How should democracy work? Assemblies versus juries

In my last post, I defined sortition and argued for its merits over election as an anticorruption measure. In this post, I’ll be setting out one of the key disputes in the debate over how sortition should be used in lawmaking.

The process of legislation can be thought of as comprising three basic activities:

  1. setting the legislative agenda
  2. developing proposals
  3. deciding which proposals to pass, if any

The two camps I’m introducing today I’ll call the Deliberative Democrats and the Diarchists. The Deliberative Democrats, including thinkers such as Hélène Landemore and David Van Reybrouck, tend to favour citizens’ assemblies which combine all three parts of the legislative process, in which randomly-chosen legislators sit for a term of one or more years, legislating on multiple different subjects. The Diarchists, meanwhile, prefer to divide up the parts the process. In a Diarchist system, proposals would be written by either an elected chamber set up to produce multiple competing proposals (the model favoured by Alex Kovner and Keith Sutherland) or by self-selecting pressure groups (as in Terry Bouricius’ model), and passed or dismissed by juries convened for weeks or months to consider only a single agenda item.

The Deliberative Democrats’ position rest on a particular vision of democratic life owed to Hannah Arendt, John Rawls, and Jürgen Habermas. This vision is of engaged citizens, discussing, debating, and deciding their own fates together as equals through discursive reason. This vision can only be realised when deliberative bodies exist, not just at the heights of the legislature, but throughout society, so everybody can expect to get called up to an assembly on some topic once or twice a decade.

The main argument for Diarchist models, on the other hand, is based on a distinction between two equalities at the core of democracy – isegoria, or the equal right to speak, and isonomia, or the equal right to decide. These two equalities, Kovner and Sutherland claim, are elided in legislative assemblies that set their own agendas and draw up and pass their own proposals. In order to fulfil both equalities, the act of proposing – i.e. of speech – must be separated from the acts of agenda-setting and bill-passing – i.e. acts of decision. Kovner and Sutherland argue that randomly-selected citizens cannot legitimately speak for their non-selected fellows, because the process of discussion and deliberation makes a chamber of allotted citizens distinct in their reasoning from the population at large. The best way to respect isegoria, in their view, is to allow people to choose who speaks for them – i.e. to have an elected proposing chamber – but rather than demanding a majority to pass a bill to the jury, requiring only a ‘superminority’ of one-sixth or one-fifth of the members, allowing minority parties to compete on a level playing field with larger ones. As a result, the chamber would pass multiple alternative proposals on each agenda item.

When it comes to decision, on the other hand, isonomia is best respected by having a decision chamber that is a microcosm of society at large, so that its decisions are just those decisions that a referendum would solicit if every member of society had the time and inclination to become well-informed on the subject-matter. To that end, they forbid their decision-making juries from discussing and debating with one another; the idea is that each member makes their own decision after hearing the arguments for and against each proposal, allowing the ‘wisdom of crowds’ to manifest itself in the jury’s choice between the range of proposals on offer. (In a Diarchist system, agenda-setting would be handled like any other bill – factions in the elected chamber would present competing proposals to a specially-convened jury, who would pick one.)

In practice, a sortitional constitution might include both assemblies and Diarchist hybrid legislatures. Assemblies have the advantage of being able to push their own proposals through state bureaucracies – a task the Diarchist system leaves to the political parties that write the proposals. And deliberative juries that convene for a single task could be used for many functions, such as reviewing executive performance or overseeing sortitional and electoral processes (as in Michigan’s recent redistricting reform), not on the basis of their representativeness or deliberative-democratic credentials, but in order to prevent corruption by keeping sensitive state functions out of the hands of elites. A democratic constitution, therefore, might have a Diarchist hybrid national legislature, deliberative assemblies at the local level, and juries both deliberative and non-deliberative overseeing various constitutional functions.

In my next post, I’ll be looking more closely at one of the points at which the Diarchists object to the Deliberative Democratic position – a problem essential to any theory of government. The key question is: what could make any of these systems democratically legitimate?

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