Guillaume Drago, a law professor at Université Panthéon-Assas Paris II writes [original in French] the following in the Catholic monthly journal La Nef.
A democratic rock bottom
It is the time, it seems, of “participative democracy”, which has been described as “the collection of methods aiming to involve the citizens in the process of political decision making” [L. Blondiaux, on the site vie-publique.fr], and which could be defined as the direct participation of citizens in the creation of rules, and in particular legislation. It surely involves that when it concerns the “Citizen Conventions” for the climate and for the end-of-life question.
The composition of these “conventions” is the product of allotment which is supposed to be representative of the French population. The institution which organizes these conventions is the Economic, Social and Environmental Council (CESE, pronounced “se-zeh”), with a “governance committee” which, it is easily understood, is there to steer the discussions in the desired directions and an “oversight body”, for the end-of-life convention [The role of the oversight body is defined on the site of the “convention”: “The oversight body is tasked with ensuring respect for the essential principles of the Citizen Convention: sincerity, equality, transparency, respect for the speech of the citizens. The body also verify that the conditions guarantee the independence of the Citizen Convention”.] The assessment of a legal scholar of the use of “citizen conventions” cannot avoid being severely negative, for several reasons.
The first is that these bodies are neither constitutionally nor legally recognized. No provision of our constitution discusses such a device for preparing or for participating in deciding laws or regulations. The law is silent on this type of device and it is unclear why the members of parliament would wish to give up some of their legislative power in favor of the citizens whereas those citizens have duly elected the members of parliament in order to represent them… For those two “conventions”, a simple letter of the prime minister to the president of the CESE is all that justifies their existence. They are then associated with what one of the sites of the “conventions” calls the “third Assembly of the Republic, and a legitimate player acting as an independent constitutional assembly, whose task is to be a juncture of citizen participation”. Good heavens! Such responsibility!
The democratic legitimacy of these “conventions” is therefore the weakest that exists: sortition, that is the rock bottom of democratic representation with a complete opacity of the workings of the allotment: no normative basis, not even a regulatory one, which would allow associating a minimum of administrative action with this process of consultation. But above all behind the appearance of freedom of discussion and of decision-making, strongly leading questions and, according to the reactions of some members of the “conventions”, a process of manipulation by the experienced “moderators” who know perfectly how to lead opinions to the ideas and objectives that are sought.
The outcomes of this type of “convention” are subject to the same critique: if those paticipating in these meetings have no legitimacy, neither democratic, nor even scholarly, it is clear that their conclusions and recommendations have no normative value, not even as testimony. No rule can be the outcome of such a process. It is therefore astonishing that the President has undertaken upon setting up the “Citizen Convention for the Climate” in 2019 the following commitment: “I commit that whatever comes out of this convention will be submitted without any filtering to a vote in Parliament, to a referendum or to be direct regulatory application” (press conference, April 25th, 2019). Luckily, this intent was not translated into actions and decision, which allows hope that the same would be the case with the “End-of-Life Convention”. The worst is never certain, but we must above all underline the fact that none of the participants in these “conventions” have received a mandate from anyone, and haven’t given account to anyone who has such a mandate. We must draw the clear conclusion that the proposals of these “conventions” bind no one: neither public officials, nor the national representatives, nor the citizens who have not in any way been represented.
The main critique of the “convention” procedure is that it is not representative. Our democracies are founded on the democratic legitimacy of their leaders, executive and legislative, that is on the principle of elections, well organized and secure. These are the procedures which we must reinforce: the referendum, the appeal to the sovereignty of the people, and the elections of parliament.
The rest must be understood for what it is: a bypassing of the will of the sovereign people, hence a degraded democracy, or in other words, a fraud. The French want to have their constitutional role in being directly consulted with. They do not want to be bypassed via the procedures of illusionists.
Filed under: Academia, Applications, Press, Sortition |
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Equality by lot 
We are likely to hear this objection increasingly. Moderators are clearly unacceptable for a decision-making body (on the quis custodiet principle), but this has strong entailments for a body that is seeking to follow the principle of equal deliberation, especially if speakers are supposed to accurately represent the beliefs and preferences of their virtual constituents.
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Macron’s use of citizens’ conventions is clearly a tactical play to neutralise the power of the legislature against the executive, and Drago’s criticisms of the selection and moderation processes have some legitimate bite to them. Still, it’s interesting he doesn’t comment on the way the CCC’s outputs clearly didn’t align with what Macron, their convener, wanted from them – a sign the process has a certain degree of independence, at the very least!
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Three observations about this article.
*** Guillaume Drago criticizes the institutional arrangement of the “Conventions”, which would organize manipulation under the cover of moderation or expertise. These criticisms deserve examination.
*** He says that the Citizen Conventions lack basis in the constitutional or legal texts. He is right, but he does not want to see that, under the politician maneuverings, it implies a political mutation with a new idea of legitimacy: the allotted citizens speaking as the People, an idea which was one of the pillars of the ancient dêmokratia.
*** I am afraid there is some lack of ingenuity in Drago’s discourse. About the end-of-life issue, studies of opinion establish a discrepancy between the majority of French citizens which accepts more or less the idea of euthanasia, and a smaller part of them, especially catholic, which rejects the idea. Guillaume Drago knows that, and he must guess that his side will lose probably any referendum, as any Convention deliberation, even the best organized one. And this will not change until a spectacular reversal in the popular sensitivity, which, if possible, would need time and effort from the anti-euthanasia side. But with electoral processes, it is another thing: a strong-feeling minority may be feared enough to get inaction from the political system. Thus we are in doubt. Does Drago‘s choice is referendum? It could give space to rhetorical attack by the anti-euthanasia side, and give more strength to it, but will probably be lost. Or is it the electoral option? in this case, the democratic discourse would cover the power of a minority.
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you only have to compare the judicial application of sortition and the circus of CA. We warned for this to happen (p 28 https://www.academia.edu/42201754/Code_of_Good_Practice_for_allotted_mini_publics_involved_with_legislation )
“The mini-public was a great success”.
– The opinion of the participants after the event is very important, for all kinds of reasons but also for public relations reasons for the organisations and companies involved. And this may have severe consequences. Specialised companies are highly qualified in the guidance of participants at such events. ‘Participants are warmly welcomed, the importance of their participation is highlighted (self-esteem), their opinions on small and world problems are listened to carefully (ventilating frustration), with a snack and a drink in between(appreciation) and with a nice picture and publication of the event at the end of the exercise satisfaction/pride)’
. There may well be a strong temptation to organise group deliberation while it is not appropriate and despite the possible serious drawbacks but it is undoubtedly more fun, individually more satisfying, more interesting and socially more accepted. But a mini-public is not for socialising, entertainment of the participants, nor is it for public relations for the organisations involved. It is a very demanding activity and can be compared with the work of a judicial Jury
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It seems to me that Drago is being inconsistent even if we accept his own legalistic premises. On the one hand he is asserts that citizens cannot be represented by “conventions” because under the current system they are exclusively represented by those they elect. But on the other hand he complains about some of the acts of those fully empowered elected officials – namely setting up “conventions” – as being unrecognized legally or for being manipulative. But if those elected officials are fully empowered then by definition all their acts are legitimate. They can set up whatever bodies they want, allotted or otherwise, and choose to accept their recommendations (or even to commit a-priori to do so).
In fact, of course, the question of legality is beside the point. The existing laws were set up by the elites for their own purposes, so question of whether this action or that is legal carries no moral weight. Questions of legality can be argued in the courts, and are of no interest in an op-ed. (It seems that Drago knows very well that his legal position is weak which is why he is presenting it to the readers of la Nef rather than taking it to the courts.)
The questions of whether conventions (or any other political devices) should be used and how they should be constituted must be resolved by arguments concerning the desirability of their effects, not their legal status.
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*** Drago criticizes Macron’s use of “Citizen Conventions” as contrary to the “representative democracy” idea. Yoram Gat disagrees: “ if those elected officials are fully empowered then by definition all their acts are legitimate. They can set up whatever bodies they want, allotted or otherwise, and choose to accept their recommendations (or even to commit a-priori to do so)”.
*** A governing official may ask for advice from a competent body: from a scientific body, looking for a scientific consensus (or dissensus) ; or from a panel of people with a specific life experience, looking for information about diverse material and mental realities from the majority or minority reports . That does not question the legitimacy of the governing official – traditional king or elected president. But when he promises to consider a majority vote of allotted citizens, and even more when he commits to follow their majority vote, it is another thing. Why follow such a majority vote ? Dahl answered (Democracy and its critics) “the judgment of a minipopulus wouId “represent” the judgment of the demos. Its verdict would be the verdict of the demos itself, if the demos were able to advantage of the best available knowledge to decide what policies were most likely to achieve the ends it sought. The judgments of the minipopulus wouId thus derive their authority from the legitimacy of democracy.” Whatever may be his politician reasons, a president who commits itself to the future majority votes of a minipopulus gives it “the legitimacy of democracy” and questions the legitimacy of “elected representatives” if their choice is different. Drago is right to protest.
*** If the heir of a traditional kingship commits himself to follow the choices of the High Priest, he is converting the system to a theocratic one. If he commits himself to follow the choices of an elected parliament or to the head of a totalitarian party, he converts likewise the system. It is impossible to prevent a legitimacy from canceling itself. Actually the French Conventions, for now, are set only about issues where the President is not afraid of strong political discrepancies, and he follows their votes along a selective way. We are not looking to the canceling of the “representative democracy” but it is not stupid to see in the Conventions a potentially subversive idea, the germ of a new legitimacy.
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> But when he promises to consider a majority vote of allotted citizens, and even more when he commits to follow their majority vote, it is another thing. Why follow such a majority vote ? Dahl answered […]
My point is that Dahl’s answer, or any other answer, is irrelevant. According to Drago’s “our democracies are founded on the democratic legitimacy of their leaders, executive and legislative, that is on the principle of elections, well organized and secure”. Thus, once elected, officials are empowered to carry out any action – they do not need to provide explanations for those actions. The fact that those actions are decided upon by duly elected officials is the sole required condition for their democratic legitimacy. They might as well decide to consult with a soothsayer or to implement the plans hatched by a lobbying group. Everything goes. It’s all legitimate. The magic of elections is strong indeed.
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Well, the « magic of elections » does not work very well in France, these days, and that may explain president Macron likes the Citizen Convention idea, to get indirectly what I saw described as “l’onction des ploucs” “anoiting by the bumpkins”
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Somewhere in this discussion Yoram was pointing out that democratic legitimacy should be tied to democratic outcomes: outcomes supported by the majority and in some measure objectively beneficial to them. Tying elections to “democratic legitimacy” as Drago–along with western public opinion in general–is circular reasoning. It just assumes the answer, without giving an argument.
But Yoram’s point is important for another reason. The way neocolonial / eurocentric / racist critiques of China or an other country that holds elections in a different way as “undemocratic” is also an empty gesture, assuming what it wants to argue. “Free and fair elections,” POLITY scores, etc. assume a model built on elitism and freedom from external interference that very few if any “developing” nations can ever achieve. Their politics is always meddled in, their economies held hostage, their currencies manipulated by outside forces. Leaders of a “developing” (euphemism for a country controlled by the western cartel) are stuck between a rock and a hard place. They can have “free and fair” so long as they are subservient, but if they elect someone unacceptable to the cartel, they are couped at worst, their economies held hostage at best. Every “villian” in the cartoonish version of news that passes as news is simply a leader who did not obey the dictates of the cartel. Sonophobia and Russophobia are just the latest manifestation of the same phenomenon. China or Russia are feared bc they are strong enough to resist the economic hostage taking of the “civilized” world, aka the inheritors of the colonial system.
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> Their politics is always meddled in, their economies held hostage, their currencies manipulated by outside forces.
It is worth noting that the situation of “developed” (i.e., rich) Western countries is only marginally better. The U.S. hegemon moves a finger and they snap to attention and obey.
Yes, it is interesting how the electoral mechanism is a tool of political domination. It allows injecting foreign power into a country by propping up friendly elites within the target country. (When that fails, one can always claim that the opposition is being suppressed. Can such a claim ever be disproved?)
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Oh great, campism. Just what we need.
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[…] or reporting the application of sortition in various ways for various purposes, along with a stream of condemnations and warnings against the […]
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