Rennix and Nimni: Alternatives to judges

In the June 2018 issue of Current Affairs magazine, Brianna Rennix and Oren Nimni discuss the horrors of the judicial branch of the Western system of government, where professional judges each rule their “tiny fiefdoms and everyone who enters must cater to their whims”.

[A] lot of seemingly “impartial” legal standards—like the famous “what would a reasonable person do” standard—are inherently subjective, so that it’s hard to say what an “impartial” application would even mean. The law is full of attempts to determine what “reasonable” behavior would be in a particular situation. It should shock no one (except lawyers) that people often have wildly divergent views of what “reasonableness” means in any given situation. For courts, the “reasonable person” standard has a disturbing tendency to align with whatever best suits the positions of those in power. Think of all of the police officers whose shootings of unarmed black people have been deemed “reasonable”—and then say you want a judicial system run by “reasonable” or “impartial” judges.

At the end, they consider some alternatives. The first among their “more radical solutions to the judge problem” is “no more judges”:

But how can you have a legal system without judges, you say? Well, in Ancient Athens (immediate chorus of boos) no, hear me out (boos continue) look, I am not proposing ancient Athens as a civilizational ideal, I am just exploring an alternative institutional design (boos increase in volume) IN ANCIENT ATHENS, judges were essentially administrative functionaries, with no real decision-making power. Cases were decided entirely by enormous juries of 201-501 people, who were assigned to cases by random lottery and received a small fee for their services. A simple majority vote, without deliberation, determined the verdict. In the words of legal historian Adriaan Lanni, “the Athenians made a conscious decision to reject the rule of law in most cases, and they did so because they thought giving juries unlimited discretion to reach verdicts based on the particular circumstances of each case was the most just way to resolve disputes.”

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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Schulson and Bagg: Sortition needs to become part of mainstream U.S. political discourse

Michael Schulson is a journalist who has written before about sortition. Schulson and Samuel Bagg, a democratic theorist at McGill University, have a new article about sortition in Dissent magazine. Here are some excerpts.

Give Political Power to Ordinary People

To fight elite capture of the state, it’s time to consider sortition, or the assignment of political power through lotteries.

Our broken campaign finance system is a longstanding target of progressive ire. And as Republican state legislatures have made increasingly aggressive moves to entrench minority rule, many people are beginning to see a broader defense of democratic integrity as a crucial part of any left agenda. Yet most of the attention of reformers has been limited to the electoral process—perhaps because we tend to assume that getting “our people” into office will solve the problem.

It won’t. Elite capture of the state extends far beyond the influence of large donors on elections.
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Sortition in the New Yorker

Another step in the thousand mile march: Sortition is positively featured in the second paragraph of Masha Gessen’s article in the New Yorker. The oligarchical nature of elections is rather matter-of-factedly asserted:

The concept of democracy rests on the premise that any citizen is a potential member of government. The ancient Athenian choice of sortition—the selection of government by lottery—was based on the understanding that elections would inevitably favor the aristocracy, and in a democracy the government should be a mirror of the governed. The American system has proved the Athenians right. Access to our electoral system is determined by the candidates’ ability to attract financial contributions. The contest itself is rigged in favor of the white, the highly educated, and the privileged—those who reproduce the class, race, and style of their predecessors.

Scotland’s opposition parties attacking the government’s citizen assembly proposal as untrustworthy

The National reports:

Citizens’ Assembly: Scotland in Union tells Scots to stay away
By Andrew Learmonth

SCOTLAND’s staunchest Unionists are trying to kibosh the Scottish Government’s plans for Citizens’ Assembly before they’ve even started.

Scotland in Union has warned Scots to stay away, saying they’ll be “misused” for independence.

Nicola Sturgeon announced the initiative back in May, saying the Government was keen to follow the example of Ireland where the assemblies were used to find consensus on reforming Ireland’s abortion laws. [Details.]

But the Tories and the LibDems have already said they don’t want to be involved, calling the assemblies a “stunt to kick-start the conversation about independence”.
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Bradatan: Today’s democracy favors the the power-hungry, arrogant, oppressively self-assertive political animal

Costica Bradatan, professor of philosophy at Texas Tech University, has a free-ranging essay about democracy in the New York Times. It is a rather incongruous mass of ideas, some more convincing than others. It does mention (approvingly? hard to tell) sortition as one of the fundamental foundations of Athenian democracy.

The institutions of democracy, its norms and mechanisms, should embody a vision of human beings as deficient, flawed and imperfect.

Ancient Athenian democracy devised two institutions that fleshed out this vision. First, sortition: the appointment of public officials by lot. Given the fundamental equality of rights that all Athenian citizens — that is, free male adults — enjoyed, the most logical means of access to positions of leadership was random selection. Indeed, for the Athenian democrats, elections would have struck at the heart of democracy: They would have allowed some people to assert themselves, arrogantly and unjustly, against the others.

The other fittingly imperfect Athenian institution was ostracization.

Bradatan notes how different is the modern system that self-describes itself as “democracy”:
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Citizens’ Assembly of Scotland

The Scottish government has announced that it is going to set up a citizens’ assembly “to help shape Scotland’s future” (turns out this is also a business opportunity):

The process of establishing the new Citizens’ Assembly to explore some of the major challenges facing Scotland has begun.

A contractor is being sought to randomly select 120 members of the public to serve on the Assembly. The individuals will be broadly representative of Scotland’s adult population in terms of age, gender, socio-economic class, ethnic group, geography and political attitudes.

The Assembly will consider three broad issues:

* what kind of country should be

* how can Scotland best overcome challenges, including those arising from Brexit

* what further work is required to enable people to make informed choices about the future of Scotland

Schedule and remuneration:

Members will be identified by early September, with the Assembly meeting on six weekends between the autumn and Spring 2020.

Assembly members will receive a gift of thanks of £200 per weekend to recognise their time and contribution. Travel, accommodation and other reasonable costs, such as child care, will also be covered.

CommonSpace has some reactions from experts. Oliver Escobar, senior lecturer in Public Policy at the University of Edinburgh and an expert on deliberative/participative democracy inquires about the institutional context of the assembly and wants to make sure it reflects an elite consensus:

This is a momentous announcement – a potential milestone for democratic innovation in Scotland.
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