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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:

oliver.dowlen@sciencespo.fr

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The Diplock dilemma

The Northern Ireland (Emergency Provisions) Act of 1973 stipulates that

certain scheduled offences relating to terrorism should be subject to non-jury

trial, i.e. judgement of innocence or guilt should be left in the hands of a

single judge. This was one of a number of responses by the British

Government to the rapidly deteriorating situation in the six counties when

historical divisions between Catholic and Protestant communities, heightened

by partition and its consequent inequalities, burst into open conflict on the

streets in 1969. Protests escalated into riots, riots to mob-led progroms, mainly

against Catholic areas,1 and this in turn led to paramilitary action, both in

defence of the communities and in retaliation for earlier attacks. The British

army was deployed in August 1969, initially as peace-keepers, but

subsequently in a counter-insurgency role2; internment without trial for

terrorist suspects was introduced in August 1971; and direct rule from

Westminster imposed in 1972. By that time the troubles had escalated from

inter-communal violence to a chaotic near civil war situation. The nature of

the conflict was also changing. Initially it was based on the demand for civil

rights and the defence of the Catholic communities. Now it had become a

struggle between conflicting views on the nature of the six county statelet

itself: whether it should remain part of the United Kingdom or become part of

a new united Ireland.3 Thus the conflict began to have complex geo-political

overtones. This has an important bearing on how we assess the British

response.

Lord Diplock’s commission of inquiry that preceded the 1973 Act states that:

1 Callaghan (1973) p.74. 2 Lowry (1976) p.267 3 Ibid p. 266

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The rational basis of trial by jury is that a citizen should be tried by 12 of his fellow

citizens selected at random. This is not practicable in the case of terrorist crimes in

Northern Ireland. 4

The report then goes on to cite the political intimidation of jurors as the

main reason for this, noting that the main difficulty would arise from the

acquittal of loyalist paramilitaries by Protestant jurors but adds that the

converse, acquittal of nationalist paramilitaries by Catholic juries, could also

occur. At the time of the Act the pools for jury selection were subject to a

property qualification. Because Protestants were the dominant property-

owning class in Northern Ireland this meant that juries in the province were

predominantly Protestant. In 1974, however, the British Parliament passed an

act effectively abolishing the property qualification and effectively making the

jury system much more representative of the population as a whole. This

applied to all civil and criminal cases with the exception of the scheduled

offences covered by the 1973 Act.5

Although Diplock identifies intimidation as the major reason for his

recommendation, the term “not practicable” carries further overtones. There

is more than a suggestion in this expression that in a severely divided society

the process of random recruitment itself might actually exacerbate the social

tensions and divisions by giving a voice and a platform to sectarianism. Thus,

the argument goes, the impartiality upon which any system of justice relies

would be undermined, and lottery selection – originally employed to

guarantee impartiality – could, in these circumstances, generate a haphazard

and volatile form of partisanship.

4 Great Britain: Commission on Legal Procedures to deal with Terrorist Activities (1972) Para

36. 5 Greer and White (1986) p. 4. It is also worth noting that in Northern Ireland the actual choice

of jurors from the empanelled list was subject to a complex “stand down” procedure that

favoured the Crown over the defence. Ibid. pp.39-41.

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This paper sets out to explore how random recruitment might facilitate the

growth of shared, agreed political institutions in divided societies. I have

deliberately started with the example of the Diplock Courts because the pro-

Diplock and the anti-Diplock arguments take us to the heart of the arguments

over random selection within the messy and complex context of real acute

social and political division. There have been many criticisms of Diplock since

the 1973 Act. One of the most telling is Lord Devlin’s observation that the

Commission had “… dispensed too easily with the jury”.6 The general

question still remains however: if citizens from a seriously divided society are

randomly selected to hold office might those offices become mere reflections

of the power structures of those partisan divisions and, as such, cease to

operate for the good of all?

What I attempt to produce in this paper are a number of frameworks for

analysis and understanding to help us to decide when and how it might be

valuable to use random recruitment in a divided society and when not. As I

do this I will, as it were, keep a wary eye on the pro and anti Diplock

positions. To start with, however, I need to give some historical examples of

the positive use of random recruitment, especially where it has served to

diminish the adverse effects of social and political division.

Random selection and political unity

In the late seventeenth century the politics of the proprietary colony of

South Carolina were subject to serious and seemingly intractable divisions,

mainly between older settlers and new arrivals from Europe. One of the only

6 From Lord Devlin’s forward to Greer and White (1986) x. Note also the Amnesty

International 1978 report’s concern that the lack of a jury enhanced the danger that statements

obtained by maltreatment would be used as evidence. (P.87, cited in Korft (1982) p.11)

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measures to unite the contending factions was an innovative measure to select

juries by lottery. This came into force in 1682 and was the first use of random

recruitment for juries on the Scandinavian/Anglo-American model. This

represents an important fusion of the existing British tradition of the jury with

republican ideas derived from Venice and Northern Italy and popularised in

the English speaking world by Harrington.7 What is important from the point

of view of our inquiry is that the measure was able to unite contending

political rivals in support of what is essentially a constitutional agreement: an

agreement covering the structural form of the judicial process.

This example is the exact converse of Diplock. South Carolina found a new,

unified and unifying system of justice through the use of random selection.

Random selection was to be trusted. In Northern Ireland in 1973 Diplock is

suggesting that random selection is not to be trusted. In South Carolina there

is division, but within that division there is a search for unity and a workable

political solution. Diplock’s search, however, is for control: the brief of the

Commission, after all, was to find an alternative to internment.8

My second example, the First Florentine Republic, shows the unifying

potential of random recruitment in a more complex institutional environment.

Florence in the late thirteenth century, like most city-states in the region, was

seriously troubled by factional unrest. Ostensibly the contention was between

Guelf and Ghiberline family groupings, but further fragmentation produced a

more complex interplay of rivalries including those between the White Guelfs

and the Black Guelfs in the early fourteenth century. The settlement of 1328,

however, which featured systematic use of random selection from pre-elected

pools lasted over one hundred years until the onset of the Medici dictatorship

in 1434. One of the key features of the constitution was the selection of the top

7 Sirmans (1966) p.37. See also Dowlen (2008) pp154-5 and 172-83. 8 British Government (1972) para 1.

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executive body the Signoria by lottery every two months from bags containing

the names of those previously elected by a combination of members from a

number of the city’s corporate institutions.9

While this arrangement was clearly needed to unite contending family

groupings under a unified constitutional arrangement, it was inefficient and

vulnerable to the pressure of patronage. It was this that finally saw the end of

the First Republic. In the early fifteenth century, the Medici family was able to

operate the system by first establishing a powerful network of partisan

allegiances and then by ensuring that their men were in the lottery pools in

sufficient numbers for them to gain effective control. 10

The importance of this example is that it shows both the positive potential

of lottery selection in the process of political consolidation and the

vulnerability of particular lottery schemes in the face of determined partisan

opposition. One of the extra measures in the system was a ruling that if more

than one member of any family was chosen from the bags of names, only the

first to be drawn would take office, the names of the other family members

would be returned to the bags. This indicates the motivation behind the

scheme: to create a shared system of government and to prevent any one

family from taking control. The use of the lottery created a shifting pattern of

appointment in which deliberate choice was tempered by chance in a way

that was out of the control of any individual, family or grouping. As with

South Carolina it was a solution that grew out of a search for a shared

settlement.

My third example involves the unification settlement and constitution

enacted by Kleisthenes and his new-found ally – the demos – in late sixth

century Athens. Kleisthenes’ division of Attica into the new political units of

ten tribes and139 demes or local wards following a period of unrest between

9 See Nagemy (1982) , Brucker (1962) The scheme is summarised in Dowlen (2008)pp 80-92 10 See Kent (1978)

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aristocratic factions was clearly designed to break up local allegiances and

forge a unified political unit.11 The Ath. Pol. describes how each tribe was

made up of demes from three different areas: the mountains, the plains and the

city, and how the exact distribution of demes – subject to this general principle

– was then carried out by lottery.12 Although we do not have written

evidence, it is likely that the introduction of random recruitment for the Boule

or Council of 500, also based on the deme system, was part of the same

settlement or agreement. As part of the new system each Athenian citizen was

given a new deme name in addition to his original name.

The value of this example is that it shows random recruitment as just one

element in a major political reorganisation of the Athenian polis based on

annulling the old divisions and establishing new political identities. The main

political unit in this was the Athenian citizen and the guarantee against the re-

emergence of aristocratic factions was the use of randomly-selection for the

vast majority of public offices. To this extent it differs fundamentally from the

Florentine solution which was designed to spread power between existing

family groups.

All these examples show random selection and random recruitment

introduced or operating within divided or potentially divided societies to

help create unity. Just how this method of recruitment or decision-making is

able to contribute to this objective is a question that I now turn to. To do this I

first look at the qualities of the lottery process, including the distinction

between a lottery and a weighted lottery. I then look at the capacity of a

lottery to act as a mediator and from this formulation I establish a model for

political consolidation based on the idea of mediative relations. This, I claim,

11 My main secondary sources for this are Headlam (1933), Traill (1975) Hansen (1999). 12 Aristotle (1986) [Ath.Pol. XXI. 4]

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is the critical element for understanding how lotteries can work in divided

societies to help create fair and inclusive political systems.

The qualities of the lottery process

In our discussion of the value of random recruitment in divided societies it

is vital that we start from an examination of the lottery process itself. In this

respect I make no apologies for returning to the original formulations that I

used in 2008 to describe and explore the phenomenon of the lottery.13 These

are the blind break and the box of possible epithets. Both these enable me to

engage more closely with the lottery as a procedure and to understand what it

has the capacity to bring to any context in which it is applied.

The blind break is a simple visual representation that applies to all lotteries.

Fig 1. Y X Y Y Y

On the left are the options (Y) from which the final choice X (illustrated on the

right) is chosen. In the centre is the zone of actual decision-making that I call

the blind break. In the blind break the normal process of rational

discrimination and choice between the options is deliberately excluded.

Indeed every lottery mechanism is designed to ensure that each option has an

equal chance of being selected, and this chance is not dependent on (i.e. it is

blind to) its qualities as an option. It is a break because this zone of deliberate

exclusion interrupts the logical, rational design process. This process includes

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the drawing up of options, the designation of the purpose of the lottery, and

the specification of other factors such as the frequency of lottery draws and

which agencies might be involved in its operation. This perspective is of

considerable importance because it enables us to understand the lottery as an

arational mechanism serving rational ends and one that is surrounded,

contained and focused by rationally designed elements.14

The identification of the blind break as the central defining feature of the

lottery also helps us to focus on when it might be valuable to use a lottery and

when it might not. We can do this by asking what the blind break might bring

to the context of any proposed application. If we cannot establish a positive

role for the blind break, it is likely that another form of decision-making

might be more appropriate.

With reference to the Diplock debate, the blind break diagram allows us to

see the rational design elements that go into any lottery scheme. This shifts

the design focus onto the possibility of controlling the nature of the pools

from which the jurors might be chosen. This, however, is not without its

complications, especially concerning the question of who would have the

authority to determine the nature of the pools by fixing the entrance criteria.

The blind break diagram is also a reminder, if one is needed, that the lottery is

an essentially arational form of decision-making and for this reason demands

respect in its application.

To look more closely at what happens in the blind break I use another

visual/diagrammatic device. Because a lottery is a mechanical decision-

making process, all the qualities that pertain to a decision made by a human

agency are absent from it. We can illustrate this by saying that a lottery

13 See Dowlen (2008) pp. 11-29 for a fuller account. 14 See Delannoi (2010) p. 28 on the rational application of lotteries.

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decision can be accurately described by any term that is appropriate to this

non-human, non-personal or mechanical status. Thus:

Fig. 2.

The complexity of what at first appears to be a simple process is apparent

from the seemingly boundless and diverse nature of this approach to

describing the qualities of a lottery.15 To this we can add two more: a lottery

draw is designed so that it cannot be easily manipulated, it is also a decision

that has no identifiable agent, no person who makes the decision. This

approach to analysing lotteries reveals a further complication. This is that

when we make a decision by lottery, we get all of these qualities

simultaneously. In other words there is no differentiation in the process; we

cannot pick and choose between these qualities. We might, for example, want

to use a lottery because will give us an impartial decision, but it will also be

arrational, amoral and unpredictable. For this reason, any serious, purposeful

attempt to use a lottery needs to be accompanied by an assessment as to

whether the desired attributes or qualities of the process outweigh those that

might prove to be problematic. In any application it might also be possible to

include other procedures to guard against unwanted random effects. In the

15 In this respect Peter Stone has isolated the “sanitizing effect” and has noted that: “ Lotteries prevent

decisions from being made on the basis of reasons." Stone (2011) p. 16.

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jury system the use of jury challenges serves this purpose. The introduction of

fairer challenge mechanism for juries judging scheduled offences in Northern

Ireland has indeed been suggested by those who thought that Dilpock moved

too fast and too far.16

This enumeration of the qualities of the lottery helps us to recognise how a

lottery might be used on the basis of certain of its qualities in the first instance

but that other qualities might come to the fore prompted by changes in

circumstances. Again the story of the Diplock Courts provides an example.

Here, it could be argued, the random selection mechanism was no longer up

to the job.

The point that I am making here is that there is a certain chameleon nature

to the lottery that we need to understand before we can begin to explore its

full potential in difficult circumstances. In particular we need to understand

both the value of, and the danger inherent in, using an arational mechanism

for rational purposes. This is best illustrated by the moral abdication

argument expressed by Godwin,17 among others. This simply states that resort

to a lottery to make decisions constitutes an abdication of the faculty of moral,

rational decision-making. We do not have to go the whole way with Godwin,

however, because, as we have recognised, lotteries can be rationally planned

in the pursuit of rational, even moral ends. What is worth recognising,

however, is that healing divisions in divided societies and bringing

potentially hostile communities into a shared political system demands

rational and moral judgement on the part of everyone involved. Lotteries can

help in this, but should not take the place of, or contradict this process.18

16 Greer and White (1986) p.72 17 Godwin (1971) pp 241-3. See also Guichiardini’s Logrongo Thesis. Guicciardini (1997).

Godwin describes reliance on lottery decision-making as a “desertion of duty” and an act of

the most “contemptible cowardice.” 18 . One of the best (or worst) examples of this is the decision to de-select members of the French

Directory in 1795. See Sydenman (1974) p 127 and Dowlen (2008) pp 206-211.

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Before I go on to explore the difference between lotteries and weighted

lotteries, I have a few important points to make about the political value of

lottery selection that derives from these frameworks of analysis and an

additional point about randomness and independence.

Power, independence and the lottery

In my 2008 study The Political Potential of Sortition I attempted to isolate one

major or primary benefit or value for the use of lotteries to select holders of

public or political office. To do this I used the theoretical perspectives that I

presented above but combined this with an historical exploration of the use of

random recruitment in a variety of different political contexts. From this I was

able to identify what I called the primary potential of sortition as its capacity to

inhibit the power of political appointment. We can think of this as primary in

the sense that this is what random recruitment achieves in the first instance.

This inhibition of the capacity of any political agent to place their loyal

followers in key positions then helps to break up concentrations of power

within the body politic and as such serves to prevent tyrants from taking

control and moderates the influence of factions. 19

We can think of this as the result of the exclusions generated by the blind

break. Agency, intention and manipulation are excluded from a lottery

decision, and this means that there are no relations of power in the blind

break or central operation of a lottery. This does not mean that this is the only

exclusion that could be valuable in a political context, but it is certainly one

that has immediate and comprehensive relevance to the establishment,

development and defence of political order. We will see more of this when we

look at what I call the “mediative” capacity of lottery decision-making.

If this constitutes the potential or capacity of lottery use as a process, an

understanding of the random product can be obtained by looking at the work

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on random numbers and algorithms by the mathematician G.J. Chaitin.

Chaitin found that the computer algorithms for random numbers were longer

and more complex than those of numbers that had not been randomly

generated. They could not be simply described by reference to other numbers

or by reference to their relationship to groups of numbers.20 If we start to

apply these ideas to the political use of lotteries and to the citizens selected for

office we begin to formulate a view of the ideal random product as essentially

independent – literally non-dependent. Obviously citizens could be

“dependent” or linked to some grouping or other before they were selected,

or they could also become “dependent” after they have taken office, they are

not quite like Chaitin’s algorithms. If, however, independence constitutes the

essence of the lottery selection process, then it follows that efforts should be

made to preserve this quality in respect to all aspects of the scheme, including

the nature of the pool and the specification of the tasks of office. This becomes

important as we consider the distinction between lotteries and weighted

lotteries, a subject to which I now turn.

Weighted lotteries

If I place three identical red balls and two identical white balls of the same

size and weight in a bag and assess the ball we then pull from the bag solely

in terms of its colour, we are, in effect holding a weighted lottery. The lottery

is set up not to produce an individual winner – one out of five – but to

produce members of one group or the other in a manner that is unpredictable

but “weighted” in favour of the more numerous group in the pool. It does so,

moreover, by a combination of rationally understood proportion and the

operation of chance. We can therefore define a weighted lottery as a lottery in

which the pool is actively understood in terms of the groupings contained

19 Dowlen (2008) pp.220-7. 20 Chaitin (2001) p.162 ; Dowlen (2008) p.27-8

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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.

21

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

22

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.

23

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.

Collins, London.

Chaitin, G.J. (2001) Exploring Randomness. Springer, London.

Delannoi, Gil. (2010) “Reflections on Two Typologies for Random Selection”

in: Delannoi, G.; Dowlen, O. (eds) Sortition, Theory and Practice

Imprint Academic, Exeter.

Dowlen, Oliver. (2008) The Political Potential of Sortition. A study of the random

selection of citizens for public office. Imprint Academic, Exeter.

Godwin, W. (1971) An Enquiry Concerning Political Justice. Abridged and ed.

Carter, K., Codell (Kay Cordell).Clarendon, Oxford.

Great Britain: Commission on Legal Procedures to deal with Terrorist

Activities (1972) Report on Legal Procedures to deal with Terrorist Activities in

Northern Ireland. Chair: Lord Diplock. Parliamentary Papers Cmnd. 5185.

Green, R.H. (1910) “Lot Meadow customs at Yarnton, Oxon.” Economic

Journal. Vol. 20 No. 77.

Greer, S.C., White, A. (1986) Abolishing the Diplock Courts. The Cobden Trust.

24

Guicciardini, Francesco. (1997) “Del Modo di ordinare il Governo Popolare.”

Trans. Price, R. In Krange, J. ed. (1997) Cambridge Translations of

Renaissance Philosophical Texts. Cambridge University Press.

Hansen, M.H. (1999) Athenian Democracy in the age of Demosthenes. Bristol

Classical. (First edition 1991)

Headlam, J.W. (1933) Election by Lot at Athens. Cambridge University Press,

(First edition 1891).

Kent, D. (1978) The Rise of the Medici Faction in Florence 1426-34. Oxford

University Press.

Korft, Douwe. (1982) Diplock Courts in Northern Ireland: A Fair Trial? An

analysis of the law based on a study commissioned by Amnesty International.

Studie en Informatiecentrum Mensenrechten. SIM Special No 3.

Netherlands Institute for Human Rights.

Najemy, J.M. (1982) Corporatism and Consensus in Florentine Electoral Politics,

1280-1400. University of North Carolina Press, Chapel Hill.

Ostrom, E. (1990) Governing the Commons. The evolution of institutions for

collective action. Cambridge University Press.

Shapiro, M. (1981) Courts. A Comparative and Political Analysis

University of Chicago Press.

Sirmans, M.E. (1966) Colonial South Carolina- a political history. 1663-1763

University of N.Carolina Press, Chapel Hill.

Stone, Peter. (2011) The Luck of the Draw. Oxford University Press.

Sydenman, M.J. (1974) The First French Republic 1792-1804. B.T. Batsford,

London.

Traill, J.S. (1975) The Political Organisation of Attica. Hisperia Supplement XIV,

Princeton, New Jersey.