Criteria for a representative citizens’ assembly

Given the high profile of some recent (UK) proposals for allotted citizens’ assemblies — including Conservative leadership candidate Rory Stewart’s Brexit assembly and Extinction Rebellion’s global warming assembly — there is an urgent need to initiate an informed conversation on the requisite criteria to ensure that the assembly design is compatible with principles of democratic legitimacy. As we have been debating this topic in depth on this forum for many years, this looks like a good place to start. The underlying assumption of this post is that the legitimising principle is ‘stochation’ — i.e. an assembly that is a portrait in miniature of the population that it seeks to ‘describe’ and that the goal is to increase the fidelity of the representation, subject to cost and other practical constraints. I would suggest the following criteria:

Criteria for the acceptability of the allotment procedure
The criteria for an impartial random-selection algorithm have been covered by Yoram Gat’s recent post. Terry Bouricius has also argued that the need to be seen to be fair might require some sort of public ceremony, as in pre-modern applications of sortition.

Selection pool
Should the same criteria of citizenship be used as for the electoral role, or is there a case to open it to all affected interests? However the Athenians were less inclusive, requiring a higher age for lawmakers than regular citizens along with swearing the heliastic oath.

Voluntary or quasi-mandatory participation?
Athenian legislative juries were drawn from a pool of volunteers, but the 6,000 citizens were a very substantial proportion of the citizen body and there was strong normative pressure for all citizens to serve (those who didn’t were ho idiōtēs).  However the modern take-up of sortition invitations has been in the region of only 4%, so it might well be argued that voluntary participation would generate an atypical sample. If so, should participation be a civic duty (as in jury service) or will incentives and support suffice, bearing in mind that the relevant principle is the representation of the beliefs and preferences of the vast majority of citizens who are not included in the allotment?

Size of the allotted sample
Modern examples of sortition have been for bodies ranging from only twenty to several hundred, and some statisticians have argued that 1,000 is the minimum size for a reasonably accurate representation (Athenian juries ranged from 501 to 5,001). What is the connection between sample size, decision threshold and confidence interval? How big could the sample be before the onset of rational ignorance?

Length of service
On the one hand a citizens’ assembly would need time to gain adequate knowledge on the issue under consideration, whereas on the other there is the danger of participants ‘going native’ and thereby ceasing to adequately reflect the beliefs and preferences of their (virtual) constituents. Should assemblies be convened on an ad hoc basis (as with 4th century Athenian lawmaking), or is there a case for permanent bodies with rolling tenure for members?
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The Uses and Abuses of Sortition

Given that sortition is finally beginning to be taken seriously by politicians, academics and the mainstream media, some of us on this forum have expressed concerns about potential abuse. André has drawn our attention to the risk of politicians and public intellectuals using sortition to provide a patina of legitimacy to undemocratic practices — examples include Emanuel Macron’s ‘Great Debate’ — and there has been the usual concerns about the rich ‘n powerful using sortition to paper over the cracks of the electoralist oligarchy.

My own concerns are over the willingness of sortition advocates to assume that small stratified samples, in which participation is entirely voluntary, can represent the beliefs and preferences of all citizens. Leaving aside the size issue (most statisticians insist on a minimum of several hundred or even 1,000 for a representative sample) my principal concern is that the voluntary principle will significantly over-represent activists, “progressives” and those who want to change things, as oppose to the ‘silent majority’. The decision of the 2004 British Columbia Constitutional Assembly to change the voting system was overturned in the subsequent referendum, but this might well have been anticipated as only 4% of the original random sample opted for selection, thereby generating an unrepresentative sample (Warren and Pearse, 2008). My assumption here is that the decision not to participate might well be a sign of a conservative (small ‘c’) disposition.

Extinction Rebellion (XR) is a UK climate-change group which has gained a lot of publicity recently on account of its civil disobedience campaign, which brought much of  central London to a standstill in April. Their goal is zero carbon emissions by 2025, which would mean the banning of air transport and the removal of 38 million cars (both petrol and diesel) from the roads. In addition, 26 million gas boilers would need to be disconnected in six years.
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Representation: An ideological and legal fiction

I’ve spent the last few days at an international workshop on ‘Representation in Historical and Transcultural Perspectives’ organised by the Centre for Political Thought at Exeter University. On the final day it was suggested that representation was an ‘ideological and legal fiction’ and none of the participants disagreed. Yves Sintomer gave the final presentation and suggested that his fieldwork comparing Chinese and French systems of representation showed little difference between the two and that the lack of effective representation was an existential crisis for democracy. I had a question for Yves, but we ran out of time, so will ask it here (and draw it to his attention):

One system of representation that would clearly be non-fictional is delegates with legally-binding instructions but this was rejected at the time of the American and French revolutions. Trustee representation (with free mandate) may have worked for a time but didn’t long survive the extension of the franchise and is now rejected by the populist uprising in Europe and America. Virtual representation in Burke’s sense was always fictional due to the dissimilarity between voters and the political class. This would suggest that the only form of non-fictional democratic representation would be when final decision power is vested in a statistically-representative minipublic. Concerns might be raised both about the accuracy of the descriptive representation and the epistemic consequences, but such a system would be non-fictional so long as the microcosm retained ongoing descriptive representation vis-a-vis the target population. This would require large juries, quasi-mandatory participation, short-term service, balanced (exogenous) information and advocacy, and silent deliberation and secret voting, but the representation would not be fictional if it could be demonstrated that multiple samples of the same population generated closely-matching decision outputs. Might such a system be the only way of establishing genuine political representation?

Were 4th century nomothetai selected by lot? Mirko Canevaro responds

By Mirko Canevaro

[This post is a response to a post by Keith Sutherland and to the discussion that followed in the comments thread.]

Dear all,

Thank you very much for your interest in my work! I’m afraid I’ve come here after too many messages, and although I’ve skimmed through all of this, it seems impractical to reply to everyone. But I hope by replying to the first three questions posed by Keith, I’ll offer some clarification.

Given that your claim (from the perspective of the sortinistas on this forum) is analogous to Holocaust denial, have I misunderstood you?

You haven’t — your presentation is basically accurate. I see that some find it strange that the same body would just be relabelled — yes, but not unparalleled. We have even an example of a city Assembly (in Halaisa, Sicily) that for particular purposes relabels itself (with the same numbers and procedures) as the Association of Priests of Apollo (and just yesterday I attended a Edinburgh Classics Departmental Meeting that mid-way through, for particular purposes, relabelled itself Board of Studies, to go back to Classics Departmental Meeting for the next item on the agenda).

Note also that even according to Hansen’s reconstruction (as he believes the decree of Teisamenos is authentic — I don’t), at the end of the fifth-century the Assembly did indeed choose to call itself nomothetai for the specific purpose of lawmaking. Ultimately, I think the long continuity of a nomothetic ideology (as I argue in a long piece of 2015) made sure that even when lawmaking (as making nomoi) was ‘democratised’, still they had to keep, nominally but also ideologically, a distinction between lawmaking and decree-making, because traditionally nomoi were made by nomothetai, not by a random assembly, as it were.

That said, my argument is that this is the most economical interpretation of the evidence, not that it’s safe. I think there is no evidence whatsoever that the nomothetai were selected by lot from those who have sworn the Heliastic Oath, and some evidence that they might be a relabelled Assembly. Lambert (doyen of Greek epigraphists), for instance, agrees on the first proposition, and finds the second possible and even likely, but notes that the nomothetai could also potentially be a subcommittee of the Assembly (selected god knows how) — he’s right, that’s also possible, if a bit less economical.
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Were 4th century nomothetai selected by lot?

Many of us arguing the modern case for descriptive representation via large randomly-selected juries have used the 4th century Athenian nomothetai (legislative panels) as a loose template. Although the Greeks had no mathematical concept of proportionality, nevertheless the large size of the panels (501-5,001 jurors), and the fact that the decisions of the nomothetai were held to represent the informed and considered view of the whole demos has appealed to deliberative democrats in general and sortinistas in particular. James Fishkin has acknowledged the debt that Deliberative Polling owes to the nomothetai, the only differences being the non-binding nature of the DP decision outcome and Fishkin’s insistence on face-to-face deliberation in small, carefully-moderated groups. The practical proposal at the heart of my PhD thesis, Election by Lot and the Democratic Diarchy (Exeter University, 2018) attempts to closely simulate the process of 4th century nomothesia, relying primarily on Hansen (1999) and Blackwell (2003). Mogens Hansen read an early draft of the 4th century chapter for me and the thesis was signed off by my classics supervisor Lynette Mitchell.

However Mirko Canevara has recently thrown a cat among the pigeons with his claim that

there is no evidence whatsoever that the nomothetai were ‘jurors’, and what evidence there is suggests instead that they were a special, relabelled session of the Assembly.

This was hinted at in his short piece on this forum, but the full argument is contained in the paper Extreme Democracy and Mixed Constitution in Theory and Practice (Canevaro and Esu, 2018). The paper (highly recommended) is password protected so can only be read online, so I can’t cut and paste the text, but their claim appears to be that the notion that the nomothetai were randomly-selected conflates two distinct aspects of 4th century nomothesia – the repeal of existing legislation (which was in the hands of randomly-selected jurors in the law courts) and the passing of new legislation which was in the hands of special ad-hoc sessions of the whole Assembly. The procedure for the former was:

Judges were selected by lot from 6,000 random Athenians, who had sworn the judicial oath. And yet their procedures were designed to condition the behavior of the judges so that they would concentrate on issues of legality (and, in this case, of compatibility or incompatibility of the new proposal with the existing laws). This was achieved through institutional instruments such as the oath itself, preliminary hearings governed by a magistrate, no debate or deliberation in the lawcourt, and the application of strict majority rule. (pp. 128-9)

Regarding the latter:

The identity of the nomothetai is also a complex issue: the only alleged evidence they were [randomly selected] judges – that they were selected from those who had sworn the Judicial Oath – is a statement within an extremely problematic document found at Dem. 24, 20-23, which finds no confirmation whatsoever in our sources. There are many reasons to consider that document a later forgery. (p. 132)

However Aeschines’ Against Ctesiphon (Aeschin. 3, 38-40)

Not only shows that the nomothetai voted by show of hands, as an Assembly and unlike a panel of judges who had sworn the Judicial Oath; it also shows that the nomothetai were none other than a special session of the Assembly, summoned ad hoc whenever there were new laws to enact and labelled nomothetai. (ibid.)

If Canevara and Esu are right this would resolve a number of puzzles:

  1. Given that the derogation of nomothesia to small randomly-selected panels would be a controversial move in a political culture where the primacy of the Assembly was paramount, one would anticipate the literature to reflect this. But there is a ‘silence on 4th century nomothesia’. (p. 119)
  2. Aristotle’s characterization of 4th century nomothesia as even more a case of ‘extreme’ democracy than 5th century Assembly procedure is strange, given that many historians have viewed this as a ‘conservative’ move.
  3. Why the decision mechanism in the nomothetai was open show of hands, rather than secret ballot (as in the lawcourts).

So my questions to Mirko are:

  1. Given that your claim is (from the perspective of the sortinistas on this forum) analogous to Holocaust denial, have I misunderstood you?
  2. What has been the response to your paper by Hansen and other classical historians?
  3. What might be the implications for those of us who seek Athenian provenance for their modern sortition proposals?

On what the Council of 500 did and did not do

By Mirko Canevaro

[Editor’s 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 article.]

There is a need to distinguish between decree-making and law-making (nomothesia). In decree-making, roughly 50% of fourth-century decrees found on stone are decrees of the Council (probouleumatic) ratified by the Assembly without discussion (unanimously). The other 50% were proposed directly in the Assembly, either because the Council enacted an ‘open probouleuma’ (invitation to discussion but with no actual proposal), or because the proposal of the Council had failed to be ratified in the Assembly.

I, for one, don’t see the Council as an ‘administrative magistracy’. Alberto Esu has a great chapter forthcoming showing just how important the Council was in ‘deliberating’, and how it actually had vast powers of decision on its own. And Ober, in Democracy and Knowledge, has made a powerful argument for the role of the Council in collecting and synthesising diffused knowledge through deliberation. (See also my piece on majority rule and consensus, about how many decrees were enacted by the Assembly without the debate, on the force of the deliberation that had been carried out in the Council, with the evidence for it. I argue that deliberation was possible and went on as a matter of course – the paper is controversial, but some have already agreed, e.g. Ober, Luraghi, Harris, even Hansen, and we don’t agree on much else… Let’s see how the debate proceeds.) It was not that central in nomothesia, but it was very central in decree-making, as a proper deliberative body.
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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.
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