Vol. 24 No. 11 (November 2014) pp. 533-538
SECURITIES AGAINST MISRULE: JURIES, ASSEMBLIES, AND ELECTIONS, by Jon Elster. New York: Cambridge University Press. 2013. 324pp. Cloth $85.00. ISBN: 9781107031739. Paper $29.99. ISBN: 9781107649958.
Reviewed by Patrick Peel, Department of Political Science, The University of Montana. Email: email@example.com.
Given the necessary complexities of democratic government, doubt as to whether the will of the people is in fact represented seems perennial. Such doubts, while not disappearing, may nevertheless recede to the background during times of perceived consensus; but in times of stress, in the aftermath of exogenous or endogenous societal shocks, background worries about democratic representation tend to move to the foreground.
One consequence of this recurrent doubt has been the rich literature on democratic theory. Indeed, spurred by recent events, theorizing about democratic government appears to be accelerating. New interventions include: “epistemic theories of democracy” – theories arguing that the superior quality of democratic decision-making offers normative reasons for endorsing it – such as David Estlund’s DEMOCRATIC AUTHORITY (2009), Jack Knight and James Johnson’s THE PRIORITY OF DEMOCRACY (2011), and Hélène Landemore’s DEMOCRATIC REASON (2012); Philip Pettit’s republican model of democracy in ON THE PEOPLE’S TERMS (2013); and David Runciman’s historical-cum-theoretical diagnosis of modern democracy in THE CONFIDENCE TRAP (2013). A noteworthy feature of these new works, for those not necessarily enamored with the intramural debates of political theorists, is the move away from ideal toward non-ideal theory in the hopes of tying the mechanisms of institutional design to normative epistemological and moral concerns. This, then, is democratic theory built on premises seeking realism, engaging with empirical social science, and attentive to the intellectual resources necessary for social reform.
Enter Jon Elster, who in earlier work helped to re-invigorate Marx in the 1980s, supporting the development of analytical Marxism (1985), went on in the 1990s to provide intellectual firepower to the development of deliberative democracy (1986, 1993, 1998), and most recently developed a sustained critique of the more robust ambitions of social science (think rational choice theory) to explain social behavior (2007), having published some twenty-three books in all. Growing out of lectures Elster delivered at the Collège de France between 2008 – 11, SECURITIES AGAINST MISRULE thus represents the work of a mature scholar and a major intervention in the new literature on democratic decision-making.
The core claim of the book is that ambitious normative theories of collective decision-making that seek to design institutional mechanisms for tracking an independently definable good, or a procedure for selecting reliably good decision makers, are unavailable to us. Yet what appears at [*533] first a bleak conclusion – “What then are we to do if we cannot design institutions to produce ‘good decisions’ or pick out ‘good decision makers?’” – need not leave us at sea. When designing institutions of collective decision-making (whether jury trials, political assemblies, or electoral systems) we ought seek not to design institutions that “produce good outcomes,” but rather, adopting a phrase from Jeremy Bentham, to design institutions that “provide securities against misrule.” Doing so, Elster suggests, secures us against institutions that might otherwise, again quoting Bentham, “prevent the development of [our] liberty and… intelligence.”
In this review, given the range and depth of Elster’s arguments in support of the above contention, I shall limit my comments to the features of his work that may be of particular interest to readers of the LAW AND POLITICS BOOK REVIEW. To that end, I focus on Elster’s chapter on trial juries, the role of constitutional assemblies and their relationship to constitutional design, and his endorsement and modification of John Hart Ely’s well-know justification for judicial review as democracy reinforcing (Ely 1980). While Elster discusses the last point only briefly, his suggestion here seems promising, potentially representing a research opportunity for students of law and politics, and thus is mentioned in this review.
Elster’s second chapter, “Ignorance, Secrecy, and Publicity in Jury Decision Making,” examines the question of “Who knows what and when, in a jury trial?” A focus on that question, Elster suggests, allows us to see a range of institutional mechanisms that might be put in place to ensure secrecy or publicity, knowledge or ignorance, at the right places and times to screen jury decisions from “interest, passion, prejudice and bias” (p. 100). With this framework in place, Elster’s chapter considers, first, the composition of the jury from the creation of a master pool, through the selection of a panel, to formation of the jury itself, and then second, the dynamic of the trial from the examination of witnesses, the instruction by judges, and the deliberation and votes of jurors. Elster’s conclusion: we ought not screen jurors for preexisting bias, prejudice, or personal interest, thereby indirectly attempting to shape the jury to reach “good” outcomes, but rather “we should screen the information on which they base their decision, as well as insulate them physically from bribes and threats” (p. 141). To that end, Elster’s examination results in a series of institutional recommendations: combining ex ante secrecy and ex post publicity of voting in juries; enforcing a ban on the sale and serving of liquor to jurors; seating jurors in unadorned rooms; selecting jury forepersons by secret ballot; offering jurors information in ways that minimize cognitive bias; disallowing knowledge of a defendant’s previous criminal record; and delaying jury trials in highly publicized cases (p. 272).
Like trial juries, but unlike legislatures, constitutional assemblies are not ongoing institutions for collective decision-making, but one-off bodies. After briefly laying out several classic reasons for placing constitutional constraints on governmental power – “the need to prevent those in power from using their power to keep their power” [*534] and the prevention of civil war via a focal point principle – Elster focuses in chapter four not on the task of designing a constitution, but rather on the question of how one ought to design a constitutional assembly. This approach, in part, follows from the central thesis of the book: we cannot define the concept of a “good constitution” via reference to some independently specified criteria of goodness, and thus cannot discover the optimal design of a constitutional assembly by first discovering what a “good constitution” is. Hence, as in the case of jury trials, Elster’s negative approach to collective decision-making leads him to focus on how to remove passion, interest, bias, or prejudice from the process. Yet whereas in the case of jury trials these ends were best achieved indirectly (because the direct attempt by legislatures, judges and lawyers to remove these influences in fact represents an attempt to shape the jury), in the case of a constitutional assembly, more direct mechanisms of securing against misrule are available. Elster counsels us to focus on promoting impartial decision-making, removing cognitive biases, and promoting the full-attention and concentration of constitution-makers (p. 202). Once in place, this framework is then applied to analyze the task of the constituent assembly, the location of the assembly, the secrecy or publicity of the debates and votes in the assembly, and, finally, the ratification of the constitution produced by the assembly. Students of comparative constitutionalism should find this chapter particularly enlightening, as Elster makes use of a range of historical examples, including periods of constitution framing for the German 1919, Japanese 1947, Italian 1947, and German 1949 constitutions, and incorporates discussions or points regarding the framing of United States Constitution as well as those of Columbia, Venezuela, Norway, Spain, and France, among others. And as is the case with the other chapters in SECURITIES this chapter contains several telling insights and brilliant associations. For instance, who knew that George Mason emphasized something like Rawls’ veil of ignorance to promote intergenerational impartiality and a rough approximation of the difference principle?
Now, as mentioned above, Elster’s general recommendation is that we seek to protect ourselves from the downside risks of designing institutions that harm us as citizens, rather than seeking to design institutions that produce good outcomes. “When we have done all we can to remove distorting factors from the decision-making process,” he says, “we should simply let the chips fall where they may and accept the outcome, whatever it is” (p. 281). But surely, the reader may object, there will ensue some decisions of juries or legislatures rendered so badly due to remaining distortions (this, after all, is non-ideal theory) that some mechanism is necessary to override them? Elster agrees and devotes a portion of SECURITIES’ conclusion to a discussion of “overriding” mechanisms. In the case of juries, Elster endorses Harry Kalven and Hans Zeisel’s (1971) claim in THE AMERICAN JURY that in “cross-overs” (cases in which the judge presiding over a case notes that he or she would have been more lenient than the jury) there should be an asymmetry in the role of the judge in acquittals and convictions of juries. This principle fits, Elster argues, within the [*535] framework of SECURITIES, empowering judges to set aside jury verdicts particularly in cases where decisions have been made by a simple or qualified majority of jurors.
In the case of legislatures, Elster’s recommendation is particularly suggestive. He extends John Hart Ely’s democracy reinforcing justification of judicial review as advanced in DEMOCRACY AND DISTRUST, which Elster sees as rightly procedural and thus negative in spirit in contrast to more positive, substantive justifications for judicial review. Yet procedural need not mean thin. Protecting against misrule requires robust procedural safeguards to “promote the active, moral, and intellectual aptitude of deputies”; nothing about this stipulation, in Elster’s view, fundamentally conflicts with Ely’s framework. Critics of judicial review influenced by Jeremy Waldron are not likely to be satisfied with this argument (Waldron 2006); neither will moral readers of the constitution influenced by Ronald Dworkin (1997). Both will think Elster has begged important questions, either by placing too much emphasis on procedural justifications for constitutional review, or failing to understand the substantive justifications that support the practice. Still, Ely’s argument remains influential, particularly among lawyers and judges. Elster’s modification, extension, and incorporation of it within his negative Benthamite framework of collective decision-making thus represent a welcome addition to debates on the nature and function of judicial review. Thus, scholars interested in ways of extending Ely’s argument are well advised to turn to Elster’s brief discussion as a springboard to further thought.
Elster clearly does not intend SECURITIES to be the last word on developing a negative, Benthamite approach to collective decision-making. And further work along one specific dimension appears necessary for the full force of his argument to be realized. To wit: Elster says he is doing normative theory and clearly believes that factual and causal information is necessary for normative inquiry, which, as I suggested at the outset, is a particular virtue of the current wave of democratic theory. But upon what causal and factual information his normative theory depends remains unclear. Take the case of the souped-up procedural justification for judicial review Elster suggests: exactly what factual and causal information is required by courts to monitor the democratic system? Here, then, is an opportunity for empirically oriented scholars of law and politics to flesh out the causal and factual information necessary to pursue a research program centered around the negative approach Elster recommends, be it within the jury, assemblies or elections.
While I have restricted my attention to aspects of SECURITIES AGAINST MISRULE that promise to be of particular interest to students of law and politics, a final feature must not be overlooked. Elster’s text is, quite simply, an intellectual delight – something rare in this age of hyper-publishing and the current scholarly predilection to be part of the “next new thing” – citing as it does the Leveler John Lilburn, Mn. De Staël, T.H. Green, Habermas, Proust, Shakespeare, Tocqueville, Pascal, and [*536] Schmitt, not to mention CITIZENS UNITED V. FEDERAL CAMPAIGN COMMITTEE (2010), BATSON V. KENTUCKY (1986), THE AMERICAN JURY, and a range of historical and empirical examples centering on jury trials, constitutional practice, and democratic theory. Here one senses the qualities of fluidity and dexterity that a lifetime of scholarship and intellectual engagement can engender, as Elster moves through the space of reason, plumbing depths, while nevertheless retaining a lightness of thought, not unlike his intellectual hero Montaigne or the jazz musician Lester Young, whom he discusses and so admires.
It may be the case that the necessary complexities of democratic government will continue to drive us to skepticism as to whether the procedures we design do in fact represent the will of the people. But if such worries continue to generate books as sophisticated, enlightening, and indeed delightful as SECURITIES AGAINST MISRULE, then perhaps we can continue to invest faith in our ability to work out rules and procedures that we can relate to collectively.
Dworkin, Ronald. 1997. FREEDOM’S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION. Cambridge: Harvard University Press.
Elster, Jon. 1985. MAKING SENSE OF MARX. New York: Cambridge University Press.
Elster, Jon. 1986. “The Market and the Forum.” In FOUNDATIONS OF SOCIAL CHOICE THEORY, eds. J. Elster and A. Hylland. New York: Cambridge University Press.
Elster, Jon. 1993. “Introduction.” n CONSTITUTIONALISM AND DEMOCRACY, eds. J. Elster and R. Slagstad. New York: Cambridge University Press.
Elster, Jon. 1998. “Deliberation and Constitution Making.” In DELIBERATIVE DEMOCRACY, ed. J. Elster. New York: Cambridge University Press.
Elster, Jon. 2007. EXPLAINING SOCIAL BEHAVIOR: MORE NUTS AND BOLTS FOR THE SOCIAL SCIENCES. New York: Cambridge University Press.
Ely, John Hart. 1980. DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW. Cambridge: Harvard University Press.
Estlund, David. 2009. DEMOCRATIC AUTHORITY: A PHILOSOPHICAL FRAMEWORK. Princeton: Princeton University Press.
Kalven, Harry and Hans Zeisel. 1971. THE AMERICAN JURY. Chicago: University of Chicago Press.
Knight, Jack and James Johnson. 2011. THE PRIORITY OF DEMOCRACY: POLITICAL CONSEQUENCES OF PRAGMATISM. Princeton: Princeton University Press.
Landemore, Hélène. 2012. DEMOCRATIC REASON: POLITICS, COLLECTIVE INTELLIGENCE, AND [*537] THE RULE OF THE MANY. Princeton: Princeton University of Press.
Pettit, Philip. 2013. ON THE PEOPLE’S TERMS: A REPUBLICAN THEORY AND MODEL OF DEMOCRACY. New York: Cambridge Press.
Runciman, David. 2013. THE CONFIDENCE TRAP: A HISTORY OF DEMOCRACY IN CRISIS FROM WORLD WAR I TO THE PRESENT. Princeton: Princeton University Press.
Waldron, Jeremy. 2006. “The Core Case Against Judicial Review.” THE YALE LAW JOURNAL 115:1346-1406.
BATSON V. KENTUCKY, 476 U.S. 79 (1986).
CITIZENS UNITED V. FEDERAL CAMPAIGN COMMITTEE, 558 U.S. 310 (2010).
© Copyright 2014 by the author, Patrick Peel.