Law and Democracy in Deliberative Theory and Practice
| Published date | 01 September 2018 |
| Author | Donald Bello Hutt |
| Date | 01 September 2018 |
| DOI | http://doi.org/10.1111/1758-5899.12570 |
Law and Democracy in Deliberative Theory and
Practice
Donald Bello Hutt
Independent scholar
The Law of Deliberative Democracy by Ron Levy and
Graeme Orr. Abingdon: Routledge, 2016. 239 pp., £110 hard-
cover 9780415705004, £36.99 paperback 9781138481886
Deliberative Democracy between Theory and Practice
by Michael A. Neblo. Cambridge: Cambridge University
Press, 2015. 215 pp., £64.99 hardcover 9781107027671,
£18.99 paperback 9781316649169
Ron Levy and Graeme Orr’sThe Law of Deliberative
Democracy and Michael Neblo’sDeliberative Democracy
between Theory and Practice are important contributions to
democratic theory and, in particular, to deliberative democ-
racy. Both books engage with state of the art discussions on
pressing issues in political theory in profound, well-articu-
lated fashions.
In this review essay I proceed by first describing the main
theses of these books, their structure, and their conclusions,
and finish with critical remarks. Let me begin with The Law
of Deliberative Democracy.
Levy and Orr have managed to bring together two sepa-
rate fields, namely deliberative democratic theory and what
they refer to as the law of politics, in a complex and innova-
tive manner. The book is insightfully written so as to use
each discipline to cover some of the scholarly gaps exhib-
ited in the other. Their premise is that ‘[l]egal scholars have
been slow to join the deliberative turn ... [and] [d]elibera-
tive democrats have not always recognized law’s wider per-
fusion through democratic politics’(pp. 4–5). They thus seek
to extend the scholarly view of the law of politics beyond
traditional concerns over the values of liberty, equality and
integrity ‘to critique, and ultimately to update, certain rou-
tine assumptions about law in deliberative democratic the-
ory’(p. 8). In short, they criticise the deliberative democrats’
neglect to consider how legal norms enable and limit demo-
cratic processes of deliberation and legal scholars’resistance
to enter the field of deliberative democracy.
These problems are dealt with in four parts. Part I (the
book’s introduction and Chapter 1) poses the question of
what the role of deliberation in a world of increasing juridifi-
cation is. Part II (Chapters 2 and 3) reconstructs and dis-
cusses the foundations of deliberative democracy, with a
focus on the law of politics. Part III (Chapters 4 to 6) critically
surveys problems in the law of deliberative democracy by
tracing ‘how the essential propositions [of deliberative
democratic theory developed in part II] apply to the law of
politics’doctrines of political liberty, equality, and integrity’.
The last part (Chapter 7) offers concluding remarks.
The book advances two major arguments. The first, devel-
oped in Parts I and II, examines different ways in which law
shapes and/or conditions what they coin ‘second-order
deliberation’, that is, ‘questions concerning deliberation
about the process of democratic decision-making itself’(p. 9.
Emphasis in the original). The book contrasts this category
with that of ‘first-order deliberation’, which ‘concerns the
collective process for writing substantive policies that have
direct effects on the lives of citizens’(p. 9). The authors give
second order deliberation primacy over first order. As a
result, second order deliberation is the perspective from
which the analyses of the theoretical arguments and case
studies in the book are undertaken.
The second major argument, mostly developed in Part III,
is that judicial reasoning and, most prominently, the method
of proportionality often used by judges to reduce complex-
ity when balancing competing principles of liberty, equality,
and integrity, is at odds or in tension with deliberative val-
ues and/or other aspects of democracy (e.g. free speech).
This is, Levy and Orr argue, to the extent that the values
balanced are seen in a thin way. By contrast, thick readings
of liberty, equality, and integrity open paths for reconciling
these values with deliberative democracy.
In a nutshell, their point in this book is that their under-
standing of deliberative democracy: (1) allows for a ‘accom-
modative approach and jurisprudence, which understands
liberties of expression not as one-dimensional rights, but as
part of a deliberative system of discourse’(p. 108); and (2)
offers a solution to the conflict in the law of politics
between equality and deliberation. In Levy and Orr’s word-
ing ‘an apparent conflict between deliberation and ...
equality in the law of politics is illusory ... [T]he law of poli-
tics should favour [a] thick conception, which gives equality
in law a novel aspect largely distinct from other, well-worn
legal equality categories’(p. 121). Furthermore, their view of
deliberative democracy (3) represents a valuable tool for
overcoming problems of integrity in the law of politics (par-
tisanship and coercion). For them ‘carefully tailored laws and
institutions may engender integrity, even in the face of
extreme partisanship’(p. 151).
Several critical remarks are in order, but given space limi-
tations, I will focus on two. First, the book does not ade-
quately justify the authors’selection of Australia, the UK,
Canada and the US as the countries for their case studies
other than that this geographic ‘breadth is in keeping with
the authors’diversity of experience’(p. 12). Although they
©2018 University of Durham and John Wiley & Sons, Ltd. Global Policy (2018) 9:3 doi: 10.1111/1758-5899.12570
Global Policy Volume 9 . Issue 3 . September 2018
434
Review Essay
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