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Book Review - The Law of Deliberative Democracy

Reviewed by Jonathan W. Kuyper - 1st September 2017
Book Review - The Law of Deliberative Democracy

The Law of Deliberative Democracy by Ron Levy and Graeme Orr. Abingdon, Oxon: Routledge, 2016. 239 pp, £110 hardcover 9780415705004, £39.99 e-book 9781315890159

With this book – The Law of Deliberative Democracy – Ron Levy and Graeme Orr have done several remarkable things. First, they have managed to carve out a new field of study, namely the eponymously titled ‘Law of Deliberative Democracy’. This incipient field, to use the authors’ words, seeks to understand the extent to which the law of politics matches deliberative democratic ideals, and whether and how it should do so (p. 6). Second, and in undertaking this first task, the authors have managed to bridge two disciplines with great mastery – that of law and that of political science/political theory. Finally, Levy and Orr have successfully brought a raft of empirical matter to bear on their more theoretical claims in persuasive ways.

The book contains four parts: an introduction on deliberation in a juridifying and judicialized world; a section on the foundations of deliberative theory, especially as it pertains to the law of politics; a third partition on the problems facing the law of deliberative democracy; and finally a conclusion. This third section does most of the book’s heavy lifting in which the authors subject key virtues upheld by legal norms to deliberative scrutiny. These virtues are liberty, equality, and integrity.

Ultimately, the book is a dense read despite only covering 200-odd pages. The argument is multi-faceted, and there were moments where it became difficult to see a singular thread in the text (I think the authors would agree that there is not a single thread, but rather a rope made up of different threads combined to make a stronger amalgam). As this is a book review, though, I will seek to elucidate several of the core arguments, expound a few problems with the contentions, and suggest alternate directions the authors (or others) could take in similar studies.

The book covers a lot of terrain impressively. As a theorist versed in deliberative theory, the theoretical discussion about how law and politics intersect (Part I) is interesting, and the section on deliberative democracy’s foundational aspects (Part II) was both robust and accurate. But it is in the next section (Part III) that the book uncovers its analytical promise. The main argument underpinning the book is that deliberative democrats and legal scholars have talked past each other, to the detriment of both fields. What we require is a better understanding of not just how deliberative democracy can shed light on the legitimacy of legal arrangements but that legal norms enable and constrain deliberative democratic processes in constitutional liberal democracies. While deliberative democrats have focused on the former – notably Habermas’ vociferous defense of his discourse principle – the latter analysis has often been ignored.

To rectify this lacunae, Levy and Orr focus on how law creates the conditions for what they call ‘second-order deliberation’. This category contains legal rulings surrounding the conditions of democracy itself – electoral rules, redistricting, campaign finance, and so on. It is juxtaposed against first-order deliberation, which includes policy decisions that are made within the strictures of second-order deliberation – politicians making health care policy or levying taxes, judges reviewing human rights legislation, and so on. The authors seem to give second-order deliberation ontological primacy in their evaluation of how deliberation and legal principles might be reconciled, as second-order deliberation constrains first-order.

The second major argument of the book is fleshed out convincingly next (Part III). The authors argue that the key legal principle of proportionality invoked by judges often pits deliberative democracy against key normative virtues such as liberty, equality, and integrity (these three values respectively constitute the three chapters of Part III). While the arguments in each sub-section cannot be rehashed here, the authors rightly note that judges often find that deliberative democracy is in tension with other key values (i.e. negative liberty requires less state intervention and thus impedes the creation of legal norms that would promote more citizen deliberation). The authors find similar tensions with equality and integrity, and substantiate these claims by looking at a range of case studies from polling regulation, truth in political campaigns, public broadcasting of campaign mandates, and gerrymandering.

The authors conclude that proportionality fails to do justice to deliberative democracy: only a thin reading would support a contrast between liberty/equality/integrity and deliberative democracy. Thicker readings of these values, however, allow for a reconciliation with deliberative democracy so that they become mutually supportive rather than zero-sum. The authors cleverly demonstrate how a more nuanced conception of deliberative democracy arrives at additive rather than subtractive efforts to enhance deliberation and liberty (p. 108), more robust forms of political equality (p. 141), and a guidance model of integrity that supports more deliberative forms of partisanship over agonistic ones.

While well-reasoned theoretically and supported empirically, it is important to note some limitations to the arguments. First, methodologically, the authors argue that the cases they choose to elucidate their key points derive from Australian, Canadian, and U.S. examples. The motivation is that the ‘geographic breadth is in keeping with the authors diversity of experience’ (p. 12). While this is certainly good motivation for study, in a book seeking to bridge law with political theory, it would be nice to see a more social scientific justification for the case selection. What do the cases tell us about generalizability of the arguments? Do the cases contain similarities or differences that shed light on key variables? And, based upon this, what lessons can we learn for normative theory building? For instance if the cases are selected on a most-similar case design, what do different outcomes tell us about limitations or potentialities about building public deliberation in law? These kind of methodological treatments required more work.

Second, conceptually, I struggled with the distinction between first- and second-order deliberation. To my mind, they cover different legal scope, but are not of different kind from other policy decisions. For instance, it seems to me that Habermas’ basic discourse principle – that laws should be reasonably justified to all affected actors through reasoned deliberation – would legitimate laws about democratic institutions as well as policies made within those institutions. Why should we think that proportionality – balancing deliberation (even in thick ways) with other normative values – is the right way to imbue deliberative principles in legal and political life? Should we not simply strive to make the conditions of democratic politics itself justifiable in terms of deliberative democratic ideals? The authors might respond that this ignores the reality of how judges make decisions: but it would not tell us why this option should be abrogated in favor of the status quo.

Finally, theoretically, I have the impression that Levy and Orr underestimate the impact of elites – judges and politicians – on the general public. This is a flaw infecting much political theory, including Habermas’ two-track theory. But it is increasingly clear from work on political representation and public opinion research that elites do not just respond to the preferences of those they are supposed to represent, but actively construct those preferences (1). This basic insight forces us to question the utility of making second-order decisions more deliberative. On one hand, if those who decide the architecture of democracy make decisions in light of the preferences of those governed – but yet shape those preferences – then attempts to rework the law of politics in more deliberative ways must face this empirical reality. How do we know if policy makers have followed citizen preferences, or shaped them to suit their own? This is a key question even for second-order deliberation, and it is hard to avoid a paternalistic argument in which theorists judge whether preferences were followed or shaped in democratic or non-democratic ways. On the other hand, the law of politics cannot simply be about balancing a thicker conception of deliberation against other normative values to create more robust polities. Instead we often encounter mass citizenries that want to re-write those ideals. Many think that those on the other side of partisan aisles should be distrusted, for instance, in ways that undercut integrity and equality. Are integrity and equality the right values to be balanced against, then? What if citizens reject these values? Telling us that thicker forms of deliberation will lead to deeper realization of other values in proportionality tests is normatively beneficial at one level, but given that the legitimacy of law comes from justification to actual citizens, dealing with their existing preferences for re-interpreting key values cannot and should not be avoided.

Ultimately, however, the arguments made throughout the book are persuasive. The authors go to lengths to iterate and reiterate their arguments in engaging ways, and readers who seek to engage with the complexity of the key claims – and others interested in how law and democracy interact – should read this book.

 

Jonathan W. Kuyper is an Assistant Professor at the University of Oslo and Research Fellow in the Department of Political Science at Stockholm University. He is interested in a range of normative issues in global governance. His work has been published in the American Political Science Review, Environmental Politics, Review of International Studies, and the European Journal of International Relations.


Notes

(1) Michael Saward, "The representative claim." Contemporary political theory 5, no. 3 (2006): 297-318. See also John Zaller, The nature and origins of mass opinion. Cambridge university press, 1992.