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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.

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