Rights and Deliberative Systems (original) (raw)
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The Law of Deliberative Democracy (book): Deliberation in a Juridifying World (ch 1)
Laws have colonised most of the corners of political practice, and now substantially determine the process and even the product of democracy. Yet analysis of these laws of politics has been hobbled by a limited set of theories about politics. Largely absent is the perspective of deliberative democracy – a rising theme in political studies that seeks a more rational, cooperative, informed, and truly democratic politics. Legal and political scholarship often view each other in reductive terms. This book breaks through such caricatures to provide the first full-length examination of whether and how the law of politics can match deliberative democratic ideals. The book presents a challenging critique of laws governing electoral politics in the English-speaking world. Judges often act as spoilers, vetoing or naively reshaping schemes meant to enhance deliberation. This pattern testifies to deliberation's weak penetration into legal consciousness. It is also a fault of deliberative democracy scholarship itself, which says little about how deliberative democracy connects with the actual practice of law. Superficially, the law of politics and deliberative democracy appear starkly incompatible. Yet, after laying out this critique, The Law of Deliberative Democracy considers prospects for reform. The book contends that the conflict between law and public deliberation is not inevitable: it results from judicial and legislative choices. An extended, original analysis demonstrates how lawyers and deliberativists can engage with each other to bridge their two solitudes.
Deliberative Democracy and Constitutionalism Aleksandar Jovanoski
2014
— 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 do...
Deliberative Democracy and Liberal Rights
Ratio Juris, 2001
Many liberals cannot help distrusting deliberative democracy theory. In their view, the theory offers no sufficient guarantee that the outcomes of democratic deliberation will be respectful of individual interests generating what they conceive as basic moral rights. The purpose of this text is to provide one argument showing that liberal rights are sufficiently protected within deliberative democracy theory. The argument does not rest on the idea of moral rights or material justice. It rests on the conditions of legitimate law deliberative democracy theory presupposes, namely, the conditions that make concrete the idea of legitimacy as “actual public justification.”
Federal Law Review, 2025
Strong constitutionalism usually conceives rights as instruments for protecting people. The problem with this conception is that it generates legal alienation, since it views people as passive recipients of protection, which is an exclusive matter for the state and, ultimately, for judicial review. In contrast, deliberative constitutionalism gives people an active role in deliberating about rights, among themselves as well as between them and the state. However, despite the development of deliberative constitutionalism, it is not yet clear what this view of rights requires of judicial review. Accordingly, this contribution to the Federal Law Review’s symposium issue on deliberative rights theory argues for deliberative judicial review, which is a form of judicial review that, by respecting and promoting democratic deliberation, offers better protection of rights, as well as greater impartiality and legitimacy. In support of this argument, the article first makes explicit that the guide that should orient judicial review is not deference or activism but rather democratic deliberation. Next it states that, from this guide, a form of judicial review should be inferred that is not merely substantial or merely procedural, but rather semiprocedural. It then argues that, notwithstanding contextual turns, weak constitutionalism or non-final judicial review combined with channels of social dialogue offers a better institutional basis for deliberative judicial review than strong constitutionalism or final judicial review. Finally, it concludes that deliberative judicial review respects and contributes to articulating rights without legal alienation, i.e. through dialogue among all potentially affected persons.
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...
Revus. Journal for Constitutional Theory and Philosophy of Law, 2023
Deliberative constitutionalism is a theory that has arrived at the centre of the academic debate in recent decades. Its novelty and interest lie in the fact that it offers a way to escape the objections to judicial review through a commitment to the premises of deliberative democracy. In this context, however, a question needs to be clarified: who can legitimately participate in this constitutional dialogue, in order for the objections to judicial review to be avoided? The argument of this article is that, while deliberative constitutionalism is a promising alternative that takes note of the objections to judicial review as well as the deliberative turn in democratic theory, not all of its variants take both of these aspects seriously. To assuage the objections to judicial review, we need a variant of deliberative constitutionalism that is oriented towards inclusive dialogue, and which addresses the whole constitutional system, rather than only intrajudicial, transjudicial and interinstitutional dialogue.
Deliberation, Democracy and the Systemic Turn (co-authored with Graham Smith, JPP final)
Deliberative democracy as a theoretical enterprise has gone through a series of phases or ‘turns’. The most recent manifestation of this dynamic is the idea of the ‘deliberative system’, of which a variety of formulations have been proposed. An important initial attempt to offer a reflective synthesis of work on deliberative systems is the recent essay, ‘A systemic approach to deliberative democracy’. Co-authored by an impressive range of deliberative theorists (Jane Mansbridge, James Bohman, Simone Chambers, Thomas Christiano, Archon Fung, John Parkinson, Dennis Thompson and Mark Warren), the essay has become a manifesto for the systemic turn (henceforth we refer to the essay as the ‘Manifesto’). In this article, we offer a critical reconstruction of the systemic turn and, more particularly, the theoretical trajectory proposed by the Manifesto. Specifically, we distinguish the characteristics of currently dominant approaches to deliberative systems, arguing that there are good reasons to be cautious concerning the merits of this systemic turn and sceptical in respect of its credentials as an expression of deliberative democracy as a political ideal. We offer a sustained critique of the current trajectory of the deliberative systems literature, before sketching two constructive alternatives.
Democratic Theory
Normative democratic theory with a focus on civic engagement is increasingly interested in how participatory instances connect into democratic systems (Dean, Rinne, et al. 2019; Elstub et al. 2018). The deliberative perspective has pioneered this debate and proposes a systemic view that observes how everyday talk and media discourses connect deliberative forums including parliaments, mini-publics, and protest formations (Mansbridge 1999; Mansbridge et al. 2012). While various approaches within the deliberative systems debate can be differentiated (Owen and Smith 2015), they commonly understand deliberative qualities as distributed within a broader system and focus on scaling up democratic deliberation through the transmission from the public to state institutions (Chambers 2012; Dryzek 2009).
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?
Implementation of Economic, Social and Cultural Rights. Perspectives from Deliberative Democracy
Trinity College Law Review, 2016
The practical difficulties of judicialising ESCRs often overshadow the conceptual barriers. Enforcing ESCRs naturally provokes questions about the fair allocation of scarce resources. Without unlimited resources, governments and policymakers must inevitably prioritise certain rights over others, selectively allocating resources to further only a handful of causes. This style of decision-making, it will be seen, often unfairly restricts the benefits of ESCRs to certain sections of the population. This essay argues that many of these practical injustices stem from an inadequate institutional framework. An institutional framework that leaves ESCRs unenforced and unenforceable calls into question their status as human rights. The purpose of this essay is manifold: it aims to analyse the issues raised by the implementation of ESCRs and then forward the notion that these difficulties could be circumvented by reinterpreting the implementation of ESCRs from the perspective of deliberative democracy. This essay is divided into three parts. The first part outlines the two major issues facing the implementation of ESCRs. The second part offers a critique of the current model of representative democracy in the context of the implementation of ESCRs. Following the seminal work of Habermas, Gutmann and Thompson, the second part continues by outlining the principles of deliberative democracy that will be tested in the third part. Finally, after considering some of the most compelling arguments raised by opponents of the judicialisation of ESCRs, the third part offers a fresh approach to the question of the implementation of ESCRs by exploring heterodox institutional engineering. It will be argued that mechanisms of deliberative democracy could circumvent many of the barriers raised against ESCRs.