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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”.

EU sortition assembly and legitimacy 1

July 19, 2017
  1. Introduction:

In this chapter, we aim to adapt Gastil and Wright (forthcoming)’s sortition assembly proposal to fit EU institutions and generate greater legitimacy therefor. We accept that enhanced legitimacy is a major driving force behind deliberative innovations (Fung 2015, Curato and Böker 2016), and to that end, we put forward a rival proposal which better secures it: a consultative body of citizens with downstream deliberative powers. Would our alternative proposal better meet feasibility challenges and EU legitimacy requirements? And would it thereby solve for one facet of the EU democratic deficit? Naturally, these questions, as presently worded, are overly broad in scope. To get clearer on the proposals and stakes, it will be necessary to lay out the precise make-up of the two sortition bodies proposed and of the feasibility and legitimacy tests to which they will be put. Accordingly, we shall first examine the bodies’ structure and the different criteria for permutation: powers, function, embeddedness, level, dissemination. We shall then identify those structures which best fit both the overall purpose of the two rival proposals and the EU institutional context. At this point, we will elaborate two series of tests by which to measure the feasibility and legitimacy which the two proposals might accrue. The structures preselected will first be tested at the practical level through Kies (2016)’s seven golden rules. Attention will then shift to a second test at the theoretical level wherein the proposals’ “legitimation capacity”[1] is to be tested on four dimensions: personal, interpersonal, institutional, systemic. Finally, we shall conclude by showing how our proposal comes out ahead on both tests, is less constrained by EU institutional context and may light the way to further EU deliberative innovation.

Kymlicka’s Contemporary Political Philosophy 20

July 18, 2017

The above considerations suffice, for the author, to shift the burden of proof from multiculturalism’s defenders to its would-be critics. Barring further empirical evidence, there is little reason to suppose that multiculturalism and liberal democratic stability are conceptual opposites, distinct and incompatible across all cases. What will instead be necessary is greater attention to the details surrounding particular instantiations of such a relation. The author underscores this in a footnote to the above:

“Philosophers’ claims about the relationship between minority rights and social unity are often doubly speculative: first we speculate about the sources of social unity (the ‘ties that bind’), and then we speculate about how minority rights affect these ties. Neither sort of speculation is grounded in reliable evidence. For example, some political philosophers have suggested (a) that it is shared values which form the bonds of social unity in modern liberal states, and (b) that immigrant multiculturalism and/or multination federalism reduce the level of shared values. There is no good evidence for either of these speculations. I seriously doubt that minority rights have reduced shared values, but I equally doubt that it is shared values which hold societies together. (See pp. 253-7 above) Other philosophers suggest that it is shared experiences, shared identities, shared history, shared projects, or shared conversations which hold countries together. We have little evidence to support such claims about the source of social unity (and even less evidence about how minority rights affect these factors). We simply do not know what are the sources of social unity in multiethnic and multi nation states. To argue against minority rights on the grounds that they erode the bonds of social unity is therefore doubly speculative: we do not know what the real bonds of social unity are, and we do not know how minority rights affect them.” (376, footnote to page 368; cf. Kymlicka 2017)

Finally, Kymlicka turns to the politics of multiculturalism as it is practiced. He suggests that, like other politico-theoretical approaches surveyed in the volume, multiculturalism may take either a forward- or backward-looking form, either both at once or successively, depending on the aims of the group pressing their rights claims. More specifically:

“Multiculturalism takes these divergent political forms because modernization is a challenge not only for the mainstream society but also for minority groups. Multiculturalism can be invoked by minority groups to attack the conformism and conservatism of the larger society, and to pressure it to accept the new realities of openness and pluralism. But some members of the minority groups themselves fear this new openness, and invoke multicultural- ism precisely to justify suppressing the freedom and changes it brings. As a result, multiculturalism is sometimes invoked by liberals against a narrow and conformist conception of the national culture, and sometimes invoked by conservatives to defend a narrow and conformist conception of a minority culture.” (369)

Wherefore a strong ambiguity in its concrete everyday manifestations:

“As with communitarianism and civic republicanism, the political implications of multiculturalism depend in part on whether the people invoking multiculturalism accept the liberal premiss about the revisability and plurality of our ends. If they do, then we are likely to see a liberal form of multicultural- ism which seeks to challenge status inequalities while preserving individual freedom. If not, then we are likely to see a conservative form of multicultural- ism that seeks to replace liberal principles with a communitarian politics of the common good, at least at the local or group level.” (ibid.)

In the end, only a greater attention to details of this sort can help to sort liberal nation-building and minority groups out from their conservative counterparts, a note on which Kymlicka closes the multiculturalism section.

Kymlicka’s Contemporary Political Philosophy 19

July 17, 2017

To accept either of these amounts to seeing such measures not as discrimination but as compensation. The author judges this first aspect of the debate to be more or less settled. By this, he means that it is untenable for most participants to the debate to maintain that multiculturalism is intrinsically unjust. He clarifies:

“I do not mean that defenders of multiculturalism have been successful in getting all or most of their claims implemented, although there is a clear trend throughout the Western democracies towards the greater recognition of minority rights. Rather I mean that the terms of the public debate have been redefined in two profound ways: (a) few people continue to think that justice can simply be defined in terms of difference-blind rules or institutions. Instead, it is now recognized that difference-blind rules can cause disadvantages for particular groups. Whether justice requires common rules for all, or differential rules for diverse groups, is something to be assessed case by case in particular contexts, not assumed in advance; (b) as a result, the burden of proof has shifted. The burden of proof no longer falls solely on defenders of multiculturalism to show that their proposed reforms would not create injustices; the burden of proof equally falls on defenders of difference-blind institutions to show that the status quo does not create injustices for minority groups.” (366)

That this first grounds of opposition has fallen away does not mean that overall opposition to multiculturalist programs is at an end. Rather, attention has shifted to the question of whether multiculturalism inhibits social unity, political stability, civic virtues, common identities and society-wide practices. The author puts this objection as follows:

“Many critics claim that multi- cultural policies are misguided, not because they are unjust in themselves, but because they are corrosive of long-term political unity and social stability. Why are they seen as destabilizing? The underlying worry is that multi- culturalism involves the ‘politicization of ethnicity’, and that any measures which heighten the salience of ethnicity in public life are divisive. Over time they create a spiral of competition, mistrust, and antagonism between ethnic groups. Policies which increase the salience of ethnic identities act ‘like a corrosive on metal, eating away at the ties of connectedness that bind us together as a nation’ (Ward 1991: 598; cf. Schlesinger 1992; Schmidt 1997).” (ibid.)

To this first point is added a second, to the effect that emphasizing a politics of recognition comes at the expense of a politics of redistribution. In short, pursuit of one excludes the other. While Kymlicka is ready to concede that such objections, at least as initially worded, are indeed cause for concern, he is less convinced that they hold water upon closer examination. For there is a decided lack of empirical and conceptual clarity on these counts. To wit:

“But do we really face a choice between these goals? Is it in fact true that multiculturalism erodes support for the welfare state and the politics of redistribution? There has been much armchair speculation on this question, but remarkably little evidence. Reliable evidence is needed here, because one could quite plausibly argue the reverse: namely, that it is the absence of multiculturalism which erodes the bonds of civic solidarity. After all, if we accept the two central claims made by defenders of multiculturalism-namely, that mainstream institutions are biased in favour of the majority, and that the effect of this bias is to harm important interests related to personal agency and identity-then we might expect minorities to feel excluded from ‘difference- blind’ mainstream institutions, and to feel alienated from, and distrustful of, the political process. We could predict, then, that recognizing multiculturalism would actually strengthen solidarity and promote political stability, by removing the barriers and exclusions which prevent minorities from whole- heartedly embracing political institutions. This hypothesis is surely at least as plausible as the contrary hypothesis that multiculturalism erodes social unity.” (367)

The author furthers this line of reasoning with reference to two general cases, that of immigrant groups in countries with official multiculturalism policies and that of national minorities in liberal democracies.

“On the contrary, these two countries [Australia and Canada] do a better job integrating immigrants into common civic and political institutions than any other country in the world. Moreover, both have witnessed dramatic reductions in the level of prejudice, and dramatic increases in the levels of interethnic friendships and intermarriage. There is no evidence that the pursuit of fairer terms of integration for immigrants has eroded democratic stability (Kymlicka 1998: ch. 1). The situation regarding the self-government claims of national minorities is more complicated, since these claims involve building separate institutions, and reinforcing a distinct national identity, and hence create the phenomenon of competing nationalisms within a single state. Learning how to manage this phenomenon is a profoundly difficult task for any state. However, even here there is significant evidence that recognizing self-government for national minorities assists, rather than threatens, political stability.” (367-8)

Kymlicka’s Contemporary Political Philosophy 18

July 14, 2017

The fourth and fifth groups, metics and racial caste groups, differ from the above in that they are only indirectly targeted by liberal nation-building. More specifically, where the former groups are included in the societal culture, metics and racial caste groups are excluded therefrom. To what strategy might the latter then have recourse in order to redress injustice from the majority culture?

Metics, be they irregular migrants or temporary workers, typically seek paths to citizenship and, ideally, would appeal to strategy 2.). Whether they do so in actuality remains an open question. That said, policies based on voluntary return are empirically unsound, so there is considerable incentive for liberal democracies to open paths to citizenship. As the author puts it:

“This is not only prudent, but morally required. For it violates the very idea of a liberal democracy to have groups of long-term residents who have no right to become citizens. A liberal-democratic system is a system in which those people who are subject to political authority have a right to participate in determining that authority. To have permanent residents who are subject to the state, but unable to vote, is to create a kind of caste system which undermines the democratic credentials of the state (Baubock 1994; Carens 1989; Walzer 1983; Rubio-Marin 2000).” (359)

Sooner or later, there comes a time when the person’s original terms of admission no longer matter, and they are for all intents and purposes loyal and productive members of society.

The case of racial caste groups, particularly African-Americans in the United States, seems a case apart. Contrary to metics, they have no origin country to which they would voluntarily return. For this reason, none of the standard strategies worked out above seems appropriate, and it is necessary to pursue a mixed strategy for this group. Such measures “may include historical compensation for past injustice, special assist- ance in integration (e.g. affirmative action), guaranteed political representation (e.g. redrawing electoral boundaries to create black-majority districts), and support for various forms of black self-organization (e.g. subsidies for historical black colleges, and for black-focused education)” (361). If certain of these seem in tension with others, this owes more to the complex life of African-Americans regarding the majority culture than to incoherent public policy.

This closes Kymlicka’s overview of minority groups, minority rights and strategies therefor. He summarizes:

“If we try to combine these different demands into a larger conception of ethnocultural justice, we can say that majority nation- building in a liberal democracy is legitimate under the following conditions:

(a) no groups of long-term residents are permanently excluded from membership in the nation, such as metics or racial caste groups. Every- one living on the territory must be able to gain citizenship, and become an equal member of the nation if they wish to do so;

(b) insofar as immigrants and other ethnocultural minorities are pressured to integrate into the nation, the sort of socio-cultural integration which is required for membership in the nation should be understood in a ‘thin’ sense, primarily involving institutional and linguistic integration, not the adoption of any particular set of customs, religious beliefs, or lifestyles. Integration into common institutions operating in a com- mon language should still leave maximal room for the expression of individual and collective differences, both in public and private, and public institutions should be adapted to accommodate the identity and practices of ethnocultural minorities. Put another way, the conception of national identity, and national integration, should be a pluralist and tolerant one;

(c) national minorities are allowed to engage in their own nation-building, to enable them to maintain themselves as distinct societal cultures.” (362)

When legitimately employed, nation-building gives rise to a complex dialectic with minority rights in which each successively makes demands on the other. Moreover, their combination allows for a kind of mutual justification: if nation-building justifies minority rights, these likewise justify the former.

At this point, the author pulls back to identify a common thread running through the three phases of the multiculturalism debate, namely, whether minority claims are just. In order for the supporter of multiculturalism to advance that end, Kymlicka deems a certain number of elements necessary. First:

“The first task confronting any defender of multiculturalism, therefore, was to try to overcome this presumption, and to show that deviations from difference-blind rules which are adopted in order to accommodate ethnocultural differences are not inherently unjust. As we have seen, this has been done in two main ways: (a) by identifying the many ways that mainstream institutions are not indiffferent [sic.] to people’s ethnocultural identities, but rather are implicitly or explicitly tilted towards the interests and identities of the majority group; and (b) by emphasizing the importance of certain interests which have typically been ignored by liberal theories of justice-e.g. interests in recognition, identity, language, and cultural membership.” (365)

Kymlicka’s Contemporary Political Philosophy 17

July 13, 2017

While such a societal culture is by its nature thin and allows for rival notions of the good, it nonetheless requires integration into the core societal institutions. Hence it belies the account of “benign neglect” laid out above all while prompting new outlook on the multiculturalism debate. One must better take account of this culture and the identity bound up therein in order to make sense of the injustices to which liberal nation-building can give rise, be it cultural imperialism or ethnocultural prejudice. In the face of nation-building and injustice, minorities may have recourse, following Kymlicka, to one of five strategies: 1.) mass emigration, 2.) negotiation of integration terms, 3.) self-government rights and powers, 4.) permanent marginalization and 5.) military overthrow. Given the feasibility and morality questions surrounding, 1.), 4.) and 5.), the author deems 2.) and 3.) more likely strategies.

Naturally, one and the same strategy may make work equally well for all minority groups, a point which the author takes pains to make clear. Thus, it is important to fit strategy to group type of which Kymlicka delineates five: national minorities, immigrant groups, isolationist ethnoreligious groups, metics and racial caste groups. To each he devotes a short treatment to show what strategies, if any, may improve their situation vis à vis the majority culture.

National minorities come in two kinds: substate nations and indigenous peoples. Despite important differences, these minorities share an overall resistance to nation-building and typically pursue strategy 3.) with the aim of greater autonomy. If, previously, liberal nations sought to disempower and suppress national minorities, the past century has seen a remarkable change in attitude:

“It is increasingly recognized that the suppression of minority nationalism was mistaken, for both empirical and normative reasons. Empirically, the evidence shows that pressuring national minorities to integrate into the dominant national group simply will not work. Western states badly misjudged the durability of minority national identities. The character of a national identity can change quickly-e.g. the heroes, myths, and traditional customs. But the identity itself-the sense of being a distinct nation, with its own national culture-is much more stable. Liberal-democratic governments have, at times, used all the tools at their disposal to destroy the sense of separate identity amongst their national minorities, from the prohibition of tribal customs to the banning of minority-language schools. But despite centuries of legal discrimination, social prejudice, and indifference, national minorities have maintained their sense of forming a distinct nation, and their desire for national autonomy.” (351)

Combined with normative considerations, these empirical observations serve to show the counterproductive effects of nation-building directed at national minorities and the need to change tack. While unable to espouse a theory of permissible nation-building, Kymlicka suggests that, in the case of national minorities, the burden of proof lies with the majority culture rather than the minority group.

By immigrant groups, the author intends both those who immigrate for economic reasons and those who immigrate for political reasons. Still, an important distinction needs to be made between those who become citizens and those who do not. Kymlicka focuses on the former while reserving the latter for discussion of “metics” below. So, how do immigrants on the path to citizenship handle nation-building efforts from the majority culture? The author opines that they are unable to resist such efforts but nonetheless seek to exact a certain price for compliance. In short, they pursue strategy 2.) in contrast with national minorities. He writes:

“Indeed, many recent debates over ‘multiculturalism’ in immigrant countries are precisely debates over renegotiating the terms of integration. Immigrants are demanding a more tolerant or ‘multicultural’ approach to integration that would allow and support immigrants to maintain various aspects of their ethnic heritage even as they integrate into common institutions operating in the majority lan- guage. Immigrants insist that they should be free to maintain some of their old customs regarding food, dress, recreation, religion, and to associate with each other to maintain these practices. This should not be seen as unpatriotic or ‘un-American’. Moreover, the institutions of the larger society should be adapted to provide greater recognition and accommodation of these ethnic identities-e.g. schools and other public institutions should accommodate their religious holidays, dress, dietary restrictions, and so on.” (354)

Although one might point to the need for assimilation in order to become “loyal and productive members of society”, this begs the question by predetermining that immigrants are not already loyal and productive. Imposing further entry costs on immigrants does little to help the process of assimilation. On the contrary, it would be worthwhile, as the author suggests, to lower those costs through mother-tongue services and common institution more sensitive towards cultural and identity differences. Only then can the costs imposed be considered to have fairer terms.

The third group, isolationalist ethnoreligious groups, pose rather more difficulties for nation-building and injustice. First, it should be noted not all such groups seek to isolate themselves from modern society, making strategy 4.) limited in applicability. Secondly, it is unclear whether liberal democracies should continue to offer such groups concessions common institutions, civic duties and standard education even if standard practice to this point has often extended them these concessions. After all, such groups may impose stringent internal requirements which impinge on their members’ autonomy. In short, their situation merits case-by-case scrutiny.