Yves Sintomer: Blow the dust off of democracy with an allotted third chamber. Part 1

This is an English version of an interview with Yves Sintomer in the journal Socialter (original in French).

The Gilets Jaunes, who are looking for new democratic experiences, have called for an “assembly of assemblies”. Would it be necessary, in order to resolve the impasse, to radicalize our democracy? Why not re-institutionalize one of the its original components: sortition. A conversation with Yves Sintomer, a political scientist and an expert in democratic procedures.

Philippe Vion-Dury, 17/04/2019
Photos: Cyrille Choupas

The Gilet Jaunes have been first presented at an anti-tax movement and then as a social justice movement. Isn’t it, however, fundamentally, the question of institutions and democracy question which predominates?

What unites the Gilets Jaunes, it seems to me, is not so much the question of institutions in the strict sense as much as denial of recognition to which they respond by protesting against social injustice and against the democratic gap, a sentiment of non-representation. These two components appear to me to be tied together: society does not recognize them both because its fruits are distributed too unequally and because their voice is not being heard.

Popular distrust can be observed in most western democracies, in different forms. Isn’t there a generalized crisis of “representative government” itself?

There is a French particularity: a President with disproportionately concentrated power, little countervailing power, unusually weak political parties… and the revolt of the Gilet Jaunes is a social mobilization to which there is no equivalent in neighboring countries. This particularity has to be put in context, because it works within a much more general crisis of representation which affects not only European democracies but is also the young democracies of Latin America and in the formally democratic countries of Africa and Asia.

Representative governments were created during the English, French and American revolutions as a compromise solution. It involved giving effective decision power to a self-proclaimed elite – from this point of view, there is an aristocratic dimension to representative government. This ruling aristocracy, however, would not longer be one of “blue blood”, of nobility, but an aristocracy determined by the voters.

This institutionalization of representative government has long been opposed to the feudal society of the Ancien Regime, but also against democracy, understood as “government of the people, for the people, by the people” – to quote Abraham Lincoln. The is to limit the power of the people by giving decision making power to an elected aristocracy. That allows us to distance ourselves from the classical liberal conception asserting that “democracy means elections”.
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Radical reform: selecting 5-10% of councillors by lot

Vernon Bogdanor, Research Professor at the Institute for Contemporary British History at King’s College London and Professor of Politics at the New College of the Humanities, advocates bold, radical reforms:

Local government reform

One way that our democratic system can face these challenges is by making local government `Self Government’ once again. […] Local government is the best arena for the next phase of constitutional reform, but something much more radical than elected mayors is needed.

Selection by lot

That more radical innovation might be found in the principle of sortition—selection by lot. That principle was first adopted in fifth‐century Athens, a direct democracy, but it is perfectly feasible to extend participation in a modern democracy.

A small proportion of councillors—say 5 per cent or 10 per cent—could be selected randomly by lot from the electoral register. Participation would be voluntary but most of those selected would probably be willing to do so. That would increase the representation of the young and of members of ethnic minorities, groups markedly under‐represented in most local authorities. These councillors could decide what was best for their communities without being beholden to party.

Delanoi: Sortition does not replace elections, it complements them

Simon Blin interviews Gil Delanoi in the Liberation. Original in French.

Gil Delanoi, a researcher at Sciences-Po, a sortition expert, promotes this procedure as a fundamental improvement of the democratic system, provided that it is used in an ad-hoc fashion. [Editor’s note: This sub-headline seems to be a misrepresentation of Delanoi’s position – see below. – YG.]

Gil Delannoi, professor at Sciences-Po and researcher at Cevipof, has just published a new book Sortition: how should it be used? (Sciences-Po Press). According to him, this procedure, if it is well-established, could improve the representation of the diversity of the electorate.

How can sortition cure the malaise of democratic representation and participation?

As opposed to voting, sortition does not aggregate voices but rather subsamples people from a group in order to delegate a task to them, whether a deliberative, an advisory or a decision-making task. From this perspective, sortition complements voting because it allows breaking out of the legislative logic where only representatives make the law and are concerned with it and where the administration applies it. This way, sortition does not replace elections but completes them. It is certainly possible to combine the two processes.

What form should it take?

Sortition is adaptable. There are at least as many ways to allot as there are to vote. It all depends on the objective that is sought. Sortition can be mandatory or volutary. In the first case it is a duty, in the other it is a right. The size of the sample is also very important. If the allotment aims to construct a mirror of the population, it is preferable to have a large number of people involved in order to create a detailed picture. That said, even if we allot a few people, we already a sample that is more representative than that of a simple vote, particularly in terms of age, gender and profession. We may need allotments of size 10,000 or 1,000 people. Logically, the larger the number the more accurate is the representation. In the case of court juries, where sortition is regularly used in France, it is evident that the group must be able to really have a discussion. Here the optimal size is on the order of 10 to 50 people. The larger the sample, the more difficult this is.
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The Principle of Rotation

Let me share part of the section called “The Principle of Sortition” in E. S. Staveley’s 1972 book, Greek and Roman Voting and Elections. In spite of its title, the section might better have been titled, “The principle of rotation,” since Staveley argues that rotation in Athens was “more fundamental by far” than sortition. I am not an academic, and I would be interested in hearing what the reception was for Staveley’s thesis among his colleagues. Only a few reviews of the book are available to me, and they seem to have been written by specialists in Roman rather than Greek politics. He seems to be shooting across their bow. Was anybody listening?

It certainly stands to reason mathematically that the more posts are available only once in a lifetime, and the shorter their term limit, the more rotation would become the operating principle. This would set up what the Romans later would call a Cursus Honorum, a career trajectory where the average Athenian would gain active experience in every aspect of local governance, from finance to foreign policy. Unlike the Cursus Honorum, though, the order or life stage in which the citizen held a position mattered less than variety of exposure to various workshops in what Pericles called the “school of Athens.”
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A first article is published by BIRDS

Bard Institute for the Revival of Democracy through Sortition (BIRDS) was recently founded by Jonas Kunz and Hans Kern.

Kunz and Kern have now published a lengthy article in which they offer sortition as a tool for taking action on climate change:

Sortition: The Key to Globally Coordinated Climate Change Action?

Climate change by human industry (anthropogenic warming) has been known to scientists at the highest levels within the U.S. government, at least since 1979. That year, the ‘Charney Report’ — Carbon Dioxide and Climate: A Scientific Assessment — presented the research of nine atmospheric, meteorological and oceanographic scientists convened at Woods Hole Institute, to the National Research Council. The introduction to this report by Werner E. Suomi pronounces: “If carbon dioxide continues to increase, the study group finds no reason to doubt that climate changes will result and no reason to believe that these changes will be negligible. The conclusions of prior studies have been generally reaffirmed. …[“]

[Natheniel Rich writes in a New York Times article:] “in the decade that ran from 1979 to 1989, we had an excellent opportunity to solve the climate crisis. The world’s major powers came within several signatures of endorsing a binding, global framework to reduce carbon emissions.” To arrive at a clear understanding of what went wrong, we must first do away with the common misconception that big industry is and always has been the main culprit. In fact, as the article reveals, the oil industry was the first, to take due diligence measures, on the dangers of climate change and was preparing to adapt to policy changes. The policy changes, however, never came. Resistance did not come from the outside, it came from within the political structures themselves.

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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?