Jazz Not Math: On Hélène Landemore’s “Open Democracy” and Chiara Cordelli’s “The Privatized State”

September 15, 2021   •   By Christopher Kutz

Open Democracy: Reinventing Popular Rule for the Twenty-First Century

Hélène Landemore

The Privatized State

Hélène Landemore

PEOPLE EVERYWHERE AGREE that we face a crisis of democracy but few agree on what that means. In the United States, we have the Republican attack on voting rights, sustained by claims of electoral fraud. We have an anti-majoritarian design in the Senate and Electoral College, which many increasingly see as critical flaws. Around the world, people point to the power of social media and partisan news to delude voters, and to transnational technocratic elites, the rise of authoritarian leaders, the collapse of traditional parties, and the increased reliance on plebiscites funded by foreign interests.


Most of these crises, real or imagined, represent departures from how modern, representative democracy is supposed to work. In theory, voters turn out on election day to select representatives distinguished by their ability both to reflect the views and values of their constituents and to persuade each other to take actions favoring the common good, as determined by a majority vote of these representatives. Voters then monitor their representatives to make sure they are faithfully representing their constituents’ interests rather than feathering their own nests or pandering to special interests. If all goes well, voters return the good representatives to office and turn the bad ones out in the next election.


The poor reputation of legislatures around the world suggests that practice is remote from theory. People have proposed certain fixes to narrow the gap, including restrictions on campaign fund raising, increased transparency in voting, and attempts to recruit more representative candidates from outside party machines and elite channels of education. All of these are good initiatives. But what if the problem is with representative democracy itself?


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So argues Hélène Landemore, a French political theorist at Yale, in her important new book, Open Democracy: Reinventing Popular Rule for the Twenty-First Century. Writing for democracy activists as much as for academic scholars, Landemore suggests that representative democracy will always disappoint us because it rests upon a distinction between rulers and ruled, entrenching the separation by creating a permanent political class whose members deliberate and bargain among themselves. Modern representative democracies are “closed” democracies, which means citizens are distanced from the levers of power. Democracy’s promise is political equality, but, she argues, our representative institutions create inequality, bestowing power on a few, and little more than a spectatorial role on the many. Disillusionment and resentment among the “represented” are inevitable.


Landemore proposes that we instead institute “open democracy,” where the levers of political power, indeed the writing of law itself, are in the hands of ordinary citizens, not a special political class. Her model is Athens during its Golden Age in the fifth century BCE, when ordinary citizens (i.e., non-enslaved, adult men) participated in ruling the state either by showing up to the Assembly to debate and vote on law and policy, or by being chosen by lottery to serve as one of 500 members of the Council, a kind of upper legislative house, which set the agenda for the Assembly and exercised a range of executive functions. Members of the Council served only for a year and were limited to two terms in a lifetime.


For Landemore, Athens’s lottery-based system is a more important model than the town-hall direct democracy of the Assembly. It shows that a democracy can have representatives without having an entrenched political class or the elections we unreflectively put at the center of our politics. While grassroots activists often invoke the direct democratic town-hall-meeting model, in practice the participants in such systems are mostly limited to the affluent who have the time and leisure to participate. Direct-democratic meetings are also inherently limited in scale. In contrast, lottery-based systems can allow a much broader range of citizens to participate.


Such a democracy would be “open” in Landemore’s terms, because all citizens would see themselves as “representing and being represented in turn,” each with an equal share of political power, thus solving the problems of alienation and inequality. Moreover, an open democracy would provide for better policy-making by marshaling the breadth of experience and perspective provided by a randomly chosen swath of the public, or what Landemore calls a “mini-public.” Here she builds on her 2013 book, Democratic Reason: Politics, Collective Intelligence, and the Rule of the Many, presenting what philosophers call an “epistemic conception” of democracy: diversity and equality, she argues, provide the best means for producing knowledge and judgment.


The Athens model has some problems, as Landemore acknowledges. For one thing, non-enslaved men were less than 20 percent of the Athenian adult population and so might themselves be considered an entrenched political class. Next, how well can the city-scale Athenian model work for large, diverse nations? Landemore urges its feasibility with charitable readings of some recent attempts at citizen engagement using weighted lotteries to generate a cross-section of the national polity. After the Financial Crisis of 2008, for example, Iceland wanted to revise its constitution to rein in the neoliberal banking elite whose actions had precipitated the crash. The Icelandic government brought together 950 randomly chosen citizens, to outline broad constitutional values. Then 25 different private citizens were directly elected and charged with writing constitutional provisions in line with these values, which they did in part by crowdsourcing proposed provisions and commentary from a broader public, inside and outside Iceland.   


Being a small, homogeneous, highly educated and networked population, Iceland seems exceptionally well suited to such a process. The result was not a flame war in the comments section, but respectful debate and proposed amendments that were manifestly more progressive and rights-protective, including of children and sexual minorities, than the Icelandic parliament had provided. It also makes historical sense that Iceland would carry out this experiment. The nation holds itself out as the world’s oldest democracy, dating from the 10th century when local chieftains and shepherds would gather outdoors at the Law Rock in Thingvellir and debate for days to arrive at collective decisions, notably to forgo the old Norse gods in favor of Christianity (though whether that was a good decision as well as a democratic one must be a matter of opinion). Alas, the 2009 story ends badly: the elected parliament ultimately shelved the constitutional recommendations in what Landemore puzzlingly calls a “beautiful failure” of open democracy.


Meanwhile in France, riven in 2018–’19 by the violence of the “Yellow Vest” populist protests and an even greater-than-usual national weariness with the technocratic elite, President Macron instituted a “Great National Debate” in which he toured dozens of towns to hear local feelings and concerns. Inspired by the success of his listening tour in restoring some of his squandered popularity, Macron then ordered the creation of a Citizens Convention on Climate Change, which would guide France on how to reduce carbon emissions by 40 percent. This Convention also gathered 150 citizens chosen by lottery who met over the course of a year. Provided with an agenda and technical advice by experts, the citizens developed 149 ambitious proposals to attack the climate crisis, including a constitutional revision suggested by Macron himself to make concern for the climate a national priority. The Citizen Convention also called for a prohibition on domestic flights for routes achievable in under four hours by train, tax increases on carbon-intensive activities, and prohibitions on advertising for carbon-polluting goods and activities.


Macron promised that the Convention’s proposals would be passed to the legislature “without filter” for vote and enactment. Instead, both the president and the legislative chambers whittled down the list and weakened many of the proposals before their enactment this July, for instance, only banning flights where 2:30 hour train routes are available. Fewer than half the original proposals survived industry intervention and political attack. Notably, the proposed constitutional revision was dropped. Piqued by criticisms from the Convention, Macron later declared that “you can’t say that just because 150 citizens wrote something, it’s the Bible or the Qur’an.”


Many French observers understandably regard the effort as having been more about presidential public relations than deep democracy, though the Convention may have provided some cover for progressive legislators. Landemore nonetheless finds hope in the French experience, mainly in the citizens’ own sense of fulfillment and solidarity against what they perceived as bullying by experts and special interests. The initiative may have been patronizing toward the participants, yet one can consider their subjective experience a kind of proof of concept.


Ultimately, neither the French experiment nor the Icelandic one points the way to a new approach to modern democracy. Landemore concedes the point when she admits that the open democracy model is more plausible in states transitioning from authoritarianism to democracy, when a revolutionary public might channel its energies into legislation. Within existing democracies, mini-publics seem destined to be little more than occasional supplements or partial solutions to political paralysis, and not conceptual revolutions. It is instructive that no one would tolerate lottery-based political bodies unless they were put in place by the kinds of democratic institutions Landemore criticizes: elected representatives or direct referenda.


Landemore is persuasive that mini-publics can be at least as adept as professional legislatures at proposing attractive policies and will likely be more progressive, with a longer time horizon than officials looking to the next election. But the difficulty of translating good ideas into legislation isn’t an incidental flaw in the program. Successful lawmaking requires experience with the processes of negotiation and institutional application that ephemeral mini-publics are poorly suited to develop. As a recent example, Joe Biden’s lifetime in politics has been a crucial asset from the moment he took office during an attempted coup. Politics is a feature, not a bug, of politics.


Landemore is also right that modern democratic representatives are too remote from their publics. But the solution will not be found in the ancient technology of the lottery or the modern technology of the internet. Choosing who should make which decisions is an essential part of the political process — arguably the crucial part. How can we solve our problems by outsourcing that crucial element to an algorithm, or a technological black box? Chosen by lottery, members of Landemore’s mini-publics enter their periods of public engagement in the most passive way possible. And, until the random machinery elevates them, those outside the mini-publics have even less of a role to play than voters choosing representatives.


Rather than outsourcing the choosing process, eliminating the agency of the choosers, or worse, putting it in the hands of those designing the software and doing the statistical weighting, we should seek ways to enhance the agency and ability of the choosers. Political theorists have taken a lot of interest in voting itself, but comparatively little in what the voters should be doing in addition to voting. The sorts of political actions people engage in when not voting are essential to their role as voters. Recent political history, especially during the 2020 election, confirms that voting is not an isolated act, but relies upon all sorts of political actions — volunteering, organizing, registering, demonstrating.


The idea that an algorithm or form of software could provide the basis for a good political system reflects a long tradition in political theory. Writers from Hobbes, Rousseau, and Kant to John Rawls have treated politics as though it were a kind of math problem, trying to found a political order on a geometric realization of political equality. But the problems of politics are more like jazz than geometry. As in jazz, the mathematical aspects are essential but not sufficient. Just as there is no single correct version of a jazz standard, there are many collaborative, improvisational approaches to democratic self-government. An approach that reduces politics to an airtight mathematical proof also deprives the people who make up the political world of their fundamental agency.


No algorithm or lottery can solve our problems. Instead, we need a rich understanding of political participation encompassing not only math but collaborative improvisation. It must include but not be limited to voting. Its focus must be the many and varied forms of political agency.


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Understanding the nature and role of the public in public life is the purpose of another recent book examining a pathology of modern democracy: the contracting out to private and corporate interests of public functions such as prisons, education, and welfare services. Chiara Cordelli, an Italian political theorist at the University of Chicago, offers a profound critique of this neoliberal trend in The Privatized State.


The title is a pun on “state,” referring both to the private provision of state services and also to our collective state of vulnerability to abuse and exploitation in the absence of public authority. Cordelli argues that public bureaucracy protects our freedom by exerting rules and aims in which we all share an equal proprietorship. While we are subject to these rules and aims, they are nevertheless our own because, in a democracy, they reflect our shared law. This is not the case with private entities. Their aims are their own, not ours. Bureaucrats, at least in the ideal situation, can’t make us their personal tools. For private agents, it’s their purpose.


Cordelli identifies the problem of privatizing public services as one of dignity: subjecting citizens to a private entity is an affront against their equal dignity as citizens. Take a private prison, for example. The prison company may well be as constrained by public rules and regulations as a public bureaucracy. The salient difference is that the prison company’s fundamental aim is to extract profit from the conditions of the prisoners’ confinement. In an ideal, publicly operated prison, along the lines of the Norwegian model, values of justice and humanity guide decisions about the inmates, who are not tools for someone else’s profit-making but fellow citizens undertaking a process of rehabilitation and reintegration.


Bureaucracies can, of course, be corrupt, inflexible, and slow to adapt to changing conditions. Bureaucrats rarely meet Cordelli’s demanding ideal of fidelity to shared, democratically enacted law. They have their own interests in a lighter workload and avoiding flak from higher-ups. But Cordelli rightly points to the fundamental deficit in our public life when private entities are authorized to make citizens the objects of their own interests. The strength of her argument lies in showing that, at their best, public bureaucracies promise a kind of equality and integrity to citizens that private services by definition cannot. The obstacles presented by a civil service bureaucrat may be infuriating, she suggests, but at least they ideally originate in political choices in which self-governing citizens have an equal say. Neoliberalism promised us freedom through reliance on market systems but instead we live under the arbitrary authority of Jeff Bezos and Mark Zuckerberg.


Surprisingly, Cordelli views profit-making as only incidentally connected to the wrong of privatization, since in some cases governments use nonprofit groups to run programs. The key problem for her is that even nonprofit private entities are not parts of the government and therefore, by definition, act according to their own particular aims. Certainly, when the state charges religious groups with providing health care or welfare services, we should worry that public resources are furthering sectarian ends. But Cordelli minimizes the special problem of for-profit privatization, which is surely the main context in which citizens become tools of private entities, and not just in their engagements with state-contracted services but in many other areas. I’ve already mentioned the internet and social media, to which we could add pharmaceuticals, insurance, education, housing, and transportation with the mushrooming of ride-sharing companies.


On the one hand, without wanting to extend public bureaucracies throughout all these industries, we might still want to preclude their making citizens into tools for their profit-making, as many nations have tried to do. On the other hand, it may be acceptable to contract certain public services to private entities — garbage collection and recycling, road construction, signage — as long as they do not impair citizens’ agency and autonomy. Public bureaucracy is neither necessary nor sufficient for public freedom.


Where government exercises direct power over citizens, public bureaucracies have an essential role in safeguarding our self-sovereignty, and Cordelli’s identification of their virtues is timely and valuable. But she places too much weight on the bureaucrat implementing the law, and not enough on the citizen as lawgiver. Following Immanuel Kant, Cordelli treats law as a kind of given, emerging mathematically when citizens’ wills line up equally. But Kant was no democrat and had little interest in the many and varied forms of political agency that go into making the law.


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The 2020 election, especially in Georgia, gave many Americans hope that reports of democracy’s demise were at least a little exaggerated. So too has the mobilization against racist policing, which has led to substantial, real-world reforms across the country. Local groups and leaders have cared for the sick, fed the hungry, educated the jobless, re-greened their public spaces, and started to de-carbonize their economies. All of this work has involved keen attention to the relevant math but also collaborative improvisation. The solution to our enduring democratic crisis, and even more so the global climate crisis, lies in the emergence of an active public at all levels, local, national, and trans-national.


It is surely no accident that both Landemore’s and Cordelli’s cases for the values of public life are written by Western Europeans, for whom the state represents the possibility of a secure and equal public, rather than — as Americans tend to see it — a threat to individual freedom and civil society. In rethinking the relationship of citizens to the law, and the role of the state in public life, these books bring welcome fresh air to an essential conversation. My own reading of them has sharpened my sense that, to treat our global crisis of democracy, we need a new understanding of political participation that locates the essential problem in issues not just of math but also of agency: how can we best multiply and strengthen the agency of individual participants in the collective, improvisational venture of government?


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Christopher Kutz is C. William Maxeiner Distinguished Professor of Law in the Jurisprudence & Social Policy Program at UC Berkeley, where he teaches courses in moral, legal, and political philosophy, as well as criminal and international law. He is author, most recently, of On War and Democracy (Princeton, 2016).