1 random recruitment and permanent mediation in divided societies the prospect for greater political equality. Oliver Dowlen (Sciences Po) Paper for 24 th IPSA Congress 23-28 July 2016 Poznan Poland For permission to cite or other questions please contact: [email protected]
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random recruitment and permanent mediation in divided societies
the prospect for greater political equality. Oliver Dowlen (Sciences Po) Paper for 24th IPSA Congress 23-28 July 2016 Poznan Poland
For permission to cite or other questions please contact:
within it and one in which the result is interpreted solely in terms of those
groups. In its pure form no identification of the winner as an individual, (i.e.
not as a member of a grouping) is possible or desirable.
Now, of course we can see this distinction purely as one of interpretation
and observation, any group of, say, 100 citizens chosen at random can be
discussed or analysed in terms of what groupings from wider society it
contains. In this sense all lotteries that can become weighted lotteries. What I
am concerned with here, however, is the way that the operation of political
power and dependency within a lottery pool as it becomes divided into active
groupings can turn a lottery (designed to limit power relations) into a
weighted lottery. At this stage the competitive power of the groups in the
pool becomes its greatest operational characteristic. This is precisely what
happened when the Medici sought control of the First Florentine Republic by
using an extensive system of patronage, fear and favour. This idea is also
present in Lord Diplock’s expressed anxiety that random jury selection and
the subsequent operation of the jury system in Northern Ireland would
become subservient to the powerful elites that led the antagonistic
communities in that society.
What I am saying here, then, is not that all weighted lotteries are
necessarily prone to such corruption for it is quite possible to envisage
weighted lotteries that are designed to spread and diffuse power and as such
could be valuable in a divided society. The point here is that political lotteries
in a divided society run the risk of becoming mere reflections of the power
relations that exist in that society rather than becoming institutions that help
to unite the antagonistic communities. The transition of ordinary lotteries to
weighted lotteries and the diminution of the influence of any independent
voices in the mix are observable aspects of this. To help us to envisage how
this danger can be counteracted I now turn to my final “framework” for
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understanding: the “mediative” role of lotteries and their role in establishing
mediative relations.
Lotteries and mediation
This framework is provided by examples of the social use of lotteries. It
derives from the nature of a lottery as a form of agreement. Some of the best
examples of how lotteries are used for the distribution of common resources
can be found in Elinor Ostrom’s work Governing the Commons. These include:
the distribution of log-piles among Swiss villagers who collect and stack
wood in the forests (p. 65); allocation of fodder bundles in Japanese villages;
water distribution in Spain (p. 77); and the allocation of fishing grounds to
fishermen in Alanya (Italy pp.19-20) and Nova Scotia (p. 173). To this we can
add the ubiquitous practice of distributing grazing rights for commonly-held
pasture on a rotational system by lottery.21
I would describe these instances of lottery use as proto-political because
they occur in social contexts that operate outside the scope of the type of
broader, centralised decision making apparatus that characterises a mature
political system. In all these examples we can see the lottery as acting as a
kind of anonymous impartial mediator or arbitrator.22 Because a lottery
possesses the qualities of anonymity and impartiality all parties trust the
arrangement in the secure knowledge that a lottery choice cannot be made in
an intentionally partisan manner. I classify this as a mediative form of
relationship23.
21 Ostrom (1990). See Green (1910) on allocation of meadow grazing at Yarnton near Oxford. 22 In these examples we can also see clearly how lottery distribution is accompanied by, or
indeed encourages, strict proportional division between the units to be distributed. These
“pre-lottery” rational decisions are critical to the success of these shared agreements. 23 My articulation of the triadic/conical form of mediative relations was inspired by Shapiro’s
discourse on judicial form. Shapiro (1981)
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It can be illustrated as follows:
Fig. 3. C (apex) = mediating body or agreement
A and B = contending parties
Where more than two parties are involved this can take a conical form:
Fig. 4. C = mediating body or agreement
D
A E = contending
B parties
We can contrast the formation of mediative relations in this way with what I
call “oppositional” relations. This is where two or more parties exist in a
relationship where no mediation exists or where mediation is ineffective.
Applied to the Ostrom examples we can visualise this as a state of active
antagonism between different members or groupings within the proto-
political societies caused by the struggle to monopolise the common
resources. Here both or all parties would exist in a kind of Hobbesian, winner
takes all, antipathy to each other. The mediative solution, however, means
that all parties become subservient to a shared, rule-governed system.
We have arrived at this formulation by looking at a particular form of
mediation: the use of the lottery as anonymous mediator. It is, however, a
formulation or model that can be applied to all forms of political agreement
where an agreement (whether merely verbal or backed by the power of law
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and institutional organisation) acts as the mediating element. In every
instance the mediating element has to be sufficiently impartial to enable
agreement to be reached. The agreement also has to constrain the actions of
the participants in some way in order to accommodate the interests of all.
Lottery mediation is a particularly good example of this general process
because a lottery is designed (or evolved) to be demonstrably impartial: it is a
process of choice that cannot be attributed to any contending party. In this
context the absence of power relations in a lottery decision becomes a
significant factor in the decision to use this mechanism. When any number of
parties consent to the use of a lottery, the arrangement immediately becomes
mediative because the distinction between the mediating element (C ) and the
other groupings (A,B etc.) is immediately apparent and cannot be open to
further contestation.
If we expand on this model we can characterise the process of political
consolidation as one in which mediative relations begin to predominate over
relations that have previously been totally or almost exclusively oppositional.
It is this process, I would argue, that stands or should stand at the centre of
positive political development in divided societies; i.e. strengthening this
process is a desirable aim. My contention is also that this act of placing
random recruitment firmly within the context of political consolidation on the
mediative model in theory and potentially in practice is the most significant
theoretical principle in the use of this mechanism in divided societies.
Frameworks and principles
We can now see how this principle fits in with our earlier “frameworks” of
analysis. These are:
1) The blind break and the idea that a lottery is a rationally designed use of
the arational.
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2) The box of possible epithets and the necessity of balancing the positive
effects of randomness with the potentially problematic elements in any
application.
3) The need to be aware of and sensitive to the dangers of the moral
abdication in the use of lotteries.
4) The exclusion of power relations as one of the most important capacities in
the political use of random recruitment.
5) The connection between the random product and independence from
group identification (from Chaitin).
6) The distinction between a lottery and a weighted lottery and the further
distinction between a weighted lottery that is corrupted by the operation
of power groupings in the pool and those that are designed to fulfil a more
inclusive role.
7) The role of the lottery as anonymous mediator and the application of this
mediative model to the wider process of political consolidation.
Some of these frameworks (particularly 1, 2 and 5) could be most useful in
specific problem-solving contexts. Others (notably 3, 4 and 6) relate to the
overall orientation and motivation that might govern a more systematic
application of random recruitment. From these we can begin to formulate
some tentative conclusions about the application of random recruitment in
seriously divided societies.
The first is really in the form of a warning. This is that we cannot just throw
institutions involving lotteries and random recruitment at seriously divided
societies and expect them to solve what in many cases are deeply embedded
historical divisions. Care and attention should be given to the purpose of the
institution and which qualities of the lottery might be appropriate. Rational
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elements in the overall institutional design can be used to focus and refine the
random elements and counteract some of the adverse effects of lottery use.
Secondly we have also seen how lottery selection can become corrupted if a
lottery (an impartial process linked to the ideal of an independent product)
becomes a weighted lottery dominated by competitive power groupings in
the pool. One way of countering this danger might be to extend control over
the pools to reduce the chances of extreme partisans holding office.24 To
understand exactly how such checks, or similar measures, might be
introduced we need to look at the overall context of any proposed use of
random recruitment in divided societies, specifically at the mediative model
of political consolidation and the notions of independence and impartiality
that it embodies.
My conclusion on this matter is that once agreement is reached to search for
a political solution that sets out to be fair and inclusive, those who support
such a solution will value its impartiality and its ability to mediate
successfully between the formally antagonistic parties. When we talk about
encouraging this process of consolidation, therefore, we can think of it as the
strengthening of element C in the triadic or conical representations of
mediative political relations presented earlier in the paper.
From this we can develop a major principle or maxim for the use of random
recruitment in divided societies; that it is best used when it is part of a
mediative trajectory for political consolidation and where the schemes that
use random recruitment are designed to contribute to that process. In this
24 A similar measure was taken in Athens following the restoration of democracy when the
power of the mandatory post-lottery check, the dokimasia was extended to keep known
associates of the 30 tyrants out of power. See Adeleye (1983).
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type of context the impartial and anonymous nature of the choice contributes
to the desired impartiality of the mediative institution or series of institutions.
Further control over the nature of the pool and the terms of office can then
reinforce this.25
In this type of mediative context the stability of the new dispensation is
dependent on the number of citizens that support it. This can be enhanced by
increasing active citizen participation in the new institutions of government,
effectively creating a “third” or mediating force analogous to the role that
Kleisthenes gave to the demos in his sixth-century Athenian settlement. In this
type of context lotteries stand less chance of becoming weighted lotteries and
then being corrupted by partisan groups.
This vision of a “post division” political society or one moving in that
direction is based on a shifting locus of citizen-based power. Its central unit is
therefore the active independent citizen. I would argue that a pre-condition
for such developments is the political equality of the citizenry, not just as a
central ideal but manifested in the institutions and procedures of the new
agreement. If lottery selection for public office is undertaken in such
circumstances and within such a context it could play a vital role in
establishing this ideal in practice. Since most seriously divided societies
involve a level of inequality between communities there could be no better
political signal to mark a new beginning than the firm intention to create a
citizenry with equal political rights, entitlements and responsibilities. There
would also be also no better way of signalling the sincerity of that intent than
25 An example of this would be the selection of election monitors by lottery to increase
confidence in the fairness of the electoral process (this could be particularly valuable in post-
conflict situations.) Members of political parties would not be eligible for these posts, and
citizen election monitors could be allocated (possibly also by lottery) to a different area or
constituency than the one they lived in to help limit the possible adverse influence of local
loyalties.
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the incorporation of random recruitment from a citizen-wide pool at some
level in the new constitutional arrangements.
Diplock again
If we now turn back to the pro and anti Diplock arguments, the first point
to make is that the action by the British Government and the subsequent
debate did not take place in the context of a mediated settlement between the
two communities. There was no great coming together in which all parties
could address the issue of judicial form and the latent substantive issue of
what might constitute a terrorist offence. There was no Kleisthenic settlement
in the offing, no identifiable “third force” (the Northern Irish equivalent of the
Athenian demos) and Diplock was no Kleisthenes. I would argue, on the
contrary that there was only one opportunity when a genuinely mediative
solution could have been instigated in this early phase of the troubles. This
was the period when British troops were first deployed as peacekeepers in the
province. Once the British Government adopted a counter-insurgency
strategy all the measures that they subsequently put in place were essentially
oppositional in character.
According to my analysis of the weighted lottery Diplock was right in
suggesting that complete random selection in such extreme conditions might
lead to problems with intimidation or with haphazardly partisan juries. The
decision to abandon the jury, however, had more to do with maintaining
control as a component of counter-insurgency than with promoting justice in
the broader sense. Here we can see how lottery selection, a means of decision-
making that is designed to exclude intention, manipulation and the relations
of power was not suitable for purpose. We should also recognise that in these
conditions, and indeed in the whole history of the six counties, the equality of
citizens in any political, social or judicial sense, as an aspiration or as an
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institutional principle was conspicuous by its absence. I would, therefore,
agree with Lord Devlin that Diplock moved away from the jury form too
quickly and feel that the line suggested by Greer and White that action
against intimidation, a citizen wide pool and an increased emphasis on fair
jury challenges should at least have been tried.26 Here the rational elements of
lottery design could have been used to support the impartiality and
independent nature of the lottery choice while guarding against extreme
partisan influence. It might also have been possible to use new and different
forms of jury with, perhaps, different duties and instructions, to deal with the
extreme circumstances of the time. A movement in this direction might also
have helped to trigger a more comprehensive search for a settlement,
especially if it was able to incorporate the impartial (literally non-partisan)
sections of the citizenry in that search.
26 The view that jury trials should be continued on an interim, experimental basis was in fact
voiced by Labour’s Peter Archer at the time of the Baker 1983 review of the 1973 Act. His
comment was: “If then there is a spate of clearly perverse acquittals …we may have to think
again…”. Greer and White (1986) p.6.
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References.
Adeleye, G. (1983) “The Purpose of the Dokimasia” Greek, Roman and
Byzantine Studies 24.
Aristotle (1986) The Athenian Constitution. Trans. Moore, J.M.
In Aristotle and Xenophon on Democracy and Oligarchy.
University of California Press.
Brucker, G.A (1962) Florentine Politics and Society. 1343-1378. Princeton
University Press. Princeton. New Jersey.
Callaghan, James. (1973) A house divided. The dilemma of Northern Ireland.