Skip to content

EU sortition assembly and legitimacy 8

August 11, 2017

This initial presentation affords us a better grasp on both the need for these four systemic legitimacy criteria and their interdependent realization. Should these criteria exist together between forum and macro-political sphere, they ensure the flow of deliberation between forum and sphere, sphere and forum. Should one or more be missing, that flow of claims and counterclaims between forum and sphere, sphere and forum may be interrupted. Moreover, their strong interrelation suggests a capacity for symbiosis or pathology: more criteria overall is mutually reinforcing; fewer criteria overall is mutually undermining. In any case, supposing that threshold levels of publicity, political uptake, transparency and accountability are reached, most would rightly accept the forum’s relations to the macropolitical sphere and hence its conclusions as appropriately legitimate for that level. Furthermore, the greater or lesser coincidence of personal, interpersonal, institutional and systemic legitimacy within one and the same forum would secure it a greater level of overall legitimacy, of which the factor are recapitulated in the table below.

Screen Shot 2017-08-08 at 23.47.29

EU sortition assembly and legitimacy 7

August 10, 2017

a.) Systemic legitimacy

With this, we come to the last of the legitimacy forms wherein focus shifts from institutional design to a forum’s relation with the broader macro-deliberative sphere. More specifically, we examine those deliberative factors affecting the transmission and insertion of the forum’s conclusions into the rest of the political or deliberative system. Of note will be four deliberative factors: publicity (Karpowitz and Raphael 2014, Lafont 2015, Mansbridge et al. 2012, Olsen and Trenz 2014, Parkinson 2006), political uptake (Caluwaerts and Reuchamps 2016, Parkinson 2006), transparency (Karpowitz and Raphael 2014, MacKenzie and Warren 2012), and accountability (Escobar and Elstub 2017, Parkinson 2006). The presence or absence of these criteria, or a subset thereof, is critical for determining whether the participant or observer confers legitimacy on the forum’s conclusions.

The first criterion so designated is “publicity”. While the term is polysemous (Karpowitz and Raphael 2014: 22-23), we intend it in a broad sense: whether and how the deliberative forum manages to “address and potentially include all the citizens to whom collective decisions apply” (Olsen and Trenz 2014: 120). Put somewhat differently, publicity concerns the forum’s success in “communicating their goals, process, and conclusions to other elements of the political system” (Karpowitz and Raphael 2014: 5). This might take place through: the participants’ reporting back to their communities, before, during or after deliberation, and setting up their own forums (Escobar and Elstub 2017); their ensuring coverage in the available mass media (Parkinson 2006, Elstub and Escobar forthcoming); their feeding conclusions through the traditional political institutions for additional reach and resonance (Rummens 2016). Regardless, the forum must assure public outreach of one shape or another if they are to meet the publicity criterion.

Political uptake stands as the second criterion in establishing systemic legitimacy. Follow Caluwaerts and Reuchamps (2016), this term designates “the effective impact of the deliberative decisions on real world politics”, if not through direct implementation by policymakers, at least as the starting point to their agenda-setting (15). In short, we seek to know to what extent the deliberative forum’s conclusions are integrated within the formal political institutions. For the forum must yield practical results if it is to be a political actor amongst others, bearing on rather than away from the rules of the political game. While this might be accomplished more readily by linking the forum up with those institutions through formal embedding or shared membership between the two, that link may carry dangers of co-optation (Caluwaerts and Reuchamps 2016: 22-3). That said, the lack of any formal link carries with it the risk of no political uptake, which seemingly consigns the forum to illegitimacy on one important criterion.

As regards transparency, this condition concerns the extent to which the forum includes “mechanisms for oversight, competition between information providers, and opportunities to openly challenge statements, claims, or positions”. (MacKenzie and Warren 2012: 112). Furthermore, it
allows those who are willing, in principle, to forgo the efficiencies of passive trust, to actively verify whether a minipublic is competent or sufficiently knowledgeable, and whether deliberations were substantive and sufficiently well conducted to allow for the emergence of an identifiable expression of public interest (idem).
Such mechanisms and means allow participants and non-participants to bring into focus both the content of deliberation and its institutional framing. If we take seriously the idea that content’s quality is dependent on framing and that content must be publicized in the name of systemic legitimacy, it would seem to follow that framing qua content-structuring is subject to that same demand on behalf of both participants and non-participants. Any forum excluding recourse to mechanisms and means of this kind runs the risk of its systemic legitimacy falling away.

Finally, the systemic legitimacy criterion of accountability requires that participants “also persuade those who did not take part in it of its legitimacy” (Karpowitz and Raphael 2014: 6). In this sense, accountability brings together certain aspects from the criteria of “publicity” and “transparency” above insofar as these concern to whom and of what one gives an account. Indeed, the accountability criterion concerns both those within the forum and without as Escobar and Elstub (2017) demonstrate in laying out five possible lines of formal accountability for mini-publics: participant-participant; participant-community, organizers-organizers, organizers-convening body, convening body-representative body (9). While these forms of accountability may assuage doubts over principal-agent accountability all while securing higher deliberative quality (Escboar and Elstub), others will prefer principal-agent accountability through electoral means in the case of a decision-making deliberative forum (Parkinson 2006: Ch. 4). Regardless, from the above emerges the importance of institutionalizing intramural and extramural ties of responsibility, without which deliberative forums may lack a basic form of legitimacy ordinarily secured to representative democracy in virtue of its very form.

EU sortition assembly and legitimacy 6

August 9, 2017

a.) Institutional legitimacy

In comparison with the personal and interpersonal forms of legitimacy, institutional legitimacy concerns itself less with the persons making up the deliberative forum and rather more with the shape of the deliberative forum and the people responsible therefor. In other words, the institutional form concerns those deliberative factors operative within the institutional design and which confer legitimacy on any conclusions at which the forum arrives and puts forward. Note that we are here concerned with the framing of the group’s conclusions more than the conclusions themselves. In short, we aim to give an account of what the instititutional design must look like to secure legitimacy for its own work as the vehicle of a group’s conclusions.

To that end, we isolate four conditions important in establishing a deliberative forum’s legitimacy or illegitimacy: equality (Karpowitz and Raphael 2014, Parkinson 2006), quality of representation, epistemic completeness and open-agenda setting (Caluwaerts and Reuchamps 2016). Of the four conditions, the first, equality, may be the most contestable given the varied meanings which the term connotes: moral equality (Rawls 1971), political equality (Parkinson 2006), equal voice (Stout 2004). Fortunately, the institutional context allows us to refine the condition sought after as the ideal of “equal access to public discussion” (Stout 2004: 168) and, as a result, the need to provide each person sufficient or equal speaking time. For, by shutting out minority voices, the forum itself would lose claims to the more comprehensive notions of moral and political equality.

With this, we turn to the first of the three “input” legitimacy conditions taken from Caluwaerts and Reuchamps (2016). Quality of representation or demographic representativeness hinges on the extent to which each person concerned by the outcome of a deliberation process has an opportunity or equal chance to participate therein. This is most often assured by the use of stratified random sampling, accompanied by further measures to reduce demographic skew from drop-out and self-selection. In this way, the deliberative forum benefits from the presence of a person with whom each person could reasonably identify, an important consideration in establishing the forum’s legitimacy.

To this first “input” legitimacy condition is joined a second, epistemic completeness. A deliberative forum only manifests this factor “to the extent that the participants have access to all public dis- courses or frames on the issue under discussion” (Caluwaerts and Reuchamps 2016: 14). In a word, this factor accrues to a deliberative forum on the condition that its organizers provide participants as much information and access to experts and stakeholders as possible for the essential tasks of problem-framing, deliberation and solution-seeking. Only with a more or less complete view of the matter under deliberation can participants be said to have arrived at conclusions taking account of all relevant points of view. Such taking account guarantees a further measure of legitimacy.

Finally, open agenda setting completes the two preceding factors for Caluwaerts and Reuchamps and by which they designate the rights of “the participants to explore new and adjacent problems” and “to approach the issues more holistically” (Caluwaerts and Reuchamps 2016: 14). To some extent, this factor stands to “epistemic completeness” as its logical extension. In order for participants to adapt the agenda to new and pressing question, they will have need of the information made available through respect of the criterion of epistemic completeness. Moreover, this insulates the deliberative forum from attempts to co-opt or foreclose deliberation (Parkinson 2006) and signals to participants and nonparticipants the presence of a deliberatively legitimate process.

In the end, these four institutional legitimacy criteria may make themselves unevenly felt within a single deliberative forum. At their best, equality, quality of representation, epistemic completeness and open-agenda setting coincide in a single forum and ensure that all points of view are present or represented therein. That said, so long as a certain threshold level of presence or representation is met, we may consider that interpersonal legitimacy is secured, for it admits of degrees. Indeed, it seems that, in such cases, both the group, the forum, and observers would have reason to accept the forum’s conclusions as legitimate. Again, by extension, it is worth asking whether a deliberative forum’s having institutional legitimacy promotes institutional legitimacy in other forums.

EU sortition assembly and legitimacy 5

August 8, 2017

a.) Interpersonal legitimacy

In contrast with the preceding form of legitimacy, the interpersonal form corresponds to those deliberative factors operative between persons which confer legitimacy on any conclusions at which the persons arrive and put forward as a group. In other words, we seek to determine what relations persons must maintain towards others’ preferences and objectives in order to confer legitimacy upon group deliberation. We contend that interpersonal legitimacy has one basic shape which can be declined in any number of ways: “reflective assent” (Dryzek 2001, 2010), reasoned agreement (Cohen 1998), justification to those affected (Gutmann 1996), “mutual justification” (Lafont 2015), “metaconsensus” (Dryzek and Niemeyer 2006), acceptable procedure (Gutmann and Thompson 1996). We further maintain that each evinces concern for two conditions: reciprocity and collective autonomy.

For the sake of brevity, we shall retain only Lafont (2015)’s proposal as the most synthetic of the forms above. She writes thereof:

At the core of the idea of a deliberative democracy is the notion of mutual justification […] According to this view, public deliberation contributes to democratic legitimacy to the extent that it enables citizens to endorse the laws and policies to which they are subject as their own. This is the internal connection between public deliberation and the democratic ideal of self-government. To the extent that citizens can mutually justify the political coercion they exercise over one another, they can achieve political autonomy […]. (Lafont 2015: 45)

Herein, we find most components identified by the other forms given above: assent to objectives or procedures, mutual address of reasons, audience of the public affected. Lafont (2013) further specifies the ideal of mutual justification as persons’ “ow[ing] one another justifications based on reasons that everyone can reasonably accept for coercive policies with which they all must comply” (402) and balancing their “right to include [their own] cognitive stances with the need to secure reasons acceptable to everyone” in deliberation” (425).

In sum, mutual justification, and the ideals which it glosses, comprises important parts of “reciprocity” (Gutmann and Thompson 1996: Ch. 2, cited in Parkinson 2006: 150) and “collective autonomy” (Karpowitz and Raphael 2014: Ch. 1). Reciprocity provides that each person has the opportunity to share her preferences, objectives and reasons therefor with every other while collective autonomy ensures each person is aware thereof and has reflected thereon before arriving at a given conclusion as a group. When these conditions are in place, interpersonal legitimacy is secured; both the group and an observer would have reason either to accept their conclusion out or to entertain it seriously as a possibility. By extension, we should also inquire whether a deliberative forum also fosters interpersonal legitimacy in the broader public sphere.

EU sortition assembly and legitimacy 4

August 7, 2017

5. Theoretical test for legitimacy

In this section, we turn our attention from more practical considerations to rather more theoretical considerations of legitimacy regarding, more broadly, deliberative democracy and, more narrowly, minipublics. To that end, a brief literature summary on differing conceptions of legitimacy will first be necessary, which we propose to organize along four lines: personal legitimacy; interpersonal legitimacy; institutional legitimacy; systemic legitimacy. This will issue in a four-part test for legitimacy on the dimensions above mentioned, both within and without the sortition assembly itself. Only then shall we put each of the proposals to the multi-part test. It should be mentioned from the outset that certain factors (e.g. autonomy and equality) are interdependent to such an extent that our survey of distinctions may, at times, appear artificial.

a.) Personal legitimacy

By this term, we seek to isolate those deliberative factors operative within the person which confer legitimacy on any conclusions at which she arrives and puts forward. More simply, we must ask what the person’s relation to her preferences and objectives must be like to generate legitimacy for deliberation. These factors take either of two forms: transformation of the person’s inner reasons and political choices in the direction of greater coherence between desires and objectives (Manin 1987; Felicetti et al. 2016; Niemeyer 2014); increased capacity for individual autonomy (Karpowitz and Raphael 2014).

The first of these concerns transformation within the person’s preferences and “the extent to which inner reasons are made salient, considered and matched to appropriate political choices” (Niemeyer 2014: 4). As Manin (1987) puts it:

In the course of deliberation and the exchange of points of view, individuals become aware of the conflicts inherent in their own desires. This leads them to modify the objectives they held at the start, to give up some of them and to tone some of them down in order to make them compatible with others, thus bringing about a conciliation or compromise. (350)

In a word, should the person show herself capable of introducing a greater measure of post-deliberation coherence between her preferences and objectives, she manifests a responsiveness to discourse, reasons and considerations which makes her resultant preferences prima facie acceptable to others. Hence, the personal legitimacy criterion of coherence is met.

As regards the second, autonomy, attention shifts to whether and how much the person is “aware of, and [has] reflected on, [her] own and other’s preferences, and the reasons that justify those preferences” (Karpowitz and Raphael 2014: 24). Put differently, should the person demonstrate a willingness to study her and others’ preferences, objectives and reasons’ therefor, then she exercises the necessary preconditions for “rational revisability” (Buchanan 1975, cited in Kymlicka 2002: 278). Hence, the personal legitimacy criterion of autonomy is met; both the person and an observer would have reason either to accept her conclusion outright or to entertain it as a serious possibility. By extension, it must also be asked whether the existence of a deliberative forum promotes personal legitimacy for non-participants as well as participants.

Before moving on to interpersonal legitimacy, it should be noted that autonomy logically precedes coherence in the sense that the study of one’s and others’ preferences and objectives hypothetically leads to the gain in coherence. That said, one may conceivably exercise autonomy without taking the step to greater coherence, whether due to cognitive or motivational failings, interpersonal or institutional blocks or interruptions, etc. In this way, while autonomy and coherence are linked in practice, they come apart in theory: empirically conjoined, conceptually distinct.

EU sortition assembly and legitimacy 3

July 21, 2017
  1. Selected range of permutations:

With this we close the range of permutation criteria and move to the second part of our exposition in which we identify the combination of criteria which best fit each of the rival proposals. For purposes of clarity, we will presume that Gastil and Wright (forthcoming)’s preferred proposal consists in that put forward in their opening chapter: with the European Parliament and the Council of Ministers, “a sortition chamber with 250 members would provide a popular counterpoint” (29)[1]. Following their reasoning, this sortition assembly would, on our reading, include the following permutation criteria:

  1. Power or function: Decision-making (drafting and vetoing legislation)
  2. Institutionalization: By executive fiat
  3. Institutional embedding Paired with a legislative body
  4. Institutional level Supernational (EU-level)
  5. Publicity Transparency (both), b. Diffusion (either)

In contrast, our rival would put forward the following combination:

  1. Power or function: Deliberation-making (upstream deliberation)
  2. Institutionalization: By executive fiat
  3. Institutional embedding Paired with a legislative body
  4. Institutional level Supernational (EU-level)
  5. Publicity Transparency (both), b. Diffusion (either)

At first blush, all that which separates Gastil and Wright’s proposal from our own is the shift from decision-making power to a deliberation-making function. Our reasons for this will come out more clearly during the practical test for feasibility and legitimacy to follow, as well as in its more theoretical counterpart.

[1] In fairness, the authors set out a number of other proposals of which the above is but one. Namely, they ask whether it might not be foreseeable to create a sortition assembly in countries with either weak or healthy democratic institutions and looking to reform those institutions (Gastil and Wright forthcoming: 28-9).

EU sortition assembly and legitimacy 2

July 20, 2017
  1. Criteria for permutation:

In this section, we scrutinize the precise make-up of the candidate sortition assemblies along five main dimensions: 1.) power or function; 2.) institutionalization; 3.) institutional embedding; 4.) institutional level; 5.) publicity. In what follows we shall briefly lay out the different permutations possible along each dimension. If not otherwise mentioned, we accept the description and conditions set by the authors.

  1. Power or function:
  2. Decision-making (or legislative)
    1. Drafts legislation
    2. Vetoes legislation
  3. Deliberation-making (or consultative)
    1. Advises ahead of legislative process (upstream deliberation)
    2. Advises in legislative process (downstream deliberation)

For sortition assemblies, the power or function may divide along either of two lines. A sortition assembly can be decision-making in the sense that it exercises legislative power of its own. That power can take the form of drafting legislation or that of vetoing legislation passed by the legislative power. Otherwise, a sortition assembly can be “deliberation-making”[1] insofar as it operates in a consultative role, in which case it may either intervene upstream of the legislative process or downstream thereof.

If upstream, following Kies (2016), the assembly may provide the legislative body with input in the form of public hearings, questionnaires, emails through an information system, etc. by means of which assembly members contribute information, prior to the legislative process, “concerning the acceptability of its policy, the definition of its objectives, and the tools to be mobilized in order to reach them” (5). Following the input phase, the legislative body may be required to provide assembly members feedback on their contributions. If downstream, following Boswell (2015), the assembly may provide the legislative body with input in the form of “scrutiny forums, contestatory reviews and feedback funnels” (Felicetti et al. 2016: 3), which embeds deliberative inputs directly in the legislative process.

  1. Institutionalization
  2. By executive fiat
  3. By popular referendum
  4. Self-institutionalization

Any new body, be it sortition assembly or more conventional, requires an initial institutionalization. The question is then at the hands of whom. The task of creating and institutionalizing a sortition assembly could conceivably be taken up by either of three groups: by government use of executive fiat; by the voting public’s choice via popular referendum; by a third-party organization’s advocacy and influence.

  1. Institutional embedding
  2. Paired with legislative body
  3. Unpaired with legislative body

A sortition assembly may be institutionally embedded in various ways, of which two are particularly important for the proposal put forward by Gastil and Wright. The assembly may either be paired or unpaired with a legislative body. If the former, assembly members will have regular interaction with the legislative body members. If the latter, assembly members will operate independently of the legislative body members.

  1. Institutional level
  2. Local
  3. Regional
  4. National
  5. Supernational (EU-level)

The sortition assembly’s institutional level is a natural complement to its institutional embedding. For this, we envision four possibilities: local, regional, national or supernational (i.e. EU-level). Though more or less self-explanatory, these levels can be further elaborated as follows. If a sortition assembly gathering at the local level and deliberating on local problems draws its membership from localities, cities, agglomerations and counties, another deliberating on the problems proper to a group or the whole of localities, cities, agglomerations and counties draws its membership from the broader region and so operates at a regional level. Likewise, a sortition assembly may deliberate on problems facing a group or the whole of regions within a nation at which point it draws its membership from the nation and operates at a national level. Finally, should a sortition assembly deliberate on problems confronting a group or the whole of the nations (within the European Union), it draws its membership from those nations and operates at a supernational level.

  1. Publicity

The final permutation criterion concerns the way in which the sortition assembly and its members interface with macropolitical deliberation and the broader public sphere. For this criterion, the questions of the assembly’s transparency and manner of diffusing its deliberation are predominant. Following Karpowitz and Raphael (2014), transparency breaks down into two categories: transparency concerning argumentation within the assembly and the assembly’s internal organization. More specifically, we may ask whether the assembly successfully communicates its conclusions, its reasons and evidence therefor, the norms and values underlying those reasons, and rival views and proposals set aside during the course of deliberation. Likewise, it is important to question the extent to which the assembly reveals the norms, conditions and objectives as well as the logistical support and institutional design which shape its everyday workings (Karpowitz and Raphael 2014: 30).

As to the diffusion of results, the sortition assembly may choose to share its results in either of two ways: “decisional” or “dialogic” (Karpowitz and Raphael 2014: 31). On the basis of the array of proposals, reasons, evidence, norms and values put forward during deliberation, the assembly will issue a recommendation. Whereas a recommendation underlining the conclusions arrived at shows a more “decisional” character, a recommendation highlighting the role of reasons and evidence manifests a more “dialogic” character. While neither is a pure type, the difference in emphasis may alter the broader public sphere’s engagement with and acceptance of the recommendation made.

[1] Niemeyer (2014), cited in Curato and Böker (2016).

[2] For examples of supernational or EU-level civic deliberation, if not sortition assemblies, see Kies (2016) on the consultative website “Your Voice in Europe” and Olsen and Trenz (2014) on 2009’s transnational deliberative experiment “Europolis”.