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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Instead of the Popular Initiative, let’s try the democracy of chance

François de Closets writes in l’Opinion.

The Gilets Jaunes, the coalition, the opposition, everybody seems to support the Popular Initiative (référendum d’initiative citoyenne, or RIC). This mechanism for popular participation would offer both a renovating reform of our republic and a way out of the crisis. Wouldn’t it, however, be a false solution? Wouldn’t it be embraced more because it is in the air rather than through thorough reflection? Wouldn’t it be masking a real solution? “Let the people speak”, who can object to that? No one, and it is for this reason that we must not give in to moral terrorism.

Popular sovereignty, the foundation of democracy, struggles with the question of the government. Beyond the scale of the city, even beyond that of a village, collective power is no longer operative. Representative democracy must be utilized. Every nation has arrived at this conclusion. That is, popular sovereignty does not mean governing but appointing and recognizing rulers. It also means that the citizens see themselves as being represented by those who speak and act in their name.

Despite this delegation, the people remain the ultimate source of truth, their word being superior to that of their representatives. In particular, their word must be imposed through referendum when it comes to the supreme law: the constitution. Representative democracy is therefore a compromise due to the impossibility of the ideal of direct democracy.

A crutch. In practice the system risks the formation of an enclosed political class which usurps power from the people. Conversely, direct democracy can be used by manipulators who under the pretext of “letting the people speak” impose their point of view on the majority. Real democracy, that of the general will, is therefore a historical construction which must fend off both of those perversions. The RIC should be examined from this perspective.
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More sortition in the Guardian

In October, the Guardian published an excerpt from Tim Dunlop’s sortition-advocating book “The Future of Everything”. Today, James Bridle offers the readers of the Guardian to apply sortition to the Brexit issue. (Of course, he is not the first with this idea.)

How can we break the Brexit deadlock? Ask ancient Athens
James Bridle

Citizens’ assemblies have their roots in sortition – selecting citizens at random to fill public posts – which was once central to democracy

In the central marketplace of ancient Athens, around 350BC, there stood a machine called the kleroterion. This was a six-foot-high slab of stone that had a series of slots on the front, and a long tube bored down from the top to the base. Those up for selection for the various offices of state would insert metal ID tags, called pinakia, into the slots, and a functionary would pour a bucket of coloured balls, suitably shaken, into the top of the tube. The order in which the balls emerged would determine who took which role, some for the day, some for a year.

Chalmers: The nakedness of elections

Patrick Chalmers writes:

TOULOUSE, France — In the Danish fable “The Emperor’s New Clothes,” it was a little boy who pointed out what no adult dared expose: The king was naked; his court, a cast of pompous fools beguiled by tricksters.

It’s time to do the same with our own reified system of government — representative democracy and its so-called free and fair elections.

Shocking? Of course it is. We’ve been taught to hold our voting rights as sacred — that despite our political system’s many flaws, representative democracy is, to paraphrase Winston Churchill, “the worst form of government, except for all the others.”

But what if there were, after all, a real alternative? What if there were something less corruptible than pure democracy by election? That something needn’t replace periodic elections, or at least not at once, but it could certainly guard us against their worst failings. Not least of those is the grossly outsized influence of narrow interests at the expense of everyone else’s.

Fishkin: Random Assemblies for Lawmaking? Prospects and Limits

James Fishkin’s contribution to the September 2017 workshop “Legislature by Lot” was titled “Random Assemblies for Lawmaking? Prospects and Limits”:

A randomly selected microcosm of the people can usefully play an official role in the lawmaking process. However, there are serious issues to be confronted if such a random sample were to take on the role of a full-scale, full-time second chamber. Some skeptical considerations are detailed. There are also advantages to short convenings of such a sample to take on some of the roles of a second chamber. This article provides a response to the skeptical considerations. Precedents from ancient Athens show how such short-term convenings of a deliberating microcosm can be positioned before, during, or after other elements of the lawmaking process. The article draws on experience from Deliberative Polling to show how this is both practical and productive for the lawmaking process.

Athens, corruption, Deliberative Polling, elections, minipublics, nomothetai, representative democracy, sortition

In arguing for short term “Delibertive Polls”, Fishkin offers three problems with long-term allotted chambers: (1) lack of technical expertise, (2) potential for corruption, and (3) not maintaining what he calls “the conditions for deliberation”.
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Dan Hind: The Cooperative State

Dan Hind proposes using sortition to achieve a “cooperative state”.

Rather refreshingly Hind rejects the “modernization” argument:

I do not propose far-reaching constitutional change in Britain or the United States because the current arrangements are irrational or anachronistic. On the contrary, these arrangements are, for the most part, rational and frighteningly up-to-date.

Hind’s proposal is an elections-sortition hybrid:

The idea is not to do away with elections. Some offices require technical abilities or experience and election does not seem like a terrible way of filling them, even if at times it is hard to imagine a worse person for an elected office than the person holding it. But it does not follow that public office should be monopolised by those who, for whatever reason, manage to win an election. Indeed, if representation is to retain its authority, it will have to be supplemented by more properly democratic institutional forms.

Hind seems to fall into an obvious fallacy: the simple point that not every position should be filled by lot does very little to advance the argument that some positions should be filled by election.

That said, Hind does propose to invest allotted bodies with some real powers of oversight:
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