The following is my translation of a recent article Antoine Bevort in the online French publication Mediapart. Like Tommy Lasserre’s Sortition in politics – the false good idea, which appeared in Mediapart two years ago, the article is a critique of Chouard and his proposals. Bevort makes some similar points, but, unlike Lasserre, doesn’t focus solely on sortition, and when he does discuss sortition he often deals with implementation details rather than with the principle itself to which he is not wholly hostile. Bevort also relies much less than Lasserre on canned Leftist rhetoric. As a result of those differences more of his punches land on target.
Chouard and democracy: an intellectual and political fraud
29 June 2016 Antoine Bevort
Étienne Chouard presents himself as the scholar of “real” democracy. His proposal of allotting of a constitutional assembly is however a fraud. It incorporates general principles which can be embraced, at least in part, but rests on largely specious argumentation, eventually leading to a strange and dogmatic conception of democracy.
Chouard considers himself the guru of “real” democracy. He feels he has found the “cause of causes” of the political crisis (“the political disempowerment of the citizens”) and proposes as a solution the allotment of a constitutional assembly. In his analyses, Chouard invokes general principles which can be embraced at least in part, but advances mainly through theoretical and historical shortcuts, simplifications or even misinterpretations, and through blunt claims and assertions. His dogmatic propositions are based on largely specious argumentation and lead eventually to a strange philosophy of democracy.
In order to deconstruct this rhetoric of mystification, we use a conference video available online[i], a text on the Gentils Virus website whose contents are very similar to those of the conference, as well as on the wiki of this organization, and particularly on the constitution drafted by Chouard. We first discuss his analysis of the existing political system, his claims that “we are not living in a democracy yet” and that “an electoral system is not a democracy”. Then we examine his conception of the “true democracy”, and his proposal of drawing by lot a constitutional assembly. We conclude with the mode of action which Chouard, the Gentils Virus (GV) and Les Citoyens Constituants (LCC), two organizations which promote his ideas, are pursuing.
Democracy, the representative system, and elections
Chouard himself summarizes his analysis of the political system with two assertions: “we are not living in a democracy yet” and “an electoral system is not a democracy”. In his eyes, the system of “representative government” is not a democracy. For him, only Athens constitutes an example of “real” democracy. “For 200 years of sortition, the poor always governed”, he asserts. He forgets that the citizens represented about 10-20% of the residents of Athens, that a minority among the citizens participated in the Assembly of citizens (Ecclesia), that they elected the strategists, generals and magistrates… Certainly Athens was a foundational experiment for democratic thinking and experience, particularly by instituting sortition. However, for one thing, there were other democratic experiments, as emphasized by Amartya Sen, and for another, the Athenian democracy had its limitations and did not rest solely on sortition.
By bluntly asserting that “we do not live in a democracy”, Chouard sweeps aside centuries of political history, disregarding important steps for democracy such as the Magna Carta, the French and American revolutions, the abolition of slavery, the progressive emergence of the rule of law, the recognition of the freedom of expression and union rights… Left out are universal suffrage, the achievements of the Front Populaire, of La Liberation, the conquest of the rights of labor. These are advances of representative democracy, certainly, but they establish the rights which allow us today to express and organize ourselves to promote the welfare state. Certainly, as Bernard Manin has shown, representative democracy, by relying exclusively on elections, has imposed over the last three centuries a reductive conception of democracy which “allow no institutional role to the assembled people”. In “Against Elections”, Van Reybrouck wrote that “the tired democracy which manifests itself today everywhere is a perfectly normal consequence of the deification of the electoral representative system”. But should we throw out the baby with the bath water?
For Chouard, his virus and his supporters, we are evidently always in the dark ages. They have learned no lesson from the totalitarian experiences of the 20th century. They draw no distinction between totalitarianism and democracy, weak and strong democracy (Benjamin Barber), representative and participative democracy (Loïc Blondiaux), or majoritarian and consensus-based democracies (Arend Lijphart). This is a disturbing intellectual reductionism, the opposite of popular, civic, deliberative and democratic education. We understand that Chouard and his followers can mingle indiscriminately with activists of the radical left and members of the nationalist Front National – perhaps they cannot see the difference.
Elections and democracy
Certainly, an electoral system favors the elites. Chouard is not the first to note this fact. But deducing that “representative democracy is therefore not a democracy” constitutes a simplification of the analyses to which he pretends to refer[ii]. Chouard uses in a very particular way the writings of several authors, including those of Bernard Manin. In Principles of Representative Government the author shows that elections, which has become the democratic procedure par-excellence, is a mechanism for selection of rulers, rather than a mechanism for the people to rule, the original meaning of democracy. It is sortition that was considered as the democratic procedure. But in the conclusion of his remarkable book, Manin emphasizes that “representative government has at the same time democratic and nondemocratic characteristics” (p. 306).
For Chouard, “a ‘Real’ Democracy is when citizens vote for laws themselves and write their constitution themselves.” This is what the Swiss rights of the people guarantee, by having every constitutional amendment submitted to a binding referendum and by allowing constitutional amendments through the popular initiative process. Are the Swiss an example of perfect democracy? Despite thinking well of the these rights of referenda which grant the Swiss people a true constitutional power, they do not suffice to dislodge the elites from power.
Chouard likes to refer to “the flamboyant example of Iceland” which proves that “a constitution written by the people is not utopian”. Yes, but Article 1 of the constitutional draft approved by a referendum (a reform process suspended indefinitely after the 2013 elections) stipulates that “Iceland is a parliamentary democracy”. Furthermore, Article 65 introduces the right of popular veto: “ten percent of voters can demand a national referendum on laws adopted by the Althingi (the Icelandic unicameral parliament)”. The Swiss and Icelandic democratic experiences show that the electoral system can make use of a diversified repertoire of democratic tools which are not reducible to sortition as Chouard would have it. Furthermore, no procedure eliminates the uncertainty associated with democracy, which is fortunate for otherwise we would be in a totalitarian system.
The “true democracy” of sortition according to Chouard
Several authors have analyzed sortition and emphasized that the recognition of the sovereignty of the people is a fundamental characteristic of democracy. Chouard takes care to refer to some of these authors, but employs them in a strange way, transforming sortition into some sort of a magic solution. His sloppy description of the history of sortition has little to do with the historical and academic references which he rapidly evokes in his conferences and writing in order to push the idea that the “true democracy” relies essentially on an allotted constitutional assembly.
In the “Blog of plan C, for a citizen constitution, written by and for the citizens” the banner of the introduction page proclaims: “It is our constitution which is our only weapon (and which is also our best weapon) for controlling power. Our discussions, among ordinary citizens, aim to have millions understand: it is not for men of power to write the laws of power”.
The blog refers to a petition on avaaz.org launched and closed in 2013 after having collected 3000 signatures. In the summary of the petition, we can read that sortition is the “first, final and only possible practice of democracy”. In a commentary by “Wikicrate”, we can read once again the assertion which has become a mantra in the argumentation: “In Athens a primitive form provides proof for two hundred years. Two hundred years during which the power did not serve the 1% but the 99%.” Chouard likes to refer to ancient authors like Aristotle, Montesquieu… and contemporary ones like Manin and Van Reybrouck, but he hasn’t really read them. If he did, he would not be able to write such falsehoods.
Indeed, Van Reybrouck, in his book “Against Elections”, cites a professor of his named Verdin talking about classical Athens of the 5th and 4th centuries BC: “We must never forget an essential character of the polis, namely the exclusive nature of civil rights. Women, foreigners, minors and slaves: none of these had a voice” (Chapter 3: Pathogenesis). Van Reybrouck further writes in the same chapter: “The Athenian system was more pragmatic than dogmatic. It was not derived from a theory, it was based on experience. For example, the top military and financial functionaries were not allotted – they were elected and could be re-elected.” Van Reybrouck does not confuse sortition and direct democracy: “I therefore totally agree with the conclusions of recent study, which describes Athenian democracy not as “direct” democracy, but as a non-electoral type of representative democracy.” Finally, in the conclusions of his book, he writes “sortition was never employed in isolation, but rather always in combination with elections.” Chouard advocates implementing a sortition-based representative democracy where allotment is supposed to fix all problems, all of which are derived from the offense of the electoral system. Nothing is less “mechanical”, as illustrated by the procedure Chouard offers.
Indeed, when examining in detail the allotment procedure for the constitutional assembly according to Chouard, we discover a cumbersome and complex procedure, a contraption which never ceases to become more complex as the draft constitution is elaborated. Thus, according to Article I-2, titled “Honesty of the Assembly Members” (sic), “The Assembly members must be allotted volunteers (supported by x citizens?), convened in private (isolated from external influences, including, and in particular, from experts).” But according to a table comparing the vices and virtues of elections and sortition, available online on one of Chouard’s sites, the first virtue of sortition is that it “does not rely on the will of people and therefore offers no grip for con-men, artful liars, and professional manipulators.” Yet, Chouard’s sortition must always rely on volunteers…
There is no reflection on how to guarantee that the volunteers are representative of the population (sociologically, politically), no investigation of the sociological processes which decide who will not volunteer, no regard to the possibility that organized minorities will dominate the process. There is also no reflection on the rules of the assembly, its information, the organization of the allotted citizens… Who will manage the allotment procedure? Who will watch against infiltration attempts? Which authorities will guarantee the honesty of the process? This conception of sortition again see the procedure as a neutral tool, operating in a blank space free of contentions and organizations. This is believing that the procedures miraculously resolve or dissolve all the political contentions and disagreements.
Chouard’s draft constitution[iii]
In their exhortations for a “true democracy”, Chouard, the GV and LCC present elements which partly follow from common sense (including representative democracies) such as accountability, real separation of powers, the creation of independent supervisory bodies, and sanctions for abuse of power. The experience of representative democracies should teach us that it is not enough to write principles in the constitution to have them respected, unless we believe that sortition will magically dissolve the negative mechanics of elections… The draft constitution also contains proposals such as referenda based on the popular initiative (such as in Switzerland, it is specified), allotted citizen assemblies and direct democracy, without really laying out the complex intellectual and practical articulation of these proposals, and moreover the procedures are not always described in detail.
In the introduction to the draft constitution, an article titled “Intention” declares that “the present constitution cannot be modified, reformed or revised unless by consent of the people and of each part of the people through the actual expression of each person within those people.” It is specified later that “the modification has to benefit and promote the interests of the greater number of those people. All proposals of modification which do not meet those conditions cannot be accepted. An allotted group deliberating in camera and empowered to express itself without any external pressure will decide whether the a modification is acceptable.” It is not known whether this procedure is to be applied to a popular initiative procedure as well. In any case, the Constitution at least as developed by Chouard once adopted will be difficult to change. Without proceeding to analyze the draft exhaustively, we examine some articles which appear questionable, to put it mildly.
While Chouard asserts and reiterates that “no change can originate from external sources, from a political party or from a privileged person” and that “‘real’ democracy is when vote for laws themselves and write their constitution themselves”, the draft defines in Article II-6.1 an “Assembly of Parties”. While Chouard asserts and reiterates that “‘real’ democracy is when vote for laws themselves and write their constitution themselves”, this assembly “corresponds to what is today called ‘The National Assembly’” and its role is to “carry out a given policy with the aid of the government”. In Article II-9.1 we learn that the Assembly of Parties “elects from among itself a government of one tenth of its members which itself elects a prime minister”. After presenting a critique of the electoral system, part of which are the parties, and after referring to direct democracy, parties are reestablished and given the role of electing government in an arithmetic fashion and not according to the logic of policy proposals.
The role of citizen is later defined through the Assembly of Citizens and the Citizen Juries. Article II-6.2 indicates that “the Assembly of Citizens, by the fact of its selection through sortition, better represents the reality of the citizens than an elected assembly”, but it is relegated in fact to a supervisory role and to expressing the sovereignty of the people.
The institution of the Citizen Juries confirms this conception of the role of the citizens. Indeed, according to Article II-6.2, “the Citizen Juries are the supreme supervisory body charged with examining in depth particular cases and prosecuting cases of power abuse. It is selected by allotment among the Body of Volunteers.” They specifically supervise the members of the Assembly of Parties who are “each […] held accountable to a Citizen Jury which regularly compares their electoral promises with the actions taken in the Assembly and which can call upon the people to recall or confirm the Assembly through a referendum.
These Citizen Juries chosen by lot from within the “Body of Volunteers” carry out then an important role which in the absence of clear details about the allotment procedure are more reminiscent of the Red Guard or Orwell’s Thought Police than of citizen committees. The Swiss legislative referenda offer a simpler, more transparent and democratic model for citizen control than these institutions of citizen oversight.
The draft contains a rather strange idea about children as well. According to Article I-13 which covers Universal Suffrage “children have the opportunity to express their voice through the device of a collective vote cast by elementary school classes, directed by their teachers or professors (inculcating the civic spirit and the sentiment of participating public life).” It is unclear what sense to make of a “collective” vote, which in addition is directed by teachers and professors. This evokes unpleasant memories, and opens the door to institutionalized indoctrination. As much as civics education is commendable, implementing it via collective voting seems like a slippery slope. Along with other elements, this draft constitution as a whole is not only specious in its argumentation but also disquieting. From the mobilization of school students to the use of sortition based solely on “volunteers”, step-by-step emerges a conception of a rather oppressive democracy with very weak guarantees against a drift toward an Orwellian world very different from the democratic ideal which it proclaims. The way which this idea is intended to be disseminated confirms those concerns.
The very undemocratic actions of Citoyens Constituants and Gentiles Virus to disseminate their ideas
Chouard takes great care to disseminate his idea of allotting a constitutional assembly. “Since this change will not occur through established power (the elected, the media, big money), the ideas have to be adopted by the masses; we must pass on the virus of democracy, until there is a majority of citizens who support them.” What this does not state is that this implies a strategy of undiscriminating alliance and of infiltration of environmental and citizens movements including the Nuit debout. The facts are well established.
Under the pretext of organizing “alternative demonstrations”, Les Citoyens Constituants have called for a demonstration on May 26, 2013, to sing their praises for sortition. The event was rebranded as the “day of rage” on January 26, 2014, organized by a number of organizations of the extreme right with the support of Alain Soral and of Dieudonné. As for Gentils Virus, their non-democratic practices were highlighted by a testimonial published online by activist group Alternatiba relating their experience with Gentils Virus. Finally, more recently, one of the organizers of the GV wrote a manual for infiltrating the Nuit debout, which we have described elsewhere. The GV also reached out in April 2016 to other organizations of the extreme right to join a coalition of citizen movements named Synergie démocratique. At other times, they were present without an official announcement. It is therefore not surprising that Chouard refers on his site to “Égalité et réconciliation”, Alain Soral’s organization, a man who defines himself as a “national socialist”.
The ends are made by the means in the same way that the tree is made by its sap. The contents of his draft, like the method of dissemination promoted by Chuard and his satellite organizations, have nothing to do with “true democracy” nor with “real democracy”, but instead comprise a theoretical and political fraud.
[i] Uploaded to Dieudonné’s youtube channel “La Quenelle Nationale”.
[ii] Moreover, when he writes “It would be an almost acceptable system if the small group in power was made of the most competent (aristocracy: aristos = the best) among us”, we get an idea of his fondness for philosophers kings. We do not see why the most competent would be spared from the process by which “established power, or any power in an electoral system, will automatically collude with the powers of money and of the lobbies: banks, large industrial groups, finance…”.
[iii] The draft which is available online on the wiki of Gentil Virus is preceded with the notice: “The constitution Wiki is temporarily unavailable and therefore this copy was created here, dated November 14th 2012 (it is unlikely that changes contributed since to the page are to be confirmed)”. Retrieved on June 24th 2016, like all the other documents cited in the the text.
Filed under: Athens, Ballot measures, Elections, History, Juries, Participation, Press, Proposals, Sortition |
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Equality by lot 
Non
Vraiment!
Scary!
A view often expressed by the dominant post-Marxist element on this blog. As Chouard’s perspective is close to that of other sortition fundamentalists, this is why those of us of a moderate persuasion are reluctant to be associate with “a theoretical and political fraud”.
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*** Bevort’s text includes many points worthless, and some other already well discussed on this blog. At least one issue is interesting: Chouard kindness towards very dubious people – with Alain Soral as a paradigm.
*** There is in France a very diverse set of idea movements hostile to the polyarchic system (I do not consider “populists” who accept the system and propose a new “political class”, supposed nearer to the common citizens). I will class the antipolycratic movements into three categories.
*** Some belong to the anarchistoid family; a family old enough, let’s say two centuries old, but which never convinced ordinary people, who used always to see it as producing utopian dreams, maybe likeable ones, but out of serious consideration as political proposals.
*** Others belong to other “old families”, let’s say “reactionary authoritarian”, “leftish totalitarian”, “fascistoid”. State experiments connected to these families did leave bad memories, and therefore modern militants are cautious, and avoid being precise about the political system their endeavor implies. But the fuzziness of their political model is itself revealing.
*** There is a family which is new, the family of “new dêmokratia”, “direct democracy”, ‘true democracy”, I propose “ortho-democracy”; with the model of “democracy-through-minipublics” as the one really serious model. This family is new, because it implies the availability of electronic technology and the idea of “representative sample”. Being new, it does not face the bad memories of most “old families”, and if it is often criticized as utopian, ordinary people are less easily convinced that in the case of the anarchist family.
*** The implicit strategical choice of Chouard is “all the enemies of the established order are virtually our allies and will be easily attracted to true democracy”. That explains his kindness for Soral, a bright mind who attacks many sides of the established order, but who, basically, has conceived a very vicious project: to unite “traditional” far right extremists and some young members of the maghrebi immigrant minority through rabid antisemitism (targeting obsessively the ‘talmudo-sionists”) and complotism (he applauded with enthusiasm, and “euphoria”, the September 11 attacks, expecting better and stronger to come, but later changed his mind: it was the result of a complot to legitimate aggression against the Arab world). His political hero, as “true rebel”, is Celine, famous writer, but antisemitic fanatic and pro-Hitler collaborationist (I say “political hero”, not “literary genius”, it would be another thing).
*** Chouart’s strategical choice may help him to recruit. But it is very dangerous for ortho-democracy. We must remember the ideological situation of France during the Restauration at the beginning of the 19th century. The progressive intellectuals showed much kindness for the Napoleonian legend, as it acted against a reactionary regime established through the French defeat in Waterloo and the humiliating 1815 treaties. The result was, later, the Second Empire founded upon this Napoleonian legend. The progressives kindness for bonapartism was a very bad idea.
*** Nowadays Chouart’s kindness for Soral has a double effect: it helps a very dangerous endeavor, and it gives ammunition to the enemies of ortho-democracy.
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Andre,
I think Bevort does make a few valid points. For example, if his description is correct, then the draft constitution does leave significant role for elected officials, which is a bad idea.
> “ortho-democracy”; with the model of “democracy-through-minipublics” as the one really serious model. This family is new, because it implies the availability of electronic technology and the idea of “representative sample”
Why “electronic technology”? What essential elements were missing in the Athenian system and technology?
Regarding Soral: from your description he sounds like an old fashioned antisemite. Chouard doesn’t seem like either a bigot or a fool. Doesn’t he make it very clear that he rejects the antisemitic elements in Soral’s agenda? Doesn’t he distinguish between those and whatever valid points there are in Soral’s anti-establishment agenda?
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*** I do not follow closely the Chouardsphere. But Chouard seems have cut his links to Soral. I read a paper (2014, November 28, « Pour que les choses soient claires »), where he acknowledged he made a mistake by too much closeness and good will towards Soral (« je reconnais que me suis trompé, en publiant un lien sans mise en garde ») .
*** He explained his mistake by his openness of mind, his taste for intellectual debate, his trust in the ability of his readers when discriminating good and bad ideas, his own reluctance to submit to any kind of pressure. Well, but there is a basic factor, which he reveals when, in the mentioned paper, he says “he is sure” “he felt it often, neatly”, that “quite a number” of the followers of Soral, initially hard anti-democrats, were becoming “des démocrates réels” (ortho-democrats).
*** That confirms what I said about the implicit strategical choice of Chouard: “all the enemies of the established order are virtually our allies and will be easily attracted to true democracy”. So ortho-democrats must have close intellectual relationships with and understanding for all these people, including the paranoid fringe, those clearly linked to the fascist heritage, or, as well, hard leftists with totalitarian minds, or people whose hostility to Israel policy, or actually to Israel as a State, is strongly infused with antisemitism.
*** This strategical choice, as I said, helps very dangerous endeavors as the Soralian one, and gives ammunition to the enemies of ortho-democracy. And, more deeply, it is dangerous for the democratic idea itself: antisemitism attacks the idea of the dêmos as a civic body, paranoid ultra-complotism leads people to consider the world is ruled by an under-world a sovereign dêmos will be unable to control.
*** Chouard’s strategical choice may be linked to a recent phenomenon in French (or French-speaking) ideological landscape, more precisely the ideological landscape of the hard enemies of the established order: a tendency to blur the old oppositions and to establish bridges between groups of very different basic sensitivities. As I said that reminds a phenomenon of the French Restauration at the beginning of the 19th century. Probably Internet helps, today.
*** My own position: the people aiming to democracy (dêmokratia, ortho-democracy) must distinguish themselves strongly from the thought movements which actually link clearly themselves to the non-democratic “old families”.
*** Yoram Gat asked “Chouard doesn’t seem like either a bigot or a fool. Doesn’t he make it very clear that he rejects the antisemitic elements in Soral’s agenda? Doesn’t he distinguish between those and whatever valid points there are in Soral’s anti-establishment agenda?”. I don’t think Chouard is a bigot, but his understandable opposition to current Israeli policy seems to make him blind to the antisemitic danger. And he was able to distinguish valid and not valid points in Soralian discourse, but had long preferred to trust his readers to distinguish (“ comptant comme d’habitude sur l’intelligence des gens — que je considère comme des adultes — pour distinguer ce qui y est pertinent de ce qui ne l’est pas, ce qui est bon de ce qui est mauvais”), and he did not see that they were elements of a precise ideological system, which more and more clearly is a new and smarter form of “national-socialism” (the thought of Soral and its evolution can be seen in his “Anthologie”, published by his own publishing house, Kontre-Kulture; if you want to understand an ideological system, such an anthology is better than isolate items).
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*** I said the model of “democracy-through-minipublics” was “new” because it implies the availability of electronic technology and the idea of “representative sample”.
*** Yoram Gat asked; “Why “electronic technology”? What essential elements were missing in the Athenian system and technology?”
*** First, I believe a modern democracy implies a big numbers of minipublics, not only an allotted Parliament. Given the huge variety of problems in a modern dynamic society, an allotted Parliament would have to devolve to specialized minipublics the regulation of specific fields. And if the last word in judicial matters belongs to the dêmos, that needs quite a number of judicial minipublics. Etc… Such a big political work cannot be done only by minipublics which meet physically in the capital. Considering the extreme cases, you cannot ask too many French citizens of La Réunion to meet in Paris, or too many US citizens of Hawaii to meet in Washington. Even in less stretched States, should physical meeting be the rule for the deliberations, the excessive burden would lead citizens to escape their political work, which would damage strongly the representativity of the minipublics.
*** Second, modern technology, especially Internet, allows for a high level of intercommunication which is necessary to have a dêmos with a common circle of thought (whatever different the sensitivities); Internet plays the role of the ancient Agora.
*** Democracy was only possible in small States, said rightly its ancient thinkers. It is possible in huge States, now, because even the geographically biggest States of today are “small” from the communication point of view, especially the electronic communication.
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I disagree. Communication technology may help, but it is not essential to a sortition-based system any more than it is essential to an elections-based system.
Regarding having a large number of allotted bodies: that may be a feature of the system, but not an essential one. The essential part of the sortition-based system are the single or the handful of allotted sovereign bodies just as much as the essential part of the elections-based system are the single or the handful of elected sovereign bodies.
The allotted sovereign bodies may decide to create other allotted bodies – but their number and purview would depend on the circumstances, including, of course, the available communication technology.
Regarding having allotted bodies meeting exclusively, or mainly, online – this may be acceptable for some low-powered situations, but it is a very bad idea for high-powered bodies. Such a situation makes the body fragile for multiple reasons and in any case where important interests are at risk presents a serious danger of institutional breakdown.
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Yoram,
> exclusively/mainly online meeting is “a very bad idea . . . fragile . . . a serious danger of institutional breakdown”.
I agree that it would be sub-optimal but we need to hear the reasons for your alarm. Does the “fragility” refer to an absence of collective consciousness/group identity?
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I argue that having a large number of issue-specific mini-publics is VERY desirable if not absolutely essential. Elected legislatures almost never tackle issues as a whole, but rather by creating many issue-specific committees. Because the committee members are partially under the control or guidance of their political party (colleagues) the fact that the committees are even LESS representative (and more subject to corruption) than the full legislature is glossed over. But in an allotted legislature sub-committees would not have the overlay of party discipline, and a lack of representativeness resulting from small groups becomes a more severe problem than in an elected system. The only way a sortition legislative system can operate safely by “committees” is if each of those committees has enough members to be statistically representative.
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Terry,
>The only way a sortition legislative system can operate safely by “committees” is if each of those committees has enough members to be statistically representative.
I agree, but each committee would need to be several hundred strong, so a) is it economically feasible and b) would it be possible to motivate large numbers of non-politicians to rule over minor legislative details? And if the requisite motivation can be secured, each committee will almost certainly privilege its own remit over the bigger picture and will demand the necessary resources. The advantage of elected politicians is that party discipline provides an approximate heuristic for the representation of public preferences (assuming that most committee members come from the majority party/parties) and has to manage the trade-offs between different committees to ensure some measure of fiscal realism. Sortition-only systems would require a budget committee, but members of such a body would be vastly more powerful than members of the highway maintenance committee. This would indicate that sortition alone could never lead to a workable political system.
I imagine that Yoram will argue that small sub-groups of the permanent assembly will still be representative, and that’s why I asked him if his proposal required the development of collective consciousness/group identity that would act as a surrogate for the effects of party discipline. This could well be generated by intense debate within a group that met together for a year or two, but would not be generated by individuals voting at home on some sort of video link and that may be why he would view such a system as “fragile”. (I have to speculate as he refuses to answer any of my questions). Naturally liberals like myself are alarmed at the prospect of freely-choosing individuals being constrained by some form of collective identity.
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Terry,
> I argue that having a large number of issue-specific mini-publics is VERY desirable if not absolutely essential.
Maybe, although personally I doubt it.
In any case, it is usurpative to try to set these details in advance. It should be up to the allotted body to decide how to best arrange the political system (and to change its mind if need be). Its members would be in a much better position than you are (or I am) to do so – both in terms of their knowledge of the situation and in terms of the legitimacy of their decision. If they decide to create various allotted bodies, large or small, then fine. If they decide to do things differently, then they would probably have very good reasons to do so.
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Yoram:> It should be up to the allotted body to decide how to best arrange the political system.
What you are suggesting, presumably, is to appoint a group several hundred strong by random selection and leave an anonymous note inviting them to create a constitution on a tabula rasa. What if (as is highly likely, if not inevitable) two or more such bodies, deliberating in parallel, decided to arrange the political system in different ways (that may, or may not, be based on sortition)? Which blueprint would be the “representative” one?
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*** Yoram Gat wrote (November 20)
“Regarding having a large number of allotted bodies: that may be a feature of the system, but not an essential one.”
*** Ok, as for legislative juries, it is not “essential”. But it is practically necessary. An allotted parliament, in a modern, dynamic society, will have to devolve specialized tasks. For example to establish rules and institutions to regulate drugs production and distribution is an important task, but involves much political work. It cannot be done by the Parliament.
*** And anyway judicial juries are necessary. Creating an allotted parliament and leaving the last judiciary word to judges selected outside of the democratic process is a strange idea: first law is what the judges say is law; second a law which is not enforced through criminal justice is only words. Aristotle said rightly (Constitution of Athens, 9-1): “kurios gar ôn ho dêmos tês psêphou, kurios gignetai tês politeias” = “when the dêmos is master of the pebble (used to vote, actually later a bronze disc), he becomes master of the political system” and conversely if the dêmos has not the last word in judiciary power, he is not the master.
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*** I said “should physical meeting be the rule for the deliberations, the excessive burden would lead citizens to escape their political work, which would damage strongly the representativity of the minipublics.” This factor does not seem much of a problem for Yoram Gat. Given too his stance about volontary political work, I am afraid he is not very sensitive to the danger of non-representativity.
*** Personnaly, I think it is an essential problem. First, because non-representativity destroys the democratic legitimacy. Second, because it will be a strong argument against democracy-through-minipublics. Third, because non-representative minipublics could be used in a “deliberative” version of renovated polyarchy, without much risk for the system, given the low level of their legitimacy.
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André,
> For example to establish rules and institutions to regulate drugs production and distribution is an important task, but involves much political work. It cannot be done by the Parliament.
Surely, Parliament cannot do it alone. The question of whether this should be done with the help of a professional bureaucracy with the supervision of the Parliament (as is done today) or with the help of allotted bodies is a question that the Parliament would need to address, on an ongoing, and potentially on a case-by-case basis.
> judicial juries are necessary
I agree.
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André,
> I am afraid [Yoram Gat] is not very sensitive to the danger of non-representativity.
Not at all – in fact, the opposite is true. I very much agree that it is very important that only few people would turn down allotted offices despite wanting to serve, because of various practical concerns.
It seems to me, however, that you do not sufficiently appreciate that representativity requires much more than accepting allotted positions offered. Just “showing up”, that is, nominally attending, is very different from really being empowered and assuming the role of a fully functional member – equal to all other members – of an allotted body. So a body that is nominally representative could be very unrepresentative in fact.
Furthermore, the question of whether people take up allotted offices offered to them – and if they do not, what their reasons for refusing are – is an empirical one that can be relatively easily observed. Once the problem is observed and measured, the problem is in the open. Its severity can be assessed and it can be addressed in various ways. On the other hand, the problem of accepting positions but not being able to fully participate is a much more difficult problem to measure and to tackle. Taking into account that there undoubtedly will be people inside the system who would benefit from a situation where many of the participants are actually disempowered, this situation may become self-reinforcing and intractable. Once people feel that the sortition-based system is in fact unrepresentative, it will collapse.
Therefore, it is crucial to set up the service in such a way that those people who do take up offices are in the best position to actually fully participate. This consideration must be kept in the forefront when designing the system – the number of bodies, their functions, their sizes, their budgets, their authority, their procedures, etc. Long-distance bodies and mandatory service, for example, are very far from fostering real member empowerment which is a prerequisite for representativity.
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Yoram:
>Just “showing up”, that is, nominally attending, is very different from really being empowered and assuming the role of a fully functional member – equal to all other members – of an allotted body.
Anyone with any practical experience of collective behaviour will know how unrealistic this expectation of equality is. Even in a voluntary body like a sports club, the active functions will always be undertaken by a small minority of members. As such persons self-select, the constitution of voluntary organisations invariably requires election to ensure that the views of all members are represented. If the raison d’etre of an allotted body is statistical representation then the actions of allotted persons will need to be restricted to roles that retain the equality of all participants, and it is hard to see how this can be extended to anything more than voting. If the allotment is effectively voluntary then members will primarily be activists and this will not accurately reflect the target population.
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*** Yoram Gat thinks that mandatory service lessens empowerment. Why ? Because of low mental involvement ?I doubt. In French criminal courts, which include professional magistrates and allotted jurors (with mandatory service) – an undemocratic system-, we can see sometimes jurors complaining about some magistrates trying to unduly impose their choices, and magistrates complaining about low intellectual abilities of some jurors, but I don’t remember magistrates complaining about disinterest or low participation of the jurors, of jurors only « showing up ». That must not be such a current phenomenon.
*** As I said, if in a mini-dêmos some allotted people prefer to stay out of the meeting room and to take drinks in an adjacent room, we can leave them act this way ; they would represent the really « apolitical » citizens ; the indifferent ones, or the ones refusing political involvement from religious reasons, or some elements of the lunatic fringe, etc. Only travel to the Civic Hall must be mandatory, not the participation.
*** About long-distance bodies ? Let’s consider the example of an allotted body established to regulate drugs production and distribution, formed by a string of small juries, with some exceptional physical meetings in the capital, regular local meetings of the small local juries, and connection between the local juries through e-mails and video-conferencing. It would need some practical experiment and some design, but it is not sci-fi, and I don’t see why the jurors, with an important task (various scandals in polyarchic France about this issue), would not be seriously involved in the subject, only because a part of the communication is electronic.
*** Yoram Gat mentions “the problem of accepting positions but not being able to fully participate » as « a much more difficult problem to measure and to tackle ». What does he mean by « being able to fully participate » or « really being empowered and assuming the role of a fully functional member – equal to all other members » ?
*** I hope Yoram Gat does not think that, to be member of a mini-dêmos, a citizen must be the intellectual equal of the smartest, or the status equal of the most respected citizens, or the class equal of the uppermost, or as physically attractive as the prettiest, etc ; or even that he has to consider himself as having an equal vocation to exercize sovereignty. If some allotted citizens, without being « apolitical », doubt they have this equal vocation, the best way to overcome this feeling is by exercizing the function of sovereignty.
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André,
> magistrates complaining about low intellectual abilities of some jurors, but I don’t remember magistrates complaining about disinterest or low participation of the jurors, of jurors only « showing up ».
It is common in our society to attribute intellectual failures to “low intellectual ability” rather to lack of attention or disinterest. The Magistrates are likely attributing the latter to the former. Presumably, as democrats, you and I do not accept that “low intellectual ability” is a prevalent problem in our society.
> stay out of the meeting room and to take drinks in an adjacent room […] represent the really « apolitical » citizens
Staying out of the political process – when it is really a choice rather than the result of constraint – is not much of a problem. This is indeed the what happens when someone freely turns down an allotted position. The problem is what happens when that someone who paid no attention now gets to have decision making power. Even worse, what if that someone, after spending their time having drinks, makes their mind based on a slogan they hear on the television, or based on years of reading propaganda in the newspaper?
> a string of small juries, with some exceptional physical meetings in the capital, regular local meetings of the small local juries, and connection between the local juries through e-mails and video-conferencing
This arrangement, like any distributed arrangement which involves a large number of people, is rife with potential for corruption and disfunction in various ways. For example, it is clear that whoever is able to broadcast messages to the set of juries – via mass media or otherwise – wields more power than any of the jury members or even any of the individual juries as a body.
> I hope Yoram Gat does not think that, to be member of a mini-dêmos, a citizen must be the intellectual equal of the smartest, or the status equal of the most respected citizens, or the class equal of the uppermost, or as physically attractive as the prettiest, etc
Of course not. I am a democrat.
“Being able to fully participate” and “really being empowered and assuming the role of a fully functional member – equal to all other members” refers not to the inherent capacity of the people involved but to the circumstances involved: having the resources – time, material resources, authority, communication channels, freedom from coercion, access to information, status within the decision-making group, etc.
My point is that political institutions have to be set up in a way that empowers people – all the people allotted at equal chance from the entire population – to participate as equals in decision-making.
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Andre,
I agree with most of your comments, except:
>If in a mini-dêmos some allotted people prefer to stay out of the meeting room and to take drinks in an adjacent room, we can leave them act this way.
As you know, my view is that juror participation should be limited to voting, in which case I’m sufficiently an epistocrat to insist that they should listen to the competing advocacy before casting their vote. This is the case in a trial jury, and I don’t see why a legislative jury would be any different.
Yoram,
>“Being able to fully participate” and “really being empowered and assuming the role of a fully functional member – equal to all other members” refers not to the inherent capacity of the people involved but to the circumstances involved.
It’s a common error of those on the political left to assume that the differences between persons are purely circumstantial. Without even going into the nature/nurture debate it’s fanciful to imagine that an equalisation of the resources of an allotted assembly would overturn the natural (or unnatural) differences between members in terms of the relative impact of their speech acts. Even if, for ideological reasons, you rule out any biologically-determined differences, the inequalities of lived experience and the effects of social, educational, economic and cultural factors would ensure that some animals were markedly more equal than others. Of course this would not be the case if all jurors did were to listen to the debate and then vote.
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*** Keith Sutherland says the members of a mini-dêmos should only “listen to the competing advocacy before casting their vote. This is the case in a trial jury, and I don’t see why a legislative jury would be any different.”
*** British jurors don’t deliberate through discussion between jurors?
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Andre:
>British jurors don’t deliberate through discussion between jurors?
Of course they do — in addition to listening to the court-room advocates, British trial jurors deliberate through discussion. However there are two reasons why this feature should not be included in a legislative jury, both pertaining to the epistemic nature of the trial verdict (guilty or innocent) as opposed to the preferential nature of the legislative verdict (pass into law or reject):
1. Given that the preferred outcome of a trial jury is unanimity, in most cases this would be impossible without deliberation. This involves jurors browbeating the minority into accepting the view of the majority — clearly something to be avoided when making political decisions in a liberal society.
2. In the trial jury, random selection helps insulate the process against corruption and ensures a bare minimum of descriptive representativity (given that there are only 12 jurors). However, except in aberrations like the O.J. Simpson trial, this is not a problem as it is assumed that the juror’s vote will not reflect her ethnicity, gender, age, occupation etc., so no steps are taken to stratify the jury to ensure that it is a portrait in miniature of the whole society. As such it matters little (at least in theory) which jurors take an active role in browbeating their peers into agreement as the epistemic decision outcome is not supposed to reflect the interests and general opinions of the jurors — indeed they are instructed to ignore everything apart from the evidence presented to them. However, In the case of a legislative jury (assuming democratic norms) all but the most diehard epistemic theorists would hope that the general views and preferences of the microcosm would accurately reflect those of the target population, albeit modulated by their exposure to the deliberative information exchange in the legislative chamber.
So, given that there is no “right” answer in political matters, trial and legislative juries have to engage in different procedures to assess the merits of the competing arguments presented to them.
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Keith Sutherland says the criminal jury decisions are purely epistemic, because the criminal jury decides “guilty or innocent”, but does not decide the amount of sanction, leaving it to professional or elected judges. It seems it is the usual English-speaking system (not the current French one). I am sorry, I don’t know well how the system practically works. I suppose there is a range of sanctions for a given crime, according for example mitigating circumstances. This gives strong power to magistrates, at least about people declared guilty. Or is the range of sanctions narrow?
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Magistrates (but not jurors) can exercise some discretion over the sanctions for the crime. I forget how it was with Athenian courts, didn’t both the accuser and the accused make suggestions for the jury to choose between?
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Yes, it was a binary choice. Not a very good device, but the technological level did not allow better for a big jury. A modern criminal jury could allow preferential choice about the sanction. But then it is no more an epistemic choice between guilty and innocent, it is a choice involving as complex ideas as a legislative choice.
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Andre,
>A modern criminal jury could allow preferential choice about the sanction.
Yes, but then the jury would need to be much larger (in order to ensure that the considered preference of the jury accurately matched the target population) and jury-room deliberation would be proscribed in order to prevent any particular individuals dominating their colleagues. It would be easy to imagine a small group of impassioned hangers-and-floggers (or their liberal antithesis) influencing the outcome in a disproportionate manner. It’s not sufficient to argue that the one would automatically counterbalance the other as the law of large numbers does not apply to the speech acts of small numbers of randomly-selected persons (most members of a 300-strong jury would probably say next to nothing and some will be a lot more persuasive than others). It’s likely that there would be a wide variation of proposed sanctions between different juries and such an outcome would be inimical to the impartial rule of law. Of course the whims of the presiding judge are equally arbitrary, that’s why I would prefer the Athenian system whereby the prosecution and the defence made their proposals and the jury decided between them. If Socrates had proposed a less derisory sentence he would probably not have been condemned to death.
Your proposed extension of the trial jury beyond a merely epistemic function is a good indication of the deliberative constraints that would be necessary in order to ensure the ongoing representativity of a legislative jury.
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*** Keith Sutherland makes a sharp distinction between assessing guilt, which is an epistemic function, where strong representativity is not needed, and deciding the sanction, which is a “political” one, becoming to a field where « there is no “right” answer », and where strong representativity is nedded.
*** I disagree. Because the rules of assessing guilt are political ones. A very big part of trials in the French « cours d’assises » (higher criminal courts, the ones where there are jurors) are cases of alleged rapes, often a long time ago. The problem is choosing between words of the plaintiff and words of the accused. More generally, the jurors must choose which amount of proof they judge enough to condemn. There are two extreme principles, « we must condemn only if there is not the least doubt » « we must choose the most probable », and all the shades between them. The choice is a political one. Some are « repressive » (second choice) for all the alleged crimes ; others are repressive for some kinds of crimes only. « Repressivity » here may be not linked at all with sympathy for dictatorial style, but may stem from an utilitarian reasoning : asking too much proof will lead to a huge amount of sufferance for the victims of crimes, specially of crimes where very strong level of proof is difficult to get. Whatever will be the median shade among the citizens, with a small jury the median may be very different.
*** And all Keith’s arguments for « political juries » are valid for a jury assessing only guilt.
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Andre,
Rape trials are rather different from most other forms of crime, particularly where date rape or marital rape is concerned, as the law does not admit degrees of rape, unlike (say) the distinction between murder and manslaughter. Given the highly politicised discourse over rape, a good case could be made for large juries that deliberate in silence as attitudes towards sexual crimes vary enormously within modern multicultural societies. In a small deliberative jury one can imagine a case in which the verdict was influenced unduly by either a single militant feminist or a single Muslim Imam and it would be meaningless to ask which was the “right” verdict in the epistemic sense. This supports my argument for silent deliberation in a legislative jury where similar considerations apply.
>And all Keith’s arguments for « political juries » are valid for a jury assessing only guilt.
Why so (in cases other than rape)? In the UK, juries are used in all trials other than in the magistrates’ courts. My own jury service was for a case of commercial fraud. But if what you say is true, then large juries, deliberating in silence should be the default position, rather than adopting an exisiting flawed system for legislative trials.
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*** I said « all Keith’s arguments for « political juries » are valid for a jury assessing only guilt ». Keith asks « Why so (in cases other than rape)? ».
*** It seems clear for me.The political choice between « repressive » and « not repressive », and all the shades between, is especially « ideologically hot » in rape cases, but it is more general. Except in very clear cases, the judge has to choose what amount of proof he considers necessary to condemn ; which is a political choice.
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Some thoughts more.
*** It seems (but we cannot be sure, giving the mandatory secrecy) that in the French « Cours d’assises », where magistrates deliberate with jurors, the magistrates often are more « repressive » than jurors about declaring guilt (about sanctions, it is another thing). And, comforting Keith’s views, I heard some French defense lawyers who were afraid that, in the Cours d’Assises secret deliberation, « a secundary trial occurs, without defense lawyer ».
*** « Peremptory challenges » excluding some jurors are used actually in France and I suppose in other countries not so much to exclude personal ennemies or friends of the accused, but to make the jury sociologically (and ideologically) less representative.
*** Personnally I think that a good system could be « twinning » juries, a small one with oral trial and face-to-face deliberation, a big one with written trial and without face-to-face deliberation, the final sentence being the more favorable for the accused. Each procedure has its defects, but combining both would be better, given we can use here a (political) principle specific to criminal trials : any contradiction between courts involves doubt, and doubt must benefit the accuser.
*** Such a procedure cannot be used for legislative juries, where symmetry between choices must be enforced. Here it cannot be the answer to Keith’s criticism.
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Andre
>Such a procedure cannot be used for legislative juries, where symmetry between choices must be enforced. Here it cannot be the answer to Keith’s criticism.
Naturally I agree, and legislative trials are my principal focus. If there is inconsistency between different juries in a legislative trial then, just as you would favour the defendant, the default should be “No” (i.e. the preservation of the old law). I imagine the same people (yourself included?) who would see that as biased towards the status quo might well be the same ones who would prefer a verdict that was more favourable to the accused in a jury trial.
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Yes, myself included. Bias towards the statu-quo was defensible in ancient, mostly static societies (it was Rousseau’s idea), not in modern dynamic ones. Bias towards the accused is another issue. Note the “modern” principle did exist in ancient Athens: for instance if in a trial the votes were equal, the accused was acquitted.
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