Popular Rule without Popular Sovereignty

Abstract

Hélène Landemore's Open Democracy (2020) offers both a normative conception of popular rule and an institutional schema intended to advance it. This schema is grounded in a normative conception of popular rule that associates democracy with the values of inclusion and equality. But this association misses a historically important dimension of popular rule—popular sovereignty—which requires the people as a whole to play a critical part in decision making. Landemore's dismissal of popular sovereignty informs her institutional schema, which relies upon both sortition and self-selection. It leaves no significant room for the people as a whole to act, either directly (via referenda) or indirectly (via election). Landemore never explicitly defends this dismissal of popular sovereignty from her conception of popular rule. Given the historical importance of this dimension of popular rule, and its continuing intuitive appeal, any such dismissal requires careful justification.

The subtitle of Hélène Landemore's book Open Democracy (2020) is Reinventing Popular Rule for the Twenty-First Century. By this Landemore intends two things. On the one hand, her book offers a new “institutional paradigm of popular rule,” one that is “primarily non-electoral yet (more) democratically representative than any existing form” (Landemore 2020: xvii). This institutional paradigm places lottocratic representation, via randomly selected minipublics, and self-selected representation, via new forums for volunteer participation, at its heart (ibid.: 80–81). But on the other hand, Open Democracy also offers “an alternative normative conception of popular rule, one true to the democratic values of inclusiveness and equality, and one we can use to imagine and design more participatory, responsive, and effective institutions” (ibid.: xviii).

Much of the conversation surrounding the book has focused upon Landemore's proposed institutional paradigm (see, e.g., Mansbridge et al. 2022). This article, however, will focus upon her “alternative normative conception of popular rule.” This conception, I will argue, represents a radical revision to the concept of popular rule. While it contains many elements of the concept as traditionally understood, it omits one critical element—what I will call popular sovereignty. ¹ This omission is a critical one, and Landemore's case for her proposed institutional paradigm stands or falls based upon it. Put another way, a system based upon lottocratic and self-selected representation will most likely appeal to those who can envision popular rule without popular sovereignty, whereas those who cannot do this will view such a system with justified suspicion.

Landemore's normative conception deserves sustained attention precisely because of the radical nature of her institutional paradigm. Most advocates of randomly selected minipublics have seen them as useful contributors to a political process that remains dominated by more traditional democratic instruments—notably, an elected legislature. Even James Fishkin, long one of the most ardent advocates of minipublics, believes they work best as “a supplement to our lawmaking process” (Fishkin 2018: 360). Those advocating for stronger uses of minipublics typically envision such a body supplanting one house of a bicameral elected legislature (e.g., Abizadeh 2021; Barnett and Carty 2008; Callenbach et al. 2008; Gastil and Richards 2013). Stronger than this are proposals to replace elected legislatures entirely with minipublics, with the legislative process either entrusted to a single such minipublic or distributed among a number of them (e.g., Bouricius 2013; Burnheim 2006; Guerrero 2014; Hennig 2017; Van Reybrouck 2016). Landemore's institutional proposal places her firmly in the last of these camps. Proposals of this nature have attracted fierce criticism (e.g., Landa and Pevnick 2021; Umbers 2018), and so any attempt to place such proposals on an innovative normative footing deserves careful scrutiny.

Section 2 of the article lays out Landemore's normative conception of popular rule. It stresses that her critique of electoral democracy and her embrace of lottocracy and self-selection both rest upon her placement of inclusion and equality at the heart of democracy. Section 3 argues that Landemore equates popular rule with inclusion and equality, and thereby neglects other important aspects of popular rule—notably, what I will here call popular sovereignty. Section 4 examines the connection between popular sovereignty and both election and referenda, mechanisms that Landemore wishes to de-emphasize if not actively avoid. Section 5 concludes by suggesting there are good reason to be wary of dismissing popular sovereignty as a democratic value, reasons recognized by many proponents of minipublics and (occasionally) by Landemore herself.

Open Democracy, Equality, and Inclusion

“Democracy, means, etymologically, ‘people's power.’” So declares Landemore at the start of the introduction to Open Democracy. She immediately adds that “As a regime form, it means rule in which all can share equally” (Landemore 2020: 1). What passes for democracy in the world today—indeed, what has passed for democracy over the past two centuries—fails to live up to this standard. “People,” she writes, “throughout the Western world (and beyond as well) resent and distrust their political personnel and institutions precisely because they fail to deliver the promise of democracy: demokratia—people's power” (ibid.: xiii). This failing predates the current “democratic malaise,” characterized by antidemocratic strongmen such as Trump, Orbán, and Erdogan (cf. Geissel and Newton 2011). Indeed, it has been with modern representative democracy from the beginning. It is bound up in the modern move to equate representative democracy with electoral democracy.

Why does Landemore object to this move? Electoral democracy grants something meaningful to all citizens equally—the right to vote. But this right conveys something significantly less than the ability to rule. The real decision-making power rests with the elected, not with the electors. Electoral democracy “has historically consisted in privileging the idea of people's consent to power over that of the people's exercise of power” (emphasis in original; Landemore 2020: xiv). While it may be “radical in comparison to regimes in the eighteenth century, such a system is far from entitling all equally to participation in the polity's decision” (ibid.: 34). Electoral democracy “has by construction exclusionary effects in terms of who gains access to power. These exclusionary effects are not contingent and cannot be fixed a posteriori” (ibid.: 23). Even relatively participatory models of electoral democracy, such as that of Nadia Urbinati (2006), cannot change this fact, as they still deny “any form of direct access to the formal decision-making process of agenda-setting, deliberation, and most decision-making” to ordinary citizens, confining it to “elected elites” (Landemore 2020: 36, n. 17). Modern democracies may “have extended political rights and citizenship to a number of people who would have been excluded under the premodern arrangements. . . . Yet many have the feeling in modern representative democracies that even among the legal demos ordinary citizens are left out of the most important sites of political power, while the political personnel form an elite separate from them” (ibid.: 2). Landemore calls this the “enclosure of power,” and sees it as the critical failing of contemporary so-called democracies (ibid.: 3).

In place of the closed democracy offered by elections—a system Landemore barely recognizes as democratic at all—Landemore offers open democracy. This represents a return to the original understanding of democracy. According to Landemore, democracy in the past “was ‘open.’ In theory, any individual qualifying as a member of the political community . . . could access the center of power and participate in the various stages of decision making. Citizens could literally walk into the public space to be given a chance to speak and be heard. Once you were counted as a member of the demos, or a citizen, in other words, you were in” (emphasis in original; Landemore 2020: 2). In an open democracy, there is no enclosure of power. Taking part in the political process—even the most important parts—is easy: you only have to ask.

But Landemore's call for open democracy faces a gap between principle and execution. Perhaps modern democracy “is blatantly failing to measure up to the idea of a regime that includes all equally in policy decisions” (Landemore 2020: 30). Landemore sees lottocracy²—an increased, if not exclusive, reliance upon randomly selected assemblies as voting bodies—as the solution to this problem. And yet lottocratic institutions equally fail at including all equally in these decisions. Indeed, any institution that denied any citizen access to any stage of the policy-making process must fail to live up to this ideal. And could there ever be a system that permitted everyone access to every stage of that process?³ Landemore is not a fan of Rousseau, but I would think she would share Rousseau's conclusion that “So perfect a government is not suited to men” (Rousseau 1987: 180).

For Landemore, what sets lottocracy apart from electoral democracy—what renders the former, but not the latter, compatible with open democracy—is not the fact of exclusion from power by itself. Both systems do this.⁴ The real problem with electoral democracy is that it gives only a certain segment of society—what Landemore calls “elites”—a realistic chance of taking part in the central stages of political decision making. By “elite,” Landemore refers to “a socioeconomic group of privileged people” (2020: 18), but the precise definition of this group is not important. What matters is that some people (due to wealth, education, connections, etc.) can access these stages of the political process much more readily than others. This is simply an acknowledgment that electoral democracy functions in accordance with a principle of “distinction”; if you want to be elected, there must be something about you that distinguishes you from everyone else (Manin 1997).

Electoral democracy thus provides “a form of elite rule in contrast with rule by ordinary citizens” (Landemore 2020: 4). “Electoral representation is not ‘open’ to all on an equal basis but is at best overly accessible to some (the ambitious, connected, wealthy, charismatic, etc.)” (ibid.: 89). The result is a “separation of a ruling elite of elected officials, appointed courts, and administrative bodies on the one hand and the mass of ordinary citizens on the other” (ibid.: 38). By contrast, a truly democratic system—an open system—is “expressive of the fundamental democratic values of inclusiveness and equality” (ibid.: 88).⁵

Inclusiveness and equality are for Landemore the “basic pillars of democracy” (Landemore 2020: 211; see also 92, 213). “[W]e can,” she writes, “evaluate the democratic character of a representative assembly or position—its ‘democraticity’ in my vocabulary—in terms of the degree to which access to that assembly or position is inclusive and equal (or fair)” (ibid.: 81–82; see also 86–88). A political system is democratic for Landemore if and only if people access political office in it on the basis of inclusiveness and equality. In making this move, Landemore is in good company; many political theorists would characterize democracy in similar terms. In their famous paper, “A Systemic Approach to Deliberative Democracy,” for example, Jane Mansbridge et al. argue that deliberative systems must fulfill a democratic function (among other functions). Accomplishing this task requires the deliberative system “to promote an inclusive political process on terms of equality” (Mansbridge et al. 2012: 12).⁶

Random selection guarantees that each individual will have an equal chance of selection. Election, by contrast, is designed to select individuals who somehow distinguish themselves from others, even if it leaves it to the individual voters to identify which distinctions they find relevant. Lottocracy thus advances inclusion and equality in ways that electoral democracy cannot. It is for this reason that the fact that both lottocracy and electoral democracy allow some, but not all, to access office does not imply that no relevant difference exists between them. Or, as Landemore puts it, “The view that lotteries are the ultimate democratic selection mechanism rests on a sound conceptual basis. Lotteries express a strict principle of equality as well as a principle of impartiality between citizens. Random selection, unlike election, does not recognize distinctions between citizens, because everyone has exactly the same chance of being chosen once they have been entered into the lottery” (Landemore 2020: 90). Lottocracy makes offices open to all in a way that electoral democracy cannot, which is why Landemore regards the former as more appropriate for an open democracy than the latter.

Popular Rule and Popular Sovereignty

Open democracy, with its reliance upon self-selection and sortition, might be said to advance inclusion and equality better than electoral democracies. But does that mean that it also better advances popular rule? Landemore seems to think so, although her position is not clear. On the one hand, she regards popular rule as important. “My original contribution,” she writes, “is to specify the institutional principles that a genuine democracy would instantiate if it were to qualify as genuine popular rule” (Landemore 2020: 19). For her, “open democracy is a more faithful instantiation of the ideal of popular rule. It simply approximates more closely the democratic ideal of people's power” (ibid.: 220). On the other hand, she sometimes suggests it is an empty concept, adding little or nothing to inclusion and equality, which she regards as the core democratic values. Nowhere is this plainer than in her treatment of the idea of popular sovereignty, which she seems to regard as synonymous with popular rule. She writes: “Popular sovereignty is a principle of legitimacy whereby the will of the people is the sole source of legitimate authority. This ideal is both sublime and somewhat vague. . . . Augmented with the ideals of self-rule and equality, however, popular sovereignty conjures up a more demanding type of rule. Self-rule means that individuals are entitled to participate in making the laws that bind them. Equality means that they should be able to do so on equal terms” (ibid.: 6). She further equates popular rule with “empowering all members of the demos equally, and in particular giving them all an equal right of access to the deliberation shaping the laws and policies that govern us all” (ibid.: 8). In short, it appears that for Landemore popular sovereignty means inclusion and equality if it means anything at all. It demands nothing of a political system but that it advance these two values.⁷ She may claim, at one point, to offer “an alternative normative conception of popular rule, one true to the democratic values of inclusiveness and equality” (ibid.: xviii), but that conception seems simply to equate popular rule with those very values.

Could popular rule involve anything apart from these two values? Landemore's treatment of popular rule suggests a positive answer. On the first page of Open Democracy, she inquires, “what does popular rule mean, practically?” She then immediately gives a series of examples—the Athenians “gathering in a public space . . . and making laws;” the Vikings “gathering every summer in a large field south of Reykjavik known as Thingvellir, the place of their annual parliament”; the Swiss canton members “participating in open-air assemblies”; and the Puritans of New England “determining their common fate at regular town hall meetings” (Landemore 2020: 1–2; see also 220). All of these examples are “open”; all of them embody the values of inclusiveness and equality. But they also embody something more. All of them also involve the people—the citizenry as a whole—acting collectively, as a body. Landemore's demand for inclusion and equality fails to capture this dimension of popular rule.

I call this dimension popular sovereignty, to distinguish it from the broader concept of popular rule that Landemore has in mind. By this term, I refer to the idea that the citizen body as a whole—the demos—should play a central role in the political system. This body should be sovereign—the supreme authority—or at least one of its central guiding forces, playing a pivotal role in political decision making.⁸ The idea should be familiar to any reader of Hobbes, who saw the people as a viable, though inferior, repository for sovereign power (Hobbes 1985: ch. XIX). It should also be familiar to any reader of Rousseau, who rejected the idea that a polity's lawmaking authority could rest anywhere except in the citizen body as a whole.⁹

Election, Sortition, and Popular Sovereignty

Most contemporary democrats accept something like the idea that sovereignty rests with the citizen body as a whole—the demos. For some range of decisions, the demos must act, either directly through referendum or indirectly by delegating its authority to a group of elected representatives.¹⁰ But Landemore embraces neither of these moves. As noted before, her attitude toward election is almost uniformly negative. At times, she acknowledges that electoral democracy shares with open democracy “a basic commitment to equality and inclusiveness” (Landemore 2020: 144). But more typically, she suggests that “many regimes we call representative democracies [i.e., democracies grounded upon election] are hardly democracies in the genuine sense of the term and are de facto usurping the term. Instead, these regimes should be seen for what they are, elected oligarchies of sorts, where the popular component is highly constrained and does not translate into adequate rule by, of, and for the people” (ibid.: 19). It may prove impossible, even for an open democracy, to dispense with elections entirely, especially for the executive (ibid.: 145). Moreover, “it is possible to imagine elections falling closer to the democratic end of the spectrum than they currently do on the continuum between oligarchic and democratic devices.” But elections are, in an open democracy, at best a necessary evil, and “One could in fact imagine democracies that would dispense with elections entirely, if elections proved too difficult to reconcile with equality of opportunities to become an elected representative (implied by the equality principle)” (ibid.: 141).¹¹

Landemore's attitude toward referenda is more complicated.¹² She says it would be wrong to “suggest that referendums would not be part of an open democracy.” This is because they are “indispensable expressions of popular will” (emphasis added; Landemore 2020: 149). Their role in open democracy is “[a]n important one, no doubt, though not necessarily a frequent one” (ibid.: 150; see also 205). Unfortunately, Landemore never spells out what this role is. Moreover, she never explains whether referenda provide a better “expression of the popular will” than lottocracy does—or why, if referenda do not provide a better such expression, they are “indispensable.” What is clear is that Landemore refuses to reserve any specific decisions (constitutional decisions, for example) for referenda; rather, she is content to allow an open democracy to identify the role for referenda itself. If an open democracy saw little or no role for referenda, so be it. This hardly makes referenda sound “indispensable.”

Landemore's open democracy, then, has no demonstrable need for referenda, and an active need to avoid elections. And yet elections and referenda both provide a mechanism for appealing to the people as a whole—directly in the case of referenda, indirectly in the case of election. Whatever their other limitations, both mechanisms result in decisions that could in a non-trivial sense be said to be made by the demos—by the “people.” To marginalize both referenda and election is to sideline the people as a whole.¹³

Landemore fully embraces the sidelining of the people in this sense. Consider, for example, her treatment of the American Founding Fathers. According to Landemore, the American Founders “explicitly presented as a superior feature of their intended republic the fact that it was not meant to rest on demos-kratos, or people's power, but instead on the power of elected elites” (Landemore 2020: 4). In support of this claim, she quotes James Madison's boast that the US political system was characterized by “the total exclusion of the people in its collective capacity from any share in” government (quoted in ibid.: 4). Landemore regards this fact as a sign that Madison's representative system had weak democratic credentials. But the system Madison established now provides the American people as a whole with the collective role of selecting members of Congress directly and the president indirectly. Landemore does not reserve even this (circumscribed but still meaningful) role for the people as a whole in open democracy. In that regard, she could be said to out-Madison Madison.

There is, of course, an obvious and important difference between Madison and Landemore. The former actively wishes to exclude the people as a whole from the political process. The latter has no such desire; she is not a “demophobe” in that sense (Mansbridge et al. 2022: 8). Rather, she offers a conception of democracy that provides no obvious place for the people in the political process. Open democracy demands inclusion and equality. Lottocracy (together with self-selection) provides inclusion and equality. How, then, could the democratic demand for anything else arise? Why would appealing to the people as a whole, directly or indirectly, ever add anything? Open Democracy never answers this question.

Conclusion

Some democratic theorists advocate a strong role for randomly selected minipublics in the political process. Landemore is firmly in this camp. Others reject this move, favoring a weak role for minipublics or else none at all.¹⁴ And critically, both sides in this dispute ground their positions in democracy. Whereas some theorists see minipublics as an advance for democracy, others (e.g., Chambers 2009; Lafont 2015) see them as a retreat. How can minipublics generate such strongly opposing reactions? Landemore's argument, I believe, makes one contributing factor very plain. While minipublics can enable inclusion and equality, as Landemore recognizes, they do not enable popular sovereignty. To assign minipublics a central role is to push the people, as a collective body, aside. Those who can accept this will happily assign minipublics such a role; those who cannot accept this—those who see democracy as requiring popular sovereignty—will shy away from such a move. Consider, for example, John Parkinson's remarks on deliberative systems. Parkinson suggests that whatever the virtues of deliberative innovations like minipublics, they are only democratic if their decisions “are subject to formal legitimation either by representatives under a regime of authorization and accountability or directly through referendums” (Parkinson 2018: 436). The people as a whole must be given the last word, directly or indirectly.

None of this, however, answers the question of whether Landemore is correct to sideline popular sovereignty as a core democratic value. Perhaps inclusion and equality represent fully the core values of democracy. In that case, a lottocracy is the answer to every democrat's dreams, and there is no need to worry about tradeoffs against other democratic values. There is also no need to worry about instruments of direct democracy such as referenda. Before accepting this conclusion, however, it is worth inquiring whether popular sovereignty can so readily be cast aside. Are there reasons for believing that something as lost when the people as a whole are never consulted, no matter how inclusive and egalitarian the decision-making methods that stand in for them?

Even many proponents of minipublics seem to think such reasons exist. Consider again the work of James Fishkin. As noted before, Fishkin would not replace elected bodies with randomly selected ones, although he regards the latter as valuable supplements to political decision making. Fishkin acknowledges three core democratic values: deliberation, political equality, and participation (2009: 33).¹⁵ Minipublics score well in terms of deliberation and political equality but fall well short in terms of participation. By participation, Fishkin means “mass political participation”—“behavior on the part of members of the mass public directed at influencing, directly or indirectly, the formulation, adoption, or implementation of governmental or policy choices” (ibid.: 45). In other words, decision making (direct or indirect) by the people as a whole. But Fishkin offers no sustained defense of participation as a democratic value; he merely suggests that it “signals a form of mass consent” (ibid.: 46). The difficulties of equating political participation with consent, however, are well-documented.

Clearly, however, the idea that popular sovereignty is of democratic importance is widespread, and some recent discussions of political participation provide reasons for thinking this. Consider, for example, Emilee Chapman's defense of compulsory voting. Chapman grounds this defense in “the distinctive and valuable role that periodic moments of approximately universal participation play in contemporary democratic practices.” Such moments serve several essential purposes in a democracy. They “guard against political disengagement and alienation by defining concrete expectations for participation;” they “create a relatively attentive audience to whom political leaders and activists can address political claims, facilitating the introduction of new issues and the contestation of existing political divisions;” and they “make the political involvement and formal political equality of all citizens manifest” (emphasis in original; Chapman 2019: 103, 104). Low turnout in elections create something meaningfully less than a periodic moment of universal participation; how much worse is the situation when the moment disappears entirely?

Even Landemore herself is equivocal on the loss of popular sovereignty as a democratic value. At times, she seems straightforwardly to disregard it. At one point, for example, she distinguishes open democracy from electoral democracy by describing the former as “representative (indirect) rule by ordinary citizens” (Landemore 2020: 4). What matters is who rules—what type of person holds power (elites versus everyone)—and not how many hold power at any one time. “The democratic credentials of citizen representation in open democracy moments come not from mass participation but the fact that the representatives tend to be ordinary citizens as opposed to professional politicians (i.e., elected representatives)” (emphasis added; ibid.: 75). For Landemore, rule by a small subset of the citizenry is not necessarily a problem, so long as that subset does not represent an elite—so long, in order words, as it is compatible with inclusion and equality.

Elsewhere in Open Democracy, however, Landemore distinguishes between democracy and democratic legitimation. Democratic legitimation occurs when those in power “have at a minimum been authorized by at least a majority of the people they claim to represent” (Landemore 2020: 107). An undemocratic institution (such as an elected legislature) could thus be democratically legitimate if it is approved by a majority of the people (ibid.: 106); conversely, a democratic institution (such as a system of deliberative minipublics) would not enjoy democratic legitimacy if no popular majority ever authorized such a system. It is unclear why democracy and democratic legitimacy should ever come apart like this, but one thing seems clear: democratic legitimacy rests upon popular sovereignty, upon the action of the people as a whole. And presumably a loss of democratic legitimacy is a significant cost democracies should avoid incurring.

If popular sovereignty is indeed a democratic value—as even proponents of sortition seem to acknowledge, and Landemore has difficulty repudiating outright—then the question becomes what its realization requires. While the people as a whole presumably cannot be asked to take part in all stages of decision making all the time—something Landemore readily acknowledges as impossible—they also must presumably do more than authorize the creation of a suitably inclusive and egalitarian political system (such as a lottocracy). The specification of the role of the people as a whole in a democracy must therefore rank high on the agenda of any democratic theorist; it is a role that even an open democracy must presumably respect.