The second part of an article in Telos by Olivier Galland, sociologist at the CNRS, and Dominique Schnapper, researcher at the EHESS and an honorary member of the Constitutional Council. The first part is here.
2. The choice of those of those responsible for the organization of the discussions, for informing the people convened by selecting the “experts”, for helping them to form an opinion, for writing and disseminating the conclusions must meet specific conditions as well. Who will select the people in those roles and what will be their legitimacy for making choices which may guide the conclusions of the deliberations? On this issue, it is important to distinguish clearly, when organizing the deliberations, between testimonies of scientific experts and those of other actors – activists, representatives of the state, trade unionists and business people. A distinction must be made consistently and meticulously between objective data – even if it is controversial – and opinions or beliefs which are a matter of ideological or political convictions or personal or group interests. Such a distinction is necessary so that the members of the conventions would be able to form judgement which is as informed as possible, especially in an era where mistrust of science has increased dangerously.
The members of this type of conventions can make political choices, but when they do so, they must be fully aware of the reasons for their choices and of their full implications. It is also necessary to shield them from pressure and influence that they may be subject to by activists and lobbies outside the convention. The experience of the CCC seems to show that risk is very real. A trial jury must be protected from outside influences in order to make its judgement impartial, but how can “a citizen convention” be protected against pressures originating from activists and interest groups?
3. However, the most decisive is the definition of these “conventions”, which are unmentioned by the constitutional texts and the democratic tradition: except for their makeup and their function, what is their purview, what is their legitimacy?
The answer to this fundamental question is that meetings of citizens chosen “at random”, cannot have a role beyond an advisory one. Their conclusions and their proposals cannot be transmitted “without filtering” to the representative institutions of the republiic and in this way replace those institutions in their role of writing legislation and overseeing the actions of the executive. These citizens are neither “the people” nor “representatives of the people”. They have devoted some time to trying to understand and discussing public problems. But their conclusions do not have more legitimacy than those of a group of competent people, or those deemed as competent, who publish an opinion piece in Le Monde or on a blog (a more recent medium) and who thus contribute to the public discussion. The fact that we can think, optimistically, that the citizens have acquired some sort of competence through their discussions cannot accord them any legitimacy in the process political decision-making. Earth scientists in academia, whose competence is not only higher than that of the citizens, but of a different nature, do not dictate their decisions to the rulers, even if their advice is sought in order to “enlighten action”, as Durkheim had put it.
In the past, democracies often created commissions with the declared intention of “resolving” a problem, that is, according to the known pattern, to “bury” them. But it also happened that some commissions, made of experts usually appointed by the government, had in fact enlightened public discussion and in this way contributed to addressing a political problem. It is at the UK that such commissions have been often effective in this sense.
In France, there was the commission on nationality in 1987 in which one of us (DS) participated. The broadcast of its hearings on television (at the time it was the indispensable medium) had a certain effect on the terms of discussion, the report was read and cited, but its members never claimed that their proposals could replace, or even guide the decisions of the democratic institutions and they often said that. There was no control by the members of the commission of the law that was adopted in 1992. It is true that social networks did not exist in 1987…
Today, “elites” are discredited to the point where it seems that a commission of this type, appointed by the government, chaired by the vice-president of the State Council, its members being academics, high officials and some “witnesses”, i.e., a commission of “experts”, would its voice heard in public discussion. If more recently the report by Nicole Notat and Jean-Dominique Sénart, which was informed by numerous consultations, has enriched the discussion about the role of businesses in society, it appears to be too technical to be useful in political discussions. In any case, the law adopted by parliament following the report has only partially followed the report’s conclusions.
Citizen “meetings” can contribute to public discussion if they follow meticulously the conditions we have laid out, but they cannot undermine the legitimacy of representation.
Adam Cronkright
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Simon Threlkeld
Nick Coccoma
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John Burnheim
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Roger Knights
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Joshua Laferriere
Wayne Liebman
Yoram Gat
Oliver Milne
Equality by lot 
There are some wild unqualified claims in this piece which I regard as ridiculous.
“The fact that we can think, optimistically, that the citizens have acquired some sort of competence through their discussions cannot accord them any legitimacy in the process political decision-making.”
My emphasis. I’m uninterested in the views of high falutin people who smuggle status quo bias into their discussions via such mechanisms, whether they understand that that’s what they’re doing or not.
All mechanisms of representation are flawed in the same way that all maps other than the territory are not the territory. Sortition is a flawed mechanism of representation. That’s how it’s used in juries and that’s how it can be used in policymaking parts of government.
Then we can discuss the pros and cons of different configurations of different institutions.
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A good example of “motivated reasoning” here. They know their conclusion, so then string together a series of unsupported assertions that aren’t even arguments and claim that they are simply stating the truth about representation.
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The authors are explicit elitists. Their disdain for the average citizen is hardly disguised. In this sense they are a bit more consistent and sincere than many supposed reformers, who purport to aim for a democratic society, but are still very much attached to the elitist status quo and still see this status quo as a basically legitimate, if somewhat flawed, way to arrange society.
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The points they raise at the start, about who gets to inform a citizens’ assembly, are well made, but the rest of the article seems to be a symptom of chronic theory-poisoning. There’s clearly an underlying idea of ‘legitimacy’ here which is something other than ‘worthy of being trusted with power’, in which elections aren’t just a flawed and unreliable way of whipping an elite into line but produce a magical ‘legitimating’ relationship of ‘representation’ between people and rulers. Galland and Schnapper completely miss the point of sortitional institutions, which is not that the people they select are any more trustworthy than anybody else but that the institutions themselves are trustworthy by design.
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The authors have analysed the CCC from the perspective of democratic theory and come to the uncontroversial conclusion that randomly-selected policy proposers have no democratic legitimacy. This being the case the policy proposals of the CCC have no greater weight than those of a think tank. This has nothing whatsoever to do with elitism or trust, it’s just a question of the arguments that constrain the mandate of descriptively-representative groups to voting and the need for allotted juries to be informed in a well-balanced manner. If you don’t agree with this then you should respond with arguments drawn from democratic theory, rather than just calling them names — which makes us us all look very silly and explains why serious theorists avoid this blog.
Oliver:> There’s clearly an underlying idea of ‘legitimacy’ here which is something other than ‘worthy of being trusted with power’.
Absolutely! The view that democratic legitimacy is to do with trust is purely the conceit of this blog — I’ve never come across it anywhere else. Democracy is when the people have power, rather than trusting those who do.
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Keith:> Democracy is when the people have power, rather than trusting those who do
Where this falls down is that ‘the people’ cannot act as an agent wielding power, and it wouldn’t be good if they/we did. Even your own proposed legislative system, which I like and which has many merits, doesn’t put ‘the people’ in power – it provides a sort of scale model that _simulates_ the deliberations and decisions that ‘the people’ might make were it practically possible for everyone to participate fully and equally in the legislative process.
But even if everyone _could_ participate like this, ‘the people’ still wouldn’t be in power, because they are and would continue to be divided on most topics. Every political decision has winners and losers, and sometimes a given citizen will be one and sometimes the other, but in every case it is not they but the great mass of _other_ people who decide which. One might as well describe ‘the market’ as democratic because it determines prices through the dynamics of the whole mass of consumers and producers. The question of whether a person would see such an ideal and universal democracy as meaningfully legitimate would hinge on whether they trusted the mass of their fellows with the power to make those decisions, and the question of whether they _ought_ to see it as legitimate must therefore depend on whether they would be right to do so.
I say ‘meaningfully legitimate’ here because there’s always the possibility that they might say, bowing to theory, ‘Well, I guess it’s democratically legitimate, but nevertheless I don’t trust the mass of my fellows to make these decisions, and would rather live under some other system that I _do_ trust.’ This kind of ‘legitimacy’ is legitimacy in name only because it doesn’t bring with it the commitment to the system that belongs to any legitimacy worth a damn. If the majority of the people would respond ‘Oh, thank God’ to the replacement of the system, they don’t really see it as legitimate, even if they would all have begun their denunciations of it with ‘Well, I guess it’s democratically legitimate, but…’
Accept this, and it becomes clear that trust is both necessary and sufficient for empirical legitimacy, and hence that trustworthiness is both necessary and sufficient for normative legitimacy. The ‘democratic’ part is then simply a matter of whose trust you’re concerned with earning – namely, everyone’s, rather than just that of (say) a hereditary or property-owning elite. A democratically legitimate system is just one we can all trust. The question of democratic institution design is therefore the question of what sorts of institutions are trustworthy by everyone in the long term.
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I’m with you on the name-calling, though. We should try to steer clear of that.
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Oliver,
As we all know the word demokratia was coined by the Greeks to refer to a system in which all citizens make political decisions by voting in the assembly of the people. There was no sense of the people as a (single) agent, they just raised their hands and whichever side had most votes got to win. As to whether they “trusted” this system I’ve no idea — especially as it was overthrown a few decades after Cleisthenes’ reforms.
Large modern states cannot be governed as a direct democracy, hence the need for representational mechanisms such as election and sortition. The concern of democratic theorists is how best to achieve political equality (a normative project) using representative mechanisms. Whether or not the outcomes are right in some epistemic sense is not central to democratic theory, and the issue of trust is only really relevant in the sense that low levels of trust are likely to destabilise the political system. I’m afraid that your focus on trust does put you in the position of endorsing Yoram’s claim that the Russian and Chinese political systems are more democratic than multi-party electoral systems.
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Keith,
Oliver was not endorsing Yoram’s claim at all. Oliver was writing above about what constitutes LEGITIMACY, not what constitutes DEMOCRACY. Because we (and most people it seems) believe democracy is legitimate, it is easy to conflate the two, but that confuses our discussions. Yoram may try to define democracy as being legitimate and trusted, but I don’t know anyone else who does.
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Keith,
Terry has it right. I probably added to the confusion by using ‘democratic legitimacy’ two ways – both in the sense you mean, and in a weaker sense. That weaker sense was intended simply to distinguish it from, say, aristocratic legitimacy, on the basis of the portion of the public to whom the system is or is not legitimate. In this weaker sense, a system is ’empirically aristocratically legitimate’ if the aristocracy by and large trust it, and ’empirically democratically legitimate’ if the whole public by and large trust it. But in this weaker sense, ‘democratically legitimate’ does not mean ‘democratic’, and so I should probably have chosen a different way of putting it.
Anyway, my claim that empirical legitimacy is about trust and normative legitimacy is about trustworthiness does not in the slightest commit me to calling the Russian or Chinese systems of government legitimate, never mind democratic! One might reasonably argue that the Chinese government enjoys empirical legitimacy among the so-called ‘Han’ population of China – the Russian government among its people, maybe not so much. But neither enjoys normative legitimacy on my view, because both political systems not only incentivise massive abuses of state power, but rely on them to maintain their structure. That means they’re not in the least bit trustworthy, and their public’s trust in them, such as it is, is misplaced.
All of us here, with the exception of Yoram, believe that only sortitional-democratic systems of government (of one kind or another) can be normatively legitimate. The difference between your position and mine is that you – please correct me if I’m wrong! – take that to be analytically true, whereas I think it’s an empirical finding rooted in human nature and the structural incentives of power.
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Terry/Oliver
The word legitimate means “according to the law”, so that would apply to every form of government imaginable and has nothing whatsoever to do with trust. Legitimacy can be extended from the letter to the spirit of the law, so including sortition in the system of governance is democratically legitimate iff it can be demonstrated to enhance political equality (the principal democratic norm), irrespective of whether or not the resulting system has outcomes that people approve of. This why the losers in an election still (until recently) regard the ballot as legitimate, so long as it is conducted according to the law (warts and all). There are no absolute standards of legitimacy (it has nothing to do with human nature or, on the other hand, the divine right of kings) — the concept is only meaningful when qualified by an adjective (democratic, aristocratic, monarchical or whatever).
It really is that simple!
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Keith,
You seem to be working with a very unusual sense of ‘legitimacy’ – one quite as odd as Yoram’s ‘democracy’. To crib shamelessly from the SEP article on political legitimacy:
‘Weber distinguishes among three main sources of legitimacy—understood as the acceptance both of authority and of the need to obey its commands. People may have faith in a particular political or social order because it has been there for a long time (tradition), because they have faith in the rulers (charisma), or because they trust its legality—specifically the rationality of the rule of law’
Only one of these three has anything to do with law – per Weber, tradition and charisma may provide descriptive/empirical legitimacy for social orders that feature little or none. Now you might be claiming that *normative* legitimacy derives from the spirit of a democratic legal order, but that would seem to be in tension with your claim that there is no absolute standard of legitimacy. Aren’t you committed to the really legitimate legitimacy being democratic legitimacy, with aristocratic and monarchical forms being illegitimate?
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Yes, I was relying on etymology (“according to the law”). Of Weber’s three meanings, tradition would tend to be connected with the etymological definition, even if the law is not formally recorded. The legitimacy of Chinese rulers was derived from the mandate of heaven, so a ruler who did not govern according to such “natural” law would be deemed illegitimate (absolute monarchy in Europe was based on a similar divine mandate).
>Now you might be claiming that *normative* legitimacy derives from the spirit of a democratic legal order
That would only be true of democratic legitimacy; one could choose examples utilising other adjectives. And Locke’s introduction of the principle of consent has no intrinsic connection with democracy. Yoram has pointed out that some autocratic regimes enjoy high levels of consent, so that would increase their legitimacy (but not their democratic status). And charismatic legitimacy depends entirely on consent (as charismatic rulers make the law up as they go along).
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I should be a little more clear – when I talk about your views on ‘normative legitimacy’, I’m talking about which and what kind of states you believe *merit* their authority and *are owed* obedience. So my question is: do you believe that a state that has, let’s say, aristocratic legitimacy but no democratic legitimacy (to use your terms) merits its authority and is owed obedience?
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Oliver,
What you’re asking is that we take off our political theorist’s hats and say what forms of governance we like. That would be OK if we were having a chat in the pub but I don’t think my personal preferences merit discussion on a forum like this. I’m sure all forms of governance have their pros and cons, but the only one I’ve experienced is liberal democracy, so I’m in no position to have a view on aristocratic governance. The trouble with the notion of “normative legitimacy” is it takes us into Rawlsian territory with its conflation of legitimacy and the political preferences of professors at liberal arts colleges during the second half of the twentieth century. I think I’m the only theorist in our department who has never read Rawls (on principle) — my take on political theory is Aristotelian/Oakeshottian. Oakeshott was once asked for his views on the European Union (or whatever it was called at the time) and replied that he had no (professional) concern in such matters (although he was a well-known conservative sceptic and regular reader of the Daily Telegraph).
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Keith,
Well here we have another fundamental difference in perspective! It seems a little odd to decry political advocacy by political theorists ‘on a forum like this’ – i.e. one dedicated to political advocacy by political theorists for sortition. But more broadly, why would we theorise political life at all, particularly a mostly-unrealised part of it like sortitional government, if not to understand what is right and wise and wrong and dangerous in it? And how could we begin to theorise it without our focus being guided by our evaluative instincts, our suspicions, and our sense of what is morally important? It seems almost dishonest to pretend that we can separate our preferences from our theorising. Your excellent paper on isegoria and isonomia, for instance, is plainly motivated by an enthusiasm for those values – it seems disingenuous to pretend that, in writing it, you set aside your commitment to them. It’s wise to be wary of one’s own biases, and the limits of one’s own epistemic position, as a means of error-correction within a normative worldview. But to pretend those biases and limits are eliminated in one’s theorising, and that one steps outside one’s normative worldview when engaging in it, has quite the opposite effect.
As for your claim that you’re ‘in no position to have a view on aristocratic governance’ because you have never experienced it first-hand – this is simply absurd. As political theorists, it is our job to understand how power dynamics work in systems of government, and the implications of those dynamics. If you can’t bring yourself to admit the effects of your preferences on your work, you can at least allow your professional knowledge to inform your preferences!
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Oliver,
I view EbL as a forum for the study, not advocacy, of sortition — hence my liking of Yoram’s proposed name change to “Equality by Lot: The Democratic Potential of Sortition”, as the conclusion might be that sortition has only a limited potential for democratic reform. Or it might be the magic bullet — who knows?
You’re right that the normative (aka Rawlsian) and Aristotelian approaches to political theory are fundamentally different. Theorists in the former camp sit down in their armchairs, devise thought experiments as to what would constitute social justice (or whatever) and then devise institutions to deliver the goods. Aristotelian political theorists, by contrast, work the other way round — they study existing and past political practices and then abstract (or adumbrate, as Moses Finley put it) the normative principles that characterise such regimes and develop ideal types.** So aristocracy is rule of the best, whereas the guiding principle of democracy is political equality. What I’ve tried to do with my work is to study what sortition can and cannot do in order to increase political equality. Whether the norm of political equality is “good” in an absolute sense is not part of my job description — if you want my personal view, I guess I would say that it is a case of the curate’s egg.
** Aristotelian and Rawlsian ideal types have nothing in common — the former uses the Weberian sense of the term.
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Keith,
> ‘normative (aka Rawlsian)’
I heartily reject any accusation of Rawlsian ideal-theorising! My approach is as empirical and ‘Aristotelian’ as yours. Aristotle himself, not famous for eschewing normativity, certainly didn’t shy away from claiming a mixed constitution was the best possible arrangement, and arguing for it at length in his scholarly work. Was he not doing ‘Aristotelian’ political theory, in your view?
> ‘What I’ve tried to do with my work is to study what sortition can and cannot do in order to increase political equality. Whether the norm of political equality is “good” in an absolute sense is not part of my job description — if you want my personal view, I guess I would say that it is a case of the curate’s egg.’
I can see how that might be a coherent theoretical enterprise – to isolate a certain subset of your own values and bracket the others in order to assess things from that subset’s perspective. But one thing still confuses me – why adopt that approach rather than looking at the subject matter in the round? This is not meant as an accusatory question – I’m interested to know the principles motivating your approach.
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Fair point about Aristotle, but (like you) his starting point was empirical, not the armchair. Like him, I would want to combine the best points of each ideal type.
>isolate a certain subset of your own values and bracket the others in order to assess things from that subset’s perspective
Rather than seeing it as a subset of my values, I take the view that democracy is the spirit of our age, so we study sortition to see how it can help improve political equality. To my mind those who claim that sortition has epistemic value are using an aristocratic criterion (albeit while claiming that diversity trumps ability).
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