Representation and Deliberation

An assembly is a certain kind of purposive group—a gathering of persons to some end7—and a legislative assembly is a group that meets to legislate together.8 For a group to be a legislative

assembly, it must have the capacity to deliberate and decide. In a small community, all adult citizens may meet—assemble—to decide what the content of the law shall be. They would legislate in their official capacity as members of this assembly, with the decision of the assembly settling how they would act as ordinary members of the community.9 The assembly of all citizens is the community acting for the common good. This community directly exercises self-rule, because its members, in association with one another, settle what is to be done.

For most communities, it is impractical for all citizens to assemble to legislate. This is an obvious conclusion, but it warrants careful explanation. There are far too many citizens to meet together in one location. More to the point, even if they were to assemble in some physical or virtual location, the resulting group would be far too large to deliberate intelligibly and to act together rationally. The members of this assembly of all citizens would be unable to talk to one another or to coordinate their action and so would be unable to form, evaluate and revise proposals for legislative action. Also, most citizens would not be sufficiently well informed to participate as equals in the assembly’s decision-making process. The members of a small community are more likely to have direct acquaintance with and thus to engage rationally with the limited number of issues that fall to be

decided. They are also likely to hold one another to account for how they vote,10 with the relative size of the community making each vote salient. In a large, modern society, by contrast, each vote is less decisive and legislative issues are complex, which entails that voters are rationally ignorant of the facts that are relevant to how one should legislate.11 I do not mean that most voters are fools,

unreasonable, or selfish, just that each voter is less well placed to participate in legislating than his counterpart in the small community; the former voter would also not be subject, as the latter is likely to be, to the discipline that follows from being publicly answerable for one’s vote.12

Voters in large, modern polities do settle various questions. Most importantly, they settle who is elected to office. The term electorate refers either to the body of voters eligible to vote or to those who do vote. The electorate, I contend, does not have the capacity to legislate. The electorate does not act at all, not even to settle who is to be elected to office. Voters, who together constitute the electorate, vote for a particular candidate or candidates (depending on the voting rule), sometimes in one national contest for a single office, but more often in a number of contests across particular

locales for a number of offices. The election is decided by aggregating votes. The electorate does not make one decision; it is just the body of persons whose individual acts are counted. The voters do not jointly elect a particular candidate. They participate together in a collective scheme for holding an election, in which votes are counted, with the aggregate of votes settling who is elected. It is quite misleading, for example, to say that the electorate chose to elect a hung parliament.

Voters may also settle the outcome of referenda. The approval of a proposal in a referendum may directly change the law. It would seem then that the electorate decides the referendum and in this way legislates. However, the electorate does not deliberate to decide and the electorate is not a body that is capable of giving reasons for its decision: its membership is too large and inconstant for the

members to jointly form an act in response to reasons. It lacks the procedures necessary for members to discuss what they should decide as a body. The rational limits on citizen time, interest, and energy also serve to make it the case that the electorate cannot deliberate and therefore, in the focal sense, cannot decide. Moreover, the electorate is not capable of ordering its decisions over time in the way that reason may demand.13 Each voter may reason, but the electorate is not a group that reasons and acts as one. Pettit concludes that the electorate is not conversable: it does not respond to reasons like a person and cannot be held to account for irrationality.14 The electorate cannot respond to reasons as reasons and so it cannot legislate. It may ‘decide’ in a series of referenda, but like the output of

Waldron’s voting machine, the set of ‘decisions’ is quite likely to be collectively irrational.15 I conclude that the electorate is not capable of legislating and is not a suitable candidate to replace the prince.

Direct democracy, where all citizens share in legislative authority, is in general unreasonable, I contend, unless the community is of a size where the electorate may form an assembly. This is not the

case in most polities and it follows that direct democracy is not an ideal that one should approximate as best one may. For the common good to be realized, some person or body within the community must legislate. That person or body has no natural right to rule but has authority because he or it acts for the common good. The obligation each citizen has to obey that which is enacted is owed not to the legislature but to one’s fellow citizens. This set of moral truths, Aquinas argues, is what it means to say that the legislature represents the community: it acts for the community to choose the law.16 It does not follow that the consent of the community is a condition of legitimate authority. The case for a representative legislative assembly is not that this institution approximates direct democracy,17 but that this institution is likely to exercise legislative capacity reasonably. The assembly is thus not a second-best alternative to direct rule by the electorate, but an improvement on rule by the prince.

Instituting an assembly shifts lawmaking authority from a person to a group. This group jointly exercises the capacity that the prince exercises alone. However, the assembly is not just a group, as is any committee or council. It is a large group that is structured to represent the community, not only in the important sense noted above—acting for the common good and having no natural right to rule—but also in the sense that it is drawn from the community. Its members are selected in such a way that the assembly acts not just for but also in some sense on behalf of all citizens. The reason for the large size of the assembly is that with several hundred members it is practical for individual legislators to

represent particular groups or districts.18 The assembly may ‘represent more accurately [than a president] the range of diversity in the polity and … foster closer connections between

representatives and voters’.19 While the assembly has many members, the point of the group, which is to legislate well, limits its size; the assembly would frustrate that point if it had thousands of

members.20 The representative assembly, by virtue of its size and membership criteria, is structured to reproduce the community in a form that can reason and act well.

Each member of the assembly is a representative. Membership criteria vary but include

democratic election, selection by lot, or holding a salient office or status (lord of the manor, burgher, or sheriff). The early practice of the English Parliament is instructive.21 The King summoned notable persons, religious and secular, to form one assembly. He directed the various political districts to send persons competent to consent on their behalf, to form a second assembly. Across the land, those subsidiary communities employed different selection procedures, including partly democratic

election, with those selected forming a second assembly. The point of the exercise was to form a body that was capable of giving the consent of the realm to the proposal of the King so that once that

proposal was adopted everyone would comply. It was judged critical that the assemblies speak for the different parts of the realm.

Membership of the modern assembly is largely settled by election;22 appointment is possible for a second, politically inferior chamber. The individual legislator represents some part of the community. He participates in the legislative process on behalf of that group, which is to say that he has a special responsibility to act to place their legitimate interests before the assembly. In the modern polity,

legislators very often form parties and contest elections in these parties. The legislator thus represents a constituency that elected him, forms part of an institution (the legislature) that represents the entire community, and belongs to a party that coordinates the actions of its members by reference to a shared manifesto and leadership.

The assembly does not fail to represent the community just because the set of judgments and

the voters. Electors choose representatives for reasons. The voters should not choose representatives to be mere spokesmen for public opinion, who translate voter preferences or judgments into votes in the assembly. They should choose a person, in their electoral district, whom they think competent to legislate well, where competence includes moral probity and sound judgment on public issues.23 Voters will of course assess candidates differently, choosing, other things being equal, the candidate who approaches public issues in ways that the relevant voter thinks sound. The voter has reasons for acting to elect this person and ideally the election will select a person who will legislate well. The point of election is to select the best candidate. The selection method is democratic, because all adult citizens share in it, but the criterion for selection is aristocratic.24 Thus, ‘elections [are] primarily … selection devices, which function to create what might be thought of as a democratically elite

assembly—democratic in its mode of selection but elite in its civic virtue and in its competence’.25 If the electoral system is sound,26 and voters choose well, the assembly will over-represent virtue, selecting persons who aim to, and are competent to, serve the common good. The prevalence of

disagreement in the polity also means that the assembly will be likely to include persons who share and reflect the range of different, credible political groups and views salient in the community. Each legislator forms part of the decision-making body and to some extent identifies with and has interests in common with the part of the community he represents. It follows that the assembly is a body that brings the interests and views of the community together, in the person of intelligent participants, in a forum that may deliberate and decide.

The assembly is a deliberative body. Its members meet to deliberate in public about what should be done and legislative proposals are introduced, debated, revised, and then finally adopted or rejected on majority vote. Authorizing an assembly to legislate means that the legislature reasons in public. The content and rationale of a particular legislative proposal has to be presented and

defended to the assembly. The legislators form and respond to proposals by finding relevant facts, which they discuss together, thinking about how best to resolve particular questions, and arguing about whether this or that proposal is fit to be adopted. Thus, the legislators reason like the prince, asking how they may exercise their authority to serve the common good. The prince reasons and chooses; the members of the assembly reason, argue, and then vote to settle whether they make this or that choice. The assembly hears different views, forces proposals to be defended, and makes law after reasoned argument.27

The initial selection of legislators frames, but does not exhaust, the assembly’s subsequent

argument and action. How the legislators reason and argue in response to particular questions settles how the assembly acts. The key difference between the assembly and the prince (elected or

otherwise) is that whereas the prince reasons and chooses alone, lawmaking by assembly enables a microcosm of the community, those selected by other citizens to be competent legislators, to continue to argue about what should be done. Election may result in a party winning a majority of seats in the assembly, so that until the next election the members of this party, if they act together, may settle what the assembly does. Yet even when the party is relatively unified, the assembly is starkly different to the (elected) prince. The electoral losers continue to participate in the legislative process, arguing with the majority about what should be done, presenting new facts and questioning proposals. All the legislators, who together represent the community as a whole, participate in an ongoing argument about how best to serve the common good. The majority, the electoral winners, enjoy an advantage in settling that argument, but they cannot dispense with it.

trustee, charged with exercising independent judgment, or a delegate, authorized only to execute the wishes of his electors. Both alternatives are species of representation.28 The reasonable legislator, I argue, should see that he is a member of a legislature, which acts for the common good by

deliberating about and acting on proposals. His duty is to contribute to the legislative process so that the assembly legislates well. The openness of legislative deliberation militates against the delegate conception, as does the extent to which legislative reason involves specification and detailed

response to contingent facts. The legislator cannot participate meaningfully without exercising his own reason and judgment in the assembly in response to particular proposals. However, the delegate conception is not without all force. An election may involve debate about particular proposals and— save in very exceptional circumstances—the legislator should not abandon an explicit commitment to the electors.29 Likewise, if he contests an election as a member of a party, the manifesto is a

commitment that he and the party should not lightly set aside. Burke’s argument is instructive:

If government were a matter of will upon any side, yours, without question, ought to be superior. But government and

legislation are matters of reason and judgment, and not of inclination; and what sort of reason is that in which the determination precedes the discussion, in which one set of men deliberate and another decide, and where those who form the conclusion are perhaps three hundred miles distant from those who hear the arguments?… Parliament is not a congress of ambassadors from different and hostile interests, which interests each must maintain, as an agent and advocate, against other agents and

advocates; but Parliament is a deliberative assembly of one nation, with one interest, that of the whole—where not local purposes, not local prejudices ought to guide, but the general good, resulting from the general reason of the whole.30

The assembly of elected representatives should deliberate to legislate. This requires the participants to be willing and able to act in response to reason, for the alternative is not deliberation, but a

negotiation amongst hostile parties. Interestingly, surveys confirm that most American legislators understand themselves to be trustees rather than delegates;31 legal philosopher Neil MacCormick, reflecting on his own service as a member of a legislative assembly, understood his role in the same way.32

Thomas Christiano argues that citizens should set the ends of legislative action, which he terms ‘aims’, while legislators determine the best means to those ends.33 Citizens must select ends, he says, because ‘those who choose the aims of the society are the ones who hold decision-making

authority’.34 The selection of means, he says, is not necessary for self-rule and requires technical, complex choice that citizens cannot make in advance. Christiano recognizes that ends may conflict and argues that citizens should also transmit judgments about priorities amongst ends. The ends of

legislative action are thus fixed at election. Parties are useful because they set out ‘packages of aims and trade-offs’, which citizens may choose.35 The function of the assembly, Christiano argues, is to find compromises when the aims of citizens differ and to determine the means to those aims.36 These are technical tasks, he says, requiring skill and expertise, but do not require legislators to second- guess the aims citizens have chosen.37

My argument in section II of chapter 5 suggests that Christiano’s proposed division of legislative labour assumes an atrophied account of legislative reason. One cannot legislate abstractly in isolation from relevant facts or argument about specific proposals. It would be unreasonable for citizens to stipulate ends to be sought unless those ends were so abstract, and subject to such wide

qualifications, that they did little to constrain legislative deliberation. The stipulation of ends in isolation from means-end packages would compel the legislators to adopt unreasonable means if no

reasonable means exist. Further, the specification of an abstract end very often involves reflection on other ends that may be realized or damaged in this process. Christiano’s limited conception of the assembly’s deliberation also unravels when one considers how legislators are to compromise competing ends. Reasonable legislators cannot aim to maximize realization of citizen ends, but will instead make the best they can out of the set of ends. That is, they will reason about what should be done, but will reason within the ends that citizens stipulate. At best then, Christiano’s argument reduces to an insistence on public reason, with legislators framing their choices by reference to arguments that have some traction in the community. This may often be prudent, but it is not a condition of justice: legislators in a complacent slave-owning polity have good reason to prohibit slavery even if no major constituency (assume that the disenfranchised slaves are a minority) adopts this as an end.38

The legislators need not be delegates for the electors to have real political power. The electors choose their particular representative knowing that that he sees the world in a certain way and belongs to a party that has a programme of legislative action. He does not betray their trust when he proceeds to reason and act in the common good; however, if he radically changes his previous

political views or party allegiance in fairness he should—save in very exceptional circumstances—