The Government of Chance: Sortition and Democracy from Athens to the Present 1009285637, 9781009285636

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The Government of Chance Electoral democracies are struggling. Sintomer, in this instructive book, argues for democratic innovations. One such innovation is using random selection to create citizen bodies with advisory or decisional political power. ‘Sortition’ has a long political history. Coupled with elections, it has represented an important yet often neglected dimension of Republican and democratic government, and has been reintroduced in the Global North, China and Mexico. The Government of Chance explores why sortation is returning, how it is coupled with deliberation, and why randomly selected ‘minipublics’ and citizens’ assemblies are flourishing. Relying on a growing international and interdisciplinary literature, Sintomer provides the first systematic and theoretical reconstruction of the government of chance from Athens to the present. At what conditions can it be rational? What lessons can be drawn from history? The Government of Chance therefore clarifies the democratic imaginaries at stake: deliberative, antipolitical, and radical, making a plaidoyer for the latter. Yves Sintomer is professor for political science, Paris 8 University and is Honorary Senior fellow at the French University Institute, one of the French most prestigious institutions. He has been deputy director of the Centre Marc Bloch Berlin, and Associate member at Nuffield College and DPIR, University of Oxford. His have been published in 19 languages. He is one of the leading scholars on sortition and democracy.

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The Government of Chance Sortition and Democracy from Athens to the Present

YVES SINTOMER Paris 8 University Nuffield College, University of Oxford  ranslated from French by Sarah Louise Raillard with help from T Patrick Camiller

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Shaftesbury Road, Cambridge CB2 8EA, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 103 Penang Road, #05–06/07, Visioncrest Commercial, Singapore 238467 Cambridge University Press is part of Cambridge University Press & Assessment, a department of the University of Cambridge. We share the University’s mission to contribute to society through the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781009285636 DOI: 10.1017/9781009285650 © Yves Sintomer 2023 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press & Assessment. First published 2023 A catalogue record for this publication is available from the British Library. A Cataloging-in-Publication data record for this book is available from the Library of Congress ISBN 978-1-009-28563-6 Hardback Cambridge University Press & Assessment has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

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For Alba, her ability to dream and to seize the occasion

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Contents

List of Tablespage ix Acknowledgmentsxi Note on the Textxiii Introduction

1

he Return of Sortition in Politics2 T A Growing Interest in the Academic Literature5 Combining Historical Sociology and Political Theory7 Outline of the Book10

1 Democracy, Modern and Ancient

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epresentative Democracy: Golden Age and Crisis18 R Selection by Lot in Antiquity36 Conclusion63

2 Sortition’s Second Birth in the Middle Ages and the Early Modern Period

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he Multiple Meanings of Sortition in the Italian Communes68 T Venice: Ensuring Distributive Justice among the Aristocracy74 Florence: The Quest for Consensus and Republican Self-Government81 The First Taming of Chance in Politics94 Spain: The Pacification of Power Struggles (Mid-Fifteenth to Seventeenth Centuries)101 Distributive Aristocracies in the Early Modern Period109 Conclusion119

3 The Disappearance of Sortition in Politics: A Historical Enigma

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Great Divergence between China and the West126 A Selection by Lot in Popular Juries135 vii

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Contents

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gainst “Blind Chance”151 A Sortition and Descriptive Representation171 Conclusion182

4 The Return of Sortition: The Deliberative Minipublics

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he Representative Sample: The Second Taming of Chance189 T The First Wave: Deliberative Minipublics as Counterfactual Public Opinion193 The Second Wave: Toward Empowered Minipublics206 Sortition as a Tool for Political Equality229 Three Democratic Imaginaries  234 Conclusion247

5 Sortition and Politics in the Twenty-First Century 250 Three Challenges252 Democratizing Democracy: A Systemic Perspective267 References279 Index309

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Tables

1.1 The practices of sortition 4.1 Comparing political sortition in Athens with two waves of contemporary experiments 4.2 Three reasons for drawing lots 4.3 Three rationales of political equality in randomly selected bodies

page 41 230 232 234

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Acknowledgments

I would first like to thank the following, who in one way or another helped this book to see the light of day: Nabila Abbas, Pierre-André Achour, Hans Agné, Giovanni Allegretti, Vincent Azoulay, Marie-Hélène Bacqué, Samuel Ely Bagg, Étienne Balibar, Stéphanie Bauer, Daniel Bell, Denis Berger, Alba Berhami, Ismael Blanco, Loïc Blondiaux, Luigi Bobbio, Christophe Bonneuil, Hugo Bonnin, Sophie Bouchet-Petersen, Hubertus Buchstein, Lyn Carson, Manuel Cervera-Marzal, Antoine Chollet, Olivier Christin, Catherine ColliotThélène, Lionel Cordier, Philippe Corrotte, Paula Cossart, Dimitri Courant, Ned Crossby, Cécile Cuny, Olivier Delouis, Yves Déloye, Alain Desrosières, Peter Dienel, Oliver Dowlen, Pascal Dubourg-Glatigny, Aurèle Dupuis, David Farrell, James S. Fishkin, Joan Font, Jean-Michel Fourniau, Emilie Frenkiel, Luca Gabbiani, Maxime Gaborit, Gilles Garcia, John Gastil, Jean-Paul Gaudillière, Véronique Giraud, Célia Gissinger-Boss, Jürgen Habermas, Samuel Hayat, Carsten Herzberg, Hasso Hofmann, Virginie Hollard, Graham Horswell, Frédéric Hurlet, Paulin Ismard, Hugues Jallon, Pierre-Benoit Joly, Claire Judde de la Rivière, Helmut Kälble, Hagen Keller, Éléonore Koehl, Pascale Laborier, Hélène Landemore, Liliane Lopez-Rabatel, Arnaud Macé, Thomas Maissen, Irad Malkin, Bernard Manin, Jane Mansbridge, Maxime Mellina, José Luis Moreno Pestaña, Héloïse Nez, Sofia Näsström, Kalypso Nicolaïdis, David Owen, Charly Pache, Thierry Pech, Dominique Pestre, Muriel Pic, Dino Piovan, Francesca Prescendi, Judith Rainhorn, Jacques Rancière, Stefania Ravazzi, Henri Rey, Pierre Rosanvallon, Andre Rubião, Chloé Santoro, Daniel Schönpflug, Peter Schöttler, Alexei Daniel Serafin, Lisa-Flor Sintomer, Graham Smith, Barbara Stollberg-Rillinger, Keith Sutherland, Julien Talpin, Lorenzo Tanzini, Julien Théry, Selma Tilikete, Laia Torras, Lorenzo Tripodi, Nadia Urbinati, Antoine Vergne, Shaogang Wang, Pierre-Étienne Will, Erik O. Wright, and all those who had previously commented on some of its ideas or helped lay its foundations by engaging in work on the democratic experience. xi

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Note on the Text

The present book is a completely new edition of a volume first published in French, Petite histoire de l’expérimentation démocratique. Tirage au sort et politique d’Athènes à nos jours, Paris: La Découverte, 2011. I am especially indebted to Anja Röcke, with whom I jointly developed some of the first results presented here, and to Maxime Mellina, whose work has been decisive for the writing of Chapter 3. Thanks also to Eve Boulanger for her editorial work. The English version was written during a stay at the Maison française d’Oxford, at Nuffield College and at the Department of Politics and International Relations, University of Oxford. It has benefited from funding from two EU research projects (EuComMeet and PHOENIX). Some parts of the book have been previously published in various articles and book chapters: Sintomer, Yves, “The Three Political Imaginaries of Sortition: Deliberative, Antipolitical and Radical Democracy” (together with Nabila Abbas), Common Knowledge, 28 (2), Spring 2022, pp. 242–260. Sintomer, Yves, “Sortition and Politics: From Radical to Deliberative Democracy -and back?” in Dino Piovan and Giovanni Giorgini (eds.), Brill’s Companion to the Reception of Athenian Democracy. From the Late Middle Ages to the Contemporary Era, Leiden/Boston: Brill, 2021, pp. 490–521. Sintomer, Yves, “Le tirage au sort au xxie siècle. Actualité de l’expérimentation démocratique” (together with Dimitri Courant), Participations, 2019 (1), pp. 5–31. Sintomer, Yves, “Introduction. The History of Sortition in Politics: Instruments, Practices and Theories” (together with Liliane Lopez-Rabatel), in Liliane Lopez-Rabatel and Yves Sintomer (eds.), Sortition and Democracy. Practices, Instruments, Theories, Imprint Academic, Exeter, 2019, pp. 1–26. Sintomer, Yves, “A Child Drawing Lots: The ‘Pathos Formula’ of Political Sortition?” in Antoine Chollet and André Fontaine (eds.), Expériences du tirage au sort en Suisse et en Europe (XVIe-XXIe siècles) / Erfahrungen des Losverfahrens in der xiii

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xiv

Note on the Text

Schweiz und in Europa (16. – 21. Jahrhundert), Publications en série de la bibliothèque Am Guisanplatz, 74, Bern, 2018, pp. 223–256. Republished in Liliane Lopez-Rabatel and Yves Sintomer (eds.), Sortition and Democracy. Practices, Instruments, Theories, Imprint Academic, Exeter, 2019, pp. 471–507. Sintomer, Yves, “From Deliberative to Radical Democracy? Sortition and Politics in the 21st Century,” Politics and Society, 2018, 46 (3), pp. 337–357, new version in John Gastil and Erik Olin Wright (eds.), Legislature by Lot: Transformative Designs for Deliberative Governance, Verso, London/New York, 2019, pp. 47–74. Sintomer, Yves, “Deliberative Polls and the Systemic Democratization of Democracy,” The Good Society, 27 (1–2), 2018, pp. 155–164. Sintomer, Yves, “Random Selection, Republican Self-government, and Deliberative Democracy,” Constellations, 17 (3), 2010, pp. 472–487. Other version: “Random Selection and Deliberative Democracy. Note for an Historical Comparison,” in Gilles Delannoi and Oliver Dowlen (eds.), Sortition. Theory and Practice, Imprint Academic, Exeter, 2010, pp. 31–51.

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Introduction

The drawing of lots for magistrates seems to us today so patent an absurdity that we can hardly conceive that an intelligent people should have devised and maintained such a system. Gustave Glotz, The Greek City and Its Institutions, p. 212 Thus the jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it to rule well. Alexis de Tocqueville, Democracy in America I, 2, ch. VIII, p. 228 The scandal of democracy, and of the drawing of lots which is its essence, is to reveal that […] the government of societies cannot but rest in the last resort on its own contingency. Jacques Rancière, Hatred of Democracy, p. 47.

Summarizing one or two centuries of political experience, Aristotle (384–322 bce) famously wrote: “It is considered democratic that offices should be filled by lot, and oligarchic that they should be elective” (Aristotle 1962, IV: 9, 1294-b, p. 168). Seventeen centuries later, on May 24 and May 31, 1466, in a short-lived attempt to break the Medici stranglehold on power following Cosimo’s death, the legislative councils of the Republic of Florence reintroduced selection by lot for nearly all government offices. Their stated aim was quite lofty: They sought to defend the people’s liberty. On May 27, four hundred citizens led by Lucca Pitti publicly signed an oath to protect the newly restored republican regime. The conspirators’ guiding principles were that “the city should normally rule itself by a just and popular government”; that the appropriate instrument for this was selection by lot (la tratta); that the law should protect citizens from arbitrary rule; and that they “should know how to be free and to advise and judge on public affairs” (Rubinstein 1997, pp. 178–179). This document is the clearest and most insightful illustration of the constitutional program of the republican party during the first era of Medici control. It reasserted the key 1

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Introduction

elements of the Florentine conception of living freely (vivere libero), at a time when the Renaissance was blossoming (Rubinstein 1986). To some extent, the Florentine political agenda recalled the close link that was conceptualized between sortition and democracy in ancient Greece. More than in other Greek cities, in Athens selection by lot was considered a central procedure, used alongside the assembly (where the people were present as a body) and elections. The role of sortition has been well documented and analyzed by historians such as Moses I. Finley (1991), Mogens H. Hansen (1991), Josiah Ober (2015), and Josine Blok (2017). Aristotle (1962) held a more nuanced perspective than the quotation above might lead us to believe: He thought that the three procedures complemented one another in the establishment of democracy, although he stipulated that it was mainly through the sortition of leaders that the profoundly democratic nature of a city could be expressed. Elections, though necessary to the overall balance, embodied a different principle at least in part. The close relationship between sortition and democracy had already been developed by Herodotus (c. 484–c. 425 bce) a century earlier. In book III of his Histories, Herodotus (2008, pp. 81–82) recounts a discussion that allegedly took place in Persia, but which clearly reflected contemporary Athenian debates on the governing principles of politics. The orator Otanes, speaking in favor of popular regimes, described the latter as being based on the sortition of magistrates.

The Return of Sortition in Politics On December 11, 2004, a Citizens’ Assembly composed of randomly selected citizens of British Columbia submitted its report on the reform of the voting system, in which it concluded that the “first past the post” method (where voters cast their vote for a candidate of their choice, and the candidate who receives the most votes wins even if the top candidate gets less than 50 percent, which excludes the representation of minorities) should be replaced with the “single transferable vote” method (designed to closely approach proportional representation through the use of multiple-member constituencies and each voter casting a single ballot on which candidates are ranked). The Assembly’s legislative proposal was voted on in a May 2005 referendum. Gordon Gibson, adviser to the prime minister of British Columbia and architect of the province’s Citizens’ Assembly, justified the innovation as follows: The way I characterize what we are talking about today is adding new elements to both representative and direct democracy. These new elements differ in detail but all share one thing in common. They add to the mix a new set of representatives, different from those we elect. As things stand now, both streams of decision-making are highly influenced – almost captured – by experts and special interests. The idea of deliberative democracy is essentially to import the public interest, as represented by random panels, as a muscular third force. The traditional representatives we elect are chosen by majoritarian consensus, for an extended period, as professionals, with unlimited jurisdiction

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The Return of Sortition in Politics

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to act in our name. The new kinds we are talking about are chosen at random, for a short period, as lay citizens for specified and limited purposes. (Gibson 2007)

The British Columbia experiment is merely the best known of thousands of experiments that have used selection by lot over the course of the last three decades. Ontario, the most populous Canadian province, followed British Columbia’s example in 2005 (Warren and Pearse 2008; Lang 2007, pp. 35–70; Herath 2007). Other citizens’ assemblies have been convened, especially in Ireland, where four such experiments took place between 2011 and 2021 (Fournier et al. 2011). Public opinion and attitudes can change very rapidly. France presents an exemplary case in that regard. In 2006, in a public speech given at the Sorbonne, Ségolène Royal – who at the time was campaigning to become the French Socialist Party candidate for the 2007 presidential election – envisioned the “popular scrutiny” of political leaders and a requirement that these should “regularly give an account of themselves to citizens’ juries selected by lot.”1 This vision triggered violent reactions on the part of diverse politicians who were otherwise rarely in agreement. The conservative Right harked back to the tumultuous times of the French Revolution.2 Nicolas Sarkozy, the future president, denounced her “outrageously populist” proposal.3 At the National Assembly, a conservative deputy asked whether her aim was “to establish people’s courts in the style of Pol Pot or Mao Zedong” – to which Brice Hortefeux, a close collaborator of Sarkozy’s, solemnly replied: Let us not forget: each time in history that anyone has criticized elected leaders as such, it has been the Republic that they have wanted to attack – whether it was General Boulanger or Paul Déroulède,4 the protagonists of 6 February 19345 or those under Pétain who wanted to establish committees that would expose local authorities showing proof of republican spirit.6

Socialist leaders curiously joined this chorus, with one Socialist even asking whether the “dangerous proposal” had been “inspired by Jean-Marie Le Pen7 or Mao Zedong.”8 Mao being in no position to answer, it was Le Pen who denied paternity and went on to counterattack. The idea should obviously be

1 2 3 4

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6 7 8

Le Monde, November 18, 2006. Lefigaro.fr, October 24, 2006. La Chaîne Info (LCI), October 27, 2006 Georges Boulanger (1837–1891): a French general turned politician who led a populist movement that shook the Third Republic. Paul Déroulède (1846–1914): a French intellectual who played an important role in the anti-Semitic movement linked to the Dreyfus Affair. On February 6, 1934, a demonstration organized by the far Right in Paris turned into a riot, which made it clear to the public that France too might be threatened by the rise of fascism. Reuters, October 24, 2006. At that time, Jean-Marie Le Pen was the leader of the extreme-right party. Lefigaro.fr, October 24, 2006.

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Introduction

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rejected, Le Pen argued, since “bypassing representative democracy through ‘citizens’ juries’ (in other words, soviets) is no way to restore the reputation of politics.”9 Then, surprisingly, the far Left joined the fray, with Trotskyist activists dismissing citizens’ juries as “a joke.”10 Learned commentators also weighed in. The journalist Alain Duhamel regretted that the proposal would “sharpen” and “organize” the mistrust of elected politicians: Either it referred to something purely optional and was therefore “just for show”; or else it was truly a “new element in what is called participatory democracy or, let’s spell it out clearly, the democracy of public opinion,” which was designed to gain the upper hand over “representative democracy.”11 Readers and listeners could not make heads or tails of this. Who were they to believe? Was the proposal reactionary or revolutionary? Democratic or totalitarian? Electoral rivalry aside, was indignation a sign that the political class was anxiously turning in on itself (Sintomer 2007)? The mood may have been extreme in France, but it was by no means unique. In many countries, in recent years a “fear of the masses” or even a “hatred of democracy” have been openly expressed (Balibar 1989, pp. 104–139; Rancière 2009). Ten years later, three of the main candidates to the French presidential elections advocated the use of sortition in politics, included Emmanuel Macron, the future president. When the latter, once elected, was confronted with the huge popular revolt of the Gilets jaunes (Yellow Vests) in 2018–2019, he chose to shift the public debate by organizing a country-wide “Great Debate,” including setting up citizens’ assemblies in all French regions. Responding to one of the demands made by the Gilets jaunes, he later set up the Citizens Convention for Climate largely copied from the Irish citizens’ assembly and which deliberated from September 2019 to summer 2020 with a view to proposing policies that would enable France to strongly reduce its CO2 emissions. According to many supporters of such deliberative instruments, sortition’s return to politics after centuries in the shadows implies that some of the ideals of ancient democracies are also gaining traction with new audience. James Fishkin (2015, pp. 99–108), who invented the deliberative poll, describes it as a “neo-Athenian solution” and even argues that “the key infirmities in modern democracy can find a constructive response in modern refinements and improvements in the two essential components of the ancient Athenian solution – random sampling and deliberation.” Lyn Carson and Brian Martin (1999, pp. 13–14), two of the most convincing advocates of political sortition, express a similar opinion: The assumption behind random selection in politics is that just about anyone who wishes to be involved in decision-making is capable of making a useful contribution,

9 10 11

Novo Press, October 25, 2006. Convergences révolutionnaires, October 30, 2006. RTL, October 26, 2006.

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A Growing Interest in the Academic Literature

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and that the fairest way to ensure that everyone has such an opportunity is to give them an equal chance to be involved. Random selection worked in ancient Athens. It works today to select juries and has proved, through many practical experiments, that it can work well to deal with policy issues … For democracy … to be strong, it must contain the essential element of citizen participation, not just by a self-selected few but by ordinary people who rightly can determine their own futures. Given the difficulty of involving everyone in such a deliberative process, we argue that random selection is an ideal means by which a cross-section of the population can be involved.

These experiments inherently critique the paternalist traditions that tend to reduce democracy to mere representative government. Their most vocal supporters argue that civic participation in politics is crucial for the optimal health of the political system. They demand the political equality of all citizens in public discussion and, in some cases, in decision making as well. They believe that democratic legitimacy is closely linked to the expansion of deliberation in the guise of public debate: The more a decision comes from a lively and well-organized public debate, the more legitimacy it will have, both normatively and empirically (Fishkin 1995). This line of thinking has clearly developed in response to the growing distrust of the political system by citizens, which is a significant trend in Europe and North America especially.

A Growing Interest in the Academic Literature While historiography has devoted a certain amount of attention to the practice of sortition in politics, in particular during Greek and Roman Antiquity as well as during the Middle Ages in Italy and Spain, such interest was relatively incidental before the 1990s. Over the years, the studies that focused on sortition in politics were few and far between. If we look at European Antiquity specifically, there were no more than half a dozen important contributions to list: Fustel de Coulanges (1891) and James Wycliffe Headlam (1891) at the beginning of the 1890s, Victor Ehrenberg (1923) in the 1920s, Christian Meier (1956), Lili Ross Taylor (1966), and finally Eastland Stuart Staveley (1972) a few decades later. Starting in the 1990s and drawing on advances made in the fields of historiography, archaeology, and epigraphy, the number of studies on sortition began to proliferate and break new ground. Mogens H. Hansen’s seminal work (1991) marked a turning point in research on ancient Athens and was followed by other studies (Demont 2010). A parallel movement took place regarding research on ancient Rome (Nicolet and Beschaouch 1991; Stewart 1998; Hurlet 2006). Interestingly enough, there was also renewed interest in how sortition was used in the Italian Communes, especially following the publication of John N. Najemy’s work (Najemy 1982; Tanzini 2014; Keller 2014), leading to new publications in Switzerland (Chollet and Fontaine 2018; Mellina, Dupuis, and Chollet 2020; Dupuis 2021; Mellina 2021), Spain (Polo Martín 1999), and

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Introduction

Germany (Stollberg-Rilinger 2014a). This movement has even expanded outside the West to include countries such as China and Mexico (Will 2020; Aguilar Rivera 2015). More generally, sortition has been examined in various studies that seek to analyze different modes of designation and appointment (Ruffini 1977; Schneider and Zimmermann 1990; Dartmann, Wassilowsky, and Weller 2010), whereas its uses in divinatory practices and premodern politics have already been the subject of a preliminary overview (Cordano and Grottanelli 2001). At the turn of the 2000s and 2010s, four social and political scientists and sociologists published historical surveys of the use of sortition in politics; this wave reached China at the end of the 2010s (Röcke 2005; Sintomer 2007; Dowlen 2008; Buchstein 2009; Delannoi and Dowlen 2010; Sintomer 2011; Wang 2018). Archaeological studies and the experimental reconstruction of an ancient Greek lottery machine, the kleroterion, allowed us to finally understand the true uses of the famous “lottery machine” described by Aristotle in his work The Athenian Constitution (Aristotle 1984; Lopez-Rabatel 2020). This growing interest led to the first general historical overview published at the end of the 2010s (Lopez-Rabatel and Sintomer 2020). At the same time, studies on sortition have grown exponentially within the field of political science. First mentioned by a few pioneers in the late 1960s and early 1970s (Dahl 1970), the political use of sortition was then further studied in Germany, where Peter Dienel (1970) proposed the use of “planning cells” as early as 1969, the first of which were tried out in the winter of 1972–73; and concurrently in the United States, where Ned Crosby created a very similar mechanism in 1974 that he called “citizens’ juries.” The latter term would be broadly disseminated, whereas Dienel’s “planning cells” would largely remain a German term (Dienel 1997; Crosby 1975). In 1988, James Fishkin (1991) invented deliberative polling, testing the process out for the first time in 1994 in the United Kingdom. Nonacademic authors also helped to popularize the idea of sortition in the political sphere (Burnheim 1985; Barber 1984; Carson and Martin 1999; Goodwin 2012; Callenbach and Phillips 2008). The Belgian intellectual David Van Reybrouck (2016) published an essay on the subject that become a best-seller worldwide. In France, the seminal work of Bernard Manin (1997) on representative government played a crucial role in eliciting activist interest in sortition. Other academics, whether active in politics or not, helped to rehabilitate the concept of sortition (Gastil 2000; Schmitter and Trechsel 2004; Bourg et al. 2011; Elster 2008, 2013; Costa Delgado 2017b). The British publisher Imprint Academic has played a significant role in this regard, republishing classic and contemporary titles that were already out of print, as well as new works in the discipline. There has been fruitful cross-pollination between theoretical work on deliberative democracy and research on randomly selected minipublics, that is, a representative sample or at least a fair cross-section of the people, leading to an explosion in the number of publications on the subject. A collective manifesto edited by John Gastil and Erik Olin Wright

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Combining Historical Sociology and Political Theory

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(2018; 2019a) was published at the end of the 2010s, arguing for the establishment of legislature by lot.

Combining Historical Sociology and Political Theory This book is thus part of a broader trend and seeks to offer a preliminary overview. However, is it legitimate to draw comparisons between practices that stretch from classical Antiquity through Renaissance Florence to contemporary Ireland? Of course, it is impossible to make a point-by-point comparison between these political universes, as their social, institutional, and cultural contexts are too divergent. It is also evident that the central role of sortition in Athenian or Florentine polity was radically different from the still quite secondary position that it occupies in contemporary democracies, despite the marked increase of such experiments over the course of the past two or three decades. But this does not mean that careful comparison is in and of itself illegitimate. A first way of approaching this task would be to ask a set of “timeless” philosophical questions. What is democracy? What place can and should selection by lot have in the democratic order? What is the essential significance of sortition in politics? In this mode of investigation, historical and sociological attention to the variety of contexts is subordinated to speculative reasoning; the writings of Aristotle, Leonardo Bruni, Francesco Guicciardini, James Fishkin, and Jacques Rancière then become so many different ways of answering one and the same question. As we will see, it seems risky to raise this philosophical question outside a specific context. In ancient Athens, the practice of selection by lot, combined with the small size of the citizen population and the rapid rotation of public offices, meant that each active citizen could reasonably expect to be ruler and ruled in turn. Most contemporary experiences, on the other hand, are based on profoundly different aims and expectations, including the idea that representative samples of the population will deliberate as the people would do if it had the right means and conditions. The apparently technical question of representative sampling radically alters the situation. When we discuss selection by lot in politics, we are not referring to the exact same thing in Renaissance Florence and in early twenty-first-century Canada. The timeless philosophical question of the relationship between sortition and democracy runs the risk being misinterpreted or appearing anachronistic if it does not address the practices, tools, and social conditions under which random selection operates (Déloye and Ihl 2008; Garrigou 2002; Offerlé 2002; Rosanvallon 1992; Christin 2014). To avoid these pitfalls, a second approach involves attempting to analyze the wildly disparate political regimes in historical succession. Each time, the answers found would be pertinent to the particular “civilization” under study, with no claim that they could be applied to different epochs or other

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Introduction

political systems. From this perspective, the reliance of ancient democracy on sortition is commonly contrasted with the electoral basis of modern Western democracies; what makes sense in one context is incomprehensible in the other. This synchronic analysis has a heuristic value, but has obvious limitations. First, it seems clear that certain rituals, practices, and concepts can be transmitted from one civilization to another. After the revolutions of the eighteenth century, sortition was used in forms that resembled those employed by the Italian Communes to constitute trial juries. Similarly, elections were already part of the landscape in Athens, Venice, and Florence, and they were carried over into modern democracies in guises that kept some of their older features. Second, as far as sortition is concerned, the parallels between ancient Athens and some periods of Florentine history, or between Rome and Early Modern Spain or Switzerland, are much greater than those that may have existed between Athens, Sparta, and Rome. The stress on incommensurable epistemes exaggerates the extent to which each one is internally homogenous. On the other hand, a historical approach that concentrates on shorter time spans instead of focusing on epistemes, although crucial for understanding the details of the actors it studies, does not preclude interest in the broader historical perspectives provided in this volume. The same can be said of explanations that confine themselves to tangible chronological lineages. In extreme cases, they delegitimize political theory altogether in favor of a history of transfers or a microsociology of political networks. The point here is not to deny the value of a history of genealogies and transfers; in fact, some of these will be analyzed in this book. However, the genealogical approach cannot ­single-handedly explain why selection by lot in politics today exhibits so many cases of successful transfer, or why it has experienced sudden growth since the 1970s and especially since the 2000s. Besides, each genealogy is different; no sortition-based device is identical to another. How can we avoid getting lost in the profusion of reality? A third approach would require combining historical and anthropological methods. This would mean drawing inspiration, for selection by lot in politics, from a path previously opened by Marc Bloch (1973) in The Royal Touch in relation to the healing power of sovereigns, by Aby Warburg (1990) regarding the survival of artistic forms from one civilization to another, and by Carlo Ginzburg (1990) in Ecstasies for witchcraft and shamanistic practices. For these authors, the combination of two approaches corresponds to a methodological imperative: Chronological reconstruction makes it possible to trace transfers and historical genealogies; morphological investigation can elucidate formal similarities in contexts for which there is no a priori evidence of chronological lineage, if only because of the inadequacy of existing sources. Though these two methods may be pursued independently, they may also be combined; a morphological connection may, for example, lead researchers to look for transfers where they initially seemed unlikely. Elsewhere, I have

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adopted a morphological approach that shows that the intervention of a still-innocent child responsible for carrying out a random selection procedure was the most consistently widespread (although not universal) characteristic of sortition throughout history (Sintomer 2018, pp. 223–256). Combined with sortition, the child’s innocence was seen as guaranteeing impartiality and purity (in Christianity in particular, since children are seen as free of sin). In other places and at other times, however, including our contemporary world, the combination of selection by lot with an innocent child figure is completely absent in politics. This morphology points toward what is the most common value attributed to sortition – impartiality. It encourages us to look for historical transfers. Nevertheless, it does not account for the full diversity of its political meanings. In this book, I propose taking another approach: A historical sociology which compares the practice of sortition in a number of different historical contexts by means of Weberian “ideal types,” that is, abstract models that do not overlap with a particular empirical case but are the poles of a conceptual map on which the empirical cases can be placed. The aim is to sketch out a transhistorical conceptual map of the different rationales behind selection by lot in politics, in order, ultimately, to gain a better understanding of our present political landscape. Such ideal types (for example, the three rationales upon which sortition can rely: The sign of a supernatural destiny, impartiality, and equality) are constructed via the study of historical experiences. I have partly used my own fieldwork and historical research, but I have in most sections also drawn on the work of other scholars. I have been able to borrow from a considerable body of history to trace the broad outlines of a phenomenon that stretches from Antiquity, through the medieval and Renaissance communes to modern democracies – and beyond the confines of Europe to China, India, and Mexico. A number of sociological analyses, conducted either by me or reported by other researchers, shed further light on the question, as have studies from fields as diverse as legislative practice, court trials, statistics, debates within the medical profession, and policy initiatives in inner-city areas. While this volume does not pretend to be exhaustive, my hope is that I have taken the first step and that others will follow. Moreover, I combine historical sociology with political theory, discussing the kind of legitimacy to which sortition in politics may lay claim today. This approach is in line with critical theory: One has to study real experiments (historical and current) to better understand and assess the normative and political claims that stem from society, rather than trying to assert pure philosophical principles in a speculative manner. My normative question is less what role sortition could play in an almost just and almost democratic society, than how it could help to democratize actually existing political systems. Or, better said, how could sortition represent a “real utopia,” (Gastil and Wright 2019a) a normative horizon that will never be reached but towards which we can progress in the present world through democratic experiments.

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Introduction

Outline of the Book To examine the situation of political systems at the beginning of the twenty-first century, we need to discard the preconceived notions that too often paralyze intellectual reflection and political action. We must rid our minds of bias and determine whether sortition offers a promising way forward for democracy. The structural legitimacy crisis that now affects political representation worldwide makes it necessary to challenge what seemed to be normal at the end of the nineteenth century: After all, it is quite probable that the stable political systems of the so-called the “Global North” (namely, Western Europe, North America, Australia, New Zealand, and Japan) during the few decades that followed World War II were only a parenthesis in history, a golden age for some happy few (at the global level), rather than “the end of history.” It is therefore worth revisiting the distant past of Western democratic experience and in turn closely analyze the most promising contemporary experiments of sortition worldwide. In this book, I will raise four sets of questions. Three of them imply a perspective that comes from historical sociology. The first relates to the past practices of sortition in politics. How important were those? What kind of broad historical lines can be drawn from them? What objectives motivated and justified the practice of sortition? The second set of questions focuses on the disappearance of sortition during the first two centuries of representative government in the West. Why did sortition disappear from politics altogether with the Old regime in Western Europe and North America? Why did it simultaneously develop in the judicial sphere with the rise of the trial jury? How can one explain the striking difference between the West and China, where (as in ancient Rome) sortition was widely practiced to distribute provinces among higher officials until the beginning of the twentieth century? Conversely, the third set of questions relates to the return of sortition to politics at the end of the twentieth century. How can we understand this phenomenon? What is the political and sociological explanation for contemporary experiments? Can several trends be differentiated? Finally, our last set of questions will be normative. As we have previously noted, a growing number of practitioners and theoreticians claim that sortition represents a promising way to democratize the political system while enhancing its legitimacy. These actors come from all sides of the political spectrum. In 2020, the Organization for Economic Co-operation and Development (OECD) published a report promoting the institutionalization of randomly selected minipublics in order “to catch the deliberative wave.”(OECD 2020, p.  25). On the left, some advocate a more ambitious transformation, and defend the development of legislature by lot using an anticapitalist argument (Wright 2019). In China, in a quite different context, some intellectuals have also endorsed sortition as a means to reinforce the legitimacy of the one-party system (Open Time 2012; Bell 2020). However, some questions should be raised.

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What kind of democracy is at stake: Deliberative democracy, which most academics and institutional proponents of minipublics claim? Radical democracy, as suggested by the frequent references to Athens? A combination of the two, or somewhere in between? An “antipolitical” democracy that would transcend agonistic politics? What is the specific value of sortition? To answer these questions, I will elaborate four sets of claims. The first concerns how we interpret the use of sortition in politics. Although elections are commonly presented in the Global North as the central tool of democracy, sortition has also been used extensively throughout history in both republican and democratic contexts, in many cases combined with elections. We must look beyond the presumed constant pairing of democracy and elections. With the weakening political legitimacy of representative democracy in the twenty-first century, an increasingly popular perspective, especially outside the academy, has emerged: Sortition is now seen as a democratic tool compared to elections, which would be an aristocratic tool. This perspective relies on a somewhat superficial lecture of the famous quotation from Aristotle mentioned at the beginning of this book. Jacques Rancière (2009, p. 47) seems to go in this direction when he writes: “The scandal of democracy, and of the drawing of lots which is its essence, is to reveal … that the government of societies cannot but rest in the last resort on its own contingency.” This perspective has also been developed by Barbara Goodwin (2012), one of the most insightful authors on the potential legitimacy of sortition in contemporary societies. Many have reached the same conclusion after reading Bernard Manin’s seminal book on representative government (1997). The present work advocates for a more nuanced narrative. The idea that sortition in politics has preserved a transhistorical democratic logic is more myth than historical fact, as political sortition has played a number of varied functions throughout history. I will argue that it has had several different political motivations that stem from contrasting rationales. At times, selection by lot has been given a religious or supernatural interpretation: This was especially the case for a lot of ancient political systems. The mechanism can also be seen as a means to foster impartiality: This is probably the most transhistorical justification for sortition over the years. And finally, sortition can be a tool for promoting equality, which implies a democratic dynamic when the circle of those among which sortition takes place is wide. The second set of claims corresponds to the puzzling question: Why did sortition disappear from the political scene with the advent of our modern revolutions? Bernard Manin (1997) was the first to ask this question and ultimately provide a two-fold answer. According to him, the founders of the modern republics wanted an elective aristocracy rather than a democracy, and it was logical that they should reject sortition, which was viewed as democratic. On the other hand, the theory of consent, which claims that those who are governed have to consent to the rules, and which is deeply rooted in modern conceptions of natural law, had gained so much ground that it seemed difficult to legitimize

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a political authority that was not formally approved by citizens. In my view, although these two arguments are strong, we need to go beyond them. They do not take into account, for instance, that on the eve of the French Revolution, sortition was still used in conjunction with elections in several European countries in the context of aristocratic regimes. Nor does Manin’s argument explain why radical or revolutionary factions did not defend sortition, and why at the same time, random selection was increasingly used to select trial juries. To understand this enigma, we shall look at a number of other factors. The first and most important one transcends politics. Although in ancient Athens sortition had been part of the rationalization of politics, it began to seem like an absurd mechanism during the Enlightenment, especially with the advent of the French and American revolutions. The concept of popular sovereignty and a new understanding of representation made the drawing of lot obsolete. The republican rationalism came to see sortition as a kind of vestige of the old regime. Due to a new understanding of time and human will, random selection was now viewed as blind, and thus opposed to reason. Moreover, the concept of representative sampling had not yet been developed, and counterarguments were difficult to raise. However, such justifications were not needed for juries, which required only the subjective judgement and common sense of ordinary people. In juries composed by random selection, jurors were seen as interchangeable – a situation which was not similarly reflected in politics. My third set of claims, concerning the meaning behind sortition’s recent return to politics, is also partly centered on representative sampling. Sortition as it is practiced in politics today is inseparably bound up with representative sampling, a concept which makes it possible to establish a “minipublic” or microcosm of the people. Another quite modern factor is the crucial importance placed on deliberation and the latter’s close association with sortition. When combined, these two features give sortition practices a new reason for being. They are layered onto two older meanings of sortition, namely the impartiality it enables and the equality that it establishes between those among which sortition takes place, and alter the overall logic of sortition. However, when analyzing the experiments that have taken place in the last decades, two waves must be differentiated. The first wave of democratic innovations based on randomly selected minipublics has followed a logic of deliberative democracy rather than a logic of self-government and radical democracy. In that regard, references to ancient Athens, with its selection by lot and face-to-face discussions, are more problematic than they might at first sight appear. Conversely, the second wave has been more differentiated and some of its tendencies are more compatible with a neo-Athenian perspective. The empowered sortition processes that have emerged during the second wave better capture the spirit of Athenian democratic traditions than consultative minipublics do. My last set of claims is normative. Drawing on the lessons of historical sociology that I have outlined earlier, I will try to make a normatively convincing and politically realistic case for sortition. Empowered sortition processes

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seem promising for the democratization of democracy. However, one must stipulate according to which conception of democracy we can make this positive assessment. Deliberative democrats defend the development of a deliberative system in which various elements would fit together to produce a harmonious division of labor, randomly selected minipublics being one important piece. The problem here is that deliberative democrats tend to possess a naïve view of politics and society, where domination does not exist and where opinions are liable to shift through what Habermas (1996) call the “forceless force of the best argument.” In another interpretation, that I call antipolitical democracy, important for the diverse blogs, social movements, and parties that boldly contest representative democracy, the elites are opposed to the people, conceived as a unified body. Once the people have eliminated elections and, with them, the elite, sortition will play a central role in this political system. The mechanism will “replace the government of men with the administration of things,” to borrow an idea from Engels and Saint-Simon. This perspective only displaces to a remote future the idyllic impasse of a society without conflicts; in addition, it does not account for present and future “contradictions among the people” (Mao 1957). Therefore, I will defend the third perspective of radical democracy, a system which – at least when it grasps the importance of deliberation – better justifies the development of sortition across the spectrum of Western politics. One must conceive of progressive structural transformations as the complex result of agonistic social struggles, actions led by political parties, and democratic innovations designed to give more power to the people and favor moments of consensus-building. This systemic vision differs from a deliberativist one: It conceives of the different elements of the political system as operating in tension rather than in functional collaboration. In this political “ecosystem,” sortition can play an important role, due to its potential virtues of impartiality and equality, and because it fosters a descriptive form of representation. Coupled with deliberation and the concept of the wisdom of the many, it is a promising – but not exclusive – way to reinvent democracy in the twenty-first century. I will begin in Chapter 1 by discussing the many contrasts between ancient and modern democracies. First, I will describe the current crisis of political representation, which is the contextual background against which the diffusion of democratic innovations such as sortition must be understood. Its causes are neither completely unique to one country nor transitory, but structural in nature. I will identify three of these causes and, after briefly outlining the potential scenarios of postdemocracy and authoritarianism in the Global North, I will examine in greater detail a counter-hegemonic project aimed at democratizing democracy. I will then proceed with an overview of how selection by lot operated in Antiquity, which seems to be a crucial reference point for advocates of sortition. Describing its infrequent political use in ancient western Asia, I will elucidate how after Aquinas, two types of sortition came to be differentiated, divinatory and distributive, in addition to the procedure’s use

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Introduction

in games of chance or science. Although it emerged from divinatory practices, sortition largely became a secular practice during its Golden Age in Athens, with a legitimacy derived from both its impartiality and its embodiment of radical democratic logic. The use of sortition in Rome was widespread but quite different, with a significant ritual and symbolic dimension that enabled peaceful competition among elites in the name of the Republic and the common good. These two contrasting examples will thus establish the fact that sortition can be used according to diverse rationales. In Chapter 2, I will analyze the rebirth of sortition in the West, during the Middle Ages and the Early Modern period. I will explore the mutations of the medieval and Renaissance Italian republics, as well as the practices of sortition in Early Modern Spain, Switzerland, and other European countries. During these periods, sortition was widespread and took many different guises, though it was always combined with elections and cooption. It was above all a means to channel the competition for power and resources among groups and especially among the elite. It was a key element of “distributive aristocracies” in different republican contexts, in which a relatively small subsection of elite citizens could develop self-government in the name of the common good and enjoy the privileges of administrating the polity. In some cases, especially in the Italian Communes of the thirteenth century and for limited periods of time in Florence, republican self-government was extended to a larger circle of citizens. Due to the scarcity of existing data, I will mention only a few practices of sortition outside the Western world, above all in India. Another lesson uncovered in this chapter is that, prior to modernity, political sortition was linked to an empirical “taming of chance” and used as a rational instrument although scientific notion of representative sampling was still unknown. Chapter 3 will tackle the historical enigma of the disappearance of sortition from politics following the French and American revolutions. First, I shall highlight the “great divergence” between China and the West on this issue, given that China used sortition (jointly with imperial examinations) until the beginning of the twentieth century, whereas the West abandoned it at the beginning of the nineteenth century. Next, I will unearth the causes of the two-­century partial eclipse of random selection in Western politics, at the same time as the technique was increasingly employed for the appointment of trial juries. In fact, the random selection of juries was primarily linked to the idea that jurors were interchangeable sources of common sense. On the contrary, however, the Swiss debate that was waged during the revolutionary period at the turn of the eighteenth century shows that the new rationalist ideas that emerged with the advent of modernity and the Enlightenment could only view sortition as a blind and irrational vestige of the past. At that time, the notion of the representative sample, which is almost certainly familiar to contemporary readers, had not yet been developed. Consequently, even those who defended a descriptive form of representation, where representatives sociologically resemble the people they represent, could not lay claim to sortition when defending their ideal.

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Chapter 4 analyzes the exponential development of contemporary experiments in sortition and explain why the mechanism seems increasingly legitimate in the eyes of various actors. Most of these actors base their arguments on the relatively new concept of the representative sample; this second “taming of chance” has strongly linked sortition with descriptive, that is, a sociological or statistical representation of the people. Advocates of sortition often suggest the combination of selection by lot and deliberation, stressing the impartial, democratic, and epistemic justifications for sortition. I will describe two waves of experiments in turn. The first wave, which began in the 1980s, focused on deliberative minipublics such as citizens’ juries, consensus conferences, and deliberative polls, which were consultative, topdown, highly controlled by their inventors, and acted as mere complements to representative democracy. The second wave, beginning in the 2000s, has seen a flourishing of democratic innovation. Empowered minipublics have been combined with participatory or direct democracy, most visibly with citizens’ assemblies. In addition, these experiments have sometimes come from below and led to the first randomly selected permanent bodies in a handful of institutions. Sortition has also been used in party politics and associations. At this stage, the politicization of some experiments is trending towards a model that differs from the deliberativist one, which highly praises the impartiality and neutrality of minipublics. I will summarize the three rationales of political equality that have supported the use of sortition throughout history. These rationales have been mobilized by the contrasted political imaginaries (projections of desirable or worrisome political horizons) that defend the return of random selection to politics, at least in the West: The imaginaries of deliberative democracy, antipolitical democracy, and radical democracy. Chapter 5 presents a case for return of sortition to the political systems of the Global North, discussing the main challenges that the latter face and the important functions that mechanisms of random selection may play in contemporary politics. Bodies drawn by lot may be a source for greater democracy, a platform for a more enlightened public opinion and more responsible public action: In short, for a dynamic that runs counter to both postdemocracy and authoritarianism. I will discuss the idea of legislature by lot, opening a systemic perspective on how random selection may help to reinvent politics and democracy in the twenty-first century. In one of the first historical justifications of democracy, Plato explained the following, speaking of Athens (Plato s.d., 319d): When it is something to do with the government of the country that is to be debated, the man who gets up to advise them may be a builder or equally well a blacksmith or a shoemaker, merchant or shipowner, rich or poor, of good family or none. No one brings it up against any of these … that here is a man who without technical qualifications, unable to point to anybody as his teacher, is yet trying to give advice. The reason must be that they do not think this is a subject that can be taught.

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This book suggests that the fundamental issues of our political systems must be reexamined. What are the sources of political legitimacy? How should public deliberation take place? How should the common good be collectively constructed? What is the meaning of representation? Who decides? Could Protagoras’ argument still have some validity? And could sortition play a part in the ongoing democratic narrative?

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1 Democracy, Modern and Ancient

A few years after the fall of the Berlin Wall, in one of the most internationally successful books written in the aftermath of Soviet Communism, Francis Fukuyama (2012, p. xi) wrote: I argued that liberal democracies may constitute the “end point of mankind’s ideological evolution” and the “final form of human government,” and as such constituted the “end of history.” That is, while earlier forms of government were characterized by grave defects and irrationalities that led to their eventual collapse, liberal democracy was arguably free from such fundamental contradictions… While some present-day countries might fail to achieve stable liberal democracy, and others might lapse back into other, more primitive forms of rule like theocracy or military dictatorship, the ideal of liberal democracy could not be improved on.

The End of History was not, by all accounts, a good book, but its massive public success was understandable: Fukuyama had been able to seize the zeitgeist. Less than three decades after he made this argument, however, it seems patently ridiculous. The twenty-first century is paradoxical: On the one hand, many people who live under authoritarian regimes revolt and call for democracy – which would seem to legitimize the rankings established every year or two by The Economist and the think-tank Freedom House according to which, as for Fukuyama, Western liberal democracy is the model against which all countries in the world should be measured. From this minimalist perspective, democracy can basically be summarized as the rule of law, the existence of a free market, the separation of powers, a free public sphere, and competitive partisan elections; it is therefore tantamount to what others might call “capitalist democracy” (in this book, the two notions will henceforth be used synonymously). On the other hand, in democracies both old and new, representative government is suffering an increasingly dire crisis of legitimacy, one that affects all continents, from North and South America to Europe, from Africa to Asia and Oceania. In addition, China – the most successful emerging nation in terms 17

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of wealth and power – has combined the free market and a statist planned economy in a unique model while refusing any kind of Western-like democracy. All over the world, national politics and societies are experiencing huge civilizational changes. This context is key to understanding why thousands of bodies selected by lot have been used in the past decade. In this chapter, I will first take some reflexive distance with the liberal model of democracy, centered on elections, before presenting how sortition was used in Antiquity. Following centuries of disuse, selection by lot appears to be making a comeback, once again playing a role in thousands of political experiments. We must therefore examine how this procedure was traditionally used in the past, paying attention to the different meanings that it may have had depending on the given social context. What were the different ways that political sortition was employed throughout history? How was this form of selection combined with other modalities? What were the most innovative experiments in this regard? In the next chapters, we shall attempt to provide a historical overview of sortition. Our investigation will focus on four major questions. What were the different practices of sortition from Antiquity (second section of Chapter 1) to the Middle Ages and the Early Modern period (Chapter 2), and what significance did these practices have in their respective historical contexts? Why, as they were coming into being, did modern democracies not exploit sortition for political ends, but instead confine it to the judicial sphere (Chapter 3)? Finally, why (and according to what modalities) has sortition recently returned to the political stage (Chapter 4), and how should this comeback be interpreted from a normative perspective (Chapter 5)?

Representative Democracy: Golden Age and Crisis We must eschew our deceptive familiarity with the present political systems of the Global North, and instead to try to look at them with a “Persian” eye, as Montesquieu (1721) did with France in the eighteenth century. The “grand narrative” (Jean-François Lyotard) of liberal democracy, as summarized by Fukuyama and widely shared in Western mass media and academic publications, presents the history of the last two or three centuries as the progressive development of capitalism, democracy, and human rights. On the whole, liberals used to see history as a single path toward progress, in which some countries were ahead and others behind – a situation that gave the former the privilege to rule over the latter. While pathologies must always be avoided, it was clear what constituted “normal” development: Democracy was increasingly seen as part of it. This linear and ethnocentric narrative is no longer credible in the light of contemporary historiography, however. On the one hand, we must emphasize the multiple paths and transfers from non-European countries that made the political rise of the West possible. Let us start with two examples. Democracy was not invented in Ancient Greece; on the contrary, it was a widespread

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political system in hunter-gatherer societies (Scott 2009). This observation does not deny the special importance of Greek history with regard to the development of a complex and self-critical democratic society. A second example: the existence of examination-based civil service positions and the legal possibility for every individual to become a civil servant “according to his/her capacity” – a crucial dimension of the modern state – was in fact imported from China to continental Europe via the Jesuits, Napoleon, and, later, the East India Company, first in India and then in the United Kingdom (Osterhammel 2013, p. 873; Rosenthal and Wong 2011). Furthermore, democratic and republican experiences have always had both light and dark sides. At the end of the eighteenth century, the American and French Revolutions transformed the political landscape. Mass mobilizations, and especially those of subaltern groups, were like earthquakes, including their contradictory aftershocks. They led to the creation of representative governments, the rule of law, and a set of human rights in which civil and civic dimensions were interrelated, albeit most often in tension with each other. With a number of variants, this model spread throughout the Global North, whose countries were also spearheading the industrial revolution and modern capitalism. Certain dynamics that were invented or institutionalized at this time remain appealing to many today. However, we must better evaluate these various developments. What were created in Western Europe and North America were “elective aristocracies,” a concept coined by Jean-Jacques Rousseau (1978, III, pp. 3–7), arrangements where the core institutional power was largely monopolized by the elected few. Representative governments, although they had to deal with a relatively free and legally protected public sphere, were in opposition not only to absolutism, but also to ancient democracy, or “true democracy.” For James Madison (1982, pp. 46–47), the most influential of the Founding Fathers, election makes it possible: to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose.

It was intended that these enlightened representatives should come mainly from the most prosperous (and white, and male) layers of society, but the idea was that candidates would have to win in open competition and undergo scrutiny when they came up for reelection, which ultimately limited the exercise of their office. Moreover, the Federalists offset this delegation of representative powers through an elaborate system of checks and balances designed to distribute power, recognize the legitimacy of represented interests, and place emphasis on the accountability of elected officials.

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The prevailing version of French republicanism did not share this notion of checks and balances. Nevertheless, Abbé Sieyès (1985, p. 236), a leading figure in the French Constituent Assembly, agreed with Madison that elected politicians should stand out from the masses and that citizens “should appoint representatives much more capable than themselves to know the general interest and to interpret their own will in regard to it.” In his view as well, the origin of this superior capacity was partly social, since the representatives were supposed to be people whose wealth made them averse to disorder and less prone to corruption (Sieyès 1985, p. 90). Representatives should also become professional politicians, as the division of labor was extended to politics with a view to increasing the efficiency of state action. These supposed wise and morally superior citizens had to be elected: They did not inherit their positions by virtue of belonging to a statutory aristocracy, as in the European old regimes. Individual leaders had to alternate positions of state power, instead of occupying them for life. They were part of a relatively small group of people coming from a privileged social stratum, and they usually implemented policies that profited these same strata. The progressive expansion of male enfranchisement did not abruptly change this situation. It was only during the last third of the nineteenth century and the beginning of the twentieth century, with the rise of progressive and labor movements and with the invention of mass political parties, that real changes began to unfold. In England, only at the beginning of the twentieth century did representative government and democracy start to coincide in public discourse (Bonin 2020). Women were excluded from the franchise until 1928, and remained marginal among the political elite until the 1970s. In the United States, the American Revolutionary War promoted a radical ideal of republican self-government (Wood 1991), but this contradictory ideal (Rana 2014) nonetheless excluded both English rule and “outsiders” (French Catholics, Native Americans, Black people). In the United States, prejudice against Black people and Native Americans continues to this day, more than two centuries later. During the “Age of Empire” (Hobsbawm 1987) and the years that followed, free and fair elections were never organized on the scale of the empires, and indigenous people were always considered as less than full citizens. In Latin America, the region of the world with the most significant number of republics during the “long nineteenth century” (1789–1914), representative governments were unstable and poorly legitimized. The more advanced capitalist and liberal countries were quite satisfied with precapitalist relations and imposed autocratic rule in their nonwhite colonies (Guha 1982–1985). Even after decolonization, the liberal-democratic model had limited influence in the Global South: Representative governments were established in a few countries, India most notably, but subaltern groups did not obtain any degree of power that was even remotely comparable to what their counterparts in the Global North enjoyed. To a large extent, capitalism remained untamed, welfare states remained quite weak, and forms of precapitalist exploitation remained quite important.

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In the countries of the Global North themselves, it would be decades before the elective aristocracies born out of seventeenth- and eighteenth-century revolutions would develop into representative democracies. This evolution was not the outcome of slow and peaceful development, but the result of the many crises, wars, and revolutions that characterized the “long nineteenth century” and the “short twentieth century” (1914–1989) (Hobsbawm 1994). To a large extent, it was only in the decades following World War II that representative governments began to enjoy their Golden Age, finally managing to integrate, although in a subordinate position, their national subaltern classes through mass political parties, universal suffrage, and the welfare state. After important mobilizations, Black Americans secured their civil rights in the United States. While major changes like the latter were observed here and there, the “national-­social states” (Balibar 2001) were still an exclusive club. And as political scientists from Max Weber onward consistently recognized, political parties were immensely hierarchical and bureaucratic structures similar to those that governed corporations, families, schools, and scientific organizations. Robert Michels (1962) proposed his famous thesis of the “iron law of oligarchy,” according to which the labor movement was doomed to end in bureaucratization. Ecologically, the economic development that made the representative democracies of the Global North possible was nonuniversalizable and nonsustainable. While it accelerated growth enormously and led the world to a new geological epoch, the Anthropocene, the global ecosystem has been increasingly destabilized. Moreover, this development relied – and still relies – on a deeply asymmetrical division of labor at the global level. If the post–World War II period was seen as the Golden Age of representative democracy, this label is even truer for the decade that followed the end of the short twentieth century. The fall of Communist regimes in Eastern Europe, and of most of those in the Global South that were inspired by the Soviet bloc, reinforced a tendency that began to emerge in the mid-1970s. In Southern Europe, in Latin America, and to a lesser extent in Africa and Asia, the dictatorships that the “free world” had promoted and supported were toppled, one after the other. This was also the Golden Age of “Transition Studies” in academia and international organizations. Representative democracy and capitalism were at their apex: The only question was to understand the conditions necessary for representative democracy and capitalism, and the potential obstacles to avoid. For the first time in history, it seemed that a political system could really be universal in application. The victory of capitalism and representative democracy was seen as occurring in tandem with the democratization of families and schools, the feminist revolution, the development of new mass media which no longer belonged to the state, the personal computer (PC) boom, and the rise of the Internet. One specific form of representative democracy became hegemonic, one that was based on the new neoliberal regime of capitalist accumulation. From the late 1970s onwards, the compromise between economic liberalism and social

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democracy (which had produced what Germans call the “social market economy”) failed in the Global North. This corresponded to the rise of financial capitalism. First tested out as an experiment in Argentina and Chile under dictatorial rule, financial capitalism was then imposed in the United Kingdom and the United States under Margaret Thatcher and Ronald Reagan respectively, and then in the rest of the world, including countries with social-democratic governments, and a communist country like China under Deng Xiaoping. In the Global North, economic growth was now much slower than during the quarter-century-long Golden Age: the opposite was true for China and certain other developing countries. With the Washington Consensus, the International Monetary Fund (IMF) and the World Bank imposed neoliberal policies on countries in the Global South that faced financial crises. At the world scale, the marked weakening of the welfare state seemed to be the price to pay for economic growth and the political expansion of democracy. US neoconservatives even raised the human rights flag. Modern democracy, at this point, was viewed by many as synonymous with neoliberal capitalist democracy. In 2009, Freedom House could thus proudly claim: “In 1900, no countries had governments elected on the principle of universal adult suffrage. Today, there are 119 such countries, or 62 percent of all the countries in the world.”1 So-called liberal democracy, having completely defeated its adversaries, was now in the process of proclaiming the “reign of freedom” at last. Three decades after the fall of the Berlin wall, this period seems quite distant to us, especially in so far as politics are concerned. The number of representative democracies in the world has not decreased significantly, but a growing number of the former are now described as “illiberal.” Overall, the legitimacy of political representation through competitive partisan elections has suffered. While it is true that to some extent democracy has always been in crisis, given that it is a system that is open to perpetual debates and challenges, this permanent state of crisis has been much more pronounced during certain historical moments: The United States in the 1960s cannot be compared with the German Weimar Republic in the 1920s. In reality, a series of twenty-first-century developments illustrate that we have entered a period of seismic disruptions. To a variable degree, Western political systems have gradually fallen into disrepute. Abstention has become an issue in national and local elections, sometimes rising to quite dizzying rates. Almost everywhere, a majority of citizens no longer seem to trust their political leaders. Parties are losing supporters and sympathizers, while the prestige of the political class is on the wane. Even in Germany, where the working-class mass party was invented, the two largest parties, the Sozialdemokratische Partei Deutschlands (SPD) and the Christlich Demokratische Union Deutschlands (CDU), lost more than half 1

Adrian Karatnycky (2000), The Annual Survey of Political Rights & Civil Liberties 1999– 2000, Freedom House, https://freedomhouse.org/sites/default/files/2020-02/Freedom_in_the _World_1999-2000_complete_book.pdf

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of their members between 1990 and 2020, dropping from a combined total of 1,730,000 members to only 830,000. This downward trend is the same if we look at the fifty largest European parties, and it is more pronounced if we consider the intensity (and not just volume) of partisan involvement. Moreover, this decline is even more pronounced if we measure only the partisan involvement of citizens who do not hold any kind of political office. In fact, parties are steadily becoming an inside elite of elected officials. Authoritarian tendencies are developing: The “end of history” is over. The new catchword is “democracy under threat.” Against this backdrop, and faced with the unrelenting pace of social transformations, our collective lack of institutional imagination is remarkable: During recent decades, political leaders have seemed largely incapable of undertaking bold political reforms with systemic impact. A Legitimation Crisis in the Twenty-First Century National, cultural, or institutional peculiarities, the difficulties of a specific party, the blunders or ambitions of a particular politician, or the emergence of juicy tabloid “scandals” are not enough to explain the impasse we find ourselves in, politically speaking. The problem seems much more entrenched than in the 1970s, for example, when the Trilateral Commission expressed fears regarding a crisis of governability due to an excess of democracy (Crozier, Huntington, and Watanuki 1975), or when the German philosopher Jürgen Habermas (1975) diagnosed the legitimation crisis of late capitalist societies. In fact, Western political systems are increasingly confronted with analytically distinct but mutually reinforcing structural challenges. Politics will look quite different in the twenty-­ first century to the way it did in the last decades of the short twentieth century. Democracy, Neoliberal Globalization, and Postcolonialism National welfare states are under attack in nearly all four corners of the globe. In the Global North, these used to rely on a strong working-class movement – which is today greatly weakened – but also on the fact that these countries dominated the rest of the world, which made redistribution policies easier. In short, globalization as dictated by financial capitalism has destabilized the economic basis of welfare states. For the first time in decades, the younger generations are entering professional life with gloomier prospects than those of their parents. The new regime of capital accumulation that became prevalent in the 1970s has given financial capital disproportionate importance. Although neoliberal policies seemed, in some countries, to generate vigorous growth, they also resulted in greater inequalities (Piketty 2014). The economic development of emerging markets has allowed hundreds of millions of people to get out of poverty, of course, but it has also made competition much more difficult for the Global North, especially for countries specialized in mid-range value-added products. The countries of the Global North are still very attractive for most of the world’s population (although, anecdotally speaking, most students from

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India and China intend to return to their homeland after completing their studies), but internally, their legitimacy has sharply declined. The world economic center is rapidly shifting to Asia (or to the Asia-Pacific region, more generally). This new postcolonial order “provincializes” (Chakrabarty 2007) the Global North and its political model. It has induced an identity crisis, the intensity of which varies from country to country. Brexit, Donald Trump’s administration between 2016 and 2020, and the rise of xenophobic far-right politics in continental Europe are some of its diverse incarnations. In the Global South, the situation is more complex. In emerging markets, tendencies toward the development of neoliberal capitalism and modest welfare states coexist, albeit in tension with each other. The sharpest contrast is between countries in which the ruling class has a real developmental project for the country and those in which the state is ruled by a predatory politician class. In this respect, whether a political system is formally “democratic” or “authoritarian” is not a matter of crucial importance. Structural poverty and multiple tensions can lead to major crises, wars, and even failed states. Largescale migrations are only a by-product of this situation (the number of refugees worldwide reached 70.8 million in the middle of 2019, the highest level since World War II) (United Nations High Commissioner for Refugees [UNHCR] 2021), even though they often shake the political order of the very countries that migrants and refugees are desperately trying to reach. Modern democracy developed within the nation-state. It took centuries to consolidate the latter against empires and city-states, first in Europe and then in the rest of the world, starting with the independence movements in the Americas at the end of the eighteenth century. However, in many countries of the Global South, the margins of action of these national states always remained quite limited due to the international division of labor and the unequal political world order promoted by capitalism. Moreover, in Africa and Asia, many nationstates have remained quite artificial in nature, acquiring only limited legitimacy. In the twenty-first century, global governance everywhere has implied a change of scale like the shift that took place in Europe from the city-states of antiquity, the Middle Ages, and the Renaissance, to the modern nation-states. It goes much beyond the reach of representative government and popular sovereignty. It works through networks of actors of various status: States (particularly the most powerful ones) still have an important role, but also have to deal with transnational corporate associations and alliances of local governments, technocratic international organizations such as the World Bank or the IMF, ­ rganizations churches, and to a lesser extent transnational nongovernmental o (NGOs) such as Greenpeace, the farmers union Via Campesina, or the World Federation of Trade Unions. The old slogan “think globally, act locally” is still pertinent for many issues, but a large part of the required actions and regulations operate directly at the level of global governance. The widely shared thesis according to which economic capitalist development produces the rise of the middle class and consequently induces increased

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support for liberal democracy is ideological – and no longer credible. As both historical and current developments clearly show, the middle class is not naturally democratic and can adopt very different political behaviors. The link between capitalism and representative democracies has always been an ambiguous one. The formal affinity between the free labor contract and the free market on the one side, and equal rights on the other, has been underscored both by liberals and Marxists, but this is only part of the story. In fact, capitalism has been compatible with several different political systems. As previously noticed, the first modern representative governments were opposed to democracy and favorable to capitalism. In the second half of the twentieth century, the most democratic countries – those in which various kinds of human rights and political equality were most developed – were countries in which capitalism was tamed and balanced by the strong decommodification of the public or cooperative sector (Esping-Andersen 1990). These were more social-democratic than liberal, at least according to the nineteenth-century understanding of ­laissez-faire liberalism. In addition, the struggle for civic and human rights was fought at least as much by socialists as by liberals. In this respect, the return of untamed capitalism spells bad news for the stability of the political system. The rise of new capitalist democracies throughout Latin America and Africa  – as well as in South Korea and Taiwan – from the 1980s onwards is also worth noting: Compared with Western European democracies after World War II, these entered a period of crisis relatively soon after their inception. Moreover, the reality is that these new capitalist democracies do not represent the real power of the people; in many cases, disappointment and frustration are growing. In most post-Soviet states, more or less authoritarian systems followed an early period of democratization, while predatory forms of capitalism have expanded significantly. Altogether, the introduction of capitalist democracy after the fall of Communism has been at best a partial failure, and at worst a disaster, as was the case in the former Yugoslavia and much of the former Union of Soviet Socialist Republics (USSR). On a smaller scale, the same can be said for the aftershocks of the Arab Spring. The Age of Anthropocene At the same time, the degree of economic growth observed during the past two centuries and the lifestyles of the global middle and upper classes are clearly not sustainable; this becomes ever truer as more and more people join the middle class worldwide. In fact, the mode of development of the very societies in which representative government and the rule of law prevailed was only made possible because of major global asymmetries. This model was never designed to be universalizable, a fact which is now considered to be a major driver of the current global environmental crisis. Gandhi wrote in 1928: “God forbid that India should ever take to industrialism after the manner of the West. The economic imperialism of a single tiny island kingdom [England] is today keeping the world in chains. If an entire nation of 300 million took to similar economic

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exploitation, it would strip the world bare like locusts” (Gandhi 1968, p. 303). The temporal and geographical scale of today’s ecological issues poses a completely new challenge to the democratic order. Development is off kilter everywhere, and future generations will be forced to pick up the environmental tab. How can we best protect the interests of these future generations, given the limitations and the short-term focus of elections? Modern countries have become “risk societies,” to use the term coined by Ulrich Beck (1992). Of course, human beings have always had to face uncertainty and the unforeseen consequences of their actions. Nevertheless, contemporary economic and technological developments are bringing about nearly irreversible shifts, of which global warming and genetic engineering are but the most obvious examples. How society relates to scientists and technology has also been evolving. Nostalgia for premodern societies is as old as modernity itself. Today, however, these doubts are no longer confined to reactionary or conservative circles: There are deep currents within the scientific world and the social classes most involved in the development of science and technology. The emergence of ecological issues has played a major role in this regard, along with debates about urban planning and medical policies. The states that developed during the postwar period were both social and scientific. This second dimension is now being challenged at the time as the first threatens to crumble under pressure. Many of the arguments justifying the monopoly that politicians and experts have enjoyed over policymaking were based on the division of labor, with the implication that professionals were the most capable of taking rational, objective decisions. But as it has become clear that such actions take place in an uncertain world, and that professionals neither make entirely “objective” choices, nor can they control the consequences of such choices, the epistemological foundation of this two-fold deference to politicians and scientists has been undermined (Callon, Lascoumes, and Barthe 2011). The growing reliance of scholarly research on markets has reinforced this trend (Pestre 2003). The COVID health crisis has been particularly illuminating in this regard: A lot of politicians in both the Global North and the Global South decided to partly or completely ignore the lessons drawn by scientists. That said, scientists have also been divided, and recommendations thus differed widely amongst countries and agencies alike. The authority commanded by scientific and political experts can no longer be taken for granted: An important minority of people now distrusts their recommendations. The Decline of Party Politics Part of this transformation has come from factors internal to political systems themselves. The democratic mass political parties that long structured politics and society in so many different regions of the world, from North America to Western Europe and from Latin America to India, have now nearly vanished. Nearly all new mass parties created after the end of the short twentieth century are authoritarian, the only exception being the Movimiento al Socialismo (MAS) in Bolivia. Democratic mass parties have entered a period of sharply declining

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popularity. In the past, they were the most important channel of communication between lay citizens – especially from the subaltern classes – and their rulers. Likewise, they played an important role in synthesizing various social demands, and their organization contributed strongly to structuring society itself, directly and through a network of related associations, NGOs, and unions. Mass parties could integrate the people within the political system and make it possible for this system to efficiently address a wide range of crucial issues. In nearly all countries, mass parties have lost these abilities. It is worth noticing that in less than four decades, the Brazilian Workers’ Party (Partido dos Trabalhadores, or PT) has completed a trajectory that took over a century in Western Europe, evolving from a radical organization created during a wave of major social movements, to a ruling party committed to a reformist but substantial transformation of the country, and ultimately to a party that is deeply embedded in the traditional corruption schemes of Brazilian politics and now distant from its social roots. Political parties remain the principal sphere for the selection of professional politicians, but they have lost a large fraction of their activists and partisans (Dalton and Wattenberg 2002), as well as their connection to the working class, their credibility in the eyes of lay citizens, and their capacity to channel social conflicts within the institutional political system without destabilizing it. Politics as a profession, which began with mass political parties in the second half of the nineteenth century, is now widely seen as something negative (“politicians care about their job, not about people like me”) rather than positive (“these professionals are experts and smarter than us”). What Madison asserted in The Federalist Papers no longer seems credible. The political class is again increasingly marked by its unique habits, lifestyles, and social experiences, which establish it as a group whose interests and worldview are distinct from those of citizens as a whole. Those at the top of the political food chain only commune with the administrative and economic elites: The frequent overlap between these various spheres leads ordinary observers to lump them all together. A century ago, Max Weber (1994) could still praise the higher degree of rationality of a modern bureaucratic state in which functionaries did no more than scrupulously execute rules handed down from the top. Such notions are no longer tenable; reflections on how the Holocaust could have happened have even made them morally dubious. In a quite different way, the collapse of socialism in Eastern Europe has helped to discredit bureaucratic action in general. Nonetheless, factors inherent to Western democracies have carried a decisive weight. Karl Marx (1975) derided the idea that bureaucracy could be a neutral instrument in the service of universality, and fiercely criticized its corporatism. Today, it is no longer taken for granted that public service primarily functions to benefit the public; the working classes are naturally the most affected, given their reliance on state benefits in their everyday lives. The New Public Management school of thought has introduced a number of proposals to reform the system. In Scandinavian countries, the performance of the state, and its responsiveness to users, has been greatly enhanced, thereby

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strengthening the legitimacy of the state’s role. Elsewhere, however, the theories in question have mainly imported market criteria into the realm of public action, thus reducing users to mere clients, legitimizing privatization, and touting the virtues of a minimal state – minimal, that is, at the social and economic level, but often tending toward hypertrophy in its regal, military, and police functions. Politicians should recognize the difficulties that arise in converting a policy into action with machinery that is highly opaque and cumbersome. For their part, even the best-intentioned civil servants fear the daily intrusion of elected politicians who are not on top of the issues and cannot fathom the workings of the very bureaucracy they are supposed to direct. The decreasing legitimacy of political parties also has specifically ideological roots. Citizens’ trust does not only involve utilitarian self-interest; it largely depends on ideals and imaginaries that are capable of functioning as sources of identity and belief in the possibility of a better world. The failure of socialism in Eastern Europe was a cruel blow to a powerful ideal that had helped to mobilize the masses for two centuries: Few other ideological systems, if any, have been able to succeed it. Christian-democratic ideology has also been greatly weakened. There seem to be no political ideals with the potential to crystallize majority opinion – with the potential exception of nationalism and religious fundamentalism, which have devastating consequences for the world order and hardly seem realistic in the age of global governance. As a result, the political system has lost control of the situation, and is seemingly driven by mere personal ambition and power squabbles. The “scandals” that regularly rock the political landscape merely reinforce preexisting negative opinions. These tendencies also affect outsiders, given that ecological or alter-globalist currents claiming to engage in “a different kind of politics” often tear each other apart in administrative battles or personal rivalries that are every bit as toxic as those of the political establishment. Why should we be surprised that the energies awakened by the system are essentially negative, or that they express themselves in resistance movements which, unable to connect with projects within the political class, struggle to map out a different imaginary of the future? Postdemocracy, Authoritarianism, or the Democratization of Democracy? In the Global North, compared to the massive impact of social changes (e.g., the Internet and social networks, which represent a revolution both for socialization processes and for the economy, and which are the best symbols of the new world), the political system does not seem capable of similar innovation. However, the status quo – the continuation of the classical representative democracy of post– World War II with a few adaptations – is no longer tenable. Contemporary social, geopolitical, economic, and environmental changes are too great for us to settle for the dubious efficiency of traditional solutions. History does not stop: As Marx (1907) wrote in The Eighteenth Brumaire of Louis Bonaparte, it

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“repeats itself, first as tragedy, second as farce.” Preserving the political system that we had several decades ago is simply no longer an option. Contemporary representative democracies are in fact a mixed system – aristocratic, because they give real power to an elite separate and largely autonomous from the people; but also democratic, because this elite is chosen through election (and possibly reelection) based on universal suffrage and has its power limited by the legislation it enacts (the “rule of law”), and finally because the ruled are free to express views opposed to those of the government (which is in turn required to justify its decisions in public) (Manin 1997). Historically, representative government has taken three main forms. The first, established in the age of property qualifications but persisting long after, relied on the domination of political notables (that is, individuals who could directly convert their social capital, based on property or influence, into political capital) and the centrality of parliament in political life. Even without considering the colonial, racial, and gender dimensions of this system, it could hardly be labelled as democratic, given that most of the population and especially the working class were excluded from the active citizenship, that is from enfranchisement (Dupuis-Déri 2013). The second form, first conceptualized by Max Weber (1994), was linked to universal suffrage (for men and in a second phase for women, but still excluding people from the colonies) and mass political parties. These parties enabled politicians to live not only for but also from politics, drawing their strength from the integration of popular segments into the representative system and concentrating most of the decision-making power. As a result, political notables lost part of their hegemony. In the Global North, political parties developed according to one of two models. The first, centered on the electoral machine and influential in the United States and Britain, corresponded to a top-down dynamic, in which political elites competed for the maximum number of votes (Ostrogorski 1902). The second, featuring a mass workers’ party, had its origins in Germany, although it also found expression in the British Labour Party at the end of the long nineteenth century (Michels 1962). This model developed within a dynamic of the increasing organization of the working-class masses, before asserting itself as a major force in electoral competition and being imitated by other political currents. In the twentieth century, these two models have merged together. As noted earlier, mass parties represented an ambiguous form of progress when they appeared on the political scene in the late nineteenth century. On the one hand, they were authoritarian and bureaucratic in structure: They often turned against the parliamentary political system and even nearly destroyed it at times. On the other hand, they helped to integrate the subaltern classes into a political system from which they had been previously excluded. They made a major contribution to the formation of social groups, starting with the working class. It seems clear that we have come to the end of this second period, due to the structural crisis of legitimation we have analyzed. Warning signals are everywhere: The weakness and decreasing legitimacy of parties is universal

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compared to the post–World War II era. Parties now arouse skepticism among citizens everywhere in the Global North and in most countries of the Global South (Dalton and Wattenberg 2002). While political parties are not about to disappear, we seem to have moved beyond the stage when democracy was organized almost exclusively around them. The most significant trends in this changing landscape are those toward postdemocracy and authoritarianism. Postdemocracy Postdemocracy is a system in which classical representative democracy apparently remains intact: Free competitive party elections, the rule of law, checks and balances of constitutional powers, the protection of human rights, etc. all continue to nominally exist. But although the façade remains the same, the real power has moved elsewhere. Most of the important decisions are taken by transnational corporations, stock exchanges, credit rating agencies, arbitral courts, international organizations, and technocratic agencies (Crouch 2004). Postdemocracy was neatly summarized by Germany’s Federal Minister of Finance, Wolfgang Schäuble, when he replied to the Greek delegation in the middle of the 2010s that “elections cannot change anything.”2 The leading German sociologist Wolfgang Streeck (2016), a former advisor to Chancellor Gerhard Schröder, gave this definition more scientific depth when he wrote that politicians now have two constituencies, their electors on the one hand, and global markets on the other hand – and in fact, the latter are much more influential. When the US Supreme Court refused to limit the flow of private money into politics, one could say that to a certain extent, it made political corruption and postdemocracy constitutional.3 This evolution reinforces a structural trend as well. Bowing to communications advisers and opinion polls, political leaders are forced to subordinate their party structures to other public players. Citizens are thus freed from the stranglehold of the old political machinery – but in fact just jump from the frying pan into the fire. In the official political game, they are now confronted with new rulers, in the guise of audiovisual magnates, star journalists, communications specialists, and pollsters, in addition to the politicians who know how to play this new game to their advantage. Rule by bureaucratic apparatuses has largely given way to media rule, which relies on more charismatic mechanisms. The media’s fast-paced tempo encourages focus on the latest events, making it difficult to address the long-term reforms that often represent the only chance of solving structural problems. And behind the scenes, global players are the winners. Authoritarianism Postdemocracy is the main trend in the Global North, but it coexists with the rise of authoritarianism. Mainstream politicians and academics often call this 2

3

“Yanis Varoufakis à Frangy,” Médiapart, August 25, 2015, https://blogs.mediapart.fr/monica-m/ blog/250815/yanis-varoufakis-frangy. Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

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phenomenon “populism,” describing it as the flipside of liberalism and refusing to adopt a reflexive stance on capitalist democracy (Müller 2017). While China develops an authoritarian alternative model to liberal democracy, in countries that used to be formally democratic, authoritarianism differs from postdemocracy because it implies that even the façade has changed. Elections are organized but competition is severely limited; freedoms (of speech, of association, of the press) are restricted by new laws; justice comes to depend on the whims of the government. The strong renewal of fundamentalist religious groups, be they Christian, Muslim, Hinduist, or Buddhist, goes in the same authoritarian direction. In Europe and North America, this is the trend witnessed to varying degrees in countries such as Russia, Hungary, Poland, Turkey, and Donald Trump’s United States. In the Global South, this tendency has also been strong in leftist Latin American governments such as Ecuador or Venezuela (although minus the element of xenophobia), as well as in far-right governments such as Bolsonaro’s regime in Brazil. India under Narendra Modi’s rule represents one paradigm of this evolution. Authoritarian governments try to place the blame on external and internal enemies. They make instrumental use of “uneasiness in civilization” (Freud 2002) and of xenophobic fears, especially against migrants and refugees. In an allegedly ever more threatening world, these governments claim to defend “our” values, “our” social model, and “our” mode of politics against the new barbarians. One important factor favors the rise of authoritarian or right-wing populist parties. While it is evident that social inequalities are on the rise, the working class is simultaneously disappearing. There are still workers in the Global North, of course, but there is no longer a working class in the sense of a group united by a sentiment of belonging and structured by a dense network of organizations and institutions (Beaud and Pialoux 1999). The historical constitution of national working classes took decades – and indeed, this is a project that was never completed, as the work of unifying groups must be constantly renewed in the face of tendencies toward disaggregation (Thompson 1963). Since the 1980s, left-wing politicians have struggled to effectively defend the material interests of the working classes, while the critique of authoritarian models of organization helped to weaken a labor movement in which hierarchies were often quite unwieldy. The traditional working class was symbolically male and white, and the emergence of gender-based or ethnic cleavages presents a difficult challenge for the Left. The same interpretative framework can be applied to environmental concerns, which have been difficult to integrate into productivist labor movements. Consequently, a large part of the working class has abandoned its traditional organizations, taking refuge in abstention or voting for authoritarian, populist alternatives. To summarize: At the global level, the prognosis for liberal democracies at the beginning of the 2020s is not a positive one. Compared with the two previous decades, there are many fewer governments that engage in democratic

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innovation. A lot of regions are experiencing downward spirals and the number of failed states is growing. In countries like the United States, the United Kingdom, Italy, or France, extremely conservative right-wing movements have been able to win important positions, in elections as in street politics. Unless serious progressive actions are taken in the Global North as in the Global South, postdemocracy and authoritarianism – or even worse, state collapse – are the most probable outcomes. The changes necessary must be comparable to the massive transformations that took place in the Global North during the end of the nineteenth century and the first half of the twentieth century and which led to universal suffrage, worker and progressive movements, mass political parties, and the rise of the welfare state. In fact, the changes required today must be even more radical, since they cannot be purely national and must account for environmental crises that affect the whole world. Many new actors are therefore attempting to democratize democracy at all levels, from the local to the global, in order to domesticate financial capitalism, to mitigate the ecological crisis, and to address the question of global justice at the transnational scale. The Democratization of Democracy Since the beginning of the twenty-first century, there have been three separate tendencies toward the democratization of democracy. institutional experiments in descriptive representation. Many experiments have succeeded in improving descriptive representation at institutional level. At the world scale, the most important step forward in this direction has been the introduction of quotas or reserved seats for women. A real shift occurred when the Fourth World Women’s Conference in Beijing (1995) recommended the introduction of a minimum quota of 30 percent for women in parliaments. In the decade prior to the Beijing Conference, only ten countries had introduced some form of women’s quota. Ten years later, more than 100 countries had adopted this policy. Moreover, democracies in the Global South, old and new alike, have sometimes explored new democratic paths that are not mere copies of their Northern counterparts. In India, the introduction of political quotas in favor first of the “untouchables” (the Dalits), and ethnic minorities, then of the lower castes (the so-called “Other Backward Class,” OBC), which has promoted descriptive representation in politics and a kind of affirmative action for the distribution of public-servant positions and access to university, led to a sociological democratization of politics throughout the 1980s and in the 1990s. This occurred precisely at a time when the working class was disappearing from the political sphere in most countries of the Global North (Jaffrelot 2003). Although this trend in Indian politics seems to have currently been replaced by a counter-revolution promoting a mix of communalism, nationalism, and authoritarianism, it remains an important legacy in the biggest representative democracy in the world – and an experiment worth considering for other countries. In Latin America, a wave of massive mobilizations from

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the 1980s onward prompted the end of many dictatorships. This shift led to the constitutional enshrinement of new social and ecological rights (far beyond, say, the US Bill of Rights), the introduction of mechanisms of direct or participatory democracy, the promotion of people coming from subaltern (and especially indigenous) groups, and the constitutional recognition of multicultural citizenship (to an extent that had been only existed in Canada or New Zealand in the Global North). This led both practically and theoretically to a very promising Latin American variant of neoconstitutionalism (Lousteau et al 2012; Avritzer 2002). This wave of democratic experiments eventually collapsed due to the poor governance of highly corrupt states, the authoritarianism of charismatic leaders, and an “extractivist” economic model based upon the exportation of raw materials during a period when such prices were very high. But again, it is likely that some of these developments will remain a source of inspiration for the future, as the new decade remains uncertain and seems unlikely to permit the consolidated hegemony of conservative elites.4 new social movements and the rejection of elected  represen­ tatives.  Secondly, many social movements over the past few decades have used forms of organization and mobilization based on the rejection of elected representatives, horizontal coordination, and a strong deliberative dimension. In the early 1970s, feminists were able to challenge Western societies and political parties without having a formal structure of elected spokeswomen or full-time political advocates. In the late 1970s and 1980s, this model became more widespread as “new social movements” (feminist, ecological, and pacifist) turned their backs on institutional politics and the delegation involved in representative pyramids (Offe 1987), proposing network-based structures in their stead. Of course, some points in a network carry more weight than others, but this differential power does not necessarily crystallize into top-down power based on formal hierarchies and representations. Starting in the 2000s, worldwide movements such as Occupy Wall Street have seen the development of forms of mobilizations stemming from the anarchist tradition. They have shown a surprising capacity to attract young people and to coordinate large-scale actions. In practice, a small group decides on an action, informs friends and contacts them by text messaging, Facebook, Twitter, or other social networks, and consequently organizes a highly mobile gathering that can quickly change its goal or activity through frequent discussion over the course of the demonstration; the basis for everything is consensus among the participants rather than organizational discipline. The #MeToo and Black Lives Matter movements have followed a similar path. In these horizontal forms of mobilization and organization, activists belonging to one party or another can play a role, but cannot easily gain control of the movement or use it for their own purposes. Today’s 4

Pablo Stefanoni, “Balance 2016. América Latina: una época más híbrida que refundacional,” La nación, December 18, 2016.

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spontaneous spokespersons can be momentarily recognized as representatives who embody large groups. They cannot, however, benefit from a hierarchical structure that would guarantee them the support of sympathizers, nor can they rely on legally binding measures. This phenomenon has always existed, especially in hunter-gatherer societies (Clastres 1987), but it has been bolstered by the dwindling sphere of influence of political parties and mass organizations, a more distant relationship to political involvement, and the development of the Internet and social media. When a sovereign entity is lacking and a voluntary group of diverse individuals assembles on its own, decisions often start to occur by “apparent consensus” rather than by voting: Those who are not (completely) convinced decline to use their vetopower (Urfalino 2014). Through such forms of political engagement, which are often extremely intense and have shown their capacity to elaborate a political agenda, tens or hundreds of thousands of people are experimenting with a kind of politics that is not geared toward winning elected office or state power. In addition to its use as a tool for mobilization, the Internet also allows “amateurs” to participate in political discussions. This is in large part because any control over Internet exchanges occurs after the fact and horizontally, rather than through the efforts of professional gatekeepers (political leaders, journalists, editors) (Cardon 2010). participatory and deliberative democracy.  Finally, institutionalized forms of participatory and deliberative democracy have been on the rise. There have been many strikingly imaginative developments in this sphere over the last decades, in highly diverse national contexts and involving a variety of actors (Fung and Wright 2003). The participatory budget in Porto Alegre was the best-known example, both because of what it achieved locally and because it occupied a pivotal position among the cluster of alter-globalist social movements and progressive local governments (Abers 2000; Genro and De Souza 1997; Gret and Sintomer 2004; Santos 2005; Baiocchi 2005). Porto Alegre made a significant impression, leading to numerous imitations and adaptations across the globe, including in the Global North, albeit while often losing its radical potential along the way (Sintomer, Herzberg and Röcke 2016; Ganuza and Baiocchi 2012). Beyond this specific mechanism, there has been a noteworthy ideological shift toward a greater appreciation of discussion, debate, and participation. From community development corporations to participatory budgets, from neighborhood councils to citizens’ assemblies, from consensus conferences to citizens’ juries, various democratic innovations have emerged (Smith 2009). They embody what can be called the “new spirit” of modern public action (Blondiaux 2008), in much the same way that the “new spirit of capitalism,” analyzed by Luc Boltanski and Eve Chiapello (2007) from a ­neo-Weberian perspective, started to take shape in the late 1970s. Although one is often struck by the contrast between ambitious rhetoric and modest

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results, the emergence of a new frame of public action and political bonding must be considered seriously (Blondiaux and Sintomer 2002). However, the real meaning of this trend is far from clear. A number of these democratic innovations have focused on the importance of citizen participation, with participatory budgeting being the most visible example. Others have in contrast put deliberation on the front stage, with randomly selected minipublics as the most famous case. Although participation and deliberation are not necessarily exclusive, they do exist in tension with each other: The greater the number of people participating, the more difficult it is to ensure high-quality deliberation among participants. Often, these elements have been presented in the literature as pointing toward two opposed models of democracy (Held 2006). One of the aims of the present volume is to better understand this new framework of public action, and to analyze the role of sortition in this set of democratic innovations, as well as its connection with both participation and deliberation. Liberal Democracy and Its Limits Liberal democracy does not mark the end of history: The modern Western political system has always had two faces, one light and the other dark. By the same token, political debate at the beginning of the twenty-first century cannot be reduced to defending liberal democracy against the threat of illiberal democracy, populism, or authoritarianism. Nor is the future of politics reducible to the alternatives of postdemocracy and authoritarianism. Renewed interest in descriptive representation, the antiauthoritarian dimensions of new social movements, and the development of participatory and deliberative democratic innovations encourage us to take another look at the history of modern Western democracies. This history is not limited to either the progressive affirmation of liberal democracy and competitive partisan elections, or the metamorphoses of representative government. Running parallel to the history of representative government, often interacting with it, but sometimes sidelined or even completely out of synch (Hardt and Negri 2001), there exists another dimension that has always been present within democracy, in both the Global North and the Global South. It is based on a dynamic without which it would be impossible to understand the past two centuries: The concept of “history from below,” geared to the autonomous activity of the working class and other subaltern groups, helps us to better appreciate this dynamic. Pierre Rosanvallon (2008) has spoken of “counter-democracy,” but this encourages a focus on the negative element of the mistrust of elected politicians. The participatory tendency in democracy – a better term for what we have in mind – is not only deployed when criticizing the propensity of representatives to dispossess the represented of the power the latter entrusted to them. It involves distinctive imaginaries of democracy, in which citizens have a real capacity for self-government, the rulers have reduced power over the

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ruled, and spaces of collective autonomy are as large as possible. It has utopian dimensions but has been able to mobilize millions of people and to transform the world, resulting sometimes in the destruction of representative government, but also – and more frequently – in the transformation of representative government into representative democracy, and in the creation of welfare-state democracy. The participatory tendency also implies a different history of democracy, whose chronology is not the same as that of the history of representative government (even if the two are intertwined), and which has its own mythical founding moments (a variety of revolutions, the Paris Commune, New England town meetings, Swiss Landsgemeinde (citizens’ assemblies), 1968, Soviet organizations in Russia, Germany, Italy, Hungary, Algeria, and Chile, etc.); its own imagery (libertarian and socialist utopias, tendencies within political liberalism or political ecology, part of the civic republican tradition and Anglo-Saxon pragmatism, etc.); its own players; and its own forms of inquiry and contradiction. Since the 1980s, a new model, deliberative democracy, has arisen, which has been widely coupled with a new institutional mechanism, the randomly selected minipublic. Deliberative democracy has sometimes been opposed to and sometimes been coupled with participatory democracy. From this alternate history, let us untangle the history of the political practice of sortition. Though the genealogy of this practice dates back to the origins of Western democracy in Ancient Greece, it will also allow us to better understand today’s experiments in random political selection. It will contribute to the historicization of representative democracy, as it stabilized in the Global North and some countries of the Global South for a few decades following World War II. It will help us to take a reflexive stance toward the recent past, with a view to better understanding the state of democracy at the beginning of the twenty-first century and examining its potential future.

Selection by Lot in Antiquity Since most contemporary uses of sortition (for political, scientific, and entertainment purposes) have been secularized means that we often assume there is an essential difference between secular and religious uses of sortition, without even questioning the historical pertinence of such a distinction. This ­volume doubtless partakes at least somewhat of this assumption when it focuses on sortition in politics. While divinatory sortition was practiced in a wide variety of civilizations, the political use of selection by lot was particularly – though not exclusively – developed in the West, where it became widespread and increasingly rationalized. Although a systematic investigation of non-Western sources would likely uncover some surprises, at the present stage of historiography, we can only say that China under the Ming and Qing dynasties witnessed a similar development of sortition practices (Will 2020).

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Sortition in Religion, Politics, and Games of Chance It is important to understand that the dichotomy between political and religious sortition was not – and is not – self-evident. In Western Asia, Greece, and Rome, no hard-and-fast distinction was made between religion and politics: Religion was a civic engagement, and many political acts were embedded within religious rituals. Selection by lot was included in a broad range of activities, including both divinatory practices and what we might today call political practices, but whose religious or at least ritual dimensions remained nonetheless significant. At first glance, the similarities between the instruments first used in Western Asia, Ancient Greece, and Ancient Rome are striking, in terms of both political and divinatory uses of drawing lots. In Rome, all political acts were ritualized. Although we now distinguish between random selection in terms of pure chance and random selection as revealing the divine will, this distinction had little significance during much of ancient history. The ritual dimension of sortition is illustrated in the Homeric epics, where the procedure is accompanied by a prayer to the gods (Berthout 2017; Demont 2000). For a long time, and following in the footsteps of the arguments made by Fustel de Coulanges (1891), the idea that selection by lot was predominantly a religious matter in Antiquity prevailed. This situation began to change, however, with the work of Hansen (1991). With some exceptions (Demont 2020), the accepted view is now that the practice of sortition was largely detached from religious signification by the time it was employed in the radical democracy of fifth and fourth century bce Athens. Moreover, the magisterial overview proposed by Irad Malkin (forthcoming) tends to discredit the thesis of the religious origin of sortition and shows that as early as the Archaic Period, drawing lots did not have much to do with the idea of discovering divine will in most Greek practices; divination specifically only concerned the oracles. It is true that selection by lot was held in the Theseion as early as the fourth century bce: The description of the sortition of members of the people’s jury by the author of The Athenian Constitution illustrates a ritualized civic procedure. However, this ritual dimension does not imply that when Athenians proceeded to randomly select citizens for public offices in the fifth century, they believed they were revealing the will of the gods. After the fall of the Roman Republic, although the ritual dimension continued to be important (perhaps even fundamental), the idea that the will of the gods was expressed every time public offices were allocated by lot was no longer a belief shared by the majority of citizens (or, if we are to believe Cicero [1923], at least by most “enlightened” citizens). From this point of view, it is significant that the Athenian lottery machine, the kleroterion (dating from the fourth century bce), as well as the Roman rotating urn, the urna versatilis (dating from the first century bce), were not used for divinatory purposes. Nevertheless, it was only during the Christian Middle Ages that the norms governing religious practices and

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political acts would diverge radically regarding the use of sortition; it was likewise only at this point that the distinction between the two uses began to be theorized. Sors Divinatoria and Sors Divisoria thomas aquinas: the different uses of sortition. The distinction between the political and religious uses of sortition, though meaningless in many ancient civilizations, became a major issue during the Middle Ages and with the rise of Christianity. Thomas Aquinas (1225–1274) was the first to establish a rigorous distinction between the two. In the section on divination in his Summa Theologica (1269–1272) (Aquinas 2010, Part II, question 95) and a small treatise called De Sortibus (1270–1271) (Aquinas 1963), he explains that there are “three kinds of divination: (a) divination by calling upon demons; this is the purview of necromancers; (b) divination by contemplating the position or movement of strange object; this is the purview of augurs; and (c) divination by implementing certain practices in order to discover what is hidden; this is sortition.” (Aquinas 2010, Part II, question 95, article 3). The rationales for the first two kinds of divination are at antipodes from each other. The first, which is illicit, consists of directly invoking demons, illegitimately trying to discern the divine will, and possibly falling into superstition – the last two practices ultimately amounting to surreptitiously letting demons act. In opposition to this demonic form of divination, condemned for both theological and rationalist reasons (which had already been established by Cicero 1923), Thomas Aquinas describes a licit form of divination practiced by augurs. That form consists of analyzing and interpreting certain natural phenomena to predict the future. According to Aquinas (2010; 1963), it is both useful and necessary to consult the movement of the stars to better manage agricultural cycles, either by directly analyzing causal chains (the movement of the stars leading, for example, to eclipses and thus exerting a direct influence over natural bodies), or by looking for clues to not immediately perceptible causal dynamics (the flight paths of birds or the behavior of animals in general could reveal ongoing natural events that humans could not detect directly). This kind of divination could be subject to a process of rationalization. The third kind of divination deserves a description of its own: It is a kind of halfway point between the other two forms. In the Summa Theologica, it is defined as a process “practiced by observing certain things done seriously by men in the research of the occult, whether by drawing lots, which is called ‘geomancy’; or by observing the shapes resulting from molten lead poured into water; or by observing which of several sheets of paper, with or without writing upon them, a person may happen to draw; or by holding out several unequal sticks and noting who takes the greater or the lesser; or by throwing dice, and observing who throws the highest score; or by observing what catches the eye when one opens a book, all of which are named ‘sortilege’” (Aquinas 2010, Part II, question 95, article 3).

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In De Sortibus, Aquinas (1963) further develops his reflections on the topic. Aquinas gives a new theological foundation to the condemnation of chance-based divinatory practices (sors divinatoria, or sortes sanctorum), which the Church had outlawed since the Council of Vannes in 462 ce, but which nonetheless remained widely in practice, even within the Church itself. The election of the Bishop of Orleans in the fifth century ce attests to this usage. According to the legend, after an infant,who was too young to speak, had randomly selected the ballots on which the candidates’ names were written, he spontaneously gained the ability to speak and announced the result, which was confirmed by opening three sacred books at random, the random verses all containing omens that were favorable to the newly elected bishop (Courcelle 1953, p. 202). The technique of consulting sacred texts was widespread and frequently mentioned in the lives of the saints. A similar logic runs throughout the life and works of Saint Augustine (1909, Book VIII, Chapter XII, 29). The Synod of Barcelona held in 599 had planned for sortition to be organized between two or three people “chosen by the clergy and the people” to select the Pope (Vives 1963, pp. 159–160; Maleczek 1990, p. 130). The life of Saint Francis of Assisi (1180–1226) was also marked by practices of sortition (Rocquain 1880, pp. 457–474). However, the Decree of Gratian (Decretum magistri Gratiani), written between 1139 and 1158 and which helped to establish canon law, clearly condemned the practice. In the context of a discussion on divinatory practices, Gratian comments on the idea that “chance was not evil; it was something that indicated the divine will amidst human doubt.” Gratian also writes: We respond thusly: before the Gospels flourished, many things were permitted, that have since been completely eradicated in our era of more perfect discipline. For example, the marriage of priests, or of related persons, was not forbidden by ancient laws, the laws of the Gospel, or the laws of the Apostles, but is nevertheless completely forbidden by ecclesiastical law. Moreover, we recognize that there is no harm in the [act of drawing] lots, but the practice is forbidden to the faithful, so that they are not tempted to return to the old idolatries under the guise of practicing divination (Decretum magistri Gratiani, [1879] Question II, C. I. See also C. VII.)

Thomas Aquinas’ originality lies elsewhere, however. He considers the growing use of sortition for magistrates in the Italian Communes, as the latter were rediscovering a procedure that had apparently disappeared for centuries; he also argues for the banning of sortition procedures for official Church positions, a prohibition that had in fact been issued by the Pope several decades earlier (Aquinas 2010).5 By distinguishing three different types of sortition, 5

According to Saint Jerome, several passages in the Decretum Gratiani define the clergy, etymologically speaking, as kleros, or those whose destiny has been dedicated to God. In the medieval context, however, this was no longer a reference to sortition strictly speaking, but to chance in the sense of destiny and divine election. Nonetheless, the Decree does not refer to the prohibition

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Thomas Aquinas provides a theological basis for the prohibition on sortition in canon law. The first kind, which he calls “distributive sortition” (sors divisoria) is the one he deems the most legitimate. This procedure can be used in secular affairs when it is unclear how to allocate goods or attribute functions. But since the Church has become an institution, it is forbidden from using such expedient measures: To do so would be to offend the Holy Spirit and the wisdom with which it has endowed its clerics, especially its bishops. Hierarchy can always be relied on in cases of disagreement. The second type of selection, “consultative sortition” (sors consultatoria), is also permitted in secular affairs alone: It consists of leaving a decision to chance when it is unclear which side to take after exhausting one’s reasoning capacities. The third kind, called “divinatory sortition” (sors divinatoria), entails unduly soliciting God’s judgment using divination techniques. Thomas Aquinas reiterates his prohibition and even expands it, arguing that divinatory sortition can only entail a pact with the Devil or, at the very least, permit demons to intervene in human affairs; the seriousness of the sins involved depending on the kind of divination practiced. After him, the particularly crucial opposition between sors divisoria and sors divinatoria would sometimes be expressed with other Latin words, namely sortitio (sortition) and sortilegium (spell) (Stollberg-Rilinger 2014a). By freely drawing on Aquinas’ analysis and the various other attempts to classify the different uses of sortition that began to emerge in the Middle Ages, we can today propose a typology based on the work done by Cristiano Grottanelli (2001). From the perspective of twenty-first-century scholars, the uses of sortition can be divided into three major categories: (1) “distributive sortition” (sors divisoria) which consists of randomly distributing goods or functions; (2) cleromancy (sors divinatoria), a specific kind of divination (or, to use a different kind of vocabulary, of mantic, or knowledge of the divine) using the drawing of lots; (3) other practices, including games of chance and the scientific and statistical use of probabilities (see Table 1.1). These categories can in turn be subdivided. Distributive sortition (sors divisoria) can entail distributing goods, positions, or functions. Cleromancy (sors divinatoria) can entail revealing someone’s destiny or the expression of a divine will, with these two things being slightly different. In fact, destiny can refer to a supernatural realm or a cosmic order that does not involve the personal will of a deity, and the idea of destiny or fate can persist in ritual uses even when secularization and rationalization have discredited belief in the direct intervention of the gods down on earth. Cleromancy can moreover refer to various techniques. Games of chance can be divided into many different categories, depending on the instruments used. And finally, probability calculus and the random sampling in statistics and polls have a different history, the first used of random selection for religious offices (Decretum Gratiani, Distinctio XXI, C. I; Pars secunda, Cause XII, Question I, C. V and C VII). Many thanks to Julien Théry for his insightful comment on these points.

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Reveals a destiny

Distribution Distribution of goods in of lots: land, territories, functions: loot, real estate, rare political, healthcare items, military, or etc. “Negative” religious distribution: positions punishments, decimation, conscription, taxes, etc. Distribution of political powers seen as properties over the governed and their goods, or to share a part of the common goods

Games of dice and anklebones (several millennia bce); lotteries (China, 200 bce, Roman Empire, fifteenthcentury Europe); card games (China, ninthcentury, Europe, fourteenth century); lotto (Genoa, sixteenth century), etc.

Games of chance

Probabilities (use: late Middle Ages; theory: sevententh to nineteenth centuries) Statistics (end of the nineteenth century) Polls (twentieth century)

Scientific use of chance

Other practices

Source: Compiled by the author

Extraction of an object (sors, kleros– cleromancy in the strictest sense), of cards (cartomancy), random selection of a book page (bibliomancy); divination using dice or astragals (astragalomancy), small sticks (achilleomancy); the burning of turtle scales (cheloniomancy); etc. Distribution of goods and functions as revealed destiny or the expression of divine will Interpretation of fortune or misfortune in games as a sign of fate or (more rarely) divine will Potential use of the same instruments for distributive sortition, cleromancy, and games of chance; or between scientific and nonscientific practices (digital sortition); shifting techniques from one realm to another Use of probabilities, representative sample - - Use of probabilities, representative sample

Expresses a divine will

Cleromancy: Divinatory sortition (sors divinatoria)

Distribution of goods and functions: Distributive sortition (sors divisoria)

table 1.1  The practices of sortition

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in the late Middle Ages before becoming theorized in the seventeenth to nineteenth centuries, the second (statistics) at the end of the nineteenth century and the third (polls) in the twentieth century. These distinctions are of course largely analytical. Any application of this typology must consider that it has been elaborated in the contemporary era, where the religious and political uses of sortition are generally distinct practices, something which was not always the case in Antiquity. In history, the different domains influenced each other, and transfers frequently occurred. The original unity of distributive sortition (sors divisoria) stemmed from a view of power as a sort of property over people, territories, and movable objects, or as a right to claim a share of a political community’s public goods. In that regard, it was logical to confuse the distribution of goods with the allocation of functions. Moreover, the revelation of destinies and expressions of divine will often have shifting borders, especially in societies where belief in the voluntary action of supernatural powers is strong. The idea that distributive sortition drew its significance from God’s intervention or some other manifestation of the divine was likewise very widespread throughout history. Conversely, probability calculus and statistics have influenced games of chances such as lotteries in past centuries, as well as political sortition since the 1970s. Previously, games of chance were often seen as the revelation of divine will. For example, Roman dice were not perfectly square, which meant that some faces were more likely to be rolled than others; this was not considered a problem, however, because strict chance was not necessary, given that those who won were seen as being favored by fate. It was only much later, in the thirteenth century, that in some parts of Europe people began to write in a systematic fashion about why dice games work the way they do; at the same time, the dice themselves grew increasingly uniform.6 It is clear, therefore, that the techniques and instruments of sortition were often the same as those used by games of chance, cleromancy, and politics. Conversely, the creation of specific tools like the kleroterion generally marked one realm’s growing autonomy from another, as well as the growing autonomy of politics with regard to religion. A brief look at etymology reveals several connections between different practices based on a reasoned approach to random chance. There are several semantic links between the vocabulary of chance in general, and the lexicon of games of chance (Biville 2020). In Romance and Latin-influenced languages, such as English, the word “hazard” comes from the Arabic az-zahr, a game of dice. During the Middle Ages, it then came to refer to a specific dice game called azar. The English word “chance,” from the Latin cadentia, first meant the way the dice were rolled (or fell, literally). “Case,” from the Latin casus, an event (from cadere, to fall), has the same etymology, leading to caso in Italian, meaning chance; the German Zufall (chance) and Fall (case) also exhibit the 6

“The Shape of Ancient Dice Suggests Shifting Beliefs in Fate and Chance,” February 18, 2018, www.theatlantic.com/science/archive/2018/02/dice-dice-baby/553742/?utm_source=atltw

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vestiges of this etymological journey. In Latin, alea was also a game of dice. The French sort (fate), from the Latin sors, sortis, also referred to a kind of dice used in Antiquity to consult an oracle. Likewise, the word tratta, which designated the procedure by which political sortition operated in Florence, shares some affinities with this dice vocabulary: Caesar’s famous exclamation before crossing the Rubicon, alea iacta est is translated into Italian as il dado è tratto. In French, the expressions tirer au sort and tirer les dés use the same verb. In both languages, we can see the shared origins of extracting objects and rolling dice. The Greek word kleros, however, from which kleroterion is derived is likely the only word to have a different origin: It refers to “chance,” but also to one’s “lot” or “prerogative,” especially in the context of inheritance arrangements (Demont 2010, p. 2). This etymology also pops up in the later terms “lottery” and “selection by lot.” In Latin-based or Latin-influenced languages, “clergy” comes from the Greek kleros, revealing the fact that for a long time during the Hellenistic period, priests were selected by lot. As for the Latin sors, it referred to the pieces of parchment or other objects that were extracted from a receptacle to predict the future, or to attribute functions or lots. However, it also referred to fate or destiny – sort in French and sorte in Italian are both derived from this word, as well as the expression “sortilege” in English. The English “sortition,” as well as its French and Italian translations (tirage au sort and sorteggio), have a similar etymology. Moreover, “lot” has preserved the two meanings of the Latin sors. This etymology is alive and well today in the modern words “lottery” and “ballot” – the latter being derived from Venetian electoral practices that involved ballotte, or small balls of wax containing the names of electors, as well as the ballottino, or young boy in charge of extracting the balls. Sortition in Ancient Western Asia and the Mediterranean Region Historical sources from Ancient Greek, Roman, and Christian civilizations demonstrate that the divinatory and political uses of sortition did not necessarily go together. At the same time, however, it would be absurd to overlook the connections between the various realms where sortition was practiced. In Western Asia, for example, while reliance on sortition was widespread, it did not involve the development of a purely political form of sortition, nor did it lead to radical democracy as practiced in Athens. In Ancient Mesopotamia, distributive sortition (via the extraction of objects from a receptacle) was used to distribute inheritances between descendants and to attribute various temple responsibilities. Sortition existed in the Hittite civilization (denoted by the Sumerogram KIN), where the random drawing of lots (isqu) among persons of equal status was used to distribute material goods. It is also mentioned in myths, where the sky, the earth, and the realm in between were divided up among the Gods Anu, Ellil, and Enki – with the latter thus being given a destiny, since distributive and divinatory sortition were intimately linked. In Assyria, the eponymous official who gave his name to the

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New Year was randomly selected using a casting pebble (puru). This practice also had a divinatory dimension, as the rite revealed who the Gods had chosen for the task of chief minister for the year (Oppenheim 1977, pp. 208–209; Milano 2020; Schemiel 1999, chapter 4). The puru also appears in the Bible with a strong religious connotation in Esther’s story of the lots (purim) cast by Haman, a strategy designed to convince the Assyrian king to exterminate all of the kingdom’s Jews on the day determined by the casting of lots: “In the twelfth year of King Xerxes, in the first month, the month of Nisan, the pur (that is, the lot) was cast in the presence of Haman to select a day and month. And the lot fell on the twelfth month, the month of Adar” (Ester, 3:7. See also Ester, 9:20–24). Ester managed to uncover the plot and ultimately it was Haman, the minister who had organized it, who was executed. The Jews then transformed the date chosen into a feast called Purim, the Feast of Lots. More generally speaking, the random distributive drawing of lots (goral) was mentioned throughout the Old Testament and is very often linked with divinatory practices (qesem). The most famous example is when Saul becomes the King of Israel: Then Samuel brought all the tribes of Israel near, and the tribe of Benjamin was taken by lot. He brought the tribe of Benjamin nearby its clans, and the clan of the Matrites was taken by lot; and Saul the son of Kish was taken by lot. But when they sought him, he could not be found. So they inquired again of the Lord, “Is there a man still to come?” and the Lord said, “Behold, he has hidden himself among the baggage.” Then they ran and took him from there. And when he stood among the people, he was taller than any of the people from his shoulders upward. And Samuel said to all the people, “Do you see him whom the Lord has chosen? There is none like him among all the people.” And all the people shouted, “Long live the king!” (Samuel 10:20–24)

Here again, the story clearly shows that the successive drawing of lots revealed the person already chosen by God. There are numerous passages in the Old Testament that display similar logic (See for example Numbers, 26:52–56; I Cr 24–26).7 Hubertus Buchstein has rightly highlighted that in this regard, the contrast with the New Testament is striking. The latter does include sortition practices, for example when Matthias was selected by lot against Joseph Barsabbas to become an apostle after Judas’ disgrace: And praying, they said: “Thou, Lord, who knowest the heart of all men, shew whether of these two thou hast chosen, To take the place of this ministry and apostleship, from which Judas hath by transgression fallen, that he might go to his own place.” And they gave them lot, and the lot fell upon Matthias, and he was numbered with the eleven apostles. (Acts 1:15–26)

However, such references are much more succinct. The Church’s later condemnation of divinatory sortition emphasized this difference. Nevertheless, 7

For a general synthesis on sortition in the Jewish tradition, see Shraga Bar-On (2020).

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when Protestants rediscovered the Bible beyond the confines of Roman theology, they were able to rehabilitate several sortition techniques for religious purposes in a number of reformed and Calvinist communities (Buchstein 2009). In the fifth century bce, there were still many examples of sortition in Western Asia and the Mediterranean basin. Herodotus mentions several examples where lots are drawn to divide up the spoils of war, and still others where the process is used to attribute various wartime responsibilities. He credits the Lydians with inventing games of chance and describes how during a famine, the Lydians also determined who would be exiled by casting lots. He suggests that the Cyrenians used a similar procedure to designate the five adventurers who were to go explore the Libyan Desert. The Persians likewise used sortition to appoint a special commando responsible for capturing or assassinating Oroetus, an insubordinate satrap. Herodotus (2008, I, 94, 167; II, 32; III, 25, 84–86, 128; IV, 68, VII, 23; XXX) adds that the troops of the Persian king Cambyses, plagued by famine during their attempt to conquer Ethiopia, were reduced to drawing lots, selecting one soldier out of every ten to be killed and eaten by his comrades. Sortition was also exceptionally used – albeit in a rigged fashion – to appoint Darius I as King of the Persians (Cordano and Grottanelli 2001). Herodotus also describes a more unique, mythical use of sortition: Every five years, the Thracians randomly select a messenger in charge of bringing their requests to their God, Salmoxis. The procedure is as follows, according to Herodotus (2008, IV, 93–96): Believing in life after death, the Thracians select by lot the name of a messenger before subjecting him to a kind of ordeal. “This is their manner of sending: Three lances are held by men thereto appointed; others seize the messenger to Salmoxis by his hands and feet, and swing and hurl him aloft on to the spear-point. If he be killed by the cast, they believe that the gods regard them with favor; but if he be not killed, they blame the messenger himself, deeming him a bad man, and send another messenger in place of him whom they blame. It is while the man yet lives that they charge him with the message.” Sortition was a widespread practice in ancient Western Asia and the Mediterranean basin, taking the form of games of chance as well as divinatory and distributive sortition; the boundaries between these different practices remained fluid. Distributive sortition for magistracies never played a central role in political organization: It was a practice used only sporadically, when it was necessary to solve a difficult problem, establish exceptional missions, or distribute powers between deities and individuals who were thus assigned their “lot.” Greece and more especially Athens were unique, however, as drawing lots became an important element of various social practices in the Archaic Period throughout the Hellenic world; in fact, the sortition of political and judicial positions grew to occupy a central role in the Attic city’s political system.

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Athens: Sortition and Radical Democracy The uniqueness of Athens is revealed through contrast: Unlike in the other situations discussed previously, selection by lot was fully developed as a political tool and came to play a central role in political life. As the political history of Athens, including the role played by sortition, is well documented, and as a general synthesis of the role of sortition in the Hellenic world will soon be published (Malkin forthcoming), we shall limit ourselves to providing a brief overview. Drawing lots was far from being unique to Athens (Homer, Iliad, 15, 187–195). It was so widespread in Greece since the Archaic Period that it produced a unique dynamic compared to the rest of Western Asia and the Mediterranean. In the region, most developed societies during this period were organized through a vertical principle, the power coming from above. In the Greek world, drawing lots involved a horizontal dimension as well. Distributing goods and positions among a circle of equals became a mindset that eventually made democracy possible in some cities. Drawing lots was used to distribute inheritance, booty, land when colonies were founded, and sacrificial goods during religious ceremonies; to choose the soldiers who had to go to war or had to assume special tasks; to assign starting positions in certain sports; to homogenize cities and in particular colonies by randomly mixing people and groups from different origins; and finally, drawing lots was practiced in the context of divinatory oracles. Sortition had the function of reducing conflicts between peers through a fair distribution of goods and honors, with a right proportion opposed to the excess of hubris. This distributive procedure was linked to justice (dike). It made it possible to add weak ties within the community, in addition to the previous strong ties of the family or the clan. Even gods were supposed to draw lots among them, as evidenced by Poseidon receiving the sea, Hades the underworld and Zeus the realm of Heaven. The drawing of lots was frequently ritualized, with gods presiding over the practice, but sources show that the Greeks did not believe that these gods were strictly influencing the outcome (Malkin forthcoming). In its most exhaustive passage on this topic, The Iliad demonstrates how kleros could be used to identify the hero that would face the enemy on behalf of the Greeks as a whole. It could reveal the moira, the fate, that awaited everyone (Guidorizzi 2001; Demont 2000; Demont 2010, p. 2) – but moira did not mean that transcendental gods had decided the direction of a life (Malkin forthcoming). This was even more applicable to the drawing of lots in politics, even though there was no clear-cut distinction between the secular and the divine in Greece, and sortition to attribute political functions clearly had a ritual dimension. The meaning of sortition to attribute political functions was transformed by the spread of democracy in Athens, which systematized this practice. It dramatically expanded the previous horizontal logic of drawing lots to the political sphere and enlarged the circle of the equals among which sortition

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took place far beyond the aristocracy (Blok forthcoming). From this point of view, no other cities in Western Asia or the Mediterranean were on par with Greek democracies (Ehrenberg 1923). The practice of sortition grew pari passu with democracy itself, which completely transformed its logic. It was either first introduced by Solon in the early sixth century bce or by Cleisthenes in the second half of the sixth century bce. However, it was certainly an integral part of Cleisthenes’ root-and-branch reform, which organized the city basing it on a purely territorial principle, rather than the clientelism of leading families. Cleisthenes set up democratic courts (Heliaia) and a democratic Council (Boule), to the detriment of the aristocratic Areopagus. He also established the principle of isonomia, the equality of all citizens before the law (Lévêque and Vidal-Naquet 1983). At that time, the most important magistrates were the Archontes, who were elected. They only became selected by lot following Ephialtes’ reform (462–461 bce), which completed the democratization process of the Athenian political system. Afterwards, selection by lot was used massively during the Golden Age of Athenian democracy in the fifth and fourth centuries bce. During the time of Pericles, it was extended to the great majority of public offices, while the democratic momentum took deeper root through the marginalization of the Areopagus, the establishment of daily allowances (misthophorie) for Council members (bouletai), and the randomly chosen juries of the people’s courts (461 bce). A Distributive Democracy By condensing two centuries of tumultuous constitutional history, we can briefly summarize Athenian constitutional logic in the following manner. Outside the aristocratic forms inherited from the Archaic period, such as the Areopagus, ancient Athenian institutions relied on a procedural triptych: the people’s assembly, election, and sortition. Aristotle (1962, 4.9; 1294b) believed that the three complemented each other in the establishment of democracy, but he also maintained that it was mainly through the sortition of leaders that the profoundly democratic nature of a city was expressed. Election, though necessary to the overall balance, at least partly embodies a different, aristocratic, principle. Aristotle completes this picture by noting that, in the case of elections, they are oligarchic if the suffrage is based on a property qualification and democratic if all, or nearly, all citizens are able to participate. In his view, Athens had a “mixed system” of aristocratic and democratic elements. At the heart of the polis was the Ekklesia, the people’s assembly, which was open to all citizens eighteen and older. It met at frequent, regular intervals and ruled on many matters. It officially operated according to the principle of equal speaking rights (isegoria), although oratorical talents and influence networks were obviously not evenly distributed among those present. The second procedure, involving elections, was reserved for certain key offices (with property qualifications that are gradually lowered with the development of democracy; this concerned about 100 offices in the fourth century bce) (Blok 2014, p. 76).

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Army leaders – most notably the ten generals (strategoi) – were appointed under this system, as were financial administrators, council clerks, numerous religious functionaries, architects, and the committees in charge of supervising public buildings. Even among democrats, the prevailing view was that experience and special knowledge were essential to performing these key state tasks, and that in such cases election is preferable to selection by lot (Buchstein 2009, p. 67). Conversely, most of the administrative experts were public slaves, as if the city wished to avoid a situation where those who had professional knowledge could leverage it as power over lay citizens (Ismard 2015). Since elections favored a small group of influential people known to their fellow citizens and who exerted a certain sway over them, they were seen as less democratic than sortition. This last element constituted the third component of the procedural triptych: Each citizen could potentially stand for selection by lot, according to the principle of ho boulomenos (“whoever wishes”). Sortition was used in five different institutions. First, for the yearly constitution of the Boule, also known as the Council of Five Hundred, the main council of Athenian democracy whose functions cut across the typically modern division of powers among the legislative, the executive, and the judicial branches. Each of the geographical demes composing the Athenian polis (whose boundaries were initially drawn by lot) was represented in the Council, not directly but through the ten “tribes” (or districts) that each contributed fifty citizens aged thirty or older; the Boule thus represented the whole territory of Athens. It prepared the rulings of the people’s assembly and supervised their implementation; it enacted certain kinds of laws, functioned occasionally as a court, exercised important military functions, was responsible for areas of foreign policy, and supervised public administration as a whole (finances first and foremost); its role in advance preparation means the Ekklesia was active and functional. Positions of responsibility within the Boule were also filled by allotment – especially the position of chairman, which was renewed every day at sunset. The random method was used to select a kind of Council executive, a position which bouletai from each tribe had to occupy for a month at a time (when they are known as prytaneis). In addition to the Boule, most magistracies (or 600 out of 700) were filled by sortition; the ten main ones were the Archontes (Blok 2014), six of whom (the thesmosthetai) were guardians of the law and had responsibility for the courts. These were appointed in two stages: Each of the ten geographical tribes selected ten of its members by lot, then a second, centralized procedure resulted in the selection of one from each tribe. The other magistracies – police and highway officials, inspectors of markets, grain commissioners, weights and measures inspectors, officials responsible for public revenue, and so on – were likely also filled using a centralized procedure (Hansen 1991, pp. 231–232). Those who were selected had to undergo an examination, called a dokimasia, before taking office. Interestingly enough, “no questions were asked related to the expertise or competency related to the specific office.

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Athenians assumed that an average citizen had the skills necessary to do the requisite work” (Miller 2022, p. 104). Thirdly, in the fourth century, a kind of second chamber composed by randomly selected citizens, the nomothetai, came to revise the laws enacted by the assembly and verify their compliance with the Athenian “constitution” (Pasquino 2010). Fourthly, sortition was widely used in the various associations that were crucial to the Athenian democratic way of life. The jurors who awarded the prizes for the theatre competition that took place during the Festival of Dionysus, a major civic event, were also selected by lot (Miller 2022, Chapter 5). Finally, all the judges were selected by lot. Citizenship in Athens entailed the inalienable right to participate in the assembly and to potentially become a juror (Aristotle 1962, III: 2, 1275a). Each year, six thousand citizens were chosen by lot to form the Heliaia, which sometimes met in plenary sessions but more often in several smaller law courts (dikasteria), depending on the business at hand. These courts were regarded as a key facet of democracy, their verdicts being delivered by popular juries with several hundred members each. Those in charge of running the courts were also selected by lot. Citizens were required to charge others with crimes or defend themselves in person, and it was forbidden to pay for a proxy representative. Members of the court could not deliberate, but only vote after listening to the parties who appeared before them. In addition to adjudicating on everyday matters, the courts were also responsible for supervising the people’s assembly, the Council, a variety of public offices, and political leaders; they also performed a wide range of administrative and technical duties. The voluntary members of the Helaiai were required to show up in the morning and were then selected by lot and divided among the various courts. On this scale, and with this frequency, selection by lot thus became a routine activity. It would not have been possible without special techniques to ensure that it took place swiftly and impartially. Following Aristotle, Hansen (1991, pp. 197–199) has tried to reconstitute one of these procedures: Court proceedings began at dawn with the selection by lot of the day’s jurors from those of the eligible 6,000 who had turned up. ... The thesmothetai ... decided whether the day should be devoted to smaller private suits with 201 jurors or larger ones with 401, or to public prosecutions with 501 or more. ... Early in the morning the potential jurors started arriving. In front of each of the ten entrances there were ten chests, each marked with one of the first ten letters of the alphabet. ... As people arrived, they went to the entrances of their tribes and put their jury plaques in the chest whose letter corresponded to that on the plaque. ... Then began the allotment, at each entrance, as follows. When all the potential jurors for one tribe had given up their plaques, the archon took one plaque from each of the ten chests, and the ten persons thus chosen counted at once as jurors; but their first task was to each take the chest with his letter in it and stand in alphabetical order, five at each of the two kleroteria set up at the gate. A kleroterion was a stele of marble, of a man’s height, with five columns of slots corresponding

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to the size of a jury plaque. Each man with a chest was given a column of slots into which he put all the plaques from his chest starting at the top. Beside the kleroterion ran a narrow vertical tube, and into this tube were put black balls and white balls ... The balls were then let out of the bottom of the tube one at a time. If the first ball was white the possessors of the first five plaques from the top were accepted as jurors; if it was black, those five at once got back their plaques and went home. The procedure continued until the last white ball came out. ... When all ten tribes had completed the procedure the jury list for the day was complete. As soon as the selection of jurors was over, another selection by lot began, to distribute them between courts. ... The jurors now went to a basket with acorns in it, each acorn having a letter corresponding to one of the courts, and each juror took an acorn. There followed a third selection by lot, this time between the magistrates themselves: into one tube was placed one ball for each court, marked with that court’s color, and into another tube was placed a ball for each magistrate; a ball was taken from each tube, and so on, and that determined which magistrate was to chair which court.

We can assume that this whole process, which Aristotle (1984, 110–112) describes in The Athenian Constitution, lasted approximately one hour. Starting in the fourth century, the procedure began to use a specific instrument, the kleroterion, and to take place in the Temple of Hephaestus (the Theseion). Distribution by random selection expanded to numerous aspects of political and administrative life (Daverio Rocchi 2001; Lopez-Rabatel 2020). With regard to the courts alone, more than two thousand citizens tried their hand at this “game” for two hundred or so days a year. With all its details so clearly visible, this procedure was seen as manifestly impartial because it took place in public. In that regard, the kleroterion, the allotment “machine” most likely mentioned by Aristophanes as early as 393 bce (Lopez-Rabatel 2020), and designed in such a way that many witnesses can observe its operation, was crucially important. It made the procedure quicker and more straightforward, while simultaneously protecting it from any attempts at manipulation. Athenians used other forms of selection by lot, for oracles and with dice (Hattler, 2008, pp. 26ff), but the kleroterion seems to have been reserved principally or perhaps even exclusively for political and juridical purposes. It perfectly embodied the concept of distributive logic that existed since the Archaic Period and survived well into the democratic Classical Period (Blok forthcoming). The Democratic Ideal In Athens, participation and deliberation were closely linked. In the Western world, the Greeks were the first to theorize a form of public debate that involved all citizens. An apt reference here is Pericles’ funeral oration in honor of the soldiers who died in the first year of the Peloponnesian War, as recounted by Thucydides (1954, II, 40, translation modified), and wherein the orator defends his city’s political regime:

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We alone regard a man who takes no interest in public affairs, not as quiet as a useless character; and if few of us are originators, we are all sound judges of a policy. The great impediment to action is, in our opinion, not discussion, but the want of that knowledge which is gained by discussion preparatory to action.

From a modern perspective, two contradictory interpretations exist, alternatively describing Athens as a city of permanent civic participation, or conversely as a community of apathetic citizens. Both interpretations are unconvincing.8 For Pericles (as reconstructed by Thucydides), participation is not required all the time to be a good citizen. Only those who want to lead or deeply influence public affairs must be permanently active. A large majority of citizens can limit their participation to occasional time in the Boule. A “quiet,” that is, ordinary citizen, participates moderately: he does not speak during the assembly, does not attempt to gain public offices, does not go to court, but is present at decisive moments and perhaps most importantly, is ready to defend Athens and its democratic order in times of need. This profile was considered absolutely normal: It was only the refusal to take part in public affairs or the decision to remain neutral in case of civil war that were viewed negatively. Even with this qualification, citizen participation in Athens was quite intensive compared to what is expected of citizens in modern representative democracies. In addition, it had a direct link to decision making in the citizens’ assembly, which selected public offices by lot (Miller 2022). Regular participation and public deliberation were inextricably linked in the ancient Greek city. Many then and now have wondered, however: Is ­well-informed public deliberation compatible with participation by the many? Does this political system favor reasonable decision making or, on the contrary, enable the manipulation of an ignorant population? Before it can be given the philosophical treatment, this question is first and foremost a political issue. Most writers at the time defended an antidemocratic perspective: This was the case for Plato and Socrates, with Xenophon (2013, I.ii.9, quoted in Levy 1989, p. 80) writing that Socrates teaches “his companions to despise the established laws by insisting on the folly of appointing public officials by lot.” Among modern scholars, Ober has convincingly argued that Athenian democracy favored epistemic rationality (Ober 2008; 2021). However, one must add that the different forms of Athenian debate were complex. In the people’s assembly, an essentially contradictory debate unfolded, wherein orators attempted to convince the audience: A practice conceptualized by Aristotle as rhetoric (Manin 2005). Nonetheless, the public could actively participate by manifesting its approval or strong disapproval (Villacèque 2013). The practices of the Boule were doubtless more interactive, whereas one-on-one political discussions took place in the various public spaces of the agora (Ruzé 1997;

8

I am grateful to Vincent Azoulay for his enlightening comment on Pericles’ famous sentences and his convincing thesis on civic participation.

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Bouricius 2013). In the courts, on the contrary, juries were required to form their opinion by listening to the various parties but without deliberating, as all discussion among jury members was prohibited. Aristotle (1984, IV: 2, 1317b, p. 237) summarizes as follows the common features of all democracies: (1) Elections: all citizens eligible for all offices; (2) rule: all over each and each in turn over all; (3) offices filled by lot, either all or at any rate those not calling for experience or training; (4) no tenure of office dependent on … a property qualification or only on a very low one; (5) the same man not to hold the same office twice or only very rarely – a few permitted exceptions, notably offices connected with warfare; (6) short term of office for all offices or as many as possible; (7) jury-courts all chosen from all the citizens and adjudicating on all or most matters and always on the most important and far-reaching, such as … the constitution, investigations, contracts between individuals; (8) the Ekklesia is the sovereign authority in everything, officials having no sovereign power over anything except quite minor matters, or at least the Council is sovereign in matters of greatest importance.

Selection by lot, rotating mandates, the possession of equal rights (isonomia), equality in freedom of public speech (isegoria) – even in a highly critical or deriding modus (parrhesia) – regular participation in political life, mandate accountability, the central role played by the people’s assembly and the council: These are all institutional features that gave material form to democratic ideals in Ancient Athens. All citizens have an equal degree of freedom. They are rulers and ruled in turn, and in some regards the less well-off have the upper hand over the well-off by virtue of their sheer numerical superiority; the meritocratic principle has a value limited to the election of some political positions, such as the office of strategos. Not only the elites but every citizen (that is, every free adult man born within the city) may live “as he wishes,” but in conformity with his nature as a zoon politikon, whose origin and moral fulfilment can only be derived from the political community. The radical-democratic ideal linked to the emergence of the polis constitutes a political-symbolic revolution (Vernant 1983, p. 99): The polis appears as a homogenous universe, without hierarchy, without levels, without differentiation. The arche [power] is here no longer concentrated in a single person at the summit of society. It is evenly distributed throughout public life, in that common space where the city finds its center, its meson. Sovereignty passes in a regular cycle from one group to the next, one individual to the next, so that commanding and obeying are not opposed as two absolutes but become inseparable terms of one and the same reversible relationship.

With the frequent rotation of power (most mandates were allocated for a period ranging between a few months to a year), sortition became a highly rational procedure. The coupling of rotation with selection by lot was particularly effective in staving off the professionalization of political activity, the monopolization of power by experts in a realm cut off from the citizenry (as we noted earlier, many experts were public slaves, which further helped to

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prevent professionalization) (Ismard 2015). From this perspective, the ideal of the city-state is at once political and epistemological: That is, it defends the liberty of its citizens in equal measure, and it asserts that all citizens have a legitimate role to play with regard to action and political reflection, given that neither of these is viewed as a specialized activity. This ideal is widely accepted in the classical era, as we can tell from the way in which the highest offices are filled. Most at the time are in fact held collegially, to limit the risk that an individual might seize power and wield it for his own purposes. The strategoi are the foremost officeholders and, though elected, form a college whose presiding figure is chosen and appointed each day by lot. This is a means of avoiding rivalry, but also of distributing major political power within a group that is composed of ostensibly competent (elected) individuals. Similarly, the president of the Council is selected by lot from the prytanes, and for the duration of a single day he is formally in possession of full state powers. At the end of his term, each president could thus declare: “I was Athenian president for twenty-four hours, but no more!” (Hansen 1991). The opposition between moderate democrats and the more radical factions primarily centers on the role of elected leaders, as distinct from the citizenry as a whole. Thus, in his celebrated funeral speech to the soldiers of Athens, Pericles declares that, although all citizens are equal before the law and can speak if they so desire, regardless of their financial means, “we choose officeholders according to their public esteem, so that citizens are appointed by merit rather than succeeding each other in turn” (Thucydides 1954, II: 37, translation modified). In contrast to this meritocratic principle, Cleon appeals to the wisdom of the common man (Thucydides 1954, II: 37, translation modified): We should realize … that lack of learning combined with sound common sense is more helpful than the kind of cleverness that gets out of hand, and that as a general rule states are better governed by the man in the street than by people of more subtle intelligence … the sort of people who want to appear wiser than the laws … But the other kind … are prepared to admit that the laws are wiser than they are. Less adept at criticizing the arguments of a skillful orator, they let their judgement of affairs be guided by common sense, not by a competitive spirit. This is why their policies usually have beneficial effects.

In practice, the ideal of equality for all citizens was imperfectly realized (Azoulay 2014). Sharp clashes pitted social groups against each other throughout the history of Athens, especially the kaloi kagathoi (“the best”) against the demos (a term which, though usually translated as “the people” in English, designated both the citizenry as a whole and the lower classes more specifically). Peasants from outside the city were at a disadvantage compared to urban dwellers, given that they had to travel much greater distances to take part in the assembly or in the selection of officeholders by lot. Individuals who were not employed or independently wealthy, as well as those from the poorer social classes for whom the daily allowance provided a modest income, were

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more strongly represented than others (Bleicken 1994, p. 227). The wealthiest exerted considerable influence on their clientele: The most important political offices were de facto reserved for an elite that had the necessary free time and financial resources to devote themselves to politics. Despite such limitations, however, the democratic ideal at least partly corresponded to what transpired on the ground. The Athenian way of life largely revolved around political activity, and citizens participated on a highly egalitarian basis, especially compared to most other systems throughout history. At the apogee of Athenian democracy, before the outbreak of the Peloponnesian War in 421 bce, Attica’s population numbered between 250,000 and 300,000, of whom 170,000 to 200,000 were adults. Only 30,000 to 50,000 of those enjoyed full political rights; some 80,000 slaves and 25,000 foreigners, as well as women and children, were excluded from public life (although women did participate in religious associations). Between 6,000 and 8,000 citizens could be part of the assembly, which in theory met forty days a year, although on most occasions the number of citizens present was lower. At any rate, the Pnyx where the citizens gathered was not large enough to hold the entire civic body. Although actual participation was thus unequal, over a thirty-year period, a quarter to a third of all citizens aged over thirty could be expected to serve for a year on the Council and for a month as a prytanis, thanks to selection by lot and the rotation of functions. Nearly 70 percent of citizens aged over thirty were bouletai at least once in their lifetime (Finley 1991, pp. 73ff; Ruzé 1997, p. 380), and a still larger proportion were called upon to play the role of juror, so that very few citizens were left out altogether, so long as they were willing to participate. These institutions functioned as schools of democracy, in a society with an emerging civic culture, where face-to-face contact and the weak ties created by the distribution of the demes across the territory made mutual accountability easy to ensure. As a result, to a large extent, this distributive democracy was also a form of radical democracy. Rome: Ritualizing the Distribution of Power among a Republican Elite In other political systems, however, sortition was used in contexts that did not have such egalitarian motives. We have already seen several examples in ancient Western Asia. In Greece itself, distributive sortition was not the only significance tied to the drawing of lots. In Athens and even more at the Delphic oracle, divinatory sortition is documented until a late period, taking the form of a technique that used fava beans (probably because these were seen as closely associated with the human soul) (Di Salvatore 2001, pp. 119–130). Moreover, it could also be used exclusively in a ritualized and impartial manner to settle conflicts, especially among the elites. It thus promoted social cohesion, an attribute that was widely appreciated, not just in ancient Athens. This logic was sometimes pushed to the extreme. In the small Greco-Sicilian city of Nacona during the Hellenistic period, foreign arbiters came to reconcile

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factions after a civil war. An inscription allows us to imagine how they might have proceeded to restore harmony. “Two lists of thirty names are drawn up, including the most fervent partisans of each of the two factions, inscribed one by one on lots and placed into two urns. Then, pairs of enemy citizens are randomly selected, alternating between the two urns.” To each of these pairs, another three citizens randomly selected from the rest of the population are added. The purpose of the operation is set out in the decree: “Let the citizens brought together by sortition become like brothers, living in harmony, justice and friendship.” These institutionally selected “brothers” are required to eat together, for example. The rest of the population is then divided into groups of five by a similar process, and “let those individuals also be brothers for the same lot, after having been randomly selected as described above.” The newly restored harmony is celebrated with a sacrifice, while the decree is engraved on a bronze plaque placed as “an offering at the entrance of the Temple of Olympian Zeus” (Demont 2010 p. 4, based on Dubois 1989, and Loraux 1997, pp. 222–236). Five Sets of Practices In the Roman Republic, elections were by far the most important political mechanism, and they underwent significant technical development and evolution over the years. Citizens played an important role through their physical presence in several assemblies, especially the contiones where speeches were made, and the Centuriate and Tribal Assemblies (comitia centuriata and tributa), that is, the people’s assemblies where voting took place. The people (populus) could exercise a mediated power through the tribunes of the plebs and could be called upon to settle power struggles between the ruling circles. Toward the end of the republican period, the people were often forced to play a more active role, at a time when the number of civic sortition practices was constantly increasing (Bothorel 2020). Throughout most of the period in question, however, only 3 percent – at most – of the population could be physically present in popular assemblies. Real power was in fact wielded by the patrician elites through several different mechanisms (the unelected Senate, electoral procedures, clientelism, etc.). Even though the city developed a complex political system, in the sense of a public sphere that allowed for discussion of civil matters, Rome never became a democracy (Hurlet 2012). However, Roman practices also relied heavily on sortition (Hollard 2020). Sors divinatoria was widespread (Loriol 2020), often involving children as a sort of symbolic gateway to the supernatural. Phenomena of this ilk are documented in Etruscan culture as early as the fifth century bce (Bagnasco Gianni 2001), and are also attested to as early as the fourth century bce in Palestrina, a city thirty or so kilometers from Rome and which functioned as the Roman Republic’s main divination center. Cicero (1923, II, 41) describes this procedure at length in its late-republican form. The epigraphy shows a child tasked with drawing the sortes, in this case oak tablets stored in a well, on which

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messages are inscribed that must be deciphered by soothsayers (Champeaux 1982–1987). A similar procedure was also used in Ostia, Rome’s port city. Although it was not as influential as in ancient Athens, sors divisoria took five different political forms in Rome. It was used to distribute competences across collegial bodies; to determine the voting order in people’s assemblies; to compose trial juries; to fill certain political, judicial, or liturgical positions (less frequently); and finally, to determine the rotation of duties in the military sphere (Ehrenberg 1923). Sortition was used within collegial bodies to divide competences across time and place, and to establish the division of labor. This practice was ageold but expanded significantly during the first century bce. Access to public office was granted in three phases: First magistrates were elected by the people’s assemblies; then the aristocratic Senate ratified the election and defined the responsibilities that would be conferred to the new officials; and finally, sortition divided those duties up among the individuals selected. In order to understand the meaning of this procedure, it is important to remember that most public offices in ancient Rome were collective, which had a number of advantages, but which also posed an obvious problem from the perspective of coordination. This was particularly problematic for the two consuls, who each enjoyed the right to consult the auspices (an official divination rite), to receive a triumph (triumphus) in their name in order to celebrate a brilliant military victory, and to wield imperium: That is, complete and indivisible power over the matters or territory for which they were responsible. A century and a half after the Republic was founded (circa 367 bce), sortition was called upon to determine the distribution of the “provinces” (large territorial realms of authority that were related to special duties, such as leading the charge in a given war) among the two consuls (one patrician, the other plebian) and the praetor (a patrician); the latter occupied a newly created office and also enjoyed the privileges of the auspices and imperium. This system remained in effect when the number of praetors swelled to four (in 242 bce) and again to six (in 227 bce), as the territory controlled by Rome continued to grow and the increasing importance of war – which the consuls were primarily in charge of managing – led to the establishment of a hierarchy between them and the praetors. Later, this system would expand to include other high-ranking magistrates who possessed imperium; that is the promagistrates (proconsuls and propraetors, responsible for governing the Roman public provinces) (Blösel 2020). Both the concepts of provincia and juridictio are semantically linked to sortition: They are its outcome, with a meaning close to that of the Greek kleros or the English “lot” (Biville 2020). This method was also applied to other posts: In 444 bce and 406 bce, sortition was notably introduced to divide powers between the two military tribunes, who did not have the right to the auspices or triumph reserved for the consuls, but whose role would become decisive in Roman political history (Stewart 1998, pp. 93–136). The possibility of using comparatio and entrusting the consuls with the task of allotting their

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responsibilities themselves instead of having recourse to sortition (Mommsen 1952, I, 41) emerged when the ruling class became more diverse, thanks to the rising power of the plebeians, and when the need for military cooperation was seen as particularly crucial. Nonetheless, comparatio remained a derogation procedure with regard to sortition (Stewart 1998, chapter 4). The latter also came into play to determine the voting order in popular assemblies, starting with the most important of these: The Centuriate Assembly, which was in charge of electing the consuls and praetors. The “centuries” of the upper class voted first, followed by those of the three intermediate classes, then followed by the centuries of the lower class. Chance determined how votes were ordered within the upper class, and in particular which century voted first (the centuria praerogativa), a mechanism that has elicited great interest among modern historians (Meier 1956). Votes were counted, and the result was declared one century after the other. Although each century cast one vote, the upper classes had a greater number of centuries, while the plebeian centuries had more citizens overall. In addition, only the majority position within a century was retained. In this census-based system, the centuria praerogativa set the tone. As soon as a majority was reached, voting came to an end. Centuries from the lower classes were therefore only rarely called upon to speak; in fact, they only expressed themselves when serious disagreements divided the upper classes. Sortition was also used to determine the voting order in the Tribal Assembly and the Plebian Council, which elected the lesser magisterial offices. In the case of the election of the Pontifex Maximus, the chief priest of the Roman state religion, a first round of sortition was additionally conducted to choose the 17 tribunes (out of 35) who would be allowed to take part in voting (in 63 bce, Caesar was thus elected with a majority of 9 out of 17) (Jehne 2010). More generally, sortition was sometimes used to decisive effect, especially regarding the election of tribunes. In fact, in all Roman elections, voting took place within each statutory group, and the majority vote within the group became the choice of the whole group in the final tally. Moreover, each elector had as many votes as there were offices to fill: Two for the consuls, ten for the tribunes, etc. However, voting stopped as soon as the successive votes of the tribes designated a number of candidates who had obtained an absolute majority that was equal to the number of offices to fill. Due to this specific measure and depending on the order in which the voting results were announced, one candidate could win election even when his (unlucky) opponent might have obtained an even greater majority, had all the votes been counted.9 For tribune elections, there were thus a total of 350 potential votes (35 tribes, each with 10 votes). 9

Toward the end of the Republic, tribal voting takes place simultaneously, but the results are declared tribe by tribe following a randomly determined order; the consequences are thus the same (Lintott 1999, p. 48; Taylor 1966, pp. 179–181).

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During certain periods, especially at the end of the Republic, sortition was also used to compose trial juries, which were of great importance in Rome (Rosenstein 1995). Less frequently, sortition was practiced to appoint certain secondary magistrates (to nominate ambassadors, for instance) (Maffi 2001, pp. 137–138), whether administrative or ecclesiastical (the Vestal virgins, notably, were chosen at random). Finally, sors divisoria served a unique purpose in the army. In addition to the fact that, as seen earlier, the consuls’ military responsibilities were normally determined by sors divisoria, the practice was also regularly used to determine the marching order of the legions, the rotation of duties among different units, the soldiers to be affected by decimation in the case of particularly serious misconduct, or the series of military decisions to be taken. Polybius (1922) discusses the practice in depth when he analyzes the reasons behind Roman military superiority. During most of the Republican period, political sortition took a form that was fairly similar to the one exhibited in divinatory rituals. The sortes indicating the functions to be allotted were placed in an urn (sitella) filled with water, which had previously been inspected and made sure to contain nothing else, then the sortes were drawn, distributed, and identified, and the responsibilities attributed accordingly (Stewart 1998, p. 17). Later on, between 100 bce and 70 bce, at a time when sortition practices were expanding in scope, a lottery machine was invented: The urna versatilis, an urn into which identically shaped and weighted spherical lots (pilae) were inserted (Bothorel 2020). The urn was then placed on a horizontal axis and rotated to properly mix up the marbles; finally, the top was opened to extract the marbles. The procedure was primarily used to select citizens’ jurors and to determine the placement of the chariots in circus races, but it was sometimes also used to distribute responsibilities among magistrates. Iconographic evidence attests to the fact that this machine was used throughout much of the Empire’s history, until at least the beginning of the Byzantine era (Nicolet and Beschaouch 1991; Hurlet 2006). Much like elections, sortition slowly lost its political significance as the Empire grew in size and stature. It was gradually replaced by top-down appointment as the emperors consolidated their power and Roman politics gradually became mere shadow puppetry. Nevertheless, sortition was too firmly rooted in tradition to completely disappear. The practice was used to allocate various functions among consuls and promagistrates until quite late in the Empire’s history (Bothorel 2022; Hollard 2020, pp. 141sq). In 27 bce, a reform granted Augustus direct authority over a certain number of provinces, later called the imperial provinces, while the other provinces, called public provinces, officially continued to be managed by the Senate. While it was suspended during the First and Second Triumvirates (beginning in 60 bce), the use of sortition to select the promagistrates responsible for governing the senatorial provinces was reinstated by Augustus in the context of his plan to “restore the Republic” (restauratio Rei publicae).

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Augustus copied the main provisions of the Lex pompeia passed in 52 bce: Each year, the senators who were consuls or praetors could, once a certain number of years had elapsed after the end of their mandate, become candidates for the position of promagistrate. In addition to the fact that the candidates were de facto required to receive the emperor’s approval, sortition took place among a very limited pool of individuals. Not many could meet the legal requirements: Some years, the number of persons legally entitled to present themselves as candidates was not high. There could be as few former praetors as the number of eligible positions, and there were generally only three or four former consuls running for the two provinces. In reality, this kind of sortition ultimately left little up to chance (Hurlet 2006). It was primarily used to organize, in an impartial and well-regulated fashion, the temporal rotation of the individuals who were qualified to become promagistrates, at the same time as it symbolically reasserted the regime’s “republican” dimension. The Augustan reforms endowed sortition with a legal form that it would preserve for two centuries. The procedure was subject to increasingly stricter imperial control, however. Its evolution was not linear, alternating between phases where imperial control is tightened (under the Julio-Claudian dynasty until 68 ce, and to a lesser extent under the Flavian dynasty from 69–96 ce), periods where imperial authority was more discreet (under the Nerva-Antonine dynasty from 96–192 ce), and times where sortition was formalized and the emperor’s ability to preselect candidates became law (under the Severan dynasty from 193 ce to 235 ce). Only the outer trappings of the ancient ritual were ultimately preserved. Moreover, promagistrates frequently saw their mandates extended by the emperor, who thus overrode the annual selection process. At the same time, emperors gradually gained a monopoly over the benefits conferred by the auspices, the triumph, and imperium. At the end of the third century and the beginning of the fourth century, Diocletian’s provincial reform definitively abolished the sortition of promagistrates, thus harmonizing law and practice (Hurlet 2006). Throughout this long transition, sortition was nonetheless wielded by the emperor against the Senate. Instead of convening a plenary session, a group of senators was chosen by lot for deliberations: This limited group carried less weight than the plenary assembly, and thus had less power to oppose the emperor. Ultimately, however, even this restricted group proved too powerful, and the emperor began to handpick senators directly. Ritual Lot In Rome, sors divisoria in all its forms was much more intimately tied to sors divinatoria than it was in ancient Athens. Roberta Stewart convincingly argues that sortition stems from the ritual of the auspices, a ceremony used to interrogate the gods, in the hope of glimpsing some kind of omen or determining the fate of the individual(s) in question (Stewart 1998). Handling the auspices was a task reserved for consuls and high-ranking priests. In

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particular, the auspices had to be consulted before magistrates were elected, when newly elected individuals took office, when various duties had to be distributed among them, and more routinely, when public policy decisions were taken. The procedure normally took place in the Temple of Jupiter Optimus Maximus; it was designed to elicit a sign – of Jupiter’s will during the Archaic Period and of ritual authorization later, most likely. Moreover, sortition within the Centuriate Assembly helped to establish consensus among the dominant social classes, granting it a ritual republican legitimacy under divine auspices (Meier 1956; Flaig 2004, p. 173; Manin 1997). For sortition to have any kind of democratic significance, it would have had, at the bare minimum, to select the centuria praerogativa from among all centuries, and not only from the upper-class ones. Gaius Gracchus is said to have proposed such a modification during his mandate, when sortition began to be politicized in the last century of the Republic. He allegedly proposed “that the centuries should be selected by lot from the five classes without distinction. In this way, dignity and wealth shall be valued equally and each man shall strive to outdo his peers in virtue” (Sallust 1921, VIII, quoted in Hollard 2020, p. 139). However, the law ultimately never passed. Even in the case of the Tribal Assembly, where sortition took place across all tribes and thus possessed egalitarian logic, the latter was mitigated by the proportionally lesser weight of the working class. Moreover, it was primarily symbolic, since the Tribal Assembly had limited sway over decisions (Buchstein 2009, p. 129). The political use of sortition partially divested itself of its religious dimension thanks to the gradual secularization of Roman society. Belief in the direct intervention of the gods in human affairs declined among the political elite, even if it remained commonplace among the lower classes. This has led several modern authors to suggest that there was a clear distinction between political and religious sortition (Ehrenberg 1923). In addition, those who no longer believed in omens could still accept their use as an added element to confer legitimacy through ritual. Although Cicero (1923, Book II, XXXV; II, XXXVI; XLI) included the practice of sortes and auspices in his attack on divination, he nonetheless defended the latter’s usefulness from what can be seen as a Machiavellian perspective: “I think that, although in the beginning augural law was established from a belief in divination, yet later it was maintained and preserved from considerations of political expediency (rei publicae causa),” or out of respect for popular superstition. The ritual’s continued popularity could not, however, be explained by purely instrumental or strategic reasons (Hollard 2010). In addition to its immediately practical function – impartially allocating responsibilities among elite peers while minimizing conflict – sortition possessed, thanks to its ritual dimension, a strong symbolic function, a transhistorical feature that early modern historian Barbara Stollberg-Rilinger (2014a) has convincingly theorized in another context. It aimed to transform powerful competing patricians into magistrates who cooperated in the exercise of power and worked in service of the public good. Sortition was also an

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important component of the republican ideal (Stewart 1998, p. 56). This was precisely why Augustus reinstated the mechanism when he sought to firmly establish his imperial authority by symbolically restoring the trappings of traditional legitimacy (Hurlet 2006). Roman politics was heavily structured by rituals, many of which were employed over long periods of time and thus conferred legitimacy through tradition. Rituals were an intrinsic part of the procedures to be followed and implied a kind of rational-legal legitimacy (in other words, a kind of procedural rationality somewhat similar to our modern constitutional review) (Jehne 2010). Moreover, they played a decisive symbolic role in establishing a public sphere that allowed for conflicts among the elites to play out, channeling them to ensure compatibility with the common good – at least in principle. Rituals of chance thus had an essential function; for a lot of people, they likely remained tied to an attempt to uncover destiny (Ross Taylor 1966). This complex logic also applied to the populations under Roman occupation: Starting in 242 bce, the officials in charge of governing the conquered regions, the praetores peregrinus, were selected by lot using a variation of the procedure employed by the magistrates ruling in the Roman provinces. This solemn ritual was highly regulated. Domination was not, therefore, merely based on the arbitrary decision of a military leader, the Senate, or the Roman people: “The random allotment and the auspically defined lot translated the personal relationships between the conquered people and the individual Roman commanders into an institutional relationship with Rome” (Stewart 1998, p. 204). The Martyrdom of Saint Dasius Before we analyze the role of sortition in the Italian republics of the Middle Ages and the Early Modern period, we should pay attention to the martyrdom of Saint Dasius, a story that describes an act of sortition that allegedly occurred during the late Roman Empire. It is one of the most striking legends of Saturnalia, the most important Roman festival. Carnivalesque in nature, Saturnalia took place after the winter solstice, during the twelve days that exist between the solar and lunar cycles. Banquets and orgies proliferated during this time, as the usual social norms were suspended. Games of chance, including dice games, were permitted during Saturnalia, while they were usually forbidden (though widely played) outside festival periods. Slaves eated at their master’s table; sometimes the masters even served the slaves. Free men randomly drew a King of Saturnalia (Saturnalicius princeps) who gave farcical orders to his subjects (Nilsson 1923). Later Greek sources, discovered by the historian Franz Cumont and commented by the famous anthropologist James G. Frazer (1900), painted a rather tragic picture of one Saturnalia celebration (Cumont 1897). During the late Roman Empire, Roman soldiers stationed along the Danube to contain the barbarians celebrated Saturnalia in the following manner: Some time before the festival, they would draw lots to select a handsome young man. This man

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was said to embody a god; he was paraded around in public wearing royal clothing. His every desire, even the basest, was fulfilled. His rule only lasted a very short time, however. At the end of thirty days, when Saturnalia came to an end, this ephemeral king was forced to slit his own throat upon the divine altar. One year, this fate fell to the Christian solider Dasius. The latter refused to play the part of a pagan god and declared that since he had to die, he would die as a Christian, thus refusing to spend his last days in debauchery. He was unmoved by the threats of his superiors – he even went so far as to destroy pagan images and was condemned as a result. Saint Dasius was martyred and ultimately decapitated on November 20, a Friday, at the fourth hour of the twenty-fourth day after the new moon (Pillinger 1988, p. 21). Both anthropologists and historians have debated the veracity of this story, which owes perhaps more to myth than historical reality (Lang 2005; Lévi-Strauss 1952; Parmentier 1897; Pillinger 1988; Prescendi  2013; Wendland 1898; Wissowa 1971). They have analyzed the carnivalesque reversal of social relationships and the sacrifice of the pseudo-king but have overlooked the manner in which the latter was selected and the short duration of his reign. As we have seen, together with the regular election of rulers, the combination of sortition and the rapid rotation between mandates was nonetheless one of the most widespread forms of selection in Rome as in Athens. The Roman celebration of Saturnalia thus operates as a distant satirical echo of this procedure. And yet a certain affinity seems to exist between the representation of a temporary king fated to be sacrificed at the end of his short rule, and the fact that he is randomly selected. Of course, accounts of this kind of sacrifice must necessarily be treated with caution in terms of historical accuracy (Nagy and Prescendi 2013). Nevertheless, the scholarly fascination exerted by such sacrifices even centuries later, their echoes throughout numerous literary works (Cocteau 1998; Michon 1998), their presence in many different religions (the figure of Christ, for example), and their phantasmagorical manifestation in Carnival rituals all reveal the deep ambiguity of human relationships to power. While refusing philosophical speculation that does not consider sociohistorical contexts or the range of techniques employed, we must not simply cast aside Jacques Rancière’s thesis according to which sortition is the essence of democracy, as mentioned in the introduction. From an anthropological perspective, it may come to complement rather than supplant a Weberian-style sociology of comparative history. Formally, selection by lot in any domain – and whatever the rationale for its practice – places the individuals (or the solutions) from which the random choice is made on a radically equal footing. This radical equality also applies to those who decide to use the procedure in a divinatory fashion: A god or supernatural force thereby reveals who they have chosen, but their will is inscrutable to ordinary mortals before the lots are drawn. To draw lots within a group of people (even a very small group) to appoint a spokesperson or a leader is to accept that none of them can claim greater a priori legitimacy than anyone else to represent or rule the group.

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Politics, when understood according to the radical interpretation proposed by Jacques Rancière, means that there can be no indisputable claims to speak, judge, or rule in the name of the community; that neither wealth, knowledge, gender, ancestry, anointment, nor even sheer number can be elevated as a principle above discussion. Any criterion is historically contingent and can therefore be criticized. This way of thinking, if carried to its logical conclusion, culminates in democracy as the circle of citizens expands to include all adults. Selecting public offices by lot makes the political principle of equality more radical, moving from mere discussion about the nomination of individuals to speak, judge, or decide on behalf of the community to the actual nomination of those individuals. Historical investigation shows that sortition is not, ultimately, the essence of democracy: But it is possible to say that elective affinities exist between the former and radical politics. The concept of elective affinity, which stems from medieval alchemy, was used by Goethe (2008) in his eponymous novel Elective Affinities and by Max Weber (2010) in The Protestant Ethic and the Spirit of Capitalism (Benjamin 1974; Löwy 1988). It suggests that certain components attract one another and, when placed together, break up, and reconfigure themselves into a new whole. The relationship between elective affinities is therefore not a linear one of cause and effect, but rather a circle in which the two elements are at once cause and effect of their reciprocal transformations. From this standpoint, we can refer to Pierre Clastres’ analysis of hunter-­ gatherer societies. According to Clastres (1980), primitive societies are characterized by the fact that they reject all attempts to grant an individual (or a group of individuals) the power to command other individuals. Tribal chiefs and leaders can only make suggestions, which are only followed if they are convincing. Moreover, leaders pay a heavy price for their symbolic privilege, as they work more than the rest in the service of the community, redistributing to the community the goods that they must also produce in greater quantities than the rest of the tribe. Clastres adds that when power becomes autonomous, the direction of this debt is reversed: Instead of receiving a profusion of goods from the leader, the community begins to pay him tribute, as if thanking him for his services. Perhaps the fascination exerted by the myth of the sacrificed king alludes to this other possibility: A ruler who, instead of controlling a group and forcing it to pay a kind of debt, would on the contrary be in debt to the community that permits his existence – going so far as to literally give up his life in exchange.

Conclusion Whether fact or fiction, the martyrdom of Saint Dasius is obviously far removed from how sortition was practiced during the Roman Republic and Empire. Instead of representing a pacified competition for power among elites due to the ritual selection by lot, it illustrates the reverse of this situation. It is

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fascinating because in the same narrative, it weaves together the carnivalesque reversal of the debt of power, the sacrifice of a temporary king, and the practice of sortition to designate the latter. It points toward the anthropologically ambiguous relationship that humans develop with their leaders and the pressure of demanding that rulers “serve the people” in exchange for their power (Dalarun 2012; Mao 1944). The sortition of offices, at least in its radical-­ democratic version, thus illustrates another facet of this ambiguous relationship, with power seen as a random and temporary attribute. Although much ink has been spilled about Athenian practices, Rome’s heavy reliance on sortition has received much less attention by the same ­twenty-first-century authors interested in this mode of selection. However, since the end of the short twentieth century, historians have made significant discoveries. Overall, the political use of sortition played an important role in Rome during the Republic, but also well into the establishment of the Empire. Sortition was based on a corpus of rules that constituted a veritable ius sortiendi (Hurlet 2006). Nevertheless, its practices and meaning were quite different from both its Athenian predecessors and Western Asian practices. The concrete objective of sortition was not to nominate citizens to fill positions, but rather to distribute responsibilities among elite peers based on an annual rotation, and to settle certain procedural matters, such as the order in which different statutory groups would vote. The function of sortition was first and foremost to govern competition in a nonconfrontational manner within the aristocratic circle that possessed real power and thus to make it symbolically republican (Stewart 1998). To that extent, sortition could even be adapted without too much difficulty to Rome’s imperial context (Hurlet 2006). The fact that sortition was not coupled with democracy probably explains why twenty-first-century political theorists and practitioners have not discussed Rome at length. Of course, the Athenian city-state was not what we would now call a democracy, and it also differs from the proposals of radical democrats today. Practically speaking, it excluded women and slaves from political life, and it used its strength to subjugate allied cities. Yet, within the relatively narrow circle of citizenry, power was largely exercised by the people (in the statutory sense of the whole citizenry) rather than by elected representatives; and the power of leaders was controlled by countering forces. As Moses I. Finley put it, to understand this system, we have to go beyond the equation “democracy equals elections.” Although Athens did not eliminate fighting among individuals and groups in pursuit of their interests – an issue since time immemorial – it did reinvent politics, in the sense of the institutionalized public discussion of good or bad laws and major collective decisions (beginning with those that governed social equilibrium within the polis). Moreover, it refused to professionalize politics, believing that this was an activity in which all could and should participate (to a certain extent) (Finley 1991, p. 70; Castoriadis 1986, pp. 282–283; Castoriadis 1984).

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Drawing lots thus helped to institutionalize a kind a distributive democracy, in which all citizens had a fair share of the common goods, honors, and responsibilities. The connection between equality and impartial mechanisms of sortition led to radical democracy in ancient Athens. The ritual dimension around sortition persisted all throughout the classical period, but sortition was not primarily a way to know the will of the gods. It was far more secularized than in Western Asia, where no real distinction was made between what Aquinas would later call sors divinatoria and sors divisoria. Our contemporary perspective, which sees sortition in politics and sortition in divinatory practices as completely separate entities, is itself dependent on a historical process that probably began in Archaic Greece. The invention of a specific instrument for judicial (and perhaps political) sortition, the kleroterion, is evidence of this process. To a lesser extent, sortition was also partly secularized in Rome, given that the urna versatilis was not used for divination. Yet, it was not used to equalize power among classes and had therefore no democratic dimension; ritual appears to have been much more central to Roman sortition procedures than Athenian ones. In short, our brief overview illustrates that political sortition in Antiquity played three different roles: It consecrated selection proceedings, it ensured symbolic equality either among all citizens or among a small elite, and it helped to maintain impartiality. Ultimately, however, Athens, where the democratic dimension was central to public life and closely linked to the ideal of democratic self-government, was exceptional: Only a small number of cities would follow its lead in that regard.

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2 Sortition’s Second Birth in the Middle Ages and the Early Modern Period

Until the advent of the twenty-first century, European historiography largely overlooked the use of sortition in medieval and early modern politics. This neglect was even worse in other parts of the world. This situation has begun to change, but there are likely surprises in store for us as more research becomes available: For example, it was only at the turn of the 2020s that the importance of sortition in Early Modern Switzerland was discovered (Mellina, Dupuis and Chollet 2020), that the role of drawing lots in the Jewish tradition prior to the Renaissance was systematically investigated (Bar-On 2020), or that the quite probable widespread use of sortition in indigenous tribes in South Asia was underlined (Shah 2010; 2020). Unfortunately, one can only rely on existing works, so I will focus on the best-known cases with a view to better uncovering their significance. First of all, it should be noted that Europe did not have a monopoly on sortition before the sixteenth century. There are several documented cases in Chinese history as early as the beginning of the twelfth century. Similarly, sortition also took place in southern India, in the ancient Tamil region which comprised what are now Tamil Nadu, Kerala, and parts of Sri Lanka. Local village autonomy developed as early as the Third Sangam period, spanning from circa sixth century bce to circa third century ce. Some historians claim that this system included local self-government (called “the panchayat system” by modern historians) and a kind of democratic monarchy, although the latter remains contested. In the same region, more reliable sources prove that local ­self-government developed during the Medieval Cholas (ninth to tenth centuries ce). The Kuda Olai system (literally, “of the pot and the palm leaf”) included sortition, and its practice is formally attested to in two remaining inscriptions dating from 917 to 921 ce in a temple in the village of Uthiramerur (Ramaswamy 2017, p. 382). These inscriptions describe the village assembly (sabha) consisting of Brahmins who were referred to as “the elders of the village assembly.” The three committees that govern the village include persons who are chosen 66

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following a precise procedure. Those who are allowed to place their name in the lottery selection must own some property and pay a minimum level of taxes, be between thirty and sixty years old (or thirty-five and seventy in the second inscription), have a good education, and enjoy a favorable reputation. Those who are selected served for three years and can try to be selected again during a three-year period after their term has expired; members of a same family cannot serve at the same time. Pots are filled in each of the streets of the village with the names of the candidates of the different families written on palm leaves. Then comes the selection, which is done in public in front of the village assembly. The elders, the priest, and a representative of the king call the name of a boy “who [can] not recognize forms” and the names of the latter’s relatives. The boy picks the tickets one by one and hands them over to the eldest man, who must “show both his hands to prove that he did not possess any leaf with him” before he takes the leaf-tickets. He reads out the name of the person which has been written on the leaf. The name is verified by another elder and by a younger member of the assembly. The first inscription concludes: In the above manner from the twelfth year of the king’s rule, till the moon and sun endure, the committees should always be constituted by the pot-palm leaf system only. The village elders obey the order of the king and made all the above resolutions in the village and this was done in the presence of the king’s representative Tattanur Muvendavelan.1

The Uthiramerur inscriptions depict several features of selection by lot that can be considered as paradigmatic, and which were also widespread in European practices. As in Rome and to a lesser degree in Athens, sortition in the ancient Tamil region was a highly ritualized procedure. Similarly, one of the main objectives was ensuring an impartial selection, the presence of a young boy constituting an important element that has an elective affinity with sortition (Sintomer 2018). Another goal was organizing the peaceful distribution of power among the different families of the village, using a system that combined quotas by clans or streets, sortition, and the rotation of offices. The Kuda Olai system somewhat resembled its Athenian predecessor, although it is not clear what role the village assembly had once the committees were selected and what proportion of the people could legally contest the elections: Was it most adult men or merely a small fraction of the people? To what extent could the Kuda Olai system be characterized as partly democratic? Did religion play a role that was more significant than just legitimizing a mainly secular ritual? Did the people see the hand of the gods acting through the young boy? Regardless of the answers we might find to these questions, it is probable that this system existed far beyond the limits of Uthiramerur, as it was ordered by the king. 1

Uttaramerur Inscription of Parantaka Chola, http://epgp.inflibnet.ac.in/epgpdata/uploads/epgp_ content/S000829IC/P001689/M024922/ET/1510554232P08-M36-UttaramerurInscriptionof ParantakaChola-I-ET.pdf.

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Sortition may well have been widespread in India. Even today, a number of indigenous tribes in South Asia randomly select their local authorities, whose leadership rests on the capacity to convince the other members of the tribe in a quite egalitarian frame. This is especially the case in the North-Eastern Indian state of Jharkhand among the Mundas and Oraons (two ethnic groups which are part of the scheduled tribes, the Adivasis) for the selection of village leaders (the pahan and his helper, the paenbharra). In these places, the sortition of local authorities seems quite ancient; the supernatural and the political are not differentiated and this “sacral polity” embodies values such as egalitarianism, consensus, reciprocity and mutual aid (Shah 2010; 2020). Similar practices exist in the Mustang district, Nepal, especially in a village called Te (Ramble 2008 quoted in Shah 2020, p. 28); and in a number of places in Mainland China and Taiwan, where the master and vice-master of the incense burner are chosen every year by a game of chance during important temple festivals (Feuchtwang 2003, quoted in Shah 2020, p. 28). Returning to our discussion of Europe, when political sortition was rediscovered during the Middle Ages, it was initially employed for its pacifying virtues. It was practiced predominantly in the Italian communes during this period, where it persisted well into the Renaissance and the Early Modern era; this chapter will primarily focus on developments in occidental Europe. However, a few early cases can also be found in other regions of Europe. In the Novgorod Republic (twelfth to fifteenth centuries), for instance, a region situated in what is now Northern Russia, the archbishop was at times randomly selected from a shortlist of three candidates which had been chosen by the people. In this case  – and unlike in the Roman Church at the same period – divination by lot and secular sortition were not clearly separated. The electoral procedure was oriented towards consensus and was attributed a religious meaning: “No rivalry, no argument, it was God who made the decision” (Lukin 2017, p. 268). During the Early Modern period, sortition spread beyond Italy to other European countries. It was widespread in Spain and especially in the Crown of Aragon during the Siglo de Oro that stretched from the end of the sixteenth century to the middle of the seventeenth century. It also played a central role in several Swiss cantons starting in the mid-seventeenth century. To a lesser extent, sortition was also used in certain urban communes in other European countries, especially in Germany starting in the sixteenth century and in France in the mid-seventeenth century.

The Multiple Meanings of Sortition in the Italian Communes How did sortition become widespread in medieval Italy? Circa 1200, they were 200 to 300 free communes in Italy, though the majority of these would gradually lose their independence over the next three centuries. Genoa, Sienna,

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Florence, and Venice were exceptional communes in terms of longevity and power. The peak era of the Italian communes, from the Middle Ages to the Renaissance, was a historical period marked by extraordinary political innovation. This was demonstrated in political thought, but also in the proliferation of institutional forms and practices. From this perspective, the role played by sortition was essential. The modalities for both selecting magistrates and making decisions in the Italian communes during the Middle Ages display a remarkable amount of diversity, both geographical (depending on the city) and chronological (how procedures evolved over time in the same commune). Nonetheless, we shall briefly describe several overarching shared developments. Thirteenth Century: The Golden Age of Communal Democracy At the beginning of the twelfth century, the northern and central Italian communes started to gain autonomy from the Holy Roman Empire. While the election of consuls at the helm of urban governments became the symbol of this growing independence, it does not singlehandedly illustrate the emergence of the communal institution, which relies heavily on forms of direct democracy. Outside royal circles, the first political body that appears during the High Middle Ages is the general assembly of citizens (cives), variably called the universitas, parlamento, or arengo. It is likely thanks to its budding power that the commune as an institution was born (Celli 1980). This assembly’s origins appear to have been more Christian than Roman, as the community of the faithful had very early on established a tradition of public gatherings. For a long time, the citizens’ assembly appointed both ecclesiastical and political officials, as the two spheres were not clearly separated. Decisions took place by apparent consensus, determined by acclamation: Most of the time, it was a matter of obtaining popular consent for a decision that had already been made by the elites. We know little about how these assemblies deliberated: Although they had a strong element of acclamation, citizenship was largely an attribute possessed only by urban populations (Weber 1966). During the twelfth and thirteenth centuries, we can ascertain that the parlamenti progressively reinforced a kind of direct democracy somewhat reminiscent of their ancient Greek predecessors (Maire-Vigueur and Faini 2010). Moreover, the different councils that formed by differentiating themselves from the citizens’ assembly in the second half of the twelfth century quickly gained several hundred, if not several thousand, members – in a context where civic populations were rather limited in total size. Such developments took place in parallel to the rise of a new social class, called the popolo, which formed a sort of state within the state. The popolo was responsible for urban economic development and worked as a foil to the traditional aristocratic classes (the milites and magnati) which had thitherto monopolized the consulate  – the commune’s main executive body. Power struggles between the popolo and the milites were constantly evolving, however, and fluctuated wildly between

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integrating the upper layers of the popolo into the traditional aristocratic circles and excluding the latter, as was the case in Florence (Tanzini 2014). During this time, even if access to various official positions was compartmentalized in terms of the latter’s importance and access was de facto or de jure distributed across social groups in accordance with their rank in the city’s hierarchy, political and administrative offices were, as in Athens, primarily filled by rotation between active citizens. It has thus been calculated that circa 1288 in Bologna (a city that had some tens of thousands of inhabitants), each year it was necessary to designate 1,800 civil servants. This task fell to a council composed of 2,000 members (later expanded to 4,000), who were themselves appointed annually by the Consiglio generale and the Consiglio del Popolo, which in turn each had 800 members elected annually. These numbers (Keller 2014) do not even account for the various autonomous civic and corporative bodies (guilds, societates armorum, etc.). Twenty-first-century readers will perhaps be surprised at just how much this past era’s electoral modalities differ from ours. In addition to the almost infinite variety of said practices, elections for municipal and episcopal offices were also characterized by the widespread practice of “compromise voting,” which entailed multiplying the number of election rounds and forms of ballots, and entrusting electoral committees with the responsibility of filling public offices. Compromise voting was designed to: 1) limit conflicts for power; 2) select the wisest individuals for government positions (whose reputation was of course socially determined); and 3) establish a dynamic that would promote the common good and prevent the creation of “parties” or the reign of special interests (Keller 2014). Theoretically at least, the goal was preserving the city’s unity, otherwise threatened by factional struggles. The community’s imagined unity was no doubt religious in origin (Keller 1988), and many of the political procedures used were closely linked to the development of electoral practices within the Church circa 1100, starting with a majority voting system, which was adopted in many bodies after the second third of the twelfth century (Keller 2014; Moulin 1998; Ruffini 1977). During the thirteenth century, both the rise of the podestà (a magistrate that provisionally exercised supreme power, typically coming from a neighboring commune), and the way the office was filled reinforced the logic behind compromise voting. A new dimension was added to the procedure, however – multiround voting and the systematic use of sortition. Combined with elections and various forms of cooption, sortition became widespread for minor offices starting in the thirteenth century, and for major offices starting in the fourteenth century. There were several different expressions used to refer to sortition procedures, depending on the various tools used: ad brevia, per rodulum et per sortem, by tratta. The predominance of sortition in Italy, compared with the relatively few cases identified in France or Germany, was probably due to the increasing social heterogeneity of the Italian communes, which correspondingly induced greater social conflict. As a result, additional procedural tools were necessary to limit social discord (Tanzini 2020, p. 205).

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There is evidence that sortition was systematically practiced in Bologna (1245), Novara (1287), Vicenza (1264), and Pisa (1307) (Keller 2014, p. 363). In Florence, the process was introduced in 1291 (Najemy 1982, p. 30), but did not become a constitutive element of the legislative process until in 1328 (and would remain so until the fall of the Republic). In 1268, Venice institutionalized political sortition, which had until then only been used sporadically. In these two communes – which during the thirteenth and fourteenth centuries accounted for the ten largest and richest cities of Western Europe  – the religious dimension faded into the background, although the ritual dimension remained crucial. For instance, a Mass sometimes accompanied the election of the Florentine Signoria, granting solemnity to a crucial political moment and adding to its highly ritualized character, but this supplement was not concerned with discovering a divine will. As noted above, the Church banned the practice of sortition for ecclesiastical purposes precisely at the same time as it began flourishing as a political procedure. In 1223, Pope Honorius III prohibited sortition for Episcopal nomination procedures; two years later, he extended this prohibition to other ecclesiastical offices (Keller 2014). Aquinas theorized this ban at the end of the 1260s. In addition to purely theological reasons, it is likely that this decision was a reflection of greater hierarchy and the Pope’s increased authority, which had been the ambition of the eleventh-­ century Gregorian Reforms. Importing sortition into the Church from the political sphere, where it was more popular, thus went against the predominant trend and could not be deemed acceptable. The principle of resorting to a higher authority in the case of a disagreement at a given level of the hierarchical pyramid was clearly reinforced. However, it took all the theological finesse of a Thomas Aquinas to legitimize such a strict separation between the religious and secular practices of sors divisoria. The question of how contemporary actors stumbled across the idea of drawing lots can only lead to conjecture. There was at least partial understanding that the method had been used in Athens and Rome, but practices of sortition were few and far between in the Middle Ages and the techniques that were adopted differed from those used during Antiquity. In gambling, sortition was not widespread: It was mainly practiced in dice games that were prohibited by the Church – and dice were not used for drawing lots in political contexts. The reintroduction of sors divisoria in politics was thus likely the result of a lengthy search for the best selection methods to be employed: The most famous example of which being a debate held in Florence on November 24, 1292, during which twenty-three different modalities for the election of the Signoria were discussed. Fourteenth and Fifteenth Centuries: Sortition within a Shrinking Circle of Power During the fourteenth and fifteenth centuries, Italian cities were plagued by the various economic and public health crises that beset the late Middle Ages

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as a whole. They were particularly devastated by the Black Death – one of the byproducts of the first wave of political globalization launched by the Mongol Empire  – which ravaged Western Asia, Europe, and North Africa between 1346 and 1353, with further outbreaks taking a heavy toll throughout the Late Middle Ages. In Europe, the Italian communes imposed quarantines for travelers arriving in the city and the isolation of the sick. Amidst this tumultuous context, there was a move to significantly limit participation in communal politics (Tanzini 2014). This gradual restriction was partly the result of the dwindling number of independent communes, most of which were eventually conquered by their more powerful neighbors (autonomous communal institutions only survived in a significantly weakened form after such conquests). Moreover, many communal regimes gave way to signorie, city-states headed by a prince, where sortition persisted, albeit marginally in some cases. Finally, republican communes saw the size of their councils progressively shrink, at the same time as the parlamento – the citizens’ assembly – greatly diminished in scope and even fell into disuse. Forms of active citizenship survived primarily at the neighborhood level and in guilds and confraternities (Judde de Larivière 2014), while access to the central organs of power was increasingly monopolized by a small circle composed of the higher strata of the popolo and, in some cases, the descendants of old aristocratic families. At the same time as the councils diminished in size, however, the repartition of major public offices entailed increasingly greater reliance on sortition (often combined with other methods). As in earlier centuries, sortition was alleged to defuse factional conflicts and encourage the selection of individuals invested in the common good. Coupled with the rapid rotation of positions in the various offices, sortition helped the new elites – as well as citizens in general – reach broad consensus (Najemy 1982; Gualtieri 2009). Sortition and compromise voting were closely linked to a new idea developed by contemporary jurists and philosophers – the notion of repraesentatio identitatis (identity representation) (Hofmann 2003; Podlech 2004; Sintomer 2014b). Until that period, while the word “representation” existed, the general concept had not in civil and public law. What we now call “representation” covers a series of practices that had previously been dealt with separately. The new legal and political concept of representation gave rise to the idea that the represented are legally bound to the decisions taken by their representatives, the two parties forming a single (fictional) legal person. The concept of identity representation was first developed by Marsilius of Padua (1275–1342), and then elaborated upon by Juan de Segovia (1395–1473). It stemmed primarily from the rights of medieval corporations and communes, the latter being “corporations of corporations.” It appeared necessary to legally stabilize communities that had to take long-term action and therefore needed to be “represented” by a part of the whole. Nonetheless, unlike the concept of principal-agent (or mandate-) representation that would be developed somewhat later, especially by Bartolus de Saxoferrato (1313–1356), repraesentatio identitatis does not

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require the represented to explicitly transfer authority to their representatives. On the contrary, it allows for a plurality to have a single legal and political embodiment without any formal authorization. Repraesentatio identitatis is a synecdoche, where the part stands in for the whole. “To a certain extent, with regard to specific actions, the assembly ‘is’ the commune, and the council ‘is’ the Church, although this identification is not enough to solely define the Church and the urban political community” (Hofmann 2003, p. 213). In politics at least, and when combined with various forms of compromise voting, sortition has an elective affinity with this kind of political representation that does not require explicit consent; It is therefore logical that sortition and identity representation tend to grow in prominence concomitantly. Two different models of political sortition stand out among medieval practices. The first model, illustrated by the election of officeholders in Venice, used sortition to appoint the members of a committee that would in turn elect the magistrates. In the Middle Ages, it was often called ad brevia, or “with the scrolls,” referring to small scrolls used to randomly draw the names of those who would fill certain offices (Tanzini 2020, p. 205). It was typical throughout northern and central Italy during the thirteenth century, but persisted until the end of the eighteenth century in certain places like Venice. The second model, made famous by Florentine history, was first tested out in the fourteenth century (Tanzini 2020). It was called la tratta (“sortition”) and entailed randomly selecting magistrates directly (no longer just “electors” to whom such a responsibility would fall), while performing this selection from a shortlist of candidates established by ad hoc electoral committees. These two models were at least in part a reflection of the different political dynamics at work in the two cities. While the Venetian Republic was known for its stability, politics in the Tuscan city were more tumultuous. In The Divine Comedy, Dante (c. 1265– 1321), who had been exiled because of his ties with the White Guelphs, one of the clans struggling for control of Florence in the late thirteenth and early fourteenth centuries, alludes to the fact that laws adopted in October are no longer valid by mid-November: He compares his native city to a sick man tossing and turning in his bed (Dante 2003, VI: 143–151). Yet Florence was at least as significant in political history as its Adriatic rival, no doubt because its centuries of “instability” were a sign of its political vitality. A third model existed in a marginal fashion: It consisted of drawing the minor offices of large councils directly by lot. It was practiced in a few cities, like Modena circa 1306, where sortition took place among 1,600 citizens (at the time, Modena had about 20,000 inhabitants), in a process that was reminiscent of Athenian history. The practice would come back in favor in Florence after the fall of the Medici in 1494 for a couple of years but would then rapidly disappear from public life (Tanzini 2020, p. 205). In both of the main models, however, and from the fourteenth century onwards, sortition practices were largely controlled by the elite. Since they were only one instance within a large and complex process, they did not herald the reign of chance (Tanzini 2020, pp. 206ff).

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Venice: Ensuring Distributive Justice Among the Aristocracy In the Middle Ages, Venice was an oligarchic republic ruled by a small circle of people. To limit the power of the doge, who was appointed for life, a council was established in the second half of the twelfth century, with the function of scrutinizing and endorsing all major draft legislation. It replaced the citizens’ general assembly, the Concio. The latter progressively lost its power, and in 1297, the Consiglio Maggiore was closed and restricted only to aristocratic families. The Selection of the Doge From the thirteenth century until the end of the “Most Serene Republic” in 1797, sortition formed part of an intricate legislative procedure used to appoint the doge, a process that will be later called “a masterpiece of electoral technique” (Moulin 1998). Let us take the case of Lorenzo Tiepolo, son of Doge Jacopo Tiepolo and brother-in-law of Tancredi of Syracuse. Commander of the Navy and a popular hero because of his role at the battle of Acre, Tieopolo possessed fabulous riches that put him on par with an emperor. It was at the time of his nomination that the procedure for selecting the Doge reached its apex. On July 23, 1268, Lorenzo Tiepolo was elected to the highest office in the Venetian Republic, but the choice was not made solely on account of his wealth, reputation, and family ties. He also had to undergo the procedure written down in the Promissione Dogale, a kind of constitutional charter previously adopted. This law stipulates that, when the office of Doge falls vacant, the 500-­member Great Council should meet in solemn session. The youngest councilor leaves the hall where it is gathered and comes back with the first child aged between eight and ten whom he meets in the street. A large bag is placed in the middle of the hall containing as many little wooden balls (ballotte) as there are councilors. The word “elector” is stamped on thirty of these. The ballottino, the boy chosen in the street (this ritual element may remind us of the Tamil Kuda Olai system used in Uthiramerur and discussed earlier), takes the balls and gives one to each of the councilors as they parade in silence before the urn. The thirty who receive a ball marked elector remain in the hall, from which the other members immediately withdraw. Those left behind cannot belong to the same family or have blood ties with one another: If they do, they have to give up their role and be replaced by another councilor using the same mechanism. The same system is next used to reduce the thirty remaining councilors to nine, and in a third phase the latter elect forty individuals from the Great Council by qualified majority voting. In the fourth phase, these forty electors are reduced by sortition to twelve; in the fifth, these twelve elect ­twenty-five from the Great Council; in the sixth these twenty-five are reduced by lot

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to nine; these nine then elect forty-five councilors, who are reduced by lot in the seventh phase to eleven. In the eighth phase, these eleven individuals elect (again by qualified majority voting) the forty-one councilors who, in a ninth and final phase, form a conclave and elect the Doge by a qualified majority of twenty-five votes (Lane 1973, p. 111). Once the election is over, the results are proclaimed in the public square and a celebration is organized: Acclamation functions as proof of the people’s assent. What a difference from Athens: A full nine stages, in combination with elections by qualified majority, were necessary to appoint the Doge. The procedure included selection by lot, but the aim was clearly not to maximize the participation of all citizens in public life. To fill public offices in the “Most Serene Republic,” sortition was frequently employed, but only for the appointment of electoral committees that then proceeded to conduct the elections, properly speaking. Only in the case of nonpolitical appointments, such as the choice of conscripted citizens to join the navy, did sortition directly determine the outcome (Lane 1973, pp. 49, 367). A comparison with the Athenian kleroterion illustrates some of the different purposes which sortition may serve. In the Greek polis it permitted the impartial resolution of conflicts and ultimately became so routine that the Four Hundred (the oligarchs who briefly overturned the democracy in 411 bce) used it when they had to appoint prytaneis from their ranks (Thucydides 1954, VIII: 69). Nevertheless, in Athens sortition mainly operated as a democratic procedure to ensure that power was equally shared. In the Adriatic republic, on the other hand, sortition was primarily a conflict-resolution technique; any democratic considerations were purely secondary. When the list of individuals on the Great Council was “closed” in 1297 (future expansions would henceforth only happen on a case-by-case basis), 532 families were represented. Over five centuries, seventy of the s­ eventy-five Doges that would be elected would come from forty-four of these old families (Mowbray and Gollmann 2007). This model prevailed until Napoleon’s conquest of Venice in 1797. Its complexity has driven some historians to write that “it strikes the modern mind as ridiculous” (Norwich 1982, p. 166). Why multiple ballot rounds when a single round of sortition would apparently have been enough to fight against corruption and the potential influence of various factions? Remarkably enough, modern statistical studies have demonstrated that this degree of complexity was in fact highly rational. As probability computation did not yet exist, this rational method was discovered through pragmatic trial and error. Yes, the Great Council was riddled with intrigue, alliances, and betrayals between the important families that divvied up the city’s power among themselves. Without going into mathematical details, however, it seems that the number of voting rounds and how they were configured did indeed limit tactical scheming. They allowed the Doge to enjoy sufficient popularity while protecting him from the influence of the minority factions (from this point of view, the ten voting rounds were an optimal number). More prosaically, multiplying the number

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of successive rounds prevented distortions from occurring because of the balls being improperly mixed in the urn. One of the effects of this procedure was that the electors increasingly selected older Doges, and thus ruled for less time: The ­seventy-five Doges elected using this mechanism between 1268 and 1797 remained in power 6.85 years on average, compared to 11.35 years on average for the forty-four Doges elected using a simpler procedure prior to 1268 (and 19.85 years on average for English monarchs during the same period) (Mowbray and Gollmann 2007). In addition to producing behaviors that stem from the rational choices operated by members of the Great Council, the Venetian procedure was also highly symbolic. While it was not derived from sors divinatoria and its significance was mostly secular, its solemn and complex ritual was a kind of symbolic guise calling upon the oligarchs to behave responsibly. As in Rome, it presaged a form of government where the elected individual would rule with a view to the common good, and where other families would accept this rule – a kind of exorcism of the internal disagreements that undermined other Italian communes. The use of the ballottino was significant in this regard and would inspire a lot of sortition practices in Europe more generally (Sintomer 2018). It was not limited to the election of the Doge: It was also employed for the ritual of the Ball d’Oro (“Barbarella”), which marked the political debut of certain young nobles (Chojnacki 1997, quoted in Judde de Larivière 2020, p. 229). First mentioned in 1319, this ceremony allowed a limited number of young nobles to enter the Great Council before the statutory age of t­wenty-five. Sortition took place each year on December 4, the day of Saint Barbara (Judde de Larivière 2020): The patricians who wished to take part had to register their legitimate sons under the age of 18. The name of each candidate was written down on a piece of paper, and then placed in an urn (capello). Another urn contained a number of balls that was equivalent to the number of candidates; one-fifth of the balls were covered in gold. The Doge selected a name at the same time as a young boy (ballottino) extracted a ball: if the latter was golden, the candidate was guaranteed an early entrance to the Council.

The Venetian Mixed Government Sortition played an important role in the selection of most Venetian ­office-holders. During the Early Modern period, 800 offices were allocated, with terms ranging from six to forty-eight months. Most of these were of minor importance. The highly complicated electoral process was repeated very frequently, on nearly all Sundays. Its basic structure was the following (Harivel 2019, p. 1): Electoral committees were selected by lot within the Great Council, following a procedure similar to the one used for the election of the doge; 2) these electoral committees worked simultaneously and established a shortlist for each position; 3) the Great Council’s members who were also part of the Senate met separately and also selected a shortlist (this

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procedure was called scrutinio); and 4) based on these shortlists, the election of officeholders took place in the Great Council, with a secret vote for which special tools were created. Council members were supposed to refrain from deliberating or even expressing opinions about potential officeholders. It was considered too ambitious to explicitly campaign for a position: Individuals had to be proposed as candidates by others in order to take part in the selection process. The ballottini were active both during the sortition and the election mechanisms; in the Renaissance and the Early Modern era, they were officially nominated for a certain period of time (there were fifty-three of them at the end of the sixteenth century). The ballotte – the balls used for drawing lots – were specially manufactured by the state. It should be emphasized that sortition was not confined to the Great Council: Sortition also played a role in several intermediary bodies and guilds, neighborhoods councils, lay fraternities, and on islands like Murano. It was also widely used to allocate certain professional positions, for example gondoliers or arsenal workers (Judde de Larivière 2014). Significant discrepancies can be observed between the usual formula and how it was implemented on the ground, however (Muir 1981, pp. 279sq). Venetian patricians developed imaginative methods to subvert the procedure’s intended impartiality (a practice named broglio), ranging from the corruption of the children who drew the balls to various kinds of exchanges between factions to elaborate records written in small pocketbooks describing the potential good candidates. In 1496, the chronicler Domenico Malipiero (1843, p. 701) thus recounts the story of how a young store clerk who played the role of the ballottino boasted to his boss that he and a friend “had done their duty” by putting all the balls allowing individuals to be elected in one corner of the urn. The young boy’s employer immediately reported this misbehavior to the doge, arguing that the boy’s actions warranted hanging. The two young boys were arrested before the Council of the Ten met to deliberate. The patrician who had benefited from this manipulation, a certain Mr. Bon, was arrested while at the helm of the armed galleys stationed on the Tuscan shores. According to the chronicler Sanudo (Diarii 1 col. 303), Bon was the architect of the whole stratagem. While Bon denied the allegation, one of the ballottini, Hironimo Friso, replied by saying: “You’re the one who made me do it.” The consequences were severe for Bon, who was banished from Venice and forced to spend the rest of his life in Famagusta. The two boys were likewise banished and sent to Rethymno, on the island of Crete, while several other accomplices were also convicted.2 Although these kinds of transgressions doubtless occurred somewhat frequently, the most outrageous were severely punished, especially when they came from the lower ranks of the patrician elite. A number of famous trials served to highlight the ideal norm and contain the most overly transgressive 2

In this passage, I closely follow the observations made by Claire Judde de Larivière in a hitherto unpublished manuscript that she was kind enough to share with me.

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of the brogli (Harivel 2019). In the Early Modern period, after the city began to decline due to the decreasing importance of the Mediterranean in world trade, differences within the aristocracy emerged: A rift developed between the powerful elite and a large group of poor aristocrats who were members of the Great Council but could not dream of being selected for higher offices. The republican ethos that could hitherto at least partly mitigate personal and factional interests lost much of its weight: Running for office became less a service due to the Republic, than a means to launch or further a political career (Raines 1991). This mix of sortition and elections persisted in Venice until the end of the eighteenth century, the biggest change in the procedure for electing the doge being the introduction of a vote in the Great Council that aimed to confirm or not each of the forty-one councilors who, in the final phase, would form a conclave and elect the major figure of the Republic. This was a way of limiting the unpredictability of the whole procedure: During the election of the last Doge, this prevented the candidate who probably had the majority of the forty-one councilors in his favor but who was homosexual from being elected (two electors were thus eliminated and replaced by more “virtuous” people).3 Divine will was never associated with sortition in the Most Serene Republic. Venetian sortition was a secular – although highly ritualized – procedure (it was when the result of an election was unanimous that the idea was sometimes voiced that God’s hand had guided voters). The city had a huge influence on the republican tradition, especially after Florence became a princely state. Some of its institutional design inspired other cities in the Western world. Works of Italian scholars such as the Florentine political writer and playwright Donato Giannotti (1492–1573) (Giannotti 1974) and the Venetian diplomat, cardinal, and bishop Gasparo Contarini (1483–1542), hugely contributed to publicizing details about the functioning of the Adriatic Republic. Venetians were convinced that they had the best electoral system in the world, and no voice came to contradict them; in fact, most foreign observers agreed. Contarini’s book (2020) was especially influential. It explicitly defended the exclusion of the popolani, that is, the nonaristocratic families, from the Great Council, and the definition of the nobles according to criteria of lineage and virtue rather than wealth. Contarini also noted that in Venice, the Great Council was the people, that is, the whole active citizenry: The other inhabitants were all private or public servants. Relying on an original interpretation of the Greek tripartite structure, Contarini describes the Most Serene Republic as a mixed government. The Great Council, “where the ultimate sovereignty of the Republic resides,” is the popular authority (it represents the Venetian demos); the Senate, the Council of the Ten (the government) and the chief advisers, namely the “sages” (savi), represent the aristocratic dimension; and the doge, elected for life, bears “the show of the royal power” (Contarini 2020, 3

Many thanks to Maud Harivel for this indication.

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I, 2 and I, 5, pp. 16–18, 28–31).4 However, Contarini nuances this triumvirate by introducing a further distinction, concerning the procedural devices and the kind of distributive justice they embody. “Indeed, although the Great Council has some appearance of a popular authority, nevertheless one can see that it is a form of popular and patrician government,” for electing by lot is a “popular thing.” The reason why is that with sortition (Contarini 2020, I, 5, pp. 29–30), the just and the right are measured only by arithmetical calculations, considering […] that since every member of the patriciate is a single, free individual, and since equal things are due to equal individuals, every member of the patriciate should benefit from the Republic in equal right and in equal profit. And Venetians believe that there is no reason why one patrician should attain magistracies less than another. And since not every man can govern at the same time, but only in turns, they think that the matter should be entrusted to fate, and that those so favoured should govern.

However, this “arithmetic” distribution is only one side of justice, the other being a geometric one. This is the position that patricians defend: When “equal things are due to equal people,” “unequal things are due to unequal people.” The aim of society being citizens’ welfare, “virtue is the only appropriate basis for discrimination.” Therefore, although “equal honours should be given to people who are equal in virtue and civil zeal,” “those who excel in virtue” should “obtain the highest honours in a state.” Following these principles, an unequal balance defines the Venetian mixed government (Contarini 2020, pp. 30–31): As it befits a popular government to resort to chance in the constitution of electors, so it befits a government of the patricians to consider as more appropriate the individual who is judged worthier in virtue by the judgement of the Great Council, and to reject those who have been considered less meritorious. From this I think it can be easily understood that in this procedure of nominating and voting, we find the appearance of a popular government – and yet with such a balance that the component benefitting a government of patricians plays a more decisive role than that benefiting a popular system. For chance plays a more decisive role only in the constitution of the electors, and the worthless men of the state participate in its power and thus have an equal right with the noble citizens. But nothing is left to chance in the conferring of honours, and everything depends on choice and judgment […] Therefore it is quite plain that in our Republic aristocratic government has a greater role than popular government.

With this reasoning, Contarini implicitly refers both to the famous statement opposing sortition and elections made by Aristotle, and to the kind of distributive justice the latter advocated for in Book 5 of Nicomachean Ethics and Book 6 of Politics. Of course, he stretches the concept of democracy, which he renames “popular government,” as the Great Council is open only to noble families and relies on a quite specific definition of the people to comply with the Greek categories. However, vocabulary aside, his analyses are penetrating and original. The sortition of electoral committees in the Great Council ensured the symbolic 4

Many thanks to Maud Harivel for drawing my attention to this text.

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equality of all its members, and the elections of officeholders by these committees enabled them to select those considered by their fellow citizens as the best suited to exercising power. From this perspective, Venice can be considered as a paradigm of “distributive aristocracy,” a term coined by Aurèle Dupuis (2021) in his analysis of Early Modern Switzerland – the uniqueness of the Most Serene Republic being that the arithmetic element was less significant than its geometric counterpart in distributing honors. This picture must be nuanced somewhat, as there were several civic activities that took place outside the Great Council, but it so describes the core of the political system. One should add that the aristocratic component increases over the course of time: At the end of the Early Modern period, a large number of the members of the Great Council were so impoverished that they depended upon the patronage of richer members and had no chance of obtaining the Republic’s most prestigious positions. Venice exported its model to many cities under its imperial rule: Ragusa’s institutions, for example, were copied from the Most Serene Republic, although a prefectural office filled by a Venetian had the power of last resort. The aristocracy of these cities thus enjoyed local autonomy without directly influencing politics in the metropolis, although several families were progressively accepted into the Venetian aristocracy, often in exchange for large sums of money, especially during the last two centuries of the Republic. Moreover, many cities in Northern Italy followed the Venetian model, including Parma, Ivrea, Brescia, and Bologna (Dowlen 2008) all cities that introduced sortition to their electoral committees. Sortition was also practiced in many corporations, as in Siena. It allowed in many cities for a less problematic division of power to be operated among important families and political factions. In Genoa, the other major maritime aristocratic Italian republic, the reform of the doge’s election in 1528 led to the implementation of a system that was even more complicated than its Venetian counterpart (Isaacs 2001). While playing a more modest role in the history of political ideas, the Ligurian city made a decisive contribution to the popularization of sortition during the period when lotteries spread throughout the European continent. In 1528, three years before the Republic of Florence would definitively collapse under the influence of the Medici family, Genoa followed the suggestions of Andrea Doria and reformed its political system, with a view to defusing the conflicts that traditionally pitted the city’s two major families against each other. The reform consisted in awarding major public offices, including the position of the doge and members of the Signoria, for two-year terms rather than for life; in alternating members of the old patrician families with newer clans for the most important positions; and in combining election and selection by lot in a procedure that was even lengthier and more complex than its Venetian equivalent. The reform met with great success and the new rules remained in effect with only a few modifications until the French invasion in 1797. The new system established in 1528 also stipulated that the eight persons who composed the Signoria alongside the Doge would be renewed in pairs

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every six months, with each individual completing two full years in office. These members were selected from among the 120 members of the aristocratic Great Council. Sortition was used as follows: “After having put all the names in one urn, we have a young boy, in charge of the Holy Relics, who draws two names, either to chase the Demons away or to simply serve as ornamentation” (Leti 1697, p. 112). As the practice spreads, the 120 names begin to be printed ahead of time and citizens bet for money on the results of the selection procedure. After trying in vain to combat this betting, the Senate finally ended up publicly endorsing it and even transforming it into an official practice in 1643–1644, ultimately deriving “great benefit” from it (Leti 1697, p. 140; Grottanelli 1993, p. 43). When the political practice of sortition was thus transformed into a lottery, the figure of the child passed from one sphere to the other; it would continue to have a strong presence in European lotteries until the twenty-first century, with the city of Genoa doubtless playing an influential role in the process. It is telling that in his Critique des lotteries, the influential writer Gregorio Leti (1697) grouped civil practices and games together in the same category.

Florence: The Quest for Consensus and Republican Self-Government Internecine strife was especially endemic in Florence, where it divided the leading families as well as the different social groups: the nobles (magnati), the bourgeoisie of the arti maggiori, the petty bourgeoisie of the arti minori, and the working classes not organized in corporations (il popolo minuto). Very often, such disagreements were resolved by armed conflict. Sortition in the First Florentine Republic The origins of the communal system date back to the twelfth century, and, although it suffered a few eclipses during which its institutions were partly gutted from within (most notably under Medici rule from 1434 to 1494 and 1512 to 1527), the Florentine Republic only came to an end in 1530. In 1250, the bourgeoisie grouped itself into twenty politico-military territorial units that excluded most of the nobles. This primo popolo regime, as it was called, reflected the economic and social shifts of a city where the corporations of the artisan and commercial bourgeoisie were gradually asserting their power. Starting in 1266 with the second popolo regime, the seven most prestigious corporations (the arti maggiori) became the pillars of city government, with the other fourteen (the arti minori) associated in a subordinate fashion. At the same time, the aristocratic families (magnati) were denied citizenship or had to give up their special status to secure it. Public offices and jobs were now divided up among the corporations, some according to a quota that varied with their importance, others on a more open basis. Social groups not organized in corporations (the magnati, the urban working class – the popolo minuto – and

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the peasantry in the contado, the surrounding countryside) could only marginally participate in public affairs, while women were excluded from it entirely. Inhabitants of other Tuscan towns under Florentine rule enjoyed some degree of autonomy, but they could not attain citizenship in the central city. The popolo of Florence therefore had a two-fold meaning: Legally, it referred to all those who had citizenship by virtue of belonging to a corporation; socially, it designated the middle classes of the arti minori and the “populace” of the popolo minuto (Brucker 1977, p. 259). Beginning in 1282, the Signoria became the city’s main executive authority, close to what might nowadays be called a “city council.” Its members were divided by quota among the different corporations. The Signoria, comprising eight priori and one gonfaloniere di giustizia (the Gonfaloniere of Justice, or city leader), was assisted by two committees made up of twelve buonuomini and sixteen gonfalonieri delle compagnie. It represented the Republic in its foreign policy, watched over its administration, and took the initiative in proposing new legislation. It also convened the Consiglio del Commune and the Consiglio del Popolo, the two legislative councils in Florence, each with a few hundred members, which theoretically made the final decisions, passed new laws, and ruled on matters of war and peace. On several occasions, these councils lost some of their power or found themselves circumvented, but they would persist in their functions until the creation of a single, Venetian-style Florentine Great Council (Consiglio Grande) in 1494. Unlike its Athenian predecessor, the Florentine Republic did not entrust the citizens’ assembly (the parlamento) with a key formal role. The body met at irregular intervals, it was not governed by any formal procedure, and served mainly to provide a vote of acclamation endorsing crisis measures, a coup d’état, or regime change (Guicciardini 1994). Although the finer details of this commonwealth were continually modified, its broad outlines remained more or less the same until the end of the fifteenth century. Apart from rivalry among the top families and conflict over foreign policy (in a context where war was ever present), the main political arguments centered on the taxation of wealth, the distribution of public offices among the different arti, and the role of selection by lot in comparison with other ways of choosing leaders. Starting in 1328, many government responsibilities and administrative functions were divvied up by sortition. The names of candidates were placed in special purses in advance, then drawn by lot when a term of office came up for rotation. Selection by lot was used to choose members of the key Signoria, as well as the buonuomini and gonfalonieri delle compagnie (Guidi, 1981, pp. 136–137; Chiarelli et al. 1978, p. 186). During the republican years, the great majority of less important appointments were made using the same method. The tratta also served to allocate seats on the legislative councils, and a similar procedure governed selection for leadership bodies of corporations. How are we to explain the fact that “chance” was the deciding factor in determining who would lead the city, especially in unstable times that were so prone to conflict? The Florentine Republic was less democratic than the

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Athenian polis, and although selection by lot was used for the highest offices, that does not mean that the list from which the selection was made contained the names of all citizens willing to put themselves forward. Just as was the case in Venice, a complex selection procedure was involved, usually one involving four stages (Najemy 1982, pp. 169ff). 1. The first stage was establishing which citizens (that is, which members of the twenty-one politically recognized arti) were worthy of standing for office. In each city district, special committees drew up a first shortlist in accordance with highly specific criteria. At first, this operation was not usually entrusted to a general civic body; rather, the various corporations (or other bodies such as the Guelph Party, whose dominant families had managed to expel the Ghibellines in the late thirteenth century) were left to deal with the matter internally. This multiplication of institutional sources of legitimacy and consequential lack of unified sovereignty were typical of medieval communes; this situation would change only very gradually, given that the main public offices continued to be allocated by quotas until the end of the fifteenth century. 2. Next, other committees made up of important figures (the arroti) looked at the list of names produced during the first stage and selected by a qualified two-thirds majority which of them should advance to the next round (in a process called the squittinio), writing these names down on pieces of paper that were then deposited in leather purses (the imborsazione). For all offices subject to a quota, the names from the arti maggiori and the arti minori were placed in different purses. 3. During the third stage, a group of specially appointed individuals, the accopiatori, conducted the selection by lot. The purses, which had been kept in a safe location such as a church sacristy, were moved to a public place a few days before the drawing of lots, then returned to safekeeping to await another selection process, and so on until all the names had been used up. Very often a fresh list of names was drawn up after dramatic events such as sudden changes of majority or the passing of new legislation; the purses containing these names were then added to the old ones or substituted for them if it was so decided. 4. A fourth and final stage eliminated candidates who did not meet the criteria in force (using the divieti device). For example, candidates were required to be up to date with their tax payments, they could not have held a similar office in the recent past or hold other important positions at the same time, and they could not have relatives serving in a similar position. With some variations, this model applied to other central Italian cities such as Orvieto, Siena, Pistoia, Perugia, and Lucca. (Dowlen 2008, p. 68) These were the central moments of an even more complex electoral ritual that started with a mass and ended with the public declaration of the results.

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The religious element did not, however, prevent the Florentine practice of sortition from essentially being a kind of sors divisoria. The sources to which we have access exhibit no sign of belief in the manifestation of a divine will, nor in the unveiling of a singular destiny: The procedure was fundamentally viewed as secular. Sortition was thus only one step in a longer process, and unlike in Athens, where selection for public posts was conducted either by lot or by voting, the Florentines combined the two methods in the same process. As in Venice, the objective was to appoint public officials in the most neutral way possible, thereby limiting conflict and power struggles. In Florence, however, the electoral committees were appointed or elected, and candidates for public office were eventually selected under the tratta system – that is, the opposite of the Venetian procedure. The purses contained enough names to keep the Signoria staffed for three to five years, with a periodic renewal every two months. Contemporary chroniclers generally argued that this system was “good and equitable,” offered “a true example for the generation that would follow,” and ensured that the city’s government was “good, transparent, clear and free of factions” (Villani 2001, p. 661; Marchione Di Coppo 1903–1905, §366 both quoted in Tanzini 2020, p. 202). Echoing this view, but presenting sortition as a stopgap measure, Machiavelli (1469–1527) explained that the 1328 reforms were designed to spare the city new problems and to end the chaos that was the result of large numbers of individuals aspiring to public office. The city’s leaders, he writes, chose this method “since they did not know how else to correct” the problems, but failed to realize its potential drawbacks. In fact, sortition only managed to somewhat attenuate existing power struggles, achieving a limited degree of its expected impartiality: The purpose of the squittinio was “to make up a bag of selected names,” but the criteria explicitly referenced party allegiance and social origin as much as they did personal qualities (Machiavelli 1988, p. 83, 138, II: 28, and III: 24). Similarly, the role of the accopiatori was crucial in selection by lot, and most attempts to tamper with chance occurred in their realm of action. In any event, it was also for the purposes of neutrality that certain functions were reserved for individuals from outside the city (most notably, the Podestà and the Capitano del popolo, responsible for the law courts and certain military affairs respectively) (Guidi 1981, pp. 153ff.; Manin 1997, pp. 54ff.). Should it therefore be assumed that sortition in Florence was, as in Venice, simply a means of handling conflict? There are some striking institutional analogies with ancient Athens, such as the rapid rotation of posts (every two months for the priori and gonfalonieri, every four months for members of the legislative councils), the ban on holding multiple offices, and the obligation of presenting a kind of self-evaluation at the end of each mandate. Should we therefore conclude that the Florentine practice of sortition did have a democratic dimension? A number of elements seem to partially contradict both thesis. The preamble to the 1328 reforms states that all citizens will henceforth have

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the same opportunities to hold political office. In the fifteenth century, it was not uncommon to extol Florence for its “democratic” way of appointing high officials – using selection by lot – in contrast to the “aristocratic” preference for elections in Venice (Gilbert 1968, p. 473). And it was in the same Aristotelian vein that in 1439, the humanist Leonardo Bruni, chancellor of the Florentine Republic and doubtless the most celebrated European intellectual of his time, cited selection by lot as one of the city’s most important democratic elements, alongside the exclusion of the magnati, the frequent rotation of offices, and the ideal of a “free life” that was at the heart of the Florence’s political system (Bruni 1987a, pp. 171–174). This claim was largely ideological, as Leonardo Bruni (2001–2004 quoted in Tanzini 2020, p. 202) had previously written that sortition, wrongly inspired by a democratic ethos, had highly negative effects since “the majority of those designated for public offices were incapable” of fulfilling the tasks assigned to them. Moreover, Bruni’s praise of the Florentine system was written at a time when the Medici were manipulating sortition to select only their clients and allies. The link between sortition and democracy was thus quite ambiguous, although it would be mobilized a century later by Contarini when analyzing the Venetian system. A Tool for Popular Self-Government? In 1494, with the creation of the Florence Consiglio Maggiore, the popolo hesitated for several years between bottom-up elections, selection by lot, and various combinations of the two for the allocation of positions among its members. The oligarchy’s loss of control over nomination at the top, traditionally ensured via its hand-picked arroti, meant that the Second Republic was the apex point of Florentine self-government (Fournel 2020). The fault lines were highly unstable at the time, and it was only in 1496, after a lengthy period during which comparative advantages were weighed, that the popular movement influenced by Savonarola (the radical monk whose sermons inflamed Florence until his arrest and condemnation for heresy) opted for selection by lot  – thus going against most of its upper-class leaders (Cadoni 1999). The new republican system allocated key positions by combining bottom-up elections with the tratta inside the Consiglio Maggiore, which was composed of more than 3,000 members. Every candidate who received a plurality of the fava beans had his name placed in a purse. The less important offices were then directly allocated by lot. The wealthiest citizens (the ottimati v. popolani) increasingly supported elections, however; in 1502, the desire to foster political stability led to the appointment-for-life of the gonfaloniere di giustizia, following the example of the Venetian Doge (Cadoni 1999; Rubinstein 2015; Manin 1997, pp. 59–62; Chiarelli et al, 1978, p. 193). The historian and politician Francesco Guicciardini (1483–1540) was a famous intellectual and politician, as well as a contemporary of Machiavelli – in

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fact, he is often considered to be the anti-Machiavelli,5 due to his support for the oligarchic faction and his role in consolidating the rule of the Medici between 1512 and 1527 and after 1530. Guicciardini (1984) clearly theorized the contrast between the democratic dimension of sortition and the aristocratic nature of elections. Arguing that the city would thus be “better governed,” supporters of the oligarchy defended elections by a simple majority: The candidate obtaining the greatest number of fava beans (the electoral system per le più fave v. coupling sortition and election) within the Great Council should be elected. The spokesperson for the elitist movement provided one of the first modern justifications for representative government by drawing a parallel with economics. The argument is that, just as one might prefer to have competent men managing one’s private affairs, so it is better to have the wisest men (whom the people would not fail to recognize in elections) in charge of guiding the city. “Free governments,” he adds, “never suffer disarray except through an excess of license, which means nothing other than broadening out too much and placing important matters in the hands of everyone” (Guicciardini 1932, pp. 175–185). The popolani, who spoke for the lower rungs of the citizenry, contested that “this voting by majority will make public office narrower, and it will have done the people no good to have chased out the Medici majority and set up the Great Council, because things will not have opened up in such a way that everyone can participate, as is fitting in a free system of government” (Guicciardini 1932, pp. 175–185). The popolani defended the purse method for all candidates who managed to receive half of the votes plus one. “All citizens [should] share in the honors and benefits that this Republic may bestow;  […] if advantages and honors were not universal, it would be as if part of the city were in dominion and other in servitude.” The coupling of elections and sortition thus permitted “tempered generosity” by sugarcoating an otherwise bitter pill. Elections alone would always end up favoring the same individuals, they argued, as the social elite would refuse to vote for lay citizens. The existing social divisions within the body of Florentine citizens made some corrective measures necessary. Otherwise, elections would not recognize personal merit but merely social status (Guicciardini 1932, pp. 186–195): In this case, it is not virtue, prudence, or experience that produces the most votes but, rather, nobility, possessions, and the reputation of one’s parents and grandparents; it is not for the benefit of the city, nor so that offices should be in the hands of anyone, but the state is virtually taken over by the oligarchic layer. They consider themselves good men, as if we were bad men used to robbing and oppressing others, as many of them 5

Machiavelli himself did not closely examine nomination procedures but overwhelmingly concentrated, first on the division of power among different social groups and, second on the way in which they might have play a role within the various institutions. See, for example, his “Discursus florentinarum rerum,” [1512] in which he proposes a new constitution for Florence to the Medicis. Only a mistranslation allows Oliver Dowlen (2008, pp. 117–123) to use this text to defend the democratic use of selection by lot.

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have done. The city would be divided if only such men were to rule. Of course, selection by lot for public offices could also lead to conflict, but it would be more honest to tolerate a little disorder than to exclude the rest of us forever, as if we were enemies or people from another city, or as if – let it be said with respect – we were donkeys interested only in fetching wine or drinking water … If we are as much citizens and council members as they are, the fact that they have more possessions, more relatives and more money does not make them citizens more than we are; if the issue is who is best suited to govern, we have the same mind, feelings, and tongue as they have, and perhaps fewer of the appetites and passions that corrupt people’s judgment.

Florentine democrats in the age of Machiavelli thus rediscovered arguments that had been used by Athenians two thousand years before: The egalitarian potential of distributive lot and its antielitist potential when sortition is practiced directly among all citizens. Conversely, when the Medici prepared to recoup power in 1512, Guicciardini made a forceful plea for elections that anticipated the authors of the French and American constitutions by nearly three centuries. He argued that just as one would prefer a good doctor to a bad one, government should be entrusted to the most capable. And although elections could cause some disturbance, collective governance was seen as superior to one-man rule. Elections would also serve to select the wisest citizens: The decisions of the populo are mainly influenced by the kind of reputation that men have and the judgements that are made about them; this reflects the general opinion held about them rather than a careful appraisal made by each individual. This general opinion is not often mistaken, and even if errors are sometimes made, important consequences do not always follow. (Guicciardini 1997, p. 207)

However, although the people should elect its representatives, the decision of public affairs should be made “by smaller bodies, by men who are shrewd and experienced,” for “the multitude never does anything on its own initiative, but always follows the lead of weighty men; this is due to its inherent lack of strength.” It is therefore important that those in whom it places its trust should be the best. Guicciardini adds that selection by lot would deter those who might stand for public office to assert their virtue and merits, thus allowing mediocre individuals and rabble-rousers to win instead. Beyond these functional aspects, however, the principle of the legitimacy of popular government was also at stake: Only in the name of a lesser evil could Guicciardini (1997, pp. 207–210, translation modified) accept that a mixed procedure including the tratta might be used to fill minor offices. However, in the 1520s Guicciardini (1997, pp. 207–210) recognized that the first fall of the Medici (in 1494) had marked an important turning point: “Now that the people have tasted the sweetness of liberty and a regime in which everyone thinks he can participate, it will be impossible to revert to a regime where power was restricted to a few without it being detested by the mass of the people.” Guicciardini expressed nostalgia for a republic dominated by the upper classes, but he was realistic and lucid enough to understand that it was a new age. Rather

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than hope to gain the people’s favor by granting it a place in government, as Machiavelli (1989, vol. II) suggested, Guicciardini (1932, pp. 267–282) intimated that the Medici should use force if they wished to remain in power: They should gather an elite of wise men who were attached to them and could provide advice, thus giving the people a state based on the rule of law and the wise management of public finances (rather than a direct form of democratic representation). Thus, throughout most of Florence’s republican period, selection by lot combined with the frequent rotation of offices made self-government possible for a certain segment of politically active citizens, in contrast to the one-man rule that had been the norm in medieval principalities and duchies and which the rise of absolute monarchies seemed to inexorably impose with the advent of the modern era. The tratta did much to reduce the influence of clientelist ties. When the  mechanism was reintroduced shortly after 1415 following a brief interruption, “it appeared to the generality of citizens that they had their liberty again and that the magistrates were judging in accordance not with the will of the powerful but with their own judgment” (Machiavelli 1988, VII: 2, p. 278). For several centuries, the ideal of political participation seemed to be enjoying a new life on the banks of the Arno – which explains the strange sense of familiarity we have when reading Machiavelli’s Florentine Histories or other works by contemporary Florentine historians. The Florentine political system contributed to the birth of a civic humanism that indirectly inspired the revolutions of the seventeenth and eighteenth centuries (Baron 1966; Garin 1993; Pocock 1975; Skinner 1978). Although like other Italian cities, Florence actually possessed a mixed system, it allowed for much wider participation in public life than Venice, where the aristocracy maintained control while the petty bourgeoisie and working class continued to be excluded from high politics. This is precisely why the most conservative Florentines, like Francesco Guicciardini, proposed the Adriatic commune as a model to their fellow citizens. In the thirteenth and fourteenth centuries, the populations of Florence and Venice were roughly comparable in size. However, the Great Council of the Most Serene Republic only had 500 members in 1268. It subsequently reached 1,100 after the reform of 1297, 2,000 in 1460 and 2,600 in 1513, while the city’s population grew from 90,000 at the beginning of the fourteenth century to its peak of 190,000 before the plague struck again in 1575. A few hundred members of the bourgeoisie belonged to the citizenry (which numbered 4,000, including 2,500 to 3,000 nobles, in 1575) and were able to occupy secondary offices. The people’s assembly, whose role had been very limited since the beginning, was finally abolished in 1423, and a Senate of 100 to 200 members gradually concentrated power as the Consiglio Maggiore expanded in size. By virtue of the councils and the various public offices subject to election and frequent rotation, the narrow circle of Venetian citizens nonetheless represented a form of self-government. There were 500 offices to be allocated at the end of the thirteenth century, and double that number by the end of the sixteenth. By that time, a quarter to a third of nobles exercised a political or administrative function,

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and 10 percent of the commune’s budget was earmarked for their remuneration. However, these offices were filled through election or cooption rather than by lot, with the result that sortition only intervened in the composition of the committees that conducting the voting (Lane 1973, pp. 100, 258ff., 324). The circle of citizenship was much larger in the Tuscan city, where membership in one or another of the politically recognized corporations accounted for a total of 7,000 to 8,000 citizens in the early fourteenth century and 5,000 by 1343, compared to a general population of approximately 90,000 residents. By this later date, three-quarters of citizens were eligible to participate in the squittinio, and roughly 800 successfully passed the test to have their names placed in a purse for selection to hold the highest public offices. In 1411, at the height of civic humanism, more than 5,000 citizens were nominated (the nominati) and more than 1,000 saw their names placed in the purse (the imborsazione). These figures grew to 6,354 and 2,084 respectively in 1433, just before the first Medici power grab, for a population that had dwindled from 70,000 to 40,000 following wars and the Black Death. Thousands of citizens were therefore eligible for the Signoria and all other offices, and many more for positions of lesser importance. At the beginning of the fifteenth century, if we include the administration of lands conquered by the Florentines, a total of 1,000 to 2,000 leadership positions would come up annually for allocation, as well as 2,000 subordinate positions in the state, para-public institutions, and the various corporations. In view of these figures, the objective animating the creation of the Consiglio Maggiore at the end of the fifteenth century seems ambiguous. The Consiglio’s membership of 3,000 was larger than the number of imborsati during previous periods; it constituted a unified political body instead of a system based on corporation quotas; and it gave more power to members of the lower guilds. At the same time, however, the circle of citizenship was gradually shrinking, compared to both the former nominati and to all those who had previously acquired citizenship through their guild membership (Najemy 1982, pp. 177, 275; Cadoni 1999; Guidi 1981, pp. 43–44; Cracco 1979, p. 87; Brucker 1998; 1977, p. 253). From this point of view, in comparison with various monarchies and even the Venetian Republic (with its restricted, aristocracy-controlled government), Florence enjoyed a broader form of government that was dominated by the upper bourgeoisie but nonetheless open to the middle and lower bourgeoisie. Within these social strata, everyone could expect to hold public office at one point or another in their lives, and members of the richest corporations could have greater hope of one day exercising major political responsibilities. Like women and peasants, the urban common people (the popolo minuto or magro, as opposed to the popolo grasso of the wealthier corporations) continued for the most part to be legally excluded from important functions and from citizenship. It could not make its voice heard through the assembly in the same way as it had in Athens, since that institution only played a marginal role in Florence. It was excluded from the councils due to the latter’s mode of

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selection, and not insignificantly, it did not play the same military function as in the Greek cities, given the prominence of mercenaries in Italy at that time.6 Nevertheless, the popolo minuto exerted remarkable pressure throughout the history of the Florentine Republic, quite unlike anything in Venice, and echoes of it can be heard in the work of contemporary writers (most of whom held the “populace” in disdain). The revolt of the Ciompi in Florence in 1378 is one of the first examples of an urban class struggle – or at least of a struggle led by the lower classes – in modern European history. It should be noted, however, that the insurgent workers based their political agenda more on the already outdated expectations of the medieval guilds than on the demands of the modern proletariat. In the summer of 1378, during the height of the revolt, three newly founded arti made it possible to extend citizenship to 13,000 more people; 6,000 to 7,000 citizens (more than twice as many as in the preceding period) were nominated, and for the first and only time in the history of Florence the arti maggiori did not constitute the majority of the list. The popolo minuto even won the right to access the Signoria, and two priors from its ranks were nominated to the latter. Although this increased access was short-lived and the new arti were quickly abolished by the subsequent conservative reaction, the short period from 1378 to 1382 undoubtedly marked the high point of Florentine popular government, during which the arti maggiori accounted for only half of the members of the Signoria (Najemy 1982, pp. 217ff; Brucker 1968; Stella 1993). Yet statutory equality was never achieved, and the popolo magro exerted more influence through its extra-institutional mobilizations than through the random allocation of positions of responsibility. However, the arti minori did benefit from the distribution of low-level public jobs. Florence’s system of republican self-government was thus far from being a democracy, especially as there was a sizeable gap between the principles of political equality set forth in the institutional regulations praised so highly by civic humanists and everyday praxis (Bruni 2005; Hankins 2000; Brucker 1977). The opposition between those who desired a more inclusive government and those who wished to restrict it to the elite (governo largo v. governo stretto) was a constant throughout the Republic’s history. The latter alternated between periods of democratization – when new people (la gente nuova) and more members of the lower guilds obtained access to offices (1343–1348, the Ciompi years of 1378–1382, the Savonarola years of 1494–1498, the early sixteenth century, and finally from 1527 to 1530) – and periods of tight oligarchic control. Beyond these fluctuations, however, a basic trend emerged during the fourteenth century. The Tuscan commune gradually saw the decline of its corporatist organization (involving a lack of unified sovereignty and a division of power among the different arti) in favor of a more unified civic space. This 6

This was first analyzed by Leonardo Bruni (2005) in 1439, and was a central theme of Machiavelli’s thinking and action.

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development of genuine sovereignty and a state in the modern sense of the term (that is, according to Max Weber, an entity with a monopoly on the legitimate use of physical force) took a republican form in Florence, in contrast to what unfolded in most absolute monarchies. It is this Florentine form, first theorized by civic humanism, then by Machiavelli in the Discourses, which contributed to the foundation of modern republican and democratic thought. Although the working class was sometimes able to benefit from its development, republican sovereignty formed the basis for a political system that ultimately remained under the control of a small elite. To a growing extent, the formal republican institutions fell into the hands of a class of full-time politicians (Brucker 1977). The informal meetings convened by these elites were decisive in shaping the political will to act. The chronicler Giovanni Cavalcanti (1381–c.1451), who estimated that the inner circle was composed of about seventy rulers, concluded with disenchantment at the end of his life: “It seemed to me that life in the Republic was bound to remain tyrannical not political, that the government of the Republic would be dealt with outside the palace  … The Commune was governed more at dinner-tables and in private studies; many were elected to offices and few to government” (Cavalcanti 1944, II: 1, quoted in Brucker 1977, p. 251). The profile of the political elite was not unchanging, however. Between 1282 and 1399, fewer than 4 percent of families accounted for 27 percent of Signoria positions, and 10 percent of families accounted for nearly 50 percent (Najemy 1982, p. 320). The grip of the old families loosened over time, and in 1386–1387, for example, they only occupied a sixth of all posts. At the beginning of the Renaissance, the total number of the imborsati increased dramatically – which made it possible to spread out the allocation of public offices and thus secure a broader consensus for the existing regime. Nevertheless, the four still arti maggiori nominated nearly four-fifths of all officeholders (884 out of 1069 in 1411, and 1757 out of 2084 in 1433) (Najemy 1982, p. 275; Brucker 1998). The arti minori could only aspire to public offices of lesser importance. Although the different groups in society quarreled fiercely over the legal grounds for running for a particular office, and over the division of public positions in general, there was considerable agreement during most of the Florentine Republic that the best method was multistage selection, conducted first by committees, then by lot. Part of the reason for this is that the lists of citizens deemed “worthy of participating in selection by lot” were kept secret; no one could know if they were included, as the imborsazione procedure did not take place in public (unlike in Venice) (Dowlen 2008). To avoid ruining one’s chances of eventually holding a long-coveted office, it seemed wiser to refrain from “unworthy” behavior: That is, to hold one’s tongue and to accept the procedures in force at the time. Leonardo Bruni (1987b, p. 124) apologetically describes the mixture of egalitarianism and meritocracy underpinning this system as follows:

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Our liberty is equal for all, is limited only by the laws, and is free from the fear of men. The hope of attaining office and of raising oneself up is the same for all, provided only one put in effort and have talent and a sound and serious way of life. Virtue and probity are required of the citizens by our city. Anyone who has these two qualities is thought to be sufficiently well-born to govern the Republic.

It should be noted that the participation in public affairs permitted by sortition did not entail any kind of deliberative process in the way that twenty-first-century readers might imagine. The meaning of the word “deliberation” varies depending on language and context. In English, it usually implies a careful discussion of all sides of a question. It is in reference to this meaning that the concept of “deliberative democracy” was coined: Only in specific contexts does deliberation necessarily lead to a decision. In early Renaissance Italian, as in ancient French (Manin 1987, pp. 338–368), the word had quite a different meaning. It implied the decision of a collective body, though not necessarily a collective discussion. For example, Francesco Guicciardini (1932, pp. 218–259, 230–231) writes in 1512: I easily accept that laws could be decided in the Great Council [che la deliberazione ne sia in consiglio], because they are something quite universal and concern every city member; but I like the fact that it is impossible to discuss them publicly, or only following the orders of the Signoria and in favor of what it proposes – because if anybody were allowed the freedom to persuade or dissuade others, this would lead to great confusion.

Discussions on public matters were very lively and quite important for decision-making processes in the Florentine Commune. Where did they take place? First, there were political discussions in nonpublic places, for example in the large palazzi belonging to the most important families in the city. Such discussions also took place in spaces situated halfway between the private and the public spheres: Public meetings of a kind were regularly organized on the banks at the bottom of the palazzi, and in the open shops and the loggias in front of them. In this respect, the Florentine inner city was in some ways like the Athenian agora or the Roman forum. On the other hand, the general assembly of the people, called the parlamento, never played the role it did in Athens. It held no regular meetings, did not permit deliberation, and usually fulfilled a plebiscitary function. Moreover, a lot of discussions took place in the guilds (the arti), which were a core feature of the medieval republican system. The arti could make decisions for themselves, possessed their own specific institutions, and could help to designate candidates for offices. Their meetings were only open to current members. During the early Renaissance, their influence decreased notably, giving way to a more unified political body. Discussions leading to decisions also took place in the numerous electoral committees that selected those whose names were to be put in the purses. These were not open public affairs, as previously noted, except during the short period at the end of the fifteenth century and the beginning of the sixteenth when the Consiglio Maggiore was in force. Moreover, most of the offices  – including the most

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important, the Signoria – were collegial. This meant that although discussion could occur, again, it did not do so in public. Executive decisions were taken by office holders. The two legislative councils, selected by lot from much larger lists than the one that was used for the Signoria, had the power to pass or refuse the bills proposed by the executive branch; but they could not propose any bill by themselves. It was moreover forbidden to criticize the proposals.7 The only speeches allowed were those in favor of the measure at hand and it was this arrangement that Guicciardini supported in the previous extract. In addition, the sessions of the legislative councils were not public, that is, they were not open to all citizens. Finally, more substantive discussions took place in advisory bodies called pratiche that the Signoria could convene at will and which were selected by the most important political leaders. The quality of discussion was high in these bodies – but while they served to enlighten the public mind and forge a majority consensus, they made no final decisions and were not open to the public (Brucker 1977). They played a crucial role in the progressive loss of republican substance in Florentine institutions during the early Renaissance, as they heralded the emergence of a full-time, hegemonic political class (especially in the electoral committees) whose members could regularly transition from one public office to another. This institutional corps was the result of various measures elaborated in response to successive changes in political circumstances: It was just as complex as our contemporary regimes. In sum, Florence’s history, and more broadly that of the Italian communes, confirms what our overview of Antiquity had intimated: It is not possible to ascribe an essentialist meaning to procedures like election or sortition. While the famous Aristotelian dichotomy between election as an aristocratic instrument and selection by lot as a democratic instrument had value in ancient Athens, it should not be viewed as an absolute truth. In the Middle Ages and the Early Modern period, elections, sortition, and various forms of cooption were combined with multitiered compromise voting with a view to choosing the best, the wisest, and the most just: Those who could make decisions for the common good (Guidi 1981, pp. 136–137, vol. 2; Ruffini 1977; Schneider and Zimmermann 1990). During the oligarchical period that followed the Revolt of the Ciompi at the turn of the fourteenth and fifteenth centuries, sortition was relatively successful at ensuring consensus among the dominant social classes (Najemy 1982). Although the 1460s saw a republican challenge to Medici rule, this movement was not inherently opposed to elections, but to the “handpicked” selection of the names of those who would occupy public office; that is to say, pure and simple cooption by the regime’s partisan scrutineers (Rubinstein 1986). 7

Along with the working class’s exclusion from citizenship, one of the most important aristocratic features that Leonardo Bruni (1987a) mentioned was precisely this point: The legislative councils could not truly discuss nor modify the bills proposed by the Signoria, but only approve or reject them. According to Bruni, the other nondemocratic elements were that the councils could not set their own schedule, and that conscription had been replaced with a professional mercenary army.

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Moreover, we should not overlook the different connotations of the term “election” in various historical periods and political cultures. Modern readers may see elections as a process by which the grassroots community selects those who will then speak and act on their behalf. Ancient Athenians would have had a similar understanding of elections. In Florence, however, elections were mostly a top-down process, involving the cooption of worthy citizens by the political elite or “inner circle” where the state’s political power was concentrated. For the most part, elections were conducted within electoral committees, which were themselves composed in a variety of ways. Since such elections did not select candidates competing for the same post but rather sought to put a limited number of names on the roster, they were more like examinations than competitive races. When the debate between elections and sortition began to resemble the Aristotelian dichotomy at the end of the 1490s, after three years of controversy in the Great Council, this was far from being a settled matter, as numerous controversies in the following years would demonstrate. In fact, independently of the practices that determine its significance, sortition has no more “inherent” meaning than elections do – if only because, as we saw in Florentine history, the circle of people among which sortition is performed can vary widely and be defined according to radically different rationales.

The First Taming of Chance in Politics Before moving on, we shall analyze the various conceptions of chance, luck, or “fortune” on which sortition was based until the Early Modern age. In a ground-breaking volume, the philosopher of science Ian Hacking (1990) vividly describes the “taming of chance”: The revolution produced by the advent of probabilistic thinking and the gradual use of probability as a tool in science, administration, and commerce. Nonetheless, before chance was scientifically tamed in this fashion, how did people view it, and why did they massively use it in political experiments? From Plato to Guicciardini: Towards a Sociological Conception of Chance To answer this question, let us turn to Plato. In Laws, the Greek philosopher compares two different ways of using chance, one that delegates the task to Zeus and one which, much like in Athenian democracy, allocates political positions among citizens. He adds that each form implies a different kind of equality (Plato s.d., VI, 757b): For there are two equalities which are called by the same name but are in reality in many ways almost the opposite of one another; one of them may be introduced without difficulty, by any state or any legislator in the distribution of honors: this is the rule of measure, weight, and number, which regulates and apportions them. But there is another

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equality, of a better and higher kind, which is not so easily recognized. This is the judgment of Zeus … For it gives to the greater more, and to the inferior less and in proportion to the nature of each; and, above all, greater honor always to the greater virtue, and to the less less; and to either in proportion to their respective measure of virtue and education.

In the elitist perspective put forth by Plato, the second type of chance is viewed in a very generic fashion. It is responsible for the fact that some individuals are wiser, more virtuous or nobler than others; it assigns a different and hierarchized fate (moira) to individuals and is intricately linked with what would later be called sors divinatoria, which divides the city into “the masses” and “the best” (Demont 2010). Unfortunately, some concessions must be made to the masses to prevent them from rising up against the state, so that another kind of political chance must be accepted, at least on the fringes: the sortition of officeholders. This second kind of chance is intricately tied to democracy. Only the first kind of chance is fully rational since it expresses the wishes of the gods. For Plato, this kind of chance represents the highest justification of the authority to command (Plato s.d., III, 689e, 690a.). The rationality of the second form of chance is, again for Plato, of a purely instrumental sort and functions as a kind of last resort. In this line of reasoning as elsewhere, Plato clearly moves out of the symbolic universe of Athenian democracy. One question here is of particular importance. Against Plato, Socrates, Xenophon, and other elitist thinkers, what was the reasoning of Athenian democrats who defended the practice of random selection in politics? At a time when probability calculus was still undiscovered, the Greeks nonetheless had a clear and pragmatic intuition of the radical equality that this procedure could entail. Having recourse to such a practice among all citizens would mean that symbolically at least, they would all be viewed as equals, and would be all equally worthy of governing. Therefore, Aristotle (1962, VI: 2, 1317a–1318b) writes that the kind of arithmetic equality radical democrats advocate has affinities with sortition. From the perspective of Athenian politics, the selection by lot of magistrates thus had a “secular” significance. Being randomly chosen was not a sign of divine selection, and the Platonic critique illustrates this a contrario. Sortition and the organizing of regulated competition (political competitions, but also military, artistic, and athletic ones) were the two faces of the same process of political rationalization (Caillois 1967, p. 60). We can therefore better understand why the sortition of magistrates came into play during Athens’ most famous period. For two centuries, this form of rationalization was compatible with the extraordinary innovations that took place across many different domains (Ober 2008). In politics, the first taming of chance came well before probability calculus was invented. It was purely pragmatic, and as we will see in the next two chapters, it was only during the twentieth century that a second taming, both scientific and pragmatic, became possible.8 Parallels can 8

This is why I disagree with Hubertus Buchstein (2009) when he argues that random selection could not have been democratic for Athenians because the latter did not know probability

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in fact be drawn with other social realms: Both games of chance and insurance companies or state institutions using annuities to match citizens’ donations to the state did not wait for probability calculus to be developed (Gigerenzer et al. 1989). And in Italy during the Middle Ages and the Early Modern period, those who defended sortition in aristocratic circles also understood quite well that it could be closely tied to a symbolic arithmetic equality among peers. To better understand how this first political taming of chance, in addition to helping appease conflicts, could in some contexts become a democratic or at least “popular” phenomenon, it is helpful to look at the divisive debate which waged in Florence after the Great Council was established at the end of the fifteenth century. As we have seen, this debate pitted the prominent families (who preferred elections, the so-called delle più fave procedure) against lower-class citizens (who supported sortition). According to a speech reconstructed by Francesco Guicciardini (1932, pp. 100–101), the spokesperson for the latter group is thus said to have declared: My opponents say that when posts are distributed by the delle più fave procedure [that is to say, by a majority vote rather than sortition from a list of individuals recognized as sufficiently worthy], they are allotted to individuals who are doubly worthy, as those who are selected by the greatest number possess more merits … Nonetheless, the problems stem from the fact that [there is] a type of men who have been fortunate in the game of life, who have won the jackpot, and who think that the state belongs to them, because they are richer, because they are more noble, or because they have inherited a formidable legacy from their parents and ancestors. And we who have lost out on the game of life, we’re not worthy of honors, we should content ourselves with lowly positions and continue to bear our cross as we have done in the past. My opponents are thinking of the forms of evaluation and different distinctions that accrued to well-compensated positions versus others. In these matters, they are so accustomed to the tyrannical order that it seems fair to them that matters continue to be governed in such a fashion, and for those who don’t belong to this limited circle, or to some house so noble that it cannot be excluded, to be judged unworthy of holding public office. In other words, they don’t remember that we are all citizens; they feel like they are worth more than others, they support each other when they are up for election and only ever hand out white beans9 [unanimously] to our peers – that is to say, to those who have not been so lucky in life. Even if one of us were a paragon of virtue, an Aristotle, or a Solomon, they would continue to think that an important position would lose its prestige if we were to occupy it, as it would be consequently tarnished. Conversely, we don’t refuse to give our votes to those who have monopolized political power until now. On the contrary, many of us who have not yet liberated ourselves from the ideas and habits of the past believe that honors are more benefiting of rich men. This is the real reason why even when one of us appears sufficiently competent for a position, he

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calculus. The democratic value of the symbolic equality of random selection among a group of voluntary citizens did not need to be mathematically confirmed in order to be experienced pragmatically. And the regulated alternation that it allowed, with individuals rotating between governing and being governed, was perfectly understood by contemporaries. A vote against someone.

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nonetheless never succeeds in the procedure delle più fave, save for the rare times it is out of compassion or error. Those who obtain the greatest number of fava beans are necessarily those who have been luckier in the game of chance called life, because they get votes from their peers and from us, while all we get are the votes of our people at best, and white beans at worst.

When Guicciardini describes “those who are luckier at the game of chance called life,” he literally writes “those who got a tierce of 4, 5, and 6”, compared to “those who only got a tierce of 1, 2, and 3.” His expressions refer to a popular medieval game called la rafle or le poulain. In this game, certain combinations of cards allow a player to “clean up” (rafler) and win the jackpot. The metaphor is interesting because it implicitly opposes the unfairness of chance, which gives the political jackpot to those who are already winners in society, to “well-regulated” sortition, which impartially and through a system of rapid rotation distributes positions of power to all citizens (or at least all those whose competence was ascertained beforehand). In the harangue delivered by the popular orator, the Platonic argument is completely turned on its head in favor of the radical democratic perspective mentioned by Aristotle: The tratta embodies a rational practice while the vagaries of birth and corresponding social privilege represent the same irrational chance displayed in dice games. During the same period, Machiavelli similarly documented the fact that radical antimeritocratic arguments were circulating throughout Florence, put forth by individuals who refused to believe that social hierarchies were the result of individual merit, but instead stemmed from circumstances that lay outside the realm of justice. Recounting a speech given by one of the popular leaders of the Ciompi Revolt a century and a half earlier, Machiavelli (1988, III, 13, p. 122) has this leader say the following when addressing his supporters: Do not let their antiquity of blood, with which they will reproach us, dismay you; for all men, having had the same beginning, are equally ancient and have been made by nature in one mode. Strip us naked, you will see that we are alike; dress us in their clothes and them in ours, and without a doubt we shall appear noble and they ignoble, for only poverty and riches make us unequal.

While this kind of rhetoric remained in the minority, it demonstrated that the progress of symbolic equality was considerable and that many of the political arguments supporting it did not make any divine references. Sortition in the Age of Contingencies Writing under his own name in another text, Guicciardini nonetheless virulently criticized the sortition of magistrates. He ventured an argument bridging the reasoning of Greek elitist philosophers with the new concept of “popular government,” thus anticipating the perspective of the eighteenth-century philosophers: “It is the people, and not chance, that should be the master; the people, and not Fortune, [that] should distribute honors” (Guicciardini 1932).

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The rationality associated with the first taming of chance is here rejected outright. Guicciardini expresses a view of popular legitimacy and representation that will later be crucial in the Age of Enlightenment and the French Revolution – and which, to this day, lurks behind many a spontaneous reaction. He also emphasizes a new and quite pejorative notion of chance that is devoid of rationality. It is probable that the association between irrational chance and sortition appeared during this era, with the former being called upon to criticize the latter. On several occasions, Machiavelli makes this association, and it is always a negative one. When, for example, Machiavelli (1988, IV, 28) describes the feud between Cosimo de’ Medici (1389–1464) and Rinaldo degli Albizzi (1370– 1442) at the beginning of the 1430s, he writes that Fortuna, the Goddess of chance, favored Florentine discord by selecting a protégé of Rinaldo’s to be selected by tratta for the Signoria. Whether it was viewed from a skeptical perspective of the tratta (Machiavelli) or an outright critical one (Guicciardini), this late fifteenth-century Florentine association between Fortune and sortition marked a new relationship to time and human action (Buttay-Jutier 2008). Contemporaneously, a new depiction of Fortune began to appear in Florentine iconography. In the Middle Ages, the goddess’ main attribute was the wheel, which came to occupy more and more space in illustrations. This representation of Fortune was extraordinarily widespread, no doubt becoming “the most significant didactic image in medieval art” (Pickering 1980, quoted in Buttay-Jutier 2008, p. 66). Numerous paintings at the time portrayed Fortune in this manner, with countless variations. For example, one engraving from the Carmina Burana manuscript (a collection of both secular and religious chants assembled between 1225 and 1250) depicts a wheel, turning clockwise and dividing the outside space into four positions that correspond to different and successive time periods, while the goddess Fortuna stands majestically in the middle. On the left, a man hangs off the wheel looking upwards and slowly ascending, thanks to the wheel’s movement. At the top of the wheel, he wears a crown and carries a scepter, overlooking a church. However, the wheel inexorably continues its path, and on the right, the man begins to fall. He still hangs on, leaning over the void, but we can tell that he is beginning to slip, the crown is already sliding off his head. At the bottom of the wheel, the man lies inert, broken by the course of fate. The caption is clear: “Regnabo, regno, regnavi, sum sine regno” (I will rule, I rule, I have ruled, I am without a kingdom). The significance of this image is deeply religious. At the time, it could be used by the Church and the Papacy in their fight against the Holy Roman Emperor and other kings. However, it also offers a meditation on the futility (and finality) of earthly life, even for the powerful of the world, whose significance goes beyond Christian dogma. While it is sufficiently rich in imagery to have numerous interpretations, in deep-rooted popular beliefs the medieval incarnation of Fortune illustrated a cyclical view of time modeled after the four seasons. This temporal conception has similarities with the political use

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of sortition as practiced by medieval Florentines, as the latter also entailed a time-bound rotation where ideally, all the citizens deemed fit would occupy a position in turn, in a kind of endless harmonious cycle that would ensure civic peace and temper the vagaries of chance. Although this figure did not entirely disappear during the Renaissance,10 another rose to the forefront within a few decades. The great art historian Aby Warburg (1990, pp. 167–197) was the first to study this transformation. A new representation of Fortuna was born in Florence during the last decades of the fifteenth century and the first decades of the sixteenth century, before spreading to the rest of Europe. Unlike the fixed and somewhat monstrous deity depicted during the Middle Ages, the new goddess of Fortune borrowed some iconographic traits from Venus, becoming an attractive young woman, and from Occasio, the Latin (now female) goddess modeled after the Greek Kairos. Kairos was one of two ancient Greek words for time, meaning the right or opportune moment, a moment of action and decision where possibilities become reality and everything shifts – as opposed to Chronos, signifying linear time as can be measuring by the passing of the days and the seasons, by birth and death. Traditionally, Occasio was depicted standing on a sphere, without a crown, and with winged feet. She held a razor and was completely bald, save for a long lock of hair sweeping across her forehead. She was described as follows in Emblematum libellus by Andrea Alciato (1492–1550), an incredibly popular book that was reedited into many European languages (Alciato 1615, pp. 26–27): Occasion is when we observe an opportunity of time, of place and of people, and when everything we attempt is successful. This Goddess glides on stiff round feathers & is never still. Others say that her feet are on a wheel that is constantly spinning. She has wings on her feet; that is, her shoes have wings, like Mercury’s: she flies all the through the air. She holds a razor in her right hand, to show that she is keener than any blade. She only has a lock of hair on the front of her head, so that she can be seized as she approaches. In the back she is completely bald: if someone once lets her go, they can never again recapture her. There are several things, which honest and useful they may be, if they are not done at the opportune time, lose all grace. Therefore, you should never let Occasion slip away.

Fortuna gradually became a very complex figure. As graphical representations of the goddess spread throughout all of Europe, illustrations elaborated on the theme in an increasingly nuanced fashion. Circa 1500, every member of Italy’s ruling class had Fortuna as one of its heraldic emblems; the rest of Europe would imitate this choice in the decades that follow. Fortuna was a princely virtue that legitimized the power of a nonhereditary prince who had triumphed over adversity. Fortune was also linked to memento mori, the practice of reflection on mortality: It remained a kind of vanitas that harked back to the fragility of all human 10

In divinatory tarot decks, which were born at the beginning of the Renaissance, the image of the wheel appeared on the Fortune card (this is true for the earliest tarot deck preserved, the Visconti-Sforza deck from the 1440s).

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endeavors and provided an explanation for the vicissitudes of life. Finally, it had a pedagogical use in the education of princes and other nobles, where it was presented as one of the factors that should be considered when striving to obtain power and govern well (Buttay-Jutier 2008, p. 167ff). It was no doubt Machiavelli who gave the most striking portrait of Fortuna. In Capitolo de la Fortuna, he echoes the medieval image of the wheel, but gives it a kaleidoscopic dimension that shatters the well-regulated context traditionally implied by the metaphor (Machiavelli 1989, pp. 746–749): She [Fortuna] stands on the highest point, where the sight of her is not denied to any man; but a little time turns her about and moves her. And this aged witch has two faces, one of them fierce and the other mild; and as she turns, now she does not see you, now she beseeches, now she menaces you. Whoever tries to enter, she receives benignly, but at him who later tries to go out she rages, and often his road for departing is taken from him. Within her palace, as many wheels are turning as there are varied ways of climbing to those things which every living man strives to attain … Here Opportunity alone finds sport, and always frisking about among the wheels is that tousle-haired and simple maiden … That man most luckily forms his plan, among all the persons in Fortune’s palace, who chooses a wheel befitting her wish, since the inclinations that make you act, so far as they conform with her doings, are the causes of your good and your ill … Because while you are whirled about by the rim of a wheel that for the moment is lucky and good, she is wont to reverse its course in midcircle. And since you cannot change your character nor give up the disposition that Heaven endows you with, in the midst of your journey she abandons you. Therefore, if this he understood and fixed in his mind, a man who could leap from wheel to wheel would always be happy and fortunate, but because to attain this is denied by the occult force that rules us, our condition changes with her course.

After a long list of formerly great civilizations and heroes, Machiavelli adds: “From their example we well realize how much he pleases Fortune and how acceptable he is who pushes her, who shoves her, who jostles her.” He concludes: “We see at last that in days gone by few have been successful, and they have died before their wheel reversed itself or in turning carried them down to the bottom” (Machiavelli 1989, pp. 746–749). In Machiavelli’s description, the cyclical nature of time is reduced to its simplest dimension – the birth and death of individuals and nations. This dimension is nonetheless subsumed into the unpredictable reign of time, which renders all success fleeting but offers opportunities to be seized. According to Machiavelli, virtù consists primarily in energetically acting whenever possible, taking circumstances into account. Machiavelli is particularly pessimistic regarding the human condition. In his realistic and almost completely detached view of God and Christianity, earthly success is in no way a sign of divine election or a reward for virtuous men, despite what all the princely crests of the time might have suggested, or what certain burgeoning denominations of Protestantism might have believed. He thus rejects both the Platonic and the Christian views of fate. Fortuna is consistently depicted as the embodiment of contingency. It represents the

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moment when upheavals come to modify the course of events: Kairos rather than Chronos (Buttay-Jutier 2008, p. 124). It corresponds to changes in how time and human action are understood, where individuals are no longer just buffeted by inexorable forces but can act of their own free will, even if such actions take place against a backdrop of contingencies that they do not control (Cassirer 1983, p. 100). This is an entirely different “regime of historicity” than during the Middle Ages (Hartog 2015). The growing comprehension of historical contingency of realistic Florentine thinkers such as Machiavelli or Guicciardini was subversive for the Church, as it refused the idea that God’s will and rationality were determining humankind’s fate. It was also problematic for the hereditary monarchies that would continue to dominate the continent over the following three centuries, as historical contingency argued that state power possessed no other justification than human action. This new vein of thought also rejected the cyclical conception of time that was typical of medieval communes and their republicanism: Instead of insisting on a well-ordered political regime characterized by the critique of factions and the search for consensus and the common good, it praised conflict and the action of wise (and somehow “Machiavellian”) leaders. Under Guicciardini’s pen, it pointed towards a kind of “popular government” where sortition would have no place. For two and a half centuries, these beliefs remained in minority, however. With the Enlightenment and both the French and American Revolutions, these beliefs would be partly integrated in a new imaginary that would reveal itself to be no more hospitable to the first political taming of chance. However, before we can discuss this issue, we must analyze sortition practices in other parts of Europe during the Late Middle Ages and the Early Modern period.

Spain: The Pacification of Power Struggles (Mid-Fifteenth to Seventeenth Centuries) At the end of the Middle Ages and during the Renaissance, the Iberian Peninsula was also home to a high degree of institutional complexity. It was divided between the Crown of Castile, the Crown of Aragon, and the Muslim kingdoms of the southern region. Turned towards the Mediterranean, the Crown of Aragon also encompassed a number of largely autonomous territories with their own institutions: the Kingdoms of Aragon, Valencia, and Majorca, as well as the County of Catalonia.11 In 1282, the Crown of Aragon gained control of the Kingdom of Sicily and then in 1442–1443 of the Kingdom of Naples, which would remain under Spanish rule until 1713. France hotly contested the 11

In 1479, at the end of the Reconquista, the Crown of Aragon made a dynastic alliance with the Kingdom of Castile through the marriage of Ferdinand II and Isabella I (Granada, the last bastion of Islamic rule on the peninsula, was taken in 1492). This union became effective in 1516, with the accession of Charles V and the Habsburg dynasty. The two regions of Spain nonetheless remained separate and autonomous political entities until the beginning of the eighteenth century.

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Crown’s growing reach, which led to the eruption of the Italian Wars in 1494. Starting in the Middle Ages, the cities under the Crown of Aragon began to display greater similarities with the European model than with most of their Castilian counterparts (Pirenne 1939; Braudel 1993). Each municipality had its own organization, which varied from one location to another, while the Crown and the kingdoms it grouped together played a certain unifying role. The influence of the Italian cities was particularly evident and only grew once Sicily and Naples were conquered. Insaculación at the Communal Level Sortition was practiced in a few places in Spain early during the Middle Ages. For example, in 1241, a couple of years after the conquest of Cordoba against the Muslims, Ferdinand III of Castile accepted to give the city a sort of constitution, the Fuero de Córdoba. The office of the mayor had to be filled each year selecting by lot among four “good men” (bonos homines) previously elected in turn by the different neighborhoods (Mellado Rodríguez 1990; 2000). However, it was only in the Late Middle Ages that selection by lot of political offices became a widespread procedure. The proliferation of exchanges between Spain and the Italian peninsula likely contributed to this development. Logically enough, it was under the Crown of Aragon that the procedure enjoyed the greatest popularity. In certain regions of Aragon, sortition was attested to in the fourteenth century, especially in Cervera (1331), Ciutadella (1370), Majorca (1382), and Lleida (1386), with the ritual described exhibiting strong parallels with those employed in Venice and Florence (Barrio Barrio 1427; Torras i Ribé 1983a). Quite similar to the Florentine mechanism of imborsazione, this procedure was known as insaculación in Castilian,12 which literally meant “the act of placing something into a purse.” However, it was only during the reign of Alfonso the Magnanimous13 and in particular after the conquest of Naples that the main procedural traits of sortition were defined and that the practice was institutionalized as one of the “privileges” that the monarch formally granted the municipalities. In 1442–1443, the sortition of designated public officeholders was introduced in the capital, Zaragoza. The system then gradually spread throughout the rest of the Crown’s territories. After a tumultuous interlude during the reign of John II, marked by a peasant revolt and a civil war in Catalonia, the popularity of insaculación reached its apex under Ferdinand II, who ruled from 1479 to 1516. In addition to Zaragoza, the procedure was adopted in cities like Girona (1457), Barcelona (1498), Perpignan (1499), and Tarragona (1501). Throughout the whole of the Spanish Golden Age, insaculación was a fundamental element of politics in the various cities ruled by the Crown of Aragon. 12 13

Insaculació in Catalan. Alfonso V, also called the Magnanimous (1396–1458), ruled the Crown of Aragon starting in 1416.

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The procedure was just as complex as that used in the Italian cities, as can be seen from how it was practiced in the Aragon city of Huesca during the middle of the fifteenth century. Insaculación unfolded in a series of stages. Representatives from different neighborhoods formed a sort of general assembly. Volunteers’ names were written on pieces of parchment and then rolled in wax to form little balls called redolinos (bearing some semblance to the Venetian ballotte). When the redolinos were placed into purses, the candidates’ names were read out loud. When it came time to randomly select candidates, the purses were emptied into a basin of water. “Extraction was then conducted by a seven-year-old child who inserted his bare right arm into a bowl of water, covered by a towel. Once extracted, the redolino was placed on a shelf where all participants could see it” (Gracia 2006, p. 311). The individuals selected were called the “electors” and formed an electoral committee responsible for choosing those who would hold public office. Procedurally speaking, this system was more similar to the Venetian practice than to the tratta, on account of its almost ritualistic use of a child, and above all due to the fact that sortition was used to form an electoral committee. In many communes, insaculación was practiced in a more Florentine fashion, however: It was used to attribute magistracies directly rather than just to establish electoral committees. In the city of Igualada, near Barcelona, municipal power was organized around a system of councils representing the diverse segments of the population (Torras i Ribé 1983b, p. 112): Governance was primarily entrusted to thirty-four persons chosen among “the most intelligent and with the most authority in the community” to make up the town’s privy council. Their names were placed into purses, out of which the four main councilors’ names were drawn. A second circle of power was formed by the town’s various administrative positions … whose occupants were randomly selected from special purses containing the names of thirty individuals who had been subject to insaculación. Finally, a third authority, the General Council, marked the first level of access to municipal government for the different social groups represented across the population. Those selected to make up the privy council were chosen from its members.

As in Florence, the individuals whose names were drawn from the purse could be dismissed for a variety of reasons (impedimentos): if they had held office in the previous year; if they had already been selected for another office; if their financial situation no longer met the necessary property requirements; etc (Casey 1979, p. 169). During the fourteenth and fifteenth centuries, insaculación was a means to modernize municipal politics (Torras i Ribé 1983a). Municipal systems were increasingly threatened by the rivalries between prominent families and the monopolization of power by a narrow group of leaders. Although it had been practiced during the Middle Ages, the direct election of magistrates by a general citizens’ assembly had long given way to second-tier elections and especially, to systems based on cooption for public office. When insaculación was introduced,

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it first and foremost helped to pacify conflicts linked to power ­struggles and public electoral procedures: Even though the number of people eligible for ­insaculación remained modest compared to Florentine practices (the purses generally contained no more than a few dozen names, and sometimes many fewer) (Casey 1979, p. 176), there were always more candidates than there were offices to be filled. In addition to the fact that it introduced an element of chance, the so-called regime “of the purse and the lot” (regiment de sach e de sort in Catalan)14 was based on the distribution of responsibilities across the different social groups comprising a commune, with each group having the right to its own purse, and each purse being called on to fill a specific government office or a predetermined number of councilors or electors. Thanks to this system of quotas – which went beyond mere sortition – the community was represented in microcosm. It was important for every component of the social body to be represented proportionally to its weight in local power relations, in order to avoid a monopoly of power and to redistribute the symbolic and material benefits associated with different classes (Vives 1936–1937, quoted in Torras i Ribé 1983a, p. 97ff). Within each group, the quick and organized rotation of offices (during this period, mandates generally lasted one year, though they would last up to three in the centuries that followed) allowed for the most prominent individuals to alternate in positions of power. Unlike what normally transpired in Florence during the fourteenth and fifteenth centuries, however, the groups in question were not just official guilds. Most of the time, they correspond to “estates” (mans), which were in turn an amalgam of various socio-professional, statutory, and economic categories. Through the influence of the Crown and its federation of kingdoms, the aristocratic mores of feudal society began to butt against the customs of the guild world characteristic of life in a medieval city. In the most common tripartite structure found, the maiores represented the bourgeois upper classes and increasingly the nobles, once the latter were reintegrated into municipal life;15 the mediores included the merchants of the petty bourgeoisie and the higher strata of artisans; and finally, the minores were the craftsmen and manual laborers. However, this division could take a number of different forms. This microcosm did not reflect the social groups proportionally to their demographic weight but mirrored existing social hierarchies. In Barcelona at the end of the fifteenth century, for example, 48 of the 144 members of its legislative council (called the “Council of the Hundred”) hailed from the upper bourgeoisie, while the rest were merchants, major artisans, and minores in equal proportion. Of the five members of the city’s government, the top three in hierarchical order (and

14

15

Insaculación is also called the “system of the bag and the purse,” the “path of the purse,” the regimen sortis, the regime “of the bag and chance,” the “regime of the redollino” and the “fated” election – a la ventura. Like in Florence, the nobles, whose power was originally seen as feudal in nature and was thus unwelcome in the urban landscape, were gradually reintegrated into city government as the upper levels of the bourgeoisie intermarried and adopted their mores.

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the contemporary equivalent to the mayor, the conseller en cap) were selected from among the maiores, the fourth from the mediores and the fifth from either the major artisans or minor craftsmen (who likely accounted for close to 90 percent of the urban population) (Torras i Ribé 1983a, pp. 59ff). In Perpignan, starting in 1601, the mediores and the maiores had access to one and two purses, respectively, while the purses for the major artisans and minor craftsmen were used one after another (Torras i Ribé 1983a, p. 87). This system of distribution, which was even more complex and unequal than the configuration used in Florence prior to the creation of the Great Council, clearly illustrates that the political significance of sortition could vary greatly, depending on the sociopolitical context in which it was practiced. To paraphrase Aristotle, while sortition established radical “arithmetic” equality between the members of a given group, equality could only be “geometric” if the individuals from one group were compared to those from another group, as sortition is carried out on the basis of social quotas. Individuals then see themselves attributed a position deemed commensurate with the “merits” or “honors” of their social class. Moreover, it should be noted that unlike in Athens, where any citizen could volunteer as a candidate to be included in the sortition process, the insaculados in most cities in the Kingdom of Aragon were subject to preselection (as was the case in Florence). This first step was even more important than the “extraction” itself, even if the latter was more spectacular and historically well documented (Torras i Ribé 1983a, pp. 98ff). In major cities, when the insaculación process was initially introduced, a commissioner appointed by the king was often responsible for it. Afterwards, the system operated on the basis of cooption, with the members of each of the corporations and guilds present at the municipal council designating their potential successors. In some cities, however, successors were directly appointed. In both cases, individuals were chosen by elections that were convened at regular intervals, generally every three or four years, using black and white fava beans, buttons, or other small objects (white signifying a vote in favor and black signifying a vote against). To some extent, insaculación was an instrument that allowed for the controlled distribution of power among individuals and groups, thus preventing the traditional elites from monopolizing public office. The procedure was introduced and strongly promoted by the Crown, which played the role of arbiter and had a vested interest in pacifying urban turmoil and limiting corruption in order to levy taxes more successfully (Reglá 1972, pp. 129ff). Insaculación was also supported by the middle strata of the population, who saw it as a means to guarantee its role in communal government (Torras i Ribé 1983a). The leading class also came to support insaculación, since the process allowed it to retain most of the power, while simultaneously ensuring real municipal autonomy. For over two centuries, the insaculación system encouraged a complex interplay of dynamics that was succinctly described by Ferdinand II when commenting on the privileges enjoyed by the city of Alghero in 1501 (Reglá 1972, p. 132):

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Through experience, we have seen that urban regimes that practice both the purse and sortition promote healthier administrations and governance than regimes which rely on elections. They are more unified and egalitarian, more peaceful and devoid of passions.

During the same period of time, sortition developed in some municipalities in the Crown of Castile. This process began early (for example in Bilbao in 1435) but accelerated notably in the last decades of the fifteenth century, culminating in the 1590s. Two regions were primarily affected: First, the northern part of the Crown, especially in the Basque region (one of the most influential cases being Vitoria in 1576) and the Principality of Asturias; second, from 1594 to 1595, the southern regions of the former Emirate of Granada and the Gran Canarias. This system persisted well into the sixteenth century and in some places into the seventeenth century. Two main reasons motivated the Catholic monarchs of Spain to introduce this technique. In the northern regions controlled by the Crown – as elsewhere during the Middle Ages and the Early Modern period – the need to limit power struggles within communes was crucial. In the southern region, the monarchs, having drawn a positive assessment of the northern Castilian and Aragonese experiments with sortition, also wanted to form a unified municipal regime in the reconquered (and formerly Muslim) territories. This system met with some contestation in the cities, most notably from those individuals or estates who stood to lose power as a result, but overall resistance was limited. In most cases, the northern communes asked the monarchs to intervene and put an end to internal quarrels (Polo Martín 1999). In Castile, the sortition procedures varied somewhat, but usually followed the Florentine model (combination of various stages of cooptation and election by electoral committees, and selection by lot from a short-list to fill one-year positions). To this model, Castilian systems added the presence of a child who was in charge of drawing lots, and the possibility for the monarch to refuse to confirm the nomination of those who were eventually selected (Reglá 1972, p. 132). In the rest of the Crown of Castile, cities were governed by regidores, members of the municipal executive branch directly appointed by the king or, in a growing number of cases, who had purchased the office. By simultaneously guaranteeing a balance between the different social groups, the mitigation of interpersonal conflicts, and relative municipal autonomy against the growing backdrop of absolutism, the sortition system protected the Crown of Aragon, the south of the Crown of Castile and most of the northern regions of the latter from the Revolt of the Comuneros that swept across a large number of Castilian cities between 1520 and 1522 in rebellion against the rule of Charles V. These examples were probably convincing enough to cause many cities to introduce sortition in order to replace the vanished king’s administration (Torras i Ribé 1983a; Armillas and Sesma 1991, quoted in Vergne 2005, p. 91). And yet, starting in the sixteenth century, insaculación was subject to a contradictory trend throughout the Crown of Aragon’s territory. While the practice gradually spread to smaller communes in its original form, in large cities, it was slowly subverted from the inside out. In denser urban areas, the

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strict separation of purses between the different corporate levels occasionally coincided with periods of upward social mobility (so long as the nobility was legally excluded from power or restricted to a secondary role, all bourgeois individuals who married into aristocratic circles were demoted or stripped of their position). At the same time, the active urban bourgeoisie slowly lost ground throughout all of Spain, giving way to a limited oligarchy composed of the rich bourgeoisie and members of the nobility, the latter’s role becoming more prominent in municipal government. This trend was particularly evident in the Kingdom of Valencia, where the lower classes were often denied access to insaculación. During the seventeenth century, 90 individuals were “placed in the purse” in Valencia, out of a population of at least 10,000 families. Castellón had 70 insaculados for 1,200 families; Orihuela, 30 to 40 for a population of about 2,500 individuals. In many cities, those who became insaculados retained this privilege for life (Casey 1979, pp. 174ff). Ultimately, the monarchy began to progressively encroach on municipal autonomy by interfering more and more with the designation of the insaculados. From the beginning, monarchs had often preserved the right to choose a certain number of the individuals whose names were to be placed in the purses, or conversely, to veto others. Nevertheless, it was only following a long and protracted struggle that this right became the norm, at least in the major cities whose control was a major issue for the monarchy. In Barcelona, for example, this new procedure was imposed after the city capitulated in 1621, following twelve years of urban rebellion. The recurring protests provoked by the royal takeover, particularly striking in Aragon and Catalonia, were shut down by the Crown, which deemed this issue decisive and aimed to secure the loyalty of the local ruling classes by periodically revising the insaculación lists. Originally a procedure used to ensure a certain division of power among social groups and partial municipal autonomy, in the hands of the sovereign insaculación became an instrument of control over an increasingly limited ruling class (Torras i Ribé 1983a, pp. 105ff). It thus gradually lost its appeal. When Philip V of Spain became the first member of the House of Bourbon to rule Spain in 1700, he was forced to confront a thorny war of succession during which most of the Crown of Aragon opposed him. When in retaliation, Philip eliminated that political entity in 1716, he also took the opportunity to put an end to the insaculación system, preferring instead direct royal control over municipal appointments (Mercader i Riba 1957, pp. 343–353). Sortition for Cortes Representatives At the parliamentary level of the different components of the Crown of Aragon, insaculación had a shorter lifespan. Like in other continental European kingdoms, the parliament primarily met mostly when the monarch needed to levy taxes, which became an increasingly frequent occurrence starting in the fourteenth century. As early as 1446 – a few years after Naples was conquered – sortition

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became part of the process to designate representatives to the Cortes (Parliament) of the Kingdom of Aragon (in 1493, the Cortes of Barcelona would also adopt a similar procedure). Members were selected in the following manner: First, a list of eligible names (called the libro de matrícula) was composed through cooption, with the members of the Cortes responsible for choosing others worthy of exercising their function. Once these names were written on parchment that was rolled in wax, the balls were then gathered up into different purses, depending on the status of the individuals in question. In 1514, the purse for the high clergy contained twenty names, while the intermediate clergy purse held sixty-eight; the upper and middle nobility held eighteen and thirteen, respectively; the purses of the high-ranking noble military officers and the lower nobility held s­ ixty-seven and ninety-seven; the upper bourgeoisie of Zaragoza had fifty-nine, while the bourgeoisie in other cities, rural communities, and small towns had seventy-nine, forty-three, and fifty names in their purses respectively. Second, eight names were drawn from these lists annually, one for each of the first seven purses and one for the last three (which were used in turn, once every three years). The process was thus even more complex than at the municipal level. It began with a “Mass of the Holy Spirit” in the chapel of the Cortes. A notary (who had also been selected through the process of insaculación) was then responsible for removing the chest where the ten purses were stored. The chest’s five locks were opened simultaneously by a representative from each of the Crown’s representative groups (the clergy, the nobility, the Zaragoza bourgeoisie and the remaining bourgeoisie) and by the notary himself, who held the fifth key. The redolinos contained in the first purse were then emptied into a silver basin and a child extracted one, following the method already described for the city of Huerta. The notary read the name selected out loud before resealing the wax ball. The child was then tasked with recounting the number of balls and making sure that this figure corresponded to the number on the list. The notary then put all of the redolinos back into the purse, and the purse back into the chest. This operation was repeated for each of the purses. The procedure’s purity was highlighted by the practice of religious ritual, the role of the child, and the symbolism of the clear water and the silver basin. The process was also public and documented by the notary (Sesma 1978, pp. 49ff., 503ff.). In the Crown of Castile, starting in the sixteenth century, some communes introduced the use of selection by lot to designate their communal representatives (the procuradores) to the Castilian Cortes. Such positions were highly coveted, as they allowed individuals to stay at Court for some duration of time and make important connections. In 1538, the separate representation of the different estates (the nobility, the clergy, and the Third Estate) – often called the Crown’s three “arms” at the time – was abolished by the king following a conflict that had pitted the nobility and the clergy against him. The parliament of Castile ended up including the representatives from only the seventeen or eighteen largest cities of the kingdom: Burgos, the first capital, Madrid, Seville, Granada, Cordoba, Salamanca, Toledo. Each city was theoretically free

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to select its two representatives using the method of its choice. As a result, the control wielded by a very limited oligarchy was never seriously threatened. But while Valladolid and Burgos appointed their procuradores using an electoral process that took place within this small circle of individuals, other cities adopted sortition, most doing so during the sixteenth century. The method used for sortition was a somewhat simplified version of the Aragonese procedure. In Cordoba on December 9, 1575, the twenty-four members of the Commune’s executive branch thus met to select the two procuradores from their midst. They each wrote their name on a piece of paper, which they then placed into a kind of silver nugget that ultimately went into a clay vase. The vase was emptied a first time: The nuggets were counted to make sure they numbered twenty-four, and then placed back into the vase. A young boy of eight or nine years named Salvador would shake the vase and extract two nuggets to select the two procuradores. The procedure had the merit of appeasing competition between the leading families. It was preserved, at least partially, until the middle of the seventeenth century, when the meetings of the Cortes became less frequent and were ultimately eliminated. The procedure began to decline in significance, however, as soon as the king authorized the individuals selected to sell their positions to others, who were not required to live in the same city. This method of conflict resolution never acquired a truly popular dimension (Weller 2010).

Distributive Aristocracies in the Early Modern Period Sortition also made its way to other European regions, albeit a bit later than in Italy or Spain. Historiography, at its present stage, cannot provide us with a systematic vision of its spread in the Early Modern era. It only reveals that sortition was practiced in a number of European communes, which were to some extent small republics, and that it was crucial in Switzerland from the middle of the seventeenth century onwards. Nearly all the cases documented share three common features: Sortition was justified by the need to limit internal strife and to fight corruption; it was coupled with elections or cooption in a procedure including several stages; and lots were drawn within the aristocratic circle among which honors, power, and public goods had to be distributed. England, France, and Germany: A Study in Contrasts England. Sortition was unsuccessfully proposed in English parliamentary committees during the seventeenth century (Dowlen 2008, p. 143), but it existed locally in a few English towns, such as Great Yarmouth, where a procedure rather similar to Venice sortition was known as the “inquest” and remained in force from 1491 to 1835. During one open assembly, the names of the magistrates in office were put into hats, six to a hat. Three names were then drawn from each hat by an “innocent person,” usually a young boy, and the persons thus selected formed an electoral committee. These individuals would meet in a closed room,

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without the right to eat, drink, light a fire or candles, and without communication with the outside world. As a group, they had to elect the new magistrates, each one requiring a qualified majority of nine votes (Palmer 1856, quoted in Dowlen 2008, p. 139). Thomas Gataker (1574–1654), rector at the University of Rotherhithe, wrote a treatise on lotteries in 1619–1627, in which he discussed at length the issue in all spheres of life, from religion through politics to games of chance. He partly blurred the distinction between sors divinatoria and sors divisoria and, after a historical panorama of the use of drawing lots in politics, he justified the principle of selecting by lot the offices among a narrow circle, summarizing acutely what was done at this period in Europe (Gataker 2008, p. 68): Where the various competitors are judged equally fit or are all fit with some good competences though with some inequality, then however the lottery falls, it cannot alight on an unfit competitor … So it is not unlawful to dispose to civil or sacred places or offices by lottery among such near-equals, especially when there might be much labouring and contending for them by the sundry persons engaged in either side. By this means they may all be quieted and someone picked out and picked upon without disgrace to any of his competitors or discontent to his friends. It is for this reason that in most states where offices are disposed by lottery, if elections had been used prior to the lottery, then the lottery would only be used among those of sufficient worth [and not] where offices required some special kind of skills … It is understandable that men would be loath to take on a physician by lottery when they are sick, or a pilot when they go to sea…

France (seventeenth century). Sortition was also practiced in a number of French communes at various points throughout history, in particular in the southern region of the country. The most important document concerning sortition in France, Le règlement du Sort, demonstrated for example that it had been used as early as 1385 in Marseille, and that among the five political regulations this city had had since then, four included the drawing of lots (Anonymous 1654, p. 3). It became more widespread from the middle of the seventeenth century onwards. After the wars of religion, monarchs tried to centralize more and more the power, and the local elites strove to resist this absolutist trend. Sortition was part of this move, especially in Lyon and Marseille. Critiques against cliques, patronage, and corruption in municipal political life were ubiquitous at the time, as civil strife was widespread. The intensification of the power struggles was at least partly linked with the fact that the number of positions tended to diminish with the country’s increasing centralization. From the second half of the seventeenth century on, offices became venal. The king sold them, usually for life, both to raise money and as a pragmatic move to limit disorders and competition at the local level. Local elites had previously justified the election of officeholders claiming a republican ethos, partly inspired by Italian political theory, which stressed the devotion to the public good. It was difficult to legitimatize this ideology when confronting it with the trivial reality of factional disputes, however (Lignereux 2020). The introduction of sortition was an attempt to respond to these critiques. Lyon adopted it in 1654. The originality of the French solution was not its

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procedural characteristics (sortition using a shortlist, the drawing of lots by a child younger than seven years old, compromise voting where electors drawn by lot proposed candidates among which other electors, also drawn by lot, would choose, the interdiction of having individuals from the same family selected, the prohibition of deliberating among council members before an election, etc.) (Anonymous 1654), but the process that led to the introduction of sortition and its ideological framework. Some French cities decided to reclaim the offices the king had sold and reinsert them in the selection system. This may seem like a strange choice to twenty-first-century readers, given that members of the local elite were the beneficiaries of venal offices (Christin 2014, p. 58). In fact, this decision must be understood symbolically. Sortition seemed to contradict the logics of interests that guided venal offices. In phase with the kind of representation of the Baroque era, a religious credo replaced the old republican paradigm. Sortition was an expression of “pure Providence,” as “God, who holds the lots in his hand … drops [them] on whoever he wishes” and makes consuls without the magisterium of men (Anonymous 1654, pp. 3, 26). Lot was supposed to reveal those who merited their promotion. Gentlemen, your responsibilities being most necessary for the maintenance of society and civil life, you have been drawn out from the night of a private and solitary life to be revealed in the theatre of honor; you have been unveiled, your virtues, which were hidden from us, have been brought to light. You have rendered those virtues more brilliant and more elevated.16

A new coupling between sors divisoria and sors divinatoria was thus permitted, which gave the officials a legitimacy independent from the king. Those who had been selected pretended to have been chosen “in a religious house,” “in such a way that the artifices and the machinations of men can play no part.” They also claimed to be “the first who God made councilors without the intervention of men,” and “that their greatest desire was to conform to the happiness and innocence of their election” (Anonymous 1654, quoted in Lignereux 2020, pp. 246ff). Sortition was therefore to be preferred to the “democratic” strife of elections – but also, implicitly, to top-down nomination by the king or to venal offices. Its pacifying virtue was emphasized (Melliet 1628, p. 782 quoted in Lignereux 2020, p. 249): The elected person would then not boast as much as if he had been chosen by men and preferred to his competitors: he who loses would not be so afflicted and would conceive no hatred or desire for vengeance against anyone, seeing that it is not judgment, but an event of fate, which is the cause of his acceptance or of his rejection.

Often, reality was more trivial: In Marseille, for example, the composition of the council of 300 people among which magistrates were randomly drawn had been carefully designed and the city’s main clan had a majority. Eventually, this kind of transcendent legitimacy somehow contradicted the century-old 16

Lyon municipal archives, BB 197, fol. 206, quoted by Yann Lignereux (2020, p. 245).

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jurisprudence of the Roman Church on the issue and was dangerously in competition with the absolutist claim of the King, who decided to abolish sortition and restore venal offices. Germany (sixteenth to eighteenth centuries). Sortition also became more widespread in Germany during the Early Modern period. Although no systematic overview of its use in this region currently exists, a number of monographs have been written, and the historian Barbara Stollberg-Rilinger (2014a) has provided a theoretical synthesis. On the whole, the German examples do not seem to change the overall picture that we have previously analyzed. Some sortition practices came from the corporatist world of the Late Middle Ages, as attested to, for example, by the selection procedures for university offices in Rostock (Stappert 2016). Others developed only in the Early Modern period. This trend was facilitated by the pragmatic position that Martin Luther (1483–1546) had towards sortition, which he envisioned much less reluctantly than the Roman Church did. Samuel von Pufendorf (1632–1694), the famous German jurist, political philosopher, economist, and historian, developed a strictly secular justification for the various cases in which sors divisoria could be legitimate: to distribute inheritances, to appoint individuals to offices, to resolve disputes over rank, to distribute alms, to select doctors who were to work in the city, and so on. The reasoning was that when many could claim the same right to something, then it must be used either collectively or in an alternating fashion. If this is not possible (Pufendorf, De iure naturae et gentium, libri octo, 1672, quoted in Stollberg-Rilinger 2014a), it is best to settle the case through sortition, because in such cases where no clever means can be found, no one is despised or preferred to the other, nor is anyone’s dignity stunned.

The introduction of sortition in Germany can also be partly explained by the popularity of the Venetian model, which came to be widely considered as a successful and stable aristocratic Republic. In Germany, sortition mainly developed in corporatist and communal contexts, and was not practiced at the level of the princely states or the Holy Roman Empire for selecting the offices, the state estates (Landstände), or the Imperial Diet. A number of cities adopted sortition, however, including, in 1663, imperial cities such as Hamburg (Rückleben 1969), Frankfurt/Main (Moser 1774), and Bremen (Wölk 1984), which were directly under the Emperor’s authority, enjoyed significant autonomy, and could freely define their own electoral devices, but also of other cities, such as Unna in 1593 (Stappert 2018) or Münster in 1721 (Goppold 2007), which were ruled by princely authority. As elsewhere in Europe, selection by lot was used in combination with cooptation and elections in a multistep procedure. Most often, it was used to select the electoral committee that was in charge of filling the offices. Sortition was highly ritualized, as was the electoral system on the whole. Historians have noted the contrast between the complexity of this selection procedure and its predictable results: Those elected were, in the end, the usual

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suspects most of the time, and introducing elements of sortition in the procedure did not substantially modify the sociology of officeholders. Only in a minority of cases did sortition broaden the circle of potential officeholders, in a limited fashion (Stappert 2018). How could it be that such a complicated device was adopted and maintained for decades – even centuries – with only slight modifications and without qualitatively changing the profile of the political elite? It is notable that sortition was often introduced after a crisis that threatened the political order, and that its main official justification was avoiding factionalism, limiting quarrels, and combating corruption. As Barbara StollbergRilinger (2014a) writes, the core logic of sortition included an attempt to coopt and regularly alternate officeholders among a stable circle of families who were viewed as meeting the necessary requirements. The instrumental success of this strategy was multifaceted: While it often helped to mitigate power struggles, limit the hegemony of the dominant group, reduce corruption, and organize the regular rotation of offices, this was far from always being the case. However, one should not underestimate the symbolic function of this complex electoral device. Fair, ritualized procedures, and sortition in particular, helped to legitimize not only the concrete output (who was selected) but also the political order as a whole. In a society which was deeply divided by power struggles between statutory groups (guilds, corporations, etc.) and important families, it had the performative effect of depicting the commune as a whole, and highlighting the ideal of the common good. The councils and other collective bodies that were constituted could thus embody the city and be a form of repraesentatio identitatis (identity representation), where the part (the council) could stand for the whole (the commune). More specifically, sortition was also a symbolic way of asserting equality among aristocratic families and reinforcing the solidarity of the group they constituted (Stollberg-Rilinger 2014a). Drawing Lots in the Military Domain. Before we go further and analyze political sortition in Switzerland, it is worth briefly examining another important social practice involving sortition, one which came from the military and aptly illustrates the importance of procedural legitimacy. In this domain, selection by lot was a clear example of sors divisoria. In France, for example, conscripts were randomly selected: Military service was an unenviable duty and the rich individuals selected often purchased substitutes to join the army in their stead (when they did not just resort to corruption in the first place to avoid conscription). In the military world, the distribution of punishments using sortition was also an occasional practice. It had its roots in Roman decimation and was justified by writers as different as Machiavelli (1469–1527), Jean Bodin (1530–1596), and Pufendorf (1632–1694). Until the end of the Thirty Years War (1618–1648), decimation remained outside of positive law in Latin countries, and was at the most an exceptional wartime practice (StollbergRilinger 2014b). The selection by lot of the punished was nonetheless introduced in Swedish positive law in 1590. Several other countries followed suit in the 1660s, including France (where the tirer au billet procedure, used to

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punish one random offender out of every three, remained in effect formally until 1775) and throughout the Holy Roman Empire. Though originally an exceptional practice, this mechanism became an integral part of military law. Nevertheless, this does not mean that sortition was widely practiced: In fact, the number of documented cases remains rare. Two examples stand out, however. The first was the terrible punishment inflicted on the cavalry regiment led by Hans Georg von Madlo, which suffered a crushing defeat in the Second Battle of Breitensfeld against the Swedish army in November 1642. The officers deemed responsible for this defeat were tried and executed by Marshal Piccolomini, and Colonel Madlo and Colonel Defour were beheaded. After having been ceremonially stripped of their weapons, the soldiers were condemned to decimation. Those who were picked to die were hanged. The second case, the Frankenburger Würfelspiel, or “Frankenburg Dice Game,” took place on May 15, 1625. It was so illegitimate that it passed into Austrian folklore during the nineteenth century. The local population in the region of Upper Austria having rebelled against the forced reintroduction of Catholicism in the country, the governor of Heberstorff County decided to set an example. On a town square, he brought together the 6,000 men concerned and forced thirty-six of them to roll dice against each other for their lives; seventeen of the eighteen losers were hanged. As Barbara Stollberg-Rilinger has shown, while the Madlo regiment and the Frankenburg peasants who revolted were apparently subjected to a similar treatment (a collective form of punishment following an exceptional turn of events, based on the sortition of condemned individuals, without any mention of divine will), the reactions provoked by the executions were completely different. In the case of Frankenburg, where civilians (and not soldiers) were concerned, many were offended that those individuals were condemned without due process and without the appropriate ritual. The most shocking was that they were forced to roll the dice against each other. Such reactions illustrated a limit to the legitimacy of decimation in the Early Modern period. These two cases were the result of exceptional circumstances. They relied on psychological underpinnings rather than legal ones, and were designed to make a public example rather than to exercise justice through sortition. It applied to lowly soldiers and not to officers, who were subject to more individualized trials, nor to civilians. Decimation was supposed to unfold following a highly ritualized and “objective” procedure, not one involving an antagonistic game where the potentially condemned men had to play against each other for their lives – a practice used to punish thieves until the eighteenth century (Stollberg-Rilinger 2014b, pp. 198ff). Switzerland: The Lot as a Tool of Distributive Aristocracy (Seventeenth to Eighteenth Centuries) In politics, sortition became widespread in Switzerland during the seventeenth century and remained in common practice throughout the eighteenth century. Swiss cases can roughly be divided into three different categories. The first

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category included cities such as Bern that were part of larger cantons including vast rural areas and that were governed by a consolidated patriciate. The second category was composed of canton-cities such as Basel, that were far from democratic but whose political system rested upon corporations. In both of these groups, the government structure was the following: A large council, which mostly or exclusively included members of the elite, a small council, which had the effective power, and a “secret council,” which resembled what we would call government today. Magistrates were selected for specific tasks. This latter dimension was also present in the third category, more unique in Europe at that time, which included cantons where the general citizens’ assembly (the Landsgemeinde in Glarus or Schwyz, or to a lesser extent the Conseil général in Geneva) was formally sovereign, although a small elite de facto dominated the political system. In Switzerland, the introduction of sortition explicitly claimed a filiation with the Bible and with ancient Athens and Rome. Concretely, the contemporary example of Venice was very influential. Sortition was introduced in Glarus (in 1640 for the evangelical part and 1649 for the catholic part), Freiburg (1650), Bern (1687), Schaffhausen (1688), Neuchâtel (1689), Geneva (1691), Schwyz (1692), Zoug (1694), Yverdon (1712), Basel (1718), Lausanne (1744), and in several smaller cities which depended on the cantonal authority. Although some experiments quickly came to an end, such as Schwyz in 1706 or Geneva in 1738, the region that now constitutes Switzerland (which included at that time both the Swiss Confederacy and entities that were not yet part of it, such as Geneva or Neuchâtel) was the place where sortition was most diffused in Europe at the eve of the French Revolution. The modalities of sortition differed from place to place and were often modified over the years; in addition, many cross-transfers took place, transforming Switzerland into a laboratory of lot. The concrete procedures were quite numerous. As they have been presented at length elsewhere (Chollet and Fontaine 2018; Mellina, Dupuis and Chollet 2020; Dupuis 2021; Mellina 2021), it is superfluous to describe them in detail here. A number of carefully designed and even precious tools were especially produced for the exclusive use of drawing lot in Swiss politics (though some of them could also be used for elections) (Brand and Guanzini 2018). These attest to the importance and originality of political sortition in this region: In most other places in Europe, common objects such as purses or basins were the only tools used to draw lots. Nearly always, Swiss sortition was involved in one or two of the numerous steps of a complex selection process that also included cooptation and election –a typical feature of the Middle Ages and the Early Modern period, as we have seen. Selection by lot could be used for the board of electors (as in Venice), but it was also a tool in the final stages when filling an office from a short list of candidates (as in Florence). However, there is no mention of a Florentine influence on Swiss political procedures (by that time, the drawing of lots had become a marginal practice in the Tuscan city), and names were not drawn from a purse until it was empty. Instead, the whole

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electoral process was repeated each time a new position had to be filled. As only a relatively small number of families competed, candidates had a reasonable hope – although no certainty – of being selected at some point. According to Swiss documentation, sortition was used to fill individual offices and/or vacant council seats. These hybrid devices were often seen as an improvement on the Italian versions. As the Venetian traveler Léopold Curti (1797, pp. 152–153, quoted in Dupuis 2021, p. 148) wrote at the end of the eighteenth century: In Venice, we draw lots for the electors, who can later propose who they want. In Basel, the six most worthy are elected, and fate must decide only among these six. Which of these two methods is more perfect? … In Basel, it is at least certain that the election will fall on one of the six, that a general ballot has declared those most worthy in the city. Here [in Basel], a first choice having preceded by that of fate, the blind lot finds itself guided in a way, and it cannot be more than a little wrong. In Venice, the lot having been cast before the votes, a blind lot will perhaps lead the one who sees.

The Venetian influence is apparent in the Swiss vocabulary of sortition during this period, and in the frequent presence of a child. In 1640, the evangelical Landsgemeinde in Glarus decided that for each public office, eight citizens would be nominated, from which a selection by lot would be then conducted publicly. “The eight elected individuals presented themselves in the Ring, and a child distributed eight balls wrapped in black cloth to them, seven of which were silver and one of which was gold. The individual who received the gold ball was elected” (Rambert 1889, p. 226). During the election of some important public offices in November 1691, the first time that sortition was used in the Republic of Geneva, a similar formula was used: So that all the people can see, six balls or boxes of the same size and outer color are placed in front of trustees; two of these balls are black on the inside. A young child of six or seven years old – in this case, little Léonard, the son of the public prosecutor Jean-Pierre Trembley – draws each ball out of the purse, one by one, and distributes them to the six nominees according to their rank. Each nominee opens his box: the first and the fourth are black inside, and Jacob de la Rive and Jean Sales are thus excluded from the nomination. At the end of the voting between the four candidates remaining, André Dunant and Pierre Lect were finally elected as auditor (RC 191, 10/31/1691, 11/01/1691, p. 316–20, quoted in Raphaël Barat (2020).

Nearly everywhere, there were two justifications when sortition was introduced. The first and most widespread was putting an end to widespread corruption and intrigue, a reason that we saw frequently cited throughout the Middle Ages and the Early Modern period. Often, reforms introducing sortition were seen as crisis decisions made because all other attempts had failed (something Machiavelli had previously analyzed in the Florentine context): “Without the state of extreme necessity where we were because of the general corruption of our government, we would not have taken this step,” wrote for example the famous Basel mathematician Johann Bernoulli (1667–1748) in 1718 (quoted in Mellina, Dupuis and Chollet 2020, p. 35).

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However, in the Swiss context the argument was not reduced to the republican claim according to which corruption was morally condemnable, and quarrels posed a danger to the common good and put the unity of the commonwealth at risk (Maissen 2006). In most cantons, political positions were venal and the electoral process determined who could buy offices, which in turn became an important source of income for those who held them. Before taking office, those who had been selected had to pay a price, viewed as a kind of investment for future benefits. By the same token, being a member of the political community meant having the right to sharing in collective goods, with each citizen receiving his lot (Schläppi 2007): Instead of giving the money to the king, as in France, officeholders gave it to the republic, that is, to their fellow citizens. And they had to pay twice: informally, during the election process, and officially, once selected, when buying the office. The official coupling of venal offices and sortition was quite specific to the Swiss model of republicanism, where sortition was a privileged tool for the stabilization of a “distributive aristocracy,” the concept coined by Aurèle Dupuis (2021) and which we previously applied to Venice. On both sides of the debate, simple elections proved dangerous. Power could easily become overly concentrated in the hands of a small elite, thus threatening the aristocratic equality of those who were deemed worthy of occupying office. In Bern, for example, while 139 families were part of the “regime,” in 1630, only 88 remained by 1701 (Weber 2018, p. 48). Similarly, quarrels were costly for the candidates who had to spend a lot of money to win over electors, sometimes to an excessive extent. “It is said that a certain man from a good household, living in Schwanden [in the Glarus canton], made his fortune and he was able to acquire meadows, but that through payments to citizens, he was ultimately reduced to the deepest poverty,” wrote the Glarus magistrate Johann Heinrich Tschudi (1714, quoted in Dupuis 2021, p. 73) in 1714. This was particularly true in cantons with Landsgemeinde, as the circle of electors was much bigger and it was legitimate for candidates to offer meals and drinks to ordinary citizens prior to an election. Introducing a moment of “tamed chance” in the electoral process did not imperil the elite’s control, because sortition came after shortlists were established through election or cooptation, and because the cost of buying a venal office was out of reach for most people. Sortition limited both the expense of electoral campaigns and the risk of transforming an aristocracy into a tiny oligarchy. It helped to reduce the exploitation of ordinary citizens, as officeholders no longer had to get “reimbursed” for the huge sums they spent on electoral campaigns. This was a design that seemed to allow for a “fair” means of distributing collective goods. At times, such as in Basel after a 1740 reform that expanded the circle of sortition candidates, the ruling class opened up somewhat, but this was not often the case in other cities (Dupuis 2021). In Bern, during the eighteenth century, a demand was made to draw lots for offices from a much larger circle of citizens, but the amendment did not pass (Weber 2018, p. 51). And in Geneva, when a popular faction led by Pierre Fatio (1662–1707)

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pleaded for the “restauration” of democracy at the beginning of the eighteenth century, they defended the role of the general assembly of the people, but neither representative government nor sortition were an issue (Barat 2018). As in France and Germany, this was also a way of symbolically recognizing the equal status of the aristocrats who contested the election process and avoiding wounding their honor. It was much less offensive to lose due to random selection than to a lack of support among one’s fellow citizens. As the Whig MP Abraham Stanyan (1714, quoted in Weber 2018, p. 56) wrote in 1714 after his travels in his Account of Switzerland, If any Man be prefer’d to one more deserving, ’tis Fortune’s doing, and no Body can be blamed; tho’it must be said for her Honour, that since she has had the Disposal of the Bailliages, it does not appear, that she has made a more unequal Distribution of them, than the Great Council did before this Establishment was introduced.

This argument was especially pertinent given that, for a long time, sortition largely took place in areas of Protestant churches, which were much less strict than their Roman Catholic counterparts in their opposition between sors divisoria and sors divinatoria. The idea that the drawing of lots revealed predestination was a more pervasive and long-lasting belief in Switzerland than in France. An official evaluation written in Bern in 1710 claimed that “the fear of God and the trust in His gracious providence [will] grow” with the device of sortition device (Weber 2018, p. 50). Letters exchanged by candidates expressed the same idea. “Let’s defer to the One who made the gold and silver out of these ballots, and who marked each color with the name of the one, for whom it is intended,” wrote the Bern physician, natural scientist, intellectual, and council member Albrecht von Haller (1708–1777) in 1771. “This is how the same hand traced from the beginning on each Germ the Fates of the Individual it represents,” responded his correspondent, the natural scientist and philosopher Charles Bonnet (1720–1793), also a member of the Geneva Council of the 200. Haller added more prosaically: “It is in my eyes the voice of God himself, more apparent than in human operations. The color of my ballot did not cost me a penny” (Weber 2018, pp. 59–60). In 1714, eight Basel magistrates, who were at the same time theologians or pastors, wrote a plaidoyer which was probably the most brilliant synthesis of the arguments in favor of sortition at that time (Anonymous 1720, quoted in Dupuis 2021, pp. 96ff): The sad experience showed us that everything one has previously tried to put an end to intrigues has had a very adverse effect, and … has happened to us as a dangerous illness. Palliative care would only make the disease … more dangerous … These harmful brigues ruin so many, turn away so many from their vocation and profession, transform so many from an honest man to a worthless thief. They hinder the good, squander large sums which could and should be very useful for the glory of God and the welfare of the fatherland. These intrigues will soon divide our regime into factions, transform a union of free citizens into an unbearable oligarchy, and thus almost entirely put down

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our old free and well-ordered form of government, equally divided among many… God is a gracious and patient God, He is still patient with us … He leaves us with a remedy … The means that the good God has left us to pull a large part of the mud out of our unholy intrigues, is the Lot … which we to a certain extent can use in our elections. The Lot, who is not governed by any man, but by God alone. The Lot, who looks at no particular person, who does not cling to any party, who does not let himself be won over by flattery or promises, who is not frightened by the threats of the mighty. The Lot, who does not take gifts or donations from anyone, who does not incur significant costs to the detriment of wife and children, who does not bankrupt anyone. The Lot, who does not make anyone a slave to a party … who, I say, does not completely exclude any honest man from all honors and offices, this unpassionate Lot, who, alone, can help us.

Four years later, sortition was introduced to Basel’s electoral system. During debates on the subject, Biblical arguments played an important role. The differences on this matter between the Old and the New Testament were acknowledged by one orator, while another named Mitz took the floor and, implicitly referring to the designation of Matthias as the twelfth Apostle, vividly exclaimed: “We are Christians and not Jews – read the Acts of the Apostles in the New Testament and you will to find that a judicious screening (vernünftige Wahl) [which reduced the field to only two approved and qualified candidates] preceded the drawing of lots” (Ochs 1797, p. 467, quoted in Mellina 2021, vol. 2, p. 109).17

Conclusion At the end of this brief survey, what lessons have we learned concerning sortition and politics in the Middle Ages and the Early Modern? We can outline four empirical conclusions. First, far from being an exceptional procedure, sortition was for centuries considered to be part of an acceptable system for choosing government officials. The rarity of sources and the present stage of historiography do not currently provide a systematic overview of its use worldwide. In the Western world, sortition played a major role in ancient Athens and Rome. It enjoyed an impressive resurgence in northern and central Italy in the Late Middle Ages. From the thirteenth century until at least the seventeenth century, the Italian communes were the main laboratory for political sortition. The aristocratic city of Venice provided a long-lasting model for all of Europe. Thanks to descriptions of the Venetian political system in several popular books and pamphlets, the former was influential throughout Europe (and, as we will see in Chapter 3, in North America as well). From the ­mid-fifteenth century to the seventeenth century, the Spanish Kingdoms constituted another political laboratory for sortition, albeit one that was not very influential beyond the Iberian-American world. The same can be said for Switzerland from the seventeenth century to the late eighteenth century. To a lesser extent, sortition also spread to England, France, Germany, and beyond. 17

I would like to thank Thomas Maissen for his commentary on this text.

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Second, sortition mostly developed in what we would now call a republican context: city-states, republics, independent communes, and autonomous cities or towns that formed part of larger kingdoms or empires, coprorations. In a minority of places, republican regimes never adopted selection by lot (this was perhaps the case in the Netherlands). Conversely, the multiplication of princely city-states in Italy during the Middle Ages and the Renaissance, as well as the rise of absolute monarchies in all Europe during the Early Modern period, was as inhospitable to sortition as it was to elections. Republicanism implied some level of self-government, in an independent or at least autonomous polity where active citizens exercise power rather than being ruled by an autocratic leader. Florentina libertas was one of the clearest ideological expressions of this ideal. The circle of operation of this self-government was, however, in most cases much smaller than it had been in ancient Athens. The medieval and Early Modern forms of republicanism had patrician, corporatist, aristocratic, and “popular” versions, but even most of the latter excluded the lower classes, women, and the inhabitants of dependent territories. There are not many cases where democratization took root and expanded the circle of sortition candidates significantly: Several Italian communes in the thirteenth century, Florence at the time of the Ciompi revolt in 1378–1382 and then again at the turn of the fifteenth and sixteenth centuries, a few smaller cities, a number of corporative bodies. During the seventeenth and eighteenth centuries, an oligarchizing process took place in most Europe, provoking popular revolts and providing fertile ground for future revolutions. Third, in most cases during this time period, sortition was combined with elections and cooptation, in a multistage system of compromise voting. Two basic models were developed: The Venetian one, where electoral committees were selected by lot before proceeding to the elections of officeholders, and the Florentine one, where a shortlist of candidates on which sortition would later be performed was elaborated by combining election and cooptation. The two models were hybridized in endless variations. Most often, the procedures were different according to the importance of the offices which had to be filled. In corporatist contexts, elections and sortition usually did not take place among a unified citizen body, but instead in the various corporate bodies whose association formed the political community. Fourth, the contingencies inherent to sortition existed, but they were confined to the greatest extent possible (Tanzini 2020). Selection by lot was only one moment in a much longer process and usually took place within relatively small circles. The first political taming of chance also included another element, which was common to Antiquity, the Middle Ages and the Early Modern period: From Athens in the fifth century bce to Basel in the eighteenth centuries ce, sortition was linked to a pragmatic (and not scientific) rationalization of the political system. Under specific conditions, especially after a crisis or when corruption and internal quarrels were too rampant, and according to specific methodologies, sortition seemed to offer a reasonable solution to the

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challenges faced by the political order. This intuition was credible: Athens, Rome, Venice, Florence, and Spain all employed sortition when they were at the height of their power. Specific tools were invented to facilitate it, from the Athenian kleroterion and the Roman urna versatilis to the Venetian ballotte and the instruments used in eighteenth-century Switzerland. The notion of political laboratories mentioned earlier is apt: Procedural schemas were discussed and elaborated again and again, with many transfers and hybridizations taking place and leading to new experiments. What were the explicit motivations of the practitioners who defended, introduced, or upheld selection by lot during the Middle Ages and the Early Modern period? The main argument in an overwhelming majority of cases clearly stemmed from a desire to better manage political conflicts. This had several dimensions: limiting the repercussions of struggles for power, prestige, and resources; softening the psychological blow for those who were not selected; reducing the intensity of practices which were morally condemnable or even illegal, such as factionalism and corruption; and lessening the negative impact of clientelist relations on the ideal of a united political community governed by the common good. In some places, the legitimacy of political sortition was reinforced by the idea that God was governing the drawing of lots, or at least that individuals were fated to be selected, while others were not. Relying on a religious justification for sortition had been rendered difficult in the Christian world by the Roman Catholic Church’s prohibition of divination and the influence of Aquinas’ distinction between sors divisoria and sors divinatoria, a distinction that drew a new boundary within a set of practices which had previously not been clearly defined. To claim that God resided behind sortition results was an easier feat in Protestant regions. In Catholic ones, with some exceptions, divine legitimation was at best indirect; that is, embodied in rituals where sortition took place and that were full of religious dimensions that were a symbolic guarantee of the fairness of the procedure. When sortition was defended, this was almost never in the name of democracy or in opposition to (aristocratic) elections. The famous Aristotelian dichotomy might be superficially mentioned by a few authors such as Leonardo Bruni or Gasparo Contarini, but it was not a widespread theory that would have served as a reference in everyday political life. The only exception was the short-lived debate in the Florentine Great Council at the turn of the fifteenth century. This is easily understandable, as sortition was almost always coupled with elections or cooptation, and as the circle within which selection by lot took place was usually quite limited. Most often, reformers did not focus on sortition as a democratic issue. When practitioners mentioned it, it was to defend a widening of the circle, a governo largo instead of a governo stretto, to use the Florentine notions. Conversely, it is true that some of the critiques levied against sortition stemmed from elitism. Beyond the strictly empirical arguments which claimed

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that sortition was not efficient at limiting conflict, the forming of cliques, or corruption – or that cheating could easily take place – one of the main refrains was that selection by lot was not an adequate means to choose the best individuals. Another argument, which became more frequent in the Early Modern period, was that chance was blind, and drawing lots was thus an irrational process. From this perspective, political sortition was viewed critically as a kind of lottery, which had no place in rational politics. A third argument, though first expressed by Guicciardini, only gained traction at the end of the eighteenth century: The idea that sortition was not compatible with the will of the people. From our vantage point in the twenty-first century, how can we analyze the logic governing the selection by lot of office-holders in the Middle Ages and the Early Modern period? The first conclusion we can draw is that the rationalization of sortition was not opposed to its ritualization: Quite to the contrary, in fact, as the rituals which framed sortition largely contributed to legitimizing the political order. Relying on the work of German sociologist Niklas Luhmann (2013), Barbara Stollberg-Rilinger has demonstrated the importance of procedural legitimacy in politics. The fact that neither elections nor sortition were generally able to modify the structural hierarchies of power in the Middle Ages and the Early Modern period has led many twenty-first-century observers to disdain electoral procedures or describe them as mere ideological instruments of the ruling class. On the contrary, however, Barbara Stollberg-Rilinger (2001) argues that procedures, when given real autonomy and consistency, have both an instrumental and a symbolic effect. Of course, while politics cannot be reduced to procedures alone, it is scarcely possible without the latter. Conversely, political procedures would be meaningless without the social practitioners who simultaneously promote and exploit them. In the Middle Ages and the Early Modern period, much like today, procedures were also tools that could be used to mount tactical coups, to disqualify rivals, or to encourage certain political tendencies. We must therefore be careful not to interpret the interactions authorized by such procedures as the direct application of their normative and constitutional ideals. It is nevertheless important to seriously consider their symbolic dimension. Procedures embody and manifest the normative frames upon which the legitimacy of the political order relies, and as well as the reservoirs of meaning on which both critics and apologists draw. They also possess their own logic, which goes beyond their various social, instrumental, and ideological uses. Procedures often function as rules of the game to which one must refer in last instance to legitimate a decision. This was as true in the past as with the constitutions of present representative governments – we have seen to what extent the subversion of procedures can provoke trauma in the wake of the 2020 US presidential election. A major feature of republican electoral procedures in the Middle Ages and the Early Modern period was that they reflected a consensus-based political order that was ideally oriented towards the common good, one where the plurality of interests was viewed negatively and internal conflicts were condemned

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(Stollberg-Rilinger 2001, p. 24). On the ground, however, actual practices fell short of corresponding to this noble ideal. Struggles among factions and elite families persisted, with a view to obtaining access to the honors and the public goods related with offices. But to a certain extent, such conflicts were contained and quarrels were channeled. Sortition was an important factor in this regard: It helped the political community to transcend the divisions caused by factionalism, patronage, and corruption. The first taming of chance, coupled with rotating mandates, contributed at least symbolically to a peaceful and orderly distribution of power within the community. Moreover, the republican ideal was a commonwealth where citizens enjoyed equal status and could actively take part in the decision-making process. Sortition created a group of peers within which participants were formally equal, and which by the same token was an exclusive club, keeping out those who were not considered worth of occupying public offices. The aim of introducing selection by lot “was not democratization, but rather the reduction of conflicts and a better allocation of resources among those families who were already part of the government, and thus the stabilization of the aristocratic republic” (Weber 2018, p. 51). It is because sortition operated among a small (or relatively small) circle that it was compatible with the meritocratic claim that the best should govern. As Aurèle Dupuis (2021) explains, lot was the instrument of “distributive aristocracies.” Sortition was also associated with a specific concept of representation. A few decades after the resurgence of selection by lot in Europe, a new political and juridical concept, repraesentatio, was invented. Thanks to this invention, a representative entity could now take binding decisions on behalf of and for the community it represented. However, the kind of representation that occurred in communes, the Church, or the Holy Roman Empire’s College of Electors was not the mandate-representation which was theorized by Bartolus de Saxoferrato (1313–1356) or Baldus de Ubaldis (1327–1400), and which would take center stage much later with the American and French Revolutions. Political representation was not a means by which a principal could give an agent the legal right to speak or decide on his behalf (for example through elections). In the medieval context, personam alicuius repraesentare, acting for another person, was crucial in private law but secondary in public law. In the political sphere, identity-representation, repraesentatio identitatis, conceptualized by Marsilius of Padua (1275–1342) and John of Segovia (1395–1473), was the primary concept utilized. To a certain extent, it implied a certain degree of identification between the representative and the group being represented: The former was an embodiment of the latter. The representative engaged in identity-representation thus did not require formal authorization from the represented. Sortition had an elective affinity with this form of representation, as did the various forms of “compromise voting” (Keller 2014) and all the selection mechanisms that combined election, cooptation, and sortition. The aim was less for a body to delegate its authority than to constitute the part which would best embody the

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whole political community (Hofmann 2003). This understanding of representation remained prevalent until the French and American Revolutions (StollbergRilinger 1999; Hayat, Péneau and Sintomer 2018; 2020). On the whole, the historical experiments we have examined in Chapters 1 and 2 illustrate that selection by lot had a wide range of political applications over the years. From the perspective of historical sociology, this preliminary analysis reveals three potential ideal-types, which were often combined in concrete historical cases but must be analytically differentiated. 1) As in Antiquity, sortition can possess a supernatural or religious dimension in politics, when it is thought to help the fulfillment of divine will or fate. 2) Drawing lots can also constitute an impartial conflict-resolution procedure, especially in the case of corruption, crisis, and intense rivalry for positions of power. 3) And, finally, sortition can ensure equal opportunity of access to political or judicial offices. These three different dimensions of sortition generally intersect in real life, and the last two are often coupled in republican self-government, taking either the form of distributive aristocracies (as was largely the case throughout the Middle Ages and the Early Modern era) or distributive democracies (as was the case in Athens and in some Italian communes during specific periods). Sortition’s potential for distributive democracy has proven fertile ground for the anthropological myth of the king selected by lot and murdered after a short reign. The question we posed at the beginning of Chapter 1 – how was selection by lot used from Antiquity to the Early Modern period – has now received a first set of answers. We must now tackle a second question. What explains the fact that sortition as a political instrument disappeared almost completely with the emergence of modern representative governments, at the time of the French and American Revolutions?

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3 The Disappearance of Sortition in Politics A Historical Enigma

From the English revolutions in the sixteenth century to the American and French revolutions at the end of the eighteenth century, a new political order emerged, one that was associated with the rise of representative government. During this period, no major political movement or party called for the use of sortition as a political device. In a few regions, such as Switzerland or under the Spanish Empire during the Peninsular War against the French, the legacy of sortition persisted while being reformed to meet new demands. Even in those areas, however, the practice ultimately disappeared within a few years or, at most, decades. In other countries, selection by lot vanished almost altogether from politics, remaining only in marginal cases such as when deciding between two candidates who had received the exact same number of winning votes in an election. Among other consequences, the gradual institutionalization of representative government meant that sortition was seen as a vestige of the remote past. The transition from property-qualified voting to male suffrage and then to universal suffrage – an evolution which entailed a real democratization of the political system – did not restore the popularity of sortition for the selection of government officials. Bernard Manin (1997) was the first to highlight this major break in a long tradition of republican thought and practice – a break so forgotten that ­twenty-first-century elected officials have often screamed bloody murder when anyone has suggested reintroducing selection by lot. Manin’s explication of this shift is twofold. First, until the decades immediately preceding the French and American revolutions, those who pondered questions of governance would have taken it for granted that selection by lot was more democratic and election was more aristocratic. Yet in the eighteenth century, the Founding Fathers wanted an elective aristocracy, not a democracy; they thus unanimously opted for election when it came to laying the institutional foundations for the selection of government officials. Manin’s second argument is that the rise of 125

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natural law and the notion of consent made sortition less legitimate, instead offering fertile ground for elections to flourish. Twenty-first-century advocates of sortition have often claimed that there is a historical justification for using selection by lot in the name of “real” democracy. However, the accounts we presented in Chapters 1 and 2 challenge the validity of this narrative, as historically, sortition was largely associated with distributive aristocracy rather than with democracy on the eve of the American and French revolutions. In addition, this argument does not explain why democratic actors did not call for the adoption of selection by lot as a privileged mechanism. This situation seems all the stranger if we consider that eighteenth-century revolutionaries were imbued with the culture of Antiquity and the republican tradition – many had read Aristotle, Plato, Livy, and Machiavelli – and were otherwise determined to topple the aristocracy of the Ancient Regime. In addition, political mechanisms for drawing lots already existed, as evidenced by the Swiss historical situation we analyzed in Chapter 2. Moreover, sortition was a crucial tool for constituting juries, whose importance massively expanded after the aforementioned revolutions. So, the mystery remains: Why did sortition rapidly disappear after centuries of widespread practice, at a time when new republican demands were gaining more traction than ever? How can one account for the total eclipse of sortition in politics?

A Great Divergence Between China and the West This question is all the more puzzling if we consider that in China, the political use of sortition experienced a remarkable lifespan from 1594 to 1911. In a brilliant overview, Pierre-Etienne Will (2020) has shown that drawing lots became a decisive part of China’s political system in the late sixteenth century, when it enabled the distribution of positions among higher-ranking officials selected through imperial examinations. The drawing of lots persisted until the beginning of the twentieth century, long after it had disappeared from politics in the West. From this perspective, we can speak of a “great divergence” between China and the West, to paraphrase an expression found in studies of economic history (Pomeranz 2001). How can we make sense of this development? Imperial Examinations and Sortition in China (1594–1911) The current state of historiography seems to suggest that prior to 1594 (i.e., a few decades before the end of the Ming Dynasty, 1368–1644), the sortition of magistrates was performed occasionally but not systematically. It was primarily in the realm of divination that there was a strong push to rationalize the use of chance. The drawing of lots (拈鬮) to select officials from lists of qualified candidates is nonetheless attested to in ancient sources, notably in the Zhejiang province during the Yuan dynasty (1279–1368) and at the beginning of the Ming dynasty. Later, sortition was intermittently adopted

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to select high-ranking secretaries and some ministerial officials, as well as to assign imperial students to the various areas where they were to complete their apprenticeships (Will 2020). What is likely the most famous example of political sortition in China can be found in Water Margin (水浒传), a ­fourteenth-century Chinese novel attributed to Shi Nai’an (施耐庵). Considered to be one of the “Four Great Classic Novels” of ancient Chinese literature, the novel was written in vernacular Chinese rather than classical Chinese. It was based on the exploits of the outlaw Song Jiang (宋江) and his 108 companions, the 36 “Heavenly Spirits” (三十六天罡) and the 72 “Earthly Demons” (七十二 地煞). This outlaw group was active in the Huainan region in the center-north of Anhui province, in Eastern China, and ultimately surrendered to the Song government in 1121. The novel tells the story of how Song Jiang became the chief of Mount Liang (梁山), the insurgent stronghold, after the death of Chao Gai (晁盖), the group’s first leader. In order to choose the latter’s successor, the rebels decided to proceed using a combination of sortition and military virtue. Song Jiang and another outlaw, Lu Junyi (卢俊义), randomly drew pieces of paper to choose their battlefields against enemies. The first to win would become the new leader. The “mandate of Heaven” (天命), that is, destiny, gave Song Jiang the Dong Ping prefecture to fight. He won first and thus became the group’s new chief (Shī 2010, chapter LXIX). Such examples, and the fact that sortition had long been an important component of Chinese popular culture, indicate that drawing lots (cheqian, 掣籤) was both a tradition and a technical resource, one which Sun Peiyang (孫丕 揚, 1532–1614) could exploit when he was at the helm of the Ministry of Personnel in 1594 and radically reformed the appointing of higher-ranking civil servants across the various provinces of the Empire. At the time, China was the world’s economic and political leader. Its state apparatus was unparalleled: It was structured by the examination-based recruitment of senior and junior civil servants. As we mentioned in Chapter 1, this system would only be imported into the West much later. Moreover, the Chinese state had for centuries been based around a prefectural system, according to which the provinces’ governors and other high-ranking civil servants were sent by the Emperor to places from which they did not hail, in order to avoid the formation of lasting patronage relations or cliques. For the same reason, civil servants had to change positions after a couple of years. Moreover, there was no hereditary aristocracy. This system was clearly modern, quite different from feudal structures and well ahead of its European counterparts. The break with feudalism was also apparent in the Confucian ideal that constituted the official ideology of the regime. Rulers, and the Emperor himself, were legitimate insofar they followed the “mandate of Heaven” (tiānmìng, 天 命). Traditionally, the Chinese concept of Heaven did not include a personal god with autonomous power, and the “mandate” in question referred to a destiny that was harmoniously inserted into the cosmic order to which all humans were subjected. The Emperor had to embody human virtues and to follow the

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cosmic order (to follow the way, or Dao [道], in the Taoist tradition). When a ruler “lost his way,” a situation that manifested in signs such as natural disasters and human uprisings, by the same token he lost his legitimacy. The mandate of Heaven could be understood through the people’s feelings, and the ruler had to govern with their welfare in mind. Hence, this ideology was antithetical to self-government, a conception of human rights that could exist in opposition to the state, or to popular sovereignty. It implied instead a “benevolent ruler” who respected the cosmic order. However, state Confucianism had some parallels with Western republicanism: It formally promoted officials’ devotion to the common good as embodied by the state and to the welfare of the people, and was opposed to factions, clientelism, corruption, and special interests. As in the Western world, the political reality was far from the ideal. While it was highly effective compared to its Western counterparts, the Chinese state was nonetheless undermined by court intrigue, corruption, and a wide variety of political struggles. Public offices were a major source of honor, but also of profit, and competition was fierce to get the best ones (the same was also true at the provincial and sub-provincial levels). Amidst such a pernicious atmosphere at the highest levels, Sun Peiyang endeavored to radically modify how offices were filled. Rather than conserving the traditional system that left such decisions up to the Ministry of Personnel, he decided that positions would be filled by drawing lots (chequian, 掣籤). The reform was justified in the name of the equity and impartiality of decision making (Will 2020, pp. 74ff). It was therefore a question of fighting against the disorders that stemmed from corruption and personal or factional struggles, as such disorders were harmful to the state and ran counter to the ideal harmony that the latter was supposed to respect and promote. Sun’s motivations were explained as follows (Shen 1997, pp. 288–289, quoted in Will 2020, p. 309): The method of drawing lots at the Ministry of Personnel was started recently by President Sun Fuping. It did not exist either in ancient or modern times. Sun came to power thanks to his enduring prestige; he and recently appointed Premier Zhang [Wei] were looking for a pretext to pick a quarrel with each other. He was concerned about those “mouseholes” in the appointment system which were difficult to close up due to Zhang’s control. Thereupon he made this proposal, leaving the entire responsibility [of appointing officials] to pieces of dry bamboo. When this method was first implemented, the officials in charge, being exempted from the responsibility of evaluating [the candidates], were happy not to have to ponder [the appointments]; and the new appointees, accepting the results as a decree of Heaven, were at peace with themselves. The frustration and resentment diminished somewhat. This was altogether a good plan.

A strong cosmogonic dimension thus contributed to the legitimacy of sortition in China: The drawing of lots was supposed to reflect the mandate of Heaven. As we have noticed earlier, this did not refer to the intervention of an individual deity, per se, but rather to a conception of fate that assigned every individual their correct place in the cosmic order. It is striking that in a context that was quite different from – and more modern than – its European

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counterparts at the same time, the main arguments used to introduce sortition were in fact quite similar. Sortition was proposed as a means to limit intrigues and corruption, to facilitate the acceptance of results by candidates (given that an impartial procedure had been validated by Heaven), and to reduce quarrels. Similarly, sortition in China also took place among a narrow circle of persons who had previously been considered worthy of becoming officeholders. The main difference was the selection mechanism according to which this recognition took place: Imperial examinations rather than the combination of cooptation and election that characterized European systems. Practically speaking, Chinese sortition took place in two stages: First, the name of each candidate was placed on a little stick, which was in turn placed in a tube (probably made of bamboo), then the names were drawn one after another and each person nominated then had to draw, in a second tube, the location of his appointment (note that sortition using small sticks was also a classic divination practice in China). The entire process was public; during the Qing dynasty, the drawing took place in front of the Gate of Heavenly Peace. Depending on the period in question, sortition could be performed in accordance with the hierarchical level of candidates (which in turn depended on the type of examination passed) and the job being filled. This system was successful enough to persist unchanged for more than three centuries, until the last days of the empire. However, the reforms enacted by Sun soon met with strong opposition. There were three main arguments levied against sortition, including by those who stood the most to lose from the new system; these arguments were both instrumental and substantial (Will 2020). The first was that the drawing of lots could be manipulated, since the procedure’s complexity made it opaque and provided the opportunity for fraud to be committed. As in Venice and elsewhere, rumors swirled that such or such nomination had been rigged: A number of famous cases where corruption was indeed discovered and severely punished only bolstered these fears.1 The second argument was pragmatic: Some detractors claimed that sortition did not sufficiently account for the major regional differences throughout the Chinese empire. The previous appointment system used to send officials to a region in which their family did not live, but which was similar enough to their birthplace that they would still understand the language and customs. Drawing lots to fill vacant offices could not take this particular issue into account. Although the regional problem seems to have been solved after a while, it pointed to a more fundamental critique, based on efficiency and merit. Drawing lots meant going against “the tradition of selecting the right man for the right post according to talent and merit” (Goodrich and Fang 1976, quoted in Will 2020, p. 308). This argument was made by the influential statesman Yu Shenxing (于慎行 1545–1608): 1

It is interesting that the intrigues of a number of twentieth-century novels which focus on sortition – including Philip K. Dick (1955)and Gérard Klein (1968) – play with the possibility of manipulating the procedure.

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As far as the greater or lesser talents of men are concerned, there is in each case an appropriate [posting]. When one considers their status, there is in each case [a position] that suits them. When one considers the difficulty of a place, there exists in each case the right man. When one considers the distance [between native place and posting], there are in each case criteria to follow. But now all of this is left to chance … Since ancient times I have not heard of such a method … Today one always entrusts [magistracies] to students who have just left their commoner clothes behind. Among them, less than one or two out of ten possess a sound knowledge of administrative matters, while eight or nine are weak and incompetent men. Besides, people are not selected according to their talents: the method of selection and appointment consists in drawing a chip or casting a hook. This is how the government of districts a hundred li wide [the equivalent of a county] is entrusted to mediocre and talentless persons. Not only does it harm the people, in the end it also harms the officials. As a result, localities that are burdensome and difficult to govern become traps for their officials; and while they succeed each other year after year, the resulting abuses grow more and more serious, to the point where it becomes impossible to correct them. (Gu 1834, 8:23a, quoted in Will 2020, pp. 317–318).

The meritocratic argument against sortition would be repeated numerous times in China over the course of the following decades; it also found some parallels in Europe. Despite such criticisms, which meant that the Ministry of Personnel was routinely characterized as the “Ministry of Chance,” the practice of drawing lots was only suspended briefly, when Zhao Nanxing (1550–1628) was appointed head of the Ministry in 1623. The practice was even expanded to posts of lesser importance and for military officers at the end of the Ming dynasty. However, as was the case in Athens, some positions were not drawn by lot if they were considered of special importance, especially in wartime or other emergencies. Contrary to Athens, in China these special positions were filled by imperial decree rather than by election. When the Ming dynasty was succeeded by the Manchu Qing dynasty (1644–1911), the new leaders adopted sortition, hoping to contain the internal struggles among high-ranking (and mostly Han Chinese) civil servants. It seems that a round of evaluation took place before or after the drawing of lots, thus adding a new step to the process. Sortition became routine, with criticism fading into the background and completely disappearing by the beginning of the eighteenth century. Describing the procedure, a magistrate handbook written by Sun Hong (孫鋐) (1702, 1: 4b–5a, quoted in Will 2020, p. 329) in 1702 probably reflected an opinion more widely shared: For first appointments and re-appointments, each candidate draws his lot himself. For promotions, the officials of the department draw on behalf of the candidates. Before the drawing, officials take the lots they have sealed and shuffle them inside the box. At the moment of the drawing, the clerk takes the lot that has been drawn and publicly tears up the piece of paper [bearing the name of the post that has been selected]. The president in person writes down in the register which candidate has drawn which lot. This method of appointment is perfectly fair and there is not the slightest abuse. As for [the claim] that it may be possible to “examine” the lots inside the box, just think for a minute: a tall box is placed on a very high table; then, the lots inside the box are shorter than it by several inches; even standing on tiptoes and dropping one’s hand, one can

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barely reach the lots inside the box: how could this permit fraudulently picking up [the coveted lot]? Besides, the minister and deputy minister preside sternly from above, and the personnel of the Department are standing beside you, watching. When the names are called and the lots are drawn, the slightest hesitation is immediately greeted with angry shouts. That is why all this talk about bribing and intrigues is totally useless.

Administrative manuals accepted sortition as a given, thanks to its usefulness at conflict mitigation. It would only disappear with the fall of the empire in 1911. The uniqueness of China’s variant of sortition was that it combined chance with examination, rather than with election or cooption. This was a kind of distributive imperial bureaucracy, rather than a distributive aristocracy. Under this guise, sortition with Chinese characteristics was one of the most durable incarnations of political sortition. A Break in the Western Republican Tradition In the West, what did the philosophers who inspired the new political theories and the revolutions of the seventeenth and eighteenth centuries think about political sortition? Compared to the Ancients, they did not reflect much on this device. Some of them mentioned selection by lot but only granted it a limited scope. As we have seen, Niccolò Machiavelli (1469–1527) and Francesco Guicciardini (1483–1540) were rather skeptical on the matter. Thomas Hobbes (1588–1679) correctly observed that lots could be drawn in the political sphere in both aristocratic and democratic systems, but his support for absolute monarchy led him to reject both forms. John Locke (1632–1704) was a theoretician of political consent, not of sortition. At a time when sortition was a common practice among the Jewish community of the Dutch Republic, Baruch Spinoza (1632–1677) described how drawing lots had been practiced by the ancient Hebrews (Spinoza 1670, XVII). Relying upon concrete cases in his time, and especially upon the Venetian Republic and the Kingdom of Aragon, Spinoza (1675–1676, VII, 30, VIII, 23ff) described sortition as a procedure that, when combined with elections and cooption, was aristocratic in nature. Nevertheless, his arguments remained quite allusive. James Harrington (1611–1677), who lived during the time of Cromwell (1599–1658) and who was one of the authors who contributed the most to the dissemination of republican ideas across the English-speaking world, had a more nuanced position on sortition. He published a short pamphlet titled The Manner and Use of the Ballot (Harrington 1977, pp. 361–368), which was reprinted in several editions and later incorporated into the main editions of Harrington’s opus magnum, The Commonwealth of Oceana (1992), originally published in 1656.2 Examining the Venetian model, Harrington objected to the exclusive use of sortition on the grounds that it impeded the selection of a country’s “natural aristocracy.” He advocated for a mixed system of designation 2

Many thanks to Raphaël Barat for drawing my attention to this point.

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(which he called the “ballot”) that combined the Venetian election model (“suffrage”) with sortition (“lot”), according to a highly codified procedure involving “ballotines.” The latter’s role was not, however, to extract balls or slips of paper, but rather to handle the boxes in which councilors placed their ballots and to empty those boxes into basins lined up for that sole purpose. It is notable that the figure of the child drawing lots could thus be combined with plurality voting. In fact, in Venice, the role of the ballottini was to draw lots but also, more generally speaking, to collect votes. As we have seen in the previous chapter, the two procedures were linked rather than opposed. It is thus unsurprising that Harrigton, an ardent admirer of the Venetian system, followed this tradition. In both the seventeenth and eighteenth centuries, influenced by the work of James Harrington, various English colonies in North America attempted to introduce Venetian-style selection by lot for members of electoral committees. William Penn (1644–1718) made such a proposal in his “Fundamental Constitution” for East New Jersey. However, this effort, like many others in the colonies, fell short of being implemented (Dowlen 2008, pp. 152ff). As far as sortition is concerned, Montesquieu (1689–1755) and Rousseau (1712–1778) provided a more lasting legacy. During the revolutionary era, these thinkers were important figures; they are now credited with opposing democracy and sortition to aristocracy and elections. They were thus part of an Aristotelian line which persisted until the American and French revolutions, when the drawing of lots was abandoned in favor of representative governments designed as elective aristocracies. Although this interpretation of Montesquieu and Rousseau has been repeated many times, a more nuanced analysis of their writings is necessary. In The Spirit of the Laws (first published in French in 1748), Montesquieu’s main argument on the issue is the following (Montesquieu 1949, II: 2): The suffrage by lot is natural to democracy, as that by choice is to aristocracy. The suffrage by lot is a method of electing that offends no one; but animates each citizen with the pleasing hope of serving his country. Yet, as this method is in itself defective, it has been the endeavor of the most eminent legislators to regulate and amend it. Solon made a law, at Athens, that military employments should be conferred by choice; but that senators and judges should be elected by lot. The same legislator ordained, that civil magistracies attended with great expense should be given by choice, and the others by lot. In order, however, to amend the suffrage by lot, he made a rule, that none but those who presented themselves should be elected; that the person elected should be examined by judges, and that everyone should have a right to accuse him if he were unworthy of the office: this participated at the same time of the suffrage by lot, and of that by choice. When the time of their magistracy was expired, they were obliged to submit to another judgement in regard to their conduct. Persons utterly unqualified must have been extremely backward in giving in their names to be drawn by lot.

In these lines, Montesquieu recalls the pacifying character of fate, which as we have seen was widely accepted as common sense in the Early Modern period. Explaining the nature of democracy, he refers exclusively to Ancient

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Greece, rehashing several of Aristotle’s ideas without much innovation. What is striking is that Montesquieu does not engage in a complex comparative historical sociology, as he does on other issues. What is lacking is a broader reflection which would have compared sortition in Athenian democracy with distributive aristocracies in the Early Modern period. Ultimately, Montesquieu (1949, II.3) does not comprehend the real politics of his time when he writes, discussing the nature of aristocracy, that: They do not vote here by lot; for this would be productive of inconveniencies only. And indeed, in a government where the most mortifying distinctions are already established, though they were to be chosen by lot, still they would not cease to be odious: it is the nobleman they envy, and not the magistrate.

By no means a democrat, Montesquieu emphasizes that the Athenian practice of drawing lots within a closed group of self-selected citizens helped to reduce the risk that incompetent individuals might assume positions of responsibility. He therefore argues for representative government and condemns radical democracy, as “most citizens have sufficient abilities to choose, though unqualified to be chosen, so the people, though capable of calling others to an account for their administration, are incapable of conducting the administration themselves” (Montesquieu 1949, II: 2). Rousseau (1712–1718) echoed Montesquieu with a somewhat conformist understanding of sortition and democracy when he agreed, referencing the author of The Spirit of Laws, that “the drawing of lots is more in the nature of democracy.” He added than in a true democracy, “the magistracy is not an advantage but a burdensome responsibility,” and that there is no reason to select one person instead of another. Rousseau thus flipped the argument according to which selection by lot was an impartial procedure to resolve conflicts that arose through power struggles. In his eyes, the method could also be employed in a democracy for compulsory appointment to certain positions: “As the condition is equal for all, and the choice is not dependent on any human will, there is no particular application that alters the universality of the law.” (Rousseau 1978, IV: 3). However, this system was quickly rejected, as a real democracy was deemed impossible (Rousseau 1978, III: 4, IV: 3): Were there a people of Gods, it would govern itself democratically. Such a perfect government is not suited to men … Election by lot would have few disadvantages in a real democracy, in which, as equality would everywhere exist in morals and talents as well as in principles and fortunes, it would become almost a matter of indifference who was chosen. But I have already said that a real democracy is only an ideal.

Rousseau adds that a pure aristocracy should be elective, selecting officials from among all citizens rather than from a hereditary caste. In a democracy, the people are at once sovereign (legislature) and ruler (executive). However, the actions of the executive are always associated with specific objectives, and the confusion this brings about threatens to impair the universality of the law.

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Therefore, democratic self-government is a problem, and it is better to entrust government to a few individuals. This has a further advantage, as it is easier to deliberate within a small group. Last but not least, it is important that the wisest be selected from among all citizens to govern. Therefore, an elective aristocracy is the best conceivable system (Rousseau 1978, III: 5): in popular government, all the citizens are born magistrates; but here magistracy is confined to a few, who become such only by election. By this means uprightness, understanding, experience and all other claims to preeminence and public esteem become so many further guarantees of wise government … Assemblies are more easily held, affairs better discussed and carried out with more order and diligence, and the credit of the State is better sustained abroad by venerable senators than by a multitude that is unknown or despised.

Like Montesquieu, Rousseau mentions in passing the pacifying effect of selection by lot, but he does not really discuss what had previously been the main argument for sortition in the Middle Ages and the Early Modern period. This is somewhat strange, insofar as Rousseau upholds a republican ideal that dismisses factions and prizes the general interest above all. Unlike Montesquieu, he analyzes the combination of lot and choice in Venice, but he does not consider the theoretical and empirical possibility of a distributive aristocracy. Implicitly following Contarini, he argues that the Great Council is in fact the people of Venice; acknowledges the presence of a large faction of impoverished patricians; and considers the Most Serene Republic as an emblem of mixed government, where sortition represents the democratic dimension and election the aristocratic one. Ultimately, Rousseau sees sortition as an anachronistic device. Meanwhile, facing the crisis of the ruling class and growing conflicts between the upper and lower classes, the Spanish Bourbons had reintroduced insaculación. As we have seen, by the beginning of the eighteenth century, this procedure had been eliminated throughout most of Spain. It had endured only in a few scattered pockets, particularly in the Basque country. Between the onset of the French Revolution and the Peninsular War in 1808, insaculación was reimplemented in many cities in the provinces of Catalonia and Valencia. The official justifications were the same as those proffered in previous centuries: fighting against the monopolization of power by a small group, limiting electoral fraud, reducing corruption, and appeasing internal conflicts. Some fundamental aspects of the ritual were also rediscovered, such as the writing down of names on redolinos, the use of purses and urns, and the handpicking of names by an innocent child. The political and social significance of insaculación had changed, however. It was no longer a question of establishing an organic and well-regulated connection between the different social groups that constituted local, community, and municipal power. The king’s delegates were charged with drafting a list of individuals whose names were placed in the purses, and power was thus conferred in turns to the small group of the regime’s supporters. Twenty or thirty people per city thus held public office

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in rotation, exerting absolute control over politics (Torras i Ribé 1983a, p. 357ff). This design resembled a distributive oligarchy more than a distributive aristocracy. Although this method of selection was gradually abandoned in the nineteenth century, it left a strong political imprint. As late as 1843, some conservative theorists touted its merits in opposition to the liberal electoral system based on male census-based suffrage that was becoming widespread (Ferrer 1843, quoted in Torras i Ribé, 1983a, pp. 369–370). Sortition was used by the groups that fought the French occupation of Spain between 1808 and 1810, as well as to designate representatives for the American colonies (Guerra 2009). During the uprising, the colonial territory of New Spain (now Mexico) was invited to send delegates to the capital’s Supreme Central Junta. They embarked on this procedure by combining election and selection by lot, the latter being called upon to avoid the “spirit of partisanship that tended to dominate in such cases” and to “ensure the intervention of Providence in matters of human choice, as the ultimate guarantee of the social order” (Guerra 2009, p. 192). The fourteen or fifteen provinces of New Spain each selected a representative. Three of those were then nominated by the Viceroy and the Supreme Court (the Real Audiencia) to form part of a limited list. Once this list was completed, the names on it were written down on slips of paper and dropped into an urn. A young boy named Florencio Ruiz proceeded to extract one of these slips. The paper selected had the name Miguel de Lardizábal written on it: The latter thus became the Mexican representative to the Supreme Central Junta (Ávila 1999, p. 85, quoted in Serafín Castro 2019, p. 288). However, sortition was not mentioned in the Spanish Constitution of 1812 and Mexico, once independent, only practiced sortition as a tiebreaking device when no candidate in an election managed to obtain an absolute majority (Serafin Castro, 2019). In these episodes, the modalities of sortition were mostly aligned with Ancient Regime practices in terms of justification, procedures, and rituals. The question remains: Why was selection by lot relegated to the trash heap of history? Why have no durable political parties advocated for sortition, either from the perspective of distributive aristocracy and or from that of democratic self-government?

Selection by Lot in Popular Juries What makes this enigma even more puzzling is that although selection by lot was gradually abandoned as a political device, it became increasingly more common in the judiciary with the widespread adoption of juries. As we saw in Chapter 1, courts with randomly selected juries were a key element in ancient Athens, where their powers were quite extensive. The same was at least partially true in several other ancient cities, including Rome. After centuries of absence, this practice was reinstated in Europe. Why did sortition disappear from the political stage while at the same time, it established deep and lasting roots in the judiciary? Montesquieu (1949, XI.6, translation modified), while dismissing sortition in politics, wrote:

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“the judiciary power ought not to be given to a standing senate; it should be exercised by persons drawn from the body of the people, at certain times of the year, and consistently with a form and manner prescribed by law, in order to erect a tribunal that should last only so long as necessity requires.” Rousseau agreed on this matter with The Spirit of the Laws and added that although elections where adequate for selecting officeholders for positions that require “special talents, such as military posts,” drawing lots was legitimate “for cases, such as judicial offices, in which good sense, justice, and integrity are enough, because in a State that is well constituted, these qualities are common to all the citizens” (Rousseau 1978, IV: 3). How to make sense of this contradiction? Juries in the Middle Ages and Early Modern Period Torture was officially abolished as a method of uncovering the truth during the Middle Ages in England, and due to the Scandinavian influence which followed the Norman invasion, the formation of nonprofessional juries gradually became rooted in English common law. The Constitutions of Clarendon (1164) prescribed a jury “of twelve sworn men to decide any dispute between laymen and clergy on the question whether land was subject to lay or clerical tenure” (Levy 1999, p. 11). Two years later, Henry II established the foundations of a grand jury; the reform was recodified in 1176 by the Assize of Northampton. The basis for investigative justice, rather than inquisitorial justice, was thus created. Trial juries were first adopted in civil matters during the twelfth century and were well established by the time the Magna Carta (1215) was drafted and declared that subjects had the right to be judged by an independent jury that would decide based on argumentative debate and not on the outcome of an inquisitorial process. During the thirteenth century, the petty jury was created for criminal proceedings and by the middle of the fifteenth century the procedure had acquired the main characteristics that it possesses today. The development of juries composed of lay judges thus became firmly anchored in common law, with juries posing the most significant obstacle to the development of the Inquisition and its methods. The role of juries became truly enshrined in the English system after 1641. Over the next few centuries juries were exported across the Atlantic and were, for example, explicitly recognized in the constitution of the Carolinas adopted in 1669, which was strongly influenced by the writings of John Locke (Levy 1999). The colonies there forewent selection by lot in the political sphere but, swayed by the Venetian legacy and the work of theorists indebted to James Harrington, used it for the appointment of juries. South Carolina adopted sortition for juries in 1682, stipulating that the names of all citizens entitled to become jurors should be written on slips of paper, placed in an urn, and drawn at random by a child selected for the purpose (Sirmans 1966, p. 37, quoted in Dowlen 2008, p. 155). William Penn had a similar procedure introduced in Pennsylvania in 1683. Back in England, the jury system was strongly reaffirmed during the revolutions of the seventeenth century, given that it was viewed as a necessary protection against the

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arbitrary power of the state and a guarantee that all individuals would be fairly judged by their peers. In March 1730, the principle of random jury selection was institutionalized in England through the Bill for Better Regulation of Juries. In 1731, South Carolina adopted a law confirming the “old practices” and imposing random jury selection. The method was considered to be “fair, neutral, and impartial,” a guarantee of the smooth operation of justice. Harkening back to Venetian traditions, it was once again a young boy (under 10 years old) who would randomly select the names of the future jury members, before these were announced accompanied by trumpet fanfare in the streets of Charleston. Massachusetts, New York, Connecticut, and New Hampshire adopted this model between 1736 and 1758, and New Jersey and Maryland joined in between American Independence and 1800 (Dowlen 2008, pp. 152–165, 172–178). On the eve of the nineteenth century, Sir William Blackstone (1723–1780) described the theory behind the jury’s legitimacy. In his Commentaries on the Laws of England, he wrote: “the founders of the English laws have with excellent forecast contrived … that the truth of every accusation … should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen, and superior to all suspicion” (Blackstone 1765–1769, IV, p. 343). A few lines later he added: “A competent number of sensible and upright jurymen, chosen by lot among those of the middle rank, will be found [to be] the best investigators of truth, and the surest guardians of public justice” (Blackstone 1765–1769, quoted in Levy 1999, pp. 62–63). English trial juries, whose principles were widely known thanks to a translation of William Blackstone’s book, were also the chief model for the jury d’assises (criminal trial jury) established in revolutionary France. In fact, members of the Constituent Assembly consulted English legal theorists, a source that proved more instructive than distant references to antiquity or the feudal judiciary. The great revolutions of the eighteenth century strengthened the role of popular juries in the United States and introduced them to France and several other European countries. The Anglo-American Model The main characteristic of the English model was of course that it was a common law system. Potential jurors were appointed from a list of property-owners with a certain level of income (approximately the top third of the population over the age of majority). The local sheriff chose forty-eight from the list, using a variety of criteria, and these names were then written on slips of paper and placed in an urn. The first twelve names to be drawn established the jury’s composition. This two-stage procedure  – identifying suitable persons, then selecting individuals by lot from the shortlist – was reminiscent of Early Modern political practices. It would become an almost permanent feature of juries until the last third of the twentieth century, even if the selection pools, the criteria for inclusion in the list, and the exact selection procedures would vary considerably by period and country. The principle of trial by one’s peers

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rather than by officials or representatives of the state therefore became established, though the definition of what constituted one’s “peers” would remain somewhat ambiguous. The trial jury was meant to reach decisions by relying on the evidence and arguments presented in court, but without proof in the medieval sense of the term (which had led to the establishment of torture). Jurors ultimately gave their verdict according to what they believed to be true. The third element in this institution was the division of labor between the jurors and the professional judge, who in theory had the job of identifying the legal framework for the case and, when applicable, applying a sentence once the jury had examined the facts and pronounced the defendant guilty after deliberating in the magistrate’s absence. The last important principle was that the jurors’ decision had to be unanimous, failing which the trial was suspended, leading to a “hung jury” and the swearing in of another jury (Langbein 1987).3 All these features, albeit sometimes with major adjustments, were reproduced in France and, following that country’s example, other continental European countries. It was in the United States that popular juries became most extensive, enshrined as they were in the Bill of Rights. Whereas the grand jury that decided whether to proceed with a prosecution became obsolete in England, it continued to flourish on the other side of the Atlantic. As in England, ordinary juries (“petit” or trial jury) had jurisdiction in both civil and criminal matters and dealt with many cases, but they were much more frequent in the New World. In addition, they involved a larger number of citizens and permitted a more granular examination of cases. The role of juries was considered so fundamental that in 1789 it was written into the sixth and seventh amendments to the American Constitution. The power of the jury began to weaken during the second half of the nineteenth century, as a dwindling number of (especially civil) cases were tried by jury. Juries are still incomparably more significant and popular in the United States than in most other countries, however: Nearly 150,000 are assembled every year in the individual states and 10,000 at federal level,4 whereas the French Courts of Assizes handle somewhere between 1,000 and 2,000 cases (Schnapper 1987). Millions of people are summoned each year to sit on a jury – which makes it “the most widespread example of participatory democracy in the United States” (Abramson 2003, p. 252). Hollywood films featuring juries are also quite numerous, and one of them, Twelve Angry Men (director: Sidney Lumet, 1957), starring Henry Fonda, even scored a box office success with its story of a jury that began with an 11 to 1 majority for finding a young man of color guilty of murder and ended with a unanimous vote for his innocence. 3 4

The French jury d’assises initially had to decide with a qualified majority of ten out of twelve. This is equivalent to approximately 5 percent of criminal cases at the state level and 11.5 percent at the federal level, and 1 percent and 2 percent of civil cases respectively (Abramson 2003, pp. 251–252)

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The French Revolution and the Creation of the Jury d’Assises In France, the discrediting of the Ancient Regime, with its system of judicial proofs and subservient judges, meant that the jury principle immediately won the approval of the revolutionary Constituent Assembly, especially as one of its most influential legal experts, Adrien Duport (1759–1798), was in favor of it (Schioppa 1987; Martucci 1997). A huge consensus formed behind verdicts resting on free conviction, even if the interpretation of this principle was the subject of lively discussion.5 Three other major issues were at stake in the debate that led to the 1791 law. The first was whether juries should be used only for criminal cases or, according to a proposal that was eventually rejected, also for civil cases. The second issue concerned the social composition of juries. Although a majority accepted the idea of a trial by one’s peers, vehement arguments centered on what this should mean in practice: Right-wing leaders advocated composing juries only of rich individuals (who, because of the high property qualification, also accounted for the 400,000 eligible Assembly members), whereas Robespierre insisted that juries should potentially include all citizens, active and passive, or a total of seven million adult males. The result was a compromise: Namely, that juries would be composed of citizens who paid sufficient taxes to be electors for the Senate, or approximately 2.7 million of the 4.3 “active” citizens according to the electoral laws of 1789 (Gueniffey 1993, p. 101). As Duport put it, the jury function should not be possible for all active citizens; it should rather be reserved for the “enlightened classes,” using a broad definition, so that jurors were drawn from “the middle class, ordinarily the most precious in any society.” (Adrien Duport, speeches of 29 April 1791 and 5 February 1791, quoted in Schioppa 1987, pp. 107, 133). As in politics, of course, women were excluded. Poll tax requirements during the revolutionary period meant that all active citizens – that is, all adult males not in a situation of dependence as domestic servants – were able to vote. However, this widening was largely neutralized by a two-stage voting system: Active citizens did not elect deputies directly but attended meetings at the cantonal level to choose second-degree electors (or simply electors, as they were known at the time), a practice that echoed medieval- and Early Modern-era tiered-voting mechanisms. In turn, these met at the département or district level to elect representatives to the National Assembly and to fill the various public offices up for election. An elector had to meet certain tax requirements which were even higher in order to be eligible to stand for the National Assembly. The same principles were applied, a little less strictly, to define the group of potential jurors. This aroused Robespierre’s indignation: “so is that what you call being tried by your peers?” (Robespierre 5

A majority of the Constituent Assembly believed that nearly all of the jury’s work should be verbal, whereas others argued that there should be considerable use of written documents.

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1791, quoted in Schioppa 1987, p. 135). Indeed, it involved the same contradiction that divided citizens between passive and active elements. Equal status was granted with one hand but taken away with the other. The third major issue up for debate was the list from which juries should be drawn. Robespierre proposed holding elections, to prevent any state interference in the process. But in the end, it was decided that the choice should be left up to the public prosecutor in the respective département, as the figure who represented the sovereign and had himself been subject to election since 1789. The principle of selection by lot in the final stage of the process enjoyed a remarkably broad consensus, even though proposals to elect juries were sometimes put forward. The law of 1791 provided for both arraignment and trial juries, equivalent to the “grand” and “petit” jury respectively in the English tradition. The former were set up in 551 districts, the latter in the 83 French départements at the time. Each criminal court was made up of public officials (including a presiding judge elected for six years by the second-degree electors of the département and a public prosecutor, who was also elected) and twelve jurors. Each year a register of citizens eligible for jury service was drawn up at departmental level; then every three months the public prosecutor selected 200 names from the list and twelve names were drawn by lot on the first of each month to form the jury. If a successful challenge was made, the juror or jurors in question were replaced with others in the same way; it was compulsory to sit on the jury once appointed. At the same time, soldiers’ juries were partly established in the army. Altogether, and after the rotation envisaged in the law is considered, the number of citizens on lists drawn up by public prosecutors could climb as high as 132,000 per year, including arraignment juries (Schioppa 1987, pp. 132ff; Martucci 1997, p. 171). The selection of potential jurors through sortition made based on a shortlist clearly stemmed from past practices of drawing lots for political offices. From a democratic or even a liberal perspective, the responsibility of selecting this shortlist was, of course, the weakest link in the system, especially as the National Convention soon replaced prosecutors with government delegates. For, even if juries were more merciful than these would have liked (Claverie 1984, pp. 95–96, 143–166; Allen 2005, quoted in Rosanvallon 2008), their impartiality was long considered suspect, especially after Bonaparte further tightened the screws: “everything depended on the men chosen … good jurors were hand-picked, and it was the prefects who did the picking” (Schnapper 1987, p. 174). Although the context was different, such practices were not unlike those used when the Medici dominated the Florentine Republic in the fifteenth century. The impartiality of the jury became an illusion, and a number of negative episodes would tarnish the institution’s image for years to come. European Juries in the Nineteenth and Twentieth Centuries Over the course of the next century, the jury system gave rise to constant political divisions, in both France and other continental nations that adopted or

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discussed it. Conservatives complained that juries were not sufficiently tough, and more generally regarded them as a despicable holdover of popular justice from the Reign of Terror. In this view, jurors were “like mental incompetents, ignorant of the law, incapable of weighing motives and, above all, little concerned about the interests of the nation, which they too readily identified with the government of the day” (Schnapper 1987, p. 165). Conservative governments in France were regularly tempted to abolish juries, and they soon managed to do away with military juries and arraignment juries. They also tried to tame criminal juries by curtailing the role of sortition, reducing the social base of recruitment, restricting their powers in relation to the judge, and limiting the number of trials that were heard by the cours d’assises. Conversely, left-wing political parties resolutely defended the institution of the jury and campaigned for it to be used more widely and more democratically, taking advantage of every revolutionary upsurge or impetus for reform to bring these issues to the table. Between 1815 and 1848, the Left viewed juries as a symbol of political liberty. Immediately after e­lections returned with the fall of Napoleon (1815), liberals such as Alphonse Bérenger (1785–1866) (De la justice criminelle en France [1818], quoted in Schnapper  1987, p. 184) proposed that juries should be selected by lot from the ­electoral roll, which a property qualification then kept as low as 100,000 citizens. In 1848, when universal male suffrage (now direct) was ­reintroduced, the Left proposed that juries should be directly drawn by lot from the list of seven million electors. Juries even inspired one of the rare nineteenth-century proposals to introduce selection by lot into politics, when the socialist Pierre Leroux (1797– 1871) suggested during the 1848 Revolution that a national jury of 300 citizens should be institutionalized through selection by lot in the départements and colonies “among all citizens” (although he did not specify the list from which the choice would be made). This jury would have judged “charges brought by the national representative body against its own members” and have jurisdiction in offences against state security. At the same time, national representatives would have been elected on a corporatist basis, to reflect the country functionally (Leroux 1848, pp. 57–59). On this point as on others, the hopes of the Social Republic were dashed, and its proposals were ignored or outright rejected. “Fear of the masses” (Balibar 1989) was openly expressed when such proposals were ignored or outright rejected, and it was argued that the direct use of selection by lot “would deliver the highest interests of society to the blind play of chance … to men whose intelligence and character, habits and conduct, do not afford the guarantees that society is entitled to require” (Esquiros proposal, Labordère report, Moniteur, December 29, 1850, p. 3756, quoted in Bernard Schnapper 1987, p. 200). For the dominant classes, sortition posed an even greater danger than universal male suffrage. This is in part because the elites soon realized that universal suffrage did not automatically mean that the representative body would be more democratic.

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The full logic of social distinction continued to assert itself, so that in 1871 the National Assembly drew 34 percent of its members from the aristocracy, 36 percent from the upper bourgeoisie and 19 percent from the middle bourgeoisie – which left the working class with by far the smallest share. In 1919, the aforementioned three figures remained proportionally the same, at 10 percent, 30 percent, and 35 percent respectively, while the proportion of deputies of petty-bourgeois and working-class origin was 15 percent and 11 percent (Garrigou 1992). Although the property qualification was legally abolished, it never ceased to operate in a barely concealed form (Gaxie 1978; Bourdieu 1984). Although the social basis of jury recruitment was considerably enlarged under the Second Republic (1848–1852), the compiling of suitable lists was entrusted to mayors and county-level committees working on the orders of government prefects. The Second Empire (1852–1870) reined in juries even further by increasing the role of courts composed only of professional judges.6 Despite pressure from the Left, the Third Republic (1870–1940) made very limited changes to the system, although it did give greater weight to mayors (now elected by indirect universal suffrage) than to prefects with regard to the selection of jurors. In the 1870s, radicals such as Léon Gambetta (1838–1882) and Georges Clemenceau (1841–1929) called for the creation of civil trial juries, for the power of juries to be increased vis-à-vis judges, and for the role of bench trials to be reduced. But these demands were rejected, as was the call for juries to be drawn by lot from the electoral register. Three arguments, to some extent conflicting with one another, were advanced for the sortition of jurors from the electoral register. The first pointed to their neutrality, which was opposed to the bias inherent in selection by government appointees. Benjamin Constant (1767–1830), for instance, who was far from being a democrat, declared himself willing to fight down his disdain for the working classes (Constant, Commentaire sur l’ouvrage de Filangieri, II, 3rd part, ch. X, quoted in Jaume 1997): Of course, if I were asked to choose between being tried by twelve craftsmen devoid of all knowledge, unable, say, to read or write, but selected by lot and taking orders only from their conscience, or by twelve members of the Academy of the utmost elegance, twelve men of letters practiced in the finer points of style but appointed by an authority that held honors, titles, and salaries suspended over their heads, then I would prefer the twelve craftsmen.

The second argument was that the right to be selected by lot for jury service went hand in hand with the right to participate in elections: Both were an integral part of republican or democratic equality. Liberals held this point of view in the 1820s, as did radicals in the 1870s and socialists throughout the entire period 6

Between the Second Republic and the end of the Second Empire, the activity of the jury-based cours d’assises declined by 38 percent; the annual number of defendants fell from more than 7,000 in 1848–1852 to 3,600 in 1861–1880 (Schnapper 1987, p. 206).

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in question. However, the ardor of the liberals cooled once the suffrage was extended to all adult males, and neither the Second nor the Third Republic risked direct selection by lot from an electorate that had assumed “mass” features. The third argument demanded precisely that the jury, as an institution, be made socially democratic. The labor movement was particularly sensitive to this, clearly seeing how biased juries had over the decades judged crimes against property more harshly than crimes of blood. The Socialist group unsuccessfully proposed again in 1901 (Allemane proposal, November 21, 1901) that juries should be selected by lot: The jury is composed of bosses, merchants, industrialists, rentiers, capitalists  –– in short, of people belonging to one class, the ruling and property-owning class … Consequently, the jury is necessarily forced, by the very means of choice, to pay attention only to crimes that affected the class to which it belongs … On the other hand, if juries were composed of all kinds of citizens, without exception, if next to the lazy and disdainful rich man, we had the active working man, crimes would not be subject to these kinds of distinctions. (Schnapper 1987, p. 236)7

It was from this perspective that expanding the purview of juries, one of the “most precious reforms of the French Revolution,” acquired its full significance: “professional magistrates are a separate caste, they live apart from their fellow citizens and are used to treating litigants according to their own class interests and particularistic ideas.” Replacing professional judges with popular juries in all jurisdictions, in both civil and criminal proceedings, was seen as a means of strengthening the impartiality of the judiciary. The sociological democratization of French juries was thus a long process: It took until 1944 for women to be included (at the same time that they became voters), and until 1980 for the old left-wing idea of random jury selection from the electoral register to be introduced.8 In between, the Vichy regime (1940– 1944) had nonetheless introduced a decisive reform in 1941, importing the principle of the mixed jury that had been invented in Germany in 1924:9 Jurors were now required to cooperate with judges during deliberations. As a result, jurors would thus be profoundly influenced by professionals when making their final decision. The rate of acquittals fell precipitously from 24.7 pecent to 8.4 percent. Subsequently, the ratio between jurors and judges changed several more times, but the principle of a mixed jury was never seriously challenged (Elster 2013, p. 99). By that time trial juries were little more than a socially uncontentious relic, dealing with only a tiny proportion of cases.

7

8 9

In reality it was not always so easy to form homogenous bourgeois juries, and nineteenth-century judges constantly complained about the ignorance of certain jurors (Claverie 1984; Gide 1930). Law of December 23, 1980. Several European countries have adopted this model in the following decades. On the contrary, the Anglo-American jury, composed of twelve individuals, deliberates without a judge being present; the judge is responsible for determining the sentence, however.

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Like Anglo-American juries for common law countries, French juries were a major reference point for civil law countries across the globe. Their history in continental Europe was less checkered, but nonetheless followed a similar course with various time-lags. Italy provides a good example. The idea of popular juries was enshrined in the first legal code of unified Italy in 1865, and then transferred with a few variations into the penal procedure of 1913 that was the product of a liberal Italy. Logically enough, Mussolini’s authoritarian regime replaced it with a system of mixed juries, in which professional judges (togati) set the tone and the jury was less independent of judicial institutions. After the fall of fascism and the recovery of various democratic freedoms, a legislative decree of May 31, 1946 (the so-called Togliatti decree) proclaimed the reintroduction of popular juries, but the lack of enforcement meant that this measure was never implemented. The Constituent Assembly, though at first inclined to incorporate the principle into the Constitution under pressure from the alliance of left-wing parties, ended up with a compromise. Whereas the original draft had said: “the people directly participate in the administration of justice through the jury institution in the Court of Assizes,” the final wording of Article 102 merely stated that “divisions specialized in certain matters, including suitable citizens from outside the judiciary, may be set up [to work] alongside the ordinary judicial bodies. The law shall regulate the cases and forms in which the people directly participate in the administration of justice” (Conso 2001, pp. 15–18). In practice, Article 111 of the Italian Constitution, which makes it compulsory to provide the reasons for a verdict, was used against the principle of popular juries, since these were considered incapable of fulfilling this condition, even with suitable assistance. Subsequent rules brought mixed juries to the fore again. During discussions of the law of 1951 (No. 281), the Left upheld “the fundamental principle that democracy equals jury,” that “every eclipse of liberty has without fail meant suppression of the popular jury,” and conversely that “whenever there is liberty, or a struggle for liberty, direct participation of the people in the administration of justice is always a fundamental norm”.10 But the majority held firm to its positions. Worse, although women were eligible to vote and to be elected, they were excluded from the list of potential jurors. Until the mid-2010s, jury nominees had to meet certain requirements: they had to be Italian citizens between 30 and 65; and endowed with full civil and political rights, good moral conduct, and a certificate of elementary school completion (for the Court of Assizes) or of high school completion (for the Court of Appeal). These conditions, which recall the concept of “enlightened people,”11 caused an outcry among protestors who argued the law was creating a “judiciary class”: “judges will be truly people’s judges in so far as they are drawn from all the working class, so that worker sits alongside doctor, farmer alongside engineer. Only then will there be … true popular representation.”12 10 11 12

Onorevole Gullo, in Atti Parlamentari, Camera dei Diputati, session of March 9, 1950, p. 16040. Popolo culto: expression used by Bettiol Giuseppe, President of the Committee, in ibid., p. 16046. Onorevole Gullo, in Atti Parlamentari, ibid.

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The mixed jury that was imposed with a narrow social base had gradually lost its powers and was ultimately unlikely to arouse any ­democratic passions. It is doubtless symptomatic of the political confusion in which Italy and France have been mired since the end of the 2000s that the proposal to reinstate, and even expand, the role of popular juries has come from the right wing in these countries. In 2008, Italian Prime Minister Silvio Berlusconi, in an open war with the Italian judiciary, argued that increased recourse to nonprofessional juries could help to eliminate conflict between the political and judicial branches and allow for some economic savings to boot. He was actually trying to further discredit judges, who were seen as hostile by the president of the Italian Council (Verderami 2008). In 2011, French president Nicolas Sarkozy passed a law increasing the jurisdiction of popular juries, while simultaneously reducing the effective scope of lay intervention in the judiciary by diminishing their numbers in courts of assizes. The reasoning behind this law was rather contradictory: As in Italy, popular juries were used as a weapon in a broader campaign against the independence of the judiciary. But the new mechanism in fact ended up limiting the jurors’ influence in the courts where they existed. Juries were seen as being harsher than professional judges, which represented a kind of paradox, historically speaking, given the number of criticisms made by the authorities over the years regarding their excessive indulgence. Concretely, the 2011 law introduced the requirement for juries to justify their decisions, a constraint that had been imposed by a ruling in January 2009 of the European Court of Human Rights. The judge presiding over the trial was required to write down the reasons cited. More importantly, the number of jurors in courts of assizes dropped from nine to six in courts of first instance, and from twelve to nine in appellate courts. A simplified court of assizes including three jurors was only designed for crimes that could carry a sentence of fifteen to twenty years of imprisonment. The influence of professional judges with whom the jurors were to deliberate was therefore proportionally strengthened. At the same time, two lay jurors, called citizen assessors, were introduced in correctional proceedings to assist three professional judges. However, these citizens’ jurors can only adjudicate in cases of crimes against persons, and are excluded from white-collar crimes, especially financial crimes – perhaps out of the fear that such crimes might ultimately receive harsher sentences. While the number of cases involving jurors has thus risen significantly, the power of jurors has become increasingly ambiguous. Hegel, Juries, and Civil Society Why was sortition so widespread in the judicial sphere with popular juries at the same moment when it was excluded from the political sphere, and this even though the history of democracy and that of popular juries seem to go largely hand in hand? We shall turn to Hegel (1770–1831) to clarify this paradox. The German philosopher rigorously analyzed the reasoning of the continental European legislators of his time (or at least of those who, in the wake of the French Revolution, proposed the creation of juries in the judiciary). Hegel’s

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theorization also helped to turn the German tide in favor of juries, leading to their partial introduction during the Revolution of 1848. Members of the French Constituent Assembly had pushed to the extreme the distinction between fact and law on which English juries were officially founded. In their eyes, the law should be the same for all and the courts should simply apply it, with no need even for interpretation. Over the years, the nation-wide uniformity of judgments became a central concern for the authorities in charge of jury regulation (Claverie 1984). On the one hand, the judge was “the mouth that pronounces the words of the law, mere passive beings, incapable of moderating either its force or rigor,” to quote Montesquieu’s famous sentence (Montesquieu 1949, XI.6). In the context of the popular jury, the judge’s task was thus to adequately explain the legal framework, as Duport wrote in reference to The Spirit of the Laws. On the other hand, juries were supposed to stick to the facts concerning the defendant’s guilt or innocence, leaving any sentencing up to the judge. Different functions for different people – stating the adequate law for the judge, determining the facts for the jury – was the best way to avoid confusion between the particular and the general (Martucci 1997, pp. 39–41). Hegel explicitly resumed this line of thinking, which was prevalent at the time, and incorporated it into his philosophical thinking on the legitimacy of the political order. Although the distinction between the generality of the law and the specificity of factual deliberation was reminiscent of Rousseau, Hegel significantly restricted the realm of the specific or particular, where selection by lot could be legitimately practiced. For Rousseau, all the executive or governmental tasks of a democracy belonged to the realm of the particular; for Hegel, only one element of a criminal trial fell into this category. Hegel’s basic idea was that the aspect of penal judgment for which the jury is responsible – “knowledge of the facts of the case” – is “knowledge attainable by any enlightened man,” since “the proof depends not on objects of reason or abstractions of the understanding, but only on single details and circumstances, objects of sensuous intuition and subjective certainty.” It is therefore accessible to lay citizens, or at least to the better qualified among them; Hegel here espoused the theory of legal capacities. Since determining facts rests less on rigorous logical proof than on “subjective conviction and conscience,” it does not require universality (Hegel 1952, §227, p. 143). Indeed, courtroom activity pertains to the sphere of civil society, whereas the law in itself, especially public law and legislative activity, are concerns of the state – that is, they represent the universal (Hegel 1971, pp. 261ff). The involvement of ordinary citizens through the jury system is therefore not only legitimate but beneficial, since it allows members of civil society to know, practice, and espouse the law, to try and be tried by their peers instead of “becoming wards, or even in a sense the bondsmen, of the legal profession” (Hegel 1952, §228, p. 145). But this reasoning applies only at the subjective level; lay citizens cannot take decisions at the objective level of the law, which

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French republicans, using a different conceptual framework, referred to as the general interest.13 Hegel’s approach helps us to understand the special place of juries in modern societies. The division of labor, he implies, encounters an obstacle: The existence of a sphere that mobilizes neither professional competence nor abstract judgment, where common sense enables the individual to make a judgment on the facts simply by using his subjective reason. Not leaving room for this nonspecialist faculty, whereby an individual tries to put himself in another’s shoes and weigh the evidence for and against through introspection, would be counterproductive for the legitimacy and smooth functioning of judicial institutions. This thesis was vigorously attacked by positivist currents in the late nineteenth century, especially by the Italian school, for which juries were contrary to “the universal human law of specialization” and represented nothing but “Cadi justice” (Schnapper 1987, p. 220). Max Weber (1864–1920) took up the polemic in Germany, while in France Gabriel Tarde (1843–1904) mocked jurors whose only merit was apparently their “incompetence” (Hegel 1952, p. 220; Sintomer 1999). Such attacks helped to eliminate the jury system in some parts of Europe, and more generally contributed to its marginalization in favor of professional courts. On the contrary, some of the most nuanced sociological studies on jury procedures illustrate how juries can not only be the site of a true “democratic conversion” for jurors, including in mixed juries like in France, but that they also represent a kind of “luxury justice” for the accused (Gissinger-Bosse 2017). In fact, the higher rate of acquittal in French jury trials than in professional courts is doubtless one of the reasons for this interpretation. In Hegel’s framework, however, the peer judgment involved in the jury system should be radically differentiated from the general interest represented by the state. This schema drastically reduces the place historically awarded to ordinary judgment by ancient Athenians, stripping it of its more strictly political character. It is then consistent to defend juries selected by lot in the judicial sphere while denying them any role in politics. Tocqueville: The Jury as an Instrument of Self-Government In the decade following its publication, Hegel’s argument received a major blow when Alexis de Tocqueville (1805–1859) returned from his trip to America convinced that juries were a “preeminently political” institution. What mainly interested him was precisely that they went far beyond their official judicial role. Of course, Tocqueville seemed to concur with Hegel in praising the educational impact of the English and American jury system, which taught the practice of fairness and made individuals responsible for their actions. Above all (Tocqueville 1899, p. 305), 13

Hegel’s argument is explicit on this point and partly coincides with that of elitist advocates of the French Republic (Hegel 1952, § 314–320, pp. 203–208).

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by obliging men to turn their attention to other affairs than their own, it rubs off that private selfishness which is the rust of society. The jury contributes powerfully to form the judgment and to increase the natural intelligence of a people; and this, in my opinion, is its greatest advantage. It may be regarded as a gratuitous public school, ever open.

Tocqueville’s argument does, however, differ from Hegel’s in other respects. First, he stresses that in America the extension of the jury system from criminal courts (as in Europe) to civil courts increased its impact; not only does civil society therefore approach the level of the state, it also better understands its rules and exigencies. Almost entirely ignoring the canonical distinction between matters of fact and matters of law, Tocqueville shrewdly remarks that the jury may be either aristocratic or democratic “according to the class of society from which the jurors are taken.” But he immediately adds that “it always preserves its republican character, in that it places the real direction of society in the hands of the governed, or of a portion of the governed, and not in that of the government.” Little concerned about methods of jury selection, Tocqueville focuses rather on this aspect of self-government. In the United States, he says, “every citizen is qualified to be an elector, a juror, and is eligible to office. The system of the jury … appears to me to be as direct and as extreme a consequence of the sovereignty of the people as universal suffrage.” Hence, he can solemnly conclude that “the jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it to rule well” (Tocqueville 1899, pp. 302, 303, 307). Although Tocqueville’s perspective was especially radical, he was not alone in expressing such views at the time. Moreover, the actual dynamic of jury deliberations shows that a strict separation between law and fact was largely a fiction. For this reason, the law of April 28, 1832 in France outlined a compromise that changed the role of juries: On the one hand, it allowed them to recognize extenuating circumstances, and therefore to decide whether the law should be applied to the fullest extent possible; on the other hand, it sought to end once and for all any attempt by juries to nullify the law. In fact, juries took advantage of this indecision in public affairs to acquit many of those charged with professing opinions that the authorities considered unlawful. Critics would continue to rage indignantly about this for the rest of the century. In 1889, for example, Gabriel Tarde accused the jury of being “one of the gravest evils from which we suffer,” responsible for the fact that the press had become “omnipotent” and made its freedom synonymous with “irresponsibility.” (Le Temps, 13 April 1889, quoted in Schnapper 1987, p. 214). This is why subsequent governments in the nineteenth century strove to keep juries out of cases involving the press or political corruption.14 14

The liberal center and the republican Left, which demanded before the fall of the Second Empire that the cour d’assises once again have jurisdiction in cases concerning the press and politics, proved less enthusiastic when they came to power. After 1897, the cour d’assises lost the main part of its political role (Schnapper 1987, pp. 209–215).

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The Golden Age of the Anglo-American Jury It was mainly in England, however, and even more so in the United States, that juries regularly broke new legal ground. The English jury, though also based on a distinction between fact and law, involved a certain level of cooperation between jurors and judge: A pragmatic approach that was better suited to actual courtroom procedures than continental dogmatism. While a consensus existed on the matter, several still legendary trials revealed the “danger” of “all-powerful” juries: In practice as in theory, certain currents claimed that juries had the right to produce law if their conscience so dictated. In this system, the jury mediated between the law and the community values from which it emanated. The common law tradition made this easier, since it represented a body of norms (customs, theory, and laws), rather than making one institution (the legislative branch) the source of all law. Several versions existed of the jury’s activity from a legal point of view.15 The first, originally put forward by the Levelers, the most radical current in the English Revolution, held that the law and people’s rights sprang from the community, and that no parliament or judicial body had the authority to pronounce on them. Indeed, in the most important cases, responsibility was seen as residing with the jury. A second, more moderate program, adopted by later Levelers and then by the Quakers, recognized the right of parliament to legislate and the right of judges to advise juries, but added that jurors could reassert their autonomy if they felt in all honesty that the judge was misinterpreting the law and should be overridden in the interests of impartiality (Green 1987, pp. 65ff). Juries thus had the power to interpret both the law and people’s rights. Intermediate versions maintained that, although a jury should normally follow the law and the judge’s advice, it could, in exceptional cases, decide not to apply a law it regarded as unjust by virtue of a higher standard, whether divine law, natural law, or the constitution. All three versions implied that lay citizens had the capacity to interpret the law, beyond the limits imposed by Hegel: This claim became a rallying cry for political and religious minorities in the seventeenth century. One of the most famous trials was that of William Penn (1644–1718) and his Quaker companions, charged in September 1670 with sedition and disturbance of the public order because they had preached in the streets of London. The anti-Quaker repression was then at its apex. Penn’s defense strategy was not to deny the facts but to maintain – in defiance of the clear legal prohibition against seditious activity  – that it was impossible for an English law to make peaceful preaching for the glory of God an illegal act. When the judges claimed that they alone had the technical competence to interpret the law, Penn replied that “if the common law be so hard to understand it is far from being common” (“The Trial of William Penn and William Mead, at the Old Bailey, for a Tumultuous Assembly,” Howell’s State Trial, 6: 958 [1670], quoted in 15

English legal theorists speak of “law finding” to describe this side of the equation (Green 1987).

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Abramson 2003, p. 70). The jury found Penn guilty only of speaking in the street but was unwilling to pronounce on whether his speech had been seditious or disturbed the public order. The judges then pressed the jury to clarify this unorthodox verdict, threatening to lock it up without food, drink, and tobacco until it gave in. The jurors stuck to their position, however, and two days later eventually delivered a verdict of acquittal; for this they would later be fined, on the grounds that they had refused to apply the law. After the United States became independent, the doctrine of “jury nullification” spread quite significantly. Several states recognized – or even wrote into their constitution, as did Georgia in 1777 and Maryland in 1790 – that “the jury should be judge of the law as well as of the facts.” The Massachusetts Constitutional Convention of 1853 adopted an amendment along these lines. Replying to those who argued that only professional judges were capable of deciding points of law, the delegate Keyes said: “the common law is the science of reason and justice; and a man who can tell what justice is can tell what the common law is, in almost all cases, and therefore he is just as competent to decide the case as the judge.” (Official Report of the Debates and Proceedings in the State Convention to Revise and Amend the Constitution, Boston: White and Potter, Boston, 1853, 3: 443, quoted in Abramson 2003, p. 83). The commonsense argument was extended to the interpretation of the law and people’s rights. At some trials, the claim was even more radical. In Boston in May 1851, for example, the defense attorney for three people charged with helping slaves to escape – an act forbidden by an 1850 law passed – reminded the jurors that they were judges of the law as well as of the facts, and harangued them that, if they honestly believed the 1850 law was unconstitutional, they were bound by the oath they had taken “to disregard any direction to the contrary which the court might give them.” (24 Fed. Cas. at 1043, quoted in Abramson 2003, p. 81). This gave juries a role similar to the Supreme Court, at their local level, in terms of judging whether certain laws were constitutional or not. Not only was Jacksonian America as described by Tocqueville the most democratic country in the world at its time; it was also at a high point of democratic history in terms of political rights and social orientation (for white men – women were excluded from politics and in a state of legal minority compared to men, slavery remained widespread, and the ethnic cleansing of Native Americans continued to intensify). The power of juries was only one facet of an ideal of self-government that was also expressed in town hall meetings, general assemblies regularly attended by citizens to decide on common business, particularly in New England. This was far from the kind of politics then practiced in Prussia, and we can see why a deeply impressed Tocqueville could consequently defend a view of juries that was incomparably more radical than Hegel’s. Yet it was also during this period that the popularity of juries began to wane in the United States. Appellate courts increasingly barred them from pronouncing on points of law. And supporters of jury nullification were partly discredited by practices in the South, where entirely white juries might use the

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principle to acquit other whites charged with lynching blacks after the abolition of slavery (even as late as the 1960s). Finally, in 1895, the Supreme Court declared it unconstitutional to allow juries to pronounce on questions of law. The law, it stated, made it possible to protect all citizens equally, and if juries were not subject to any fixed legal rule, the “‘government of laws’ would be in danger of becoming the ‘government of men’ – twelve unelected, unaccountable men at that.” (156 U.S. 51 [1895], quoted in Abramson 2003, p. 87).

Against “Blind Chance” We seem to be back at our point of departure. Sortition had not been forgotten, and was in fact still practiced in some Early Modern Republics such as Venice and Switzerland. It played a role in juries, but also in other domains: drawing conscription lots in the military, lotteries, and rights of estovers (allowance of wood that a tenant can take from the commons) were widespread practices at the time of the French Revolution. Both in France and the United States, certain intellectuals and politicians (such as Tocqueville) believed that juries had a political function. So what explains the fact that sortition has never really been proposed for the allocation of governmental or legislative positions in modern political systems? The developments analyzed in the previous section show that the mix of cooption and sortition initially used to select juries was quite similar to the forms of political sortition used in the Early Modern period and can be seen as a variety of compromise voting. The democratization of juries has since been a lengthy process, one that remains unfinished in some countries. The arguments for and against the selection of lay citizens in juries, and the widening of the pool from which they are drawn, have occurred in parallel to political debates between elitist and democratic parties in the difficult path towards universal suffrage. To a large extent, from the eighteenth century onwards, the history of democracy has been closely bound up with the history of the jury. Why was there no debate in the political sphere about drawing lots? Why has sortition not expanded its role beyond the judiciary? By which criteria of legitimacy has election been thought necessary for selecting political decision-makers, while sortition has been deemed acceptable to select those who may decide to imprison or put to death their fellow citizens (in both cases, first among a tiny elite, and progressively among all citizens, at least officially)? To understand this, one has to rely on the dual concept, developed by the historian Reinhart Koselleck (2004), of the “space of experience/horizon of expectation.” According to Koselleck, every human community has a lived space of experience in which past things are remembered or remain present, and horizons of expectation that are oriented towards the future. Any kind of action will be closely linked to both elements. When certain events or experiences profoundly change the space of experience of a given population, their horizons of expectation will likewise open up, permitting the emergence of new imaginaries. Koselleck elaborated these notions in his attempt to analyze the

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French revolution; we can apply his reasoning to the disappearance of ­sortition. Some sources attest to the fact that drawing lots was increasingly considered an outdated practice. Condorcet (1743–1794) defended this p ­ erspective when writing (Condorcet 1986, p. 441): in several modern republics … by mixing choice and fate, one believed to avoid the inconveniences of the corruption of the [second-degree] Electors and to partly preserve the advantages which one could expect from their enlightenment. But these means imagined in times when men had psychological finesse but were not enlightened must be replaced by better combined means in this century.

Sortition was sometimes criticized on the basis that the practice was underpinned by religious justifications. As we have seen, in Catholic regions, the sharp division between sors divisoria and sors divinatoria had always limited the reference to God’s hand in the drawing of lots. In Protestant regions, it was easier to invoke Providence, although this did not happen systematically. The new doctrine of popular sovereignty also helped to discredit this religious justification. However, the argument was not made explicitly: In addition, this factor was marginal and could also have been opposed to elections, which were often seen as reflecting God’s will during the Ancient Regime. What were then the most salient features of this “horizon of expectation?” The Swiss Political Laboratory (1798–1848) In order to answer this question, we can turn once again to the Swiss political laboratory. As we have seen, the Helvetic Confederacy was the place in Europe where sortition was most frequently employed on the eve of the American and French revolutions. When a revolutionary wave shook the region and destroyed ancient regime structures, the practice of drawing lots did not disappear. Quite the opposite: The decade that followed the founding of the new Helvetic Republic (1798–1803) was a Golden Age of sortition in politics; the practice largely persisted until 1831. This development, as well as the lively debates for and against sortition that took place in the revolutionary era and its aftermath, have been carefully analyzed by Maxime Mellina. This author has provided the first convincing systematic explanation for the disappearance of sortition based on primary sources, from a perspective that goes far beyond the confines of Swiss history (Mellina 2021). I will rely extensively on his work to elucidate a number of valuable lessons for our purposes. Explaining this whole historical period in detail is beyond the scope of this volume, as tumultuous events led to numerous and rapid changes of regimes and constitutions, and the extreme decentralized nature of Swiss institutions entailed specific narratives for each canton. We shall, however, focus on the main features of sortition in Switzerland during the establishment of Helvetic Republic and the decade that followed. In the aftermath of 1789, new ideals naturally spread like wildfire from France to its neighbor Switzerland, only aided by the work of several Swiss

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revolutionaries who spent time in Parisian exile. In 1798, the French invasion established the first unified political structure in a country which had previously been composed of quasi-sovereign cantons loosely united in a confederacy. The new constitution of the Helvetic Republic was largely drafted by Peter Ochs (1752–1821), a magistrate from Basel, who devised it in collaboration with French authorities. It established a central bicameral legislature which included a Grand Council (with eight members per canton) and a Senate (four members per canton). The executive, known as the Directory, was composed of five members as in France. The constitution also established a national Swiss citizenship, as opposed to just citizenship of one’s canton of birth or of the capital-city of the canton, significantly increased the number of citizens, and secured equality for the different cantons. It abolished what remained of feudal and statutory group privileges, while modernizing and rationalizing Swiss administration. This marked the emergence of a modern republican state in Switzerland. The Helvetic Constitution also established an electoral system whose complexity was comparable to its Venetian predecessor. It combined indirect elections and sortition in several steps. No fewer than twenty-three articles were necessary to outline the role of sortition, which was used to cut down on the number of second-degree electors and representatives and to stipulate the respective roles of the two chambers (Mellina 2021, vol.1, pp. 123, 147). The electoral procedure for members of the Directory was a typical example of compromise voting – it is striking that the first modern Swiss Constitution, written under French tutelage, closely followed this template (“Loi sur le Mode d’élection des Directeurs, 15 Juin 1799,” quoted in Mellina 2021, vol. 2, pp. 33ff). Of course, several forms of compromise voting continued to exist during the First Republic in France, with universal male suffrage being tempered by indirect elections where citizens elected second-degree electors who in turn chose representatives.16 The new American Republic also introduced a form of compromise voting with the Electoral College. In fact, to this day the US president is elected indirectly thanks to the Electoral College. Within decades, however, indirect voting gave way to direct voting in most electoral contexts, and the role played by sortition in the two countries was either extremely limited (France during the Directory) or nearly nonexistent (the United States). Conversely, compromise voting and sortition persisted as central elements well into the 1820s in Switzerland. The Helvetic Republic was next destabilized by several coups. Its centralized system stood in stark opposition to traditional cantonal autonomy, which was defended by the conservative aristocracy. To put an end to civil strife, once he became First Consul, Napoleon (1769–1821) imposed the Act of Mediation (1803), which restored a federal system while preserving most of the revolutionary achievements. Sortition had an important function to play in the 16

Condorcet (1986, pp. 437–474) defended indirect elections in his essay “Sur la forme des élections.”

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new cantonal constitutions. It was mentioned in nine articles, mostly used in combination with elections for various procedures that were again typical of compromise voting, such as selecting representatives from a shortlist or eliminating (deselecting) some of the selected individuals who had been previously elected. After the fall of Napoleon in 1815, the Restauration brought back part of the old conservative elites and institutions, while largely conserving the postrevolutionary, Enlightenment mindset. Formally, sortition still preserved some of its earlier functions, but instead of being a highly ritualized procedure (described in depth in the constitutions), it now appeared to be mostly a relic of days gone by. Similarly to what happened in France, the 1831 revolution ushered in a liberal regime in Switzerland, and the 1848 revolution led to the creation of a republic dominated by the radical party (a left-wing but nonsocialist party). Sortition was abolished in 1814 in Basel, Schaffhausen, and Zurich, in 1818 in Neuchâtel, in 1830–1831 in Solothurn, Aargau, Bern, Freiburg, Geneva, Saint-Gall, Thurgau, Zug, and Vaud, with the advent of the new liberal regime. In 1836, Glarus  – whose system was still based on the general citizens’ assembly (Landsgemeinde) – was the last city to abandon selection by lot. In 1848, universal male suffrage was introduced at national level, the same year as in France. Sortition was not even mentioned in these constitutional debates: The practice, it seems, had been forgotten (Mellina 2021). For the first time in centuries, elections were now completely uncoupled from sortition: they now formed the backbone of representative government. In the context of this book, we are not primarily interested in the sortition procedures that were used in revolutionary-era Switzerland: These were mainly variations on older models, including an “intelligent child” (“Loi sur la Sortie de la moitié des électeurs nommés par les Assemblées Primaires, 3 septembre 1799”, quoted in Maxime Mellina 2021, vol. 2, p. 53) performing the selection. What was unique about the Swiss political laboratory, however, is that the legitimacy and illegitimacy of sortition were widely discussed, at a time when contemporary revolutions had largely destroyed the old republican forms and radically transformed the horizons of expectation. Those who took part in these debates were often brilliant intellectuals who knew their classics and elaborated sophisticated arguments. Since France occupied the region until 1814, French republicans would have had access to the ideas of Swiss intellectuals, and their analysis provides an empirical basis for understanding why political sortition ultimately disappeared. Peter Ochs: Sortition’s Last Stand Sortition’s last stand ultimately took place during this period, led by Peter Ochs, the prominent politician who helped to write the 1798 Helvetic Constitution and the 1799 electoral laws. Peter Ochs had had direct experience with sortition during the Swiss Old Regime: he was unfortunate enough to never be selected by lot. He was a well-known member of the patriots, a revolutionary

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left-wing faction that was pro-French and defended the rural elites and the enlightened urban bourgeoisie. He wrote an impressive history of Basel, and his writings and actions demonstrated a deep understanding of sortition’s potential at the end of the eighteenth century, more sophisticated than the sparse and somewhat anachronistic accounts provided by Montesquieu and Rousseau discussed earlier. An extraordinarily concise “Note on the use of lot,” dating from 1802 when sortition was under attack by several Ochs’ opponents, was found in his correspondence (Ochs 1937, pp. 73–75, quoted in Mellina 2021, vol. 2, p. 82): The intervention of lot in elections is a highly necessary institution in Switzerland. It alone can guarantee equal rights, bring people together, ease the turmoil between parties, and appease citizens. Here are my reasons: 1. The use of sortition in the cantons of Glarus, Bern, and Basel are so many experiments that support this proposal. 2. Drawing lots is less blind than intrigue, prejudice, factionalism, and nepotism. 3. Sortition gives real merit a chance to win out against apparent merit. 4. It reduces the pride and arrogance of those who, relying on the influence of their wealth or their parties, already see themselves occupying the highest places. 5. Sortition offers enough uncertainty that one must think twice before engaging in nefarious behaviors. 6. It makes it possible to easily satisfy several parties who, given that they can only complain about chance, accept the results without harboring a grudge against the voters, or the one who was favored by the lots. 7. It induces submission and even confidence among the people, through the idea that we resort to lot in the absence of other means, and good Providence does not abandon lots to chance when the public good is at stake.

Ochs’ words offered a brilliant synthesis of the legitimacy of sortition for Early Modern republicans: The “blindness” that characterized sortition was seen as quite rational, as it was an impartial tool that encouraged consensus among the elite and promoted the people’s trust. In addition, Ochs mentioned an idea more specific to the Swiss Protestant context, namely that God’s hand could still operate when drawing lots. To these traditional arguments, he added two more modern ones: the notion of equal rights and an alternative conception of meritocracy, matters to which we will return later. Among influential politicians, however, Ochs was nearly alone in defending the continued use of sortition in the new republican context. His argumentation was successful when the Helvetic Republic was created, as he was able to convince both the French authorities and a majority of his fellow republicans. The practice lasted until 1831, so that Ochs’ arguments must have been confirmed by long-established practices. After 1799, however, his political influence sharply declined, and no other major figure took up the defense of sortition. At the same time, contemporary sources reveal that

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several intellectuals offered a theoretical critique of sortition. What is striking is that these critics came from across the whole political spectrum. Another leading patriot, Frédéric-César de La Harpe (1754–1838), from the canton of Vaud, thought like Condorcet that sortition was no longer appropriate to the new age (Mellina 2021, vol.1, p. 337). Paul Usteri (1768–1831), from Zurich, the most important of the moderate republicans who represented the urban patriciate, published in 1798 a sharp critique of selection by lot (Usteri, Conrad, and de la Linth 1798, pp. 58–59, quoted in Mellina 2021, vol. 2, pp. 16ff); he would maintain this position when he later became a liberal leader. When liberals took power in 1831, they shared this hostility towards sortition and suppressed it. In Geneva, for example, the report on elections written by the law committee chaired by the moderate liberal professor Pierre François Bellot (1776–1836), was quite explicit on the matter (State of Geneva archives, Rigaud 57/24, “Rapport sur les projets de Lois au sujet des élections par M. le Professeur Bellot,” Geneva, 183, quoted in Mellina 2021, vol. 2, pp. 134ff.). The more left-wing liberal Henry Druey (1799–1855), a journalist who in the 1840s became the leader of the radical-democratic party in the Canton of Vaud, had the same aversion to sortition (Druey 1828, p. 165, quoted in Mellina 2021, vol 2, pp. 134ff); similarly, when the radicals supplanted the liberals in 1848, they did not even deign to discuss the issue. Some prominent conservatives were also opposed to drawing lots: In 1818, the Neuchâtel electoral committee successfully proposed abolishing sortition (Neuchâtel city archives, B 201.07.002, “Conseil et charges: Rapport de la commission chargée de la révision des règlements relatifs à l’élection des Membres du Grand-Conseil” (1818), quoted in Mellina 2021, vol 2, pp. 112ff). The Bern jurist Karl Ludwig von Haller (1768–1854), the primary legal philosopher of the Restoration, decisively condemned this procedure. In his own way, he repackaged an old argument that was already present in Machiavelli’s work: While recognizing that sortition could reward honesty, he maintained that it also undermined the impetus for self-­improvement and favored “indolence.” “The introduction of the lot,” explained von Haller (1834, quoted in Mellina 2021, vol 2, pp. 122ff), “negates the expenditure of effort and any attempts at emulation; it replaces a lesser evil with a greater one, substituting what rarely occurs for what becomes a general rule.” Elective Aristocracy vs. Democratic Sortition? Some of these critiques were pragmatic in nature and echoed the debates that had unfolded in the Chinese empire a century earlier: Sortition was deemed ineffective at preventing quarrels and intrigues. On the flipside, some argued that diverse tools were available that could enhance the impartiality of the device, thus deterring clique-formation and corruption: Secret voting, which had long been practiced in Venice and in the Roman Catholic Church (but which would only become the rule for political elections in Europe very late in the nineteenth

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century) (Garrigou 1992); civic religion, which was supposed to reinvigorate the old republican virtues; public deliberation, which was viewed as pushing all parties towards the common good. Alone, however, these empirical arguments would not have been enough to justify breaking with the deeply rooted tradition of drawing lots: More substantial reasons had to come to the fore. As the Swiss laboratory shows, the first conceptual argument against sortition was a meritocratic one. This can remind us of the great Chinese statesman Yu Shenxing’s critiques at the end of the sixteenth century, according to which drawing lots to fill public offices was contrary to selecting the right man for the right post in accordance with talent and merit. What kind of meritocracy was at stake in Europe at the turn of the nineteenth century, and to what extent was it opposed to sortition? In France, women, servants, and the poor were excluded from the circle of active citizenship, with the result that the percentage of individuals in the adult population who benefited from suffrage was scarcely higher than in Athens with all its slaves, even without taking the French colonies into account. Moreover, even those individuals from the working and middle classes who did achieve active citizenship could not be elected to the National Assembly, as they did not pay sufficiently high taxes – a provision that it would take several decades to abolish. The Declaration of the Rights of Man and the Citizen endorsed this elitist perspective when it stipulated in Article Six that all citizens, being equal before the law, “are also admissible to all dignities, positions, and public employments, according to their capacity and with no distinction other than that of their virtues and talents” (my emphasis). The republican meritocracy of virtue and talents was opposed to the old aristocratic privileges. It praised wisdom, education, patriotism, and devotion to the common good, but it was coupled with a plutocratic conception: At the time, the word “capacity” (capacité) referred not just to education, but also to the ability to pay tax. Things were not substantially different in the United States. As we have mentioned, Manin’s primary explanation for the disappearance of sortition rests on the nature of the system of government that the leaders of the French and American revolutions sought to implement. Their aim in overthrowing existing regimes was not to bring about popular ­self-government, that is, “genuine democracy,” but rather to establish “representative government” in which rule by “the best” would be ensured through elections rather than noble status. As Sieyès (1985, p. 236) recognized, “the difference is immense.” The objective was thus an elective aristocracy, a notion coined by Rousseau, although the term aristocracy could hardly be used after 1789: This was a new form of aristocracy that stood in opposition to its hereditary predecessor. The difference with Chinese meritocracy was also important, as in the Middle Kingdom, the selection of the wisest and most virtuous primarily took place by means of examinations. During and after the revolutions, the definition of what constituted merit ­varied according to the political tendencies. Conservatives linked it to statutory

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features, such as an aristocratic lineage. The rising elite stressed the importance of money: Those who paid sufficient taxes had demonstrated that they could wisely manage their personal budgets and were thus equipped to deal with public money (in some Protestant regions, as Weber has shown, they were also seen as chosen by God). Revolutionary republicans considered civic virtue and patriotism as core elements of merit which were quite unequally distributed among the people. From an Enlightenment perspective, merit was closely related to education, and this reasoning was shared by most of the left-wing advocates for extending education to the masses. When European states imported public examinations for civil servants from China, merit increasingly came to be defined in terms of intelligence and learning. Later in the nineteenth and in the twentieth centuries, many socialist, communist, and anarchist thinkers stressed the role of the avant-garde as rational actors who knew better than the people what was good for them. In addition, nearly all actors shared prejudices based on “natural” features such as sex and race. On the whole, stressing the individual merit of those who should hold office was hardly compatible with practicing sortition among all citizens. One explicit criticism of lot in the name of meritocracy can be found in 1818, penned by the conservative Neuchâtel committee that advised abandoning sortition in this canton, writing that “the authorities were not to be elected blindly and so that the more ignorant could be preferred to the more able” (Neuchâtel city archives, B 201.07.002, “Conseil et charges”, quoted in Mellina 2021, vol 2, p. 114). Similarly, in 1828 the left-wing liberal and future radical Henri Druey (1828, quoted in Mellina 2021, vol 2) in the canton of Vaud wrote: the principle of fatality and lot, which is its organ, leads to this absurd as well as inevitable result: to form a government immediately drawn by lot from all the inhabitants of the country, without distinction of age, sex, or of capacity! I do not say to the partisans of lot in our Canton: you want to introduce such an ochlocracy, but I tell them: the principle of the lot from which you are starting plunges you into this abyss.

Modern Western conceptions of meritocracy thus made a democratic, Athenian-inspired form of sortition almost impossible. The only reported case of drawing lots among all citizens was the so-called Kübellos in Glarus. In this canton, the citizens’ assembly (Landsgemeinde) continued to form the heart of the political system. Inspired by the egalitarian ideals of the French Revolution, sortition completely replaced elections in 1791 in Glarus. However, the new system was far from democratic: When common men were selected by lot for offices, they immediately sold this privilege to wealthier individuals – the only ones who could afford this investment, given that offices were still venal and that before taking office, the selected individuals had to pay a large sum to the state. The Kübellos system was therefore a kind of democratic lottery: It symbolically recognized equal rights and distributed important sums of money as in a game of chance, but it did not in practice change the elitist structure of the ruling political group. The practice was definitively abolished in 1836 (Rambert 1889, pp. 276–277; Dupuis 2021, chapter 4).

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However, although this opposition between meritocracy and sortition seems quite intuitive to most twenty-first century readers, it must be further nuanced in its historical context. In Switzerland, the republican government manifesto for the 1799 elections was explicit on the subject of meritocracy. It urged its followers to the first-level assemblies, which were open to all active citizens and whose task was to nominate the second-degree electors who would subsequently choose the representatives (“Proclamation du 13 septembre 1799. A l’époque des Assemblées primaires et Électorales,” in Bulletin officiel du Directoire helvétique & des autorités du Canton du Léman, vol. 1, pp. 193– 195, quoted in Mellina 2021,vol. 2, p. 57): Seek out the most honest and informed of you; these men who, far from any party spirit, carry in their hearts only the love of the Fatherland; who, strong against seduction, know how to refuse their vote to the ambitious and selfish who seek it; who, finally, have the clear will to carry out their mission with dignity, therefore adding the essential qualities that this mission requires; only those deserve to represent you in the important work of the elections.

The manifesto added, this time addressed to second-degree electors: The People, whose trust surrounds you, have their eyes fixed on you. They expect wise Legislators from your hand; loyal Civil servants; righteous and incorruptible Judges, stranger to any personal considerations, far above all fear and all sight that you would not dare to confess; your only wish, your sole care must be to seek and choose the worthiest, the best of your fellow citizens … wise and enlightened guides.

But as we already know, once selected, half of the second-degree electors were deselected by lot, which was also combined with election to determine the five members of the Directory. An elective aristocracy was thus compatible with sortition when the latter was used as a complementary procedure. The spirit of the Helvetic Republic was well summarized by Frédéric Monneron, a pastor from the Canton of Vaud and the most explicit defender of sortition aside from Ochs. In 1800, Monneron (1800, quoted in Mellina 2021, vol 2, pp. 59ff) argued for a hybrid government combining election and sortition, where the former would allow a democratic meritocracy to flourish, and the latter would prevent cabals from forming: Heredity, lot & election are the three means one knows by which a government can fill its vacant positions. Heredity, incompatible with the freedom of a people, cannot be appropriate in any Republic … The election is in the spirit of democracy, lot is not against it. The latter breaks the plot, the former calls for merit … Wisely combined with each other, they offer a wise people all the advantages that can be expected from a solid & beneficial constitution. The common man who only knows the sharp words of aristocracy & democracy does not imagine that there is hardly any government that can be placed with precision exclusively under one of these banners … These two words [are] only … the two extremes of a host of political combinations … there can be no doubt that there are indeed, between our ancient forms and our modern forms, several possible

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combinations, infinitely more favorable to the natural rights of man than the former, and to the tranquility of the Republic than the latter. I will no doubt be asked what these combinations are. I will answer: all those in general who make the will of the people contribute to the creation of their magistrates, without exposing them to the intrigues.

Interestingly enough, the pastor Frédéric Monneron was more accurate in his analysis of sortition and elections than many philosophers like Montesquieu and Rousseau. His argument shows clearly that the dichotomies elections/ sortition and aristocracy/democracy were not overlapping. In Switzerland, until the end of the 1820s, some conservative cantons such as Geneva were in fact quite hospitable to sortition (Herrmann 2006, pp. 460–465, 470–473). More importantly, no democratic defense of sortition in politics was made, either during the revolutionary period or during the decades that followed. Peter Ochs, who led the left-wing republicans in Switzerland, spoke about the “equal rights” and “real merit” that sortition could recognize, but his reasoning was not specific to drawing lots and could equally apply to universal male suffrage. In fact, Ochs was only repeating a common idea at that time, which culminated in the important expansion of political rights: Enlarging the circle of those deemed worthy of being selected for offices meant loosening the control exerted by traditional social elites. And when lower-class Swiss democrats became increasingly active in the first half of the nineteenth century, they were not particularly interested in political procedures: They never mentioned sortition and instead focused their action on economic and social issues. In France, in the late 1790s, the Conspiracy of the Equals, whose most visible figure was Gracchus Babeuf (1760–1797), was later viewed by Marx as the first communist movement. It explicitly fought for democracy but did not mention sortition. It only advocated for a return to the 1793 Jacobine constitution, which combined elections with the people’s strict control over representatives (Buonarroti 1869). In most European countries, during the nineteenth century, democrats fought to expand political rights and to limit the power of representatives, but they never championed sortition. Politics in Large Nation-States A second conceptual argument against selection by lot stemmed from the growing size of the nation-state. From Antiquity to the Early Modern period, the first taming of chance meant that through the combination of sortition and rapid rotation, all the members of the group among which lots where drawn had a reasonable chance of holding office someday. There were huge differences between aristocratic, “popular,” and democratic versions of the first republican ideal, but to a large extent, they all relied on the same concepts of self-government and the “distributive republic.” The problem became somewhat different when the wave of eighteenth-century revolutions established the modern republics. The new republicans recognized the symbolic and statutory equality of active citizens (at least “in the measure of their capacities”). But demographically as well as geographically,

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the scale of the political community became incomparably larger than it had been in Antiquity, the Middle Ages, or the Early Modern period. Athenian democracy had 30,000 to 50,000 citizens, for a population of 250,000 to 300,000 residents. France in 1789 numbered 4.3 million active citizens and more than 27 million inhabitants, while England’s population of 8.5 million, despite a high property qualification, still produced 338,000 recognized electors – ten times more than in Athens (Gueniffey 1993, p. 97). In 1783, the United States had a population of approximately 3.5 million, including 500,000 slaves and around 750,000 free men above the age of majority. Electoral qualification varied from state to state, but everywhere more than half of free men were able to vote for the assemblies, this number sometimes rising to more than 80 percent (as in New Hampshire or South Carolina), so that the total number of men eligible to vote probably hovered around 500,000. Furthermore, France, England, and the United States were incomparably larger in size than previous republics. Even most of the individual American states were much larger than classical Attica (approx. 2,500 km2), the Republic of Florence (approx. 3,500 km2 without the urban possessions whose inhabitants could not become Florentine citizens, and much less if we subtract the contado, whose peasant population was excluded from the civic body), the European communes, and the Swiss cantons of the Early Modern era. If sortition among all active citizens had been used for assembly and central government offices in the late eighteenth century, even with a system of rapid rotation, only a few tens of thousands of citizens could have expected to serve during their lifetime. In France, for example, if each active citizen had had an equal possibility of participating, this would still have represented at best a 1 percent chance, considerably less than Montesquieu’s “reasonable chance of serving the fatherland.” Part of the ancient republican legitimacy of selection by lot could therefore not find its footing in modern political life. Contemporary philosophers and politicians repeated ad nauseam and in unison that ancient and modern republics differed qualitatively because of their scale. It was more difficult to make sense of selection by lot among all citizens in such big nation-states. In fact, proposals in this direction were few and far between. In September 1792, Théodore Lesueur, a member of the Cordelier Club influenced by Harrington who was interested in the Athenian and the Venetian systems, proposed a draft constitution that democratized the latter’s design and wherein a body of 100 second-degree electors would be selected by lot in each electoral district of 1,000 citizens (Idées sur l’espèce de gouvernement Populaire, 1792, quoted in Dowlen 2008, pp. 196–199; Hammersley 2005). In February 1793, National Convention member François Agnès Montgilbert (Avis au peuple sur sa liberté, 1793, quoted in Gueniffey 1993, pp. 119–20), also citing Montesquieu, criticized the aristocratic character of elections and implicitly defended selection by lot: There should be no reason to choose one citizen rather than another as a public ­official … for what are preferences accorded to virtue or talent other than privileges which always give rise to dangerous comparisons, and which accustom the people to believe that one man is worth more than another man?

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Once again, the argument fell on deaf ears. Montgilbert himself conceded that the prerequisite for selection by lot to be used satisfactorily – the development of a strong civic culture – did not yet exist. Even from a radical democratic perspective, it was difficult to imagine what could be the principle in whose name one group of citizens, rather than another group, would be randomly given the chance to govern. Since someone had to be entrusted with power, it was more logical to choose the most capable, the most patriotic, or the most virtuous, even if the socially elitist definition of “the best” was often contested. This is perhaps one of the reasons why radical democrats defended universal suffrage and federations of small self-governed political communities, as well as referenda and citizens’ initiatives, but never advocated for sortition. However, it is hard to find a trace of arguments made against sortition explicitly on the basis of the increasingly larger size of political communities. In addition, there was nothing preventing the use of sortition as an impartial procedure among a chosen few. In the United States and France, some isolated voices still spoke positively of sortition in such contexts. Thomas Paine (1737–1809) proposed the idea for the Speaker of Congress. These efforts bore little fruit, however, and selection by lot eventually gave way entirely to secret ballots. Sortition survived only on the margins  – for instance, it appeared in the first North American federal constitution in 1777 as a way of resolving persistent disagreements (Dowlen 2008, pp. 152–165). At the Philadelphia Convention (1787), James Wilson (1742–1798), one of the Founding Fathers, explicitly invoked the Venetian example and proposed that the president of the United States be elected by a college selected by lot from members of Congress (Manin 1997, p. 80). The idea was rejected without any veritable discussion. Although the English word “ballot,” inspired by the Venetian ballottino, originally designated both selection by lot and election, it ultimately came to refer only to the latter. In France, prior to 1789, Abbé Sieyès (1748–1836) had already contemplated replacing the primaries where citizens chose second-degree electors with a system in which these would be selected by lot. In line with the conventional wisdom during the Early Modern period, he thought this would reduce the likelihood of cabals, which threatened to turn primaries into a blood sport. The idea was never implemented, however (Gueniffey 1993, pp. 120–121). In 1789, the different committees in charge of revising the constitution were drawn by lot among the Constituent Assembly to avoid provincial factions. Much later, when the Third Republic was created in 1870, this system would be reinstated to select the temporary offices that would then elect the members of the parliamentary commission. This kind of compromise voting tended to favor young and middle-class members of parliament instead of influential elites (Cirone and Coppenolle 2019). Though it lasted until 1910, its overall importance was limited. In 1792, the revolutionary François-Xavier Lanthenas (1754–1799) wrote that sortition among all citizens was a bad idea but that drawing lots from the three best-ranked candidates after an election might have a calming effect and help to resolve conflicts. He enlisted Montesquieu in support of this argument (Lanthenas 2013, quoted in Gueniffey 1993, p. 120). At an election meeting

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in Paris in December 1792, a voter proposed that the thirty-six offices in the administration of the département that were at stake should be filled by sortition from a list of citizens previously chosen for their integrity, patriotism, and competence. But he was told that the law prohibited such a method, which did not meet the basic requirement of a relationship between citizens and representatives (Gueniffey 1993, p. 124). The Girondin constitutional project (1793) also mentioned selection by lot as a way of forestalling conflict over appointments to the Bureau of the Assembly or the creation of subgroups within it. Nevertheless, these ideas had little resonance in France. When sortition was institutionalized during the Directory (1795–1799), it was a largely secondary device: It was part of a complex process that included elections of electoral assemblies by primary assemblies, who in turn elected representatives who were then divided by lot into two councils, who finally elected the five members of the Directory. More importantly, the Helvetic Republic in 1798 illustrated the full potential of drawing lots in nation-states. For the first time in history, a unified political body was created in this region, with a population of 1,7000,000, and 330,000 active citizens who could take part in the primary assemblies. Sortition was used to whittle down second-degree electors from 3,300 to 1,650; it also played a role in the two legislative assemblies and to select the members of the Directory (Mellina 2021, vol. 1, p. 276). As this Swiss case demonstrates, drawing lots could have been used successfully in the new nation-states at a larger scale. In addition, sortition could have been practiced at a smaller scale within these new nation-states. In France, the Constituent Assembly created 1,200,000 elected offices, including most civil servant positions. Only 2,600,000 citizens paid enough taxes to be eligible. Every two years 50 percent of them could have expected to hold an office, as most of the latter had short mandates (Gueniffey 1993, p. 421). With such numbers, sortition might have seemed natural. By the same token, at the smaller scale of a US state such as Rhode Island (by far the smallest of the federated states, at 3,200 km2) or a Swiss canton, sortition could have been reclaimed as a tool for democratic self-government. We have seen that even in the exceptional case of Glarus, which had a system of direct popular sovereignty thanks to the Landsgemeinde, sortition was only used as a kind of lottery and was abolished after a few decades. Therefore, although many actors believed that representative government fit the new reality of the nation-state and expanded commonwealth, and despite the fact that the size of the new republics was perhaps an indirect factor, scale alone could not have been the decisive cause for sortition’s disappearance in European politics.17 Popular Sovereignty and Mandate-Representation A third potential reason for the disappearance of sortition is tied to the new conceptions of popular sovereignty and representation that emerged alongside 17

This hypothesis, which I proposed in Le pouvoir au peuple (Sintomer 2007), cannot be defended anymore in the light of the present state of research.

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new theories of social contract. In the Christian world, the idea of sovereignty had theological origins. Thanks to Jean Bodin’s (1529–1596) The Six Books of the Republic (1576) and the rise of the absolute monarchy, however, the notion was secularized and the king displaced God. An entity was considered sovereign if it was the sole source of legitimate power in a given territory. Another step towards popular sovereignty was taken in the eighteenth century. According to theories developed by Rousseau and other philosophers, the people must be sovereign rather than the king: The French Revolution gave constitutional support to this ideal. Over the following decades, the concept of popular sovereignty was combined with several much older political perspectives, producing hybrids. One tradition came from Ancient Greece, which conceptualized power as potentially divided between the many (democracy), the few (aristocracy), and the one (monarchy), with mixed government being the best system since it was able to balance the advantages and disadvantages of the aforementioned three forces. The paradigmatic example of this is the division that was instituted in the United Kingdom between the House of Commons, the House of Lords, and the monarch. In continental Europe and North America, mixed government was also coupled with the concept of popular sovereignty, reframed so that the many (the whole active citizen body) had to elect the few (their representatives) who would legislate, and in some cases the one (a republican president), who would embody the political community as the leader of the executive branch. Another conceptual scheme came from an ancient debate within the Church, which during the Middle Ages and the Early Modern period faced a difficult challenge: Who should decide in the absence of unanimity, the wisest and healthiest element (the sanior pars), or the most numerous element (the maior pars, or majority)? A number of compromises were usually made, the Pope being for example elected neither by all Catholics nor by the whole clergy, but by an electoral college of cardinals (the sanior pars of the Church) who elected the sovereign pontiff by a qualified majority (the maior pars of the cardinals). To some extent, elective aristocracy could also be seen as a synthesis between the concept of popular sovereignty and the maior pars/sanior pars dichotomy: the former (active citizens) had the power to select the latter (their representatives). When explaining the disappearance of sortition, Bernard Manin added a second dimension to the principle of distinction defended by the founding fathers of the French and American republics – the consent of the governed. This notion would have already been well-known at the time, in relation both to legislation and to the appointment of rulers, being based on a reinterpretation of the principle of Roman law, quod omnes tangit ab omnibus approbari debet, “what touches all should be approved by all.” This notion, deeply rooted in modern natural law, affirmed the symbolic equality of human beings over and above their multifaceted empirical inequality, which, it was argued, could not by itself confer the right to rule over others (Manin 1997, p. 157).

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Although there were crucial accommodations made with the exclusion of women, poor people, and colonized populations, the explanatory power of this new kind of relationship at the heart of the social contract is undoubtedly strong, especially when combined with the concept of popular sovereignty. For sure, there were pragmatic and theoretical adaptations. In the United Kingdom, the shift was less radical than in France, as the theory of mixed government was more pervasive and durable: Both the monarch and the Lords were not elected. In the United States, the practice of checks and balances limited popular sovereignty, with the judiciary playing a crucial role (the fact that most judges were elected nuanced this limitation somewhat, but the pluralism entailed by the system of checks and balances also relativized the notion of popular sovereignty). Nevertheless, across the Western world, the idea that representatives were legitimate insofar as they received a mandate from the represented, namely the people from whom stemmed ultimate political power, increasingly gained traction and acceptance. It was tied to the rise of natural law but also – and more durably – to the growing hegemony of social contract theory. The ideas of free will and the contract were thus the legitimate basis of both civil society and the state. However, the notion of consent alone is probably too narrow give us the full picture. In the social contract, the exact relationship between the represented and the representatives remained a subject of controversy. Elitist thinkers claimed that people giving consent to their rulers was what mattered, insisting on a strict separation between elections (conducted by the people) and decisions (made by the representatives). Many such as the liberal Antoine Barnave (August 31, 1791, A.P. vol. XXX, p. 115, quoted in Rosanvallon 2000, p. 200) thought that one should be wary of replacing representative power, the most perfect of governments, with everything that is most odious, most subversive and most harmful to the people itself: the unmediated exercise of sovereignty or democracy … The people are sovereign. But, in representative government, its representatives are its tutors and can alone act for it, since its own interest is nearly always bound up with political truths of which it can have no clear or profound knowledge.

Conversely, radicals insisted on the direct or full exercise of citizenship, not on giving consent to be ruled by others. This idea was echoed in the Declaration of the Rights of Man and of the Citizen, which stated in article 6 that “law is the expression of the general will. Every citizen has a right to participate personally, or through his representative, in its foundation.” This ideal of self-government was also widespread during the American Revolution, and later in the labor movement. Others argued, like Rousseau before them, that representatives were the mere instruments of the popular will, and that the people could and should therefore control them. Locke had theorized the legitimacy of the resistance to oppression in case a breach of trust between the people and the representatives happened because of an oppressive government.

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The Montagnard Rights of Man and of the Citizen Declaration (1793) went even further when stating in its Article 35: “when the government violates the rights of the people, insurrection is for the people and for each portion of the people the most sacred of rights and the most indispensable of duties.” But still, no leaders across the political spectrum called for sortition to be used. The Swiss case illustrates that the new imaginary of the social contract provided a major argument against selection by lot. In this specific context, the idea of consent did not appear so frequently, when the concept of “free will” was on everyone’s lips instead. One of the first criticisms of drawing lots was made by the moderate republicans Usteri and Escher de la Linth (Usteri, Conrad and de la Linth 1798, p. 58, quoted in Mellina 2021, vol. 2, pp. 17–18), who claimed in 1798 that sortition undermined free choice and free elections (die freie Wahl, with “choice” and “elections” being translated by the same word in German), and diminished the accountability that politicians owed to public opinion (and which was the best guarantee to avoid intrigues). One year later, during constitutional revisions, the well-known jurist and republican politician Bernhard Friedrich Kuhn (1762–1825) protested that “it is not the lot, but the free election of citizens who should appoint the Republic’s officials.” Another representative, Genhart, added that sortition would weaken the representativeness of the legislature because “entire communities would not be represented.” The lawyer Henri Vincent Carrard (1766–1820), in the name of the constitutional committee, said that “in a representative republic, the most beautiful right of the people is that of choosing one’s authorities. According to our Constitution, the exercise of this right is the only act by which the Helvetic people demonstrate their sovereignty.” However, the deselection of half of the second-degree electors by sortition was in fact depriving half of the Helvetian people of “this beautiful privilege.” Sortition therefore “went against the republican system” and “the sovereignty of the people.” (Actensammlung aus der Zeit der Helvetischen, vol. 4, July–September 1799, pp. 1344–1346, 1364, 1382, quoted in Mellina [2021], vol. 2, pp. 47, 49). The “right of freemen to choose their own authorities,” a widely shared ideal of the time, was thus widely mobilized against sortition. The crucial importance of free choice was also mentioned with regard to legislative selections. The electoral committee, dominated by conservatives, which successfully proposed abolishing sortition in Neuchâtel in 1818, wrote that sortition deprived the Council “of the right it should have to appoint its members by free choice.” This was the reason why, when pleading for the abolition of selection by lot, the Committee was “proposing nothing else to the Council than reclaiming a right” (Neuchâtel city archives, B 201.07.002, “Conseil et charges: Rapport de la commission chargée de la révision des règlements relatifs à l’élection des Membres du Grand-Conseil,” 1818, quoted in Mellina 2021, p. 117). In 1825, the conservative jurist von Haller also praised “voting one’s conscience,” an act that was impossible when sortition was concerned. He added in a line from Condorcet, explaining that it was crucial that a “true,” “real,” and “absolute

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majority” should decide the result of the vote, and that sortition, when used to deselect second-degree electors or representatives, deprived citizens of their voting rights (von Haller 1834, pp. 393–398, quoted in Mellina 2021, vol. 2, pp. 126–128). From the 1820s on, there was cross-partisan consensus on this issue, as moderate liberals and radicals also argued for majority rule, the equality of voters and of votes, and finally for direct voting, which meant a direct relationship between the people and their representatives (Druey 1828, and Geneva state archives, Rigaud 57/24, “Rapport sur les projets de Lois au sujet des élections par M. le Professeur Bellot,” quoted in Mellina 2021, vol. 2, pp. 134ff.). In a society which was more individualistic and equal than before and where statutory divisions had been eliminated – at least within the exclusive club of active citizens – it was crucial that all individuals could express their own free will, both when contracting with others in the domain of private law, and in politics through the act of voting. This meant the end of all forms of compromise voting, which had only survived in relatively small margins that were hardly compatible with filling public offices by means of sortition. All political voices, from the conservative to the most democratic, now argued that legitimate representation required a mandate from the people, which implied some kind of formal authorization and accountability. Previously, the ancient notion of embodiment-based representation had for centuries been crucial for the legitimacy of the political order. As we saw in Chapter 2, it had an elective affinity with sortition and the complex selection systems of traditional republicanism. Embodiment-based representation was still at stake in several different situations in the new representative governments, however (Hayat 2018a). First of all, active electors were supposed to “be” the people, a part representing the whole without any need to be chosen by the latter – this even though they were only a tiny portion of the people. Second, election by the people caused a unified body to emerge, a house of representatives that physically embodied the Nation, which gave a face to the constituent power, and which could claim: “We the people.” This view was particularly strong in the French vein of republicanism, which was reluctant to grant substantial power to the judiciary, emphasized the indivisible unity of the nation, and viewed the legislature as the only branch allowed to define the general interest and therefore to decide for the commonwealth (given that individual constituents could only account for their particular interests). Republican presidents were also another form of embodiment representation, sometimes competing with the legislative branch. In this sense, representation was not just a matter of giving certain individuals a mandate and entrusting them with acting on behalf of those who elected them. In England, Burke (1775; 1854–1856, vol. 1, pp. 347–349) defended one particular version of embodiment-based representation, arguing that representatives (the House of Commons, but also the House of Lords, judges, and the king) were trustees of the people. Legally, the parliament, not the people, was sovereign in England. Beyond these national variations, this new kind of embodiment of the political community was consubstantial with representative government on the whole

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(Guizot 1821). It explained why elected representatives had what German political theory termed a “free mandate”: An oxymoron which signifies that once a mandate is given, elected representatives are legally authorized to govern without having to respect either their electoral promises or the actual will of the majority (Sintomer 2014b). Nevertheless, embodiment-based representation was increasingly combined with mandate representation, which officially ensured the legitimacy of representative government. After some decades, both conceptions of representation appeared to dovetail together: elections, and elections only, could lead to the legitimate embodiment of the people (in the form of a parliament or a president), because elections were the only way for the individuals who collectively constituted the people to express their free political will. This new basis for political legitimacy meant that the time for sortition was over. This shift was also illustrated by the exemplary – and bloody – failure of the labor movement during the 1848 Revolution in France: When the movement claimed to better embody the Republic than the newly elected parliament, it met with death and repression (Hayat 2014). From Lot to Chance There was also a fourth and decisive factor explaining the disappearance of sortition: A new form of reasoning that was linked to the Enlightenment and which would, albeit with many variants, largely conquer the nineteenth century. Barbara Stollberg-Rilinger (2014a) was the first to hypothesize that the cleaving of sortition from elections was less a political shift than a cultural one: The new horizon of expectations was hostile to the drawing of lots. Maxime Mellina’s research allows us to systematize this assumption. The primary sources he discovered in the Swiss context reveal a reasoning that was likely applicable outside of this geographic region. The vocabulary of sortition exhibits a strong shift at the turn of the nineteenth century. During the Early Modern period, actors spoke of drawing lots (sort in French, sometimes written Sort, with a capital letter that seemed to endow it with divine attributes, or Los/Loos in German, where all nouns are capitalized). A couple of decades later, actors began associating sortition with chance (hasard in French, Zufall in German): This word had pejorative connotations, with chance being seen as untamed, in strict opposition to reason. This new meaning was reinforced in French because sort has a double meaning and can be translated in English as both “lot” (in the sense of drawing lots but also one’s “lot in life”) and “fate” or “chance.” In France, the most important document defending sortition in the Early Modern period, published in Marseilles in 1654, claimed that the introduction of drawing lots in the municipal constitution had been proposed by “a chosen number of qualified and intelligent persons … capable and experienced.” It added (Anonymous 1654, pp. 7–12): it is thanks to Lot that we are free and independent, that affairs are put back in some order, that we live in rest and without trouble, and that we have reason to hope that

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Divine Providence, which seems to have given his approval with regard to this regulation of the Lot … will orient him so happily in the future that he will only make very good and favorable elections.

In Switzerland, Peter Ochs gave more secular reasons: “we are ready to admit that the lot is blind, but the spirit of conspiracies, the circle of one’s acquaintances, and kinship, are even blinder … the majority often has no other right than the right of the strongest.” Ochs added that the lot is an “impartial third man” “who can decide between the minority and the majority” (Ochs 1797, p. 466, quoted in Mellina 2021, vol. 2, p. 108). Such statements were typical of justifications of sortition in the Early Modern period: The introduction of the procedure often came as a last attempt to limit quarrels and corruption, and was usually seen as a means to rationalize the competition for power. Given that the procedure was rational, it was able to persist for decades or centuries, depending on the region. Towards the end of the eighteenth century, “blind chance” was no longer seen as a guarantee of impartiality by an increasing number of practitioners and theoreticians, but instead as an irrational mechanism. Selection by lot was now viewed as “capricious” and “arbitrary” (Neuchâtel city archives, B 201.07.002, “Conseil et charges: Rapport de la commission chargée de la révision des règlements relatifs à l’élection des Membres du Grand-Conseil,” 1818, and von Haller 1834, p. 397, quoted in Mellina 2021, vol. 2, pp. 116, 127). The procedure stood in stark contrast to the “free and enlightened suffrage” of citizens, as the official committee of Geneva, dominated by liberals who successfully proposed the abolition of sortition in 1831, eloquently argued (Geneva state archives, Rigaud 57/24, “Rapport sur les projets de Lois au sujet des élections par M. le Professeur Bellot,” 1831, pp. 8–19, quoted in Mellina 2021, vol. 2, pp. 142–149). Increasingly, people felt that it was the advent of an age, one that was no longer compatible with sortition. During the constitutional negotiations that Swiss delegates held with Napoleon and which culminated in the Act of Mediation of 1803, Citizen Reinhard, Minister Plenipotentiary of the French Republic to the Helvetic Republic, quoted a line by Condorcet according to which “on account of passions, selection by lot may be quite useful today, but in some time, it will be worthless” (Monnier and Kölz 2002, p. 115, quoted in Mellina 2021, vol. 2, p. 84). Three decades later, one Geneva committee’s report added that the hour had come to replace “the democracy of societies in their infancy,” that is “the direct exercise of an illusory sovereignty,” by representative government, the “democracy of enlightened reason.” This move had become possible because “the chains of tradition had been broken.” Switzerland was therefore “free to establish the edifice on new foundations.” (Geneva state archives, Rigaud 57/24, “Rapport sur les projets de Lois au sujet des élections par M. le Professeur Bellot,” 1831, pp. 8–19, quoted in Mellina 2021, vol. 2, pp. 142–149). The report also cited French conservative philosopher and politician Antoine Destutt de Tracy (1754–1836), who in his Commentaire sur l’Esprit des lois de Montesquieu

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(written in 1802 and published in 1819) claimed that “the principle of governments based on the rights of men is reason” (Destutt de Tracy 1819, Book 3). Once again, the cross-partisan consensus that existed on this issue is striking. The prevailing thought was that enlightened citizens, regardless of whether these were defined in an elitist or more democratic fashion, could make rational decisions by use of logic and judgment. Reason was seen as opposed to prejudice, but also to chance. It was time for men to cast out superstition and analyze the world with clear eyes, and to rationally take control of nature, their fate, and other inferior human beings – the latter judged so because of their sex, the color of their skin, or their civilization of origin. Progress was the watchword of this new “regime of historicity” (Hartog 2015). People experienced a radical shift in their space of experience, to use Koselleck’s notion, and their horizon of expectations thus radically differed from the past. Sortition was seen as outdated, a relic, a mechanism that had perhaps been valid in the distant past (in contexts of ancient distributive democracy) or slightly more recent times (such as Early Modern distributive republican aristocracies), but which no longer had a role to play. An essay written in 1828 by the left-wing liberal and future radical representative in the federal government Henri Druey (1828, quoted in Mellina 2021, vol. 2) summarized the new spirit of the time as follows: “random selection is pure chance, a blind, material power that has no self-consciousness … Choice is quite the opposite, it is the function of an intelligence which designs, distinguishes, compares, judges, chooses, or prefers, which understands and is aware of what it does.” Druey interprets this widely shared view through the lens of an appeal to free will. “One will prefer random selection or choice according to one’s own intimate beliefs. There are only two possible alternatives: either one believes in fatalism or one professes free will.” Only those who opt for the former could want to keep sortition as an important constitutional procedure, because drawing lots “is the purest form of fatality.” It “follows from it as if from a source, for it is fatal, it falls from the stars.” Druey adds that drawing lots among all inhabitants would be absurd and lead to an ochlocracy (mob rule). In turn, he levies the most explicit charge against sortition ever made in the name of meritocracy. One must concede, he writes with passion, “to the intelligence, the prudence, the wisdom of the men in charge of the direction of public affairs, the task of deciding whether the necessity, the good of the people, the effects of time, the progress of civilization, as well as domestic and foreign security, the present and the future of the state” must lead to a constitutional change. In the new system, “that of moral freedom,” elections must not be the product of “fate” (sort, which as noted can more easily refer to fate than lot in English). Random selection “is neither intelligent nor free.” The choice “can only be entrusted to men, because they are gifted with knowledge and will.” Druey (1828, quoted in Mellina, 2021 vol. 2) proceeds in praising popular sovereignty and representative government: either the nation can make all its choices without inconveniencing itself, or it cannot. If it can, if it is mature enough for it, all elections will have to be direct. If there are any

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inconveniences in leaving all the choices to the mass of the people, they should be left not to fate (sort), which has nothing to do with the system of moral freedom, but to chosen persons. And once we recognize the need for choice, can we deny that a choice made by chosen people is better than one in which everyone participates without distinction? Can we deny that the people we have chosen to lead society and look after its dearest interests are not the people that we have chosen to make choices par excellence?

Druey’s devastating critique goes on, radically denying the intervention of Providence in random selection (Druey 1828, quoted in Mellina 2021, vol. 2): Fate (sort) is the sworn enemy of reason, since it consists in substituting for spirit, for free intelligence, an inorganic influence without intelligence and without freedom; this wholly pagan doctrine is contrary to our religion, which desires works and an enlightened faith; to morality, which condemns inertia and complacency [to] blind fatality. Fate (sort) is incompatible with freedom: it tramples the nation or its representatives by forcing them to relinquish their noblest prerogative. Politics and history teach us that random selection (sort) is as capricious as the accident of birth; that the spirit of continuation, the principle of conservation have no guarantee with the drawing of lots which, by blind combinations, can bring at the same time in the councils of the republic an immense majority of new and inexperienced men.

With these lines, which somehow offer a counterpoint to Ochs’ argument from 1802, the use of sortition in politics was on its deathbed. In under than three decades, a new mindset had transformed public perception of sortition into an irrational and outdated mechanism.

Sortition and Descriptive Representation We now have a clearer understanding of why sortition was abandoned in the political realm. Two crucial factors were involved. A new conception of representation based on popular sovereignty, seen as a social contract between citizens and representatives, meant that elections became a central tool and a crucial ritual, so that they were much more difficult to combine with sortition than previously. This was reinforced by a new spirit of rationalism, which strongly opposed free will to chance. Additional factors probably also played a role: The scale of the new commonwealth and the dominant elitism did not preclude sortition as a tool for a distributive aristocracy but were inhospitable to any democratic practice of sortition among all citizens. At most, drawing lots could be used as a technical tool in some contexts, but it could no longer be employed as a ritual that ensured the procedural legitimacy of the political order. To a large extent, the first two arguments (a new conception of representation and sovereignty, and a new form of reasoning) still play into critiques of sortition in the twenty-first century. In addition, criticism today usually relies on a meritocratic dimension, arguing that drawing lots would allow ignorant people to deliberate and decide for the political community, instead of allowing the best to emerge via elections. However, at this stage of our inquiry, three questions remain. First, why did a general consensus exist regarding the sharp distinction between the

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judicial sphere, where sortition was used in conjunction with cooption to constitute juries, and the political one, where elections were the only valid procedure? Second, why was the new spirit of rationalism so consistently opposed to sortition? After all, nowadays, proponents of minipublics selected by lot often refer to Condorcet’s reflections on juries and see sortition as an eminently reasonable mechanism to obtain a group which sociologically reflects the diversity of the people in a much better way than most elective assemblies do. Third, why did the actors who were most engaged in the struggle to democratize society and politics not even consider reintroducing sortition in politics? That sortition was not institutionalized in politics is somewhat understandable; that no one called for it to be resurrected as a political mechanism is quite puzzling. During the US constitutional debate, the Anti-Federalists, who represented the left side of the political spectrum and followed, at least partially, a tradition of civic republicanism, vehemently opposed the principle of distinction. Instead, they embraced the concept of similitude between rulers and ruled, an ideal that Hannah Pitkin (1972) has termed descriptive representation. Brutus (Essay III, quoted in Manin 1997, p. 110), a pen name of one of their most influential writers, argued the following: The very term representative implies that the person or body chosen for this purpose should resemble those who appoint them – a representation of the people of America, if it be a true one, must be like the people … It must then have been intended that those who are placed instead of the people should possess their sentiments and feelings, and be governed by their interests, or in other words, should bear the strongest resemblance to those in whose name they are substituted.

John Adams (1735–1826), an Anti-Federalist leader and future president of the United States, added that the representative assembly “should be in miniature an exact portrait of the people at large. It should think, feel, reason and act like them” (Adams 1776). For disciples of this school of thought, the evident danger was that the rich alone would be elected, to the detriment of small and medium-sized farm owners. Elections threatened to favor an elite distinguished by birth, education, and wealth, which would not ultimately reflect the country’s diversity. The Anti-Federalists therefore advocated smaller constituencies, thinking that they would make it easier for people from the middle classes to be elected. They were defeated on this point by the Federalists. In hindsight, it seems doubtful that their suggested instrument would have been effective, especially in comparison with selection by lot. North American leaders, including the Anti-Federalists, saw the jury as the main institution responsible for ensuring civil liberties (Levy 1999, pp. 85–86). Revolutionaries such as John Adams were aware that sortition had been used in Early Modern republics and believed that this device was a reasonable means to avoid internal strife. Adams wrote that in general, “it [was] safer to rely on providence rather than on oneself” (quoted in Gueniffey 1993, p. 121). Why, therefore, did the AntiFederalists not exploit this mechanism’s political potential?

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The question of descriptive representation was also raised on the other side of the Atlantic. Pierre-Louis Roederer (1754–1835), who had been Minister Plenipotentiary of the French Republic to the Helvetic Republic in January 1800, described the mainstream perspective of most members of the French Constituent Assembly when he wrote one year later that “the elective aristocracy of which Rousseau spoke fifty years ago is what we today call representative democracy” (Roederer, Speech of 13 Ventôse, Year IX, March 4, 1801, Œuvres, VII, p. 1401, quoted in Rosanvallon 1998, p. 52). But others sided with the famous revolutionary Mirabeau (1749–1791), who as early as January 1789 argued that the assembly should be “for the nation what a scaled-down map is for its physical area; whether in part or in full, the copy should always have the same proportions as the original” (Mirabeau 1835, p. 7, quoted in Rosanvallon 1998, p. 17). So why not use sortition to draft this map of the people? Probability Calculus, Statistics, and Political Pluralism Sortition is today closely associated with the concept of the representative sample, which is routinely used in the social sciences, statistical surveys, and opinion polls. Probability calculus is what makes this possible: The idea is roughly that, when a sample of differently colored balls is drawn from an urn, it will reflect the composition of the balls in the urn as whole. The larger the sample, the more representative it becomes: A randomly chosen sample of 1,000 individuals will therefore provide a microcosm of the population, with a margin of error of a few percent. What was the situation in the age of the eighteenth century revolutions? French mathematicians, spearheaded by Blaise Pascal (1623– 1662), played a considerable role in the invention of probability calculus in the seventeenth century. This new branch of mathematics then underwent a remarkable blossoming in the late eighteenth century when it was mobilized with regard to the issue of trial juries. When Duport put forward his proposal for the institution of juries in 1790, he referred to the expertise of the Marquis de Condorcet, the man he called “the greatest mathematician of the age.” Probability calculus then served to measure the risk of judicial error, the optimum number of jurors, the qualified majority threshold most likely to result in the best ruling, and ways of making verdicts more rational by asking jurors to answer a set of analytically distinct questions. Many mathematicians took part in the debate, which still has echoes today (Schioppa 1987; Desrosières 2000). However, the idea of a representative sample never emerged. To understand this situation, we need to turn to the history of statistics. This field was rapidly growing at the time. Demography came into existence as a state science in 1662, through the work of William Petty (1623–1687) and John Graunt (1620–1674), while statistics gained traction thanks to the impetus of figures such as the French statesman Vauban (1633–1707), who looked to achieve greater political and administrative efficiency. Demography and statistics implied a “political arithmetic” that treated individuals as equals  – a

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prerequisite for going beyond the mere enumeration of members of society and “counting and manipulating them en bloc” (Le Bras 2000, p. 127). Although well-established on the eve of the French Revolution, these disciplines did not use probability calculus and did not operate with statistically representative sampling as we know it today. At that time, probability calculus was very limited in its social uses. Though exploited to study games of chance, it was not much used by the nascent insurance companies, for example. At first, as in the mortality tables of William Petty and John Graunt, statistics relied on a typical (rather than representative) sample, which was then extrapolated to the whole population, “on the basis of the ratio, supposedly uniform country-wide, between this population and annual number of births  – a ratio measured in a few parishes” (Desrosières 2000, p. 111). In 1825, Adolphe Quetelet (1796–1874), a crucial contributor to the application of statistics in the moral and political sciences, was tempted to estimate the population of the Netherlands using this method. He gave up on the idea when a senior official, Baron de Keverberg (1768–1841), pointed out that birthrates varied across the country and that it was impossible to generalize from a few cases. Until the end of the nineteenth century, statisticians therefore advocated for complete censuses and were suspicious of the extrapolations produced by political mathematicians during the previous two centuries. Of course, by the middle of the nineteenth century, the science of statistics was doing much more than simply reproducing the arguments of the Enlightenment. Quetelet differed from Condorcet because he asked questions “about society and its opaqueness,” whereas his predecessor had sought “to explain criteria of rationality for the choices of an enlightened individual, who himself embodied a universal human nature based on reason” (Desrosières 2000, pp. 98–101). Quetelet elaborated a statistical average of a sociological nature that was quite unique, by combining two notions that had been previously been kept separate: an “objective average,” calculated from a series of measurements of the same object (for example, the population of a town), which neutralized irregularities due to imperfect observation; and a “subjective average,” representing a central trend around which empirical cases were distributed (such as a bell curve, suitable for phenomena such as the distribution of height in a given population). However, Quetelet rejected the arithmetical average, a product of pure calculation, which homogenizes social facts that are not structured around a central trend and seem to correspond to no ideal logic (e.g., incomes in a highly unequal contemporary society): He thus viewed it as a pure fiction. Despite their differences, Condorcet’s enlightened man and Quetelet’s average man were figures of normality, a reference model according to which variations and pathologies could be measured. The enlightened man was in full possession of his reason; the average man was readily identifiable with the middle classes. But this normality was not appropriate in politics after the age of revolutions, with its divided and shifting landscape and unforeseen events leading to polarization or major reversals that could not be understood based

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on rational individuality or centralized trends: The distribution of opinions seldom takes the form of a bell curve. The unity of the nation could well be solemnly celebrated, but real politics had to take into account the irreducible diversity of opinions, if only geographically, lest it fall in the same trap as the Reign of Terror. The ideal of the united city, typical of the Middle Ages and the Early Modern period, had by then lost part of its legitimacy. The growing prevalence of political cleavages and revolutionary movements meant that public opinion could no longer be channeled into either its enlightened or average incarnations: only conflict reigned. The latter at best could represent a mere “arithmetical average,” to use the distinction mentioned earlier, and was therefore illegitimate. This pluralism tended to be negated by the old republicanism, which insisted on the political unity of the republic and presented factions as the worst evil facing the commonwealth. Although strong conflicts divided many cities and political ambitions were widespread, these were seen as negative according to official ideology. Many times, as was the case in Venice, openly campaigning for public office or a specific political movement was prohibited. Machiavelli was one of the very few who saw these types of political conflict as something productive. Only progressively did the acceptance of political pluralism become a central feature of representative governments and especially of liberalism. In the American constitutional debates, pluralism was a key concept touted by the Founding Fathers. Pluralism was also a subject of much debate during the first years of the French Revolution, at least until the fall of Robespierre, and during the First Empire (1804–1815). After the fall of Napoleon, strong limits were imposed on pluralism, as the freedom of the press was far from total, revolutionary elements were repressed, and access to institutional politics was reserved to quite a small percentage of the people. Nevertheless, within these limits, it was still seen as constitutive of the new order. At the beginning of the 1820s, pluralism was theorized by François Guizot (1787–1874) – who would later become the conservative leader of the July Monarchy (1830–1848) – in his seminal book on representative government (1821). For Guizot, the new regime could simultaneously represent the pluralism of civil society and form a chosen body of representatives who embodied the unity of the Nation. The Swiss case is interesting in this respect: The legitimacy of political campaigning was growing as the public sphere increasingly saw clashes of opinions during the first two decades of the nineteenth century. An explicit conclusion was drawn in Geneva by the committee which in 1831 proposed the abolition of sortition in favor of the exclusive use of elections. An open conversation in front of a wide audience was the best way to avoid quarrels, wrote the committee members, as factions were more likely to emerge in smaller circles, as proved by the Venetian example. Opponents of the new politics argued that public discussion was synonymous with factionalism. The committee replied: If what one called “intrigue” were “these frank and open discussions by which the candidates publicly assert their services, their political principles, all their titles to

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the votes they seek,” where was the problem? There was nothing in this way of conducting politics “that repels reason, or that can raise alarm.” (Geneva state archives, Rigaud 57/24, “Rapport sur les projets de Lois au sujet des élections par M. le Professeur Bellot,” 1831, p. 28, quoted in Mellina 2021, p. 155). In a large assembly of voters, there will always be common sense, selflessness, a spirit of order and justice, which will make it the most impartial and informed judge of the relative merit of the various candidates. Illustrious publicists, Machiavelli, Montesquieu, have paid tribute to the ability of the people to make good choices. This skill, in free citizens, is only the use of their reason and the instinct of their true interests.

Drawing lots was no longer seen as an appropriate mechanism for this new political reality. Conversely, both Condorcet’s enlightened man and Quetelet’s average man were appropriate in the case of the jury, which involved no preexisting biases, no ideological divide, and no professional skills: only common sense. Although during the French Revolution, there was a parallel development in mathematical considerations regarding how to achieve the best ruling, the fact that juries required unanimity or a supermajority was to be explained by this specific argument: Consensus was possible because it resulted from a judgment that was within everyone’s reach, and it guaranteed that deliberations had been conducted correctly and followed through to their logical conclusion. To this extent – and because theoretically, jurors had no ideological or material interests of their own to defend – it was possible for trials to be fair and impartial. The rationale, which had largely been applied to political compromise voting in the Middle Ages and the Early Modern period, was now reserved for the functioning of juries. Between the late-eighteenth and mid-nineteenth centuries, social applications of probability calculus, statistics, and juries thus all relied on the concept of “normal” reasoning. This came in several variants: The elitist logic associated with property qualifications awarded full rational normality only to the wealthiest or most enlightened layers of society, while the idea of statistical normality granted this purview to the small and middle bourgeoisie as well. Democrats, for their part, argued that common sense was something shared by all citizens. When applied to juries, however, these different political currents all had one thing in common: Sortition was a useful and interesting mechanism precisely because individuals could be used interchangeably. Conversely, it did not seem like an adequate tool when the objective was representing conflicts of political opinion. Drawing Lots and Games of Chance During this period, games of chance involving the drawing of lots experienced a real explosion in popularity, paradoxically making sortition less credible in the political realm. Originally, dice games date back at least to the third millennium bce (perhaps even to the fifthmillennium bce), while card games spread like wildfire from China to Europe during the late fourteenth century ce. For a

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long time, the Church and official morality condemned games of chance since any profit from these was “undeserved” and the motives that drove people to engage in them were often too close to divination to be orthodox. Operating as a source of social unrest, the passion for games of chance also led to extremes that were harmful to the players and their family. Only the most affluent, especially in the royal and princely courts, could play them “innocently,” since their income and education were supposed to shelter them from such passions and ensuing consequences (Schädler 2008, p. 21; Köger 2008). Although attempts to control the social effects continued, even growing with the advent of a state eager to impart reason and moral guidance, the condemnation of divination and undeserved profit grew weaker as probability calculus came into being, partly through a desire to answer the questions posed by games of chance. In fact, the new forms of mathematical reasoning established rules that objectively measured one’s chances of winning, so that games of chance came to involve a kind of contract in which participants knowingly engaged in a risky venture. A realistic mathematical approach to dice had begun to develop in the Middle Ages, though it had remained marginal. In a more systematic work devoted to drawing lots in Modern Europe, Of the Nature and Use of Lots (1627), Thomas Gataker, whom we have already analyzed for his ideas on political sortition, did not mention probability calculus. Nonetheless, a century earlier, Gerolamo Cardano (1501–1576), one of the best-known mathematicians, doctors, and astrologists of the Renaissance, was among the first to apply rational calculations systematically to his beloved games of chance (Schumacher 2008, p. 42). From then on, everywhere in Europe, states were no longer content to tax card games but developed their own lotteries. Documented as early as the Han Dynasty (206 bce to 220 ce) in China, state-run lotteries were also widely practiced during the Roman era. They disappeared around 222 ce, only resurfacing in the Western world around the fifteenth century (Pardieu 1865, p. 759). Lotteries then quickly spread throughout Europe, radiating out from their early zones of popularity in the Netherlands and the northern Italian Communes, these two regions being the most advanced in terms of trade and finance. Lotteries were especially popular in Venice and Genoa, where they were frequently organized by private individuals: This is where the predecessor to today’s modern game of lotto was invented. As we have seen in Chapter 2, betting on the name of the future members of the Signoria was at the origin of Genoa state lottery. In England, lotteries became institutionalized in 1567. France followed in the same footsteps after 1656, when the state assumed a monopoly over the highly lucrative business of lotteries. Not long before the Revolution, the Loterie royale de France was launched. Between 1777 and 1781, income from lotteries brought in more than taxes on the clergy. It was meticulously based on “the difference between the sum of the prizes actually received by players and the sum corresponding to mathematical probabilities carefully worked out in advance” (Wykes 1964; Belmas 2006, pp. 308–328; Näther 2008). The minimum stake was lowered to encourage mass

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participation, and the royal lottery proved hugely successful. A host of precautions surrounded the proceedings to ensure confidence. There were two drawings a month, held in public. In Paris these took place with pomp and ceremony (Belmas 2006, p. 331), under the supervision of the chief of police, the paymaster-general, the revenue collector, and ministerial aides. On the appointed day, an official put into a large wheel of fortune ninety little cases equal in size, shape, and weight, and containing the same quantity of numbered vellum squares that had been carefully shown to the public before. When they had been well mixed together in the wheel, the five winning numbers were picked out.

No doubt because it did not involve the same level of interaction, the lottery never attracted the same opprobrium as dice or card games – or roulette, for that matter, which appeared in Italy in the seventeenth century and then rapidly spread all over Europe. Nevertheless, the lottery did not enjoy good press among those of enlightened opinion. Not only were the motives of those who took part considered dubious; lotteries were also seen as a source of social disorder, representing a kind of hidden tax. After a period where it was rebranded as the national lottery, the game was finally abolished in 1793, when the Convention described it as “an evil invention of despotism to make the people silent about its misery, by deluding it with a hope that in fact aggravates its misfortune” (Henriquet 1921, quoted in Belmas 2006, p. 334). Although it was reintroduced in 1797 during the Directory (and one year before the creation of the Helvetic Republic) when state finances were in catastrophic conditions, this social custom based on “the luck of the draw” could hardly serve as the inspiration for a political system that prided itself on virtue and exemplary conduct. In addition, framing representation as a political contract in which some but not others were rewarded by chance was too bizarre a notion to be politically serviceable. As lotteries and games of chance were some of most visible incarnations of sortition, they perhaps contributed to the practice’s discredit in the political sphere. The Labor Secession At the time of the French Revolution and in the decades that followed, largescale selection by lot was thus a technique that was theoretically available for use, but in practice struggled to find political legitimacy. No significant political group or movement took up the cause. Once their capacity to serve had been verified, the use of jury members who had been selected by lot was justified due to the interchangeability of such jurors’ common sense-based judgement. But a similar form of legitimacy did not seem attainable in the world of politics, where opinions and interests were frequently at odds with each other. Given that the concept of representative sampling had not yet been discovered at the time, political actors did not believe that sortition was a good method to represent the diversity of ideas and opinions. By the same token, selection by

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lot was also seen as irrational, which was a crucial factor in its disappearance amidst a backdrop of political pluralism. As we have seen, the idea of democratic representation as a “microcosm” or mirror of the people was present at the time of the American and French revolutions. Unable to draw on the concept of statistical sampling, however, those who championed this perspective had to turn to other tools than selection by lot. The Anti-Federalists argued for small constituencies that would favor craftsmen and farmers – a proposal that was rejected politically, and would likely have been of dubious technical effectiveness. The other option available involved separate, corporate-style representation of different parts of the social organism. Thus, at the Estates-General in 1789, one group of women asserted that “just as a noble cannot represent a plebeian nor a plebeian a noble, so too a man, however honest, cannot represent a woman. Between those who represent and those who are represented, there must be an absolute identity of interest.” (Vegetti Finzi, 1992). This path was too reminiscent of the Ancient Regime, however, to truly gain popularity in radical democratic circles. The realization that the more privileged social classes in fact controlled political representation meant that the idea of representation by social groups was regularly revisited in political debates. One of the best-known examples of this in France was The Manifesto of the Sixty drafted in support of worker candidacies and issued on February 17, 1864 by working-class followers of Proudhon. Their argument was simple. The social characteristics of existing candidates meant that labor was effectively deprived of representation. Consequently, workers should separate and assert their autonomy from the “higher” classes. By running their own candidates in a political space in which labor had been marginalized, the working class would allow previously unknown figures with an irreplaceable experience of society to emerge, fighting back against the logic of social distinction that had previously governed elections. Written in the middle of the nineteenth century, The Manifesto of the Sixty harked back to Cleon in ancient Athens: “Besides, would not the votes of their electors give greater authority to their words than any possessed by the most celebrated orator? Originating among the masses, these elections would have a significance all the more striking, the more obscure and unknown those elected were the day before.” (“Manifeste des Soixante,” L’opinion nationale, February 17, 1864, quoted in Rosanvallon, 1998, pp. 76–89). By emphasizing this ideal of nondifferentiation, the authors of the Manifesto thus found themselves in many ways in agreement with the classical democratic case for selection by lot. Workers sometimes randomly selected their representatives during the 1848 Revolution. The practice continued to be used in a secular fashion by labor guilds, on account of its simplicity but also because it limited potential conflicts and was hence a “fraternal and egalitarian” tool. It was therefore seen as legitimate to use sortition within homogenous groups. Following this logic, simple sortition was later corrected using a sort of quotas among the professions during the general assembly of Parisian workers

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on March 20, 1848 (Gossez 1967, pp. 241–243).18 Nonetheless, as soon as a political body included different classes, sortition was no longer considered to be a valid tool, since the unavailability of representative sampling as a conceptual reference meant that political actors could not envision how the sortition of representatives might automatically ensure labor a proportional place. In the 1860s, the solution proposed in The Manifesto of the Sixty turned out to be technically flawed, and the Proudhonian worker candidates ultimately had as little success as the small constituencies touted by the anti-Federalists. The ideal of autonomy thus came to be embodied primarily in the historical form of the labor party, which represented the interests of the working class but also included individuals from other social classes  – even if this subsequently entailed “proletarianization” campaigns to counteract the “natural” selection of militants and especially intellectuals from better-off social classes, for leadership functions within the party. The concept of the representative sample only began to develop in the latter part of the century, together with the rise of the social sciences. Radical activists did not at first think of exploiting statistical sampling. Athens or Florence seemed a long way off, and the historical references of the day were not the republics of antiquity or the Renaissance, but the French Revolution and the Paris Commune – soon to be joined by the Russian Revolution. As a result, avant-garde was the word of the day. Until the beginning of the twenty-first century, the radical Left generally remained suspicious of selection by lot. The social-democratic and communist parties played a major role in the establishment of political democracy and the welfare state in Europe, but they also saw themselves as an alternative political elite, justified by a rational or even scientific understanding of history and society, a kind of “red aristocracy” – sometimes leading to what are now all-too-familiar dramatic abuses. Meanwhile in some cases, such as Switzerland and the western United States, the institution of citizens’ initiatives and the referendum helped to partially establish self-governance based on general participation in decision-making (Voutat 2005; Papadopoulos 1998; Allswang 2000). The Political Division of Labor In parallel, on the elitist side, although the idea that a chosen body of citizens might adjudicate better than the people itself when the common good was at stake had roots in the ancient world, modern arguments in favor of elective aristocracy took on a new guise. No longer was the necessity of a ruling class mentioned only in connection with blood, wealth, or morality. Education, the importance of which stemmed from the ideas of the Enlightenment, was now seen as crucial. Another criterion developed progressively, supported by a new idea imported from political economics, namely that progress was functionally correlated with an increasing division of labor that was bound to affect all of 18

Many thanks to Samuel Hayat for bringing my attention to this.

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modern society, including politics. During the French Revolution, this idea was developed by Sieyès, but he remained rather isolated, as any argument that centered on the division of political labor met with significant suspicion. Wishing to avoid the development of a class of experts in public affairs, many legislators proposed election for the main administrative and political offices, short terms for representatives, and a ban on reelection, on the grounds that rotation would establish itself naturally and that an ever-greater number of citizens would become familiar with how public affairs worked – an argument that had already given rise to much debate during the English Civil War. Technically, the rotation principle proved to be a failure, since those who could not be reelected to one position went on to run for another, and offices began to change hands within a rather limited group of citizens (Gueniffey 1993). Nevertheless, the desire to limit, or even prevent, the professionalization of politics was frequently expressed over the following decades. Some Parisian sans-culottes demanded, if not direct government by the people, at least a “power of supervision and opinion,” defined as a fourth power “belonging equally to all individuals” which the latter “can exercise by themselves, without representation,” and as an essential part of national sovereignty (Bonneville Nicolas in La bouche de fer, October 1, 1790, quoted in Rosanvallon 2000, pp. 43–44; Rosanvallon 2008). Why then did the ­sans-­culottes not propose the selection by lot of juries to monitor the work of political leaders, as was the practice in ancient Athens? As we have seen, sortition was not even mentioned in such radical circles. Conversely, and although a political class was already beginning to develop (Gueniffey 1993), there was no widespread explicit defense of professional politics and the former was never described in opposition to sortition. Within a few decades, however, the notion of the division of labor had largely conquered hearts and minds. Benjamin Constant gave this a famous political expression in his The Liberty of the Ancients Compared with the Moderns. In the ancient world, he argued, liberty meant the direct collective exercise of sovereignty, or at least part of sovereignty, thanks to the “active and constant participation” of all citizens in “collective power.” Such liberty was possible only in small communities with homogenous morals, where slavery enabled citizens to devote themselves to public affairs, and which existed in a constant state of war. In larger modern states, which tend towards to peace and commerce and have abandoned the practice of slavery as civilization has advanced, free men no longer have the leisure to be constantly engaged in politics. The liberty of the moderns is essentially negative. It means that, in the pursuit of one’s affairs, one is protected against wrongful intervention by the state; it rests upon habeas corpus, freedom of opinion, association, and movement, and the right to property. Of course, it also includes the right to influence representatives through elections and public opinion, but the main objective remains keeping as much time as possible for the “peaceful enjoyment of private independence” by outsourcing government functions to a select few, as most citizens no longer wish to take direct

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responsibility for public affairs. Under these conditions, Constant (1988, pp. 309–328) recognized, the exercise of sovereignty is largely fictitious in nature. During the second half of the nineteenth century, this perspective became fully fleshed out as politics became a profession in its own right, and as those who exercised it came to live, to use Max Weber’s famous words, not only for but from politics (Weber 1994, p. 318). To be sure, the development of mass parties weakened Constant’s vision of social distinction as overlapping with political distinction; part of the political elite was now recruited from outside the “natural aristocracy,” including in particular industrial workers. But it was often upwardly mobile sections of the working classes with a higher education levels who occupied positions of responsibility within mass parties (Pudal 1989), and this new elite soon became as professional as their bourgeois counterparts. Squeezed between the growing professionalization of politics and the widespread popularity of elections, political sortition was largely relegated to the annals of history. Modern republics, even ones geared towards a tempered meritocracy, did not embrace the combination of election and sortition that was typical of prerevolutionary republicanism. However, it is striking that Constant could support this system for the selection of the jury and reject it for choosing political officials, and that the arguments against juries composed of lay citizens largely failed to convince the majority, when sortition in politics was otherwise completely absent from the discussion. The political division of labor was not directly a factor in the disappearance of political sortition. Over time, however, when it became a reality largely recognized by most actors, it helped to reinforce a mindset in which sortition was seen as impossible, if it was even mentioned.

Conclusion In this chapter, we have tried to answer a puzzling question: how are we to explain the nearly complete disappearance in Europe, within a few decades, of a selection technique that had for centuries been seen as well-suited to republican government, be it democratic, “popular,” or aristocratic? The answer is complex and multicausal. Sortition did not disappear after the revolutions of the eighteenth century because it had been forgotten, or because it was no longer feasible to draw lots in larger political communities. Quite the opposite: In Switzerland, sortition remained a vibrant practice on the eve of American and French revolutions, persisting in fact until 1831. Moreover, several French revolutionaries were cognizant of this political situation in their neighboring country. In addition, the practice of drawing lots largely fostered the rise of the jury in the judiciary, in both its Anglo-American and in its continental variants. Large-scale sortition was also used in games of chance, especially in state lotteries. The fact that elections were successfully disentangled from sortition must therefore have been a choice, although in most countries, this choice seemed so evident that it did not even warrant mention.

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Contrary to the thesis suggested by Bernard Manin and a myth widely believed in the twenty-first century, the disappearance of sortition was not tied to an understanding that sortition was democratic while elections were aristocratic, with the Founding Fathers defending the latter because they wanted an elective aristocracy rather than a “true” democracy. The paragraphs penned by Montesquieu and Rousseau on the matter merely provided more exegesis of older ideas espoused by Aristotle or at best Contarini, not original reflections on contemporary practices. There is no doubt that the triumph of representative government spelled out the posthumous victory of the elitist political and philosophical currents of older republican schools of thought. From this perspective, the democratic use of sortition among all citizens was excluded, and some explicit critiques of sortition were made by elitist actors. However, while it seems indisputable that the Founding Fathers were no democrats, sortition, as it was practiced in the Early Modern period, was not opposed to but combined with elections; it was therefore not a purely democratic procedure, but rather a tool of distributive aristocracy. Popular use of selection by lot was minoritarian and not widespread at the end of the eighteenth century. What is striking is that after the first decade of the nineteenth century, no significant elitist actors defended the practice of sortition as a secondary method, to be used in conjunction with elections. It could have been a means for deselecting representatives, for choosing public officeholders from a shortlist of individuals elected by citizens, for forming parliamentary committees, for splitting the representative body into two assemblies, and so on – all things which had been practiced widely during the Early Modern period and were still, albeit to a lesser extent, operative in the Helvetic Republic. There were some proposals made in this direction, in both France and the United States, but these were not seriously considered, or suffered from short-lived implementation. At the same time, sortition was by and large not defended as a democratic practice during the period ranging from the revolutions of the eighteenth century to the final decades of the short twentieth century. While one late nineteenth-century dictionary could be found that still defined a democratic republic as a system in which “those who govern are drawn by lot or elected by the people of all conditions,”19 this was the exception that proved the rule (and it should be noted that this entry referred to ancient and modern democracies, rather than contemporary debates). If selection by lot had been widely seen as democratic, why was it not touted as a radical or revolutionary idea? Why did radicals completely overlook the procedure, especially at a time when classical literature and philosophy formed a crucial part of the political culture and Athens was still a democratic reference point? This explanation must be found somewhere other than in the opposition between democratic sortition and aristocratic elections. 19

Dizionario della lingua italiana, Livorno: Fratelli Vignozzi e nipote, 1843, Entry “Repubblica democratica.” Many thanks to Olivier Christin for drawing my attention to this dictionary.

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Nor was the increasingly larger scale of political communities the reason for the elimination of sortition. It is true that size was often mentioned as an important difference between ancient and the new republics, and larger scales probably made democratic sortition among all citizens more difficult when selecting national representatives, for instance. However, the Swiss example described in this chapter illustrates that sortition could easily have been used as a secondary tool to mitigate competition among elected representatives, as was the case during the Helvetic Republic and to a lesser extent during the French Directory. In addition, at the local or cantonal scale, sortition could have been practiced as a tool for self-government. In fact, although explicit scale-based arguments were made against direct democracy and citizen general assemblies, the latter was never mentioned as a downside of sortition. Scale may have had an indirect effect, especially in the long term, but does not appear to have played a major role in the evolution of sortition (Mellina 2021, vol.1). The first decisive factor with regard to the disappearance of sortition was political in nature. The concept of popular sovereignty and the new vision of mandate representation marked a clear break with the kind of embodiment-based representation using various forms of compromise voting that had been prevalent throughout the Middle Ages and the Early Modern era. All active citizens were now supposed to express their personal will, especially when choosing their representatives, and election was deemed to be the appropriate method for this task. Elitist actors wished to reduce citizenship to this act of consent to be ruled, while democratic actors fought for a much more active citizenry and tighter control over representatives. But even the latter did not contest elections and never reclaimed sortition as a valid political tool. Representative government implied that a chosen body of citizens could embody the people or the nation, but this body had to get an explicit mandate from voters to be legitimate. Coupled with the concept of popular sovereignty, this new alignment of mandate- and ­embodiment-based representation was extraordinary successful for two centuries. Free will was seen as essential in both private law and in politics. The Founding Fathers sought to create a new elective aristocracy that would replace older distributive aristocracies. The most democratic activists argued for popular sovereignty and mandate representation, universal suffrage, and a participatory citizenship, but they did not turn towards sortition. Elections were the new ritual that endowed the political order with procedural legitimacy. The second decisive factor was cultural, and it was also cross-partisan. As Barbara Stollberg-Rilinger first argued, and as is demonstrated in Maxime Mellina’s research on Switzerland, the rationalist elements of both the Enlightenment and nineteenth-century thinkers were ultimately quite inhospitable to sortition. For centuries, selection by lot had been seen by many as a rational tool, since it helped to reduce corruption and internal strife between the elites, while at the same time attesting to a symbolic equality among those between whom the selection took place. With the onset of the American and French revolutions, this form of rationality was suddenly disdained, seen as the

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vestige of an outdated and backwards era. In the new political imaginary, sortition was an irrational practice. Political actors now insisted on enlightened free will, denigrating the “blind chance” at work in sortition, using an expression that would pop up again and again in nineteenth-century texts. Interestingly enough, in the military as in the field of criminal law, punishments had become increasingly individualized in the second half of the eighteenth century, and decimation in particular had been delegitimized as a practice. On the eve of the French Revolution, the use of sortition in the context of decimation acted as a deterrent (Stollberg-Rilinger, 2014b). The drawing of lots could not be a ritual anymore, at best a procedure with low intrinsic legitimacy. The contemporary imaginary of progress, supported by a new form of rationalism, saw sortition as a legacy of the Ancient Regime. This shift was akin to the one undertaken by Thomas Aquinas and the Church six centuries earlier when they moved to discredit sors divinatoria, which they saw as an Old Testament relic valid only at the very beginning of Christianity, ultimately become a dangerous form of superstition in the thirteenth century. With the revolutions of the eighteenth century, it was sors divisoria, at least in politics, which came to be seen as the vestige of a remote and irrational past. The plea for free will was opposed to the Ancient Regime and its “regime of historicity” (Hartog 2015). It also differed from the concept of free will articulated by Machiavelli at the beginning of the sixteenth century, when he praised the virtuous political leader who was capable of acting decisively in a time of uncertainty. This Machiavellian reasoning would come back only much later, for example in the Leninist conception of the proletarian revolution, combined with the post-Enlightenment idea that the avant-garde could rely upon a scientific understanding of a progress-oriented history; these ideas would be as foreign to sortition as bourgeois republicanism. These two decisive factors for understanding why sortition disappeared in Europe were absent in China, however. As we have seen, the “mandate” (tianming, 天命) at stake in the Middle Kingdom (Zhongguo, 中國/中国) did not come from the people but from Heaven, and was more on the order of fate than personal will. Furthermore, hegemony of rationality in China was quite different from its European counterpart. Meritocracy attested to by examinations and the harmony of the cosmic order, including the metaphysical realm of humans, were at stake, not just individual rational will. The tropes of the “prosperous age” (shengshi, 盛世), restoration (zhongxing, 中兴), and recovery (fuxing, 复兴) were dominant, and although the latter was somehow forward-looking, it did not imply a radical break with the past that revolution and progress implied in the West. These differences may explain the great divergence which took place between the two civilizations on the issue of political sortition. A third factor explains why sortition came to be seen as completely irrational in politics. Before the end of the nineteenth century, the notion of the representative sample was unknown, and there was no scientific connection between drawing lots and descriptive representation. Many actors criticized

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representative governments where dominant groups monopolized power, first officially by excluding women, the poor, slaves and residents of the colonies from suffrage, and then in a de facto manner once universal suffrage was adopted. They promoted different means to achieve descriptive representation but never thought of sortition as a tool that could potentially create a microcosm of the people, with the strong plurality of groups, interests, and values duly represented. The old tradition of republicanism could represent the diversity of the society through quotas and separate representation of the different statutory groups, while at the same time trying to limit political conflicts and promoting the unity of the political system. Compromise voting was a key tool for achieving this aim and drawing lots was often a crucial part of it. The new conception of citizenship was more egalitarian, at least for those who were admitted in this exclusive club, and separate elections were no longer acceptable, except geographically to represent the various parts of the country. But political conflict and the plurality of interests were now recognized as normal dimensions of the polity, both by liberals and by radical democrats and socialists. It was now seen as normal to campaign for public positions, create parties, and openly defend political alternatives in the public sphere. Without the possibility of drawing on representative sampling, the pluralist and agonistic dimensions of politics seemed incompatible with sortition. The latter was thus uncoupled from elections, which became the central political mechanism. In the judicial sphere, however, it was a different matter entirely. In particular, juries involved subjective judgment, whereas the universal was the purview of the state. Many actors believed that specific decisions in the realm of justice did not demand professional competence but did require the judgment of one’s peers. Similarly, it was argued that juries mobilized the common sense of enlightened persons or average individuals, who were thus interchangeable; they therefore allowed for fair and impartial judgment. Pluralism and conflict were not at stake. Quite the opposite: Consensus was the aim, with unanimity required in the Anglo-American jury and a qualified majority in its French and European variants. In Venice, as in the Roman Catholic Church, unanimity was a sign that God had guided the election. In juries, consensus was a sign that deliberation based on common sense had succeeded and justice had been served. Juries were rightly seen by Tocqueville as an important and intrinsic part of democracy. He did not endorse the Hegelian dichotomy between the state and the universal on the one hand, and civil society and the particular on the other hand, and as a result he interpreted the jury as a political institution. In fact, juries were always a school of citizenship. In addition, until the first third of the nineteenth century, the possibility for juries to nullify the law was largely defended and even realized in the Anglo-American context. However, even in the United States, juries as an embodiment of the people progressively lost legitimacy against the legislative branch, seen as a superior form of representation based upon a combination of mandate and embodiment. When the law was at stake, the nullification doctrine lost ground. And again, the kind of

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politics that were at stake relied on common sense and nullification could only happen in case of unanimity. It was not by chance that the selection of juries on both sides of the Atlantic was for decades conducted by drawing lots from a shortlist – a procedure that could be compared to a specific form of compromise voting. Even when the demand for more socially inclusive juries emerged in the nineteenth century, the aim of consensus and the role of common sense were not challenged. The legitimacy of the jury was powerful enough to resist voices who argued for their abolition in favor of professional judges, when the division of labor increasingly imposed itself as a political trend. In previous chapters, the significance of selection by lot in the republics of Antiquity, the Middle Ages and the Early Modern period has become clearer. We have seen how different these political mechanisms were from what we today commonly identify as sortition and the representative sample. This already gives us some idea of the direction we shall take in answering the third question posed at the beginning of this book: Why is selection by lot making a political comeback, and how should we interpret this renaissance?

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4 The Return of Sortition The Deliberative Minipublics

In the early 1970s, citizens’ juries (small groups of twelve to thirty citizens randomly chosen to convey how the public sees a particular issue to the authorities) marked the return of sortition to politics, almost simultaneously in Germany and the United States. In the late 1980s, consensus conferences of fifteen or more randomly selected lay persons began to be held in Denmark to discuss general scientific and technological questions. At the same time, the idea of deliberative polls on certain issues, involving several hundred citizens, sprung up in the United States, taking more concrete shape by the middle of the following decade. In Australia, a couple of trade unions experimented with randomly selected conferences and working groups to develop new forms of organization and elaborate new guidelines for activity (Carson and Martin 1999, p. 76). Over the following decades, these tools would spread to other countries and lead to many new experiments. All of these devices are part of a broader trend of democratic innovations which place citizen participation and deliberation at the center of the stage (Smith 2009). What is unique about them, however, is that they rely on randomly selected lay citizens. They thus differ from participatory institutions involving voluntary citizens; from social movements claiming to transform society from below via noninstitutional citizen mobilizations; from democratic devices relying on civil society organizations (such as the neocorporatist institutions that have been important since the post–World War II period and have now taken on new life in participatory governance); or from the decisions made by the whole body of citizens in citizens’ initiatives and referenda. How are we to explain the impressive comeback of sortition, after most political actors and observers had forgotten it or dismissed it as obsolete during nearly two centuries? How should this renewal be understood? What kind of democracy is at stake? 188

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The Representative Sample: The Second Taming of Chance At the beginning of the 2000s, sortition could finally take place among all citizens in a context of universal suffrage. We have seen in the previous chapters that drawing lots in the political sphere implies both a symbolic equality among those who can potentially be drawn, and a separation between those inside and outside the circle of sortition. The inclusion of all willing adults in the sortition club is unprecedented in history. At the same time, partly because of the expanded size of the political community and partly because of the political conception underpinning such democratic experiments, this form of citizen participation is no longer seen as enabling government by all members of the political community. The idea, rather, is to represent the people in miniature, to create a “minipopulus,” to use the term coined by Robert Dahl (1989, p. 340). A “minipublic,” as it is more frequently called today, is composed of selected individuals that are supposed to think, discuss, and give their views as the population on the whole would do, if it were suitably informed and had the right conditions for deliberation. Minipublics can thus be analyzed as a new type of embodiment-representation, resembling the collective bodies which were at least partly selected by lot during the Middle Ages and the Early Modern period. One element, however, is radically new: sortition is now seen as the best tool to ensure the “descriptive” nature of this representation, one that sociologically reflects society’s full diversity. Let us take a look at how this development became possible. The Triumph of Opinion Polls The first representative sample based on purely random selection dates back to the year 1895, in Norway, when an attempt was made to enhance statistics by calculating probabilities. The two disciplines, which had developed separately during previous centuries, finally converged on this issue. Subsequently, the technique underwent considerable refinement. Chance was once again tamed, but this time scientifically. Meanwhile, representative sampling was not limited to official statistics, but also spread to private marketing techniques, and via the indirect route of opinion polls, from there to electoral politics. Its first use in this domain came out of the blue in 1936, when the Gallup Institute used “quota sampling” to predict Roosevelt’s victory in the presidential elections, whereas the prestigious Literary Digest, with its long-established “straw poll” method of polling millions of readers, wrongly predicted that his rival would win. However, it would take a long time for sampling methods to become fully accepted in the United States, and even longer in Europe. Spectacular failures regularly occurred, and the method was routinely criticized for its weak scientific basis. Loïc Blondiaux (1998) has provided an illuminating account of how polls based upon representative sampling eventually achieved their now indisputable political position in all countries which enjoy representative government.

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Although opinion polls have never benefited from a spotless scientific reputation, they have been able to rely on the support of major academic figures and have well aligned with the spirit of methodological individualism that has gained dominance internationally in the social and economic sciences. Over the years, polling institutes have burnished their image and expertise, thus achieving some degree of credibility. They can rely on digital means, which have completely changed the material way in which sortition takes place – a change comparable only to the invention of the kleroterion in Athens (Courant 2020b, pp. 343–371). Most importantly, opinion polls have progressively obtained a significant level of political legitimacy. Within the framework of representative democracy, they appear to have given a permanent voice to public opinion in the periods between elections. The views expressed in newspaper columns or in the context of protests and general strikes have always been those of a distinct segment of citizens. But opinion polls, by ostensibly allowing everyone to participate, have largely been accepted as the most reliable way of polling the electorate as a whole and respecting the democratic principle of equality enshrined in universal suffrage. To be more precise, opinion polls are a more successful embodiment of public opinion than other methods, defining the latter very differently from the public opinion of the Enlightenment bourgeoisie or the mobilized masses of the nineteenth century. The success of opinion polls has only been possible, however, because certain actors have enthusiastically adopted them. The media have been precious allies, often using them to question the legitimacy of political leaders, whereas politicians have increasingly drawn on polls to guide their electoral strategies or, when they are favorable, to wield them as arguments in their campaigns for (re)election. This trend has consistently been reinforced during the last few decades. In the abundant literature concerning “new public management,” the polling of random samples of public service users has expanded in several countries, especially in the United States, United Kingdom, and Scandinavian nations. Techniques derived from marketing monitor satisfaction and expectations: For example, satisfaction surveys, citizens’ panels (representative samples of several hundred people regularly consulted by questionnaires), and focus groups (representative samples of ten or more people who meet to discuss a particular subject). One of the main debates concerns the use of quotas: Is it more reliable to directly conduct a selection by lot from population lists, or to establish criteria such as gender, age, education, residential area, and income level, and then use sortition to fill these boxes according to their previously recognized demographic importance, thereby achieving what is called a “stratified” representative sample? The former method seems more objective, at least under ideal conditions. Following the modalities of random sampling in the natural and medical sciences, this method is sometimes applied in the social sciences, or in order to select some minipublics. However, it faces a number of problems, such as a lack of exhaustive lists, the refusal of some contacts to respond, and the difficulty of gaining access to some of the individuals selected by lot.

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Moreover, the statistical notion of random sampling is meaningful only when the sample is large enough (at least several hundred individuals). When a sample only contains a few dozen individuals, the sample can exhibit unrepresentative asymmetries, such as between men and women. In the case of small samples, the objective is obtaining a diverse sample, rather than a strictly representative one. Conversely, the quota method involves elaborating categories to offset the purely mathematical calculus of probability. It means thinking of society in terms of social groups rather than as an aggregation of individuals. Depending on the country, pollsters usually choose one method or the other. Opinion polls have repeatedly come in for strong criticism from politicians as well as academics. The most common objection  – “they always get it wrong” – is also the most superficial. It does little to undermine an instrument of measurement which, though imperfect, is generally reliable in many countries. More technical criticisms, however, may correctly insist that pollsters should be more rigorous. They show, for example, that in addition to the purely mathematical margin of error of 2 percent or 3 percent – which applies to ideal random selection on the basis of probability calculus  – other distortions can arise from the conditions under which polling is conducted, such as the noncooperation or unavailability of randomly selected individuals, the concealment of responses (which requires “correction” on the part of polling institutes), or the occasional need to create relevant criteria to determine a stratified sample. Pollsters should more explicitly acknowledgement these uncertainties in their work and endeavor to relativize the mathematical margin of error. The strongest criticism of opinion polls, both epistemologically and politically, was levied by a number of American academics in the 1960s. Pierre Bourdieu (1993, pp. 149–157) and his colleagues addressed the matter from a different perspective in France, as seen in one of his famous articles: “Public Opinion Does Not Exist.” Bourdieu argued that not taking into account nonresponses, which are unevenly distributed across social groups, meant that crucial sociological information was being overlooked. This can also lead people to believe that everyone has a preformed opinion about everything. The main problem with opinion polls is that they ask citizens to spontaneously reply to questions that they may never have asked themselves – without being able to discuss the matter with others, or even knowing the views of the people they trust. This results in the opposite of what Enlightenment thinkers called the “public opinion”: That is, an enlightened opinion capable under various political circumstances of advising or controlling the sovereign (enlightened absolutism or parliamentary monarchy, respectively), or of replacing the ruler entirely (popular sovereignty). Hence, the public opinion generated by polls is an artifact, which becomes real only because the actors believe in it. This critique has received a lot of public attention due to the fact that polling institutes have themselves begun to harbor doubts about the reliability of their work, partly owing to the growing number of nonresponses, but also to the difficulty of monitoring opinion consistently while taking greater account of the

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predictable effects of public debate (Blondiaux 1998). Critics do not have an easy alternative to suggest, however, not only for epistemological reasons (the categories used in the social sciences are themselves artifacts, which, though constructed with greater rigor and theoretical depth, are operational only insofar as the relevant actors actually use them) but also for significant political reasons. Given that they do not have a different type of public opinion to propose, sociological critics might be accused of questioning the roots of universal suffrage, such as the constitutional principle that everyone should have equal voting power, whatever their background or degree of knowledge. Could the implication be that public opinion (and especially that of the subaltern classes) is an illusory concept, and that only sociologists armed with scientific tools can gain access to the truth, identify the real problems, and convey them to ordinary people? A Revolution in the Selection of Trial Juries In parallel to the triumph of opinion polls, a sea change has taken place r­ egarding the selection procedure for trial juries. In 1880, when the US Supreme Court had to rule on the repeated absence of African Americans from juries in one of Virginia’s counties, it dismissed the complaint because of a lack of evidence that this was due to discrimination (Virginia vs. Rives, 100 U.S. [1880], quoted in Abramson 2003, p. 105). However, things began to change once the concept of representative sampling emerged. The blatant underrepresentation of minorities on juries could no longer be seen as accidental, but rather the clear result of discriminatory practices, especially since probability calculus dictates that random selection should lead different social groups to be represented in accordance with their weight in the population. More actors began to see that a nondiverse jury could only be a manipulated jury. The legitimacy of entirely white juries, especially in the South, who had often taken on the mantle of nullification, could thus be legally challenged. The Supreme Court started admitting statistical arguments in 1935, and in 1940 in a case involving race, it invoked for the first time the requirement that the jury should be “really representative of the community.” (Smith vs. Texas, 311 U.S. [1940], quoted in Abramson 2003, p. 115). In the following years, the Court generally upheld challenges to verdicts on the grounds of biased jury composition, but it was a long time before case law became the norm, and white juries persisted well into the 1960s. For a dramatic change, the country had to wait until the advent of the civil rights movement. Within a few decades, the face of American society was transformed, and the composition of juries was decisively corrected. The scientific basis of representative sampling had not been enough: Social actors had to wield it to bring about change on the ground. In 1968, the US Congress passed a law requiring the random selection of jurors from extensive lists (electoral registers, for example) for all federal trials. In principle, this abolished the use of juries composed entirely of “notable figures” in the community, fulfilling a long-standing democratic demand:

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Everyone now had the right to be tried by a jury made up of “a fair ­cross-section of the community.” (“The Jury Selection and Service Act,” 28 U.S.C., secs 1861–1869, quoted in Abramson 2003, p. 100). The means of selecting this “fair cross-section” was left open, however, and it was only in 1975, when the Supreme Court constitutionalized the principle and thereby extended it to individual states, that the equal representation of both sexes was also affirmed as an unshakeable principle of jury selection. This change was a long time coming: The feminist demand for parity juries went back to the suffragettes of the late nineteenth century, and the first mixed gender jury in history had seen the light of day in Wyoming in 1870. Nevertheless, this reform did not satisfy the most radical activists among ethnic minorities and the lower classes, since these were more affected by nonregistration on the lists from which selection was made. Several legislative measures thus took this argument on board and prescribed sortition from more representative lists, such as DMV lists (individuals registered as having a driver’s license, which functions as the primary proof of identity in the United States) or telephone directories. The movement towards democratically established lists of individuals eligible for jury duty spread from the United States to several other countries. In 1980, France abandoned the lists of “notables” drawn up for this purpose and turned to its electoral register for jury selection. The era of property qualifications thus came to an end.

The First Wave: Deliberative Minipublics as Counterfactual Public Opinion Without this background, it would be impossible to understand why sortition returned to the political stage in the 1970s. When analyzing the experiments that have taken place since then, we must identify two separate waves, however, which are based on differing devices, embody various social dynamics, and point towards different flavors of democracy. To a large extent, the rationale of political sortition has changed between the advent of the first wave and that of the second one. The initial wave of experiments, which included deliberative polls, citizens’ juries, and consensus conferences, animated the democratic imaginaries of sortition until the beginning of the 2000s. It persisted into the following decades, but was accompanied by a second wave, more pluralist than its predecessor. We will look at both of these waves in turn. Moving beyond the notion of representative sampling, the return of sortition must also be understood in relation to the social upheavals of the 1960s and 1970s and a broader push for democratic change. The imaginary of participatory democracy began to inspire activists in the United States, finding support in the academic world (Pateman 1970; MacPherson 1977). These activists elaborated on old arguments about the elitist character of representative democracy and sounded the charge against the existing political system. However, they did not mention sortition. The same was true with the new wave of practitioners

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and academics who argued for participatory democracy across the global South in 1990s in following in the footsteps of the Porto Alegre experiment in participatory budgeting. These individuals were more interested in mechanisms and processes that were bound up with the social mobilization of subaltern groups or challenges to the existing order. In general, although advocates of participatory democracy were attentive to the deliberative quality of new participatory procedures, many of them being influenced by the German philosopher Jürgen Habermas, they mainly saw these as instruments in the service of social change. They maintained a rather skeptical attitude towards sortition-based mechanisms, since by their very nature the latter provide little scope for citizen mobilization and are mainly implemented from the top down (Fung and Wright 2003; Genro and De Souza 1997; Santos 2005). Political movements that focused on sortition only gradually attracted public attention, partly by distancing themselves from grassroots democracy. They were concerned with giving institutional expression to the critique of representative democracy but took a step back from radical left-wing groups whose imaginaries were modelled on the Paris Commune or the workers’ councils of 1905–1920 (in which a general assembly elected delegates subjected to a binding or semi-imperative mandate, to councils or soviets, which in turn elected delegates to higher councils, in a kind of pyramid structure). For its part, sortition continued to appeal to lay citizens, and its attraction only grew as the fascination for vanguardism began to wane and Leninist variants based on an authoritarian conception of the vanguard lost credibility. The title of one of the first volumes to defend the idea of using selection by lot broadly in politics, After the Revolution?, was thus quite revealing (Dahl 1970). The idea of selecting a small group of citizens to deliberate within a regulated procedural framework also ran counter to the imaginaries of the 1970s, which saw the general assembly as the highest embodiment of democracy. In the decades that followed, the way in which power relations were reproduced in organizations or assemblies increasingly came under scrutiny. In this sense, deliberative polls, citizens’ juries, and consensus conferences were all part of a “deliberative turn” in participatory practices, as greater attention was paid to the quality of debates and to the institutional tools that allow people to have their say in a fair and egalitarian fashion. Unlike participatory budgeting as elaborated in Porto Alegre, however, such procedures arose not as demands of social movements but as the experimental brainchildren of intellectuals, and eventually catching the eye of public authorities looking for new ways to ensure legitimacy. The idea of sortition in politics reemerged separately in Germany, where Peter Dienel argued for “planning cells” (Planungszellen) in 1969 – the first ones were tested out in the winter of 1972–1973 – and in the United States, where Ned Crosby, influenced by trial juries, created a similar structure in 1974 that he called the “citizens’ jury.” This latter concept then caught on more widely, whereas the “planning cell” remained largely confined to Germany (Dienel 1997; Crosby 1975). In 1988, James Fishkin invented the deliberative

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poll and tested it out for the first time in the United Kingdom in 1994. All three of these men were social scientists, and because they had no initial support from a movement, party, or institution, all three endeavored to create an institution that would disseminate – or indeed, for Fishkin and Dienel, commercialize – their concept. All three moved quickly to obtain patents, even if Ned Crosby, who had been shaped by the social movements of the 1960s, continued to work from a much more activist perspective. Connections between these men were slow to develop: It was only in 1985 that Peter Dienel and Ned Crosby met for the first time and realized, to their amusement, how similar their methodologies were (Carson and Martin 1999, p. 67). However, a certain mistrust (or even rivalry) often persists between “orthodox” advocates of citizens’ juries and those who champion deliberative polls. Independently of these experiments, the Teknologiradet (the Danish Board of Technology) decided in 1987 to open consensus conferences to “lay” citizens, after a period during which they had been used solely in medical circles in the United States. Only in the late 1990s did political and academic figures begin to consider the consensus conference, the citizens’ jury, and deliberative polling as largely convergent procedures. The first steps were taken towards producing both conceptual and empirical hybrids. Since then, thousands of citizens’ juries, several hundred consensus conferences, and dozens of deliberative polls have been held around the world (Joss and Durant 1995; Fishkin and Farrar 2005, pp. 68–79). Meanwhile, whereas the earliest conceptual justifications of sortition in politics were closely tied to an experimental impetus, a more theoretical process of reflection has begun to gather steam. From the 1990s on, three fast-developing currents independently helped to give theoretical legitimacy to these procedures, at first indirectly and then in more direct ways. One of these currents has drawn massively on the works of John Rawls and Jürgen Habermas to theorize the practice of deliberative democracy in politics (Habermas 1996; Dryzek 1990; Elster 1988). The work and action of James Fishkin is essential when linking the theory of deliberative democracy, whose main authors initially did not speak about sortition, with experiments in political sortition (Talpin 2020, pp. 442–464). Another facet of the existing literature, in particular in the domain of science, technology, and society (STS), concentrates on the widespread democratization of technical and scientific domains (Sclove 1995; Callon, Lascoumes and Barthe 2011). On a less massive scale, a handful of books and articles that defend or indirectly legitimize the reintroduction of sortition in politics have helped to further arouse interest in the subject (Barber 1984; Burnheim 1985; Callenbach and Phillips 2008; Carson and Martin 1999; Dahl 1970 pp. 45–59; Gastil 2000; Goodwin 2012; Sintomer 2007; Buchstein 2009; Van Reybrouck 2016). When the wave of democratic disenchantment discussed in the first chapter crested in Western countries at the turn of the twentieth century, mechanisms employing sortition in politics had already gone beyond the level of isolated experiments: They offered a range of tried and tested techniques and enjoyed a certain degree of scientific legitimacy. A number of social actors, foundations, and

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political leaders in search of innovative solutions have brought these mechanisms in from the sidelines. Critically, the champions of sortition have appropriated the demand for greater democracy from extra-parliamentary movements, integrating it into institutional mechanisms that are generally top-down in nature. In so doing, they have relied on changes that make the composition of trial juries more representative, on the political and epistemological critique of opinion polls, and on neocorporatist participatory forms of scientific innovation. Citizens’ Juries Let us describe more concretely the three main devices that emerged during the first wave of sortition’s return to politics: citizens’ juries, deliberative polls, and consensus conferences. The citizens’ jury (or “planning cell”) was the first sortition-based political mechanism to see the light of day, and it is by far the one that has become the most widespread. Almost immediately, it became a standard procedure in the locations where it was adopted (Font 2001; Sanchez 2000). The cost of juries is modest: 14,000 euros on average in Spain (in the 2000s), where several juries usually work in parallel; quite a bit more, however, in Germany, where the four parallel juries that are used in a standard procedure cost around 100,000 euros (at the end of the 2000s). In its basic model, a citizens’ jury consists of a small group of citizens (an average of twenty-five in Germany, between fifteen and fifty in Spain, twelve to fourteen in the United Kingdom and the United States) selected at random from lists of local residents or electoral registers. The purpose of such a jury is to look for solutions to a particular problem raised by public policies. Most frequently, the issue has to do with urban planning, but the jury may also deal with social and ecological questions or even the electoral process itself (as has been the case in the United States). Citizens’ juries are usually convened at the behest of a public authority. Only in a small minority of cases has a nongovernmental organization (NGO) or a social movement taken the initiative, and in even fewer has a nonstate body set one up. Juries do not therefore control their own agenda and cannot address issues other than those for which they have been convened. In the new context of the 1970s, Peter Dienel’s basic idea was to find a procedure that could address the legitimation crisis of the political system, mitigate the problems associated with the bureaucratization of public action, and enable the genuine participation of citizens. A mechanism that could address these issues would have to meet four criteria: it would have 1) to give appropriate information to those involved; 2) be based upon adequate motivation; 3) be protected against private interests and adequately represent society in all its diversity; and 4) have the potential for intensive use without exponential cost. If we examine these criteria, all the traditional forms of participation seem to possess flaws, albeit of varying severity. Discussion in small groups encourages everyone to express themselves. Sometimes juries work in plenary sessions, sometimes in subgroups. For this

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reason, and because they are led by moderators who know how to keep discussion alive, small groups are remarkable for their production of reasonable arguments, their climate of mutual attention, and the fairly egalitarian basis on which people intervene. Although a group that is not larger than a few dozen can never be perfectly representative in statistical terms, juries achieve a markedly greater social diversity than initiatives based only on voluntary participation. Their sessions are held behind closed doors. Those responsible for their organization, operate independently of the convening authority, are skilled in leadership and group dynamics, and have no stake in the issue under debate; the procedure is generally hard to manipulate, which contributes to its legitimacy. Juries listen to specialists and stakeholders (interest groups NGOs, politicians, etc.). Their work normally extends over two or three days, but the whole process may last considerably longer – if, for example, more than one jury has been convened on the same issue, as the inventors of the procedure recommended. The selection method generally takes one of two approaches. The first consists of randomly generating a list of several thousand households, sending them letters of invitation, sorting the positive replies according to sociodemographic criteria, and then proceeding to quota-based sortition. The other involves selection directly through quota-based interviews (Carson and Martin 1999, p. 89; Kuper 1997, pp. 139–153). A number of measures are designed to favor sortition: participants are contacted in person; their role is symbolically valued according to what the authorities say about it; they are paid a daily allowance (between thirty and sixty euros in Spain, nearly double in Germany and the United States at the end of the 2000s); and special help is given if necessary (for example, regarding childcare or employers). The jury publishes a report on the problem under discussion. Once its sessions are completed, the jury is concluded. The impact of its work on decision making varies greatly from case to case: If its formal organization tends towards the model of the trial jury, it usually delivers consultative advice for the authority that set it up in the first place, not a legally binding judgment. Germany is probably the country in which the experiences of citizens’ juries  have been most lasting and coherent. The son of Peter Dienel, HansLiudger Dienel, took up the torch when his father retired and various consultant agencies further developed the model. In some instances, the results directly influenced public decisions. Thus, in 1991 the Postal and Telecommunications Ministry adopted certain recommendations provided by the twenty-two convened planning cells, most notably those regarding the protection of personal data (Dienel and Renn 1995). The impact of citizens’ juries in the United States led in 1996 to their prohibition for the assessment of candidates in political elections, on the grounds that this violated regulations on the involvement of nonprofit organizations in electoral activity! The first interesting initiative of this kind had in fact occurred during the 1976 presidential race between Gerald Ford and Jimmy Carter, and several others took place in the early 1990s. It is in the United States that citizens’ juries most directly address central political

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issues, such as the 1993 federal budget (this was the first jury convened at the federal level) or President Clinton’s planned reform of the healthcare system the same year. While it is true that Crosby’s Jefferson Center, lacking in sponsors and influence on public policy, closed its doors in 2002 so as to not be required to organize poor-quality juries, ultimately only maintaining its web site, this did not spell the end of juries in the United States (Crosby and Nethercut 2005). In 2021, the Jefferson Center in fact changed its name to the Center for New Democratic Processes and resumed operations. There was a first attempt, in 2007, to convene citizens’ juries simultaneously on the same issue in all the countries of the European Union, then at the level of the EU itself – a procedure that the Organization for Economic Co-operation and Development (OECD) cited as an example of “good practice.” Having discovered this mechanism quite late, France nonetheless caught on quickly and experimented with the procedure more than one hundred times prior to 2015. In spring 2008, the French Socialist leader Ségolène Royal started to put her proposals into practice by organizing citizens’ juries to evaluate public policy in the Poitou-Charentes region over which she governed. In Japan, 150 juries were convened prior to 2010, using a procedure that was based on a simplification of the German model. One of the most spectacular yet ambiguous developments has been in the United Kingdom, where the Institute for Public Policy Research, inspired by German and American experiments, started laying the groundwork in 1994 to popularize the idea of citizens’ juries. In 1996, it launched a first series of experiments on health issues (in cooperation with the King’s Fund Policy Institute), while the Local Government Management Board works with local governments to create juries on questions of urban renewal (Stewart et al. 1994; Coote and Lenaghan 1997; Barnes 1999). Following the election of the Blair government in 1997, the movement saw a period of exponential growth. By 2006, approximately 200 juries had been convened in the United Kingdom on issues as diverse as drug use, recycling, urban management, the challenges of the information society, pornography on television, and genetic testing by life assurance companies. This expansion in topics was often accompanied by a loosening of methodological rules, so that juries were sometimes recruited nonrandomly or even directly organized by the institution in question without recourse to a third party (to select the jury and lead its discussions) (Smith and Wales 1999). However, the price to be paid for such an explosion in political experiments was a certain wariness and suspicion: Citizens’ juries were somewhat discredited, and the pace of such experiments slowed down. Deliberative Polls Whereas the concept of citizens’ juries appears to be largely derived from trial juries (the name itself suggests this, as does the fact that in the United Kingdom and the United States the number of jurors is often set at twelve), deliberative

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polls grew out of the criticisms levied against opinion polls. Invented and developed by James Fishkin (1991; 1995; 2009; 2018), they too follow a highly formal model, yet have undergone important adjustments in several cases.1 The basic idea behind deliberative polls is simple, even if its realization requires a highly sophisticated tool (Fishkin 1995, p. 162): Take a national random sample of the electorate and transport those people from all over the country to a single place. Immerse the sample in the issues, with carefully balanced briefing materials, with intensive discussions in small groups, and with the chance to question competing experts and politicians. At the end of several days of working through the issues face to face, poll the participants in detail. The resulting survey offers a representation of the considered judgments of the public.

Epistemologically and politically distinct from traditional opinion polls, which are merely a “statistical aggregation of vague impressions formed mostly in ignorance of sharply competing arguments,” deliberative polls are meant to tell us “what the public would think, had it a better opportunity to consider the questions at issue” (Fishkin 1995, pp. 89, 162). From this perspective, the aim is thus to elaborate a public opinion that is politically more legitimate than that which results from traditional polls. Deliberative polls exhibit some resemblance to citizens’ juries. Nevertheless, they differ from them first in size, since they usually involve several hundred randomly selected participants (with quota corrections where necessary). This makes them more like a truly representative cross-section of the population. In addition, their cost is not negligible: A small deliberative poll convened at Yale in 2002, for example, cost $250,000 – most of which consisted of $200 allowances to those who agree to devote roughly eighteen hours to the experiment (Straw 2002, p. 16). For this reason, they generally take place on a national basis, but some are limited to a particular region or municipality, and one has been convened at the level of the European Union. Deliberative polls cover a wide range of issues, from social or ecological questions to security matters, the introduction of the euro, and civility in urban life. Quite a lot of adaptations are used to make samples more representative. In the United States, for example, when researchers call a randomly selected number, they may ask to speak to the person whose birthday is approaching, to avoid involving only those who pick up the telephone (who are mostly women). If the answer is indecisive, a follow-up call is made to encourage those who do not usually take part in such polls, most of whom are people with low cultural capital or foreign backgrounds. In the 2000s, compensation of approximately $100 a day was also provided to encourage the same (Fishkin and Farrar 2005, p. 74). Most of the techniques employed by such polls resemble those used in a standard citizens’ jury; however, whereas the latter is given the relevant information only after its work begins (so as to place participants on an equal 1

See also many texts on the Center for Deliberative Democracy website.

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footing), the practice in the case of deliberative polls is to make the information available beforehand. Such deliberations are usually held in public – indeed, efforts are made to heighten their impact by having them televised in whole or in part, in the manner of a classical representative assembly. In the standard procedure, the idea is not to arrive at a consensual written report but to quantitatively take stock of the inevitably varied opinions, and – using questionnaires before and after the event – to monitor how these opinions may change over the course of deliberation. Deliberative polls claim to be descended from both ancient Athens (selection by lot) and the town meetings of eighteenth-century New England (face-to-face deliberation), but they also are marked more strongly than consensus conferences or citizens’ juries by scientific interest in democratic experimentation. The point of such polls is to open the “black box” of deliberation (Talpin 2011), to see how far and under what conditions lay citizens are capable of deliberating on complex matters and, if necessary, changing their mind during discussions. These aspects are strongly emphasized in most of the evaluations recorded. This echoes one of the promising avenues of research on deliberative democracy, which seeks to measure the deliberative quality of debate in different circles, ranging from parliaments to spontaneous citizens’ assemblies and deliberative minipublics.2 James Fishkin sees deliberative polls as a way of approaching the democratic ideal, in which citizens are well informed and actively participate in the political life of the city. However, it remains largely unclear how this enlightened public opinion can play an effective role in decision making, especially since Fishkin and his team are reluctant to entrust evaluations to outside individuals and have generally not given other researchers access to their raw statistical data for verification and comparison. One deliberative poll that had a major political impact took place in Australia, between February 16 and February 18, 2001, one hundred years after the founding of the Australian state. In the context of a mounting national debate about the situation of the Aboriginal people, 344 randomly selected people deliberated on the theme of reconciliation between the nonindigenous and the indigenous populations,3 considering the question from both a historical viewpoint and in terms of the practical measures that might be taken at the beginning of the twenty-first century. The event was organized by an NGO that specialized in deliberative polling, with the assistance of national institutions working on the question of reconciliation, as well as various research institutes and universities. The steering committee in charge of the proceedings was made up of nationally recognized political figures. As in the case of Australia’s first deliberative poll, held in 1999 to discuss the option of moving from a monarchy to a presidential republic, two national TV channels also aired a large portion of the debates. 2

3

See the work done by Bächtiger and Steiner (2015)and others on their concept of Discourse Quality Index (DQI). See https://cdd.stanford.edu/mm/2009/jimenez-australia-deliberates.pdf

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Before the poll began, at the Old Parliament House in Canberra, “micro-­ meetings” took place for a year in areas with a high indigenous population. The 104 individuals who took part in these meetings were selected by lot, and made it possible to include a significant number of Aboriginal Australians. The final sample added another 240 individuals randomly selected at the national level. The overrepresentation of indigenous people, who account for only 2 percent of the total population, was supposed to ensure that the views of this “stolen generation” were truly taken into account, while a “traditional” poll of Aboriginal Australians was conducted to complement the results. The conclusions were certainly interesting. Individuals who took part in the deliberative poll, especially from nonindigenous regions, significantly changed their views on the issues under consideration. Thus, the percentage of people arguing that reconciliation was an important national issue doubled, from approximately 30 percent to 60 percent between the beginning and the end of the discussions; similarly, the percentage of those who stated that Aboriginal Australians were disadvantaged compared to the rest of the population rose from 51 percent to 80 percent. In general, the views of nonindigenous Australians were less divided after the event; a majority believed that Australia was originally occupied without the consent of its native people, who were the country’s first inhabitants, and who thus deserved a public apology. The idea of a contract to define the respective rights of indigenous and nonindigenous inhabitants nonetheless remained more contentious. All told, however, this deliberative poll helped in important ways to foster public debate (Cook and Powell 2003). It marked a turning point in a trajectory that led the Australian government, a few years later, to make a public apology to the Aboriginal people for the horrific acts committed by European colonizers and their descendants. Consensus Conferences In the first wave of sortition’s return to politics, the third procedure involving the participation of randomly selected citizens, the consensus conference, has different roots than the two we have just discussed. In 1977, the US National Institute of Health for the first time convened a conference on breast cancer prevention, at which a panel of doctors questioned experts for two to three days with a view to drafting a consensus report that would outline improvements and command acceptance in medical circles. The starting point was that existing practices were too diverse, without any justification with regard to the effectiveness of treatment, but also that shifts should come about through self-regulation within the medical profession, rather than the arbitrary topdown imposition of norms. Since this turning point, hundreds of medical conferences of this kind have been convened all over the world (Bourg and Boy 2005, pp. 20–22). It is interesting to note that they have been partly modeled on trial juries. Participants, who are often called jurors, are selected by lot following a prior appeal for volunteers.

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With such precedents in mind, the Teknologiradet (Board of Technology) set up by the Danish parliament to evaluate technological issues and foster public debate concerning the implications of the latter, invented the consensus conference in 1987 with the participation of lay citizens. Meanwhile, movements active with regard to the social and political dimensions of technological and scientific matters campaigned for increasingly democratic consensus conferences. The movements in question have become more and more influential, and the new style of conferences has granted them major institutional legitimacy. Instead of panels of doctors, panels of fifteen or so citizens are convened at such conferences, which do not restrict themselves to medical issues, but address topics ranging from genetically modified organisms (GMOs) and nuclear energy to the ozone layer, cloning, air pollution, and food biotechnology. The consensus conference model is also highly formalized. Consensus conferences generally unfold in two stages, spread out over a period of up to several months. In the first, a panel of citizens meets for two weekends and, with the help of trainers and a discussion leader, familiarizes itself with the themes of the conference, formulates a series of questions, and chooses the experts to whom they will be submitted. The second stage includes the conference itself, which lasts three to four days. During the first two days, the experts reply to the questions they received, while the citizens break off from time to time to clarify some of their questions or to prepare new ones. Then the panel deliberates behind closed doors and produces a fifteen-to-thirty-page report with some secretarial assistance. The term “consensus” is a little misleading here, for although a shared orientation is discernable in some cases, the Danish experiments (which are widely regarded as authoritative) have so far been careful to leave room for minority opinions. Finally, the panel of citizens presents the results to the media before forwarding them to various addressees such as members of parliament, interest groups, and scientists (Fischer 2003, p. 212). Several groups of actors are therefore involved in this complex process (Bourg and Boy 2005, pp. 71–88). A consensus conference usually has a sponsor, either public (a ministry or a local or regional authority) or private (a professional body, the media), which influences the composition of its steering committee. The latter, consisting of specialists in conference methods or the scientific field in question, recruits the panel from among citizens, draws up the list of experts to be consulted, and employs trainers to introduce the “lay people” to the specific issue. A professional team of moderators is also hired to ensure that the debate remains of high quality, and to handle any conflicts that may nonetheless arise. What is the role of sortition in consensus conferences? As with citizens’ juries, several methods of selection by lot are available. In general, a list of citizens is drawn up and then a final panel is selected based on sociodemographic criteria and opinions expressed on the theme of the conference. In the first experiments, an initial list was drawn up after a call for volunteers was issued in the press: Volunteers had to submit a letter explaining their interest and subsequently attend a selection interview. To avoid the problems involved

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in this procedure, especially the overselection of participants with high cultural capital, a polling institute is often asked to compile the initial list from the electoral register or the telephone directory (Bourg and Boy 2005, p. 80). As with citizens’ juries, the aim is not obtaining a strictly representative sample, but as diverse a panel as possible, both in terms of sociodemographics and varying opinions on the issue at stake (which is also required of the steering committee, the trainers, and the experts consulted) (Hendriks 2005 p. 96; Guston 1999). In principle, consensus conferences are consultative mechanisms, and there are few cross-disciplinary studies of their real impact on decision-making processes (Joss and Bellucci 2003). Denmark is undoubtedly the country where the mechanism plays the strongest role, since it has vast experience with consensus conferences, and since the importance and legitimacy of the Board of Technology mean that there are many contacts with parliamentary representatives and committees. It seems that certain recommendations made by Danish consensus conferences have directly influenced parliamentary decision making in areas such as health and environmental policy (for example, a tax on private vehicles and the refusal to fund research on animal genetic engineering) (Hendriks 2005, p. 91; Fischer 2003). After the consensus conference on human genome sequencing, in 1989, Denmark decided to ban employers from demanding a genetic health profile from employees or jobseekers (Andersen and Jaeger 1999, p. 335). Due to a change in the ruling majority, however, the Teknologiradet significantly reduced its activities in that domain at the beginning of the 2010s. In other countries, such effects are less common, or altogether absent, and the main contribution of a consensus conference is to symbolically recognize the importance of the political and social dimensions of various scientific or technological questions, and the legitimacy of democratizing both. Moreover, consensus conferences may help to launch or enrich public debate on controversial technical issues, and perhaps even have a lasting impact on the small group of participants. This latter point should not be exaggerated, however, since the real debate on basic technological choices usually arises more from public mobilizations than from consensus conferences (Bonneuil 2006, pp. 257–268). The case of GMOs in France is exemplary in this respect: The consensus conference held on the issue in 1998 was certainly fascinating, but its tangible results have not been so easy to identify. The same seems to have been true for the consensus conferences convened simultaneously in thirty-eight countries in 2009 on the question of climate change. In the move from medical consensus conferences to consensus conferences involving lay citizens, the ideal of self-regulation has often been lost along the way (Sintomer 2014a, pp. 239–263). Eight Common Features Beyond their differences, the three devices of the “first wave” share eight features in common. (1) They constitute minipublics, that is, randomly selected representative samples, or at least fair cross-sections of the community. Most often, they

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are composed through stratified sortition in order to increase their representativeness.4 (2) Most of these experiments are top-down. They are convened by public authorities, or in some cases foundations, in collaboration with social scientists. They are not linked to social movements. They can even be opposed to grassroots and direct democracy or to various social movements. (3) These devices are what Europeans call “protected designations of origin (PDO)”: Carefully designed, closely monitored, and often patented by their inventors. They function well and are highly interesting for a scientific analysis of the ordinary deliberation between lay citizens. The dark side of PDOs is that the political imagination of practitioners remains limited, and diffusion is consequently hindered. (4) Most of these devices are one-time events. The number of institutions that have convened such minipublics several times is quite limited, compared to those which have convened them once or twice. The most significant exception is the Teknologiradet and its consensus conferences. But even in this case, the minipublic has not become part of the “constitution”: In post-2010s Denmark, experiments had largely come to an end. (5) Random sortition is linked to high-quality deliberation. The minipublic is a place where deliberation can take place with carefully balanced briefing materials, with intensive discussions in small groups and in a general assembly, with moderators ensuring an equal and inclusive discussion, and with the chance to question competing experts and politicians. (6) Most of these devices are only consultative. They make recommendations to public authorities, or provide them a kind of counterfactual public opinion, which differs from the wider public sphere measured by opinion polls because it is “enlightened.” The relation between these minipublics and the macropublic is therefore problematic. These devices complement representative democracy. The aim is not to take decisions, but to improve the decision-making process with a device that enables sophisticated deliberation among lay citizens. As Fishkin (1995, p. 162) writes, the minipublics allow organizers to know “what the public would think, had it a better opportunity to consider the questions at issue.” (7) These minipublics are not embedded in everyday social and political life. Citizens have no link with each other, nor are they organized or mobilized. Their discussions unfold within an artificial institution. (8) These devices are concrete embodiments of deliberative democracy which, in most textbooks of political theory, is contrasted with, or even opposed to, participatory democracy. The Contrast with Athens The supporters of citizens’ juries, deliberative polls, and consensus conferences generally believe that civic participation in politics is crucial for the good 4

Nevertheless, in some cases, a pure random selection is preferred, and in others, the importance of sortition is conversely reduced and take place within a list of previously selected citizens who have previously accepted to respond to ordinary commercial polls, especially in cases where no listing of residents is available (Fourniau 2020, pp. 372–399).

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health of the political system. As we have seen in the introduction, they lay claim to an institution they believe to be rooted in ancient Athenian traditions. They barely mention the experiments of sortition in the Middles Ages and the Early Modern period. Let us take a closer look at this “invented tradition” (Hobsbawm and Ranger 1992). Even if we put aside the obvious and important differences between the social, political, economic, and institutional contexts of modern democracies on the one hand, and of ancient Athens on the other, is it accurate to say that we are witnessing a partial resurgence of the ideals of Athenian radical democracy? In Chapter 1, we analyzed the close ties between sortition and democracy in Athens. We also saw that this relationship between random sortition and deliberation was in fact highly complex: Public deliberation took place in many different arenas in the Attic city, but in the courts, juries were required to form their opinion by listening to the various parties without deliberating. Combining sortition with rotating positions of power helped to prevent the professionalization of political activity and, in addition to the existence of public slaves, also to avoid the monopolization of power by experts. Although some leaders had much more influence than ordinary citizens, the latter had a direct say with regard to lawmaking and could, to a large extent, engage in self-government. If one focuses only on procedural elements, there are indeed some parallels between ancient practices and contemporary ones. References to the impartiality of minipublics are certainly still very present, and emphasis is likewise placed on the equal opportunity of being selected for deliberative functions. Nevertheless, a crucial difference separates sortition in Athens from contemporary practices – the representative sample. In Athens, sortition and the rapid rotation of offices enabled citizens to govern and be governed in turn. Therefore, in accordance with classical political thought, sortition tended to be associated with democracy, while elections were associated with aristocracy. Compared to present representative democracy, Athens was a form of radical democracy. Contemporary minipublics are quite different. The idea behind minipublics is using sortition to create a microcosm of the citizenry: A group that has the same features and the same diversity as the citizenry, but on a smaller scale. A group of hundreds of randomly selected citizens tends to be a statistically representative sample of the population as a whole. A smaller group of twelve to twenty-five persons cannot be truly representative, though it incorporates some of the people’s diversity. Both types of panels support and encourage descriptive representation. As we saw earlier in this chapter, the notion of representative sampling is familiar to twenty-first-century readers thanks to decades of its intensive use in statistics and opinion polls. This is why it seems “quite rational to see lotteries as a means to the end of descriptive representation” (Stone 2009, p. 390). However, the representative sample is a late nineteenth-century invention. There could be no relation between sortition and descriptive representation in Athens, as the idea that random selection statistically leads to a cross-section of the population was not scientifically proven at that time. Chance had not

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yet been scientifically tamed (Hacking 1990). We have analyzed how promoters of descriptive representation during the age of the French and American revolutions could not have drawn on the notion of a representative sample, and therefore ignored sortition, putting forward other technical solutions. The fact that representative sampling had not yet been developed, at a time when probability and statistics were already well-established disciplines but had not been combined, was a crucial reason why legislation by lot seemed doomed in modern democracies. Conversely, the return of sortition at the end of the short twentieth century was also linked to representative sampling. In most cases, sortition as it is practiced in politics is now strongly associated with representative sampling. The deliberation of a fair cross-section of the people is not the same as popular self-government, however. Sortition gives everyone an equal chance to be selected; but since this chance is very small, it does not allow all citizens to hold public office in turn. It leads instead to the creation of a minipublic, a counterfactual opinion that is representative of what the larger public opinion could think. This is a second huge difference with Athens. In the Attic city, no one suggested that there might be a potential divergence between the council (Boule) or the tribunals (Heliaia) on the one hand, and the Ekklesia on the other hand. Conversely, high-quality deliberation among small groups of citizens drawn by lot introduces tension between the enlightened opinion of the minipublic and the opinion of the wider public. The statistical similarity between descriptive representatives and the people is only a starting point. When chosen, the members of the minipublic may think, feel, and reason like the people, as John Adams wrote when arguing for microcosmic representation. But the minipublic must deliberate, and during this process, it may change its mind. It may begin to think somehow differently, and this is precisely the added value of deliberation (Sintomer 2010).

The Second Wave: Toward Empowered Minipublics The inventors of the first wave of deliberative minipublics had hoped that these  techniques would sooner or later come into general use, but as of the 2000s, they still had not seen large-scale applications. This, according to Hans-Liudger Dienel (2010, p. 105), the leading expert on citizens’ juries in Germany, is partly due to the concern, expressed by champions of deliberative minipublics, of preserving the “purity” and seriousness of such procedures: I wonder whether the protagonists of deliberative democracy, with their societal approach, with their academic and ideological culture, might be a major obstacle for mass application of citizens’ juries and other direct deliberative instruments. Do they, do we, really want to leave the niche and join new coalitions to see mass application of deliberative democratic tools?

The second wave of experiments has changed this situation. The three “classical” devices of the first wave are still popular, and some of its central actors, most

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notably Ned Crosby and James Fishkin, are still involved. Moreover, the second wave is capitalizing on the achievements and lessons of its predecessor: the techniques for moderating good deliberation among lay citizens; the proof that these lay citizens can deliberate reasonably when organized under the right conditions; the values of impartiality and equality associated with political sortition; and the idea that sortition is based on a representative sample or a fair cross-section of the people and thus enables epistemic diversity. Nevertheless, the actors of the second wave are more diverse than those of the first one: Directly or not, academic research has nurtured the perspectives of activists. “Sortition activists” have published essays defending selection by lot in politics, and journalist David Van Reybrouck’s slim volume Against Elections (2016), translated into many languages, has become a global bestseller. Social movements and organizations defending grassroots democracy have adopted the proposal. With this second wave, the idea of sortition has ceased to be the purview of only academics and institutional reformers, even if the latter continue to play a central role. In addition, the second wave is helping to expand the variety of options. There are greater numbers of experiments, and these are increasingly hybridized and diverse. Two types of sortition have emerged (a distinction that cuts across the second wave but goes far beyond it). The first type is used to select the participants in an assembly, a commission, a jury, or a minipublic. It was characteristic of the first wave of contemporary experiments and remains central in the second one. A second model is used to select individuals for public office. In the Middle Ages and the Early Modern period, we saw that election, cooptation, and sortition were often combined to determine who would hold office. This kind of hybrid did not exist during the first wave of contemporary experiments. The second wave has seen some attempts to combine random selection and elections. Let us first briefly examine the role of sortition in party politics, before looking at the new kinds of minipublics in more detail. Sortition in Party Politics Sortition did not completely disappear from party politics in the nineteenth century, but it remained in use only in marginal cases, as we saw, such as breaking a tie between two candidates. Selection by lot was also used to allot the seats that are “reserved” for Dalits, ethnic minorities, and lower castes in postindependence India (in some constituencies, only people from one of these groups are allowed to present themselves as candidates). In contrast, starting in the 2000s, a series of innovative experiments drew party candidates by lot in the context of competitive party elections. A first experiment of this kind took place in 2006 in Marousi, a medium-sized town in the suburbs of Athens. One hundred and ­thirty-one randomly chosen local citizens voted for who should be the mayoral candidate put forth by PASOK, the Greek Socialist Party (Buonocore 2006, pp. 6–8). They spent the whole day auditioning the various individuals who were running, working alternately between plenary sessions and smaller groups, and in the late

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evening they finally chose the figure who had coincidentally been the least wellknown just earlier that morning. This process was convened by the local Socialist Party, at the behest of George Papandreou, the national leader of PASOK and the president of the Socialist International at that time. This innovative “primary” was inspired by deliberative polling and benefited from James Fishkin’s active assistance. According to George Papandreou, as the demand grows for participation in contemporary democracies, classical Athens can offer valuable expertise; selection by lot can moreover assure equal opportunities in this respect. In addition, the procedure invented by Fishkin offers scientific support for genuine representative sampling and the formation of an enlightened public opinion. If rhetorical inspiration comes from classical Greece, the actual practice is closer to the practices of the Venetian Republic, with its electoral committees partly appointed by sortition. Other experiments have taken place in this vein, especially in small European parties. For example, at the beginning of the 2010s, the local Metz chapter of the French Green Party randomly selected its candidates for local and legislative elections from its membership pool. Persons who would never have participated in internal competition and then an electoral race in fact became candidates. In the polls, the randomly selected candidates obtained scores that were comparable to other Green candidates selected through internal elections. Describing the experiment, one of the candidates, with a background in community organizing, explained that “sortition allows us to tell people who have been in politics their whole life, and who believe that politics is their exclusive purview, that in fact this is not the case” (Sintomer 2011, p. 179). However, it was Mexico that witnessed the most ambitious variant of sortition used to choose election candidates. The procedure was intensely discussed for several years in academic and political circles alike. It was then proposed by the Movimiento Regeneración Nacional (Morena), the party of the future left-wing president, Manuel López Obrador (Aguilar Rivera 2015). Morena decided to select two-thirds of its candidates for the legislative election on June 7, 2015 using a combination of election and lottery (the other third was reserved for external candidates who were not members of the party). In each electoral district, party supporters met in assemblies to elect ten individuals (five men and five women), from which the candidates were in turn selected using a giant lottery system  – a device which echoed the ancient practice of insaculación. Manuel López Obrador described the outcome of this selection procedure with the following words: “Chance decided for us, and not nepotism. There are no more relatives of leaders recommended from the top down, the names that came out of the purses are men and women of the people, citizens that we cannot suspect of any wrongdoing, good citizens who are committed to their country.” This experiment has already had a significant impact throughout Latin America’s second-largest country, allowing outsiders who would never have been selected to become candidates and, for many, members of the national and regional parliaments or the city councils. More people coming from the working class and the subaltern groups were elected. In the constituencies

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with a member of parliament who had been selected through this procedure, the Morena party had better results in the 2021 legislative elections, when this device was reiterated. Interestingly enough, these newcomers are most often quite active in associations and NGOs in their constituencies: They are not professional politicians, but contrary to the randomly selected minipublics, they are neither disembedded from the organized civil society, as the party grassroots has first to elect them in the shortlist from which sortition take place (Poertner 2002). They constitute a form of descriptive representation that couples elective democracy, associative democracy, and random selection. At the same time, it also has increased the power of the charismatic Manuel López Obrador by weakening the importance of internal factions within Morena. In short, it is difficult to make any final conclusions as to political effectiveness at this stage. This combination of sortition and elections resembles how many electoral processes took place during the Middle Ages and the Early Modern period. Conversely, there was no historical precedent for introducing sortition to select members of party assemblies or central committees. In Spain, regional sections of the left-wing parties Izquierda Unida and Podemos also implemented sortition within their internal procedures. In Andalusia, Izquierda Unida randomly selected 15 percent of the delegates of its 2017 assembly. In Valencia and Murcia, Podemos drew by lot 17.5 percent of the members of its standing committee, and the procedure will be extended to the Balearic Islands and Aragon. In France, in 2017, 25 percent of the central committee of République en marche! (“Onwards Republic!”), the new French President Macron’s political organization, were randomly selected among members. The left-populist movement Les Insoumis also used sortition to select among the members the 1,200 delegates sent to its 2017 national convention, and repeated this experiment in the following years. A number of smaller parties have also randomly selected their legislatives candidates or the members of their standing committees. Deliberative Minipublics and Participatory Democracy Democratic imagination has been so prolific that it is impossible to describe all the different forms taken by randomly selected minipublics since the 2000s. Nonetheless, five main sets of experiments can be outlined: the hybridization of deliberative and participatory democracy; the combination of deliberative minipublics with direct democracy; the creation of a new model, the citizens’ assembly; a proposal to use sortition to select the supreme court; and permanent councils drawn by lot within institutions or associations. The first set of innovations makes use of randomly selected minipublics within larger participatory dynamics, particularly participatory budgeting. As we have seen, although advocates of participatory democracy had been attentive to the deliberative quality of the procedures, they have initially ignored or had a rather skeptical attitude towards randomly selected minipublics. When the city of Porto Alegre convened a conference to take stock of the first ten

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years of participatory budgeting and published the proceedings of the latter at the beginning of the 2000s, there was only one article, written by a French scholar, which mentioned the possibility of combining the original device of participatory budgeting with sortition; this article found no echo in the capital of the alter-globalization movement (Sintomer 2002, pp. 57–67). However, starting in the 2000s, the gap between participatory and deliberative democracy began to close in other parts of the world. The citizens’ juries of Berlin, first convened between 2001 and 2003, are one of the most interesting examples, especially since they hybridize Peter Dienel’s planning cells in an interesting way (Dienel himself was not satisfied with this innovation). In each of the capital’s seventeen districts federally targeted for urban renewal, a sum of 500,000 euros is made freely available to a group of inhabitants for projects (Röcke and Sintomer 2005, pp. 139–160). Berlin juries differ from the classical model in three ways. First, they meet in fifteen two- or three-hour sessions, which, in contrast to the more common period of three days in a row, allows members to become familiar with the information and sketches out the bones of what might one day become a permanent body. Second, half of the jurors are selected by lot from the list of residents, and half are citizens active in the local area. Third, and most importantly, these citizens are given decision-­making powers, and the local authorities endeavor to follow their advice, within the limits of their jurisdiction and the legislation. When these juries were established, many social movements that had marked the city of Berlin – such as the squatters’ movement – were waning in power, but participation still remained a significant issue. A new federal urban policy created a political and administrative window of opportunity in which the juries could be created; involvement of local people was declared a strategic goal and, influenced by Anglo-American traditions, the empowerment of those with the least power in society was encouraged. Finally, the initiatives taken in these districts of Berlin were able to benefit from a broader trend of local government reform. The Neues Steuerungsmodell, a social-democratic version of New Public Management, has attempted to foster more goal-directed action across traditional boundaries, and to promote openness, monitoring, and responsibility at all levels of administration, with a view to dismantling hierarchical structures. The establishment of district managers in 1999 in the areas affected by city policy was meant to encourage both community empowerment and administrative modernization. The inclusion of activists in Berlin juries is touted as favoring cooperation between organized civil society and lay citizens, and sortition is seen as a tool to enlarge and diversify (in terms of age, gender, and nationality) the circle of citizens involved beyond the regular. Although young people are somewhat under-represented, as are academic dropouts and immigrants, this shortcoming is less pronounced than in mechanisms based on voluntary participation. District managers have a key function in constituting juries, actively preparing sessions, helping to keep discussions alive, and monitoring the projects that are produced. Registered NGOs also play an active role: They presented

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two-thirds of the projects under consideration by the juries; nearly half of the jurors are recruited from their ranks; and they implement most of the projects that are eventually accepted. In comparison, lay citizens have less weight. Although they account for half of the jurors, they more rarely propose projects and less often contribute to their implementation; their role is most apparent in the discussions. As to the elected councilors and city officials, their intervention takes place mainly before and after jury proceedings. The core value of the juries lies in the capacity of citizens to take decisions on local projects. Although the sums in question are a tiny part of Berlin’s budget, they are not insignificant. Thanks to this decision-making capacity, the Berlin juries are in fact closer to participatory budgeting mechanisms in nature. A total of 700 projects were partially or fully funded in this way during the first two years of the juries’ existence, most of them geared towards helping children or young people. Although this procedure has been successful in its implementation, it has been limited to the micro level and does not permit much dialogue between residents and politicians. An underlying political dimension is present. Several juries have asked to step outside the role assigned to them (just as trial juries have periodically been inclined to “nullify” the law), but this clearly goes beyond what officials are prepared to accept. Some jurors have later become involved in civil society associations, and NGOs have benefited from their experience. However, the fact that sessions take place behind closed doors unquestionably reduces the impact on local communities, as most residents have remained unaware of their existence. The process mostly retains a top-down dynamic: Social movements do not have control of the proceedings, and projects can only marginally correct negative local trends. As a result, the experiment has gradually faded away without provoking any strong public reactions. In the Netherlands, two experiments initiated in 2017 and 2018 respectively seem to be going in a similar direction. The urban district councils in two cities, Groningen and Rotterdam, are now selected by lot instead of being elected or coopted. To fund community projects at neighborhood level, they are empowered to distribute 200,000 euros every two years and 50,000 euros per year, respectively (Lucardie 2019). Other hybridization processes are worth noting: One of the most interesting is the use of selection by lot for some participatory budgets. An experiment has for example been promoted in Australia by the New Democracy Foundation, one of the most prominent advocates of sortition in politics. The City of Canada Bay Council, in metropolitan Sydney, decided to select by lot the citizens who would take part in participatory budgeting, though the latter only has consultative power (Thompson 2012, article 5). During the 2000s, in the Lichtenberg district of Berlin, and in the town of Emsdetten in West Germany, citizens were randomly invited to take part in budget meetings on local government finances and services: Selection by lot was seen locally as favoring sociologically representative participation, and as a means of getting people involved (Sintomer, Herzberg and Röcke 2016).

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Sortition was also used in the participatory budgets of other German, Spanish, and French cities. From 2001 to 2008, in the small French town of Pont-de-Claix (12,000 inhabitants located in the suburbs of Grenoble), the idea of using this method came indirectly from the experience of Berlin juries. During this seven-year period, local councilors selected names using the kind of bowl from which lottery numbers are drawn, mainly because lotteries are common in public festivals; as a result, people both knew how the device worked and where one could be obtained. Pont-de-Claix developed a two-stage procedure. At the neighborhood level, committees were open to anyone who wished to attend and meet once every three months. Their main activity was allocating the funds (16,000 euros per area) that the town council had available for small local improvements. At the town level, a fifty-member Consultative Budgetary Council met several times a year, composed of citizens randomly selected from the electoral register (with a quota for those under twenty-five), plus two representatives from each neighborhood committee. This procedure avoided a pyramidal system in which the town level consists only of delegates from the neighborhoods, as was the case in Porto Alegre. However, this experiment vanished without a trace when the local political majority changed. Others developed in its stead. In 2014, a citizens’ jury was thus established to transparently and impartially allocate subsidized housing in the village of Salon de Provence, in the South of France. Likewise, in 2013, several French members of parliament created a citizens’ jury to distribute the parliamentary funds to which they legally have access. The previous year, the discretionary use of said funds had been at the center of a scandal, and it became crucial for some representatives to distance themselves from their colleagues, while simultaneously expressing their desire to develop a participatory system. In 2005, the Chinese township of Zeguo even combined the participatory budgeting taking place in the city of Wenling (an eastern Chinese city with a population of over one million inhabitants) with a version of deliberative polls (Fishkin et al. 2010, pp. 1–14). A large group of randomly selected citizens would discuss various projects proposed at the municipal level and vote, following their deliberation, on how to prioritize the projects. The members of the municipal council, who attended the assembly without being allowed to intervene, would then meet; their decisions generally followed the recommendations provided by the citizens (He 2011, pp. 89–101). Later, a quota was established to allow for the overrepresentation of entrepreneurs, so that this social class, important for local economic development, could wield more influence than its demographic weight might otherwise allow. One of the originalities of the Wenling budget reform experiment, which is viewed as a model in China, is that it allows members of the local legislative assembly to influence budget negotiations, otherwise a rare feat in this country, where the local government and the Communist Party tend to have a de facto monopoly over such matters (Cheng, Sheh, and Li 2015, pp. 115–118). Zeguo is the only Chinese township where sortition has been tried out, with mitigated success.

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It is interesting to note that in Zeguo as in Pont-de-Claix, a lotto game was used to randomly select participants (albeit with a very modern tool in China). Deliberative Minipublics and Direct Democracy In a third direction, innovation led to combining deliberative minipublics drawn by lot with direct democracy (Steenbergen et al. 2015, pp. 187–204). The first experiment in this vein was the British Columbia citizens’ assembly (2004), followed by the Ontario experiment the year after. The former has become a source of inspiration for other regions. In Ireland, following an initiative launched by academics and a group called “We the Citizens” directly inspired by the British Columbia model, a pilot citizens’ assembly of 100 individuals met in 2011. The group made suggestions for constitutional reform and received significant media coverage. After the 2011 election, the new government embraced the idea. Supported by the majority of the parties, it convened a Constitutional Convention, 67 of whose 100 members were citizens randomly selected from the electoral register. The others were politicians, to avoid the negative pushback from political parties that made the adoption of the proposals coming from the citizens’ assemblies in British Columbia or Ontario more difficult. Several proposals emerged from the Convention’s work, some of which were ultimately adopted by the government and the parliament. The most important was a constitutional amendment aiming at legalizing same-sex marriage, which was ultimately validated by a referendum in May 2015. Although another amendment, concerning presidential term limits, was rejected, one of the most ambitious attempts to combine deliberative and direct democracy can still be considered a great success (Farrell, Harris, and Suiter 2016, pp. 33ff). The process was repeated in 2016–2018, this time dealing with abortion, and in 2020–2021, with issues of gender equality, both times with assemblies entirely selected by lot (Courant 2021). These topics were very significant, especially in a majority Catholic country. One of the most interesting experiments with citizens’ juries, called the Citizens’ Initiative Review, has been conducted in Oregon. Following a grassroots movement calling for deliberative democracy to be reconciled with the existing forms of direct democracy (Gastil 2000), and benefiting from the involvement of Ned Crosby, the inventor of citizens’ juries, members of government from both sides of the aisle decided to institutionalize the use of randomly selected citizen panels. The Citizens’ Initiative Review was officially adopted in 2011. Its principle is the following: Once a collection of signatures meets with success but before voting takes place, a panel of citizen voters is convened to debate and evaluate the ballot measure in question. The panel’s decision is then shared with citizens, as well as the informational material usually distributed (opinions from both the initiative’s supporters and opponents). With this kind of procedure, deliberative democracy does not circumvent direct democracy, but rather increases its rational component. Moreover, it should

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be noted that at the end of deliberation, the panels are forced to elaborate a majority position, rather than reach consensus. The proposals thus submitted to the jury and the popular vote cover a wide range of topics: introducing mandatory minimum sentencing (ostensibly to deter crime); legalizing medical marijuana dispensaries; legalizing nontribal casinos; corporate tax reform, etc. Evaluations of the procedure have been largely positive: Overall, the quality of its deliberation has been touted (Knobloch et al. 2013a, pp. 105–125; 2013b; Gastil, Knobloch, and Reitman 2015, pp. 21–40), and the impact of the juries’ opinions on voting has been nonnegligible. The Citizens’ Initiative Review has achieved international visibility. Other US states have begun to introduce similar devices and in 2020, a pilot project was tested out in Sion, the capital of Valais canton in Switzerland, the country in the world in which direct democracy is currently the most developed.5 Citizens’ Assemblies: An Impartial Jury or a Political Assembly? Citizens’ assemblies have thus been combined with direct democracy in several important experiments. In other contexts, citizens’ assemblies have come to represent a model on their own, in addition to citizens’ juries, consensus conferences, and deliberative polls. As we have seen, the first experiment took place in British Columbia, Canada’s third-largest province by area. The inspiration for the project came from both popular juries in the judiciary and deliberative polls. The name, however, revealed a shift in terms of objectives: An assembly is no longer a “poll,” as it aims to represent the people and propose solutions that will be directly integrated into the decision-making process. This experiment was unprecedented in scope: Its objective was not only to discuss but to develop a proposal that the government had previously undertaken to submit to a referendum. Never before had a group of citizens selected by lot had such major responsibility in a modern democracy. This procedure can be much more labor-intensive than normal deliberative polling. In the Canadian case, an invitation was sent to 200 electors in each constituency, randomly selected according to age and gender quotas. From those who accepted, ten men and ten women were again drawn by lot to take part in decentralized information meetings, and then one man and one woman were randomly chosen per constituency. To the resulting total of 158 participants were added two of the Native Americans who took part in the meetings – given that no one from that demographic was drawn by lot, it seemed an important accident to correct. All the costs of participation in the event (including babysitting) were covered, plus a daily allowance of 150 Canadian dollars (Milner 2005, pp. 3–8; Lang 2007). Meetings were held over six weekends from January 10 to March 21, 2004, and these were followed by dozens of decentralized sessions. At the end of this phase, a “Preliminary Declaration 5

https://demoscan.ch

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to the People of British Columbia” summarized the options under consideration, with the possibility for citizens to submit contributions. After the summer break, the Citizens’ Assembly completed its work over three weekends in September and October 2004, in the large hall of the Vancouver Center; its sessions were televised and attracted considerable attention. The citizens began by selecting two possible options: The first, modeled on the German system, proposed combining representatives directly elected in their constituencies with others elected from a party list to ensure proportional representation; the other, highly complex, method involved the election of two to seven representatives per constituency (depending on size), on a proportional basis that minimized the role of parties by avoiding a list system. Given their distrust of political parties, it was not surprising that an overwhelming majority of the citizens opted for the second solution (the “Single Transferable Vote”). This was submitted to a referendum on May 17, 2005, the parties having declared their neutrality on the matter. To come into force, the proposed reform was required to win at least 60 percent of the votes cast throughout the province and at least 50 percent in 60 percent of its constituencies. Although it was approved in nearly all the constituencies, it received only 57.69 percent of the votes at the province level. Electoral law was, not, therefore altered in the end. The complexity of the proposed voting method is thought to have been a major factor in this disappointing outcome. Despite this relative failure, echoed also in neighboring Ontario, the experiment had important knock-on effects. The methodology of the Citizens’ Assembly is now established as a model that can be reproduced at more modest scales throughout Canada. It has taken the form of consultative citizens’ panels and is now regularly used, albeit in a simplified format. The British Columbia experiment has also been influential beyond Canada’s borders. A Citizens’ Assembly was convened, although in a modified form with purely consultative scope, in the Netherlands. In Australia, the concept gave rise to the Australian Citizens’ Parliament in 2009 (Carson et al. 2013). A militant citizens’ network for new experiments has also emerged at the international level. At the beginning of the 2020s, the popularity of the model grew exponentially, with citizens’ assemblies for the climate convened in a number of European countries and this idea being supported by an increasing number of actors. An important element of this development is the fact that, in some cases, experiments have been convened from the bottom-up, one of the most wellknown being the G1000 in Belgium (Caluwaerts 2012). A group of citizens and intellectuals including David Van Reybrouck decided to convene a citizens’ assembly to address the political paralysis of a country structured by a deep divide between its Flemish and Walloon populations. After the 2010 federal elections, government negotiations took more than 500 days. In this power vacuum, a citizens’ initiative called the G1000 was launched. On November 11, 2011, 1,000 Belgians gathered for one day to discuss three important topics: social security, immigration, and the financial crisis. In addition to being

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bottom-up, the originality of this experiment is that its primary impulse was not the scientific interest of scholars but the concerns of ordinary citizens (Jacquet and Reuchamps 2016, pp. 45–65). The process was organized in three steps: An online consultation determined the topics that citizens would discuss; the citizens’ assembly itself, which entailed a broad discussion between 1,000 citizens that gave further guidelines and received the most media coverage; and a sort of citizens’ jury randomly selected among the G1000, which took place one year later and produced a report with the proposals and material of the conference (Henneman et al. 2012). As the initiative came from civil society, it could not have direct institutional outputs, but it was still an important media event. In the mid-length term, it helped to popularize the idea that citizens did not need to always expect governments to take the initiative and that citizens’ assemblies could work well and produce more reasonable outcomes than representative democracy (Jacquet et al. 2016, pp. 53–74). In Iceland, another variant of the citizens’ assembly was invented, the British Columbia experiment having had at most a quite indirect influence. After the 2008 economic crisis when the country nearly went bankrupt, the desire to change the government and political landscape took the form of enormous street protests. The former prime minister would ultimately be tried for negligence in March and April 2012. In 2009, a citizens’ assembly consisting of 1,200 people drawn by lot and a few hundred qualified figures was formed, following the initiative of civic associations to identify the values upon which the country should be rebuilt. This experiment was repeated in November 2010, this time with governmental support, with a view to adopting a new constitution. The task of the second citizens’ assembly, following in the footsteps of the first, was to determine the main principles that would undergird the new constitutional system. Soon after, a Constitutional Council was elected by the people, consisting of twenty-five lay citizens. The 523 competing candidates were purely individual: Members of parliament were ineligible, and electoral campaigning was legally reduced to a minimum in order to set this event apart from the normal habits of the (now widely discredited) political class. During the spring and summer of 2011, this Council worked on the draft of a new constitution. The most notable innovations were a thorough reform of the balance among the different governmental powers, greater transparency in the decision-making process, a major extension of the devices of participatory and direct democracy, and greater consideration of environmental issues. Draft articles were posted online as they were written, and members of the public could comment and make suggestions via the Council’s pages on Facebook, Twitter, and Flickr. The proposed constitution was submitted to Parliament in the summer of 2011 and was put to a referendum in 2012. This was in fact the third referendum in the space of a few years, the two others having both prompted Icelanders to reject governmentally agreed plans for the payment of the debt resulting from bank failures (in March 2010 and again in April 2011). Icelandic policies have essentially preserved the welfare state, and they have set

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into motion a partial reorientation of the economic model. The major points of the constitutional reform were approved by a vast majority, with a sufficient quorum (Landemore 2015, pp. 166–191; 2020, pp. 152–190). The Icelandic constitutional project still encountered some obstacles, however (Cordier 2020). Only 36 percent of registered voters came out to vote for the election of the Constitutional Council. Moreover, legal woes complicated its implementation. The relationship between the Constitutional Council’s proposal, previous contributions made by the 2010 Citizens’ Assembly, the suggestions made in the report on constitutional reform produced by parliamentarians, and those submitted by citizens online was not clear. Moreover, from a sociological point of view the members of the Constitutional Council were not representative, outside of respecting gender parity and representing all of all the island’s regions, both elements imposed from the start, as individuals with higher-than-average education levels were greatly overrepresented. Finally, the conservative majority that won the 2013 legislative elections decided not to follow through with constitutional reforms – according to existing legislation, any revision of fundamental laws must be passed by a parliamentary majority. In the ensuing years, no government coalition has been willing or able to restart the constitutional reform process (Ingimundarson, Urfalino, and Erlinsdottir 2016). Nonetheless, it remains one of the most interesting examples of constitutional reform in democratic history, with its very specific combination of sortition, election, and referendum, against a backdrop of social mobilizations, citizen participation, and quality deliberation. As we have seen, in 2015, an Irish citizens’ assembly convened by the government produced a referendum-backed proposal on gay and lesbian marriage, successfully concluding a process first launched in 2009 with a bottom-up initiated citizen assembly. The second experiment, dealing with abortion, was also successful, as the main proposal of the citizens’ assembly was ultimately adopted by the people. Now that we are at the beginning of the 2020s, the model seems to be in a process of institutionalization: A third citizens’ assembly has been convened and this tool is accepted across nearly all of the political spectrum. Because of their success, the Irish citizens’ assemblies constitute a point of reference for experiments in other countries. This was for example the case for the French Citizens Convention for Climate convened by the president Emmanuel Macron in 2020–2021, which was explicitly inspired by its Irish predecessor. However, beyond formal similarities and explicit transfers, the Irish and the French cases embody two different models of citizens’ assemblies. A first major difference is that whereas the first two Irish citizens’ assemblies sought to decide between a pair of choices which had already been outlined (legalizing or not the right to same-sex marriage or to abortion), the French Citizens Convention for Climate has been tasked with elaborating a set of proposals in response to the question which represents its official purpose: How to “reduce the French emissions of greenhouse gas by at least 40 percent compared to 1990, in the spirit of social justice.” In doing so, its members

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must rely upon various solutions proposed by experts (Tilikete 2020), choosing between them and sequencing them in a relatively coherent project. The magnitude and complexity of this issue is inherently much bigger than the issues tackled in Ireland (and more resembles the Icelandic National Forum, which had proposed a kind of catch-all program, far less coherent that the final set of proposals of the French Convention) (Cordier 2021). The second and probably more significant difference relates to the political dynamics of the respective assemblies (Courant 2020a, pp. 487–507). In Ireland, the aim of those convened by the government is to reach impartial decisions, thus embodying a feature of sortition which has been central throughout history. Although not perfect, the device is carefully conceived with this perspective in mind, using neutral bodies to organize and moderate the assembly, offering public hearings of experts and stakeholders defending pro and contra views, and prohibiting citizens from communicating with activists or lobbyists during or in-between sessions. Convening citizens’ assemblies is a way to get out of a deadlock: This Catholic country seems to be mature enough to constitutionalize same-sex marriage or abortion, the government is in favor of this move but needs additional legitimacy to take a step forward, as its opponents are quite virulent and mobilized, and the leading parties remain divided on the issue. In theory, something similar could have happened in France in 2019–2020: A majority of citizens is convinced that fighting climate change is a priority, the government is officially committed to strongly reducing France’s greenhouse gas emissions, but strong lobbies defend the status quo and block the boldest policies. However, the process unexpectedly took another path. The structure of the French political system is highly centralized, with weak checks and balances and a president who wields most of the power. Without a strong political party, Emmanuel Macron pushed this paternalistic feature to the limit after his election, shutting down dialogue with unions, local governments, parliament, or even members of parliament individually. The backlash was strong. In fall 2018, and for a couple of months, initially protesting against a socially unjust carbon tax, the Gilets jaunes (Yellow Vests) movement launched a radical although nonpartisan protest that paralyzed the country and backed the president into a corner (Jeanpierre 2019). To find a way out, the president convened a “Great Debate” from January to March 2020, which included open meetings across the whole country, an online participatory platform, and citizens’ assemblies during one weekend in each of the eighteen French regions. The great debate was only consultative, and organized in a way which made any scaling-up or procedural synthesis impossible, with conversations going on in parallel and little attention paid to the output of deliberations. The prime minister and the president were thus able to claim that they were the only legitimate persons who could formulate conclusions: Which happened to be nothing else than their previous electoral program. In spring, this fake deliberative event was somehow successful, politically speaking: Together with a severe crackdown on the Gilets jaunes, it helped to shift the agenda and stabilize the

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situation. However, the crisis of representation persists. The main democratic claims of the Gilets jaunes movement were introducing the citizens’ initiative to the French political system, and to a lesser extent, creating a permanent citizens’ assembly “to defend the people’s interests.” Some ecologist movements also include a citizens’ assembly among their objectives. Priscilla Ludosky, one of the most visible figures of the Gilets jaunes, worked with ecological activist Cyril Dion to create a new association, Gilets citoyens (Citizens’ Vests). Converging with public intellectuals on the use of sortition, they demanded the creation of a citizens’ assembly for the climate. As Dion puts it, If we want to achieve results shared by all, we need to redistribute power, and to build [a] complementarity between representative democracy and direct democracy. With this citizens’ assembly, it is not a question of making a coup, as was the case with the great debate, but of demonstrating that we can integrate these mechanisms into our democracies on a permanent basis.6

Without both the Gilets jaunes movement and Emmanuel Macron, the Citizens Convention for Climate would never have taken place: This paradoxical convergence is quite interesting (Cohen 2020; Pech 2021). The French president, who had previously been vocal but not very active on environmental issues, seized the opportunity to be on the offensive. Rejecting the institutionalization of the citizens’ initiative, he decided to convene a Citizens Convention for the Climate, and promised that its proposals would be submitted “without filter” to a referendum, or to a vote in parliament, or to the government for direct regulatory application. The event was combined with a proposal to reform the constitution and transform an old neocorporatist body, the Economic, Social, and Environmental Council (CESE), into a chamber for citizen participation including citizens selected by lot in addition to organized civil society. In this context, supported by the political will of a powerful president and with the backing of an official commitment, a budget of five million euros,7 and a crucial mission to design the future ecological transition of an important European country, the Citizens Convention for Climate appears to be the most influential sortition-based experiment thus far. Convened quite quickly, with a government administration that had no real idea how to do so, and which thus relied on citizens associations such as Open Democracy, and a negotiation between the Presidency, the Ministry of Ecology, the Gilets citoyens, and the CESE (Fourniau 2021), the Convention has a quite peculiar organizational structure. It is characterized by a certain level of improvisation, which has positive aspects – it paves the way for innovation, and is not merely the reproduction of ready-made models – but also negative ones: A number of decisions are not the result of informed choice. The two copresidents of 6

7

Cyril Dion, “Le grand débat, ce n’était pas vraiment de l’intelligence collective,” Le Monde, April 13, 2019. The final cost has been estimated at around 6,655,000 euro (Gillier et al. 2021, p. 18).

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the governance committee are Thierry Pech, CEO of the center-left think-tank Terra Nova who had been involved in Macron’s presidential campaign, and Laurence Tubiana, France’s former Climate Change Ambassador and Special Representative for the 2015 COP21 in Paris, and a key architect of the resulting Paris Agreement. The governance committee includes some of the citizens of the Convention, academics, NGO representatives, and members of the CESE. The activist Cyril Dion is one of three guarantors. A group of permanent experts is also crucial for the Convention, which began in October 2019. Due to the complexity of the matter, the 150 citizens were split in five thematic sub-groups, which work in parallel sessions and regularly meet together. The Convention is viewed with skepticism by traditional business lobbies, a majority of former Gilets jaunes activists, the political opposition, and a number of environmental NGOs, either because they feel that this is a presidential manipulation, or because they refuse the legitimacy of a minipublic selected by lot, or because they have strong doubts as to its potential efficiency. Conversely, a majority of ecologists and sortition activists, a minority of former Gilets jaunes figures, some public intellectuals, and advocates of deliberative democracy have real hopes for a breakthrough in both the fight against global warming and for democracy. The Convention has gained significant visibility in the French public sphere and cannot be compared to previous deliberative minipublics. The Convention has rapidly faced unexpected circumstances, however. In the winter of 2019–2020, a huge strike by railway and subway workers against a reform of the pension system (on this issue as on others, the French government is not prone to consulation) made meeting in Paris more difficult. Then came the Covid-19 crisis and the lockdown in spring 2020. Consequently, a large part of the work was delayed and had to be conducted online. The stakeholders representing traditional industry did not take the convention seriously, so the balance of the public hearings tilted in favor of ecologists, especially when Nicolas Hulot, a major environmentalist figure, was invited to speak to the Convention. This was reinforced by the active presence of Cyril Dion, and by the fact that contradictory debates are not a priority in the device. Despite the circumstances, work continues apace at a high level of deliberation. At the beginning of April, the government prepared a stimulus package to address the economic crisis provoked by the pandemic, with little concern for the ecological transition. The Convention thus appeared to run the risk of becoming just a foil with no impact on important decisions. In order to avoid this outcome, part of the governance committee suggested that the Citizens Convention make a series of proposals public before its whole plan was completed. A large majority of the Convention members voted for this proposal, resulting in a deep rift in the governance committee (Pech 2021). Some believed that the Convention overstepped its role and subverted the political division of labor between a citizens’ assembly and the elected authority, with the first fulfilling the mission entrusted to it by the second, which provides the only legal source of legitimacy. In doing so, the Convention became a new political actor,

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one with a certain margin of autonomy, a kind of third assembly (Fourniau 2021) along with the lower chamber and the upper house; the Convention thus had much more visibility than the CESE (legitimacy of this sortition body somewhat competing with that of organized civil society). This process of politicization was only enhanced by the existence of radical ecological movements, which realized the importance of what was happening and seized the opportunity to get in touch with Convention members, invite them to events, and thus indirectly influence deliberations (Gaborit 2021) – something that was prohibited in Ireland. Delayed because of the pandemic, the Convention interfered with local elections and a conflict between the president and his prime minister, who opposed the Convention but was sacked at the end of June 2020, precisely when the Convention came to an end. An overwhelming majority of the Convention adopted 149 of the 150 proposals issued by its subgroups. The global result was quite interesting, although some proposals were ultimately less coherent than others and some issues such as nuclear energy were overlooked by the agenda. In any case, with its goal of reducing French emissions of greenhouse gases by at least 40 percent, the Convention has proved more ambitious and consequential than any of the policies previously adopted by the French government. Emmanuel Macron publicly announced that he accepted 146 of the 149 proposals, including a constitutional amendment declaring that preserving the “rights, freedoms, and principles” set out in the constitution “cannot compromise the preservation of the environment, the common heritage of humanity.” Although the president would have liked to place a series of proposals on a referendum, he was forced to renounce this due to the Senate’s hostility, given that the government is minoritarian. At the same time, the idea of a referendum was also thwarted by the fact that a of majority of the Convention’s members did not believe that the people at large would approve of their recommendations, which seemed too radical to be accepted by citizens who had not experienced the deliberation process and to find enough partisan allies; in fact, however, polls would later show that a majority supported most of the Convention’s program. After the end of the Convention, some of its members agreed to enter into discussion with the parliamentarians who elaborate legislative proposals. They also created an association to follow up on the results, which hosts difficult debates about the necessary political stance to adopt. In addition, a number of former Convention members have taken part in protests or even joined opposition parties. Tensions among minipublics are a common phenomenon that increases proportionally with the size of the group and the length of the procedure. In the French situation, the politicization process increased tensions remarkably, and a number of citizens abandoned the work. In a­ ddition, although sortition recognizes the equality of all citizens, a person who is chosen and who experiences a high visibility because of the media and the crucial importance of the issue, after having been initially “anybody,” becomes “somebody.” This reinforces the conflicts of personalities and makes more difficult the return to a “normal” life (Pech 2021, p. 65ff). The situation was made

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all the more difficult by the fact that parliament and the government whittled down the more ambitious recommendations: The promise of proposals being submitted “without filtering” turned out to be illusory. The political majority had not anticipated such a radical plan for reducing greenhouse gas emissions, and consequently did not know what to do with it. Traditional economic sectors had thought the Convention was only a facade, and lobbied against it afterwards. Conversely, the Convention became a touchstone for nearly all environmental NGOs, left-wing parties, and activists during the 2021 Global Climate Strike, with French actors criticizing the government at the same time as its legitimacy was strongly challenged by right-wing parties.8 The apex was reached on February 28, 2021, during the final semi-official session of the Convention: Ninety-six of its members gave feedback on the translation of their proposals, with an average score of 3.3 out of 10, which revealed a quite negative assessment of parliament and the government. To the question “How closely do the government’s decisions resemble the original objective proposed by president Macron?,” the average score was even lower (2.5 out of 10).9 In the context of the present volume, the twists and turns of French politics are not particularly important; however, it is notable that, starting with the Irish model in mind, the French Citizens Convention for Climate ended up more closely resembling a different model. The Convention did not remain an impartial body in charge of making proposals to resolve an impasse, but became a new political actor, a citizens’ assembly claiming a form of legitimacy that could be opposed to the traditional elected powers, and which could be potentially be part of a new system of checks and balances. To put it crudely, it followed the paradigm of an assembly, not of a jury (Pech 2021; Fourniau 2021; Sintomer 2022). Both models can be praised or criticized, and the concrete experiments they led to are far from perfect, but the appearance of a new one is worth noticing. Must sortition necessarily aim at neutral ­deliberation thanks to its potential for impartiality? Conversely, should deliberative minipublics with their specific traits (members have no personal political careers to defend, there are organized interest groups, high-quality deliberation is ensured) become a political actor among others, entering the political conversation in alliance with social movements? Right-wing parties and traditional business associations have criticized the French Citizens Convention for the Climate because of its bias; what would environmentalist and left-wing movements have said if the influence had come from industrial lobbies? Is this scenario even possible, or are there sufficient elective affinities between deliberative minipublics and the common good to render citizens’ assemblies more or less immune from the bane of particular interests? 8 9

“110 organisations interpellent Emmanuel Macron sur la loi climat,” Lemonde.fr, February 9, 2021. “La convention citoyenne pour le climat se sépare sur une note sévère au gouvernement,” Lemonde. fr, February 28, 2021; “Le projet de loi n’est pas à la hauteur: à Paris ou Lyon, des manifestants pour le climat déçus à la veille de l’ouverture du débat parlementaire,” Le Monde, March 29, 2021.

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A Supreme Court Selected by Lot The potential trade-off between impartiality and politicization can also be found in the discussion about the citizens’ initiative which proposed randomly selecting the Swiss Federal Supreme Court’s justices. Although the number of experiments based on sortition at the beginning of the 2020s is too substantial for us to provide an exhaustive overview, this case is worth analyzing on account of both its scope and the quality of the debate it generated. The Swiss Court is composed of thirty-eight justices who are proposed by the parliamentary judicial committee and elected, for six-year terms, during a joint meeting of the lower and upper chambers. The “concordance system” that characterizes Switzerland is based on party-list proportional representation in parliament, a federal government that includes all major political parties, and the distribution of the Federal Supreme Court’s justices across the spectrum of major political tendencies, approximately relative to their share of seats in the lower house. Judges who want a position on the Court usually join a political party before the elections in order to be put forward as candidates, and those who succeed donate a modest part of their emoluments to their party. The Federal Supreme Court is the third-most trusted institution in the country (63 percent in 2020), after the police (72 percent) and the federal government (68 percent), but ahead of political parties (around 52 percent, a high proportion compared to Switzerland’s neighbors).10 In 2018, the libertarian tycoon Adrian Gasser decided to launch a citizens’ initiative to modify the nomination system. In August 2019, a sufficient number of signatures had been collected for the initiative to become legally valid. Gasser proposed appointing justices by lot from a shortlist of candidates selected by a governmental commission exclusively on the basis of their professional skills. This initiative was a radical critique of the influence of political parties on the judiciary and advocated the use of sortition as a tool to ensure the independence and the impartiality of justices: Federal justices must be able to make their decisions without being hampered by conflicts of interest and political influence. This is not possible today. To be elected federal justices by the Federal Assembly, a candidate must have de facto political affiliation and good relationships with decision-makers. This network of relations persists after election to the Federal Supreme Court and can influence the decisions of justices. In addition, the latter may be threatened with dismissal and be subject to pressure. This is why lawyers should be allowed to become federal justices on the sole basis of their skills … The federal citizens’ initiative “Appointment by lot of federal justices” would help to achieve these goals. Candidates may only participate in the selection on the basis of their professional and personal qualifications. This procedure guarantees an equitable composition of the Federal Supreme Court without taking into account possible party membership. Federal justices chosen by lot would remain in office until their retirement.11 10

11

Crédit Suisse, Sorgenbarometer 2020. Wiederbelebung der Willensnation. Schweiz in Zeiten der Krise, Bern: Crédit Suisse, 2020. www.justiz-initiative.ch/startseite.html

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The federal government and the lower chamber refused the proposal, which was nonetheless submitted to the people in 2021. The Swiss parliamentary conversation on this issue is one of the most interesting contemporary debates on sortition that have taken place while involving a wide variety of actors in the political sphere. Although a minority of parliamentarians have conceded that the system could be improved (for example by prohibiting the reelection of justices, by giving them longer mandates, or by reforming the public financing of parties), no elected official has supported the initiative. Some of the reasons put forward are pragmatic: the governmental commission would be able to influence the selection of the short list; there has been no verifiable case of justices being politically pressured; the Federal Supreme Court enjoys strong legitimacy that might be weakened if justices were selected by lot. Other speakers have radically refused the principle of sortition, echoing the debates of the revolutionary period with two centuries of hindsight. A number of them find the principle of sortition in politics or the judiciary absurd: It resembles a “lottery,” something completely out of place in this sphere. Centrists, and especially the Liberal-Radicals – the heirs of those who abolished sortition a century earlier – have been the most sarcastic on the subject: “the Federal Court, in a nutshell, is not a casino and its justices are not racehorses on which we bet,” said one member of parliament. Another added: “by lottery! You heard right, by lottery. I ask you: Would you wish to choose a Federal Councilor, a CEO or even your life partner by lottery?”12 The idea that sortition is foreign to the political system has been expressed by speakers all along the political spectrum, but once again, the Liberal-Radicals are the most lapidary, with arguments recalling those of the nineteenth century: The drawing of lots … is basically the negation of democracy. Democracy, at the time of an election, is choice. Not only the choice of a profile, of professional and technical skills, but also the choice of a character, a personality … And if fate should select our high authorities, the highest authorities of the Confederation, that would ultimately amount … to playing the lottery for the future of our country.13

Democracy means the people’s choice and responsibility, directly or through the intermediary of the representatives, and “the election of federal judges corresponds to our democratic practices; the greatest possible participation of the people through elected members of the two councils.”14 The national-populist right factions joined the chorus when rejecting sortition in the name of meritocracy: “do we want … the best justices on the Federal Supreme Court? Or do

MPs Vincent Maitre and Philipp Matthias Bregy, in National Council, Springtime session 2021, third session, March 3, 2021 08h00, Bestimmung der Bundesrichterinnen und Bundesrichter im Losverfahren (Justiz-Initiative). Volksinitiative, https://www.parlament.ch/fr/ratsbetrieb/ amtliches-bulletin/amtliches-bulletin-die-verhandlungen?SubjectId=51845#votum2 13 MP Damien Cottier, in ibid. 14 MP Christoph Eymann (Liberal-Radical), in ibid. 12

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we want the ‘luckiest’ ones there, who got the chance to be promoted thanks to the drawing of lots?”15 More interesting perhaps is the fact that some political actors do not reject the principle of sortition as such. This is the case for some Socialists and, above all, for most of the Greens, who proposed in 2020 the creation of a third chamber, a Council of the Climate, based on the model of citizens’ climate assemblies and whose members would be selected by lot. Nevertheless, these actors refuse to extend sortition to the selection of federal justices. A third chamber drawn by lot among all citizens would reflect the diversity of the people. Conversely, however, this would not be the case for justices, which would be drawn from a small circle of preselected individuals. Two reasons are shared by all the political parliamentary groups, from those who completely discredit sortition to those who accept it but only for specific political bodies. The first argument commonly used is that seeking absolute neutrality based on expert knowledge is a futile endeavor. Justices are not only the mouthpieces of the law, they must also interpret the law and address lacunae in the legal system. Although they must be highly qualified, this task is not solely technocratic in nature. Any expert, however brilliant, also has political convictions. It is better to make these public instead of feigning pure neutrality. This is especially significant if one considers a second argument, namely that it is important that justices more or less reflect the composition of the people – in terms of language, gender, age, and regional distribution, but also according to political tendencies. Although this is the case in the Swiss concordance system, such representation would be statistically unlikely if justices were to be drawn from a shortlist elaborated by a governmental commission. Green MPs expressed these two ideas with the utmost clarity: By placing too much emphasis on depoliticizing justice, we forget that justices are citizens like any other and, therefore, also “political animals” driven by convictions and ideologies. Eliminating political parties and relying on chance alone would have two important effects: 1. [There] would therefore be a statistically significant risk that political tendencies would no longer be represented for a long period within the judiciary. 2. This method of designation relies on a perfect match between the profiles of the candidate justices and the profiles present in the population, which is a gross error. Sociology has taught us for over a century that political opinions differ according to socio-professional categories. Therefore, by randomly drawing justices from among the population of judges without introducing political quotas, we would certainly end up overrepresenting certain political currents — I will let you imagine which ones — which would of course not be desirable for a body which is supposed to represent the entire population.16 MP Lars Guggisberg, in Conseil national, Bestimmung der Bundesrichterinnen und Bundesrichter im Losverfahren (Justiz-Initiative). Volksinitiative, September 3, 2021 (Fortsetzung-Suite), www.parlament.ch/fr/ratsbetrieb/amtliches-bulletin/amtliches-bulletin-die-verhandlungen?SubjectId=52166 16 Nicolas Walder, in National Council, Springtime session 2021, third session, March 3, 2021, www.parlament.ch/fr/ratsbetrieb/amtliches-bulletin/amtliches-bulletin-die-verhandlungen? SubjectId=52166 15

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In November 2021, the Swiss citizens refused the initiative on justice by an overwhelming majority (68.07 percent against the initiative). The previous discussion in the Swiss lower chamber had been illuminating for at least two reasons. First, it underlined the fact that the meaning of sortition depends on the pool of individuals being used for the selection process: It is quite a different thing to draw lots among all citizens than it is to do so from a shortlist. Second, and even more interesting, Swiss parliamentarians challenged the idea that a body selected by lot could be considered as completely neutral. Can a mere technocratic answer be given in cases that imply fundamental values? Is a certain degree of politicization inevitable and, if so, should it be made explicit? Towards Permanent Councils Drawn by Lot We will return in the next chapter to this issue. However, it is first necessary to briefly examine some important cases pertaining to a set of experiments that used sortition to establish permanent councils within institutions or associations. At the beginning of the 2000s, these cases were still uncommon, but they likely prefigure a growing trend and illustrate some of the challenges that the institutionalization of sortition could face. The first contemporary permanent council drawn by lot dates back to 1969, when the French military created the Supreme Council of the Military Function (Conseil Supérieur de la Fonction Militaire), whose delegates were randomly selected following quotas that corresponded to the various military corps (Courant 2019, pp. 61–92). The council was designed to create a consultative body that allowed soldiers to express their requests while avoiding any kind of politicization or union activity, both of which are legally prohibited in France within the armed forces. Since then, the designation procedure has been modified numerous times. In 2015, it was based on a combination of sortition from a group of volunteers (first step), followed by an election within this group (second step). The Conseil Supérieur de la Fonction Militaire is viewed as highly legitimate within the French military and is a powerful interlocutor for the minister – much more powerful than its police equivalent, which is formed using elections from trade union lists. In this case, sortition has helped to forge a representative body, to level the playing field between representatives of different ranks, and to encourage discussions oriented towards the general well-being of soldiers. However, contrary to police unions, this council exclusively focuses on corporatist issues and cannot raise political issues (such as, for example, the numerous interventions of the French army outside its borders). With the second wave of experiments, the number of cases where randomly selected minipublics have been institutionalized has increased worldwide. In France, since the mid-2010s, citizen councils  – most of which are randomly selected  – have become compulsory in the most underprivileged neighborhoods, and Paris’ youth council is also selected by lot. Both citizen councils and Paris’ youth council are advisory in nature, but they are included in national

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laws and/or municipal bylaws, and are thus not solely dependent on the good will of the political majority. However, in the absence of grassroots social movements and community organizations that would argue for empowered minipublics, verify that these are well-organized, and ascertain whether their recommendations produce real outcomes in public policies, the impact of such institutionalized randomly selected bodies remains limited. Some associations have also seized on this development. The Federation of Student Associations of the Swiss University of Lausanne, which enjoys institutional recognition and plays a significant role in the university’s operations, is organized around a statutory assembly composed half of representatives from students’ faculty associations, and half of representatives chosen to speak on behalf of the University Federation as a whole (Mellina 2019). Until 2011, the latter were elected. Lists were drafted by the youth chapters of the various political parties on campus and their debates were not aligned with those of the faculties’ student representatives, who were more likely to discuss the everyday problems of students than partisan politics. In 2012, it was therefore decided that university students’ representatives would henceforth be randomly selected. Several variations have been tried out, but the general principle remains that sortition is organized among voluntary students. The first evaluations to emerge show that discussions within the Federation have become more peaceful and more constructive, and the presence of less politically informed students has only strengthened the influence of the bureau, composed of more politicized volunteers who now have no true political counterweight within the Federation. Although the cases we have presented do not really imply a process of politicization and conversely focus on the creation of an impartial body, experimentation could eventually lead to the creation of minipublics that are more open to nonpartisan politicization. A first case, which functions as a bridge between the first and the second wave, could be an example of this new trend. In 2017, following cooperation with James Fishkin’s Center for Deliberative Democracy at Stanford, the nation of Mongolia passed a law which made it compulsory to convene a deliberative poll before any constitutional amendment was proposed. In April 2017, the Mongolian parliament did just that when it brought 669 randomly selected citizens from across the country to Ulaanbaatar for the first-ever national deliberative poll on the future of the Mongolian constitution. Although it was negatively affected by several procedural defects (Odonkhuu 2017), this initiative could herald a new era of institutionalization at the national level for one of the most well-known models of minipublics. In 2019, another experiment was attempted in the city of Madrid by Manuela Carmena, the radical left-wing mayor governing the city. During her term (2015–2019), a number of participatory innovations were introduced at the behest of former activists of the 15M Movement, a huge anti-austerity mobilization which took place in 2011–2012 and influenced the creation of Occupy Wall Street. In addition to participatory budgeting, a digital participation platform, and the right to citizens’ initiatives, a permanent City Observatory was

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created, composed of forty-nine citizens drawn by lot for terms of one-and-half years. The Observatory was designed to combine deliberative, participatory, and direct democracy, as one of its main tasks was supposed to be proposing local referendums on important issues (Soto 2018, pp. 66–74). However, this experiment was short-lived, as the new right-wing mayor elected just a few months later put an end to this democratic innovation. Two other cases, both in Belgium, seem to have had a more durable impact, thus illustrating the long-term influence of the G1000. In this quasi-federal country, the parliament of the German-speaking Community of Belgium (around 77,000 inhabitants), endowed with important legislative and executive powers, unanimously decided to create a permanent deliberative Citizens’ Council of twenty-four citizens drawn by lot who would rotate every year and a half. This council was allowed to define its own agenda, and thus to initiate citizens’ assemblies also drawn by lot on the most pressing policy issues of its choice. The decisions to convene minipublics and their agenda are thus no longer dependent on the mercurial will of elected politicians. Each assembly is comprised of twenty-five to fifty members and meets a minimum of three times over a period of three months. At the end of deliberations, recommendations are discussed in a joint committee between the members of the assembly and elected representatives. Unless the parliamentary committee and the minister in charge refuse the recommendations with justifications, the latter are supposed to be implemented through parliamentary or governmental measures. The first meeting of the Citizens’ Council took place in September 2019, and this innovation seems here to stay (Niessen and Reuchamps 2019). Though it implementation has not been a subject of political controversies, it remains to be seen whether some kind of politicization will happen within the randomly selected minipublics. That same year, the parliament of the region of Brussels decided to strengthen citizen participation in legislative work. Among other measures, it implemented “mixed deliberative committees” composed of fifteen parliamentarians active in the pertinent permanent committee and forty-five citizens drawn by lot. A similar initiative was taken by the Frenchspeaking parliament in Brussels. In this case, the deliberative committees can be initiated either by parliamentarians or at the request of at least 1,000 residents of Brussels, although the final decision lies with parliament. The joint committee is designed to meet several times, may demand to hear experts, and should make recommendations for parliament on the specific issue for which it was convened. The corresponding permanent parliamentary has the responsibility – and the power – to evaluate the recommendations, and within six months, the parliament must publish a report to explain why and to what extent it has implemented them (OECD 2020, p. 130). In France in 2021, the cities of Paris and Lyon introduced a not entirely dissimilar device. In addition, since 2019 the Social, Economic and Environmental Council (CESE) has worked to organize a joint body of permanent councilors and lay citizens. This effort was confirmed by a legislative reform in 2021, but

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its influence remains marginal, given that the CESE is a merely advisory neocorporatist council; hopes to transform the CESE into a real venue for citizen participation have so far been thwarted (Bonin, Baeckelandt, and Wüthrich 2021). Finally, collaboration between citizens chosen by lot and members of parliament had also been previously tried out during the first Irish Constitutional convention, without substantially dominating or distorting the work of the assembly. In fact, the real power of the politicians relied much more on the definition of the agenda of the Assembly than in their role within the assembly. This lesson can be generalized: as David Farrell et al. (2020, p. 70) write, This Irish case of mixing politicians and lay members in a deliberative forum may have gone someway to reducing the risk of political detachment (that was so apparent in the Canadian cases) and allaying the fears of some that the politicians might dominate proceedings, but it did little to address the wider problem (shared generally by minipublics) that, in terms of agenda control at least, this ultimately remained a top-down process firmly in the hands of the political elite.

It is too early to assess the real influence of these institutionalized minipublics on the decision-making process; the fruitfulness of joint committees between permanent members of parliament (or councilors in the case of the French CESE) and citizens drawn by lot; the differences between situations where there is close collaboration between the two sides (as in the case of Brussels) and those where more autonomy is granted to the citizens drawn by lot (as in the case of the German-speaking Community of Belgium); or whether these permanent minipublics will engender some degree of politicization. What is clear, however, is that these initiatives represent a significant turning point, a shift towards the permanent institutionalization of randomly selected minipublics in collaboration with elected representatives. These innovations highlight the contrast between the first and the second wave (see Table 4.1). They constitute real life experiments, and promise to be illuminating both for practitioners and academics.

Sortition as a Tool for Political Equality According to the overview we have provided, we can briefly summarize the different reasons and purposes for which sortition has been used throughout history. Sortition is a selection method among others, including election from below, cooptation from above by a collective body, appointment by a superior, designation of a successor by their predecessor, recruitment of volunteers, the purchasing of offices, examinations, hereditary transmission, use of IQ tests, or physical and military force. All of these methods have been used at one time or another in history, and most still exist today in specific contexts. For a long time, however, selection by lot was one of the most common ways of filling official positions in European republican and democratic systems, but also in imperial China. Most of the time, it was combined with other

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One-shot Consultative Consubstantial Consubstantial Excluded

Permanent institutions Binding

Variable Inexistent

Normal

Not applicable

Source: Compiled by the author

Relation to first inventors Frequency Link to decisionmaking process Link to deliberation Link to the notion of representative sample Politicization

No institutionalization: the use of sortition depends on the will of the public authority Patented by the inventors

Top-down

Minipublics

Counterfactual deliberative public opinion

First wave of experiments

Full institutionalization

Council, tribunals, magistrates Not applicable

Institutions

Where the initiative comes from Institutionalization

Everyone takes turns to govern and be governed

Purpose of the device

Athens

Various

Various: repetition possible Various: consultative, binding, in between Consubstantial in most cases Consubstantial in most cases

Hybridized by practitioners

Various: institutionalization and compulsory use of sortition possible

Various: counterfactual deliberative public opinion, selection of political representatives or of juries with decision-making power, etc. Minipublics, electoral candidates, permanent councils Top-down and bottom-up

Second wave of experiments

table 4.1  Comparing political sortition in Athens with two waves of contemporary experiments

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selection procedures. Only since the advent of representative government in the late eighteenth century have political offices been almost exclusively allocated through election or cooptation (ministerial appointments, for example), whereas high-ranking posts in state administrations have been assigned through examinations or cooptation by superiors. To function ideally, most selection procedures must apply to a clearly defined group of individuals. One must therefore specify who has the right (or the duty) to participate in the selection, according to criteria that may relate to age, gender, wealth, heredity (family, caste, order, ethnicity, or nationality), place of birth or residence, citizenship, profession, membership in a corporate body or a voluntary group, etc. This is also true for sortition. When constituting such a group, sortition draws a line in the sand between those who belong and those who do not. It has thus both an instrumental and a symbolic value. Supernatural Destiny, Impartiality, and Equality However, it would be wrong to interpret political sortition in such a one-sided fashion: As a device, it can be motivated by different perspectives.17 We can establish a first typology that refers to the reasons for drawing lots: to gain knowledge of a supernatural sign, to ensure impartiality, or to promote equality (Table 4.2). These ideal-types often have to be combined in order to explain actual practices, which are usually hybrid in nature. For example, ensuring impartiality and promoting equality are tightly interwoven in a number of cases, although the weight of either objective may differ from one case to the other. 1. Gaining knowledge of a religious or supernatural sign. The Bible clearly describes this use of sortition: “the lot is cast into the lap, but its every decision is from the Lord” (Proverbs, 16, 33). From this perspective, human beings must follow God’s will or a destiny that they cannot know in any other way to manage their common affairs; the ritual aspect of sortition largely helps to legitimize the results of such divinatory procedures. Sors divisoria is thus intrinsically linked with sors divinatoria. This rationale persists in some contemporary practices. In December 2008, the “captain-president” of Guinea, 17

Oliver Dowlen (2008) claims that random selection has an intrinsic meaning that could be mobilized in various contexts and for various purposes. In his view, it involves a “blind break” between the input (the group from which the selection is made) and the output (the persons who are actually selected at the end of the procedure). Practices explicitly based on this property correspond to “strong” uses, other practices to “weak” uses. The resulting hierarchy of uses seems questionable, however. The main problem is that, by this yardstick, it would be necessary to leave out uses of random selection enabling practitioners to detect signs of an otherwise impenetrable divine choice, as well as contemporary practices based on representative sampling and probability calculation (which make possible to predict the social characteristics of the sample drawn from a particular group). In neither of these cases are the practices in question based on a “blind break”. Hubertus Buchstein (2009), for his part, rightly emphasizes that selection by lot and democratic logic are not superimposed on each other, but he focuses mainly on the function of impartiality permitted by the random selection of rulers.

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table 4.2  Three reasons for drawing lots Gaining knowledge of a Ensuring impartiality religious or supernatural sign Knowing and following Neutrally resolving one’s destiny or disputes between God’s will powerful individuals or factions, giving a third, impartial party the power to decide

Promoting equality Putting all members of the group among which lots are drawn on the same egalitarian footing

Source: Compiled by the author.

Moussa Dadis Camara, was allegedly chosen by sortition.18 This is also the means of selection for the Pope of the Coptic Church, who is chosen from a small number of preselected candidates, for the Dalai Lama, whose every reincarnation is selected using the famous Golden Urn, for some schedule tribes in India, and during some temple festival in China (Shah 2010; 2020). The religious dimension of sortition, though not central to the questions raised in this book, warrants systematic historical investigation. 2. Ensuring impartiality. Sortition may also be thought of as an impartial means to resolve disputes. This rationale is the most widespread throughout history, and has often been made manifest by the avatar of the child drawing lots. It too may be interpreted in various ways. (a) Sortition may reduce the passions involved in the struggle for power by offering a way to allocate prestigious or important offices that is neutral vis-à-vis the competing factions or individuals. One of Solomon’s proverbs expresses this pithily: “Casting the lot settles disputes and keeps strong opponents apart” (Proverbs, 18, 18). This was one of the main reasons to use sortition in the past, and remains important in the twenty-first century when sortition is used to select electoral candidates. (b) Conversely, selection by lot may impartially assign duties that are considered onerous, and for which there would otherwise not be sufficient volunteers (for example to recruit soldiers). (c) Sortition may result in giving responsibilities to people who are not directly involved in a controversial issue. These individuals would thus be chosen by lot rather than impelled by partisan motives or a thirst for power. Both the nature of the procedure (how one selects) and its outcome (who is selected) can thus remain impartial. This argument is especially prominent when actors justify trial juries and contemporary minipublics. 3. Promoting equality. Finally, equality can be the main motivation. In this case, sortition is seen as a tool which puts all members of the group among which lots are drawn on the same footing.

18

Le Monde, January 7, 2009.

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Three Rationales of Political Equality However, equality can mean a lot of different things. Three rationales have to be analytically differentiated, which frequently overlap in practical experiences (Table 4.3). 1. Random samples or fair cross-sections of the people: Deliberative minipublics. In this rationale typical of contemporary deliberative minipublics, selection by lot is a way of obtaining a representative sample or at least a fair cross-section of the people. This counterfactual minipublic can form opinions, evaluate, judge, and even decide on behalf of the community when it is not possible for everyone to take part in deliberations, and when social heterogeneity rules out the idea that all individuals are interchangeable and thus that anyone can take part. This perspective developed late in history. (a) In principle, a cross-section may be thought of as providing a kind of miniaturized snapshot of the whole group. This is the case with many mechanisms, such as traditional opinion polls or satisfaction surveys, that do not include discussion among those selected by lot. Criticism of such mechanisms has been at the heart of new experiments in deliberative democracy, and these tools have been of marginal interest for our work. (b) The c­ ross-section may also reflect the diversity of the whole group while permitting a richer and more equitable deliberation that takes in a greater number of viewpoints and social experiences compared to a group of experts, or to the participatory tools that rely on volunteers and thus of activist minorities. Popular juries after the selection reforms of the late 1960s and deliberative minipublics are the two main embodiments of this perspective, according to which the epistemological diversity inherent in the representative sample or the fair cross-section makes it possible to draw upon additional cognitive registers that better account for all of the data associated with the problem at hand. (c) The representative sample may also be seen as enabling the representation and defense of the values and interests of major population groups – a kind of modernized corporatism, where a woman is seen as defending women’s interests, a white male, white males’ interests, and so on. After the end of the short twentieth century, some trial juries (mainly in the United States) have been moving in this direction. 2. Ordinary common sense belonging to anyone. From a rather different perspective, sortition can be seen as a guarantee that power over all can be assumed by anyone at random – that is, by lay individuals who are interchangeable with others because they rely on their common sense as ordinary citizens. This argument was often made in relation to popular juries in past centuries, which relied on the judgement of peers (who could place themselves in the shoes of the person involved) in an effort to mitigate the tendency of professionals to monopolize decision-making. However, the definition of “anyone” may vary considerably. (a) In the elitist version, only “enlightened” and “reasonable” persons (which has generally meant wealthy white men) are seen as being able to make adequate decisions. (b) In the democratic version, all individuals can make use of their common sense. Selection by lot can therefore draw on all

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table 4.3  Three rationales of political equality in randomly selected bodies Random samples or fair cross-sections of the people: Deliberative minipublics

Ordinary common sense belonging to anyone

Self-government by everyone in turn

Allowing for a Relying on the common Permitting selfrepresentative sample sense of interchangeable government of all by or a fair cross-section of lay citizens all, with everyone the people to deliberate taking a turn to govern for the people as a and be governed whole Source: Compiled by the author.

citizens or residents. This was the version demanded by the French Left for popular juries in the nineteenth century. 3. Self-government by everyone in turn. Finally, selection by lot can be seen as a procedure favoring not government by anyone at random, but self-­ government by everyone in turn: That is, a system wherein all persons belonging to the group take turns to govern and be governed. In such cases, sortition is combined with procedures that facilitate the rapid rotation of offices. Everyone has the same chance of gaining access to decision-making positions. The types of self-government and equality in question may vary according to the nature of the group from which the selection by lot is made. (a) When it is a homogenous peer group, sortition ensures that a certain degree of equality will be maintained between individuals, preventing anyone from possessing a value or qualities superior to those of anyone else in the group. Distributive aristocracies are the most important examples of this rationale. (b) When the group is socially heterogeneous, sortition is a powerful means of fighting social distinction. It constitutes the democratic method par excellence. This dimension was a key element of Athenian distributive democracy. (c) Selection by lot may also prevent power from being monopolized by a group of professionals (political, bureaucratic, judicial, or expert), or at least makes it possible to reduce their influence compared to the body of active citizens.

Three Democratic Imaginaries At this point in our reasoning, another question arises. The many actors who support sortition’s return to politics come from a truly varied background. If we look at France, sortition was initially reclaimed as a valuable path by the huge Gilets jaunes movement, which emerged in October 2018 in violent opposition to the actions of the President of the Republic, Emmanuel Macron. However, the latter ultimately adopted the mechanism himself by organizing the Citizens’ Convention for Climate in 2019–2020, while nonetheless rejecting

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the possibility of implementing the Citizens’ Initiative, the Gilets jaunes’ key institutional demand. Following in the footsteps of their British founders, the French arm of the global environmental movement Extinction Rebellion similarly listed citizens’ assemblies on climate change as one of their four main demands.19 A diverse set of actors can be found in many other countries as well. How can we understand the consensus around sortition in politics when it is ascribed to by such wildly disparate individuals and movements? We shall attempt to shed light on this enigma to better understand what is at stake when sortition returns to the political scene. While it is difficult to reach a global sociopolitical conclusion at this point, given the fact that the configurations of actors vary from one country to another, it is still possible to examine the various imaginaries competing to defend sortition. Imaginaries are projections of desirable or worrisome political horizons.20 They consist in a collection of ideas, stories, legends, images, and symbols that are collectively shared. In each society, there are competing political imaginaries, which often overlap on certain issues. Although each society has produced a variety of imaginaries, the heuristic value of the concept has increased over the past decades. To a large extent, the era of ideologies ended in the 1990s alongside the short twentieth century. Ideologies are no longer as prominent references as they once were for political actors. On the contrary, imaginaries permeate the way such actors interpret the existing world and imagine how it should be. They are characterized by high fluidity, emerge and reconfigure themselves in the face of events (Abbas 2019). While they may contain theoretical, ideological, or utopian elements, they differ significantly from the latter. Ideologies are based on assumptions deemed to be all-encompassing. Utopias are constructed as coherent and fictitious conceptions of society. Theories are presented as rational paradigms that are supposed to be philosophically or scientifically coherent. While imaginaries can inspire ideologies, utopias, and theories, and be influenced by them in turn, practitioners generally do not offer a global, coherent, and unified image, but fragmented projections, including affective and symbolic dimensions. Imaginaries are expressed by broad sections of the population and do not need to be articulated in coherent theoretical terms. Unlike utopias, they are not stable fictions that exist prior to experience. They depend on the social and political context in which they emerge, and on the political experiences of the practitioners. The concept of the imaginary is particularly useful here, given that proponents of sortition generally envision political systems that have only partial current representation in reality. Arguments for sortition in politics suggest changes that would go far beyond the present political order. It is therefore essential to look at how such practitioners imagine the role sortition would play in the kind of democracy they advocate. 19 20

https://xrcitizensassembly.uk/ This definition is empirical and differs from those of Cornelius Castoriadis (1987) and Charles Taylor (2004)

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A New Horizon of Expectation Some events and experiences, such as social movements or the implementation of new institutional mechanisms, can help shift imaginaries that were once considered marginal, unrealistic, or undesirable towards the center stage, with a view to proposing genuine alternatives (Abbas 2019, p. 254). As we saw in Chapter 3, after the first decades of the nineteenth century, sortition almost completely disappeared from the political scene in the Global North. The new imaginaries linked to the Enlightenment, popular sovereignty, progress, and representative government had no room left for sortition. During the rest of the long nineteenth and the short twentieth centuries, the republican, liberal, socialist, communist, fascist, populist, and nationalist movements all developed imaginaries from which political sortition was completely absent, with one exception in Italy that I will mention later. The first shockwaves heralding change were caused by events of 1968 and the subsequent decade. We analyzed earlier how sortition was mentioned here and there by isolated individuals such as Robert Dahl, Peter Dienel, and Ned Crosby, as dissatisfaction with capitalist democracies remained significant but revolutionary perspectives faded from view. The idea first met with limited recognition. When, in the 1980s and 1990s, the political scientist James Fishkin connected sortition with the theory of deliberative democracy, the idea began to be considered more seriously in the English-speaking academic world. In some countries, a first wave of highly controlled experiments in sortition designed by theorists took place. Nonetheless, the idea of randomly selected minipublics did not go beyond a few circumscribed circles. At the beginning of the 2000s, however, major transformations rocked the Global North. I have argued in Chapter 1 that a single decade after the end of the short twentieth century, the argument that we had reached the “end of history,” marked by the triumph of liberal democracy (almost) everywhere, already appeared irremediably dated (Fukuyama 2012). The unfulfilled promises of Western democracies, growing suspicion of political parties and representative government more broadly, the geopolitical changes brought by globalization, and the consequences of climate change have significantly altered the space of experience of citizens: This turning point in the space of experience is probably comparable in magnitude with that caused by the French Revolution (Koselleck 2004). The typical institutions and imaginaries of the previous century increasingly seem out-of-date, with the horizons of expectation no longer including the triumph of representative government worldwide. This means fertile ground for the emergence of new imaginaries. Both left- and right-wing forms of populism are on the rise, while libertarian ideas are also experiencing a renaissance, and the influence of climate-focused imaginaries continues to grow. In parallel, sortition has become embedded in a whole swath of emerging imaginaries. In the Francophone world and its vicinity, Bernard Manin’s Principles of Representative Government (1997) offered a contrast between election and

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sortition from a primarily analytical perspective, without having any intention of defending the latter. Representative government was presented as a mixed government model of excellent resiliency despite many waves of change. In the 2000s, however, the political imaginaries that developed from this theoretical work revealed themselves to be paradoxically at odds with the volume’s intentions when they chose to interpret Manin’s work as an argument for sortition (Hayat 2019; Chollet and Manin 2019). These imaginaries were primarily cultivated in protest circles and among a few political officials. In the Anglo-American world, as we saw earlier, a second wave of hybrid experiments that go beyond the intentions of the model’s theorists allows for practitioners to transcend the utopian or academic niches where sortition was previously investigated. The appeal of sortition spread throughout the Global North, with the mechanism increasingly being seen as a democratic innovation that has the power to transform politics. The international success of David Van Reybrouck’s book Against Elections (2016) attests to this change, while also helping to reinforce it. The proclaimed  – though highly questionable (Sintomer 2021)  – link with Athens feeds into this dynamic: Didn’t sortition play a central role in the Greek city that invented democracy? To this extent, sortition is often seen as a return to the origins of democracy, now in the context of the twenty-first century. However, our analysis of the books, academic articles, blogs, and press that defend sortition in the Global North reveals not one, but three different imaginaries that defend sortition: These three imaginaries relate to deliberative, antipolitical, and radical democracy respectively. These imaginaries are transnational and not specific to any one country, even if their dissemination varies considerably from one region to another.21 While overall, these imaginaries cannot be easily mapped onto the social positions of the practitioners espousing them, this does not mean that they are randomly distributed, sociologically speaking. The first imaginary, of deliberative democracy, developed first within the English-speaking academic world of the 1980s. In this case, a theoretical model was created, which was subsequently combined with traditional practices from popular education and adopted by reformers in power, ultimately leading to an imaginary that could be more widely shared. At the beginning of the 2020s, its primary proponents are academics, practitioners in power, and consultants who are designing and moderating minipublics (Gastil and Levine 2005). The second imaginary, of antipolitical democracy, is derived from a term that was popularized in Eastern Europe with the work of George Konrad (1984) and which is widely used in Italy: “the term anti-political defines the position of those who oppose politics, deeming it to be a mere practice in power, and by extension political parties and elected officials as well. In this collective 21

Another imaginary of sortition should probably be elaborated to analyze how drawing lots is advocated by certain contemporary Chinese intellectuals, as it is not self-evident that the Chinese version of deliberative or consultative democracy (xieshang minzhu 协商民主) aligns with the Western one.

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imaginary, the latter are solely devoted to their personal interests and not to the common good.”22 The champions of antipolitics call for the people to obtain power by eliminating political elites and thus, they argue, conflict, therefore radicalizing Konrád’s perspective, which aimed only at restricting the influence of politics as the sphere of power on civil society. This imaginary developed outside the academy and has no high-brow theoretical credentials. It is particularly widespread among social movements, antiestablishment bloggers, and managerial circles – especially those active in new technologies – who try to position themselves above the political fray and traditional left-right cleavages; it has also been adopted by several utopian theorists operating outside the academy. In the third imaginary, sortition is seen as a strategy to bring about radical democracy. Although this imaginary dates to the 1960s at least, until the 2000s, the activists and theoreticians who defended it were first wary of an instrument imposed from the top-down and designed to encourage consensus. The imaginary of radical democracy seized on sortition when experience began to show that an increasing number of citizen movements defend drawing lots in politics and that, when combined with direct democracy, minipublics can lead to real social and economic change, especially in modes of production and consumption. Much like the second one, this third imaginary has found traction among social movements and antiestablishment bloggers; most of the time, however, its supporters come from, or belong to, left-wing and green political movements. This imaginary is also present among practitioners who rise to positions of power thanks to their work in social movements and community organizing. It is popular among those theorists of radical democracy who were shaped by the tradition of labor movements but are sensitive to the importance of democratic deliberation. Shared Arguments for Sortition Globally, these three imaginaries share several key ideas concerning the value of sortition, which explains how they can all promote the idea while otherwise appearing diametrically opposed to each other. The religious justification of sortition being discredited in the twenty-first century, the two overarching arguments that unite them unsurprisingly relate to the major remaining reasons that have motivated the use of drawing lots in history: ensuring impartiality and promoting equality. All three imaginaries agree on the value of impartiality linked to sortition. This is especially stressed by those who advocate for deliberative or antipolitical democracy, but to a lesser extent, it is also part of the argument used by radical democrats. At a time when political parties, having lost their mass base, are seen by a large majority of citizens as motivated by special interests (personal or partisan) rather than the common good, and when the electoral system appears to have been reduced to a game of lobbies and factions, 22

https://it.wikipedia.org/wiki/Antipolitica

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sortition can be viewed as an impartial mechanism that constitutes minipublics composed of individuals without political careers or factional affiliations. This therefore limits the scope and impact of power struggles while allowing these new types of representatives to work towards the common good. The claim that drawing lots entails the radical equality of all the parties involved is also present in the three imaginaries. Sortition allows lay people, especially from subaltern groups, to be selected, whereas they would not stand a chance in the traditional electoral system monopolized by professional politicians born into the elite classes. The purported tradition that dates back to Athens feeds into this imaginary. Drawing on Aristotle’s famous declaration that sortition was democratic and election was aristocratic, a notion later taken up by Montesquieu and Rousseau – thinkers who are also quite often quoted – most advocates of drawing lots think that this tool is inherently egalitarian and thus democratic. The strength of this idea has scarcely been tarnished by the lessons of history, even though the latter have shown that sortition was often practiced in small, closed circles as a means to distribute power among the elites. In fact, the equation “sortition equals democracy” seems intuitively plausible under contemporary circumstances: since all citizens can potentially be selected, the drawing of lots extends the circle of equals to all adult citizens. It is above all the rationale of political equality related to representative sampling that is shared by all three imaginaries. Sortition puts the old ideal of descriptive representation back on the agenda. As we have seen, such as it is practiced in today’s world, sortition stands in sharp contrast to its historical uses, which did not associate the process with descriptive representation. From this perspective, sortition allows for a different kind of representation than does election. Elections tend to select individuals recruited from the upper classes of society – a tendency that has massively contributed to the current crisis of legitimacy of representative government, given that political parties no longer seem to represent anyone from the lower or working classes. When combined with descriptive representation, sortition allows for the inclusion of the values and lived experiences of lay citizens in all their diversity. It is thus a promising avenue to revitalize democracies in crisis. This specific form of representation goes beyond the participation/representation dichotomy: Randomly selected minipublics are not synonymous with direct democracy. A seemingly logical deduction from the idea of the representative sample is that minipublics embody epistemic democracy by allowing diverse points of view to debate under quasi-ideal circumstances.23 This argument is common to most of the champions of sortition, even if some in the antipolitical camp are more reluctant to espouse it. In fact, unlike historical uses of sortition (ancient Athenian courts, Florentine electoral councils from the end of the thirteenth to the mid-fifteenth centuries, e.g.,), today, randomly selected minipublics are always used in conjunction with measures to ensure high-quality deliberation: 23

The film Twelve Angry Men is in this respect emblematic.

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Information from all sides is made available, contradictory viewpoints are heard, general assembly sessions alternate with small group discussions, moderation is provided to encourage everyone to speak and listen reciprocally. The lay citizens of contemporary minipublics are therefore an illustrative example of the “wisdom of crowds” and are able to develop a deliberation whose quality is often better than the one of elected assemblies (Landemore 2012). Beyond these shared arguments, however, the three imaginaries diverge, leading ultimately to opposing visions of politics and society, as well as to different conceptions of the role that sortition should play within the former. Deliberative Democracy The first rationale of democratic equality that we have analyzed in the previous section, namely the use of minipublics to obtain random samples or fair cross-sections of the people, is central to the imaginary of deliberative democracy. The main idea behind deliberative democracy is that the democratic legitimacy of any given decision will be greater if the decision is reached following high-quality, informed, transparent, and inclusive deliberation. The latter is to be based on mutual respect and to allow for the equal influence of all participants (and is thus devoid of any durable asymmetries in terms of power or domination). The opinion adopted or decision taken after this kind of deliberation is ostensibly better than one adopted or taken prior to (or without) deliberation. This means that sortition without deliberation would be of only limited interest. As we have seen, early theorists of deliberative democracy – Habermas at the fore – were not interested in sortition at all. Fairly quickly however, deliberative theorists promoting randomly selected minipublics have moved towards convincingly presenting them as the best embodiment of epistemic democracy. They have popularized their ideas among a growing number of political officials and elected reformers, who were often trained in the domain of cooperative conflict resolution and participatory citizenship education. For the most part, the reformers who initially established deliberative minipublics had more modest ambitions than the mechanism’s inventors. They generally viewed minipublics as mere complements to representative government. As outlined in countless speeches and texts, minipublics are designed to establish an informed public opinion, while decision making as such is left, in a subsequent phase, to elected officials. This informed opinion is seen as existing in opposition to protest movements and the opinion of the broader public as expressed in polls, referenda, or on the street (public opinion is viewed as easily manipulated, liable to be influenced by emotions, and generally uninformed). Countering the criticisms of deliberativists who remain loyal to the first Habermasian interpretation that focuses on the broader public sphere (Chambers 2009; Lafont 2020), and given that the impact of the first wave of deliberative minipublics remained quite limited, theorists of deliberative democracy in the 2010s took a “systemic turn” and began insisting on the

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need to develop multiple, connected deliberative spaces, of which minipublics are only one embodiment (Mansbridge and Parkinson 2012). Combined with a more realistic understanding of deliberation that includes negotiations conducted within an equitable procedural framework (rather than opposing arguing and bargaining) (Mansbridge et al. 2010) and a functional understanding of deliberative systems (based on a division of labor between the different deliberative spaces), this shift helps to align deliberative theory with the practice of the reformers, practitioners, and consultants who are indispensable for the organization of minipublics. Through hybridization, deliberative democracy theory has led to an increasingly powerful imaginary. In 2020, a report published by the OECD illustrated this. It called for the establishment of randomly selected minipublics, arguing that “that, if institutionalized, [these] have the potential to help address some of the key drivers of democratic malaise outlined in this introduction: giving voice and agency to a much wider range of citizens; rebuilding trust in government, and leading to more legitimate and effective public decision-making” (OECD 2020, p. 25). This imaginary remains marked by its roots and is not designed to incite mass mobilization. First and foremost, it concerns those individuals who are in a position of power and suggests that the latter should reinterpret the values that form the bedrock of democratic legitimacy, and, consequently, that they should likewise reform existing institutions. Modern society is seen as a flat structure devoid of structural power relationships (the notion is almost never used), one which has limited inequalities but a plurality of interests and values. Liberal democracies – the reference point for this imaginary – are supposed to represent this pluralism in a well-regulated and peaceful context that allows for structured negotiations between different interest groups and an extensive deliberative system. In the twenty-first century, democracies must nonetheless adapt, lest they be destroyed by a crisis of legitimacy. This change must be gradual, and public deliberation has to play a central role. One must elaborate a deliberative system that subsumes all types of negotiation and channels political emotions, while preserving the pluralism of interests and values, encouraging cooperative conflict resolution, and promoting social justice. The imaginary of deliberative democracy takes an ambivalent view of political parties: On the one hand, parties express the pluralism of interests and values, but on the other, their current evolution increasingly risks reducing them to mere factions exclusively concerned with defending special interests. In that sense, randomly selected minipublics can help improve representative government, as part of the larger project of elaborating a deliberative system. They are one of the most fully fledged institutional embodiments of democracy, and of rational consensus and disagreement. This imaginary claims to be opposite to populism. Finally, it should be noted that as experiments have unfolded throughout the 2010s, the imaginary of deliberative democracy has significantly evolved on one point. Among both practitioners and many theorists, minipublics had hitherto embodied a kind of deliberative elitism: The idea of direct democracy

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elicited a great deal of skepticism, as many believed that lay citizens could not deliberate rationally unless conditions were ideal (we have seen that this reasoning was shared by many members of the French Citizens Convention for the Climate). Minipublics were primarily designed to be consultative add-ons to representative democracy. The rising crisis of representation, on one hand, and the largely successful democratic experiments that combine together minipublics and referenda on the other hand, have forced this imaginary to envision a broader transformation that integrates the potential empowerment of minipublics which are more closely tied to decision-making processes, or even institutionalized – as is the case for the permanent Citizen Council established in the German-speaking Community of Belgium and the joint committees of the Brussels’ parliament.24 The OECD report and President Macron’s discourse announcing the advent of a new “Republic of permanent deliberation”25 are two paradigmatic examples of this imaginary. Antipolitical Democracy The imaginary of antipolitical democracy stems from an elective affinity with the second rationale of democratic equality, the existence of ordinary common sense shared by all citizens. This imaginary is older than the one associated with deliberative democracy, as it was taken up by the first European political party to defend sortition’s return to politics, the Fronte dell’Uomo Qualunque [Common Man’s Front], created in 1945 in Italy by Guglielmo Giannini. The party would briefly be the fifth-most popular in Italy, accounting for more than 5 percent of all votes in the 1946 election for the Constituent Assembly. This party helped to popularize two terms that went on to be later used in a largely pejorative manner: qualunquismo, which could be translated as “whateverism” and which represents an attitude of indifference and disdain for politics and social issues, and antipolitica, meaning a radical rejection of political parties and the idea that one must transcend politics to establish a system to serve the common interest.26 In Giannini’s imaginary, partisan politics were merely a “farce,” and no fundamental difference separated electoral democracies from their authoritarian counterparts. The humiliated masses were incited to free themselves from the “tyranny” of politicians. Once this little oligarchy would be overthrown, modern society could, according to a Saint-Simonian logic, “replace the government of Foundation for Future Generations, “German-speaking Community of Belgium becomes world’s first region with permanent citizen participation drafted by lot,” www.foundationfuturegenerations.org/files/documents/news/20190226_dgpermanentcitizensassembly_pressrelease.pdf 25 “Emmanuel Macron lors du ‘grand débat’: ‘Ce qui remonte, c’est la fracture sociale’,” LeMonde. fr, January 16, 2019. 26 It should be noted that while deliberative democracy and radical democracy are terms that actors use to describe their own theories, antipolitical democracy is most often applied as a (pejorative) label from the outside, György Konrád being an exception. 24

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persons by the administration of things.”27 “To control these administrators,” Giannini (2002, pp. 60–61, 74, 138–139, 151–160) added, all that was needed was a collective “accountant”: He envisioned “a few representatives from the community,” randomly selected and rapidly alternating positions, given that every moderately enlightened adult would be “sufficient competent for this task.”28 This imaginary was then exploited by Peter Dienel when he made the case for planning cells. When horizons of expectation were turned upside-down in the 2000s, this imaginary became very popular. It was adopted by the Five Stars Movement in Italy. Between the party’s creation in 2009 and its access to government positions in 2018, it consistently promoted sortition in politics. It was quite influential on the Icelandic citizens’ assemblies in 2009 and 2010 (Cordier 2020). The antipolitical and managerial imaginary also found its way into hundreds of antiestablishment blogs without any political affiliation (often run by people in the tech world), and many nonacademic utopian circles seeking to go beyond the traditional Left-Right political cleavage. Examples include the ecologist Ernest Callenbach and MasterCard founder Michael Phillips, who in 1985 collaboratively penned an important work that is frequently quoted in international studies on drawing lot (Callenbach and Phillips 2008). Similarly, many books proposing political models based on sortition have been put out by the British publisher Imprint Academic based in Exeter. Unlike deliberative democracy, this imaginary is buoyed by a radical rejection of political parties and representative government, which are both associated with corruption, factions, and self-proclaimed elites working to defend special interests. The antipolitical imaginary thus calls for a change that radically overthrows the political oligarchy (in some more leftist variants, the capitalist oligarchy is also targeted). In this perspective, while our current society is structured by power struggles between the people and the elite, the people are not divided by fundamental tensions or a plurality of interests and values. Consequently, minipublics composed of randomly selected lay citizens can become the most fully fledged institutional embodiment of the administration of things and reasonable consensus. Some argue that minipublics are in fact the only incarnation of the latter, whereas others (such as the Gilets jaunes) believe that minipublics should be combined with direct democracy. Sortition and citizens’ initiatives thus could belong to the same imaginary: “here, the people are seen as unified, without partisan cleavages, without ideologies, the sum of free individuals whose will can be ascertained using a simple mechanism that either asks them a question or randomly selects a certain number from among them to deliberate on their behalf” (Hayat 2018b). This perspective can also be seen in some libertarian and socialist circles, and even, albeit partially, in Rousseau’s work. 28 This work was analyzed in depth by Urbinati and Vandelli (2020); however, these authors view Giannini’s project as embodying the general idea of sortition, rather than one of the imaginaries enabled by the latter. 27

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This is likewise why some antipolitical circles are relatively unmoved by the ideas of epistemic democracy and descriptive representation as based on representative sampling, arguing instead that sortition can account for the presence of anybody, rather than a sociologically diverse microcosm of the population. This antisociologism explains why this imaginary is shared both by managerial perspectives and by others who refer to Jacques Rancière or to the anarchist tradition. The latter develops a theory of democracy centered on political conflict and conceptualizes sortition as a democratic institution that does justice to the contingencies of the political order and emphasizes first and foremost the radically egalitarian capacity of all citizens to govern. This conflict is not part of sociologically determined relations of domination, but is played out in opposition between those who are “without part” with regard to state power and the oligarchy which monopolizes power. This paradoxically authorizes antipolitical actors to mobilize Rancière’s theory: these actors share his thesis of the democratic quality of sortition and refuse a sociological analysis of the internal division of the people, but do so while imagining a future society free from conflict, a conclusion which is profoundly foreign to Rancière’s thought. The same logic that underpinned popular juries in the eighteenth and nineteenth centuries, the judgement between peers, still runs strong in this imaginary. Some actors claim that people belonging to parties, unions, or NGOs should be challenged when drawn by lot. In addition, some authors are not particularly interested in deliberation. For them, sortition is an instrument that inherently encourages democracy: “sortition intrinsically and automatically prevents the rich from monopolizing power and accumulating privilege. The rich (the 1 percent) naturally like the electoral system. The poor (the 99 percent) should defend sortition just as naturally29: especially given that only sortition would allow representatives to truly be ‘servants’ of the citizens rather than their ‘masters.’”30 Radical Democracy Radical democracy is an ancient imaginary, with its roots in the nineteenth-­ century labor movement, but also one that experienced an important resurgence in the 1960s and 1970s thanks to new criticisms of both capitalist democracy and authoritarian socialism. Its reliance on sortition is relatively recent, however, as theorists and activists alike were initially reticent to adopt a mechanism that would need to be implemented by the ruling elite from the top-down and was informed by deliberative theory that might promote consensus to the detriment of agonistic democracy and radical transformation. It was primarily in the 2010s that an imaginary of radical democracy which includes sortition began to develop, inspired by a few early texts as well as the growing crisis of the 29 30

Etienne Chouard, #PasDeDémocratieSansTirageAuSort, February 18, 2020. http://etienne.chouard.free.fr/Europe/tirage_au_sort.php

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avant-garde and, first and foremost, by the second wave of experiments. The borders between the academic and activist worlds are porous when it comes to the imaginary of radical democracy. John Gastil and Erik Olin Wright (2019a) published a collective theoretical manifesto that explored the idea of a randomly selected legislature from these different viewpoints. However, a number of theoreticians and practitioners of radical democracy, such as Chantal Mouffe and Íñigo Errejón, remain skeptical or opposed to sortition (Costa Delgado 2017a). The imaginary of radical democracy likewise encompasses the first rationale for democratic equality, the creation of minipublics that allow a representative sample or a fair cross-section of lay citizens to engage in high-quality deliberation, embody the epistemic wisdom of the many, and represent the people at large. However, contrary to the imaginary of deliberative democracy, radical democrats also reclaim the third rationale of democratic equality, and thus include sortition in a broader and modernized perspective of s­ elf-government. Their diagnosis of the present situation is profoundly different from that offered by proponents of deliberative democracy. They consider that democracy operates in a fundamentally unjust world governed by power relationships between politico-economic elites on one hand, and the people (especially the subaltern classes) on the other (Fung 2005). In such societies, believing that change could only occur via democratic deliberation is wishful thinking. This situation implies that the simultaneous transformation of politics and society must be envisioned (Wright 2019), and that politics has an agonistic dimension. Nevertheless, contrary to what is argued by proponents of antipolitical democracy, the “contradictions within the people” (Mao 1957) are well and truly present in today’s societies. Social stratification and political cleavages cannot be reduced to the mere opposition between the 1 percent and the 99 percent. Political contradictions and agonism will not disappear in a more just society – the latter will remain marked by the pluralism of interests and values. Politics will never be reduced to the administration of things and will preserve its “emotional and tragic” character, as Castoriadis (2008) and Moreno Pestaña (2019) have described Athenian politics. The democratization of democracy constitutes a “real utopia” (Wright 2010), a horizon of radical transformation that is unattainable as such but towards which we must nevertheless strive. This strategy entails “revolutionary reforms” (Gorz 1968), without the belief that a single center could integrate all actors, or that a single decisive moment could tip today’s society over into an ideal world. Radical transformation can be envisioned like an ecosystem, but the very idea of a “system” is at odds with the imaginary of deliberative democracy: Rather than being based on a harmonious division of labor, an ecosystem develops in a fragile equilibrium that is constantly negotiating tensions, predators, and prey, and where the introduction of new elements in conflict with existing conditions can change the overall dynamics. Linking together both institutions and radical protest movements, or deliberative and agonistic moments, presents a challenge, and while it would be unrealistic to

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assume that inherent tensions will be seamlessly resolved, this challenge has to be met (Felicetti and Della Porta 2019). In this light, the fact that Extinction Rebellion defends both civil disobedience and randomly selected citizens’ assemblies is paradigmatic. Therefore, the value of the impartiality commonly attributed to deliberative minipublics is relativized: The urgency of social and ecological transformation justifies the fact that radical ecological activists forge links with members of the Citizens’ Convention for the Climate, or that politicization occurs in the Convention. The twentieth century has shown that one must go beyond the Schmittian or Leninist traditions that still drive many radical left-wing movements.31 Institutions based on the deliberative ideal that exploit the tool of sortition will need to be part of tomorrow’s society. To paraphrase Marx, these institutions will constitute one of the political forms of social emancipation. Moreover, we can at least partially anticipate the shape these will take, thanks to the experiments that are currently underway. The imaginary of radical democracy is ambivalent when it comes to political parties and representative government. On the one hand, the latter permit the expression of a plurality of interests and values, and some mass parties have helped immensely to channel the struggle of the working classes. Moreover, it seems unrealistic to imagine radical transformation without coordinating the efforts of minipublics, social movements, and political parties. Nonetheless, traditional representative governments have always had a pronounced aristocratic streak, and mass parties that organized the working classes around a progressive agenda are largely a thing of the past. From this perspective, representative government is on track to become what it was in the nineteenth century and what it is in most countries of the global South: A government of the elites, by the elites, and for the elites. Without a radical transformation of existing institutions, the subaltern classes will never be able to play a major role. Increasingly, one must look at other elements of the democratic ecosystem to try to identify new ways forward. The institutionalization of deliberative minipublics is an important strategic objective in this regard, in that it will allow lay citizens – who are normally deprived of influence by the representative system and an informal governance dominated by private actors – to have a voice. Minipublics will thus constitute a crucial step towards the ideal of self-government. As we have seen, many different actors have championed sortition as a political tool, and it informs several imaginaries of politics and society that are in many ways diametrically opposed to each other. Champions of deliberative democracy were the first to advocate mechanisms of sortition and were likewise able to conceptualize minipublics. Reciprocally, the latter have offered a kind of laboratory to the theory of deliberative democracy. Some of the figures of this theory remain indifferent about sortition, when others strongly defend the 31

Slavoj Žižek, who defends both “lottocracy” and “democratic terror” in a Leninist perspective, is an exception (Miguel Lorenci, “Zizek, un torbellino filosófico,” www.laverdad.es/sociedad/ zizek-torbellino-filosofico-20170630014949-ntvo.html)

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development of minipublics, which give an empirical credibility to deliberative democracy in the eyes of practitioners. Nevertheless, this theory and the imaginary that it gave rise to are hardly able to account for power relationships and a radical transformation of society. The imaginary of antipolitical democracy seems to be at a strategic impasse, given its naïve assumption of a unified people, but increasingly large swathes of society are mobilizing under its banner in the quest for social change. As a result, this imaginary has had a real impact on public opinion and significant though indirect influence regarding popularizing sortition. It blends easily with a managerial imaginary widely diffused in high-tech professional circles, but also in anarchist circles where the opposition between the 1 percent and the 99 percent is juxtaposed with a strong antisociologist perspective. As for the imaginary of radical democracy, it implies a kind of “real utopia” that seems to draw on a more credible understanding of power relationships and the belief that the democratization of democracy will stem from the dialectic relationship between sortition, social movements, and political parties. Directly speaking, this imaginary has only led to a small number of experiments, but indirectly it has also served to enhance sortition’s profile and to influence the French Citizens’ convention for the Climate. To a certain extent, these imaginaries have been able to jointly cultivate experiences of drawing lots in politics because they partly agree on supposed virtues of this procedure: Impartiality and democratic equality, the latter being understood in relation with the rationale of descriptive representation and, to a lesser extent, the epistemic quality produced by the deliberation of ordinary citizens. It is likely, however, that as sortition regains its importance, these imaginaries will confront each other more directly. A reconciled society governed by consensual policies is not right around the corner.

Conclusion According to many supporters of contemporary minipublics, the return of sortition in politics implies the resurgence of some of ancient democratic ideals. Often, relying on a few quotations by Montesquieu and Rousseau, these individuals adhere to the myth according to which the Founding Fathers of representative government refused sortition because it was seen as intrinsically democratic. Nevertheless, the factual accuracy of this claim has been cast into doubt. Now that sortition has returned to politics, it has done so in a form and with a variety of significations that would have been quite difficult to understand for people living in classical Athens, in medieval and Renaissance Florence, or in Early Modern Europe – not to mention imperial China. The overlapping combination of sortition and deliberation, universal suffrage, and representative sampling have completely changed the reasoning behind sortition. At the turn of the nineteenth century, sortition was seen as something irrational, in contradiction to both the ideals of the Enlightenment and the new ideas according to which a legitimate political order must be based on

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reason, popular sovereignty, and the people’s will. This is why both the elitist and the popular or democratic tendencies, although opposed on a number of issues, were in agreement regarding their rejection of sortition, which quickly became outdated and a nonissue. When the notion of the representative sample developed at the end of the nineteenth century was introduced to politics and the judiciary at the end of the short twentieth century, it once again became possible to consider selection by lot as a potentially rational device. This is especially true given that minipublics drawn by lot seem to develop an elective affinity with deliberative democracy, which emphasizes less on people’s will than on the reasonable elaboration of public opinion. At a time when representative governments were contested but when revolutionary hopes had begun to fade, deliberative minipublics seemed to be a way of democratizing democracy, according to a handful of academics and practitioners. Within four or five decades, contemporary experiments emerged in two waves. The overwhelming majority of the deliberative minipublics developed during the first wave did not have much impact on the wider public sphere. The inherent challenge to minipublics concerns the tension between their deliberation and the wider public sphere (Goodin and Dryzeck 2006). By definition, their aim is to reach a counterfactual opinion of what public opinion could be – they are better informed and enjoy a reasonably satisfactory setting in which to formulate an opinion, which may well differ from wider public opinion. Deliberation and participation are sometimes presented as opposite models of democracy (Held 2006). Although this opposition is not necessary, some trade-offs are indeed inevitable (Sintomer 2011). In the first wave, deliberative minipublics often implicated a kind of elitism that is at the antipodes of Athenian democracy. This deliberative elitism argues that the implication of lay citizens in politics can only ever take place within minipublics if it is to be reasonable, as other forms of participation are suspected of being overly emotional or prone to demagogic manipulations. In addition, experiments in this vein have generally been top-down, patented by their inventors, and only consultative, which strongly limits their potential impact on social change. They have been successful in demonstrating the possibility of reasonable deliberation among lay citizens, but they have not substantially changed the real lives of the latter. Given that their existence only stems from the good will of public authorities, they can hardly be subversive regarding power structures and rampant injustice (Fung 2005). Reasonable discussions in modest committees are not enough to impose radical change in a world where the structural resistance of dominant interests is massive. Had minipublics not entered the second wave, their legitimacy would have remained weak. These bodies had to become more than “just talk.” This happened with the advent of the second wave, which paved the way for many more dynamic experiments. These were characterized by hybridization that freed the political imagination of practitioners. Often, concrete cases were not pure examples of deliberative or participatory democracy, but were increasingly

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empowered from their inventors. This marked a major difference with the first wave. Moreover, sortition has now been advocated by social movements such as the 15M in Spain, the Gilets jaunes in France, and Extinction Rebellion in various European countries. A number of grassroots movements and activists calling for “real democracy” have chosen to argue for the reintroduction of sortition in politics. In this perspective, sortition is no longer a mere supplement to representative democracy. In fact, several experiments have combined it with direct or participatory democracy. In addition to deliberation and descriptive representation, one model has highlighted impartiality as a crucial factor legitimizing this new kind of representation. With the French Citizen Convention for the Climate, another model has unexpectedly been created, one that opens the door for a greater degree of politicization. The tradeoff between neutrality and politicization has also been discussed in regard to the Swiss Citizens’ Initiative, which had proposed the justices of the Federal Supreme Court by lot. The second wave of minipublics drawn by lot has revealed that the political rationale of sortition’s political resurgence can vary from one experiment to another, from one advocate to another, from one theoretician to another. Three different justifications have emerged to defend the use of sortition in politics. The first claims that minipublics are random samples or fair ­cross-sections of the people that can legitimately deliberate for the people on account of their statistical diversity or representativeness. In the second line of reasoning, democratic equality means relying upon the common sense of ordinary people, given that lay citizens are interchangeable in their ability to collectively determinate the common good. The third rationale outlines how government by everyone in turn would work, with sortition permitting the self-government of all by all. These three rationales are at the core of three contrasted imaginaries which claim that sortition can be crucial for democracy: the imaginaries of deliberative, antipolitical, and radical democracy. At this stage of our inquiry, it is necessary to provide a normative analysis that will underline the importance of sortition in politics for democratic theory, and reciprocally, demonstrate how democratic theory can make sense of drawing lots in politics.

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5 Sortition and Politics in the Twenty-First Century

“A throw of the dice will never abolish chance.” Stéphane Mallarmé, 1897 “God tirelessly plays dice under laws which he has himself prescribed.” Albert Einstein, “Letter Paul Epstein,” 1945

In this volume, we started by comparing today’s arguments in favor of selection by lot with those put forth by ancient Athenian democrats and by Florentine republicans fighting the Medici during the fifteenth century. This raised several questions. (1) What significance did the political use of sortition have in Antiquity, the Middle Ages, and the Early Modern period? Should we accept, as classical authors such as Aristotle, Montesquieu and Rousseau did, or recent authors such as Bernard Manin and Jacques Rancière have, that selection by lot is inseparably linked to democracy? (2) Why did sortition disappear from the political scene in the mid-1800s, just as it was becoming more widely used in the judicial sphere for trial juries? (3) What is the significance of its present resurgence in many varied and rapidly growing experimental settings? (4) Can minipublics and especially randomly selected citizens’ assemblies offer a promising solution to the legitimation crisis of the representative government in the twenty-first century, at least in the Global North? In this volume, we have outlined some answers to all of these questions. The first question has the value of taking us beyond well-trod ground, since it compels us to look anew at democracy in general and contemporary election-based democracies in particular. Sortition has been a central device in the political history of many political systems, in Europe and beyond. Interestingly enough, in ancient Athens and the claims of contemporary sortition activists alike, random selection in politics is seen as more democratic than elections. However, sortition should not be equated with democracy: Athenian distributive democracy was only one highly specific incarnation. Random selection implies the 250

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symbolic equality of all those among whom sortition takes place, and a sharp distinction between the latter and those who are excluded from the process. It can operate within small elite circles, as was the case for Roman consuls, Chinese imperial civil servants, and Early Modern distributive aristocracies. Consequently, the political use of sortition in the past cannot be ascribed to a single, transhistorical motivation. To understand why selection by lot vanished from politics alongside the advent of the modern revolutions from the end of the eighteenth century, this volume outlines a number of factors. One of the main causes was a new imaginary of popular sovereignty and the will of the people, which implied a mandate given by the latter to its representatives. Elections became the main procedure and legitimizing ritual of representative government, comparable to contract theory as it developed in contemporary private law. Sortition and election were thus split off from each other, the latter seen as allowing for the expression of the diversity of interests and values, and constituting an institution capable of embodying the nation and of defining the common good: this is why the mandate given to the representatives had to be “free,” that is, nonbinding. Another decisive factor was a new conception of reason, envisioned as the ability to control one’s life and the world. In this new paradigm, sortition was on the contrary seen as the use of blind chance to make decisions. As the concept of representative sampling was not yet available, sortition could only be seen as irrational in politics. For these two reasons, selection by lot seemed like an outdated procedure. In particular, this is why even the most radical-democratic parties did not advocate or discuss the use of sortition. Conversely, popular juries were supposed to involve only subjective judgments on particular judicial decisions; to be based on the common sense of anyone; and thus, to deliver a fair and impartial ruling – whereas politics remained the realm of pluralism and conflict. Even British and American juries, which Tocqueville viewed as political tools, were ostensibly composed of interchangeable citizens endeavoring to reach consensus: Their justification was thus quite different from the logic of competitive elections. Additional factors probably played an indirect role in the long term, such as an aristocratic conception of the republic that insisted on an elite group of rulers separate from the people; the gradual professionalization of an activity that was subject, like others, to the division of labor; and the difficulty of imagining the democratic practice of sortition in large nation-states. The significance of sortition’s contemporary resurgence and the exponential number of contemporary experiments with the procedure may also be explained by the discovery of representative sampling. In fact, sortition as it is practiced in politics today is inseparably bound up with the latter, coupled with the notion of deliberation. Representative sampling makes it possible to establish a “minipublic,” a counterfactual public opinion that is separate from both elected politicians and the wider public sphere. In that regard, references to ancient Athens, where numerous face-to-face discussions took place and where those who were randomly selected were embedded in a dense network of social relations, are

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problematic. They overlook the profound shift entailed by the historical discovery of representative sampling and its application to the random selection of political officeholders. In addition, we must differentiate two contemporary waves of minipublics, the first being top-down, tightly controlled and merely consultative bodies, the second being hybridized entities on their way to institutionalization; the latter are more empowered and have been championed by social movements as well as public authorities. Even in the second wave, however, the politicization of citizens’ assemblies has varied from one experiment to the other. It is therefore not surprising that at the beginning of the 2020s, the democratic imaginaries that legitimize the reintroduction of sortition to politics vary significantly, encompassing deliberative, antipolitical, and radical-democratic imaginaries. It is only in some cases that major historical differences can be transcended, and that a parallel with Athens can be justified. Having presented a historical and theoretical overview in Chapters 1 to 4, we can now return to the last of our initial questions. Thousands of contemporary experiments have used sortition. A considerable amount of practical and theoretical knowledge has been particularly important in the Anglo-American world and to a lesser extent in continental Europe. The practice has been especially widespread in continental Europe, in the United Kingdom, Ireland, and Australia, followed by North America, and more marginally in Asia, Latin America, and Africa. Is the reintroduction of sortition a promising response to the crisis of democratic politics? On what issues and under what circumstances could selection by lot be more legitimate than other procedures? In what ways can or must it be combined with other mechanisms of selection?

Three Challenges In order to answer these questions, we shall examine three of the most common and fundamental critiques that are made of randomly selected bodies. From the French Revolution to the present, mainstream opinion has judged randomly selected bodies as controverting the principle of democratic representation; as being irrational; and as being fundamentally incompatible with the pluralist and agonistic nature of politics. Let us tackle these three challenges in order. A New Kind of Representation The first critique can still be frequently heard today, especially among elected politicians. We represent the people because we have an electoral mandate, elected officials say, whereas randomly selected citizens only represent themselves. It is true that citizens are sometimes reticent to claim that they are representatives, either because they have internalized this criticism of sortition, or because they largely distrust elected representatives, who they equate with representation itself. The representative claim of elected politicians is based on two pillars. Elections are supposed to allow for the representation of a variety of

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societal interests and values, and in turn to create a unified body capable of defending the common good. However, this magic formula combining mandate- and embodiment-representation has largely been discredited, as political parties are now seen by a majority of citizens as unable to represent their views and motivated more by special interests than by the common good. This does not automatically nullify the critique of the random selection of officeholders: it is probably still shared by a majority of people in the Global North. However, our claim is that minipublics and especially citizens’ assemblies represent a new and more democratic form of political representation in the twenty-first century. The R. v. Kokopenace case in Canada (2015) is a good place to start this discussion. The defendant, an Aboriginal man from the Grassy Narrows First Nation reserve, claimed that his constitutional rights had been violated because the jury was not sociologically representative of the local population and thus partial and biased.1 The Court of Appeal primarily concerned itself with interpreting the notion of representativeness, as contained in the Canadian Charter of Rights and Freedoms. A crucial distinction was made between a functional and a statistical understanding of representativeness. The judges of R. v. Kokopenace all agreed that the jury is functionally a representative institution: It embodies “the conscience of the community,” and “represents society in the sense that it acts on its behalf.”2 However, some of them rejected the idea that this function relies on sociological representativeness, a notion which is not explicit in Canadian jurisprudence, unlike in its US counterpart.3 Other judges defended the opposite view, viewing random selection as a “proxy” for statistical representativeness.4 In R. v. Kokopenace, the problem arose because AboriginPeoples, who represented 21.5 percent to 31.8 percent of the adult population in the district, constituted only 4.1 percent of the individuals on the jury roll.5 Distrusting a Canadian judicial system that had historically and structurally discriminated against them, Aboriginal individuals were likely to reject jury participation. But can juries composed under such circumstances be truly fair? All the judges agreed that the state has no duty to ensure an equality of results for all potential social groups: This would be technically impossible and would require a violation of privacy during the selection process.6 The discussion was therefore focused on the impartiality of the selection procedure. A majority of the judges claimed that the state’s obligation was only to ensure that no conscious discrimination occurred against a particular group, and that in this particular case, the defendant’s rights had therefore not been violated. In his dissent, however, Justice Cromwell argued that given the lengthy history of systemic discrimination against First Nations populations, the state must 1 2 3 4 5 6

R. v. Kokopenace 2015 SCC 28. Ibid., p. 457. Ibid., pp. 463–468. Ibid., p. 405. Ibid., p. 458. Ibid., pp. 425–426.

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actively foster the equal inclusion of Aboriginal people on the jury rolls, and that its failure to do so was sufficient cause to overturn the trial decision.7 When theorizing minipublics in the political sphere, we can glean three lessons from this judicial case. First, randomly selected bodies represent the people in a functional manner because they embody a community that deliberates on the common good. Second, in line with Justice Cromwell’s dissent, they do so on account of their sociological representativeness or at least diversity: This dimension is crucial for the legitimacy of minipublics. In particular, minipublics allow for the representation of diverse viewpoints, values, and social experiences better than elective representation does. Third, randomly selected bodies can have specific modalities of authorization, reactiveness, and accountability. We shall look at each of these lessons in turn. A new embodiment of the people. Following in the footsteps of other randomly selected bodies throughout history, contemporary minipublics are a specific embodiment of the people, a microcosm of the community selected for the purposes of deliberating on the common good. We have previously discussed this dimension of minipublics and I will not further expound on this here. However, the pars pro toto synecdoche of a minipublic is not ironclad: Its representative claim can always be contested. The anti-Federalist leader John Adams wrote that representatives should “think, feel, reason and act” just like the people they represented (Adams 1776). For advocates of minipublics, however, the statistical similarity between descriptive representatives and the public is just the starting point. Once a minipublic has deliberated, it may have changed its mind, this kind of change in fact being seen as the sign of high-quality deliberation. The minipublic embodies a counterfactual public opinion (that is, what the public opinion might be, were it better informed and its members able to engage in dialogue within a reasonably satisfactory framework), but this means that it often diverges from “actual” public opinion (that is, the opinion of the many as it is reflected in politics). This issue has been widely discussed in the literature (Curato, Vrydagh, and Bächtiger 2020), and the way in which jury recommendations have been treated in several seminal experiences illustrates that this risk is not purely theoretical. In 2005, the electoral law proposed by the British Columbia Citizens’ Assembly on Electoral Reform ultimately convinced only a simple majority (57.7 percent of voters), short of the legal threshold necessary for it to be adopted and well below the overwhelming majority (92.8 percent) that had voted for it within the Assembly. When the proposal was again submitted to a referendum in May 2009, admittedly in a very different context, it was again rejected and did not even pick up 39 percent of the vote. The outcome was even more disappointing in Ontario: A mere 36.9 percent of electors (with an abstention rate reaching 50 percent) approved the new voting method proposed by the Citizens’ Assembly. Many members of the French Citizens Convention for 7

Ibid., pp. 478ff.

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Climate similarly worried that their proposals would not be accepted by their fellow citizens. Of course, such discrepancies are not specific to sortition-based political procedures, and the gap between parliamentary decisions and public opinion is part of everyday life in a representative democracy. Political leaders regard “mid-term fluctuations” as normal – it’s only at election time that they must demonstrate that they continue to enjoy the people’s trust. And yet, faced with the potential gap between the enlightened opinion of minipublics and the opinion of the masses, many advocates of minipublics exclusively support the former and are wary of the latter. Conversely, we have seen that a second wave of experiments has begun to combine minipublics with direct or participatory democracy. This indicates the potential systemic democratization of democracy, a subject on which we will expound in the last section. What seems clear is that contemporary randomly selected bodies should not be considered as self-supporting, but should exist alongside other mechanisms and principles to construct a solid democratic edifice. Descriptive representation and the politics of presence. It is important to note that even though juries were initially designed to allow for judgment by one’s peers within homogenous communities, the idea of sociological representativeness is now an important dimension of the Canadian Court of Appeal and US Supreme Court. Contrary to what is argued by supporters of antipolitical democracy, diversity matters, and a fair representation of subaltern groups is of special importance. It is crucial to ensure the legitimacy of sortition-based mechanisms and support their claim of embodying the people. Selection by lot fits the idea of descriptive representation particularly well. What it places on the agenda is a “politics of presence,” to use the notion coined by Anne Phillips (1995). This challenges the assumption that the act of representation should be independent of the social characteristics of the representatives involved. It deviates from the many republican and liberal perspectives on political deliberation, which recognize only the abstract citizen and are blind to the systemic discrimination that affects individuals from subaltern groups, especially when they attempt to engage in politics. What matters is not only which ideas are represented, but who represents them; the answer to the second part will likely influence the answer to the first. For example, given the present state of relations between men and women, it would be safe to assume that an assembly consisting only of men and a gender-equal assembly would approach the issue of domestic violence in different ways. Furthermore, independently of the issues and decisions at stake, the social and demographic characteristics of representatives have an intrinsic value: The equal presence of women in representation bodies has a symbolic importance for gender equality in society as a whole. Finally, democratic equality is inherently valuable, and the equal participation of men and women in representation is one of its crucial dimensions. Thus, the politics of presence concerns all subaltern groups (including the working class and people with low education levels, who are overlooked by Phillips and many partisans of identity politics). Generally speaking, sortition

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seems better suited to ensure the fair representation of men and women in elected offices than the legal quotas institutionalized in many countries or, for example, the seats reserved for Scheduled Castes and Scheduled Tribes in India. Experience has shown that multiplying quotas or reserved seats for more than two or three categories is rather difficult, from a technical standpoint, and often leads to political gridlock. On the contrary, sortition does not harden or reify group boundaries, because it does not presuppose any fixed or inherent identity. However, although the notion of a society of completely interchangeable individuals is sometimes associated with “pure” sortition, in reality, random selection can be stratified to take into account the main social differences which relate to the issue a given minipublic is poised to discuss. The complementary use of quotas does mean, however, that criteria must be defined to choose the pertinent groups. These categories can in turn have a performative effect, if only by legitimatizing certain cleavages and rendering others invisible. This has to be openly recognized and publicly discussed, which is unfortunately not always the case in contemporary experiments. In addition, the objective is not just to obtain a diverse or representative cross-section of the population. Once a minipublic is constituted, the equal distribution of speech across the members of a socially and culturally heterogeneous group remains a challenge (Fraser 1997; Young 1990): Some individuals will be more used to speaking in public than others, as cultural capital tends to lift inhibitions and increase self-assurance. In addition, experts and professionals may significantly influence the course of debate. The practical knowledge gained over thousands of sortition experiments is reassuring on this point, however. Together with other procedural devices, moderating debates tends to minimize asymmetries: This becomes immediately clear when those who were previously silent come alive in small workshop discussions and leave with greater confidence in their public speaking skills. Perfect equality is never achieved: If sortition takes off rapidly, there is significant risk that less experienced facilitators will be used and that this challenge will arise more frequently. Nevertheless, deliberative minipublics tend to do much better in this regard than any other participatory device, let alone the more traditional mechanisms of representative democracy. Authorization, responsiveness, accountability. In her seminal work, Hannah Pitkin (1972) claimed that a normatively legitimate form of representation should imply authorization, responsiveness, and accountability. Although Pitkin is discussing elected representatives when she makes this argument, and some interesting forms of representation do not follow this scheme, these criteria apply well to randomly selected representatives. Let us begin with authorization. Interestingly enough, in most countries, judges and jurors are considered to be representatives, because they speak on behalf of the community. Some liberals view them as limiting democracy and embodying natural human rights. A more convincing perspective argues that judges and jurors are a necessary self-limitation of the people: Although never

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perfect nor completely detached from politics, as the Swiss discussion on the selection of federal judges demonstrates, the rule of law limits mistakes and arbitrariness. The authorization of judges and jurors comes indirectly from the constitution and laws that are enacted following political debates, and from the fairness of the procedure according to which they are nominated. A similar kind of authorization is granted to political minipublics. The parallel with the judiciary makes it clear that in the absence of any institutional constraints, the normative legitimacy of ad hoc authorization by a governing political body is fragile. When the existence of the minipublic depends on the arbitrary will of the latter, it is likely that political manipulation will play a role with regard to both the decision to create a minipublic and the definition of its agenda. In addition, when the device is solely consultative, the possibility of cherry-picking citizens’ proposals may bolster the impression of arbitrariness. The French regional assemblies involved in the 2019 “great debate” were caricatural expressions of this fragile legitimacy, which more globally illustrated one of the most significant shortcomings of first-wave sortition mechanisms. The institutionalization that has begun to take place with second-wave sortition mechanisms is therefore a crucial development. Randomly selected minipublics must become part of the legal landscape if we want them to be more useful and legitimate than opinion polls, and thus benefit from due authorization. Note that authorization is given to the randomly selected body as a whole, as an embodiment of the people. Its members do not receive mandates from constituencies and one does not expect persons of color to represent only persons of color, women to represent only women, men to represent only men, and so on. This scheme differs from the principle of separate elections, which operated group by group, and on which the corporatist systems of the French Ancien régime and postwar neocorporatist devices were based. It also differs from radical forms of identity politics which claim that only women can speak for women, and so on for all subaltern groups. The aim, rather, is to widen the social spectrum of those participating in deliberation so that the process is enriched by a greater variety of viewpoints, and various prejudices and limitations will cancel each other out. In short, the ideal is that the diversity represented should resemble the pluralism of society as closely as possible. The responsiveness of elected representatives is supposed to come primarily from the perspective of reelection. In the twenty-first century, this argument is weak, and opinion polls show that a large majority of citizens believe politicians do not care about people like them. By contrast, because they are composed of lay persons from diverse social backgrounds, randomly selected minipublics are logically more responsive to the feelings and preoccupations of their fellow citizens. In addition, because they benefit from public hearings with diverse experts and stakeholders and can learn from each other during deliberation, their responsiveness to expert and scientific advice as well as the claims of all stakeholders – and not only to those of the powerful and richest lobbies – is quite significant. With

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these arguments in mind, it seems peculiar to read over and over again that elections make representatives responsive and sortition does not. The issue of the accountability of citizens drawn by lot is also subject to many preconceived notions. In ancient Athens, citizens who became magistrates were legally held accountable for their actions, regardless of whether they were elected or randomly selected. This was one reason why some citizens did not volunteer to serve. In contemporary democracies, politicians become legally accountable once they take up executive positions and must answer to voters if they seek reelection, but it is very common for politicians to renege on their electoral promises. Contrary to what is idealized in liberal political theory, actual politics is so full of hidden strategic moves, backdoor lobbying, media manipulation, nepotism, and nonpublic negotiations that the accountability of elected representatives is partial at best. One could even say that they are more accountable to capitalist corporations and the markets than to their constituents (Streeck 2016; Crouch 2004). Conversely, to whom are minipublics accountable? Here again, contemporary experiments have gone far beyond most theoretical platitudes. First, observation shows that the members of minipublics feel accountable to the public authority that has convened them. They also do feel accountable to the public they are supposed to embody. They usually are required to defend their proposals in public. For example, the members of the British Columbia Citizens’ Assembly presented their conclusions in a series of public debates, while the members of the French Citizen Convention for Climate, committed to transparency, were publicly scrutinized during their sessions, and entered into open dialogue with politicians in front of the wider public, especially at the end of the Convention. Third, and most importantly, the deliberative dynamic encourages participants to keep each another under scrutiny; anyone who behaves “irresponsibly” soon loses credibility, whether they refuse to listen to others or defend a special interest. The mutual accountability which comes from the group’s solidarity is quite strong, as numerous studies have shown in other contexts; Jane Mansbridge (2019) has rightly underlined its crucial importance for contemporary minipublics. Fourth, if randomly selected bodies were to develop on a larger scale, special legislation would be required to establish some legal form of accountability. At the end of the day, one can claim that the members of minipublics are probably more accountable to the public and concerned with its welfare than elected politicians. The question remains, however, whether the situation would be radically different if permanent citizens’ assemblies were empowered and institutionalized. What is certain is that the actual functioning of electoral democracy is far from corresponding to the Enlightenment principles, which believed democracy would institutionalize the will of the people, or to liberal political theory, which claims that elections are the best way of securing authorization, responsiveness, and accountability by and for the people. The representation of future generations and nonhumans. Beyond the R. v. Kokopenace case, a fourth thesis is that minipublics are better suited than

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elections to represent both future generations and nonhumans. By definition, these entities do not vote. They can of course be indirectly taken into account in electoral politics via the feelings of both voters and politicians, but this is at best a potential by-product of the system. Electoral democracies have so far fared poorly when tasked with dealing with the urgent threat of climate change. Some of the most democratic countries, such as the Scandinavian nations, are probably at the vanguard of the ecological transition, but the United States, the most powerful liberal democracy, is likely one of the greatest dangers for the planet’s future, if one takes into account the per capita rate of greenhouse gas emissions. And if one compares the environmental policies of China and India, the latter fares much worse than the former (Lee and Greenstone 2021). Compared to these poor results, certain nonelectoral institutions may be more effective at protecting future generations and nonhuman entities. In the countries where the right to a healthy environment and the intrinsic value of the earth have been included in the constitution, the judiciary can play an important role. Nonelected institutions may explicitly be tasked with representing future generations and/or nonhumans. In some cases, legal personhood has been granted to natural entities such as rivers; an association or NGO can represent the latter, much as parents can act as trustees or surrogates for their children. A similar form of trustee representation could be given to citizens’ climate assemblies, with the experiments convened since the end of the 2010s being only a first step. Their specific form of representation could also be conceptualized differently. They could be seen as having a mandate, given by the present generations, to be a new embodiment of both present and future humanity, or of nature, encompassing both human and nonhuman aspects. In any case, citizens’ climate assemblies would be much less influenced by capitalist lobbies than elective assemblies, if only because their members would be vastly less likely to benefit from the revolving doors between public office and the private sector. They could carry the claims of various ecological movements: The third demand of Extinction Rebellion, namely the creation of climate assemblies, seems quite coherent from this perspective. Compared with other authorities, such as technocratic bodies in charge of protecting the environment, they would have less expertise but would have the added value of engaging in pluralist deliberation on the interests and values of future generations (Smith 2021; Hammond and Smith 2017; Bourg et al. 2011; Kahane 2016; Read 2012). Towards an Epistemic Democracy Pluralist deliberation also helps to mitigate the second, epistemic challenge faced by randomly selected bodies. Since Antiquity, one of the most common arguments made against sortition has been that it elevates incompetent individuals to positions of responsibility. This so-called irrational dimension stands in opposition to the necessary competence of professional politicians on the one

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hand,8 and of nonelected experts on the other. However, those who champion the reintroduction of sortition into politics have strong counterarguments for both points. In fact, the combination of randomly selected bodies and deliberation makes it possible for an “epistemic democracy” to develop. The wisdom of the many. Champions of sortition will argue that the wisdom of the many is superior to the wisdom of the few. Even though individual members of minipublics may not be as wise as professional experts, the exchange of their views and arguments will be more nuanced than the reasoning of any single person or group sharing the same life experience (Landemore 2020). If the arguments put forth in a meeting are reasonable and well-founded but all point in the same direction because potentially different voices are absent or have been marginalized, then the objectivity of each speaker taken in isolation does not prevent the debate from being narrow and ultimately biased. On the contrary, sortition promotes the inclusion of a diversity of experiences and viewpoints. Productive deliberation can thus occur: Characterized by equal respect and power of influence in a discursive exchange based on relevant considerations, it aims to clarify issues and achieve consensus, while remaining oriented towards the common good. In the process, citizens improve their knowledge and abilities, and learn to look beyond their own self-interests. Deliberative minipublics resurrect the Enlightenment ideal of a “court of reason,” capable of considering policies and public issues, but this court is no longer simply the exclusive purview of men of letters and the cultured bourgeoisie or aristocracy (Habermas 1989; Baker 1990; Lilti 2015). Belying conservative elitist theories as well as those expressed in the name of a revolutionary or scientific vanguard, which claim that ordinary people are incompetent, experience shows that, on the contrary, deliberative minipublics are not only democratic but also produce reasonable outcomes. The nature of their hearings, the high quality of the information made available, the alternating between plenary sessions and workshops, the use of discussion facilitators, a style of organization designed to avoid the dangers of manipulation, clear procedures to reach a synthetic conclusion – all of these elements are imbued with an exemplary deliberative dynamic. At the microlevel, they seem to approach the ideal speech situation proposed by Habermas (1996). Some psychologists have argued that, far from resulting in mutual persuasion, contradictory discussions reinforce existing polarizations and make it more difficult to reach compromise, let alone consensus in the strictest sense of the word (Sunstein 1999). Their argument has been contradicted by nearly all sociological studies of minipublics, where the polarization effect has been rarely observed. Most experts tend to underscore the positive aspect 8

Interestingly, Jane Mansbridge (1999, pp. 628–657) has offered a variant of this argument when defending forms of descriptive representation which combine elections (which allegedly produce a selection of the men and women deemed most competent) with quotas, in order for subaltern groups to be equally represented, while rejecting sortition.

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of the deliberative dynamics they observe (Bobbio and Giannetti 2007). Deliberativists generally maintain that informed discussion enables citizens to forge an enlightened opinion and to convince one another through discussion. A number of quantitative studies generally confirm that opinions do change over the course of deliberation. However, the long-term effect of deliberation on individual participants is still unclear, especially when the experiments only last for one or two weekends (Talpin 2011). It seems that in general, those citizens who had been previously active in their communities were bolstered in their civic involvement (Funes, Talpin and Rull 2014) and thus encouraged to further contribute to the development of a broader epistemic democracy. Citizen knowledge and the democratization of expertise. The second crucial dimension underpinning the concept of epistemic democracy is the capacity of lay citizens to develop specific kinds of knowledge. This idea has been defended by Josiah Ober when explaining the “Greek miracle,” and especially the blossoming of Athens over several centuries. Ober insists on the fact that deliberation in the Attic city was productive precisely because it could rely upon social networks that existed in everyday life, where people from different places and backgrounds could get to know and learn from each other; and because they could rely on experts without having to delegate decisions to the latter. Athenian democracy improved over time because “more citizens became more sophisticated while preserving diversity of perspectives; growth in sophistication did not entail homogenization of perspectives. As a result, learning and innovation were simultaneously supported, and Athens thrived, over time, in its competitive environment” (Ober 2021, pp. 453–489; 2015). The argument can be applied to the twenty-first century: The growing importance of education and the dissemination of information through mass media and social networks have dramatically increased the knowledge available to the average person. In a citizens’ assembly of 100 or more participants, this means that a certain amount of expert knowledge can be mobilized. It is true that it is lower compared to a similar group of scientists and other experts. Yet several other kinds of knowledge could allow lay people to develop a specific rationality vis-à-vis political experts and professionals (Sintomer 2008). The first is the user knowledge to which John Dewey (1954, p. 207) referred when he wrote: the man who wears the shoe knows best that it pinches and where it pinches, even if the expert shoemaker is the best judge of how the trouble is to be remedied … A class of experts is inevitably so removed from common interests as to become a class with private interests and private knowledge, which in social matters is not ­knowledge at all.

Since trial juries began to develop alongside the late eighteenth-century r­ evolutions, the concept of judgment by one’s peers has quite explicitly included the idea that a fair trial means being judged by people who are familiar with the conditions and problems being discussed. Such practical knowledge is one

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dimension of the politics of presence. However, whereas the majority of democratic innovations such as participatory budgeting wager on the integration of user knowledge into public management, contemporary mechanisms based on selection by lot do not necessarily select people with first-hand experience of the problems being discussed. Randomly selected minipublics thus do not automatically draw on issue-specific user knowledge. It is mainly in local citizens’ juries that such knowledge can play a role, for example when the issue at stake is the organization of traffic patterns in a city. Practical knowledge can also be important when discussing specific hot-button issues such as abortion or same-sex marriage: In a national citizens’ assembly, many participants will have a personal take on the issue, either directly or indirectly through the experience of relatives or friends, and will present it to the other participants. Most of the time, however, the “knowledge” utilized in randomly selected minipublics is different: it is simply common sense. As we saw in Chapter 3, common sense is what trial juries have relied on throughout their history. Without this “sound practical judgment that is independent of specialized knowledge, training, or the like,”9 the very notion of democracy – the idea that everyone has the right to help shape common affairs, if only through the election of representatives – would be devoid of meaning. In fact, even elected political representatives must recognize that their knowledge can never be as specialized as that of the experts working for them. Democratizing expertise does not mean the input of professionals is useless when attempting to make reasonable political decisions. In fact, modern societies all combine elements of meritocracy and democracy: An anarchist utopia devoid of knowledge asymmetries is not a realistic goal. Nevertheless, in many contexts and related to many issues, expert knowledge should be combined with the knowledge of lay citizens in order to reach a more nuanced understanding and to promote meaningful policies. As we have seen, this is because the wisdom of the many is superior to the wisdom of the few, and because professional knowledge has been broadly disseminated throughout society. In addition, given that expertise is always plural and contradictory, trade-offs must be made between different solutions. At the end of the day, the most important decisions must be political, not technical or scientific. It is therefore crucial that during expert and stakeholder hearings, the different alternatives are clearly outlined and contradictory presentations on the issues at stake are organized (Manin 2005). Randomly selected minipublics rely heavily on expert knowledge when it comes to procedural matters. As we have emphasized several times already, debates must be carefully organized and informed if deliberation is to be of high quality. Does this not threaten to give excessive power to the professionals who specialize in moderating the debates, given that they influence many crucial choices concerning the deliberation format? How should minipublics 9

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be randomly selected? Is consensus the best objective? Should votes be organized and if so, when? How can synthesis be achieved? How should minority views be included? When tensions arise which are not only personal but imply profound political or ethical disagreement, what role should moderators play? Answering these questions presupposes some practical knowledge regarding how minipublics are moderated (some consultants and facilitators are more experienced than others, and the consequences of this are easily observable in qualitative research), but also regarding the upstream political choices that imply specific perspectives on what democracy and good deliberation should look like. As previously noticed, procedures embody values and imaginaries, which must be discussed politically. Most of the time, the authorities who decide to establish a minipublic are not clear on the procedural choices that have to be made. Although the larger public sphere often discusses the topics chosen and the results of deliberation with the authorities that organized the minipublic, it is usually in the dark when it comes to procedural dimensions. Even in second-wave sortition experiments, only in rare cases have the participants of randomly selected bodies discussed the format of deliberation. Progress towards an epistemic democracy should therefore include systematic discussions on formats and modalities. One example will suffice. Should deliberations be held in public or should they remain behind closed doors, at least most of the time? Although deliberative polls are usually open, this is not the case with most citizens’ juries and consensus conferences, while citizens’ assemblies vary on this issue. Trial juries, for their part, hear the evidence in public, then withdraw to deliberate. This raises a classical problem of political theory and constitutional law. Some justify secrecy on the grounds that public deliberation would lead participants to harden their positions, employ rhetorical devices, and be less objective (Elster 1991); others defend it on the grounds that it is necessary to protect juries from the influence of lobbies. From a Habermasian perspective, by contrast, openness to the public is an asset, since it drives speakers to focus on the general interest – or at least to present their arguments as being compatible with the latter. It thus becomes more difficult to engage in any kind of horse-trading behind closed doors. The lack of publicity is also an obstacle that prevents deliberative mechanisms from impacting wider sections of the public. No systematic empirical analysis has yet made a breakthrough on this issue, and the organizers of minipublics have defended a number of contrasting strategies. Research shows that the institutional, social, and political context plays a significant role; it is therefore difficult to give a singular and clear-cut answer. As a result, explicit debate on the issue must take place, and explicit political choices must be made. Minipublics also rely on expert knowledge when it comes to substantial matters. The new mechanisms based on selection by lot are heterogeneous in that regard. In a majority of cases, participants must deliberate and choose among alternatives that have been previously developed by experts and

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stakeholders, for example whether to allow or prohibit abortion or same-sex marriage. More complex issues, such as the policies necessary for a country to fulfill its commitments to reduce CO2 emissions and be acceptable to a majority of citizens, afford citizens’ assemblies and other minipublics wider latitude and greater creativity. Nevertheless, although they may combine different mechanisms in a complex structure, as was the case for the French Citizens Convention for Climate, most or all of the individual measures are initially researched by experts. In other experiments, the minipublics adopt whatever the basic expert consensus on an issue is. Research has only begun to tackle this question, trying to analyze the real creativity of minipublics and therefore the degree of democratization that they can embody (Tilikete 2020). Citizens and political knowledge. One last dimension is worth analyzing: The knowledge that citizens who are not professional politicians can develop about the functioning of the political system and of society more broadly (Sintomer 2008). Often, when a minipublic is constituted, randomly selected citizens who are activists are excluded after they have been drawn by lot and replaced by “normal” citizens. This choice is justified pragmatically: Minipublics are supposed to give a voice to citizens who do not usually express themselves, whereas activists could easily monopolize deliberation. But there is also another, more substantive reason to justify replacing activists: Citizens participating in minipublics should only use their common sense and their practical user knowledge, without politicizing the deliberation. From this perspective, it is better not to include persons with significant political know-how. In the judicial sphere, this idea has become widely accepted in American juries, leading to the absurd extreme that, in the United States, jurors will often be rejected if they have heard anyone speaking about the case in the media prior to joining the jury. This setup does not leave much room for peer judgment, the concept at the roots of the trial jury: The argument that peers tend to best know the persons and context at stake. As a result, impartiality becomes synonymous with initial ignorance, where the jurors are no more than a “blank slate” to be written upon during the proceedings (Abramson 2003). This caricature of the “veil of ignorance” that Rawls described as the correct mental attitude for an impartial discussion of the principles of justice may in fact be found, albeit in a milder form, in many citizens’ juries (Dienel 1997, 2009). The dynamics of public discussion are not thought to be sufficient to provoke reflective distance from the speakers’ own interests and political values. The more deliberative devices are insulated from the real world and ­distance ­themselves from organized civil society, the better they are supposed to ensure the general interest. The citizens who take the greatest and most active interest in public life will be rejected during the process of citizen jury selection, with the result that any significant political knowledge will be excluded from the minipublic. In current practices, it seems that the most politically savvy c­ itizens – those who on average have developed a better understanding of politics, and especially of existing injustices – do not have a place

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in contemporary minipublics (Vandamme 2021, pp. 107–112). Moreover, the enlightened public opinion that takes shape in citizens’ juries may run counter to the public opinion mobilized by social movements. This dimension is at odds with the characteristics of Athenian epistemic democracy, which relied on a dense embedded network of political citizens (Ober 2008; Ismard 2010). Going beyond Athens, however, a more inclusive view of those who can be drawn by lot must be developed. In that vein, mixed bodies that make it possible for lay citizens to closely cooperate with politicians and organized civil society are valuable experiments. They will help to increase the factual legitimacy of minipublics but also, more substantially, to test how practical user knowledge, common sense, and political know-how can cross-fertilize each other. As we have seen, a growing number of experiments are combining minipublics and instruments of direct democracy. They rely on a paradigm that differs significantly from perspectives that oppose the latter to deliberative democracy, and they understand that randomly selected bodies may serve as an echo chamber for counter-expertise and mobilized public opinion. It is crucial to realize that epistemic democracy cannot rely only on the common sense and practical knowledge of the many. It must also reserve space for the political knowledge of activists and the counter-expertise of NGOs, which are necessary to balance out the expertise proposed by the dominant interest groups in society, and especially by capitalist corporations. Beyond Consensus These arguments against sortition, which overlap with the issue of the politicization of citizens’ assemblies as discussed in Chapter 4, appear again when debating the nature of consensus. It is in so far as they appeal to common sense and practical knowledge that trial juries are required to reach decisions unanimously or, in some countries, with a strong qualified majority. The same requirement has quite often been applied to citizens’ juries and consensus conferences. In those cases, the aim is to avoid splitting the group into a majority and a minority by means of voting, instead aiming to get all the participants to listen to each another and reach a common understanding. The idea that consensus is the necessary horizon of deliberation was theorized by Jürgen Habermas. In Between Facts and Norms (1996), Habermas argues that consensus must be understood in its narrowest sense, as a shared agreement reached on a given issue for the same reasons. This goes far beyond the Rawlsian definition of “overlapping consensus,” where an agreement on common principles is reached according to reasons that may vary from one person to another (Habermas 1995; Rawls 1995). Both perspectives have been criticized, since most champions of democratic deliberation prefer the idea of “deliberative dissensus,” in which all parties to the discussion clarify their own arguments and listen to those of others – which is not the same as sharing them. Philippe Urfalino has added that in the real world, when consensus is reached, it

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is most often apparent, and is in fact merely a “nonopposition,” where those in the minority decline to use their veto power (Urfalino 2014). Of course, some of the topics addressed by juries are specific enough to result in broad agreement. It is easier to reach consensus about the guilt or innocence of a white policeman charged with assault in an underprivileged neighborhood, than it is to reach a consensus about the general way in which the police are organized or the measures that might improve Welfare in working-class areas. So too it is easier to agree on a new traffic pattern in a medium-sized town than on the role of cars in society as a whole. It is undeniable that apparent consensus can give more weight to a decision, as well as a strong connotation of impartiality; the goal of consensus has several major perils, however. Randomly selected bodies should not be placed in the same category as the civil society “affinity groups” that operate by consensus, for they involve stating an opinion or making a binding decision in the name of society as a whole (Urfalino 2021). Likewise, they are very different from hybrid organisms which are reduced to nonopposition by the heterogeneous nature of their stakeholders, as with the issue of Internet governance, for instance (Cardon 2010; Aguiton and Cardon 2007). When they aim for unanimity, randomly selected bodies face two risks. First, the outcome of such deliberation will often be disappointing: It will be too reasonable, representing the lowest common denominator, and often just summarizing the loose consensus that already exists among experts. Second, consensus will be achieved at the expense of providing greater choice between crucial social and political alternatives. It could even conceal the fact that one alternative was implicitly preferred over another. In this respect, it is useful to compare the French Conseil Constitutionnel or the Italian Corte Costituzionale with the United States Supreme Court, the European Court of Human Rights, or the German Constitutional Court. Whereas the first two hand down rulings that have the appearance of unanimity, the other three allow judges to publish minority opinions and dissenting legal motivations. This detail is decisive in elevating constitutional jurisprudence above legal expertise. A ruling by a constitutional court is not the pronouncement of an inalienable truth: It is just one element, though obviously a crucial and very specific one, in a political and philosophical debate among justices, other judges, political representatives, experts, and lay citizens about the fundamental rights and principles of the existing social order. From this perspective, minipublics that operate along similar lines to the US Supreme Court are more dynamic, since they are instruments of reasonable debate on the alternatives being offered. Their aim is to expand the lowest common denominator as much as possible by dismissing bad arguments or fake news, by improving the level of understanding, and by nuancing arguments. They also work to elucidate from what point different possible solutions are possible, to clarify these potential choices, and to understand if a simple, qualified, or even overwhelming majority can be reached on a proposition (or on a combination of various initial proposals) – or whether the minipublic remains in a deadlock, as hung popular juries sometimes do.

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Another danger of the consensus imperative is that it gives credence to ­certain radical arguments, according to which deliberative minipublics will inevitably be part and parcel of the institutional machinery and are thus incapable of effecting real political and social transformations. Of course, there is always the danger that any institutionalized participatory or deliberative democracy will fail to live up to all of the expectations pinned on it, and in the process reduce citizens to well-informed consumers – this was in fact the approach championed by Tony Blair in the United Kingdom at the beginning of the twenty-first century. To be sure, it is better that civil servants not lose interest in the people they serve, and that a culture of evaluation should spread across the public sector as a whole. In appealing to users’ input or control rather than relying only on internal hierarchical assessments and transforming citizens into market customers, however, participatory modernization may offer a different path from New Public Management and its embrace of neoliberalism (Sintomer, Herzberg and Röcke 2016). If they were to only contribute to the modernization of public management and the implementation of public policies, however, minipublics would be in danger of diverting attention from the most important issues. This is the direction supported by certain politicians who back sortition. In classical justifications of representative democracy, it is because only elected leaders can legitimately define the common good that they enjoy a monopoly over political decision-making. In many deliberative experiences, the contours of this monopoly are blurred, but minipublics have a small scope. They only take part in the decision-making process on secondary issues in a purely consultative fashion, acting like streamlined focus groups discussing the merits of the most high-profile choices. This division of labor resembles the one conceptualized by Hegel in the first third of the nineteenth century regarding juries; according to Hegel, lay citizens should be able to decide on particular issues but “universal” matters would be reserved for state decision-making. This boundary between politics and civil society remains disputed, however, and as the French Citizens’ Convention for Climate has shown, participants often demand greater power once the process is underway, challenging the monopolization of politics by elected leaders and party politics more broadly. This is also the case when minipublics are organized from below and claim a form of legitimacy that competes with the institutional political system. A number of experiments rely on procedures that involve voting at some point, in order to achieve clear majorities and minorities on the issues at stake. In the future, therefore, minipublics should be included as part of a broader systemic reform of democratic systems.

Democratizing Democracy: A Systemic Perspective Moving from the (relatively) noncontroversial subject of minipublics to mass politics and the political system implies a more comprehensive analysis. The “systemic turn” of deliberative democratic theory has precisely tried to

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develop a broader understanding of the role of deliberation in various institutions, instead of focussing primarily on minipublics. However, as we have previously noticed, it has relied upon a naïve vision of society. A realistic systemic approach cannot reduce democracy to deliberation, even when we move away from the strict Habermasian equation of deliberation with argumentation (for partly different perspectives, see Pilet, Bedock, and Vandamme 2021; Berger et al. 2020). Moreover, contrary to Rawlsian perspectives, supreme courts are not the best model to envision what democracy is or should be. Historians such as Josiah Ober who stress the importance of epistemic democracy also underline that in Athens, citizens cooperated but also competed, often struggling for power and defending or fighting against factual and legal hierarchies. We saw in Chapter 1 that our current political regimes are mixed systems, part democracy and part oligarchy, just like all the “democracies” that have existed throughout history. However, the present state of liberal democracies is rather grim. The relations of domination are structural; the capitalist mode of development has radically destabilized the planet and the electoral system is not designed to deal with challenges of this scope. Politics is often reduced to petty power struggles and the political class is now largely discredited in the eyes of citizens. The nation-state, which provided the framework for the development of democracy, has been weakened by globalization; the crucial influence of transnational corporations, financial markets, and technocratic organizations is producing postdemocratic and authoritarian backlash. Normative arguments exchanged in a gentle conversation will not be sufficient to convince the elites to convert to democracy and social or ecological justice. The changes that have to take place are huge, and even revolutionary, although the revolutions to come will not resemble the armed insurrections of the past, but look more like the “network revolutions” of women’s liberation and the #MeToo movement. Four Roles: Opining, Monitoring, Judging, Legislating Looking the present crisis of representation, including our historical and sociological detour on the political uses of sortition and our more theoretical reflections on why it may have reappeared over the last few decades, it seems that the present exponential development of randomly selected bodies is more than just a passing fad. It speaks to something more fundamental. Although it still only enjoys minority support, it deserves to be further developed. How can we envision the role of randomly selected bodies, at least in the liberal democracies of the Global North? We can only outline a tentative model, as new experiments will no doubt greatly expand the practice’s scope and produce further matter for theoretical reflection. There is not and will never be one perfect model that should be used in all contexts: Democratic innovations are always hybridized and highly influenced by context and path dependencies. Therefore, we will propose more of a horizon than a rigid standard to be followed in all cases.

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At least four potential options seem worth discussing, which correspond to the four different functions that sortition devices have performed throughout history. These are: opining and proposing; monitoring and assessing; judging; and legislating. When systematically analyzing these four different avenues, three parameters should be taken into account: the varying importance of impartiality depending on the issues at stake; whether these issues concern specific problems or more general topics; and whether they deal with the short or long term. In all these cases, it is vital to institutionalize the practice of randomly selected minipublics, and to make their existence legally binding, so that they do not depend merely on the whims of those in power. Only then will they be able to operate in an autonomous fashion, benefit from a true power balance, and bring about transformations that are not solely profiting existing vested interests. Opining and proposing. The first wave of minipublics essentially sought the elaboration of enlightened opinions capable of giving consultative advice to elected authorities and the wider public. The emergence of a public opinion that is different from the one represented by traditional polls is indeed an important issue, but it needs to be given greater scope and linked more closely to the decision-making process, so that it does not remain “just talk” (to use a pejorative expression common among citizens involved in participatory processes). The objective should be to increase the number of citizens’ juries and deliberative polls by strengthening the legal requirement for a public debate to take place before major decisions are taken. In addition, the relevant authorities should be required to give a precise account of how the recommendations of these consultative bodies are incorporated into their public policies, or, where appropriate, to outline the reasons why some of them are rejected. Each minipublic should reconvene afterwards to evaluate how its proposals were taken into account and whether the outcome seems satisfactory. This is a crucial point if consultation is to go beyond a mere “image politics” devoid of practical effect. In the regions and countries that recognize citizens’ initiatives, citizens’ juries are required to discuss proposals and provide evaluations that are sent to all citizens before a vote occurs, one example being the Oregon Citizens’ Initiative Review. Randomly selected citizens’ panels can also work closely with elected representatives and organized civil society, as is the case with the EU’s Conference on the Future of Europe (2020–2021) or the citizens’ panels of the French Economic, Social, and Environmental Council. To ensure that experiences are compared, good practices are shared, and previous errors are avoided, national and transnational foundations and/or independent public authorities for participatory and deliberative democracy should be established to supervise and assist with decentralized experiments. They should also have the task of regularly organizing randomly selected minipublics or citizens assemblies, along the lines of the Danish Board of Technology. Monitoring and assessing. If minipublics remain at the consultative level, they will not be able to fully address the legitimacy crisis of the political system

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and help ensure its democratization. Minipublics must be empowered. Some should be given the role of monitoring and assessing. As history has amply demonstrated, sortition can be particularly legitimate in this regard, as it can be used to foster impartiality. Monitoring centers should become compulsory in every branch of public service, to verify the extent to which the latter addresses the public’s demands and grievances. These centers should have the right to access documents, and the power both to assess the services on offer and to question public officials. The departments being assessed should be required to respond to these assessments. In comparison with existing satisfaction surveys, these monitoring centers would have the great advantage of permitting deliberation rather than simply recording individual opinions. They would consist partly of delegates from user associations and partly of users selected by lot. They would represent a major step in the process of administrative modernization, as well as a tool that could encourage that process to continue. In parallel, and in the footsteps of the experiments conducted in the PoitouCharentes region between 2004 and 2014 (Flamand 2011), decentralized citizens’ juries should become compulsory for public assessment of how well elected politicians respect their electoral promises. These juries, each one focused on a realm of public action, should meet twice during a period of office. The first meeting, held shortly after the election, would evaluate policy priorities. The second meeting, held midway or in the year before the end of the term of office (late enough to draw proper conclusions, but not so late that they become caught up in the election campaign) would examine the elected official’s record on their stated goals. Hearings would be organized with the politicians in power, opposition parties, relevant NGOs, and experts on the issues at stake. The juries would be expected to submit a public citizen report at the end of the process. Here again, the aim would be less to achieve consensus than to form reasonable judgments; where appropriate, minority points of view would also be published. Judging. The virtues of impartiality associated with randomly selected bodies should also encourage the rehabilitation of this method in cases where the importance of neutrality and fairness is crucial. This should be the case within the judicial sphere in countries that do not use trial juries or have abandoned their use. For example, at the end of the 2000s, Japan reintroduced trial juries with a view to “humanizing” its judiciary by means of impartial peer judgment. It is also high time to resurrect the idea first put forward by Pierre Leroux in 1848: The creation of a People’s Court with the power to judge political cases, violations of press laws, offences against national security, and instances of corruption among elected politicians. Various scandals have done much to undermine the credibility of politics, fueling the idea that “they’re all a rotten bunch.” Many politicians behave as if they are above the law. Why not try to strengthen politics by having them tried by lay citizens when that is unfortunately necessary? Benjamin Constant already observed, in the 1820s, the risks inherent to political trials, and since the politicization of the judiciary is a real

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problem, selection by lot would be the best guarantee of impartiality in such matters. No one whosoever, not even heads of state, should be above the law. Yet, in a number of countries, there is an understandable reluctance to see a president or prime minister impeached by a court made up of parliamentary deputies, since these might be acting out of partisan motives – as indeed supreme courts may, a reality illustrated in the last decades by cases in Spain, the United States, and Brazil. Similarly, although parliamentary immunity today threatens to be an obstacle to the normal course of justice and makes citizens feel that members of parliament can get away with anything, it has traditionally provided necessary protection for the legislature against pressure from the other two branches of government. To grant a People’s Court assisted by professional judges the jurisdiction to try the president, ministers, higher civil servants, or members of parliament would be the best possible guarantee of neutrality, and at the same time it could reaffirm a basic principle of the rule of law. Citizens’ panels should also be integrated into the functioning of regulatory and supervising agencies, at both the national and European level. To give only one example, the stakeholders committee of the European Chemicals Agency (ECHA), which grants marketing authorizations to chemical products, is currently dominated by industry groups. The weight of ecological NGOs, trade unions, and consumers associations should be strongly enhanced, and a panel of randomly selected citizens should take part in the stakeholders committee. In our “risk society,” the democratization of technological choices should be the order of the day, and lay people should become involved in such bodies. Another avenue worth exploring would operate at the community level. The Berlin experiment with neighborhood citizens’ juries in the 2000s could be generalized. These juries were capable of rapid and nonbureaucratic decision making on the basis of citizens’ knowledge. This would mark a major step forward in community empowerment. The Berlin model, where the jury is partly drawn from the most active people in the community and partly selected by lot, is certainly one to be followed. The creation of such bodies would not automatically require a dramatic change in the constitution. If local governments undertook to follow the juries’ decisions within the limits of their statutory competence and existing legal constraints, this would be enough to give the juries an effective decision-making role. However, in the mid to long term, some degree of formal institutionalization would become necessary. Various initiatives might encourage this shift: National or regional state institutions might systematically propose awarding an extra sum of one million euros per citizens’ jury for the projects they fund. The Berlin experiment, and the law on participation passed in Tuscany in 2006–2007 following an extensive process including electronic town meetings and a randomly selected college of citizens were two preliminary steps in this direction. In this vein, selection by lot should be encouraged as a means of transcending the local and solving problems of scale in participatory budgeting.

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Legislating. Finally, our democratic system needs countervailing powers that give lay citizens greater weight compared to political representatives and the state apparatus, which have a natural tendency to become autonomous from the people on which they depend in theory (Balibar 1998). Randomly selected minipublics are another way to embody the people. They should not operate solely within the strict limits imposed by Hegel on the exercise of power by laypersons. One ambitious option, requiring deep institutional changes and a shift in the balance of polity, would involve creating an entire parliamentary chamber that is composed of individuals selected by lot. Under various guises, proposals in this direction were initiated in the 1970s (Mueller, Tollison, and Willet 1972, pp. 57–68) and have proliferated since the 2000s, at both the national (Sutherland 2004; Bourg et al. 2011) and EU level (Schmitter and Trechsel 2004; Buchstein 2009). In many countries, beginning with the United Kingdom, the upper house is an undesirable relic of the times when legislative activity had to be shared between the common people and the aristocracy. Assemblies of this type no longer have any compelling reason to exist. They do, it is true, apply “checks and balances” to the lower house, but they do so for archaic reasons. They could be replaced by a randomly selected assembly. In federal countries, where the distribution of powers is already more balanced, a third assembly should be created. From Minipublics to Legislature by Lot The invention of the welfare state during the nineteenth and twentieth centuries was due to the efforts of many competing actors: the revolutionary labor movement and statesmen such as German Chancellor Otto von Bismarck, churches who wanted greater solidarity, and businessmen who wanted to sell their products to their workers. The return of sortition to politics could follow a similar path. Grassroots NGOs, social movements, and bloggers have all begun to reclaim sortition as a viable political selection procedure. They have discovered scholars working on democratic theory, entrepreneurs and scientists disgusted with corruption and short-term political games, and politicians in search of a new way of doing business. The Ancients thought that a mixed government could combine the virtues of democracy, aristocracy, and monarchy. A legislative body composed of randomly selected citizens could become part of a new kind of mixed government that would combine democratic deliberation with direct, participatory, and representative democracy.10 When linked to social, economic, and ecological changes, this new combination could be understood as part of a radical democratic turn, the systemic democratization of democracy. Focusing on a sortition chamber and drawing on lessons from both waves of sortition experiments, we will conclude by highlighting some of the key features that this kind of body should have.

10

For different perspectives on this issue, see Abizadeh (2019) and Landa and Pevnick (2021).

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Legislature by lot empowers a fair cross-section of the people, not the whole citizenry. Its institutional design should take this crucial feature into account. In addition, experience shows that randomly selected minipublics do not work so well when they deal with general topics without having the time to really deepen their understanding of the issue. Perhaps the solution is to be found in the model proposed by the German-speaking Community of Belgium or the city of Paris: That is, a permanent citizen assembly whose main task is to decide when to organize citizens’ panels on specific topics? Or would it be preferable, instead, to follow the precedent of the ancient Athenian tribunal and to draw at random an assembly of around 6,000 people, and split it into smaller juries each time it meets to discuss a specific issue? Or, would it be better yet to have a permanent citizen assembly that operates as a unified minipublic and deals with all issues (or at least with all those which fall under its responsibility) (Owen and Smith 2019; Gastil and Wright 2019a)? The first two options seem preferable as of now, but whatever the solution, an assembly of this kind should function both in plenary sessions and committees. Its members would be paid at the level of today’s deputies and senators (at least during the period when they meet in case of the last two alternatives mentioned). They would receive a year’s training in their chosen field, and would have access to assistants, information, and documentation comparable to that which is available to the existing chambers. What would be the purview and powers of a randomly selected assembly? By definition, legislating means tackling general issues that relate to the common good, rather than handing down a specific judgment on a particular issue. Transgressing the Hegelian border should be carefully justified, according to two different and somehow competing criteria. (1) Impartiality. History shows that selection by lot has a clear advantage over other forms of selection, including elections, when it is imperative to ensure impartiality. In modern democracies, elected officials, experts, and lobbies have a strong tendency to defend their special interests. By contrast, legislature by lot would allow for the recruitment of nonpartisan individuals without career interests to defend. In addition, the deliberative procedural rules will encourage decision making that generally represents the public interest. (2) Another form of political representation. We have seen that minipublics constitute another form of political representation, one that is especially valuable when discussing long-term issues, as future generations and nonhumans cannot vote. Both representative and direct democratic have important limits in this regard, and legislature by lot could present a valuable alternative. However, as the decisions to be taken may have profound economic, social, cultural, and even metaphysical implications, a citizens’ legislature could not claim to be neutral and should recognize its own political dimension. Despite its various shortcomings, the French Citizens’ Convention for Climate has shown the potential of such an institution. This is why a randomly selected chamber should have four main responsibilities. The first would be to convene randomly selected minipublics on

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specific topics. The second would be to define political rules. As was learned in British Columbia, such an assembly must have electoral law in its remit to avoid giving the majority party the power to change the electoral rules in its favor. Third, a randomly selected chamber should discuss highly controversial issues when clear options have been previously defined and a simple decision must be taken, such as was the case for same-sex marriage or abortion in Ireland. Finally, such a chamber should legislate into the future, especially with regard to ecological issues. As was the case in Iceland, this chamber should also be involved with constitutional reform, as upper chambers generally are today. Impartiality would play a crucial role with regard to the second responsibility, while another kind of political representation would be implied by the fourth responsibility; the other two responsibilities would fall somewhere in between. With regard to these different responsibilities, what would be the power of the sortition chamber? Minipublics convened on specific issues could have various levels of power. When discussing political rules, the chamber’s decisions should be binding. On highly controversial issues, the chamber’s proposals could be submitted to a referendum in order to increase their legitimacy: To this end, the combination of a citizens’ assembly and direct democracy seems promising. Finally, the randomly selected chamber would of its own initiative address issues concerning the protection of the environment and other longterm issues. It would have suspensive veto power on laws or regulations being discussed (Bourg et al. 2011), and could also put forward its own legislative proposals. In cases of persistent disagreement with the government or national assembly, the matter could be settled by referendum. Democracy 3.0 What is known today in Europe or North America as participatory democracy, deliberative democracy, or participatory governance generally increases communication between those who govern and those who are governed, at least when the democratic devices used are genuine, and not just a form of lip service devoid of any real impact on public policies. On the one hand, participatory and deliberative devices do represent some progress. On the other hand, they do not challenge the traditional division of labor according to which citizens discuss their interests while elected politicians – theoretically aligned with the common good – make decisions by cherry-picking from what their voters propose. They are not well designed to represent the demands of subaltern groups, and can even serve to delegitimize social movements and organized civil society more broadly. This situation needs to be flipped on its head: Local and specific issues must become a springboard for general matters, rather than a pitfall to participation. Some real significance might then be given to randomly selected bodies and other participatory and deliberative mechanisms in the decision-making process. There must be radical changes to the existing political apparatus, on a scale comparable to that witnessed in the technological realm thanks to the

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development of the Internet and social networks. The liberty of the Ancients and the liberty of the Moderns are often presented as two successive historical models of democracy. If this is the case, we need a democracy 3.0 for the ­twenty-first century, a new form of democracy that would follow the democracy of Ancients and the democracy of the nineteenth and twentieth centuries. This will be no easy feat, since it clashes with the powerful interests and inertia that perpetuate injustices and structures of dominance. Democracy 3.0 would entail a profound shift in the balance of power. Politicians will obviously not be easily persuaded to vote for laws that they fear could whittle their powers down. As a sarcastic Canadian saying puts it, what turkey would suggest making Christmas dinner happen sooner? However, some politicians may learn that they can position themselves profitably amidst reforms, and, more significantly, that politics is not a zero-sum game: Everyone stands to gain from the increased legitimacy of the political system. For their part, most citizens will only invest their energy in institutional politics if they believe that the latter can transform their lives. Citizens’ assemblies and other bodies selected by lot can claim significant legitimacy on several grounds. They contribute to the formation of enlightened opinion, benefit from presumed impartiality, represent the whole range of citizens better than methods based on election or voluntary involvement, foster epistemic democracy, and constitute a form of political representation that is well suited to dealing with long-term issues that will affect future generations and nonhumans alike. While the potential of citizens’ assemblies and other randomly selected bodies has been unevenly realized so far, they are full of promise. However, it should be noted that because selection by lot does not entail the government of all by all, but only the establishment of a fair cross-section of citizens, it cannot contribute to active citizenship and civic culture in the way that it did in ancient Athens or the Florentine Republic. In addition, even in Athens, the “peaceful citizens” discussed by Pericles did not participate all the time. One of the main reasons for developing a form of sortition-based representation stems from this reality. An inherent tension potentially pits deliberation against participation. If one tries to achieve the highest possible quality of deliberation, as seen in the randomly composed bodies analyzed earlier, does this not entail limiting the number of participants, leading to “impartial” discussions that are unlikely to mobilize people politically? Conversely, if one aims to get the maximum number of citizens to participate, does this not require distancing oneself from overly institutional mechanisms and relying on emotional registers that are not conducive to high-quality discussion? To some extent, of course, a familiar line of thinking may be applied to the concept of minipublics. Many authors argue that the most democratic system is one in which popular sovereignty is exercised directly, but such a system is impracticable in large modern communities; by default, representative democracy is the second-best solution. By analogy, as it is not possible to demand true permanent self-government by the people, it could be argued that selection by lot is the most faithful approximation, especially since it takes seriously the

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radical premise of equality at the heart of democracy. Yet the path towards systemic change cannot only be a city in miniature. To have a real impact on decision making, institutional participation must be combined with civic mobilization. Tools that rely on sortition embody a strongly democratic logic but are not sufficient in and of themselves. They must play a role within a larger “pluralization of democracy” to which the emergence of constitutional courts, for example, contributed in their time (Rosanvallon 2011). Unless citizens’ assemblies and other minipublics derive at least some of their energy from social movements, they run the risk of becoming just another piece of institutional machinery. Citizenship is an activity before it is a status: It is a right only insofar as it is exercised. As the Occupy Movement, #MeToo, Black Lives Matter, and the various climate marches have demonstrated, collective action is a necessary dimension of democracy. Citizens’ assemblies and other minipublics can also promote the needs and values of subaltern groups, which do not usually have access to the same coercive measures as dominant groups. For the same reason, however, subaltern groups also need social movements, and the dynamics of these cannot be reduced to deliberative reason; they must necessarily also involve strong passions and feelings about identity. On the other hand, to rely only on such passions and to uncritically praise the insurrection of the “multitudes” would be to turn a blind eye to the mistakes of the past. Without the proper checks and balances, relations of power and domination swiftly reproduce themselves within even the most grassroots of movements. The challenge, therefore, is determining how to organize productive interactions between social movements on the one hand, and randomly selected bodies and other participatory and deliberative devices on the other. Something is afoot in Europe and the world more generally, something that is part of a wider transformation of politics and society. What does the future hold: postdemocracy, authoritarianism, or radical democracy? The present is marked by contradictory tendencies, and the future has not yet been written in stone. This volume argues that sortition is an invaluable asset for the future. The present resurgence of sortition in politics is part and parcel of a contemporary reinvention of democracy and marks an evolution in the meaning of representation, which has expanded beyond the logic of distinction predominant during the eighteenth century. New kinds of representatives are emerging who are neither elected officials nor professional politicians. Although the intrinsic logic animating contemporary bodies organized by sortition is different from the Athenian model, these bodies could gain new pertinence. Several researchers and practitioners have investigated how their quasi-ideal deliberative norms could be combined with more inclusive and heterogeneous discourse within the wider public sphere, which has led to wide-scale experimentation. It would be naïve to think that politics will just continue as usual, with minor changes compared to the previous century. In recent years, liberal representative democracy has demonstrated its patent inability to deal with the challenges engendered by all-powerful financial capitalism, the vertiginous growth

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of inequalities, the destabilization of the biosphere, and the new postcolonial world order. Given the massive disrepute into which institutional politics has fallen, preserving the status quo is neither realistic nor sufficient. A “real utopia” is needed, and randomly selected assemblies and other minipublics must be part of this new landscape (Gastil and Wright 2019a). While continuing to analyze ongoing experiments, the study of the political use of sortition should be expanded to include non-Western regions and comparative analyses. Over the years, sortition has frequently been used to give institutional form to the idea of collective liberty.11 At several points in history, it has disappeared – or seemed to disappear. If sortition has then seemed to experience a renaissance in different places and under different guises, this may well be because it survived below the surface, much the way microbe residue survives in glaciers – in archives that no one consulted, in books that were covered with dust, and on the fringes of political life. Widening our perspective through the lens of historical anthropology is perhaps necessary if we are to understand how and why sortition made a political comeback at the end of the twentieth century. Conveniently, we will then be in a better position to understand how this political procedure has been reborn in shifting forms that the Athenians or Florentines could not have imagined. Skeptical readers have no doubt been wondering whether sortition is truly relevant today, since, although experiments with it have multiplied in the past three decades, these have largely taken place on the margins of political life. One answer might be that, at the present rate of growth, they will soon occupy a much more significant position. Moreover, in analyzing what seems marginal, one often casts an oblique but crucial light on the general evolution of contemporary democracies. Such an approach resembles the famous “Morelli method” discussed by Carlo Ginzburg. In order to identify artworks of uncertain attribution, Giovanni Morelli (1816–1891) used to concentrate not on the most central and evident aspects such as a brilliant smile, but on details that were revealing precisely because they were secondary, or even trivial, and therefore less likely to be copied: an earlobe, fingernails, and so on (Ginzburg  2006). Based on a multimethod comparative investigation, it no longer seems so absurd to claim that focusing on selection by lot can help us to better ­analyze the present dynamics of our societies. Could sortition be, in a way, the earlobe of the democratic process?

11

The labor movement of the last two centuries is an exception in this respect, since random selection has not been a significant element in its panoply of demands or in the revolutions it has caused.

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Index

Accountability, 19, 52, 54, 166, 167, 254, 256, 258 Ad brevia, 70, 73 Adams, John, 172, 206, 254 Africa, 17, 21, 24, 25, 72, 252 Alciato, Andrea, 99 American revolution, 12, 14, 19, 20, 101, 123–126, 132, 134, 152, 157, 165, 182, 184, 206 Ancient Democracy, 4, 8, 19 Ancient Western Asia and the Mediterranean Region, 13, 43–45, 54 Anthropocene, 21 Anticapitalist, 10 Anti-Federalist, The, USA, 172, 179, 180, 254 Antipolitical democracy, 13, 15, 238, 242–245, 247, 255 Antiquity, The, 5, 7, 9, 13, 18, 37, 42, 43, 65, 71, 93, 120, 124, 126, 160, 161, 187, 250, 259 Aquinas, Thomas, 13, 38–40, 65, 71, 121, 185 Aristotle, 1, 2, 6, 7, 11, 47, 49–52, 79, 95–97, 105, 126, 133, 183, 239, 250 The Athenian Constitution, 6, 37, 50 Arti maggiori, 81, 83, 90, 91 Arti minori, 81–83, 91 Asia, 17, 21, 24, 37, 43, 45, 46, 65, 66, 68, 72, 252 Athens, 2, 5, 7, 8, 11, 12, 14, 15, 37, 43, 45–54, 56, 59, 62, 64, 65, 67, 70, 71, 75, 84, 89, 92, 93, 95, 105, 115, 119–121, 124, 130, 132, 135, 157, 161, 179–181, 183, 190, 200, 205–208, 237, 239, 247, 250–252, 258, 261, 265, 268, 275

Australia, 188, 200, 201, 211, 215, 252 Authoritarianism, 13, 15, 30–33, 35, 276 Authorization, 60, 73, 123, 167, 254, 256–258 Ballottino, 43, 74, 76, 77, 162 Barcelona, 39, 102–104, 107 Belgium, 215, 228, 242, 273 Blackstone, William, 137 Blind chance, blind lot, 116, 169, 185, 251 Bodin, Jean, 113, 164 Bologna, 70, 71, 80 Boule, 47, 48, 51, 206 Bourdieu, Pierre, 191 Bruni, Leonardo, 7, 85, 91, 121 Capitalism, 17–25, 29, 31, 32, 34, 143, 236, 243, 244, 256, 258, 259, 265, 268, 276 Carson, Lyn, 4 Catholic, 106, 118, 121, 152, 156, 186, 213, 218 Cavalcanti, Giovanni, 91 Centuria praerogativa, 57, 60 China, 6, 9, 10, 17, 22, 24, 68, 212, 213, 232, 259 1594–1911, 10, 14, 19, 36, 126–131, 158, 176, 177, 185, 229, 247 Cicero, 55, 60 Citizens Convention for Climate, France, 217–222, 242, 254, 264 Citizens’ Assembly, 214–222 Belgium, 215, 216 British Columbia, 2, 213–215, 254, 258 France, 4, 219, 220, 222

309

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Index

310 Citizens’ Assembly (cont.) Iceland, 216, 217 Ireland, 4, 217 Netherlands, 215 Ontario, 3, 213, 215, 254 Citizens’ Juries, 3, 4, 6, 15, 34, 141, 188, 193–200, 202–204, 206, 210, 213, 214, 262–265, 269–271 Civil society, 146, 148, 165, 175, 186, 188, 209–211, 216, 219, 221, 238, 264–267, 269, 274 Clastres, Pierre, 63 Common sense, 12, 14, 132, 147, 176, 186, 187, 233, 242, 249, 251, 262, 264, 265 Communism, 17, 21, 25, 158, 160, 180, 212, 236 Compromise voting, 70, 72, 73, 93, 111, 120, 123, 151, 153, 154, 162, 167, 176, 184, 187 Condorcet, 152, 156, 166, 169, 172, 173, 174, 176 Conseil Supérieur de la Fonction Militaire, 226 Consensus and sortition, 2, 60, 68, 72, 91, 93, 101, 122, 140, 149, 167, 170, 171, 176, 186, 187, 201, 202, 214, 235, 238, 241, 243, 244, 251, 260, 263–267, 270 Consensus by no opposition, apparent consensus, 34, 69, 266 Consensus conference, 15, 34, 188, 193–196, 200–204, 214, 263, 265 Consent, 11, 69, 73, 126, 131, 164–166, 184, 201 Consiglio Maggiore, Florence, 85, 86, 88, 89, 92, 94, 96, 105, 121 Constant, Benjamin, 142, 181, 182, 270 Constituent Assembly, 20, 137, 139, 144, 146, 162, 163, 173, 242 Consultative, 12, 15, 197, 203, 204, 211, 215, 218, 226, 242, 248, 252, 257, 267, 269 Contarini, Gasparo, 78, 79, 85, 121, 134, 183 Cortes, sortition for the, 108, 109 Coulanges, Fustel de, 5, 37 Crosby, Ned, 6, 194, 195, 198, 207, 213, 236 Dahl, Robert Alan, 189, 236 de Segovia, Juan, 72 Deliberation, quality of, 93, 194, 200, 202, 204, 209, 214, 217, 223, 240, 247, 260, 262, 275 Deliberative Democracy, 2, 6, 11, 12, 15, 34–36, 195, 200, 204, 209, 210, 213, 220, 228, 233, 236–238, 240–243, 245–249, 265, 267, 269, 274

Deliberative dissensus, 265 Deliberative Poll, 4, 6, 15, 188, 193–195, 198–201, 204, 208, 212, 214, 227, 263, 269 Democracy 3.0, 274–277 Democratizing democracy, 13, 248, 267–268 Denmark, 188, 203, 204 Descriptive representation, 15, 32, 35, 172, 173, 185, 186, 205, 206, 209, 239, 244, 247, 249, 255 Deselection, 166 Dewey, John, 261 Dienel, Hans-Liudger, 197, 206 Dienel, Peter, xi, 6, 194–197, 210, 236, 243 Direct democracy, 2, 15, 69, 184, 204, 209, 213–214, 216, 228, 238, 239, 242, 243, 265, 274 Disappearance of sortition, The, 10, 11, 14, 125–126, 152, 157, 163, 164, 168, 183, 184 Distributive aristocracy, 12, 80, 117, 126, 131, 134, 135, 171, 183 Distributive democracy, 54, 65, 124, 170, 234, 250 Distributive republic, 160 Divine Providence, 111, 135, 152, 155, 169, 171 Divine will, 37–40, 42, 71, 84, 114, 124 Division of labor, 13, 20, 21, 24, 26, 56, 138, 147, 181, 182, 187, 220, 245, 251, 267, 274 Doge, 74, 75, 76, 78, 85 Duport, Adrien, 139, 146, 173 Dupuis, Aurèle, 80, 117, 123 Ecological, 21, 26, 28, 32, 33, 196, 199, 219–221, 246, 259, 268, 271, 272, 274 Economic, Social, and Environmental Council (CESE), France, 219–221, 228, 229 Egalitarian, 54, 60, 68, 87, 106, 158, 179, 186, 194, 197, 239, 244 Ekklesia, 47, 48, 52, 206 Elective aristocracy, 11, 19, 21, 125, 132–134, 157, 159, 164, 173, 180, 183, 184 Elitist, 86, 87, 95, 97, 147, 151, 157, 158, 162, 170, 176, 180, 183, 193, 233, 248, 260 Embodiment based representation, 14, 34, 62, 73, 79, 100, 113, 122, 123, 127, 164, 167, 168, 184, 186, 189, 190, 193, 194, 204, 217, 233, 239–241, 243, 245, 253, 254, 257–259, 263, 264, 272, 276 Empowered minipublics, 12, 15, 227

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Index England, 20, 25, 119, 136–138, 149, 161, 167, 177 The Early Modern period, 109–110 Enlightenment, 12, 14, 98, 101, 154, 158, 168, 174, 180, 184, 190, 191, 236, 247, 258, 260 Epistemic democracy, 239, 261, 265, 259–265 Athens, 51, 265, 268, 275 Citizen knowledge and the democratization of expertise, 263 Expert knowledge, 263 Political knowledge, 264 The wisdom of the many, 13, 260 Equality, 5, 11–13, 15, 25, 47, 52, 53, 62, 63, 65, 80, 90, 94, 95, 97, 105, 142, 153, 160, 164, 167, 184, 189, 190, 207, 213, 221, 229–234, 238–240, 242, 251, 253, 256, 276 Aristocratic, 113, 117 Arithmetic, 95, 96, 105 Democratic, 245, 247, 249, 255 Geometric, 105 Sortition as a tool for, 229–231 Three Rationales, 233–234 v. Supernatural Destiny and Impartiality, 231–232 Europe, 5, 9, 10, 17, 19, 21, 24–28, 31, 42, 66, 68, 71, 72, 76, 99, 101, 110, 112, 115, 119, 120, 123, 130, 135, 144, 147, 152, 157, 164, 176–178, 180, 182, 185, 189, 237, 247, 250, 252, 274, 276 Extinction Rebellion, 235, 246, 249, 259 Fair cross-section, the, 193, 203, 206, 207, 233, 240, 245, 249, 273, 275 Federalist, The, USA, 19, 27, 172 Federation of Student Associations, Lausanne, 227 Fishkin, James, 4, 6, 7, 194, 195, 199, 200, 204, 207, 208, 227, 236 Florence, 1, 7, 8, 14, 43, 69–71, 73, 78, 80–105, 115, 120, 121, 161, 180, 247 legislative councils, 1, 82, 93 parlamento, 72, 82 Vivere libero (living freely), 2 Fortuna, 99, 100 Fortuna, the Goddes, 98–100 France, 3, 4, 6, 18, 32, 68, 70, 101, 113, 117, 118, 119, 137–141, 145, 147, 148, 151–154, 157, 160–163, 165, 168, 177, 179, 183, 191, 193, 198, 203, 209, 212, 218, 220, 226, 228, 234, 249

311 The Early Modern period, 110–112 Frankenburger Würfelspiel, 114 Free will, free choice, 101, 165–167, 170, 171, 185 French revolution, 19, 98, 101, 115, 123–126, 132, 134, 143, 145, 151, 152, 157, 158, 164, 174–176, 178–182, 184, 185, 206, 252 Fukuyama, Francis, 17, 18 Future generations, 26, 258, 259, 273, 275 Games of chance, 14, 40, 42, 45, 96, 110, 174, 176–178, 182 Gastil, John, 6, 245 Gataker, Thomas, 110, 177 Genoa, 68, 80, 81, 177 Germany, 6, 22, 29, 30, 68, 70, 118, 119, 143, 147, 188, 194, 196, 197, 206, 211 The Early Modern period, 112–114 Giannini, Guglielmo, 242, 243 Giannotti, Donato, 78 Gilets jaunes, 4, 218, 219, 220, 234, 243, 249 Ginzburg, Carlo, 8, 277 God’s will, 101, 152, 231 Gonfaloniere di giustizia, Florence, 82, 85 Governo largo v. governo stretto, Florence, 90 Grassroots, 94, 194, 204, 207, 209, 213, 227, 249, 276 Great Debate, the (France), 218, 219, 257 Greece, 2, 18, 36, 37, 45, 46, 54, 65, 133, 164, 208 Guicciardini, Francesco, 7, 85–88, 92, 93, 96–98, 101, 122, 131 Guizot, François, 175 Habermas, Jürgen, 13, 23, 194, 195, 240, 260, 265 Hansen, Mogens H., 2, 5, 37, 49 Harrington, James, 131, 132, 136 Hegel, Georg Wilhelm Friedrich, 145–150, 267, 272 Heliaia, 47, 49, 206 Herodotus, 2, 45 Imborsazione, Florence, 83, 91, 102 Impartiality, 9, 11–15, 50, 54, 59, 65, 67, 75, 77, 84, 124, 128, 133, 137, 140, 143, 149, 155, 156, 162, 169, 176, 186, 205, 207, 218, 222, 223, 227, 231, 232, 238, 239, 246, 247, 249, 251, 253, 264, 266, 269–271, 273–275

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Index

312 India, 9, 14, 19, 20, 24–26, 31, 32, 66, 68, 207, 232, 256, 259 Innocent child, The, 9, 39, 55, 74, 81, 103, 106, 108, 111, 116, 132, 134, 136, 232 Insaculación, 102–108, 134, 208 Ireland, 3, 7, 213, 218, 221, 252, 274 Italian Communes, 5, 8, 14, 39, 68–73, 76, 93, 119, 120, 124, 177 Italy, 5, 68, 70, 73, 80, 90, 96, 99, 109, 119, 120, 144, 145, 178, 236, 237, 242, 243 Ittiramerur, 66, 67, 74 Jharkhand, 68 Kairos, 99, 101 Kleros, 39, 43, 46, 56 Kleroterion, 6, 37, 42, 43, 49, 50, 65, 75, 121, 190 Konrad, George, 237, 238 Koselleck, Reinhart, 151, 170 Kübellos, 158 Kuda Olai system, 66, 67, 74 Labor movement, 20, 31, 143, 165, 168, 238, 244, 272 Landsgemeinde, 36, 115–117, 154, 158, 163 Latin America, 20, 21, 25, 26, 31, 32, 208, 252 Lay citizens, 3, 27, 48, 86, 146, 149, 151, 182, 188, 194, 200, 202–204, 207, 210, 211, 216, 228, 239, 240, 242, 243, 245, 246, 248, 249, 261, 262, 265–267, 270, 272 Le règlement du Sort, Marseille, 110 Legislature by lot, 7, 10, 15, 272–274 Legitimacy crisis of Western democracy, The, 10, 269 Leroux, Pierre, 141, 270 Leti, Gregorio, 81 Liberal, 17, 18, 20–22, 25, 31, 35, 36, 135, 140–144, 154, 156, 158, 165, 167, 169, 170, 175, 186, 224, 236, 241, 255, 256, 258, 259, 268, 276 Locke, John, 131, 136, 165 Lotteries, 42, 80, 81, 110, 151, 177, 178, 182, 205, 212 Machiavelli, Niccolò, 84, 85, 87, 88, 91, 97, 98, 113, 116, 126, 131, 156, 175, 176, 185 Goddess of Fortune, 100–101 Maggior Consiglio, Venezia, 74–82, 88, 134 Mandate of Heaven, The, 127, 128

Mandate-representation, 123, 168, 184 Manifesto of the Sixty, The, 179, 180 Manin, Bernard, 6, 11, 12, 125, 157, 160, 164, 183, 236, 237, 250 Marsilius of Padua, 72 Martin, Brian, 4 Marx, Karl, 27, 28, 160, 246 Mass political parties, 20, 21, 26, 27, 29, 32 Mellina, Maxime, 152, 168, 184 Meritocracy, 91, 155, 157–159, 170, 182, 224, 262 Meritocratic critique of sortition, 87 Mexico, 6, 9, 135, 208 Microcosm of the people, 12, 104, 173, 179, 186, 205, 206, 244, 254 Military, the, and sortition, 56 Military, The, and sortition, 57, 58, 113, 114, 130, 136, 151, 226 Ming dynasty, 36, 126, 130 Mixed government, 47, 78, 79, 88, 134, 164, 165, 237, 268, 272 Mixed jury, 143–145 Modern democracy, 4, 8, 9, 13, 18, 183, 205, 206, 214, 273 Modernity, 14, 26 Moira, 46, 95 Montesquieu, 18, 132–135, 146, 155, 160, 161, 162, 176, 183, 239, 247, 250 Neoliberalism, 21–24, 267 Netherlands, 174, 177, 211, 215 Neutrality, 15, 84, 142, 215, 225, 249, 270, 271 NGO, 27, 196, 197, 200, 209–211, 220, 222, 244, 259, 265, 270–272 Nomothetai, 49 North America, 5, 10, 19, 26, 31, 132, 164, 252, 274 Nullification, 150, 186, 187, 192 Ober, Josiah, 2, 51, 261, 268 Occasio, 99 Occasio, godness, 99 Ochs, Peter, 153–156, 159, 160, 169, 171 Opinion polls, 30, 173, 189–192, 196, 199, 204, 205, 233, 257 Pacifying virtue of sortition, 68, 111 Participatory budget, 34, 35, 194, 209–212, 227, 262, 271 Participatory Democracy, 4, 33, 36, 138, 193, 194, 204, 209, 248, 249, 255, 274

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Index Party politics and sortition, 3, 10, 15, 207–209, 223, 242, 243, 267, 274 Penn, William, 132, 136, 149, 150 Permanent institutions drawn by lot, 15, 209, 210, 219, 226–229, 242, 258, 273 Phillips, Anne, 255 Pitkin, Hannah, 172, 256 Planning cells, 6, 194, 197, 210, 243 Plato, 51, 94, 95, 126 Pluralism, 73, 85, 122, 132, 165, 175, 179, 186, 241, 243, 245, 246, 251, 257 Polarization effect, 260 Politicization, 15, 221, 223, 226–229, 246, 249, 252, 265, 270 Politics of presence, The, 255, 262 Popolo grasso, 89 Popolo minuto, 81, 82, 89, 90 Popular juries, 8, 10, 12, 14, 56, 58, 136–138, 140, 142–144, 173, 192, 194, 196–198, 201, 232, 233, 250, 261–265, 270 The Anglo-American jury, 137–138, 144, 149–151, 182, 186 The jury d’Assises, 137, 139–140 The origins, 136–137 Popular sovereignty, 12, 24, 128, 152, 163– 165, 170, 171, 184, 236, 248, 251, 275 Populist, 3, 31, 209, 224, 236 Porto Alegre, 34, 194, 209, 212 Post-democracy, 13, 15, 30–32, 35, 276 Probability, 40, 42, 75, 94–96, 173, 174, 176, 177, 191, 192, 206 Procedural legitimacy, 113, 122, 171, 184 Protagoras, 15, 16 Protestant, 63, 118, 121, 152, 155, 158 Public Opinion, 3, 166, 175, 181, 190–192, 199, 200, 204, 206, 208, 240, 247, 248, 255, 265, 269 Counterfactual, 251, 254 Enlightened, 15, 191 Public sphere, 17, 19, 55, 61, 92, 175, 186, 204, 220, 240, 248, 251, 263, 276 Pufendorf, Samuel von, 112, 113 Purim, 44 Qing dynasty, 36, 129, 130 Quetelet, Adolphe, 174, 176 R. v. Kokopenace case, Canada, 253, 258 Radical democracy, 244–247 Rancière, Jacques, 7, 11, 62, 63, 244, 250 Rationalism, new, 12, 14, 171, 172, 185 Rationalization, 12, 38, 40, 95, 120, 122

313 Rawls, John, 195, 264 Real democracy, 133, 249 Real utopia, 9, 245, 247, 277 Redolinos, 103, 108, 134 Renaissance, 2, 7, 9, 14, 24, 66, 68, 69, 77, 91, 92, 99, 101, 120, 177, 180, 247 Repraesentatio identitatis, 72, 113, 123 Representative Democracy, 2, 4, 11, 13, 15, 18–23, 28, 30, 32, 36, 190, 193, 194, 204, 205, 216, 219, 242, 249, 255, 256, 267, 272, 275, 276 Representative Government, 5, 6, 10, 11, 17, 19–21, 24, 25, 29, 35, 36, 86, 118, 122, 124, 125, 132, 133, 154, 157, 163, 165, 167–170, 175, 183, 184, 186, 190, 231, 236, 237, 239–241, 243, 246–248, 250, 251 Representative sample, 7, 12, 14, 15, 173, 174, 178, 180, 185, 186, 187, 189–193, 203, 205–208, 233, 239, 244, 245, 247, 248, 251, 252 Republicanism, 20, 101, 117, 120, 128, 167, 172, 175, 182, 185, 186 Responsiveness, 27, 256–258 Ritual, 8, 14, 37, 40, 46, 58–63, 65, 67, 71, 76, 83, 102, 108, 114, 121, 122, 134, 135, 171, 184, 185, 231, 251 Roman Empire, 61, 69, 112, 114 Rome, 5, 8, 10, 14, 37, 54–65, 67, 71, 76, 115, 119, 121, 135 Rotating mandates, 7, 52, 54, 56, 58, 59, 62, 64, 67, 70, 72, 82, 84, 85, 88, 97, 99, 104, 113, 123, 135, 140, 160, 161, 181, 205, 234 Rousseau, Jean-Jacques, 133, 134, 136, 146, 155, 157, 160, 164, 165, 173, 183, 239, 247, 250 Russia, 31, 68 Saint Augustine, 39 Saint Dasius, The Martyrdom, 61–63 Self-government, 12, 14, 20, 35, 65, 66, 85, 88, 90, 120, 124, 128, 134, 135, 148, 150, 157, 160, 163, 165, 184, 205, 206, 234, 246, 249, 275 Signoria, 71, 80, 82, 83, 84, 89–92, 93, 98, 177 Social movements, 13, 27, 33, 188, 194, 195, 204, 207, 210, 211, 222, 227, 236, 238, 246, 247, 249, 252, 265, 272, 274, 276 Alter-Globalism, 34 New, 33, 35

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Index

314 Socrates, 51, 95 Sors Divinatoria v. Sors Divisoria Distributive Divinatory v. Distributive Sortition, 43, 45, 54–56, 58, 59, 65, 71, 76, 84, 95, 110–113, 118, 121, 152, 185, 231 Aquinas, Thomas, 38–43 Spain, 5, 8, 14, 68, 102, 106, 107, 109, 121, 134, 135, 196, 197, 209, 249, 271 15M, 227, 249 Spinoza, Baruch, 131 Squittinio, Florence, 83, 84, 89 Stollberg-Rilinger, Barbara, 60, 112–114, 122, 168, 184 Stratified sample, The, 190, 191, 197, 204, 256 Subaltern, 19, 20, 21, 27, 29, 33, 35, 192, 194, 208, 239, 245, 246, 255, 257, 274, 276 Subjective judgement, 12, 146, 186, 251 Swiss Federal Supreme Court, Initiative Justice, 223–226 Switzerland, 5, 8, 14, 66, 68, 80, 109, 113, 119, 121, 125, 151, 157, 159–161, 163, 166, 168, 169, 175, 180, 182, 184, 214, 223–227, 249, 257 1798–1848, 152–156 The Early Modern period, 114–119 Symbolic, 14, 55, 60, 61, 63, 65, 76, 80, 95–97, 104, 113, 121, 122, 160, 164, 184, 189, 231, 235, 251, 255 Systemic, 13, 15, 23, 119, 253, 255, 267, 268, 272, 276 Taming of chance, 14, 15, 94–96, 98, 101, 120, 123, 160 Tarde, Gabriel, 147, 148 Teknologiradet, 195, 202–204 Thucydides, 50

Tocqueville, Alexis de, 147–148, 150, 151, 186, 251 Tratta, 1, 43, 70, 73, 82, 84, 85, 87, 88, 97, 98, 103 Tribunes of the plebs, 55–57 True democracy, 19, 133 Unanimity, 164, 176, 186, 187, 266 United Kingdom, 6, 19, 22, 32, 164, 165, 190, 195, 196, 198, 272 United States, 6, 20, 21, 22, 29, 32, 122, 137, 138, 148–151, 157, 161–163, 165, 172, 180, 183, 186, 188–190, 193–199, 214, 253, 259, 264, 271 Urfalino, Philippe, 265 Urna versatilis, 37, 58, 65, 121 Usteri, Paul, 156, 166 Van Reybrouck, David, 6, 207, 215, 237 Venice, 8, 69, 71, 73–81, 83–85, 88, 90, 91, 102, 109, 115–117, 119, 121, 129, 132, 134, 151, 156, 175, 177, 186 Warburg, Aby, 8, 99 Water Margin, by Shi Nai’an, 127 Wave of sortition experiments The first wave, 12, 15, 193, 196, 201, 203, 206, 207, 236, 248, 249 The second wave, 12, 15, 193, 206–207, 226, 227, 229, 237, 245, 248, 249, 252, 255 Weber, Max, 21, 27, 29, 63, 147, 182 Western democracy, 8, 27, 35, 36, 236 Wheel of Fortune, the, 98–100, 178 Wright, Erik Olin, 6, 245 Xenophon, 51, 95 Yuan dynasty, 126

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