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EU Sortition and legitimacy A

November 14, 2017

EU sortition and legitimacy

If we accept that enhanced legitimacy is a major driving force behind deliberative innovations (Fung 2015, Curato and Böker 2016), then it follows that any proposed innovations should be scrutinized to determine whether they live up to the legitimacy norms driving their creation. By combining the “deliberation-making”[1] capacities of a mini-public with the decision-making powers of an elected legislative assembly, it would seem that Gastil and Wright (forthcoming)’s proposed sortition assembly secures a “hybrid legitimacy”[2]. By this we mean that linking the sortition assembly (for all intents and purposes, a continuous mini-public) directly with the decision-making body as one half of the legislative power ordinarily enables their proposal to meet critiques addressed from either of two sides.

Of the one-time deliberation-making mini-public, the following critiques will be familiar to readers: societal uptake or publicity (Parkinson 2006; Karpowitz and Raphael 2014; Escobar and Elstub 2017; Rummens 2016); political uptake (Parkinson 2006; Caluwaerts and Reuchamps 2016). Of the one-time decision-making mini-public, various authors have targeted such concerns as: accountability (Parkinson 2006; Karpowitz and Raphael 2014); redundancy (Lafont 2015). Then there are those issues which concern both forms: equality (Karpowitz and Raphael 2014); motivations, biases and frames (Parkinson 2006; Morrell 2014; Calvert and Warren 2014) representativeness (Parkinson 2006; Lafont 2015); capture by interests (Parkinson 2006); fragmentation of political stakes (Pourtois 2013). If we allow that Gastil and Wright’s proposal prima facie meets or holds off these different critiques, it represents a striking contribution to the field of democratic innovations beyond mini-public design.

With that status comes, however, the need for scrutiny, such that the proposed sortition assembly must first pass theoretical muster. Rather than advance a general critique of legitimacy (be it through the lens of legitimacy/legitimation/legality (Parkinson 2006), supply/demand (Niemeyer 2014) or input/throughput/output (Suiter and Reuchamps 2016)), we shall instead focus on the potential role of a sortition assembly within the European Union (EU) and its “democracy deficit”. Indeed, it remains an open question whether the EU context does not necessitate the creation of alternative normative criteria beyond deliberative mini-publics standards (Vink 2007). For present purposes, we hold that Gastil and Wright (forthcoming)’s proposal is 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)[3]. This proposal in place, we shall push back thereon by signalling, in this section, two potential issues for legitimacy in the form of accountability and societal uptake.

It should be mentioned that the basis for this section is Olsen and Trenz (2014)’s study of the 2009 transnational deliberative poll EuroPolis, a study which concludes by underscoring the limits of deliberation-making mini-publics within a European context. To their credit, with the incorporation of decision-making powers, Gastil and Wright (forthcoming) may overcome those limits and help incite the needed “transformation of political culture and media in Europe” (Olsen and Trenz 2014: 131) which the generalization of mini-publics presupposes but is unable to supply in response to the lack of a micro-macro link.

Yet not all doubts dissipate with the change in stakes. Accordingly, it will first be necessary to extend Olsen and Trenz (2014)’s concerns in order to see whether these concerns find similar purchase in the proposed sortition assembly as in the deliberative poll. More specifically, this section will press Gastil and Wright (forthcoming) on the following questions: whether pairing a sortition assembly with the European Parliament (EP) enables the former to “piggyback” on the latter’s principal-agent representation and accountability; whether being paired with the EP and having EU-level decision-making power ensures the sortition assembly the kind of transnational visibility necessary for societal uptake in the media and “maxi-public” (Suiter and Reuchamps 2016). We shall ultimately conclude that questions of accountability and societal uptake are of enough concern to shift the burden of proof to EU sortition assembly proponents.

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

[2] This is a term which we owe to Talpin (2016). Whereas the latter broaches the question of whether constitutional deliberative democracy and deliberative constitution-making can attain, within one deliberative forum, epistemic, common-sense, democratic and representative legitimacy, we leave the constitutional setting out and focus instead on combining deliberation- and decision-making within one and the same deliberative forum.

[3] In fairness, the authors set out several 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: 28-29).

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