The Law of Deliberative Democracy (book): Deliberation in a Juridifying World (ch 1) (original) (raw)

The Law of Deliberative Democracy: Seeding the Field

2013

"Election law scholarship has been slow to notice the deliberative turn in political theory. Aiming to remedy this omission, a special symposium issue (12:4, 2013) of the Election Law Journal recently featured eleven contributions toward an incipient “law of deliberative democracy” subfield of research in election law. The issue included works from scholars of politics (James Fishkin, Lisa Hill and Dennis Thompson) and law (Yasmin Dawood, James Gardner, Paul Kildea, Graeme Orr, Joo-Cheong Tham, Stephen Tierney and Jacob Rowbottom). Contributors initially aired and discussed ideas - including positions sceptical of deliberative democratic projects - in workshops at New York University and King’s College London in April 2013. In this introduction to the symposium I provide theoretical context and map out where the various contributions fit among key emerging debates in the law of deliberative democracy. Throughout, I argue that we cannot understand the conditions for effective deliberative democracy without considering the roles of election law. Election law is a pervasive and distinctive element of deliberative democracy’s institutional backdrop. Yet deliberation still enjoys too little normative weight in studies of election law, in comparison with libertarian, egalitarian and other sources of legal reasoning. Initially I identify three reasons why election law may be unable appreciably to set conditions for deliberative democracy: (1) the accommodation problem: that “accommodative” (win-win) reasoning in deliberative democracy may clash with law’s focus on balancing (zero-sum); (2) the elite problem: that legal elites may be unusually hostile to deliberative democratic projects; and (3) the performative problem: that election law’s underlying assumptions promote partisanship rather than deliberation. However, I conclude by identifying provisional solutions to each of these difficulties."

Deliberation and Electoral Law

Election Law Journal

Electoral systems inevitably help form the landscape of political deliberation. This article examines the election-deliberation relationship by considering both the nature of elections and key elements in their regulation. It argues that the open-textured nature of elections challenges the possibility of structured deliberation, but that the franchise and periodicity of elections set up the basis for ongoing, citizen-centred discourse. The article then surveys Anglo-American democracies to consider the deliberative impacts of different regulatory approaches. It concludes that although deliberative concerns have been sublimated compared to the 19th century model of electoral law, deliberative values are a necessary adjunct to the liberal-rights and realist approaches to electoral design.

The promise (s) of deliberative democracy

Rhetoric & Public Affairs, 2002

This essay explicates the promise that deliberative democracy, because deliberation generates more inclusive, just, and reasoned public policies, is a sufficient and superior account of democratic legitimacy. This essay also reviews the critiques engendered by social, cultural, and discursive plurality, critiques threatening to render deliberative democracy's promise(s) infelicitous, and suggests some avenues for reconfiguring public delieration in light of these challenges.

Deliberation by political representation: A lost cause?

Within parliamentary context my paper proposes that political representation, due to its imperative on „representativeness‟, sets restrictions on deliberation as parliamentary practice. These representative restrictions include e.g. pre-fixed party platforms and pre- negotiated agreements and compromises. Hence, in their parliamentary activity, MPs are representing interests as they are in constant strain to constitute judgments. Whether these judgments and assessments are self-reliant or dependent in nature, they are implicitly bound to the principle of responsiveness of legislative representation. My paper explores this dilemma deliberative democratic theory is facing when pre-fixed interests as regards forming opinions are introduced to the constellation of deliberative process of parliamentary procedures. The main theoretical question – in what way political representation can be per se deliberative after all? – is simultaneously turned into asking to what extent deliberative theory can be outstretched without losing its analytical aptitude of criticizing aggregative models of representation and thus highlighting the appreciation of deliberation. In this vein, my paper traces recent discussions where the spectrum of traditional principal–agent -form of representation is broadened. These prospects can complement the fundamental aspect of the legitimation of parliamentary rule being dependent on how deliberative the parliament is in its actions besides being representative.

Introducing Deliberative Democracy: A Goal, a Tool, or Just a Context?1

Human Affairs, 2008

Introducing Deliberative Democracy: A Goal, a Tool, or Just a Context?The concept of deliberative democracy is presented within a wide spectrum of variety of its operationalizations. Since the applicability of the principle of deliberation to the functioning of human society is of the author's primary interest, dilemmas of deliberative democracy related to different problems associated with deliberation in practice are described in some detail. The key questions raised aiming at elucidating the "ontology" of deliberativeness are as follows: is it only a tool for solving the problems of society and politics? Is it a context within which other processes decide on the running of society? Or does it embody a goal of democracy?

The meanings of deliberation and citizen participation

Routledge eBooks, 2023

When political concepts such as deliberation are widely used and involve normative exigencies intended to legitimate institutional reforms, clarification becomes unavoidable. But clarifying is not the same as trying to find and adjudicate an unequivocal (uncontested) meaning. On the contrary, this exercise shows the implications of selecting its core components, something that always takes place within an academic and political context that determines where the emphasis is placed. So much has been written about deliberation, from so many theoretical perspectives, that it is difficult now to map these meanings and to define the criteria by which it can be assessed, whether normatively or empirically. Therefore, instead of explaining differences in the approaches organized in what has become assumed as the various "turns" of deliberative theory, highlighting the changes on the variegated interest of academics adopting a deliberative standpoint (Elstub et al., 2016; Owen and Smith, 2015; Parkinson, 2012 ; Dryzek and Niemeyer, 2010), it may be more fruitful to focus on the common questions they have tried to address. And their main concern is how to decide a fair common good in our pluralistic societies. In this note, we reflect on the normative content of deliberation, focusing on the way authors stressing its "democratic legitimating properties" have understood the main function of constitutions. Constitutions are the instruments that articulate the sovereign will of the People, but they are also the guarantee of its communicative power. This has been reflected in the tension between those defending a non-subjected sovereign will and those insisting on the limitations imposed by some preconditions (recognition of some basic rights and procedures). Therefore, to understand many current debates, it is important, firstly, to highlight how the family of meanings of deliberation has evolved. This genealogy shows us its deep connections with key (contested) issues related to the legitimacy of our democracies: the role and meaning of constitutions that embody them, as well as the construction of "the People" and the institutional expression of the "popular will" that is at their base. In this evolution, secondly, we can see how these meanings involve different images of citizens' role in democratic systems, as well as the right way they can be represented in decision-making processes. This allows us to understand differences in the approaches to deliberation nested on these first articulations of the deliberative stance from those that privilege the participatory narrative. To stress these differences, thirdly, help us identify the normative criteria

Deliberative Democracy and Constitutionalism

2013

In the last three decades, whitin academic debates about the future directions of development of the democratic practice, one new model has significant position, called deliberative democracy. On a level of theoretical elaboration, the conspirators of deliberative democracy develop arguments that justify proximate participation of the citizens in the process of creation of politics and political decision making. The goal of this paper is to show part of the viewpoint of the more significant political scientists and sociologists through the justification of deliberative democracy, as well as to indicate the connecting points between the principles of constitutionalism and deliberative democracy. This text also reviews the tension between liberalism and democracy at an ontological level and indicates the basic weaknesses and disadvantages in the attempts for consolidation of deliberative democracy under the principles of constitutionalism. The constitutionalism here is shown as a doct...

The coming of age of deliberative constitutionalism

The Canadian Journal of Law & Jurisprudence, 2024

In a 1998 article, Bohman argued that the contemporary deliberative turn in democratic theory had reached its 'coming of age', as deliberative democrats began to show greater interest in the institutionalization of their proposal. Moreover, Bohman referred to this growing interest with an expression that was unprecedented at the time: 'deliberative constitutionalism'. At present, deliberative constitutionalism has become one of the most original and relevant contemporary proposals. In this context, my article proceeds as follows. I begin by arguing that the contemporary deliberative turn in democratic theory also gave rise to a deliberative turn in constitutionalism-that is, a trend aimed at orienting constitutionalism and judicial review towards democratic deliberation. Next, I argue that, at that embryonic yet promising stage, deliberative constitutionalism had shortcomings that hindered the aim assumed since its origins. Finally, I argue that, over recent decades, these shortcomings have been finessed, which shows that deliberative constitutionalism has also reached its coming of age.