The Law of Deliberative Democracy

Ron Levy, Graeme Orr

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781134502066
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

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.

Essential reading for those interested in either law or politics, 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 deliberation 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.

Part I

Introduction

Chapter 1

Deliberation in a Juridifying World

Wherever there have been democracies, there have been critics of democracy concerned about the apparent tension between sound governance and mass rule.¹ On the one hand, governance should be deliberative – for instance, well-informed, cooperative, reflective, and capable of issuing sound policy and law. But it should also invite widespread democratic participation by citizens, through voting and other means.

Classically, governance was understood as either deliberative or democratic, but seldom both at once. Aristotle, among others, saw value in collective decision-making, but preferred an aristocratic ‘government formed of the best men’.² When democracy resurfaced in the modern age, these ancient anxieties returned. JS Mill lamented the ‘low calibre of the men’ at the helm in government. He wished instead for elites – ‘leading minds’ – to assume prominent, educative roles: to demonstrate by example how to ‘reason intelligently about the ends of politics’.³

As old as the tension between deliberation and democracy is, in recent decades it has seemed to grow more acute. Runaway policy complexity – in economics, the environment, international affairs, and much else – coexists uneasily with the global rise of procedures that require direct lay-person participation, such as referendums.⁴ Timeworn models of representative democracy also frequently fall short in deliberative terms, beset as they are by polarisation and other pathologies. Many democracies have seen the potential for decisive and efficient public action decline as democratic practices have come to be characterised by more robust public distrust and scrutiny of government, and by more vigorous partisan clashes within government. The result is often either stasis or rule by technocratic and bureaucratic elites.

One promising response to the deliberative tension in contemporary governance has been the partial reorientation of political theory over more than two decades. In that time the literature on deliberative democracy has solidified a number of central questions and propositions. A particular concern in the field is whether the deliberative tension is to some extent illusory: whether in fact particular governance models can sometimes robustly encourage, at once, both democratic participation and deliberation.⁵

Deliberative models of democracy aim to reach well beyond rudimentary majoritarianism to accommodate other democratic values. Some authors in deliberative democratic theory’s normative strand of research even stress that only democratic governance that is able to achieve deliberative goals qualifies as legitimate.⁶ To be sure, the task of accommodating both deliberation and democracy is profoundly vexed. Yet, to many deliberativists, the status quo in governance is more problematic still, and perhaps even untenable. For instance, the deliberative tension is one likely cause of the long crisis of legitimacy afflicting developed democracies since the 1960s, reflected in largely unbroken trends of declining public trust.⁷ Unable or unwilling to meet both deliberative and democratic demands, the perceived legitimacy of governments and even whole political systems may weaken – along with their capacity to respond to pressing challenges facing each polity.

Of course, deliberative democrats are aware of the many practical barriers facing their field’s grand normative goals.⁸ Studies in the empirical strand of deliberative democracy research often reveal a difficult environment for deliberation. For example, endemic partisan polarisation and low voter information may frustrate deliberative ideals of cooperation and informed democratic consent. Importantly, however, such empirical factors are not merely impediments to deliberative democracy; they are also the challenges to which deliberative democratic theory is geared. To many deliberative democrats, a hard empirical context only makes their work more urgent.

In its institutionalist strand, therefore, deliberative democracy scholarship offers practical solutions. These are efforts to navigate the field’s freighted normative aspirations and empirical constraints.⁹ Citizens’ Assemblies are often-cited examples; made up of essentially randomly selected citizens, these Assemblies undertake several months of intensive learning, debate, and public consultation before issuing a recommendation for reform, such as a new voting system.¹⁰ Early, promising experiences with these bodies in Canada inspired spin-offs, and a veritable flowering of enthusiasm among scholars and reformers. The deliberative turn in political theory – a field hardly known for unchecked optimism – has attracted many new converts intrigued by its possibilities.

The place of law

Legal scholars have been slow to join the deliberative turn. Only a handful have examined laws’ roles in contributing to and constructing – or at times frustrating – more deliberative forms of democracy.¹¹

Yet the use of statute and judge-made law to regulate political process has burgeoned in liberal democracies, reflecting attempts to grapple with pathologies like corruption, electoral inequality, and concentrations of official power. In most Western countries the core features of electoral law, such as campaign length and voting systems, were laid down by the early twentieth century. Beginning around the 1960s, and building on those foundations, ‘modern’ electoral, referen dum, party, and parliamentary law proliferated dramatically. By our own count, the main statutes governing elections at the national level in countries such as Australia and the United Kingdom grew nearly tenfold over the last century.¹² Sub-national (including local) statutory developments, delegated regulation, and case law have complicated this history even further. All this represents a story of striking expansion. Laws have colonised most of the corners of democratic practice and now substantially determine the process and even the product of democratic deliberation, often in dense detail.

Many countries have therefore witnessed rising juridification (subjecting politics to legal ordering) and judicialisation (court review of political controversies).¹³ Especially since the 1990s, the response from the academy has been a steep rise in research into the law of politics – that is, law regulating the sites of political choice in a democracy. Studies in the area now divide into several subfields, the largest and best-developed of which are electoral and referendum law. There is also rising attention given to party regulation,¹⁴ and parliamentary law.¹⁵ Common to them all is a focus on how legal norms shape political decision-making by setting the ground rules, conditions for umpiring, and proper scope of debate among democratic participants.

But, while by now well-established, each subfield still often suffers from having developed around a limited set of substantive theories about politics. Regulatory analysis in the law of politics occurs within restricted normative confines revolving around a triad of values: political liberty, equality, and integrity. These dominant frameworks entrench assumptions that political process means intractable conflict, to the exclusion of ‘the possibility of agreement’.¹⁶ Deliberative ideals frequently are not merely absent, but are trumped by conceptualisations rooted in the marketplace or politics as a game.¹⁷ Scholarship thus leans toward metaphors of politics as ‘competitive’ or ‘uncompetitive’; subject to ‘monopolies’, ‘duopolies’, and ‘lockup’;¹⁸ threatened by ‘“rent-seeking”, “agency problems” and “externalities”’;¹⁹ and fought upon level or uneven ‘playing fields’.²⁰

Just as studies of the law of politics have neglected deliberative theory, the converse is also true. Research on how institutions can shape deliberation to yield more trusted and effective governance is extensive, but often lacks analyses of laws as critical, and qualitatively distinct, features of the deliberative democratic institutional landscape. To the extent there is now a body of established deliberative legal theory, it is most often concerned with theorising the legitimacy of constitutional review of legislation, and with constitutional reform.²¹ Work still centres on constitutional questions such as ‘what ought to be in a constitution’ or ‘how we ought to interpret a constitution’,²² and whether deliberative innovations such as Citizens’ Assemblies can enhance the legitimacy of constitutions and constitution-making.²³

Deliberative democrats have not always recognised law’s wider perfusion through democratic politics. Of the vast class of legal norms shaping political conduct, constitutional laws form an important subset; yet the far larger set is that of statutes, regulations, rules of common or judge-made law, and conventions that variously colour and constrain politics.²⁴ Outside the limited constitutional arena, however, no works have previously given sustained attention to the full range of legal dimensions of deliberative democracy, nor to the deliberative dimensions of the law of politics. The deliberative and legal turns in the scholarship of politics still therefore seldom intersect.

Perhaps unsurprisingly, then, most contributions in deliberative theory demonstrate only a general understanding of the roles of law. Nearly all neglect to address law as a heterogeneous set of norms whose influences on political practice are both substantial and varied. Even Jürgen Habermas – a founder of deliberative theory, and the political theorist perhaps best apprised of law’s deliberative roles – views law at a level of generality that overlooks much of what is institutionally distinctive about it. As Simone Chambers puts the point, ‘Habermas is dealing with law at the highest level of abstraction’, but ‘questions of institutional design are best addressed within a particular legal and constitutional tradition’.²⁵ Omissions like his are common: the ‘institutional perspective of lawyers leads to an entire apparatus of rules that are alien to’ other disciplines.²⁶

Yet, even if unsurprising, it is regrettable that contributions to deliberative theory continue to undervalue laws’ institutional roles. Laws not only create, but are integral to (even constitutive of) the sites of political deliberation. Deliberative democrats continually hatch institutional reform schemes. However, given the deep and widespread juridification of democratic politics, such schemes might have limited impact so long as the forms and substance of the law of politics fail to align with them. The law of politics has the potential both to enable and to frustrate deliberative democrats’ best-laid plans.

Charting the law of deliberative democracy

This book brings deliberative democratic perspectives squarely into the study of the law of politics, and vice versa. It extends the scholarly view of the law of politics beyond the traditional triad of normative concerns, and applies deliberation as a distinctive value. The book offers the first full-length examination of the extent to which the laws of politics match deliberative democratic ideals, and how and whether they should try to do so.

At the broadest level our goal is to describe the contours of an incipient field of legal analysis, the law of deliberative democracy. This encompasses a vast area of inquiry – certainly broader than we can cover in a single volume. The present volume touches on every aspect of the field, but most of all addresses election law: that body of laws regulating parties, candidates, voters, and other actors in the campaign and polling for representative elections. In addition to election law, the law of deliberative democracy includes other domains of the law of politics raising distinctive deliberative considerations:

• Referendum law. Unlike elections, referendums engage voters in deliberation on just one, or a handful, of discrete reform questions.

• Constitutional law, adjudication, and reform. Writing new constitutional norms, or adjudicating existing ones, raises greater-than-normal expectations for a process that is both democratic and deliberative.

• Human rights norms. Adjudicating fundamental rights under law can reshape and coerce political decision-making in ways occasionally contrary to democratic deliberation, though (as we see in later chapters) whether it does so depends on judicial methodology.

• Parliamentary (or Congressional) law. A raft of rules regarding legislative debate and lawmaking regulate the relatively elite and bounded deliberation of legislative bodies.

Each of these areas is wide and distinctive enough to deserve separate, book-length treatment. And we hope that other volumes in future will analyse them comprehensively through a deliberative lens. Some works have already ventured partway in this direction.²⁷ Yet election law is the branch of the law of deliberative democracy still least explored. We devote most of our attention to election law principally for this reason.

Of course there is overlap among the branches. Much election law is constitutional in nature, and many election laws assume the form of rights (an example of the former is a set legislative term; an example of the latter is a minimum voting franchise). As well, in the era of the ‘permanent campaign’, it can be difficult to distinguish between electoral and parliamentary law. For instance, rules about pecuniary and other corruption, or about government formation or dissolution, govern political process in the twilight spaces between electoral and parliamentary practice. However, if election law is as broadly relevant for democratic practices of deliberation as we suggest, then exploring this branch of the law of deliberative democracy is a matter of particular relevance, and even urgency. Whether implicitly or explicitly, and unintentionally or by design, election law substantially determines the deliberative quality of democratic decision-making. The main sites of legal regulation of elections arise along the path to the campaign, in the campaign itself, and at the vote and its aftermath. In the chapters of this book we look at...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• Introduction
• Deliberation in a Juridifying World
• Foundations
• Deliberative Democracy and Elections
• Deliberative Democracy and the Law of Politics
• Problems in the Law of Deliberative Democracy
• Liberty v Deliberation (The Accommodation Problem)
• Equality v Deliberation (The Equality Problem)
• Integrity v Deliberation (The Partisanship and Coercion Problems)
• Conclusion
• Deliberative Democracy as an Holistic Value
• Bibliography
• Index