Huffman: The jury is a political, as well as a judicial, institution

Posted on December 21, 2021 by Yoram Gat

James L. Huffman, professor of law and the former dean of Lewis & Clark Law School in Portland, OR, writes in The Hill.

Second-guessing jury verdicts undermines confidence in the democratic system

English jurist William Blackstone observed before the founding of the American nation, the jury serves as a popular check on abuses by those who wield the powers of the state: “[The jury] preserves in the hands of the people that share which they ought to have in the administration of public justice and prevents the encroachments of the more powerful and wealthy citizens.”

The jury is thus a political, as well as a judicial, institution — but that does not mean juries engage in politics or should be subjected to political influence and judgment. In “Democracy in America,” Alexis de Tocqueville noted that the jury can be either a democratic or an aristocratic institution “that places the real direction of society in the hands of the governed or in a portion of them, and not in those who govern.”

Because juries in America are drawn by lot from the general population, they are democratic but insulated from the bias of public officials and the partisan preferences of shifting majorities.

As the American Bar Association states in a publication on the history of the jury system: “[T]he right to a jury of one’s peers is a corner-stone of American democracy. Along with voting, it’s one of the main ways people take part in the public life of this nation.”

Routine questioning of the legitimacy of duly reached jury verdicts is no less an attack on democracy than is questioning the legitimacy of a duly conducted election. The jury exists to resolve disputes over individual rights and government power, not to serve a partisan agenda. In resolving the dispute in a particular case, the jury functions not as an instrument of the ruling party but rather as a check on the politicization of the administration of justice.

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Sortition in 2021

Posted on December 18, 2021 by Yoram Gat

Equality-by-Lot’s traditional yearly review post.

The most significant piece of sortition-related news of the year was, in my view, the findings of an opinion poll run in four Western European countries – the UK, France, Italy and Germany – regarding the place of sortition in government. The survey found that 27%-30% among those asked support using allotted bodies to systematically complement the work of parliament.

As always, sortition has been most prominent in 2021 in the Francophone world. Early in the year, Macron’s administration in France formed an allotted panel monitoring the Coronavirus vaccination campaign. Not much has been heard of it since. The utilization of allotment by the Macron administration has become frequent enough to merit condemnation as well as ridicule. Sortition’s political presence is such that it draws regular criticism from elite writers, but also some support. The journal Raisons politiques devoted a large part of an issue to sortition. In Switzerland, a proposal to select judges by lot among qualified candidates failed at the polls.

However, sortition had some presence elsewhere as well in 2021. An allotted assembly was convened as part of the COP26 UN climate change conference. In Bosnia and Herzegovina a citizen assembly was called to express its opinion on constitutional and electoral questions. Scotland’s Citizen Assembly published its report. One of the recommendations in the report was to use allotted bodies to scrutinize government proposals and parliamentary bills. An allotted assembly about the climate was discussed in Austria as well. Ireland held a citizens’ assembly on gender equality. Washington state allotted a climate assembly. In the wake of the protests following the murder of George Floyd, allotted police oversight commissions were discussed in California. A CS course at Harvard dealt with sortition and an algorithm for quota sampling from unrepresentative volunteers made it into Nature.

The Japanese journal Law and Philosophy devoted an issue to “Just Lotteries”. Hélène Landemore, Yale political science professor and author of the book Open Democracy, has promoted sortition in an interview in The Nation magazine and in an article in Foreign Policy magazine. The Hannah Arendt Center at Bard College held a conference about sortition.

Sortition was proposed as a way to create a governing body for the Internet, as tool to counter the allure of the Chinese system, as a way to save the UK and to stop popular but “undemocratic or illiberal” leaders from getting elected, and as a way to appoint public servants. A paper discussed sortition with a focus on India. In Massachusetts a letter to the newspaper introduced its readers to the idea of allotted citizen assemblies. A new book asserted that sortition is the only way to achieve a demcoratic system, while an article claimed that sortition is unable to address the biggest problem of the existing system, citizen apathy.

Filed under: Academia, Applications, Elections, Opinion polling, Press, Proposals, Sortition | 5 Comments »

Sortition: An Ancient Remedy to Heal the Organized Community’s Wounds

Posted on December 12, 2021 by Yoram Gat

Christopher Tripoulas writes in The National Herald, a publication aimed at the Greek American community:

For months now, the Federation of Hellenic Societies of Greater New York has been embroiled in an ugly dispute between rival sides. As the coordinating umbrella organization for local Greek societies, its primary function is to organize the annual Greek Independence Day Parade on Fifth Avenue.

Despite any criticism regarding its subdued presence in other issues of vital importance for the Greek-American Community or the manner in which it organizes the parade, the truth is that with the exception of Holy Week, it handles perhaps the largest and most recognizable collective Greek Community activity in America. This alone constitutes the resolution of the present dysfunctionality an immediate priority.

The organization of a parade, without clear objectives and messages, negates its very purpose. Although the parade takes place in a prime location and is covered live by a large metropolitan area broadcaster, there are still glaring issues. Whether it’s the lack of a stricter dress code for participants to promote uniformity and aesthetic beauty, or the failure to properly showcase student-marchers, considering that our Greek parochial schools are interspersed with no rhyme or reason, as if Hellenic Paideia was not one of the most critical issues for the survival of Hellenism, there are serious issues that need to be examined through public discourse, and not just in the anterooms of the Federation.

Ultimately, either the Greek-American Community will manage to prioritize certain common values around which it will work in unison and strategically to upgrade the institutions that express them, or it will come apart, because the ‘tropos’ or manner of its distinct otherness will no longer be discernible, leading to withering and dissolution.

This column proposes that the present administrative crisis can be overcome through the application of the ancient democratic practice of sortition; that is, distribution of offices via a lottery system. In his work ‘Rhetoric’, Aristotle notes that “a Democracy is a form of government under which the citizens distribute the offices of state among themselves by lot” (1365b-1366a). Hence, if the Federation leadership invokes democracy as a defining quality of its mode of governance, then there should not be any problem with accepting the distribution of offices according to its signature trait.

On the contrary, the revival of this ancient element of democracy would serve as a sterling example for other organizations, while showcasing an essential aspect of democracy that is frequently overlooked in contemporary society. And while this trait may escape popular attention, it is not altogether absent from modern democratic polities. Two characteristic examples from the United States regarding the contemporary use of sortition include the selection of jurors for trials, and the draft, which is currently not in use, but still a legal requirement laid out in the selective service system. Now, if many of us just happen to view the former as an imposition and waste of time, and ward off the latter, it’s worth questioning just how democratically minded we truly are…
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Filed under: Athens, Elections, History, Press, Proposals, Sortition | 1 Comment »

Landemore in Foreign Policy

Posted on December 10, 2021 by Yoram Gat

Prof. Hélène Landemore has a hard-hitting new article in Foreign Policy magazine. From the outset, Landemore’s subtitle aims right at the heart of modern democracy dogma:

Democracy as it was envisioned was never about real people power. That’s what needs to change.

This radical attack on the electoralist system keeps on coming, paragraph after paragraph. Landemore seems ready now to finally correct the conventional terminology (the unwillingness to do away with this convention was a huge burden for her in Open Democracy):

The systems in place today once represented a clear improvement on prior regimes—monarchies, theocracies, and other tyrannies—but it may be a mistake to call them adherents of democracy at all. The word roughly translates from its original Greek as “people’s power.” But the people writ large don’t hold power in these systems. Elites do.

Representative government, the ancestor of modern democracies, was born in the 18th century as a classical liberal-republican construct rather than a democratic one, primarily focused on the protection of certain individual rights rather than the empowerment of the broader citizenry. The goal was to give the people some say in choosing their rulers without allowing for actual popular rule.

The Founding Fathers of the United States, for example, famously wanted to create a republic rather than a democracy, which they associated with mob rule. James Madison, in particular, feared the tyranny of the majority as much as he disliked and rejected the old monarchical orders.

Another important attribute of the article is that Landemore is making it explicit that exclusion from government is not merely a matter of making people “feel involved”, but rather translates into unrepresented interests:
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Filed under: Academia, Applications, Athens, Books, Deliberation, Elections, History, House of Lords, Juries, Mass action, Participation, Press, Sortition | 1 Comment »

Call for 2021 review input

Posted on December 10, 2021 by Yoram Gat

This is the yearly call for input for the year’s end review. As in previous years, I would like to have a post or two summarizing the ongoings here at Equality-by-Lot and notable sortition-related events over the passing year. Any input about what should be included is welcome – either through comments below or via email. You are invited to refresh your memory about the events of the passing year by browsing Equality-by-Lot’s archives.

For previous years’ summaries see: 2020, 2019, 2018, 2017, 2016, 2015, 2014, 2013, 2012, 2011, 2010.

Filed under: Distribution by lot, meta, Sortition | Leave a comment »

Gauchebdo: Sortition – a false solution

Posted on December 4, 2021 by Yoram Gat

The following piece was recently published on Gauchebdo (“Left Weekly”), a Swiss website which bills itself as “a platform for men and women who resist, the voice of those who propose to change society”.

Sortition – a false solution
Anaïs Timofte

Sortition has become over the last few years an idea which is garnering increasing attention. Whether in the context of deliberative citizen assemblies concerning the climate, or of the selection of candidates for the executive bodies of social movements, or of the random ordering of candidates on an electoral list, there is no shortage of examples.

Some promoters of sortition go farther and see it as an alternative mode of representation and to the election of parliament members. They see is as a way to “renew the democratic process” having the advantage of dissipating the “elitism” of the electoral process. But is this really the case?

Greek origins

Sortition is far from being a new idea. The most famous example is that of Athens in ancient Greece. The Council, composed of 500 Athenian citizens wielding significant legislative and executive powers, was allotted in a well defined and controlled process. In order to handle numerous tasks, the allotted citizens had at their disposal “public slaves”, owned by the city, whom they managed.

Other examples often evokes as part of the history of sortition are those of the medieval communes of 13th century Italy: Verona, Venice and Perugia. These cities developed modes of selection combining elections and sortition.

Sortition and capitalism

Even though there is something intriguing in the idea of imagining the powers-that-be reproduce today sophisticated (and largely fantastic) selection methods used by the Athenian democracy and of Venice of the Doges, it is nevertheless necessary to understand sortition within the framework of the current capitalist system and within the framework of the organization of working classes that aim to move beyond this system. 5 point of criticism may be raised:

First, sortition leads to a depolitization of the process of selection, and more precisely, a dissipation of class conflict. The candidates no longer need to defend ideas or a conception of society – their individual or social-professional characteristics suffice.
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Filed under: Athens, History, Press, Sortition | 57 Comments »

Sortition for judges on the ballot in Switzerland

Posted on November 23, 2021 by Yoram Gat

The Swiss Radio Lac reports:

Sortition is proposed

[In addition to other proposals] the Swiss will also have to vote [on November 28th] on the proposition regarding the judicial system. The proposition would institute appointment of judges using sortition in order to make them more independent. Official languages would have to be equitably represented and the judges would be able to serve up to 5 years beyond the normal age of retirement.

Parliament has rejected the text, without offering a counter-proposition, either direct or indirect. According to the elected, sortition would not guarantee better independence or better equality. Moreover, it would damage the democratic legitimacy of the judges.

Judges in Switzerland are currently appointed by the Swiss Parliament and they need to be re-appointed periodically. The notion that this provides judges with “democratic legitimacy” runs against standard liberal dogma:

At present, the Swiss parliament awards the posts of federal judge according to party strength. Judges with no political affiliation thus have no chance of gaining office.

When a judge is elected, she or he has to hand over money to the party – the so-called mandate tax, which is unique in the world, and constitutes an important source of funding for parties. In return, the judge can count on party support when it comes to re-election.

In this system, the judiciary is therefore politicised. Judges can be influenced by their party membership when passing verdicts, as studies have shown. And not just out of ideological considerations. Parties sometimes also exert tangible pressure. If they do not approve of a ruling, they can threaten not to re-elect the judge.

This mutual dependence calls into question the independence of the judiciary and the separation of powers. […] The Council of Europe’s Group of States against Corruption (GRECO) has also rebuked Switzerland.

Filed under: Ballot measures, Elections, Proposals, Sortition | 10 Comments »

Short refutations of common arguments for sortition (part 2)

Posted on November 17, 2021 by Yoram Gat

Part 1 is here.

The two arguments presented below pin the problem with elections on the voters.

4. The masses are rationally ignorant. Therefore any system that relies on their judgement would not function well. Sortition does not rely on mass judgement.

According to this argument elections present a variety of choices to the voters, with some of these choices being on the whole materially better than others as measured by the interests and values of the voters. The voters, however, each knowing that the impact of their vote is tiny, are too selfish (or more politely, too busy taking care of their private business) to spend the time and effort to determine which candidate or party are better than others. Instead they hope that others would do the work for them, and in this way they would save the effort of figuring out which alternatives are the better ones but at the same time they will enjoy the good outcomes of other people’s choices. But since everybody, or at least the large majority of voters, follow the same calculation, almost everybody is uninformed and as a result when they arrive at the voting booth, they often select poor alternatives.

All this sounds very sophisticated and has the stamp of approval of the economists and rational-choice theorists. The argument suffers, however, from at least two severe problems. First, the assumption that the electoral alternatives present to voters a meaningful choice is theoretically problematic. Since the electoral choice is between elite factions, the range of choice must be severely limited. The factions of the elite all share certain elite values and interests that any of them will promote if and when they are in power. The promotion of those values and interests is often made at the expense of the values and interests of the general population, making the policies pursued by government – regardless of the elite faction in power – detrimental to the general population.
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Filed under: Academia, Elections, Sortition, Theory | 17 Comments »

Waxman and McCulloch: The Democracy Manifesto

Posted on November 16, 2021 by Yoram Gat

Wayne Waxman, a retired professor of modern philosophy, and Alison McCulloch, a scholar of philosophy and retired journalist (as well as a contributor to this blog), have just published a book named The Democracy Manifesto: A Dialogue on Why Elections Need to be Replaced with Sortition.

The Democracy Manifesto is about how to recreate democracy by replacing elections with government that is truly of, by and for the people. Written in engaging and accessible dialogue form, the book argues that the only truly democratic system of government is one in which decision-makers are selected randomly (by sortition) from the population at large, operating much the way trial juries do today, but 100% online, enabling people to govern together even across great distances. Sortition has a storied history but what sets The Democracy Manifesto apart is its comprehensive account of how it can be implemented not only across all sectors and levels of government, but throughout society as well, including the democratization of mass media, corporations, banks, and other large institutions. The resulting Sortitive Representative Democracy (SRD) is the true heir to ancient Greek democracy, and the only means of ensuring ‘we the people’ are represented by our fellow citizens rather than by the revolving groups of elites that dominate electoral systems. In the process, the book grapples with myriad hot topics including economic issues, international relations, indigenous rights, environmentalism and more.

Filed under: Academia, Athens, Books, Elections, Press, Proposals, Sortition | 32 Comments »

Meyer-Resende: Citizen assemblies do not address the biggest problem in democracies

Posted on November 13, 2021 by Yoram Gat

Michael Meyer-Resende writes in the EUobserver:

[M]any climate activists want to expand democracy. They are deeply frustrated with the insufficient response to the threat of global heating.

There is much talk that the old institutions of representative democracy are not good enough to meet the challenge. “Politicians simply can’t see past the next election,” says the group Extinction Rebellion. The role of citizens is reduced to voting once every four or five years. Or so the argument goes.

That is why one idea has gained much enthusiasm among climate activists: citizen assemblies.

In these assemblies, people who are drawn by lot from pre-defined groups that broadly represent society, hear from experts, discuss what should be done about climate change and adopt recommendations, or even decisions.
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Filed under: Press, Sortition | Tagged: | 1 Comment »

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