Athenian Constitutionalism: Nomothesia and the Graphe Nomon Me Epitedeion Theinai

Many of us who argue the case for the implementation of sortition in modern lawmaking like to base their arguments on fourth-century Athenian practice. In my PhD thesis on the topic I argue (on the authority of Hansen and Blackwell) that there were eight stages involved, and a new paper by Mirko Canevaro (who disagrees with many of Hansen’s claims) argues that it was even more complicated. The following stages are from page 73 of his paper:

In fourth-century Athens, to pass a law,

[1] the demos first acted in the form of the Council of Five Hundred, selected by lot. The Council set the agenda for the Assembly and could be persuaded to put lawmaking (as the production of new laws – general permanent rules) in the agenda of the next Assembly.

[2] At that point, the Assembly (composed potentially of the whole demos, and in any case very rarely of fewer than 6,000 people) held a preliminary vote not on new law proposals, but on whether laws could be proposed at all. The institutional setup was such that the first vote in the Assembly was not on a particular solution, but on whether the demos recognised that there was a problem that needed solving through legislation.

[3] If the vote was successful, then volunteers could propose new laws, which had to be widely publicised for a month.

[4] At the end of the month, the Assembly would set a date for the meeting of the nomothetai to enact new laws.

[5] There was however a concern for the coherence of the laws of the city. Thus, before enacting new laws, the proposers had to repeal all existing contradictory laws, arguing that their new laws were more epitedeion (‘appropriate’, ‘fit’ to be laws of the city, as we shall see) than the ones they were repealing, and this needed to happen not in the Assembly, but in a lawcourt, against advocates of the contradictory laws elected by the Assembly at the end of the ‘publicity’ month.

[6] Once this was done, there would be the session of the nomothetai, and the nomothetai would finally approve the new law(s).

[7] But this was not the end: if it turned out that the proposer had not followed
the correct procedure to the letter, had not properly publicised his proposal, or had failed to repeal a contradictory existing law, then anyone could bring a public charge against him (a graphe nomon me epitedeion theinai), and he (and his bill) would be judged by another lawcourt, in a form of judicial review.

Canevaro argues that this amounts to a form of constitutionalism, replete with checks and balances, which also accorded Solon a similar status to that claimed for the US Founding Fathers.

The point that interests me is that sortition only had a defining role in stages 6 and 7. The Council [1] was a collective magistracy, selected by lot, but its role was limited to deciding whether or not law-making should be on the Assembly agenda. “Could be persuaded” suggests that the proposal to change the law might have been initiated by non-council members — in any case the council was not a deliberative body that came up with legislative proposals (pace the claims of many deliberative democrats). Sortition had no role to play in advocating new laws (this was down to “volunteers”), or defending the old laws. Although the nomothatai were manned by randomly-selected jurors, they played no advocacy role and jurors did not initiate the graphe nomon me epitedeion theinai.

Andre has argued (persuasively) that modern dynamic societies could not function effectively along these highly constrained lines but the proposals by some members of this forum to restrict all aspects of lawmaking to randomly-selected bodies is without any sort of historical provenance.

51 Responses

  1. As the number of possible societal problems and laws (thus proposals) is unlimited in principle, it makes good sense to do a first filtering of proposals originating from anybody, not limited to the Council of 500. This first filter stage is a “triage”. It ensures efficient sorting proposals by distributing, thus reducing the overall workload. There is interesting recent experimental research on best efficiency for idea triage in the open innovation space, and the “Method of the Lemons” seems to lead the pack.

    I’d think that the Assembly’s function would then be “acclamation”, a safety check with a largely informational purpose.

    We can falsify this acclamation theory by a prediction that the Assembly should have followed the Council decisions with a high correlation in the range of 99% or more.

    Do we know if this is the case?

    PS: In Venetian and middle age European emperor elections there were also acclamation stages.

    Like

  2. Hubertus,

    According to Canevaro, the only decision the council made was whether or not to put lawmaking on the Assembly agenda — concrete proposals were formulated by volunteers at a subsequent stage. This certainly couldn’t be described as a filtering process. I’ve not come across Canevaro’s claim before (and I’m not a historian), so I don’t know how controversial it is, but most historians agree that the council was an administrative secretariat, not a deliberative body (it’s hard to imagine deliberation between 500 people).

    I think the second Assembly vote ([4] — to appoint a nomothetic panel to decide on specific proposals) could be described as an acclamation, but the final choice (between the new and the old law) was in the hands of a randomly-selected jury. My point is that sortition only had a significant role to play at the end of the lawmaking process.

    Like

  3. Keith, one more question: “whether or not to put lawmaking on the Assembly agenda” sounds completely generic. Are you sure that they did not – at least – decide on some more specific proposal, even if still rough or tentative? For example: that something may be a collective problem, or that some idea for a new law may have merit?

    Like

  4. The impression I get from Canevaro’s article is along the lines of “something may be a collective problem”, but the council is not the main focus of his article and I don’t know if his position is controversial (Hansen, for example, suggests that a probouleuma was a substantive proposal that was put on the assembly agenda as approved by the council). Hopefully Andre will clarify this.

    Liked by 1 person

  5. Another point of relevance is that when the demos decided that the laws should be changed (stage 2) they didn’t request the randomly-selected council to deliberate together and come up with proposals, they invited volunteers from the whole citizen body, and then placed the onus of publicity on them. I guess the modern analogue for large states would be the citizen initiative with its associated need to gain publicity and attract the requisite number of signatures. This privileges elite actors in both the ancient and modern contexts, but in the Athenian example elite initiatives were then judged by the demos in the assembly, nomothetai and law courts. The problem with modernity is that there is no popular check on elite initiatives. Commentators who are seeking to exclude elite influence from the political process are perfectly entitled to their views, but have no right to claim Athenian provenance — the only historical example we have of a working sortition-based political system (Florence and Venice were using sortition for entirely different reasons).

    Like

  6. As the nomothetai were determined by lot, the requirement of their approval of the best law proposals (6) for a problem identified by the Assembly (2) would certaiony preempt any “privilege to elite actors” (3)?

    In principle, this makes perfect sense, and Perikles said about innovators: “Although only a few may originate a policy, we are all able to judge it.” Or is there something hidden in step 4 which requires privilege.

    PS: Today’s hurdle of requisite number of signatures is of course protecting privilege, no doubt.

    Like

  7. Hubertus,

    I’m in complete agreement with all three of your points.

    Like

  8. Keith,
    We don’t want to get too side-tracked with Athenian procedures and roles of various bodies, but Hansen (The Athenian Democracy in the Age of Demosthenes) makes a strong case that all those wishing to propose a new law had to first go to the randomly selected Council of 500 to get it on the agenda of the Assembly in hopes of getting to the randomly selected nomothetai for final adoption or rejection. As to whether the Council deliberated… you aren’t fairly stating the LACK of agreement on whether the Council was a deliberative body. It is known that the Council constituted many standing committees from among their members to deal with different matters, so deliberation didn’t have to occur in the full group of 500. Also, any institution that exists for two centuries certainly ebbed and flowed in terms of exactly how they functioned, so it is impossible to state categorically that the Council did or did not deliberate over individual law proposals.

    However, the main reasons that I favor incorporating sortition and volunteers, crowdsourcing, ho boulomenos initiation, and separation of functions into agenda setting, proposal generation and review is not blindly tied to Athenian practice, but rather democratic principles of control by ordinary citizens, protection from elite domination and epistemic quality of decisions.

    page 257

    Like

  9. Terry,

    I agree that neither of us are historians and that an absence of evidence does not rule out (theoretical) possibilities. However we should accept that most historians view the Athenian council as an administrative magistracy, not a deliberative forum, and be aware of the danger of using sketchy historical evidence as a foundation for our modern proposals.

    As regards your “democratic principles of control by ordinary citizens” and “protection from elite domination” there seems to be an unbridgeable divide between those of us who accept the role of competitive markets and inter-elite competition (primarily Hubertus, Andre, Conall, myself), and those who argue for sortition all the way down (Yoram, Simon and yourself).** Some (most?) of the latter group share a provenance on the hard left (you self-describe as a former Marxist) hence your view that representative isegoria (involving competition between different commercial media) is an oxymoron. Simon and Yoram have favoured the role of “public” media, whereas us liberal pluralists would claim that commercial competition has a crucial role to play and would agree with Adam Smith on the role of the invisible hand and Bernard Mandeville that private vices can be public virtues.

    We all agree on the epistemic quality of decisions by large cognitively-diverse groups but this does not suggest a role for sortition in the proposal/advocacy process. Given the unbridgeable divide between these two camps on the isegoria function, please let’s bracket that out for the time being and focus on what unites us – the crucial role of large, randomly-selected juries in democratic lawmaking.

    ** I use these names purely on the basis of recent frequent postings, although many other past contributors spring to mind.

    PS, as the difference between these two groups seems to be a by-product of a general outlook on markets (witness the conversation between Conall and Simon on the distribution of cannabis licences), I found Danny Finkelstein’s recent Times op-ed of interest:

    . . . a version of socialism derived from one understanding of Marx in which the role of class is replaced by “the elite” and “the people”. A socialist society is being blocked by the power of the establishment (the few) who are preventing the progressive co-operative society which everyone else (the many) would be able to enjoy. In this interpretation the elite are unproductive and leeching off the labour of the people.

    https://www.thetimes.co.uk/article/a-beginner-s-guide-to-life-in-corbyn-s-britain-gj5jbthzw

    Like

  10. The “democratic principles” mentioned by Terry (control by ordinary citizens, protection from elite domination and epistemic quality of decisions) naturally can and do result in quite different proposals to achieve them.

    Keith perceives a difference in “sortition throughout” where I feel correctly represented by the position that sortition is a very helpful tool for some tasks in a truly democratic process of lawmaking but that – for the best possible result – sortition other than in the most simple cases always needs to be combined with a second element, more precisely elections and competitions) to ensure the epistemic quality of decisions.

    That said: isn’t there an unresolved debate in this forum on this epistemic quality of decisions? I perceive a still opposing position that “any decision is good and democratic as long as the average citizen is represented”.

    I’d rephrase the principles listed by Terry:
    Control by all citizens (“ordinary” is misleading in that they only must be capable of free decisions)
    Protection from domination by any subset of citizens (not just “elite”)
    Highest degree of rightness of decisions

    I have observed that this last item is both, the most important and the most contentious, people have difficulty with the notion that there is an absolute “right” law somewhere out there in concept space and that lawmaking must be understood as a process to discover it, improving from on the status quo as current (existing or gaps in) law is found to produce wrongness. Interestingly, the first two on Terry’s list can be logically derived as a consequence from the third when defined thus.

    Like

  11. Hubertus,

    >people have difficulty with the notion that there is an absolute “right” law somewhere out there in concept space and that lawmaking must be understood as a process to discover it.

    Yes, that’s true — Urbinati describes this as the “epistemic disfiguration of democracy”, and even Rousseau was ambivalent as to whether the general will was revealed (uncovered) or constructed. But the notion of the aggregate “wisdom of crowds” deriving from the benefits of cognitive diversity does at least have the (negative) benefit of shielding the decision process from groupthink (Tetlock and Surowiecki are very good on this). But this assumes well-balanced expert advocacy (both for and against) and has no implications at all for the benefits of cognitive diversity in policy generation (pace Landemore, Page etc). As you pointed out Perikles had it right with his “Although only a few may originate a policy, we are all able to judge it.”

    Like

  12. Terry,

    Just one question — if the assembly thought that the council was the right place to generate policy proposals, then why did they not tell them to go away and deliberate, rather than opening it up to any volunteer and self-publicist? Most volunteers would be politicians (in the informal sense of the word), but this didn’t seem to bother the assembly — in fact Moses Finley goes so far as to say that the demos never produced spokesmen from their own ranks. Does this mean that the Athenians didn’t live up to your demanding standards of democracy?

    Like

  13. Keith,
    two topics:

    1. You doubt the Council of 500 served more than an administrative role in preparing the agenda for the Assembly (and indirectly the Nomothetai). You suggest that this is the majority opinion of historians. I am not sure of that, as many of these historians only study the first Athenian democracy, rather than the reformed democracy after 403 BCE… Many of them didn’t even know of the nomothetai. Two points for why we might think the Council was more than administrative. First there is no logical reason to have a sample of 500 people for merely writing down proposals submitted by individuals and putting agenda items in order for the Assembly and oversee the various magistracies. Why in the world would they waste that much time of 500 people? They must have expected them to do SOMETHING more important in preparing material for the Assembly. Hansen writes on page 169: “Furthermore, the Council had a special legislation secretary, which indicates that discussion of new laws took place in the Council as well as in the Assembly.”

    2.You wrote that the wisdom of crowds (sitting in mute attention to expert witnesses) “has no implications at all for the benefits of cognitive diversity in policy generation.”
    I disagree. There are two distinctly different benefits to diversity… both in JUDGING proposals (as we both agree), but also in problem solving and shaping proposals. There is plenty of research (you mention Page’s) showing that diversity can trump expertness in formulating better solutions to problems. A homogeneous set of experts will generally perform WORSE that a diverse deliberating group who can share insights and pool diffuse knowledge that the experts don’t know because of their homogeneity. My democracy design recognizes that these two distinctly DIFFERENT benefits of diversity also interfere with each other if attempted by the same group of people (group think, pride of authorship, etc.) so need to be exercised by separate mini-publics.I also favor volunteer proposers (open to elites, but also any other citizen without privileging elites). One mini-public deliberates about all these raw proposals to generate a best proposal for a separate mini-public to judge and vote on.

    Liked by 2 people

  14. Hi Terry,

    I’ll leave it to Mirko to comment on the deliberative function of the council in a new post (he’s more sympathetic to your perspective). I don’t dispute the epistemic value of cognitive diversity, only that none of Landemore’s examples support the claim that sortition would be the best way to achieve it.

    Like

  15. Yes, sortition is not inevitably the BEST way of having optimal diversity (though it is clearly one good way). But it has other benefits as well. It is resistant to bias in a direction contrary to democratic goals. Plato’s philosopher kings might have good cognitive diversity for generating proposals, but we expect that they might also have certain undemocratic biases. We also know that partisan elected chambers are an especially poor way of creating desirable diversity (even if varying in policy preferences according to party, nearly all members are of a similar overly self-assured personality type, who believe they have the best answers even before the chamber commences nominal deliberation). Perhaps someday we will find a better means of generating proposals (some supercomputer artificial intelligence that will examine all policies ever tried anywhere in the world, or that could possibly be adopted and propose alternatives). But for now, sortition is probably the best means of achieving both desired diversity, representativeness, and resistance to elite bias when refining the raw material proposals generated by any citizens.

    Like

  16. >sortition is probably the best means of achieving both desired diversity, representativeness, and resistance to elite bias when refining the raw material proposals generated by any citizens.

    Unfortunately it means that the vast majority of citizens will have no say at all in the laws under which they live — they can no longer choose someone to speak and act on their behalf or select directly their preferred legislative options and the chances of them being selected by sortition are infinitessimally small — and I don’t think that citizens will be prepared to abandon their hard-won franchise without a struggle.

    Like

  17. sorry, didn’t intend all the italics

    Like

  18. @Terry: “two distinctly different benefits to diversity … both in JUDGING proposals (as we both agree) but also in problem solving and shaping proposals.”

    We must not confuse “diversity” with “randomness”. While the latter implies the former, it is not so the other way round.

    Sure, creative work needs diverse talents but this diversity is of an entire different, highly selective kind than produced by randomness. Remember Socrates’s famous statement: No-one would chosse a random person off the street for a task which requires a high level of specific skill.

    It is self-evident that a “random diverse” team cannot produce, e.g. a great movie or a new technological marvel. Creative projects need a creative mind, even genius, in the lead and that leader / innovator / entrepreneur / creative must be able to add exactly those talents which complement his own. Hence, team building is a matter of conscious election, not of sortition. This is true as much for social and legal innovations as for artistic and technological ones.

    Does that mean that random people cannot deliberate about innovations? Here may be the source of misunderstanding between You and Keith: they clearly do deliberate but they do this from the buy-side instead of the sell-side. Buy-side is an entirely different kind of deliberation, it is not creative but critical, it evaluates a specific creative work’s merits and issues.

    Here in Vienna, Wittgenstein expressed this important distinction in his lucid logic in 6.4321 of the Tractatus: “The facts all contribute only to setting the problem, not to its solution.” This is what a random committee from sortition can do: identify the problem with any creative proposal (as a fact). Their solution is the innovator’s task.

    Like

  19. Hubertus,

    nicely put

    Like

  20. […] note: this post is a response to comments on the post Athenian Constitutionalism: Nomothesia and the Graphe Nomon Me Epitedeion Theina and should be read together with the original […]

    Like

  21. *** The lack of consensus among the historians about the legislative process in the Second Athenian Democracy comes from the bad quality of the data.
    *** Aristotle’s Constitution of Athens does not include anything about this process. Strange. In a 1985 article Hansen wrote he could not suggest a «plausible explanation of this remarkable omission ». Without being paranoid, we can think Aristotle did not want to acknowledge the specific character of the Second Athenian Democracy model.
    *** And Aristotle’s Politics likewise does not include any information about the use of allotted bodies as legislators. Aristotle’s political works are pervaded by his bias. Note that the « lapse » in Aristotle’s Politics about legislation by allotted bodies helped Western thinkers to underestimate the role of sortition in 4th century Athens.
    *** Therefore we are left with indirect information from some speeches, actually two Demosthenic speeches, « Against Timocrates » and « Against the Law of Leptines ». But speeches often give ambiguous information, and may be somewhat biased by the orator. And Canevaro thinks that the trial of Leptines’ law followed an exceptional procedure …
    *** In the extant texts of these speeches are inserted quotations of laws. Alas ! there are strong doubts about the authenticity of these legal documents. Recently Mirko Canevaro, using stichometrics, launched a devastating attack on their authenticity. Note that Hansen acknowledges him as a serious historian. In his 2016 article about « The Authenticity of the Law about Nomothesia inserted in Demosthenes Against Timokrates 20–23 » Hansen writes : « My conclusion is that I disagree with Canevaro about the authenticity of the document at 20–23. But in spite of my disagreement I would like to add that Canevaro’s book is a highly professional and valuable contribution to the debate. »
    *** Lively debate for classicists, but it is difficult for the interested kleroterian to get a definite idea.
    *** Which is interesting for the democratic theory in the exact procedures of 4th century Athenian legislation? I think it is the role of players other than the allotted bodies ( = the randomly-selected bodies which voted new laws, and the allotted courts which could reject them in a kind of judicial review). These other players were the proposers of new laws, the Council, and the Assembly. There are two possible views. First view, the Assembly only decided that there was a problem, and elected advocates to defend old laws; the Council only eliminated spurious proposals. Second view, the Assembly and/or the Council could rule out proposals which the majority disagreed with, in a kind of first step of legislation, the allotted legislators only deciding in a second step. With possibility of some grey area.
    *** Following the first view, in the legislative process of the Second Athenian Democracy, does not appear any filtering step. That may appear strange for us. Maybe we don’t consider enough the difference between a modern dynamic and complex society, and an ancient society, rather static (and even Athens was rather static from a modern point of view, however dynamic it might appear to the other Greeks), and with a limited number of ideological groups.
    *** What can be said is that, at least, symbolically, the law was ascribed to the allotted legislators, and only to them. As mentions Hansen (Democracy … p 167) a law began by the formula “it was decided by the Legislators” , whereas a decree for example could be said “decided by the Council and the Assembly”.

    Like

  22. *** Keith Sutherland writes in his post « the proposals by some members of this forum to restrict all aspects of lawmaking to randomly-selected bodies is without any sort of historical provenance. ». In Athens randomly-selected bodies voted new laws, and other allotted bodies could reject them in a kind of (expanded) judicial review. The other players was first the proposers of new laws, which will exist in any modern (ortho-)democracy. And second the Assembly, the role of which is not sure.
    *** The role of the Assembly anyway could not be easily transposed in a modern society, because it is difficult to establish a general assembly of the citizens in a big society. It is difficult, not impossible: in a modern society the Assembly could be an electronic meeting of all citizens, with checking that all of them hear all the argument between orators ; but it would be very difficult and heavy. A very huge allotted body could be approximate to a general assembly.
    *** I agree fully with Terry Bouricius when he says « I don’t think it is correct to equate a modern mass referendum to the Athenian Assembly vote, since those present at the assembly at least attended a meeting and would hear from advocates and opponents. »
    Let’s suppose Harvey Weinstein undergoing a trial for rape. Some jurors say: “No problem, I saw the media, he is guilty, I don’t want to hear neither witness nor advocate, I am going to leave and to drink out of the court hall”. It would look strange. But we know that a part of voters do not follow the debate in modern mass referendums, when the subject is not the fate of a person but maybe of myriads of persons. They think as the jurors I was speaking about. The vote must be linked to the duty of deliberate – at least silent deliberation after hearing witness and advocates.
    *** The Athenian system cannot be exactly copied in a modern society, and frankly it would be a strange idea. What we must keep is the principle of isêgoria: any proposal has right to be subject to popular evaluation, and therefore any filtering of proposals may be only by popular decision, either by a general assembly or by an allotted body.

    Like

  23. Andre,

    > What we must keep is the principle of isêgoria: any proposal has right to be subject to popular evaluation, and therefore any filtering of proposals may be only by popular decision, either by a general assembly or by an allotted body.

    This ‘principle’ is a guarantee of an a-rational process. In any large group there are bound to be too many proposals for any noticeable number of them to be evaluated based on their merits. No sane person would spend their time and effort giving a fair hearing to a proposal knowing that the chance they make it into a law is, say, 1 in 10,000.

    Thus, an a-rational process is established. The outcomes of an a-rational process are decided either by chance or by manipulation, and, of course, those with resources are much more effective in manipulation than the average person. For example, a proposal written by professionals, with the backing of some well-known authorities and accompanied by a well orchestrated public relations campaign is infinitely more likely to pass a superficial a-rational review than the same proposal without those trappings.

    The bottom line must be that an allotted group has to decide which proposals are dealt with. It is undemocratic for self-appointed constitution makers to decide how government is run. The masses can only agree on general principles – any kind of details must be written by a select group. In a democracy, that group must be allotted.

    Like

  24. Yoram,

    Ironically it is the arationality of the lottery principle that appeals to Stone and Dowlen. This shows that the blind break and invisible hand approaches to sortition have nothing in common.

    Like

  25. @Yoram: “In any large group there are bound to be too many proposals for any noticeable number of them to be evaluated based on their merits.”

    This statement overlooks the other side of the equation. Yes, in any large group there could be many proposals. However, a large group can also form many parallel, statistically-representative councils to evaluate the merits of these proposals.

    In fact, given that the Council of 500 had only a 10th of the numbers in the Assembly, we can safely assume that in Ancient Athens the flow of proposals from innovators was but a fraction of the numbers needed to judge them. Ergo, the council would have been designed for efficiency, not even for the necessity to cope with a flood of proposals. I’d defend the prediction that this ratio would be roughly the same, nowadays.

    “No sane person would spend their time and effort giving a fair hearing to a proposal knowing that the chance they make it into a law is, say, 1 in 10,000.”

    Such chances are absolutely good enough in the start-up sphere to inspire novel ideas all the time. It is clearly a function of the reward which the best innovators can expect to receive of a proposal turns out to produce great results for the General Good.

    Like

  26. 1. Keith says:
    >”the blind break and invisible hand approaches to sortition have nothing in common.”
    They are distinct, but rather than having nothing in common, they are closely interconnected. It would be possible to select a statistically representative sample (Keith’s “invisible hand”) using an extremely complex quota system (super-stratified). But the problem would be trusting the people who write the algorithm, to be impartial. The blind break solves this problem. By using random selection we achieve reasonably good statistical accuracy (depending on sample size) but because we use an arational system (the blind break) we don’t have to trust anyone in designing the rules of the draw. The blind break is a very useful feature of random selection for all kinds of purposes in addition to aiding statistical sampling, primarily protection from manipulation (think of the numerous panels made up of ten magistrates each in Athens, or Renaissance Italian city republics selection of leaders). A good democracy would find many uses for sortition using BOTH the blind break principle and the invisible hand of statistical sampling. Two sides of the same coin… not “nothing in common.”

    Like

  27. Of course we want bright innovators to make proposals. It would be foolish to limit proposal generation to the handful of people in a body (whether elected or allotted). The Greek principle of ho boulomenos (from any who wish) needs to be part of democracy. The question is how to both elicit suggestions and then also filter them to a manageable number. Establishing an agenda for the immediate time period needs to be performed by a mini-public that is free from short-term partisan electoral imperatives and special interest donations. Once an agenda is established any citizen who wishes must be free to participate in formulating responsive proposals. I have proposed this be done through proposal teams or “interest panels” of perhaps a dozen people each, with as many teams being formed as volunteers will fill. I think the small-group deliberation process would improve the proposals, rather than those springing fully formed from a single brain. Because the teams are drafting proposals that they know will have to pass muster before a well-informed mini-public review body and final jury, they have an incentive to seek common ground that will win supporters in drafting. But there are other means that might be used to filter these raw proposals. I am particularly intrigued by the “bag of lemons” crowdsourcing filter mentioned in another post on this site… research showing that people are much more capable of quickly identifying BAD proposals, so the winnowing process might work better by removal, rather than trying to initially identify best proposals.

    In any event… mini-publics must be in charge of agenda setting, review and formulation of final proposals from raw material, and then final adoption or rejection.

    Liked by 1 person

  28. Terry,

    Of course in practice we need the blind break and the invisible hand. My point is theoretical, as the former relies on arationality and the latter on the rational ability of sortition to create a minipublic that has the same characteristics as the target population. Yoram’s post shows how we need to be clear about which property of sortition we are claiming (as Stone and Dowland would find it absurd to use the word arational in this way)

    Like

  29. Keith,
    Okay. And yes, I agree that far too many people with a cursory understanding of sortition conflate these two characteristics… Thus when I speak of the value of a mini-public for adopting laws, they seem to just think “so randomly selecting legislators is good” and then confuse this with the blind break effect for selecting a few individual candidates who are free from the elite selection process… which may or may not be a good idea, but has nothing to do with the representative sample feature that sortition also allows.

    Like

  30. Given the particular use of arational by the blind breakers it might have been better if Yoram had chosen an alternative word.

    Like

  31. *** Terry Bouricius said « It would be possible to select a statistically representative sample (…) using an extremely complex quota system (super-stratified). But the problem would be trusting the people who write the algorithm, to be impartial. »
    *** Actually the algorithm writers would need not only lack of bias, including of unconscious bias, and lack of theoretical / ideological assumptions.
    *** They would need likewise ways of looking into the people’s mind, for instance to distinguish militant characters from non-militant ones.
    *** And they would need likewise a deep knowledge of psychology and society which may be not attained by current social sciences. As sociological example, let us consider the movement of Gilets Jaunes which is shaking the French political system. It is complex, but shows clearly an important phenomenon : the sudden and violent entry into politics of a specific « class », the « subaltern workers » (with the « strange » appearance in the political landscape of forklift drivers and assistant nurses). But this class as entity was usually not taken into account by sociologists, political scientists, pollsters … I doubt it would have been considered by any algorithm writer.
    *** Well, I understand Bouricius was not considering a realist alternative to sortition, and that he used the super-stratification concept as an element of reasoning. But his sentence could be dangerous. I am afraid we could find among social scientists some people who consider themselves as able to write an unbiased super-stratification algorithm.

    Liked by 1 person

  32. @André: “And they would need likewise a deep knowledge of psychology and society which may be not attained by current social sciences.”

    We need to think about this the other way round. In a dynamic world and with sequential decision making, we can proceed from the general to the specific.

    1. General: We can start from the current criticism: “It is only elderly white men who decide politics.”. We can respond and draw a mini-public with stratified elderly/young, census based skin colours and men/women with the the scope to design the mini-public for a specific topic at hand. Experience shows that a half day is fully sufficient for such an exercise. This shuts up the critics and I predict that the resulting General Will determined will be perfectly rational, as a consequence of collective intelligence.

    2. Now, if such a general mini-public decides in this prior round that certain groups’ interests are to be taken into consideration in the actual decision making, we can organise our second mini-public which over-samples those groups and adjusts majority requirements accordingly.

    Voilá! We get democratically legitimate stratification, with zero bias introduced from the designers.

    Like

  33. Keith:

    > there seems to be an unbridgeable divide between those of us who accept the role of competitive markets and inter-elite competition (primarily Hubertus, Andre, Conall, myself), and those who argue for sortition all the way down (Yoram, Simon and yourself).** Some (most?) of the latter group share a provenance on the hard left (you self-describe as a former Marxist) hence your view that representative isegoria (involving competition between different commercial media) is an oxymoron. Simon and Yoram have favoured the role of “public” media, whereas us liberal pluralists would claim that commercial competition has a crucial role to play

    I think we agree that laws should only be passed if they have the informed consent of statistically representative juries/minipublics/mini-publics. That in any case is my view (with the proviso that maybe some laws could be decided by popular vote if in the informed judgement of a jury it was better that that particular law be decided by popular vote rather than by jury).

    The big question then, given that agreement, is how to ensure that the best possible laws, with a real chance of winning the informed support of a jury, are formulated and proposed to legislative juries/minipublics/mini-publics. I think that that question has several good answers, and that there is not just one method (such as an improved version of the Irish Citizens’ Assembly) that is the only one that should be used.

    I do not say that laws should be proposed only by sortition-chosen bodies. I am fine with individuals and experts proposing laws. And I think that some expert-proposing of laws should be publicly funded, and given a legal basis. For example, I am in favour of there being law reform commissions chosen by jury that have the power to propose laws to juries, and of regulatory commissions chosen by jury to in at least some cases have the power to propose laws to juries within their area of expertise. I am also not against professional politicians, but want them chosen by jury rather than popular election (because selection by jury is far more democratic, far better informed, far better for putting candidates on a level playing, and for those reasons also far better for getting the best possible politicians, or at least the ones that are best in the informed judgement of selection juries with an open democratic choice of candidates on a level playing field). I of course don’t want politicians to have the power to decide laws, but if they are democratically chosen by jury, I do not object to them having the power to propose laws to juries.

    With regard to media, the key step for me is that all of the decision-making power over media that is now in the hands of elected politicians be transferred to juries. That includes lawmaking power, the power to appoint regulatory authorities and the boards of public broadcasters, and the power to decide the amount of public funding (if any) provided to public media.

    Keith, as we have discussed before I think Chomsky’s propaganda model of the corporate media is not wrong. I also think that Bernie Sanders is correct about the US corporate media tending to represent the interests of established power rather than those of the people (though he might not quite like that paraphrase of his views on that). On these points perhaps we disagree, but perhaps you do not disagree with ending the decision-making power of politicians over the media, and transferring that power to juries.

    I have never described myself as “hard left.” I have long thought left-right a dubious take on the political spectrum. I think an equally or more valid way to see the political spectrum (if we are to keep it to two poles) is as running from democracy, liberty and equality on one end, with oligarchy, restrictions on liberty and inequality on the other. In this spectrum, Hitler, Pinochet, Stalin, and Mao would all be on the oligarchy, anti-liberty, anti-equality end of the spectrum, not on opposite ends of the political spectrum as some would have it (two of them being on the left and two on the right). Some might say that Stalin and Mao believed in equality, but as Orwell aptly says in Animal Farm about Stalin and perhaps Lenin (and the same applies to Mao): “All animals are equal, but some animals are more equal than others.”

    Liked by 1 person

  34. Simon:> perhaps you do not disagree with ending the decision-making power of politicians over the media, and transferring that power to juries.

    I agree with the first half of your sentence and disagree with the second, as I believe that free competition has an important role to play — not just in providing goods and services but also in democratic politics. You may be right about the dubious nature of the left-right distinction, but your proposal for law-reform commissions and regulatory commissions (which share a common etymology with the original soviet councils and assemblies) sets the alarm bells ringing with liberals like myself.

    Like

  35. Keith:

    > I agree with the first half of your sentence and disagree with the second, as I believe that free competition has an important role to play

    Decisions about media concentration, allocation of frequencies, rights of way for fiber optic cables, protections for journalistic sources including for whistle-blowers, libel laws affecting the media, public funding for media, tax breaks for media, whether there will be net neutrality, privacy rights for citizens such as those using social media, and so on, have to be made by someone. Far better and far more democratic that they be made by juries and jury-chosen public officials than by elected politicians and the officials they appoint.

    Rule by politicians over these things is contrary to rule by the people, the political equality of citizens and the independence of media from politicians, parties and government, and fails to recuse politicians due to the conflicts of interest they have (specifically their interest in media coverage favourable to themselves and to interests that support them, and in not being held to account and exposed in the media for wrong-doing, deception, corruption and incompetence). A further problem is that rule over the media by politicians has a corrupting influence on media, as it gives the media an incentive to go easy on the politicians in power and to repeat their narratives, so that those politicians will choose public policies that preserve or increase media profits, and in the case of the BBC so that politicians will for example keep the public funds flowing (not biting the hands that feed you is a fairly basic concept that I that I doubt is lost on the BBC, and is perhaps part of the reason they spread propaganda and fake news to justify the invasion of Iraq).

    Transferring the decision-making power from politicians to juries regarding the media does not mean an end to free competition in the media.

    (I happen not to agree with you that the rule of a few very large profit-driven corporations over the media is a form of “free competition,” and I also think it better that media have a mandate to tell the truth, expose falsehood and hold the powerful to account, rather than their sole mandate being to maximize profit. But that is a different topic from who decides the laws that govern the media, and who chooses the regulatory and BBC officials now chosen by the government, or by the PM and her cronies/cabinet.)

    Keith:

    > your proposal for law-reform commissions and regulatory commissions (which share a common etymology with the original soviet councils and assemblies) sets the alarm bells ringing with liberals like myself.

    I don’t see why that should be so, nor do I see a common etymology. Do you really prefer that regulatory authorities and those in charge of the BBC be chosen by the government rather than by juries? They must be chosen by someone.

    Law Reform Commissions are typically chosen by the politicians who hold power, as are regulatory commissions. Better and more democratic that they be chosen by jury. Also, the only power I am suggesting they have regarding laws is an advisory one, in particular the power to propose laws to juries, which will be decided by those juries after a fair hearing on a level playing field.

    I thought you were in favour of harnessing elite talent for the formulation of laws, and not against it?

    A jury-chosen law reform commission would be elite or aristocratic in the sense of being chosen on the basis of merit, as judged by juries.

    I appreciate that workers choosing who runs the factories they work at, (as was the case with the original Soviets after the workers took over the factories, and until that was displaced by the one party police state created under Lenin), may be a disturbing thought to you, but that is a totally different thing from public officials and law reform commissions being chosen by jury rather than by politicians.

    Lenin and Stalin of course thought it was a great idea for public officials to be chosen by the government, and would not at all have liked the idea that they be chosen by randomly sampled juries of the people, with those juries being administered independently from the government and the party.

    Like

  36. Simon is an advocate for a whole separate arm of sortition reform (which I also support)… using juries to select executives, administrators, judges, commissions, and other government officials that require a degree of expertness that ordinary citizens typically do not have. As long as mini-publics can select and oversee such experts, democracy is possible. This is not in lieu of using mini-publics for making legislative and other big policy decisions, but rather an extension of sortition into areas where drawing from the pool of the entire population isn’t optimal. There can even be a third tier…. a jury approves a pool of qualified individuals from which final appointees are randomly selected.

    Liked by 2 people

  37. Simon/Terry

    Since publishing Gerard Casey’s Freedom’s Progress — a 964-page volume on the history of political thought — I’ve become more and more sympathetic to libertarian anarchism. Casey’s position (loosely aligned to von Mises, Rothbard et al) is that competitive markets are not just essential for economic efficiency, as the right for individuals to choose the newspapers they wish to read (and, more reluctantly, the politicians to represent them) is a fundamental moral imperative. (The individualist perspective of such thinkers is clearly anathema to Chomskyite and former Marxist collectivists like yourselves.) Liberals do now acknowledge that the freedom of the pike necessitates protection for the minnow but view the latter as a necessary evil. Given the resultant need for the state, and the agonistic relationship between its component individuals, majority rule has to be the decision mechanism (supplemented by constitutional safeguards for dissenters and other minorities), hence my enthusiasm for sortition-based juries as the optimum way to decide the outcome of proposals to change the laws.

    I think the gulf between liberals and collectivists is such that we are always going to talk past each other on anything else, so would appeal to you again to focus

    Like

  38. sorry, last para cut off, should be:

    I think the gulf between liberals and collectivists is such that we are always going to talk past each other on anything else, so would appeal to you again to focus on the one thing we agree on. Having said that, I’m entirely happy that the conclusions of royal commissions (etc) be determined by large random-selected juries, so long as they are under judicial supervision and subject to forensic, rather than deliberative, rhetoric (this was my original proposal for an alternative to the Brexit referendum https://www.opendemocracy.net/can-europe-make-it/keith-sutherland/brexit-lottery). This rules out the jury setting its own rules and appointing its own advocates, and the same would apply if the rules and advocacy were determined by another randomly-selected body. I appreciate that this is a form of Aristotelian politeia, rather than (extreme) democracy.

    Like

  39. *** hubertushofkirchner suggested (February 13) a sequential set for stratification : first, to « draw a mini-public with stratified elderly/young, census based skin colors and men/women ; second « if such a general mini-public decides in this prior round that certain groups’ interests are to be taken into consideration in the actual decision making, we can organise our second mini-public which over-samples those groups and adjusts majority requirements accordingly ».
    *** I was considering the Bouricius hypothesis of pure stratification by social scientists( not the use of stratification in steps of allotment). I objected that cannot give a body which is the mirror of the People along all relevant dimensions, and which has therefore democratic legitimacy.
    *** There are in France today salient differences which are not gender or skin color. For instance see the class of « subaltern workers » which seems the kernel of the Gilets Jaunes (note that one of the most known members, Priscilla Ludosky, is a black-skinned woman). And the difference of religious origin (Catholic, Jew, Moslem, Protestant – alphabetic order). And the difference in views, with very different shades of feminism, for instance; and differences in the intensity of feelings between activist characters and ordinary people.
    *** If a first-step sample, selected by some social scientist with statification along gender and skin color, rejects further stratification along class or religious origin, the members of the dissatisfied categories will reject this decision. And it will not possible to oppose them with the idea of democratic legitimacy, because there will be not proof that the selected sample is a mirror of the People.
    *** Hubertus considers « the current criticism: “It is only elderly white men who decide politics.” ». Criticisms about the disproportionate weights of social classes and ethno-religious groups are at least as strident in today France (except maybe in some circles under heavy anglo-saxon influence).
    *** The idea of democratic legitimacy is strong in France. It would help the power of mini-publics which could say they mirror the People. Any selected body which could not invoke this legitimacy would have a much weaker weight, whatever its epistemic merits.
    *** Given the situation of present-day Western societies, I think that the legitimacy of the political power is paramount. Maybe it is especially true for France, but I guess that it could be true for other countries.

    Like

  40. Andre: Please treat my example as an example. Each country will have a different set of attributes to consider for the boot-strap stratification. In Austria, we find that gender is on everybody’s mind, followed by age and income.

    Andre wrote: “If a first-step sample, selected by some social scientist with stratification along gender and skin color, rejects further stratification along class or religious origin, the members of the dissatisfied categories will reject this decision.”

    I am of the opposite belief, and we clearly need to observe this in practice for actual outcomes for these two heavy “ifs”. My expectations on how this will play out, as follows:

    “Would a deliberating boot-strap sample decide against a relevant stratification for the decision at hand?” I expect that a good deliberative process would come to the “right” choice in this matter just as in the actual subject matter.

    Second question: “Even if the boot-strap representative sample decides against some further class or religious origin stratification: Given that these classes or religions will be randomly represented anyway, on what rational grounds could they reject the second samples’ decision?”

    Giving in to some particularist group’s exaggerated sense of self-importance does not lead to better societal decision making for the whole.

    Like

  41. *** If stratification is a step in a whole lot process, so that the selected body is mirroring the People, ok nobody will be entitled to complain of bias in the governing body. I was speaking of a model of stratification by social scientists without lot (or with lot but on a voluntary basis – we know that in today Western societies it would lead to a strong lack of statistical representativity along some dimensions).
    *** That said, a stratification step in a lot model would have a drawback. Hubertus says « giving in to some particularist group’s exaggerated sense of self-importance does not lead to better societal decision making for the whole ». Yes, some groups will have an exaggerated sense of self-importance. And some other groups will be angry not to be officially recognized.
    *** I am not sure of Hubertus stance : does he agree that the mini-public must mirror the People? i.e. be a « representative sample » along any dimension.

    Like

  42. Andre:” does (Hubertus) agree that the mini-public must mirror the People? i.e. be a « representative sample » along any dimension.”

    Let us assume, for argument’s sake, (1) that The People is a quite distinct Higher Being than just the sum of all the individual people constituting it. (2) that this Higher Being has its own General Will, i.e. decisions for actions which intend its collective Greatest Happiness but which may be quite distinct from the decisions which its average members believe to bring themselves individual happiness. (3) that this Higher Being possesses a Collective Intelligence which makes verifiably better decisions for the People than just the average of the individuals’ decisions.

    In this framework, it is self evident that for good decision-making, some mechanic mirroring of the people in an allotted mini-public is not the question. The true question is, (1) how to identify all those who possess decision-relevant information (including collective predictions), how to (2) sample them for the mini-public (oversampling if needed), (3) how to capture this knowledge to a reasonably full extent and last, (4) by which procedure to aggregate the individual judgements to discover the General Will.

    Any mirroring rule for an allotted mini-public beyond (1) is a populist placebo to make the true process palatable to the methodically ignorant public (including journalists). Today’s “democratic” players know exactly how to profit from the madness of crowds using populist methods but next to no-one has any good understanding (not to say ignorance) of what collective intelligence is, how to harness it with appropriate methods, and just how much different and better its decisions can be.

    Like

  43. *** It is clear. The model that Hubertus advocates is basically different from what I call “ortho-democracy”, modern version of dêmokratia. Hubertus thinks it is superior, from the point of view of “collective intelligence”.
    *** I am not sure of the epistemic superiority Hubertus claims. I am afraid his model will give too much weight on the elite sensitivities, distorted by elitist feelings against the ordinary citizens. Well, Hubertus will say that I think too much about “ifs”, and I acknowledge we must wait to see two countries not very different and working along the two models to see which epistemic differences appear.
    *** But there is something I am sure about. Hubertus’ model, with its implied political inequality of citizens, will be suspect of bias towards the specific moral and material interests of some parts of the civic community, and, whatever theorists may discuss about, it will lack legitimacy, whereas the ortho-democratic system could easily get a strong legitimacy. And I think that strong legitimacy is paramount to rule a modern society, where traditional deference is low, where inequality must be legitimated by a very strong ideology. I doubt Hubertus discourse would be strong enough. If this model is established, it think it will be an easy target for “players knowing exactly how to profit from the madness of crowds using populist methods”.

    Liked by 1 person

  44. @Andre: “with its implied political inequality of citizens”

    This lacks any supporting argument. How exactly does the method described imply political inequality and to what part of citizens, specifically?

    I am very wary of a metaphysical debate about a mere construct “legitimacy” without offering falsifiability of claims and without connection to the actual purpose of a functioning democracy.

    The true and practical legitimacy of the method I propose will derive from general elections, in the percentage of voters electing the party offering it, hence deciding that this is the method they want.

    Like

  45. *** If the sampled body is not a mirror of the People, that would mean that some kinds of citizens are more represented that others, which implies political inequality of citizens. Which kinds of citizens will be under-represented and over-represented, that would need a specific study by social scientists.
    *** I was not engaging in « a metaphysical debate about a mere construct “legitimacy” », I was mentioning the mental strength of the idea of democratic power implying perfect political equality of citizens. Maybe I am somewhat France-centered, and in France this idea is especially strong. But the same fact may be present in many countries, with different degrees.
    *** Ok, your model can get indirect legitimacy, through the vote of citizens where every citizen will be equal. The same reasoning could be adduced to a system with life-president with all powers, for example. But such indirect democratic legitimacy is weaker than the direct democratic legitimacy. Maybe the British Parliament would like to cancel the Brexit voted by referendum, and along the judicial power it would be constitutional ; but I doubt the British Parliament will dare.

    Like

  46. @Andre: Are you conflating “legitimacy” with the quality of the decision it produces?

    The root issue with the Brexit referendum was not the legitimacy of the People or the British Parliament deciding. Remember Art. 6 of the rights of Men & Citizens (1789): “All the citizens have the right of contributing personally or through their representatives to its formation.”

    The issue was the bad quality of the discovery of the General Will. Referenda are visibly manipulable by slogans and British Parliament decisions are visibly distorted by conflicting party tactics.

    Legitimacy as measured by a voter percentage, at least, is a fact.

    Like

  47. *** Hubertus writes : « Referenda are visibly manipulable by slogans and British Parliament decisions are visibly distorted by conflicting party tactics. ». Alas, he may be right.
    *** But what I said is that more direct popular power and clearer political equality means much stronger « legitimacy » . The British Parliament, even without party tactics, will hesitate before canceling the result of the referendum. In France, the direct election of the President is thought a bad idea by various political thinkers, but no politician dares to propose a more indirect model. it is not my subjective feeling, it is a fact.
    *** Therefore I may conclude than rule by a mirror sample, without any hint of political inequality, will have the stronger legitimacy we could imagine.
    *** A model of hereditary aristocracy by twenty lineages could have many advantages. Maybe it could be a good system. But only in science-fiction, because it contradicts political equality, and, as I said, in the modern world only a very strong ideology is able to contradict political equality.

    Like

  48. Andre, I reduce our main difference:
    1. For you, legitimacy of a decision results from maximising equality of participation of citizens, with your ideal of “representativeness” using force if necessary: The specific process.
    2. For me, legitimacy of a decision results from maximising the happiness of the entire citizenry, where individuals decide what is best for society: The quality of a decision.

    Let’s look at Brexit or Trump: Can we really ignore the quality of the decision only as long some ideological rule has been followed? Clearly no, because any bad decision will necessarily have do be done again (or waited out).

    Like

  49. I agree with Andre that democratic legitimacy has to take priority over epistemic considerations — especially when the ignorance and folly of Brexit and Trump supporters is presumed to be self-evident. We need to be very careful that sortition does not become associated with an anti-populist political perspective, however self-evident the “rightness” of that perspective may be in some people’s eyes. There is a serious risk of just trading in one form of elitism for another.

    Like

  50. Keith: “the ignorance and folly of Brexit and Trump supporters is presumed”

    I emphatically point out that I presume no such “ignorance or folly of supporters”. I was talking about bad process. No more, no less.

    With different words:
    The two supreme “legitimacies” which the representative system offers today, an elected parliament and a general referendum, did not settle the debate on the Trump and Brexit matters.

    This shows clearly that the kind of legitimacy specified by Andre is insufficient to satisfy free willed individuals. True legitimacy would produce solid General Acceptance of the settled decision, regardless of whether one voted for the outcome.

    Like

  51. Thanks for the clarification Hubertus — I guess the problem is that you chose to name check Trump (as opposed to any other elected politician).

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: