The Advantage of an Assembly

The Burkean model of the legislator, Russell Hardin says, ‘owes its central conception to the prior form of government by monarch’.39 This is true; the legislator, like the prince, should reason and act for the common good, not for what citizens stipulate are their interests. Hardin argues that this

conception is inconsistent with ‘[t]he point of representative democracy [which] is to put these interests in contest to decide policy’.40 If each legislator is an enlightened monarch, Hardin argues, then they would all choose alike, which would make representation unnecessary. Thus, one might as well elect a monarch as an assembly; the only advantage of the latter, he continues, is that, by analogy to Condorcet’s Jury Theorem, it may be less likely than the former to make a mistake.41 Legislating well is no small advantage, to my mind, but Hardin does not explain adequately why an assembly is better placed to legislate than a prince. Also, he neglects the other good reasons for authorizing many Burkean legislators rather than just one to legislate. I now explain why one should authorize a

representative, deliberative assembly to legislate.

The assembly is less likely than the prince (or president) to be a tyrant. The assembly reasons and chooses in public and therefore legislators must justify their acts with arguments that at least seem to be in the interests of the community at large, which rules out various proposals they might otherwise advance.42 This ‘civilizing force of hypocrisy’, as Elster terms it, is valuable.43 It deters obvious abuses of power, grounds possible criticism of unjust legislation, and may even lead legislators to adopt sincerely the arguments they initially mouth.44 Reasoning in public discourages, even if it does not deter altogether, abuse of authority.

answered by forcing the prince to explain his legislative acts to a public gathering. More important is the distribution of legislative authority to many (often several hundred) persons, amongst whom it is held in common.45 Each legislator has a duty to act for the common good, as well as to speak for a particular constituency, to whom he is answerable at the next election.46 Each legislator thus has good reason to scrutinize proposals closely, objecting to injustice and proposing alternatives. Even if many legislators are corrupt, the difficulty of securing majority consent and the importance of election may restrain the naked pursuit of private good that characterizes the rule of the tyrant. If the people are corrupt and elect fools and rogues, then legislation by assembly may be tyrannical. This risk, while real, is less sharp than that posed by reliance on the character of one person, and his successors, whose moral character may be wholly unknown.47

Legislators have good reason to form parties to seek legislative objectives and to contest

elections. The political party is a response to and a form of strategic action. The action of parties is vital in any modern legislature, as I explain further in section IV below. The large number of

legislators in the assembly means that there is space in which parties may operate, whereas they are effectively irrelevant to the office of prince or president. The party is a purposive group that always intends to contest the next election and therefore the party has good reason to guard its reputation.48 The members of the party should, and are likely to, discipline one another, adhering to a common platform in a way that enables them to maintain electoral support. Thus, legislators who form parties are more trustworthy than any one of them alone.49 Parties help restrain self-serving legislative behaviour and the assembly is less likely than the prince to abuse its authority because it is open to parties.

The assembly’s structure also helps restrain tyranny by enabling the losing parties to share in the exercise of legislative authority. The minority cannot formally check the united majority, but it may constantly monitor and critique the majority from a position inside the institution that exercises authority.50 And the minority’s location in the assembly, engaging directly with the majority at each stage of the legislative process, means that it is able to present itself as an alternative ‘majority in waiting’, thus maintaining the electoral constraint on the majority throughout the legislative term.51 The active presence of the minority and the size of the assembly also make it unlikely that legislators will attempt to exempt themselves from the laws they enact. This is a live possibility for a president, who may take his office to distinguish him from citizens, but is less likely for the many legislators who identify more closely with the community.52 The subjection of legislators to the rules they enact sharpens deliberation and makes self-serving legislation less likely.

I conclude that sharing legislative authority amongst many legislators rather than conferring it on one person is an important check on tyranny. Locke overstates the case only a little when he says that the people ‘could never be safe nor at rest, nor think themselves in civil society, till the legislature was placed in collective bodies of men, call them senate, parliament, or what you please’.53

The assembly is a lawmaker that is structured to bring forward and to consider the interests of citizens and to permit as many citizens as possible to share in legislating. The large number of legislators makes it possible for a range of perspectives and arguments to inform the legislature’s deliberation. Instead of periodically choosing who is to be prince, citizens choose representatives whom they think likely to legislate well, perhaps in part because of the candidate’s personal record of judgment or achievement, as well as because of the party to which the candidate belongs. When

of persons whom the electors think show sound judgment, then the citizens’ case is made in the

legislative process. The case will often not be decisive, yet it is still valuable that the arguments that citizens find persuasive have been made. Crucially, the arguments are made in the forum that decides: they inform deliberation and are live, not just symbolic, contributions to the process.54

The large number of legislators is relevant to how citizens relate to them. Whereas the prince or president is the decision-maker—the political superior—each legislator is just one person amongst the many who share in decision-making, none of whom have authority to legislate until they persuade the legislature to act as one.55 It follows that citizens may approach the legislative assembly not as supplicants but as participants once removed, setting out reasons for legislators to argue in this or that way. Kutz argues that the large number of legislators, together with their democratic credentials, makes it possible for citizens to understand themselves as participants in the assembly’s deliberation in a way that is not possible where a much smaller group acts.56 I would add that part of the point of the representative assembly is to make it possible for citizens to identify with the reasoning and action of a group to which they do not formally belong. The group understands its reasoning and action to be for the community and to some extent to be by the community, in the person of those representatives whom the electors have selected to serve. The assembly is thus a forum that is open to the community and authorizing an assembly to legislate is consistent with the political equality of all citizens.

The sheer number of legislators itself also increases popular participation. Waldron doubts this, arguing that as far as participation is concerned the difference between one and several hundred legislative offices is insignificant in a large community.57 I disagree. It is fundamental to democracy that anyone may contest election for public office. The opportunity for the ruled to serve as ruler is valuable. A polity that elects one person to legislate has much less competitive politics and is less open to community participation than a polity that elects members of an assembly. The implicit criterion for electing a sole legislator is that he is best, the most fitted to be prince. Electing one of several hundred persons, none of whom is to be prince, is different. The electors reasonably choose someone who will act for their interests and contribute ably to the legislative process. Membership of the assembly is a much more open prospect to all members of the community than is election as

president. The barriers to entry are lower and the skills required are different, because the whole burden of legislating does not fall on one individual.58

Electing legislators in a contest that is open to all to compete, and in which all persons have the franchise, respects the equality of all persons. The electors and the elected are not separate classes of person and the latter’s entitlement to exercise authority turns on the decision of the former. The

community needs authority, so each person should support whoever has the basic capacity to direct others and acts for the common good.59 However, there is good reason to introduce a structure of authority in which those who exercise authority are chosen periodically by those they direct and where any person may compete to exercise that authority. This alternation of legislators is a means to hold them to account, forcing attention to be paid to the common good.60 The process may of course fail, with a corrupted populace acting to punish and remove legislators who act for the common good rather than for private (if widely held) interests.

The assembly has the capacity to secure consent.61 The assembly’s openness to argument and capacity to represent difference mean that authorizing it to settle what is to be done is a fair way to legislate in a divided community.62 The reasonable person should authorize an assembly to legislate, if political circumstances make this feasible and if the assembly is likely, or at least as likely as

alternative possibilities, to legislate well. Members of the community are likely to accept as

authoritative decisions made by a body that respects their views and extends them an opportunity to participate in deciding what is to be done. The capacity to secure consent is valuable not because consent grounds political legitimacy but because an institution that people accept and support has the say-so necessary to posit law. Further, securing consent maintains the stability of the legal and

political system, which serves the common good.

An assembly may be better placed than the prince (or president) to legislate well, choosing well in response to reasons for changing the law. The large number of legislators means that the legislature is well placed to find facts. The many legislators know, and may discover, certain facts directly.

Different legislators may also be able to respond intelligently to various types of information. For example, a legislator who has been a doctor, while not an expert on all things medical, is well placed to question medical experts or reports, just as a legislator who has been an economist may better address economic consequences or arguments. The assembly features multiple intelligences, many of whom are able to scrutinize closely a particular proposal, while their fellows work on other

proposals. The size and diversity of the assembly enables an informal and partly formal (committees) division of labour to take place, which permits the assembly to reflect in more detail and on many more proposals than would be possible for a sole legislator.63 Further, the number of legislative offices reduces the pressure for term limits and makes it possible for legislators to pursue a career in politics and to specialize in certain issues.64 It is likely then that a large assembly has greater capacity than a single individual to find facts and to respond to them intelligently.

Argument in the legislature about particular proposals may inform and clarify decision, forcing legislators to confront unforeseen problems. Legislators may challenge or qualify proposals, adding new perspectives to the reasoning process. The division in the assembly forces a defence of a

proposal in the face of opposition. Not all reasoning is done within the assembly, and certainly not on the floor of the house. Persons outside the assembly may reason like a sole legislator, articulating proposals fit for enactment: private citizens, interest groups, and government bodies all act in this way. They may put their reasoned proposal to a legislator who should, if he judges it sound, seek to put it before the assembly. Again, the size and diversity of the assembly opens multiple channels for reasoned contributions to the process, and for ongoing community participation in what is to be done.

The legislative assembly thinks in public for the community. Its open deliberation is central to that process, not so much because that is where the thinking has to be done as because it is an opportunity to present arguments, raise issues, and request clarification, all as a prelude to a decision by the legislators as to what is to be done.

The assembly divides legislative power amongst several hundred persons, although its exercise is corporate and the act of the legislature is the act of a single institution, a unified agent. What this means is that the possibility of compromise, of adopting and responding to the views of multiple persons, is built into the decision-making process. The prince has reason to take into account the views of his subjects, and sometimes to adopt a position that is a compromise. However, the

legislative process by which an assembly acts is structured to permit multiple inputs, thus moving the interests of the community from outside the deliberating body (to whom they are relevant but not constitutive) into the deliberating body. Thus, the person doing the reasoning is now an artificial person, the community personified in the assembly. This capacity to reason and to act in response to reasons explains why I insist that the assembly must have authority to propose, amend, and shape proposals. If the assembly simply affirms or declines to affirm the proposals of another, then it is a

check on someone else’s legislative capacity, rather than the body that chooses what is to be done. An assembly that was structured in that way would not be a legislature (in anything like a focal sense).