Citizen Jury or Referendum: A Rousseauian Perspective

Written by

Keith Sutherland

Abstract: Daniela Cammack’s rejoinder to my claim that lawmaking juries would not contravene Rousseauian strictures on popular sovereignty argued that all citizens should register their ‘willingness’. This short response focuses on the inherent Cartesianism in the notion of volunté in contemporary social philosophy, and contrasts it with the contingent/situated/biological perspective of cognitive science and philosophy of mind. This has important implications for democratic decision making.

In the Social Contract (1762), Rousseau argued that the only way for mankind to regain the freedom that is its natural right is for every citizen to personally authorise the rules they are obliged to live by. This led him to propose a system of direct popular sovereignty (‘the day you elect representatives is the day you lose your freedom’ SC, III:15) that was ideally suited for small political communities like Geneva or Corsica. Although some scholars have argued that the Roman Republic was a variant of popular sovereignty (Rousselière, 2024), Rousseau was pessimistic regarding the possibility of popular sovereignty in large modern states: ‘The message is quite clear for those willing to listen: there will be no general will in Europe’ (McLendon, 2024, p. 101).

In Deliberation and Representation: The Rousseauian Case for Sortition in the first issue of the Journal of Sortition, I argued that legislative decision making by a large randomly-selected citizens’ jury would not contravene Rousseauian strictures on popular sovereignty, as the ‘collective being’ of the sovereign would be represented [albeit in microcosm] ‘by himself’ (SC, II:1). To ensure representative fidelity, the jury would need to be several hundred strong, participation would be quasi-mandatory. and its mandate would be limited to voting in secret. Consistency could be verified by convening multiple concurrent samples – if they came to the same conclusion (given an agreed margin of error) then the outcome would be the ‘general will’, irrespective of which empirical citizens were involved.

Not so, argued Daniela Cammack in Rousseauian Sovereignty: The Willingness of All, as popular sovereignty presupposes that the ‘willingness’ of every citizen be respected and this requires personal participation. Referendums are the only way to ensure the legitimate authorisation of fundamental laws in large modern states.

An interesting development in contemporary thought is the divergence between philosophy of mind and ‘social’ philosophy (including feminism and its more radical offshoot, trans philosophy). The majority of philosophers of mind and cognitive scientists view ‘willing’ as little more than an emergent property of contingent/situated/biological factors (Libet, Freeman and Sutherland, 2000; Sapolsky, 2023). While feminists agree that gender is a social construct, trans philosophy presupposes a detached self (not dissimilar to the dualist notion of the ‘soul’) whose free choices are unconstrained by biology, culture and personal biography. Cognitive science, however, views this as a ‘user illusion’ – a ‘homunculus’ in the Cartesian theatre. (Dennett, 2021)

Rousseau was a Cartesian dualist (Westmorland, 2012) who drew a sharp distinction between the mental/moral and physical domains. Daniela shares Rousseau’s emphasis on volunté and the overriding moral imperative to respect ‘something that you in fact want’ (p. 184, original emphasis). But, irrespective of its metaphysical underpinnings (dualist or otherwise), how does that ideal shape up in practice?

As an extreme example of the importance of volunté, the case of Gisèle Pelicot (raped by 50 men), and Only Fans actors competing over who can have sex with the most men in 12 hours (current champion Bonnie Blue @ 1,057) are clearly poles apart. However they are the opposite poles of a single continuum of ‘willingness’ – Gisèle was drugged unconscious whereas Bonnie viewed her marathon as ‘enjoyable’ and ‘educational’. Bonnie’s rival, Lily Phillips, has justified her Only Fans career using the language of female empowerment (she ‘loves being a slut’). But are these actors free agents, doing what they want with their own bodies, or are they as much victims of exploitation as Gisèle Pelicot? And what is the role of social and cultural factors in determining what individuals ‘want’?

Although this analysis might appear to be somewhat removed from political freedom and popular sovereignty, similar considerations come into play. To what extent is human decision-making in general the result of individual choice and to what extent the product of socio-economic and cultural forces? Émile Durkheim’s Suicide: A Study in Sociology (1897) viewed suicide as a ‘social fact’, as the suicide rates in different societies can be predicted without reference to the ‘willingness’ of the individuals who take their own lives.

From a social-facts perspective, the majority of our volitional acts are the product of cultural and socio-economic contingencies. If the explanatory power of methodological individualism is limited — even in the examples of personal sexual preferences or taking one’s own life – then so much more for democratic decision making, where the (collective) subject is the plethos. If so, then the distinction between ‘my’ free choices and those of my peers (assuming a representative sample) is purely analytic. Presupposing majoritarianism, and given the aforementioned constraints on the composition and mandate of the decision-making jury (which are a close match to Rousseau’s views on civic obligation) my own freedom would be protected, irrespective of whether or not I participated directly in the jury (as the outcome would be the same). Rousseau referred to the sovereign as a singular entity, a ‘collective being’ (rather than an aggregation of individuals), which can only be represented ‘by himself’. The large citizens’ juries posited in my paper are representative in the ‘synecdochical’ (Ankersmit, 2019) or ‘holographic’ sense. In the words of one of Daniela’s earlier papers:

‘Synecdochical representatives are undifferentiated parts of the wholes they represent and serve as representatives in virtue of their essential similarity to the represented rather than any perceived or actual difference from them. In the performance of political roles, synecdochical representatives and those they represent are actually interchangeable.’ (Cammack, 2021, p. 575, my emphasis).

If this is the case, then the choice between referenda and citizens’ juries would depend on purely epistemic considerations, that are orthogonal to this argument (and already covered in the political science literature).

Footnotes

[1] Rousseau insisted that ‘active’ deliberation was a function of the delegated government (which could be elected or appointed), not the sovereign assembly. This would suggest that citizens’ juries have little in common with deliberative democracy.

[2] As Lewis Carroll (nearly) said, ‘the [meme] raths outgrabe’ (Wheelwell, 1998).

[3] A holographic image is identical to the object depicted — if the film were cut in half, each piece would depict the full object, albeit at a lower resolution (by contrast, cut a piece of regular photographic film in two and only half the scene will be depicted).

References

Ankersmit, F. (2019) Synecdochical and metaphorical political representation: Then and now, in Creating Political Presence: The New Politics of Democratic Representation, ed. D. Castiglione and J. Pollak, Chicago: Chicago University Press, pp. 231-53.

Cammack, D. (2021) Representation in ancient Greek democracy, History of Political Thought, XLII (4).

Dennett, D. (2021) The User-Illusion of Consciousness, Journal of Consciousness Studies, 28 (11-12), pp. 167-177.

Libet, B., Freeman, A., and Sutherland, K. (2000) The Volitional Brain: Towards a Neuroscience of Free Will. Exeter: Imprint Academic.

McLendon, M.L. (2024) Rousseau’s negative liberty: Themes of domination and scepticism in The Social Contract, in Williams, D.L. & Maguire, M.W. (eds.) The Cambridge Companion to Rousseau’s Social Contract, pp. 293–320, Cambridge: Cambridge University Press.

Rousselière. G. (2024) On the possibility of a modern republic: Rousseau and the puzzle of the Roman republic, in Williams, D.L. & Maguire, M.W. (eds.) The Cambridge Companion to Rousseau’s Social Contract, pp. 223–251, Cambridge: Cambridge University Press.

Sapolsky, R. (2023) Determined: The Science of Life Without Free Will. London: Vintage.

Westmoreland, P. (2012) Rousseau’s Descartes: The rejection of theoretical philosophy as first philosophy, British Journal for the History of Philosophy, 20, pp. 1–20.

Wheelwell, D. (1998) And the meme raths outgrabe, Journal of Consciousness Studies, 5 (3), pp. 362-374

Comments

9 responses to “Citizen Jury or Referendum: A Rousseauian Perspective”

20/02/2025

Iain Hampsher-Monk

1. It’s surely true that for Rousseau, a will only legitimises if it is actually willed by the citizen. In other words it’s not (only) the content of the will that counts but the (we would say psychological fact) of it’s having been willed by the agent in question. That is why representation is never a possible way of legitimating a government or policy.
2. Note the disappointing (to moderns) thinness of what it is Rousseau regards the General will as Willing, when it does its willing, which rarely (if ever) seems to descend to the grubby business of actual policies. (NB Eighteenth century government didn’t by and large see itself, as modern government does) in the business of producing streams of legislation). The main content of the general will is the maintenance of the ‘tendency to equality’, and it’s in this sense that willers can get it wrong.
3. Not sure how helpful reflections on the fate of the unfortunate if courageous, Gisèle Pelicot or the forays into the exploits of Bonnie Blue are. The former is clearly not a case of volition, and the latter is ‘general’ only in the sense of being maximal. Neither seems to be political in the relevant sense of having to make a binding decision on a community.
4. Although Rousseau is concerned with the education needed to create a will capable of autonomous willing (Berman’s Politics of Authenticity still good on this, although the historian may need to hold their nose from time to time). But this struggle is at the moral level, people who have wicked or corrupt wills are nevertheless willing. Rousseau seems to have no sense of ‘user illusion’ (Having devoted an inordinate amount of attention to it he seems very confident that the operations of his own consciousness are indeed what they seem. I’m not sure that the concept of false-consciousness, let alone the extravagent elaborations of it undertaken by later Twentieth Century thinkers played a role in his thinking, about such matters, which seem to me to have been elaborated primarily within a theological framework.

Reply
1. 20/02/2025
  
  Keith Sutherland
  
  As the editor of History of Political Thought, I defer to Iain’s exegesis on Rousseauian thought. As I make clear in my article, Rousseau was only an excuse to float a very modern sortition proposal. The point that I am trying to make in this post is that if the hermeneutics of willing are murky even in the case of extremely personal decisions, then to insist that everyone should will the outcome of collective decisions is an unnecessarily exacting requirement.
  
  I would argue also that the decision of a large, quasi-mandatory citizens’ assembly would “tend to equality” more than a plebiscite. This is because the outcome would be the same, irrespective of which empirical citizens are selected in the draw and the equality of citizens who can’t be bothered to vote in a referendum is also ensured. Methodological individualism is the wrong methodology if you want to determine the will of the plethos.
  
  Reply
20/02/2025

Oliver Milne

Keith’s argument here – that the ‘general will’ is not to be understood as the pure outpouring of a Cartesian soul, but the outcome of an empirical process that can be modelled – seems sound as far as it goes, but neglects the more fundamental point that actual universal assent is practically speaking completely impossible to achieve for any policy or decision among any decently-sized population. The same goes for supposed implicit agreements to be bound by the outcome of a decision process – there will always be a minority who, for whatever reason, reject the legitimacy of the process. Any argument from the supposed identity of some ‘general will’ with the will of each and every citizen must therefore either exclude dissenters from citizenship (the Schmittian ‘solution’), allow that they are not in fact bound by the decision (the anarchist approach), or descend into palpable absurdity. The first and third options being obviously unacceptable, one must either embrace anarchism, or find a different ground of justification for ‘democratic’ coercion.

(As an aside, the characterisation here of ‘trans philosophy’ as presupposing a metaphysical dualism wherein the will is independent of the underlying biology does not describe the thought of any trans thinker I have ever come across. The general direction of trans feminist theory on this topic, as I understand it, is rather to highlight the empirical anthropological phenomenon of transgender identity, which (much like homosexuality) has manifested historically in every culture in some locally-inflected form, including in cultures separated for tens of thousands of years by the Atlantic and Pacific Oceans. This plainly indicates an underlying feature of human biology as the cause, consistent with the actual experiences of the vast majority of trans people for whom their gender identity is very much not experienced as a choice, but as a fact whose acknowledgement is often resisted, at great psychological cost, for a long time. The inclusion of this misconceived sideswipe at a strawman position is baffling.)

Reply
1. 20/02/2025
  
  Keith Sutherland
  
  Thanks Oliver, I confess my Cartesian meditation was influenced by Kathleen Stock (who has a lot of skin in the game), and my knowledge of trans philosophy is limited. It does strike me that the self is as much a product of cultural and situational factors as much as biology, and that ‘willing’ has to be seen in this context.
  
  Reply
  1. 16/03/2025
    
    Anonymous
    
    Kathleen Stock is alleged by many in the trans community to be transphobic because amongst many other things she signed a declaration advocating to ban all trans women from women’s toilets.
    
    Therefore relying on Kathleen Stock as an authority on trans philosophy is analogous to citing an anti-semite as an authority on Jewish religious practices.
    
    Reply
2. 21/02/2025
  
  Keith Sutherland
  
  PS, regarding Oliver’s “supposed identity of some ‘general will’ with the will of each and every citizen”, this is a real problem, irrespective of whether or not this was Rousseau’s intention. In addition to the three solutions Oliver suggests, majoritarianism is the obvious response. But this does not require that each and every citizen express their will, as the willing of those who share my beliefs and preferences is (by definition) the same as my will, and large quasi-mandatory sortitions will represent this will proportionately to its presence in the full citizen body. Synecdochical representation requires no alienation of my own will to another agent, as it is an imperative mandate, albeit via an invisible hand. Such ‘virtual’ representatives would be bound by similar feelings, dispositions and prejudices:
  
  “When there is a communion of interests, and a sympathy in feelings
  and desires, between those who act in the name of any description of
  people, and the people in whose name they act, though the trustees
  are not actually chosen by them . . . Such a representation I think to
  be, in many cases, even better than the actual. It possesses most of
  its advantages, and is free from many of its inconveniences; it corrects
  the irregularities in the literal representation, when the shifting current
  of human affairs, or the acting of public interests in different ways,
  carry it obliquely from its first line of direction. The people may err in
  their choice [of representatives], but common interest and common
  sentiment are rarely mistaken. (Edmund Burke, ‘A Letter to Hercules
  Langrishe MP’, cited in Hampsher-Monk, 2011)
  
  Reply
  1. 23/02/2025
    
    Alex Kovner
    
    Like Keith, I have very little interest in what Rousseau would have thought of citizen juries. Rousseau places the line separating freedom from bondage at explicit consent, but this seems naïve by the standards of current politics in large multiethnic countries. The more important line separates those who reject the legitimacy of the state from those who accept it, regardless of any explicit act of consent or participation. That is the line between order and chaos, between a functioning government and civil war.
    
    I’m no more an expert on Hobbes than I am of Rousseau, but as I understand it, this distinction accords with Hobbes’ definition of consent more than Rousseau’s. Correct me if I’m wrong, but Hobbes seems to assume consent unless a person leaves the country or takes up arms against it. For a system of government, this is the critical distinction. Any system of government—democratic or otherwise—owes its survival to managing this Hobbesian consent (or what I’m attributing to Hobbes) rather than the more idealistic version of Rousseau.
    
    For authoritarian systems, there is a clear alignment between the interests of the rulers and the survival rule of the system. If the system fails, the rulers are generally “disposed of”, and if the system does not fail, the rulers generally prosper. That’s not to say that authoritarianism is stable, only that its instability does not arise because of any mismatch of incentives of rulers and system.
    Democracy, on the other hand, has a gross mismatch between the survival (i.e. survival in power) strategies of the rulers and the system. Put simply, democratic leaders have no natural reason to protect democracy. The survival of the system depends on culture more than anything, and democratic morale will decline when social morale declines.
    
    Sociology is another topic in which I am no expert, but it doesn’t take a PhD to see that social morale is at an all time low in western countries. It should be no surprise that democratic morale is similarly low. This has led to a series of elections in which “democracy is on the ballot”, according to the prophetic (and pathetic) slogan of the Democratic party in their doomed efforts to defeat Donald Trump. Brexit certainly qualifies, as do the victories of a number of “populist” candidates around the world.
    
    What this illustrates is that Rousseau’s definition of consent doesn’t take into account the situation where people show up to the ballot box with no other goal than to throw a brick through the windows of the elite. That’s the really dangerous situation, and it’s the situation we’re in now. This applies more to Brexit than Trump, as Rousseau advocates direct democracy rather than representative democracy, but the principle is the same.
    
    These observations suggest that authoritarian systems should be more stable than democracies, since their leaders protect themselves when they protect the system, whereas democratic leaders can be dismissed from power even as the system prospers. Why has this not been the case over the last century or so?
    
    The obvious answer is prosperity. While democratic leaders have no natural incentive to protect democracy, they do have a natural incentive to reward their constituents. Autocrats can spend their time purging disloyal lieutenants and stealing their countries’ resources; democratic leaders usually don’t have that luxury.
    
    Unfortunately, this depends on the premise that people vote on governing quality. That’s just not how they’re voting now, when the system itself is in question. This not only results in bad, anti-democratic leaders winning elections, it also removes any incentive for leaders to govern well, or at all. Why should Donald Trump or Keir Starmer waste their time governing? It only exposes them to ridicule, and voters won’t care anyway, because they don’t believe in the system. Better to just enjoy your time in the spotlight and fill your pocketbook while you can.
    I call this process “democratic delamination”, where the political layer of government becomes detached from the operational layer. The government ends up running itself in a self-replicating fashion. Right-wing conspiracy theories attribute this to the “deep state”: an organized takeover by ideologues rather than a natural outcome of persistently low democratic morale. But they’re not wrong about the result: elections are theater, and real governing operates in the shadows.
    
    What does this mean for our two versions of consent? It means that Hobbes’ definition of consent (or my characterization of it) is the one that really matters to democracy as a system. Rousseau’s definition is great if you’re a politician trying to motivate your base to turn up at the polls, but it is irrelevant to the constitution writer. In this respect, democracy is just like any other system. Survival is all that matters.
    
    Finally, what does this have to do with citizen juries vs. plebiscites? It illustrates that democratic delamination must be reversed. This in turn requires a system in which the operations of government are much more closely linked to assessments of public opinion. Plebiscites are too costly to do this, to say nothing of their poor epistemic quality. In my and Keith’s view, only citizen juries with a quiet deliberation model can fill this gap.
    
    A long post, I know, but hopefully food for thought.
    
    Reply
    1. 23/02/2025
      
      Keith Sutherland
      
      Agree that Hobbes (or even Thucydides) are of greater relevance than Rousseau in the era of Trump, Putin and Xi. What is at stake (from a democratic perspective) is how best to represent the beliefs and preferences of ‘passive’ citizens (Tuck, 2024), who constitute a large proportion of the sleeping sovereign (Tuck, 2016): the charismatic populist or the citizens’ jury? As for the plebiscitary alternative, those who claim that respecting the results of the Donbas referendum would have pre-empted the invasion of Ukraine are echoing Kremlin talking points.
      
      Reply
      1. 05/03/2025
        
        Keith Sutherland
        
        The ambush of President Zelenzky in the Oval Office on February 28th has reinforced my view that the sovereignty of a large quasi-mandatory citizen jury is the only alternative to populist autocracy. As Alex put it “survival is all that matters”. Arcane debates over volonté are akin to counting how many angels can dance on the head of a pin.