Which legal procedures should be used to protect legitimacy of sortitition based deliberative democracy?

Question

"sortition based deliberative democracy" - I'm not certain how exactly such a system should be called in English. I mean a political system in which instead of making a general election or referendum, one selects a random group of citizens, then provides them with detailed data about some issue, lets them think and talk about it and at the end gets their opinion, which reflects the average persons views, but also is done by well informed people. Seems that on wikipedia the closest idea is: https://en.wikipedia.org/wiki/Deliberative_opinion_poll

Nevertheless, such an idea sounds quite nice. But there is a matter of legitimacy of the system. Let's say 80% of population supports idea A, while 20% B. After selecting random citizens, giving them data from experts, long discussion, drinking coffee, they mostly changed their mind and the result is 30% A and 70% B, which by rules make the country choose B.

Quite possibly the selected decision is reasonable. Nevertheless, what message was sent to public opinion? (If you had read more about the issue you'd change your views?)

Already in a standard representative democracy, there are people puzzled how on Earth it is possible that someone wins, who had opposite views to them and most of their acquaints. Not mentioning that for example in the US it became a politically controversial issue how many people were on the photo of the presidential inauguration. (Sorry Americans for choosing an example from your country, but embarrassing stuff from my country is luckily not so well publicized in world media).

Then in such a sortition based deliberative democracy there are even more issues where the system can be slightly manipulated, or even worse, just look like such.

• Sample selection (I'm not asking how to do it correctly from statistical perspective, but how to do it in a convincing way)

• Expert selection (mainstream scientist? Both sides? Or maybe there are quite a few sides? Or maybe there is realistically quite clear scientific consensus, and the real debate should be about technically dealing with the issue)

• Moderator selection.

• Setting selection, etc.

• Secrecy or total publicity? (Problem of people being afraid of making themselves idiots in front of milion people and problem of being afraid of revenge or expecting reward for openly voting in one way or another. (including just being ostracized by your own community))

OK, so how can I make such a system look legitimate? I mean a system in which an average person prefers option A, was selected option B, still may have doubts whether B is really such a good choice, nevertheless grudgingly accepts that everything was being done correctly and that there is no vast conspiracy?

Answer 1

Off the top of my head - the discussions of the "jury" are all recorded and made completely public, and they also must provide the reasoning for the final decisions, with references to the relevant discussions.

Someone can challenge it, sort of like appealing a court decision, if they provide a good enough reason with respect to the recordings of the discussions and the reasoning provided. So to challenge, you yourself listen to all the discussions, understand the reasoning, as well as have the original information provided to the jury.

Although...

I imagine, in practice, the challenge would turn out to be quite expensive.

The result being that only the rich could afford to do so, giving them an unfair advantage over the law - this could be a plot hook to your scenario I suppose.

The other possibility is that the challenge is free (i.e. the tax-payer pays for it), but then you'd probably end up with a long waiting list of challenges and bureaucracy/red-tape while administrators have to sort through the list separating the worthy challenges from the frivolous/unresearched ones (because you couldn't have the country paying for every single challenge) - those administrators could be corrupt also.

And then, you have the problem of there being no scapegoat! In most democratic societies, if a politician makes a controversial or unpopular decision, they have to answer for it. People have a person to complain about, a person to take to task. That's fine for a politician - they chose to get into politics, they knew this could happen and are well trained and prepared for it.

It would be unfair to expect a randomly chosen member of the public to have to put up with the same thing - jury intimidation is bad enough, but imagine having half the country after your head!

Answer 2

You seem to be using a straw man argument against your own idea by comparing it to some democratic ideal that doesn't actually exist. It would be more reasonable to compare it to modern western democracies that most people find acceptable and start from there.

In modern western democracies almost all important decisions are made behind closed doors by small groups of leading politicians closely allied to each other, usually with direct input from special interest groups with interest in the outcome of the decision and direct financial links to the politicians making the decisions. Only democratic part of the process is that people get to vote on the people who decide which politicians decide which decisions to make. Most people find this acceptable and consider it a democratic political process.

So the bar you actually need to surpass is more or less subterranean. People do not really care that much about participating in the "big government".

It is sufficient that in theory the will of the people is supreme and the politicians do not openly disrespect that. Basically, if a decision is condemned by a large section of population the politicians have to reconsider it and be seen reconsidering it. If there is obvious division of opinion that everyone is familiar with, it is enough to iterate and affirm the reasons your side thinks the way it does. That is considered part of the political mandate from winning an election.

Your system where ordinary people actually get to participate would surpass this bar pretty much automatically, if it works and people trust it works. The weak part is actually the random selection process, how do you know that the selection is really random and representative?

I am afraid the only real answer to this is to select lots of people. The larger the group making the decision is, more difficult it is to game the system without it being obvious. In practice since the deliberative process does not work for large groups, you'd need to have a large number of small groups doing the deliberation and study, and then voting on the decision with the individual votes from all groups then combined for the final decision. You'd also need a mechanism for the groups to communicate with other groups working on the issue. Otherwise the votes might be incompatible or fragmented, with the "result" not corresponding to what people actually think.

This has the added benefit of increasing the chance that a person has recently participated in the process and is familiar with it. Familiarity equals acceptance, which is your goal here.

The process would also be at least partially open so that it can be verified that it works properly. It should be possible to verify that the information given to the groups is not biased and that the votes are counted correctly. It should also be possible to communicate with the groups during the process, if you feel some aspect is ignored or dispute some of the information used.

Answer 3

The greatest flaw in your system will probably turn out to be "tyranny of the majority"

It's one of the duties of professional politicians to prevent this from occurring, your amateurs have no such duty and will likely only represent their own interests.

Selecting your council

Who is eligible? Everyone, adults, adult men, adult men without a criminal record, adult landowners. Do you eliminate the mentally challenged? If so where do you draw the line? IQ of 60/100/140. The intellectual elite are just as bad at being elitist as any other group and will fail to allow for, or understand, ordinary people.

There are self selecting elements as well, only people who are willing to be found can take part.

Are they bound to serve once selected? Perhaps the person selected really doesn't want to take 4 years out of working on their new startup. These are people with lives of their own, having to spend the next 4 years as a politician might as well be a prison sentence. However if not an enforced term you end up with an unrepresentative group consisting of the people who have time right now to take part, the unemployed, the unemployable, the very junior.

Is your random selection going to be representative? True random is dangerous, you're going to have to load it so each demographic group has representation of their interests or the tyranny of the majority is a given, though you might end up with a council loaded with some tiny minority interest just because that's how the dice landed.

The bureaucracy

This is fundamental to your system and open to all sorts of corruption. As a permanent group of state employees it'll be their job to run the random ballot, their job to attempt to contact the selected persons and their job to record and enact the decision. How much effort are they going to put into contacting someone before selecting another? How much will that failure to contact the correct person affect the balance of the voting.

The council

How long does it sit for? Are they eligible for re-selection in the future or is it a one term only thing? Some sort of overlapping terms so people with a few years experience can support the incoming group and explain how it all works?

A new "clean" group has the advantage of not getting involved in the power politics of the previous group but remember they're just random citizens and have no real idea what's going on so it's going to take a while to get a new group up to speed. However if there's crossover the new group becomes contaminated by the flaws of the last and you miss the point of the system.

In summary

This system has occasionally been considered, one of the more amusing regulations is usually to automatically invalidate the selection of anyone who has expressed any interest in the position. While it solves some of the problems of party based representative democracy, it introduces a whole world of new problems of its own, not least being that many of the people involved will resent being chosen, and that no appointee has expert knowledge of what's expected of them.

Answer 4

Selection

Every person is analyzed. Let's take Joe Schmoe for example.

• Name: Joseph Albert Schmoe
• Age: 46
• Occupation: Electrician
• Education: BS in Electrical engineering
• Hobbies: Fly Fishing, HAM Radio

So we can assume that Joe is fairly knowledgeable about electrical engineering, probably building codes as well, general safety procedures, maybe some general knowledge on utilities. So when an issue that addresses any of these topics comes up, he is more likely to be appointed to the panel then his neighbor that is a bartender. He is more likely to be selected then an electrician with less education, or an election who is 65 and retired 10 years ago.

But there is still a good chance that these other people get picked, so on a panel of 20, you have 5 qualified, 5 more relevent, 5 interested, and 5 random (just to throw out numbers). Obviously this fluctuates since the selection is ultimately random. But since certain people are more weighted to certain topic due to age/occupation/education/location/etc, you have a greater chance of get them on the panel.

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Deliberation

Skipping over how these issues became necessary to discuss, let's talk about the decision making process. Everyone on the panel has the option of being anonymized. A breakdown of their profile is provided along with a fake name (someone really motivated to figure out who they are could probably do it, but ignoring that).

The discussion is then recorded, as is the final decision. The public will be able to tell who said what, and how qualified they were (with the obvious caveat of the anonymization).

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Moderation

A third party will be responsible for this, however they have no power over the process besides assisting the panel by providing them information, and drafting the decision. Ultimately, if the panel rejects the draft, it'll have to be re done (which prevents the moderating agency from hiding things in legalese).

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Desision

Any decision passed down from a panel is considered final until it is reversed by another panel (the logistics of which I won't get into in this answer). The importance of the topic affects how many people are selected and how what percentage needs to vote for the option for it to pass (again, logistics of figuring this out won't be addressed here).

Answer 5

So in the Common Law system, this is called Jury Equity (Jury Nullification in the United States). As it stands in these legal systems, a Jury can nullify a law if it sees the law as unjust or even create a new law (for example, most cases have Guilty or Not Guilty verdict... Scotland, by Jury Equity, established a third verdict of "Not Proven" which is essentially the Jury feels the state has not brought a sufficient evidence to convict, but sufficient evidence to leave doubt to a not guilty verdict. Essentially it becomes "We don't think he did it, and he better not do it again.").

I would recommend to look up the Common Law System in general, but would recommend that this system would be called a Jury Equitence. The big rule of Common Law is prescidence, which is the idea that it if a case proves that some situation has an outcome of A, than all following cases must have an outcome of A as well, and all previous cases that do not have such outcome must be reversed if such an outcome negatively impacted the defendant (reversing a positive outcome is generally frowned upon). Having said that, it's not hold to all jurisdictions. The United States Supreme Court is cited in English Legal cases and other Common Law areas, but Foreign Common Law used in the United States is rare (Libel laws being the famous example, are much stricter in the U.S. than in other Common Law countries because they do not way in America's very liberal Freedom of Speech Laws, which a lot of libel conflicts with).

Finally, there is a seperation of Trial of Law (aka the Judge) and Trial of Fact (aka the Jury). The Judge makes sure the court procedure operates correctly and assigns the criteria to prove illegal action (i.e. If x is illegal, events w, y, and z must have taken place. If anyone of those does not, it is not illegal). The Jury, in turn, reviews if the act meets the burden of proof (Did w happen? Did y happen? Did X happen?).

For your system, I would propose the following:

• The Moderator/Judge who will inform the Jury of the current state of law in the regarded manner. Will probably be elected by a general vote administered by a general bureaucracy. If this is a pure system, the highest ranking judge(s) may act as head of state. If the Judge thinks that the law is unnecessary to be made, they could throw out the whole bill.

• The Jury, which deliberates which the nature of the facts and what the law should be. Should be empanaled to hear multiple legislations and should avoid partiality (an electrician should not hear a law about regulating the power grid, but could hear a law about running hospitals.). This will prevent the jury from approaching the issue with a biased towards a particular decision.

• The Witnesses, who will give their opinions for the issues. Since this is a legislation system and not a trial system, it might be wise to allow the Jury to question the witness on their testimony through some stage, rather than a lawyer doing the questioning/cross-examination.

• The Jury deliberates in sequestration (no access to outside influence once its time to make the decision) and the law should pass unanimously to prevent tyranny of the majority. Similarly, a no vote on the law will require unanimous decision. In a case of a deadlocked jury (we can't agree and we will not agree) the law will be tabled and heard by another empaneled Jury. Only a Unanimous vote will table the matter. Related, you might want to explore a length the law can be heard and deadlocked before it can be dropped, preventing bothering all the current panels with the noise.

• Your three branches of governement will be the Judge, the Jury, and the Civil Serive (basically the unelected bureaucrats who manage the necessary businesses of functional government... most likely working for the judge as his/her staff/cabinet if they are executives).

This is an interesting idea for a government system, as it combines the legislative with the judicial (and possibly the executive), rather than a parliament system, which combines the legislative with the executive.

I am curious if the Jury will hear criminal and civil cases in addition to legislative cases (you could have a criminal jury and a legislative jury empaneled). It's also rife for abuses (if you want a strong kleptocracy, this would be a great government to run it with, as essentially the mafia element can bribe judges to not hear a law or dismiss a law outright).