecting or accepting what is put before them. I want people to have an active say in framing their grass-roots world. That is the prospect that could inspire people.


  40. >The most common objection in the US to government schemes is that whether you get treated is ultimately decided by whether the system can afford it.

    There is no difference in the NHS, which has a committee with the Orwellian acronym NICE to decide what treatment is or isn’t affordable. Although its remit is supposedly “clinical excellence”, in practice it’s counting the beans. How is demarchy able to beat the laws of arithmetic?

    >What is at issue in any sensible representation is getting a sample that is representative of the different interests involved, not a representative sample of those who volunteer!

    Elections allow people to choose what their interests are (and who will represent them); jury democracy represents interests automatically and proportionately; so how does demarchy achieve this? The only two principles that you have provided are volunteering and random selection. Who provides the god’s-eye perspective that makes sure the different interests are represented and what mathematical principle is involved (proportionality?). In the health-care case who stipulates x doctors, x nurses, xbureaucrats, xhealth-care academics, x (self-appointed) patient advocates, xparamedics, xprivate healthcare providers etc? And why do you assume that volunteers are the best representatives of each category? And why do you assume the decisions “negotiated” in camera [“smoke-filled rooms” would be inappropriate for a healthcare committee] by this shadowy body will be accepted by the public as representing their interests?

    Once the representation has been established what is there to prevent the differing interests from going at each others’ throats? And how do you adjudicate disputes between the differing interests? It sounds to me like a recipe for unrepresentative horse trading. And how does “accountability” work, who gets to identify and remove the bad (or incompetent) apples?


  41. I have addressed these issues in my book
    I do suppose people who are interested in public affairs are decent and reasonable, once there is no power trip in the role of rep.
    There has to be an initial formula of representation, and a means of challenging it and having it reviewed.
    But although there are different interests n health care, they are not necessarily adversarial. each of us is affected by both sides of many conflicts of interest. The whole process is supposed to be accessible to the public scrutiny and be publicly discussed. Demarchy is a way of considering and deciding on the speicifc problems of the different areas of public life in the light of the specific considerations that are relevant to it, not by professional politicians trading in power, but by ordinary citizens who are asked to find a constructive solution to those particular problems.
    They are people who are chosen because they are collectively representaive of those affected.The smoke-filled rooms thing is sheer nonsense. Of course, not every body on a committee is going to be competent, but they are only there sfor a limited period and are change over gradually one at a time, not all at once
    As for elections, you only get to choose between two all-embracing packages, arranged by power trading.The results are that very usually minorities rule by getting control of a party, which collects votes mainly on the basis that it is not as bad as the opposition.
    The point is to build from the bottom up, not from the top down.


  42. >I do suppose people who are interested in public affairs are decent and reasonable

    That may or may not be the case (I prefer to hope for the best but to assume the worst), but that doesn’t mean that decent and reasonable people will agree over fundamental issues. Myself and my next-door neighbour have a very similar background, education, preferences and values and we would both consider ourselves decent and reasonable until it comes to politics. He has spent all his working life in public employment, whereas I have always worked for myself and our resultant perspectives appear to be irreconcilable. So the $64,000 question is the “initial formula of representation” and the resulting ratio of interests — who is to determine this and on what basis?

    >[demarchs] are people who are chosen because they are collectively representative of those affected.

    Chosen by who?

    >As for elections, you only get to choose between two all-embracing packages

    That’s why my preference is for votation, in which citizens votes for individual policies, not aggregated packages. The policies selected then go through for nomothesia, exactly as in 4th-century Athens.


  43. 1. The initial formula of representation would most sensibly be proposed by an expert committee of demographers and policy analysts, publicly debated and then given a trial, and periodically revised.
    2. There are many spheres of public policy, and even those who take an interest in public policy can be well informed only about a few of them. I for one am very interested in educational issues, but am quite prepared to leave health issues, which I acknowledge are very important, to other people who take a close interest in them, provided the procedure is sound and is scrutinised carefully by people who are well informed and well motivated to find sound solutions.
    The point is to start involvement at the particular level, not at some hjgh level where in the abstract we can debate forever about the relative merits of centralisation and decentralisation.
    3. Where it comes to particular decisions about public transport or roads or hospital v domiciliary care in particular circumstances using particular resources to deal with particular problems, Keith and his neighbour are much more likely to agree than about ideologies. Ideologies are about imposing policy from above. Demarchy is about building up a pattern from below.
    4. The point of demarchy is to get people involved in constructive negotiation. Voting is always a yes-no affair, and winner takes all. It easily leads to an impasse between otherwise desirable options.


  44. John, can you provide any examples of demarchy in action?


  45. PS. The historical precedents for jury democracy are three-fold:

    1. Fourth-century Athenian practice
    2. The Anglo-American trial jury
    3. 20 years research into the Deliberative Poll.

    I’m not aware of any practical examples of demarchy in action.

    And point 2 in your last response involves a conflation of expertise and judgment. Why do you think the former is necessary in political decision-making?

    Regarding point 4, what is the decision mechanism for demarchic committees — consensus? If so one can think of many examples where political consensus led to disastrous outcomes — this is the main reason why the Athenians abandoned ostracism in favour of the political trial. Agonism was found to be an essential component in sound epistemic outcomes. Cosy committee agreements may well be an agreeable form of discourse but the groupthink involved is very dangerous epistemically speaking (there is a wealth of research evidence to support this contention).


  46. Keith,
    I do not understand how you can take deliberative democracy, which essentially consists in active participation in discussion of the issues, to support your conception rather than mine. They are admittedly not fully demarchic in that they usually are advisory rather than authoritative,( though the famous Chinese example was based on a precommitment to follow its decision) and ad hoc rather than a permanent feature of the polity, but clearly the thrust of these experiments is directed towards permanent and authoritative bodies. I am encouraged by the fact that some very serious and admired politicians both Labor and Liberal (conservative), including two premiers are patrons of our New Democracy foundation, funded by a leading industrialist.
    I do think there is a danger in merely advisory bodies that they may be content with deciding what they would like, rather than what is practicable in the circumstances. So politicians tend to treat them as a PR exercise. However in the few cases I know in Australian politics where top ministers have proposed such bodies, hoping to take the issues in question out of partisan power-play, they have been told that they are merely evading the issues.
    On the other hand , when a good friend of mine was appointed head of a Royal Commission into the governance of the ABC(=BBC) I offered him some radical suggestions. He replied to forget it. His recommendations were going to be strictly practical. Needless to say hardly any of them were adopted.

    I don’t think there is any general answer to the question what sort of agreement is necessary or desirable. It seems to me that it differs between various kinds of issues,say at one extreme a choice between more or less equally attractive proposals and at the other issues that involve very serious disadvantages to a minority, who certainly should not be overridden by a simple majority. Appeal courts are necessary in such matters. I would never require unanimity. It is too kind to the single-minded strandout. “My way or nothing”.
    I don’t think you are right about the Athenians, but that is not something I’m equipped to debate seriously.


  47. John,

    You are confusing the Deliberative Poll with Deliberative Democracy. Lyn Carson and your other Australian colleagues rightly view Fishkin’s DP procedure as an anaemic procedure that does not do justice to the Habermasian norms of deliberative democracy. In the DP the agenda, information and advocates are supplied exogenously and all the participants get to do is to meet in small groups in order to formulate questions for the experts in the plenary, prior to determining the outcome via a secret vote.

    I hope I’m not wrong about the Athenians, as this is the topic of my PhD and I’ve read a lot of the books on the topic. In my understanding the DP is the modern analogue of the Athenian nonomethic panel. This procedure, both in its ancient and modern form, is just a democratic decision mechanism and has little to do with deliberative democracy. That’s why I’m proposing it as a way of ensuring informed public participation in a representative democracy.

    I’m as opposed as you are to advisory panels and there is no reason why the DP methodology should not be used to set up a legislative body with statutory powers. As for the protection of the interests of minorities and future generations this is a constitutional matter and demarchic committees might well have an important role to play here. But that has nothing to do with democracy per se.


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