Election by Lot and the Democratic Diarchy Submitted by John Keith Bell Sutherland to the University of Exeter as a thesis for the degree of Doctor of Philosophy in Politics (PT) in September 2017 This thesis is available for Library use on the understanding that it is copyright material and that no quotation from the thesis may be published without proper acknowledgement. I certify that all material in this thesis which is not my own work has been identified and no material has been previously submitted and approved for the award of degree by this or any other University. Signature . 1 Abstract This thesis argues that ‘democracy’ can better be understood in terms of a conceptual diarchy of ‘isonomia’ (equal political rights) and ‘isegoria’ (equal speech rights), rather than the conventional diarchy of ‘will’ and ‘opinion’ that originated in the era of absolute monarchy. As the proposed diarchy has its origin in classical Greece, the thesis starts with a brief overview of the institutional changes in sixth-, fifth- and fourth-century Athenian democracy that implemented the distinction in different ways, and examines some of its dysfunctions. The particular aspect of Athenian democracy under focus is sortition – the random selection of citizens for public office – viewed in antiquity as democratic, whereas election was viewed as an aristocratic or oligarchic selection mechanism. The thesis takes issue with Bernard Manin’s claim that the ‘triumph of election’ was on account of the natural right theory of consent, arguing that sortition-based proxy representation is a better way of indicating (hypothetical) consent than preference election. The thesis then seeks to clarify the concept(s) of representation – essential to the implementation of the democratic diarchy in modern large-scale societies – and to study how the diarchy has been reincarnated in modern representative democracies, along with an examination of the pathologies thereof. Consideration is given as to what the deliberative style of assemblies selected by lot should be, alongside evaluation of the epistemic potential of cognitive diversity and the ‘wisdom of crowds’. Given the need for both isonomia and isegoria to assume a representative form in large modern states, Michael Saward’s Representative Claim is adopted as a theoretical model to extend the reach of political representation beyond elections. The thesis concludes with tentative proposals as to how the fourth-century reforms (delegation of the final lawmaking decision to randomly-selected nomothetic courts) might be used as a template for modern institutions to resolve some of the problems of mass democracy. 2 Table of Contents Tables and Figures 6 Introduction 7 I.1 The democratic diarchy 15 I.1.1 A note on style 17 I.2 Argumentative structure of the thesis 18 I.3 Chapter overview 18 I.4 Acknowledgements 21 1. The Democratic Diarchy 23 1.1 Structural transformations and the creation of public opinion 30 1.2 Conclusion 42 2. The Origin of the Diarchy: The Athenian Polis 45 2.1 A short note on equality of opportunity 48 2.2 Isonomia 49 2.2.1 Sixth century: The reforms of Solon 51 2.2.2 Fifth century: The reforms of Cleisthenes and Ephialtes 52 2.2.3 Fourth century reaction: The return to the patrios politeia 58 2.3 Isegoria 64 2.3.1 Sixth century: The reforms of Solon 65 2.3.2 Fifth century: The reforms of Cleisthenes, Pericles and Ephialtes 66 2.3.4 Fourth century reaction: The return to the patrios politeia 70 2.4 Conclusion 71 3. The Triumph of Election: Natural Right or Wrong? 74 3.1 The historical problem 76 3.1.1 The natural rights theory of consent 76 3.1.2 Institutional path-dependency 78 3.1.3 Geography and technology 80 3.1.4 The influence of Roman republicanism 81 3.1.5 Class interests 82 3.1.6 Religion 84 3.1.7 Meritocracy 85 3.2 The conceptual problem 87 3.3 Mansbridge revisited: perceived legitimacy 94 3.4 Conclusion 97 4. The Diarchy Reborn: The Representative Republic 101 4.1 ‘Acting for’ and ‘standing for’: two forms of representation 106 3 4.2 Advocacy and judgment: The Madisonian moment 114 4.2.1 A binary solution to the representative conundrum 117 4.2.2 Ancient remedies for a modern disease 119 4.3 Conclusion 124 5. Isonomia: The Deliberative Microcosm 125 5.1 Two Concepts of Deliberation 127 5.1.1 ‘Germanic’ isegoria-based theories 127 5.1.2 ‘Latinate’ isonomia-based deliberation 134 5.2 Advocacy - vs – Judgment 144 5.2.1 Speech Acts and their Measurement 145 5.3 The ongoing need for election 153 5.4 Conclusion 156 6. Epistemic Democracy and the Wisdom of Crowds 159 6.1 The counting approach: Condorcet’s jury theorem and the ‘wisdom of crowds’ 167 6.2 The talking approach: Cognitive diversity and democratic reason 173 6.2.1 Exchanging reasons – vs – weighing reasons 180 6.2.2 Cognitive diversity – vs – the wisdom of crowds 187 6.2.3 Authority, legitimacy and consent 192 6.3 The exception that proves the rule? 194 7. Isegoria: The Representative Claim 196 7.1 Numerical (arithmetic) and proportional (geometric) equality 198 7.2 The ‘Representative Claim’ 206 7.3 Pnyx: Representative isegoria in formal political institutions 210 7.3.1 Electoral representation 210 7.3.2 Pressure groups and single-issue advocates 217 7.3.2.1 New political parties 217 7.3.2.2 Single-issue advocates 219 7.3.3 Representation of ‘all affected interests’, non-human life, the environment and future generations 220 7.3.3.1 The environment, non-human animals and future generations 222 7.3.3.2 Rights, duties and constitutional safeguards 227 7.3.4 Direct-democratic initiatives 229 7.4 Agora: The informal public sphere 231 7.4.1 The ‘Fourth Estate’ 231 7.4.1.1 UK media – competitive and marginally profitable 233 7.4.1.2 American [and Italian] exceptionalism? 241 7.4.1.3 Public media 245 7.4.2 Randomly-selected demarchic committees and agenda panels 249 4 7.4.3 Deliberative, discursive and associational democracy 253 7.4.3.1 Deliberative democracy 253 7.4.3.2 Discursive democracy 254 7.4.3.3 Associational democracy 257 7.5 Reception and evaluation of representative claims 260 7.5.1 Justification of anti-democratic practice 262 7.6 Conclusion 266 8. From Theory to Praxis 271 8.1 Sortition as an alternative way of selecting political representatives 272 8.2 Advisory bodies 275 8.3 Polyarchy III 276 8.3.1 Representative isegoria (agenda setting) 277 8.3.2 Representative isonomia (judgment) 280 8.3.2.1 Advocacy (for and against the legislative proposal) 284 8.3.3 Parliamentary committees 287 8.3.4 Constituency affairs 288 8.3.5 Accountability, consistency, fiscal responsibility and executive governance 289 8.3.5.1 Elected (aristocratic) executive governance 290 8.3.5.2 ‘Monarchical’ (appointed) governance 295 8.4 Popular sovereignty – vs - the mixed constitution 301 8.4.1 Monarchical 306 8.4.2 Aristocratic 308 8.4.2.1 The Judiciary 309 8.4.2.2 The Media 311 8.4.3 Democratic 312 Appendix I: The Brexit Lottery 313 Appendix II: The Blind Break and the Invisible Hand 317 A2.1 Overture: Sortition and social theory 317 A2.2 Sortition and political theory 319 A2.2.1 The ‘Blind Break’ 320 A2.2.2 The ‘Invisible Hand’ 322 A2.2.3 Democratic reason and the wisdom of crowds 333 A2.3 Entailments 334 A2.4 Conclusion 336 Glossary 338 Bibliography 339 5 Tables and Figures Table 2.1: The evolution of isonomia and isegoria in classical-era Athens 72 Figure 5.1: Parliamentary democracy and party democracy 126 Table 7.1: Freedoms and equalities 201 Table 8.1: Margin of error, decision threshold and sample size 283 Table 8.2: The mixed constitution 306 Figure A2.1: The Blind Break 321 Table A2.2: The Blind Break and the Invisible Hand 337 6 Introduction Since the time of the birth of representative government at the end of the eighteenth century many claims have been made regarding the ‘crisis of democracy’. Most of the jeremiads were written in the wake of an extension to the franchise, and echoed Henry Ireton’s argument at the Putney Debates (1647) that ‘no man hath a right to an interest or share in the disposing of the affairs of the kingdom . that hath not a permanent fixed interest in this kingdom’. In the UK, conservative liberals such as Henry Maine and Walter Bagehot were deeply sceptical that parliamentary government could survive Disraeli’s extension of the franchise to include the majority of working men, and the resultant shift of the effective locus of decision making from the parliamentary chamber to the electoral hustings. However the turn of the twenty-first century has witnessed unprecedented disapproval with the entire political class, and a dramatic collapse in membership of political parties, right across the developed world, leading to claims that ‘the age of party democracy has passed’ (Mair, 2013, p. 1).1 In the UK the Royal Society for the Protection of Birds now has more than twice as many members as the three main political parties combined and politicians are now even more distrusted than estate agents, bankers and journalists (MORI, 2013). As Matthew Arnold’s Dover Beach (1867) catalogued the ‘long, withdrawing roar’ of the sea of religious faith, the long-term consequence of the Reform Act of the same year was to undermine voters’ faith in, and deference to, the political establishment. This is a consequence of the paradox at the heart of representative democracy – voters expect politicians both to pander to their wishes and at the same time to exercise strong leadership, giving rise to the (probably apocryphal) remark of the nineteenth-century French socialist politician Alexandre Ledru-Rollin: ‘there go the people, I must follow them for I am their leader’.