On the circularity of democratic justice (original) (raw)

The Deliberative Turn in Democratic Theory

2024

Thirty years of developments in deliberative democracy (DD) have consolidated another subfield of democratic theory. Building on the conceptual innovations introduced by the academic debate in DD, a growing number of deliberative experiments have been carried out around world, yielding a flourishing empirical literature. The acquired disciplinary prestige has made theorists and practitioners very confident about the ability of DD to address the legitimacy crisis currently affecting liberal democracies the world over. This book advances a critical analysis of these developments, and casts doubts on this confidence. It claims that current theoretical debates are reproposing old methodological divisions, and struggle to overcome the minimalist conception of democracy employed in the second postwar period. Moreover, deliberative experiments at the micro level seem to have no impact at the macro level, and remain sets of isolated experiences with controversial political value. The book indicates that those defects are mainly due to the liberal frame of reference within which reflection in democratic theory and practice takes place within the deliberative camp. Consequently, it suggests the need to move beyond liberal understandings of democracy as a series of disjointed games for which external rules have to be devised in advance. By contrast, it advocates a vision of democracy as a self-correcting ‘metagame’ capable of establishing and revising its own criteria of validity. An outline of this alternative vision of democracy as a metagame is proposed in chapter 6, setting the research framework for my future work in the field.

Tracking justice democratically

Social Epistemology, 2017

Is international judicial human rights review anti-democratic and therefore illegitimate, and objectionably epistocratic to boot? Or is such review compatible with-and even a recommended component of-an epistemic account of democracy? This article defends the latter position, laying out the case for the legitimacy, possibly democratic legitimacy of such judicial review of democratically enacted legislation and policy making. Section 1 offers a brief conceptual sketch of the kind of epistemic democracy and the kind of international human rights courts of concern-in particular the European Court of Human Rights (ECtHR). Section 2 develops some of the relevant aspects of democratic theory: components of an epistemic justification for democratic majority rule, namely to determine whether proposed policy and legislation bundles are just, and providing assurance thereof. Several critical premises and scope conditions are noted in section 3. Section 4 considers the case(s) for international judicial review, arguing that such review helps secure those premises and scope conditions. The section goes on to consider the scope such review should have-and some objections to such an account.

Deliberation and Democratic Legitimacy

In this essay I explore the ideal of a 'deliberative democracy'.1 By a deliberative democracy I shall mean, roughly, an association whose affairs are governed by the public deliberation of its members. I propose an account of the value of such an association that treats democracy itself as a fundamental political ideal and not simply as a derivative ideal that can be explained in terms of the values of fairness or equality of respect.

Balancing Procedures and Outcomes Within Democratic Theory: Core Values and Judicial Review

Political Studies, 2005

Democratic theorists often distinguish between two views of democratic procedures. ‘Outcomes theorists’ emphasize the instrumental nature of these procedures and argue that they are only valuable because they tend to produce good outcomes. In contrast, ‘proceduralists’ emphasize the intrinsic value of democratic procedures, for instance, on the grounds that they are fair. In this paper. I argue that we should reject pure versions of these two theories in favor of an understanding of the democratic ideal that recognizes a commitment to both intrinsically valuable democratic procedures and democratic outcomes. In instances in which there is a conflict between these two commitments, I suggest they must be balanced. This balancing approach offers a justification of judicial review on the grounds that it potentially limits outcomes that undermine democracy. But judicial review is not justifiable in any instance in which a bad democratic outcome results from democratic procedures. When the loss that would result from overturning a democratic procedure is greater than the gain to democracy that would result from ensuring against an undemocratic outcome; judicial review is not justifiable. Loss or gain to democracy is defined by the negative or positive impact of each action on the core democratic values of equality and autonomy, aspects of the democratic ideal. Even when judicial review is justified, the fact that it overturns intrinsically valuable procedures suggests that such review is never ideal from the standpoint of democracy.

Response: Deliberative Democracy and Justice

Philosophy of Education Archive, 2001

In Iris Young's staging of an imaginary dialogue between an activist and a deliberative democrat, we are presented with two familiar figures from the self-help section of our local bookstores: the woman "who loves too much" and the man who rejects her. The two characters share a commitment to social justice, but they understand this commitment quite differently. As a result, they have different understandings of what it means to be a good citizen in "actually existing democracy, with all its existing conflict, disagreement, economic, social, and political inequality." The deliberative democrat regards reasoned argument in settings that are inclusive and representative as the key to developing just and fair social policies. The activist contends that all of this is little more than a form of political window dressing designed to deflect the ways in which structural inequalities in our society constrain both the process and the substance of deliberation. The deliberative democrat counters that it is possible to structure the process of deliberation in ways that minimize the effects of social inequalities on the capacities of individuals to participate as equals in deliberative contexts. The activist is even more troubled by this attempt to minimize the very phenomenon that he contends ought be made more rather than less visible.

Epistemic Justice and Democratic Legitimacy

The deliberative turn in political philosophy sees theorists attempting to ground democratic legitimacy in free, rational, and public deliberation among citizens. However, feminist theorists have criticized prominent accounts of deliberative democracy, and of the public sphere that is its site, for being too exclusionary. Iris Marion Young, Nancy Fraser, and Seyla Benhabib show that deliberative democrats generally fail to attend to substantive inclusion in their conceptions of deliberative space, even though they endorse formal inclusion. If we take these criticisms seriously, we are tasked with articulating a substantively inclusive account of deliberation. I argue in this article that enriching existing theories of deliberative democracy with Fricker's conception of epistemic in/justice yields two specific benefits. First, it enables us to detect instances of epistemic injustice, and therefore failures of inclusion, within deliberative spaces. Second, it can act as a model for constructing deliberative spaces that are more inclusive and therefore better able to ground democratic legitimacy.

Democratic Deliberation and Impartial Justice

Res Cogitans

Theories of deliberative democracy maintain that outcomes of democratic deliberation are fairer than outcomes of mere aggregation of preferences. Theorists of impartial justice, especially Rawls and Sen, emphasize the role of deliberative processes for making just decisions. Democratic deliberation seems therefore to provide a model of impartial decision-making applicable in the real world. However, various types of cognitive and affective biases limit individual capacity to see things from others’ perspectives. In this paper, two strategies of enhancing impartiality in real world decision-making are discussed. The first involves decision-making processes which detach decision-makers from their particular interests, whereas the second aims to enhance the quality of democratic deliberation and empathetic reasoning. We conclude that new forms of democratic deliberation may be necessary if we hold on to the aspiration of making decisions which are both democratic (responsive) and impar...

Judicial Review and Deliberative Democracy: A Circular Model of Law Creation and Legitimation

Ratio Juris, 2001

In this paper the author discusses the legitimation of judicial review of legislation. He argues that such a legitimation is not just a moral matter but is to be considered more generally in terms of societal acceptability, since it is based on a wide range of reasons including moral, social and pragmatic concerns. Moreover, the paper stresses that the legitimation of judicial decisions should be properly viewed in a circular perspective, so that the relationship between legislators and judges cannot be reduced to an absolute supremacy of those who are democratically elected over those who apply the law. On the contrary, the law is constantly made, adapted and developed in legal practice and legal decisions are basically legitimated through several processes of deliberative communication.* 1 Originally, this paper was written as a comment on the paper presented by Luc Tremblay (2001) at the workshop in Bielefeld in February 1999. In the shorter version that is published in this volume, however, the part to which my comments were linked has been dropped, so that my paper has no longer a direct link with Tremblay's contribution.