Participation and Constitutionalism
| Author | Peter Cane |
| DOI | 10.22145/flr.38.3.2 |
| Published date | 01 September 2010 |
| Date | 01 September 2010 |
| Subject Matter | Article |
PARTICIPATION AND CONSTITUTIONALISM
Peter Cane*
INTRODUCTION
This essay addresses two related questions: is participation by citizens in
administrative decision-making constitutionally regulated? And if so, to what extent
and in what c ircumstances? Obviously, answers to these questions may vary from one
constitutional system to another. The limited aim of the essay is briefly to survey some
of those ans wers and suggest how they might be explained. I will not attempt to state
comprehensively the relevant law of any jurisdiction, but I will draw illustrations and
examples from several. Nor (for reasons of space) will I tackle any of the underlying
theoretical, empirical and practical questions about the functions, ef fects, costs and
benefits of participation and its constitutional regulation. Nevertheless, t he essay's
modest objective is worth pursuing in order to provide a clear analytical framework
for consideration of such questions. Much of the very large literature on participation
does not expressly advert to its constitutional regulation.
Amongst the large themes of political science and pol itical theory of the past half -
century have been the role of citizens in public affairs, both as individuals and as
members of — or represented by — groups; and an associated shift in emphasis from
representative government to 'participatory democracy'. Witness the publicatio n by the
American Political Science Association in 2008 of a volume of collected essays in its
'Classics' series entitled The Age of Direct Citizen Participation.1 Among the 'i sms' of
political theory, liberalism — commonly said to provide the basis for classical notions
of representative government — now competes with pluralism, corporatism,
republicanism and other participatory ideologies for pride of place in explanations of
and prescriptions for the design of public institutions and processes.
The conceptual foundations of modern Western constitutionalism were laid before
the advent of universal adult suffrage at a time when public affa irs were the business
of a tiny elite. A constitution embodies the most basic features of a society's ideas about
how it should be run, and is the place to look to assess the depth of its commitment to
participation by its citizens in the governance of its affairs. Constitutional practice and
interpretation have adapted to universa l suffrage in variou s ways. This es say is
concerned with how contemporary ideas about participatory governance are reflected
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* Australian National University College of Law. I am very grateful to Geoffrey Lindell,
Leighton McDonald, Fiona Wheeler and an anonymous referee for constructive comments
on an earlier version of this essay.
1 Nancy C Roberts (ed), The Age of Direct Citizen Participation (2008).
320 Federal Law Review Volume 38
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in constitutional documents and doctrine. The focus w ill be on participation by citizens
in administrative decision-making. This is no small concern. The roots of modern
constitutionalism also predate the dramatic expansion of the role of government in
social and economic life, and the accompanying growth in th e size of the executive,
that began in the early 19th century and continued more-or-less unabated until the
1980s. In the administrative state, citizen participation in administration is at least as
important as participation in legislative politics and the judicial process.
The first section of the paper outlines three modes of participation in public
decision-making. The second section describes three modes of constituti onal regulation
of participation. The subsequent three sections respectively discuss h ow each of the
three identified modes of participation is constitutionally regulated.
1 Modes of participation
Participation is a complex concept; but for present p urposes it will suffice to identify
three modes of citizen participation in public decision -making: popular, contributory
and contestatory. First, popular participation is participation by voting, either in
elections or in referenda — in other words, either for (or against) officials or
propositions, respectively. Referenda are typically used to authorise the enactment of
constitutional or statutory provisions and so are of little salience to this paper, which is
concerned with sub-constitutional and sub-statutory rule-making. Popular
participation is a mode of individual, as opposed to group, involve ment in governance.
It is commonly associated with concepts of 'liberal democracy'.
Secondly, contributory participation (which occurs before or at the time a decision
is made) may be understood in either competitive or deliberative terms. In competitive
terms, contributory participation is analogous to adversaria l litigation, involving
presentation of 'proofs and reasoned arguments'2 to a body or official empowered to
make a decision to which the arguments are addressed and required, in doing so, to
take account of those arguments. This version of contributory participation is
commonly associated with pluralist interpretations of political processes. By contrast,
in deliberative terms contributory participation involves interactive discussion of
issues relevant to a decision to be made. The role of the decision- maker in such
discussions is that of participant or, perhaps, facilitator. This version of contributory
participation is commonly associated with republican understandings of political
processes.
Thirdly, contestat ory parti cipation3 (which occurs after a n administrative decision
has been made) involves challenging a decision, by judicial review for instance, or
appeal to a tribunal or complaint to an ombuds man. The degree to which the citizen
plays an active role in challenging the decision may vary from one mode of challenge
to another. A citizen who complains to an ombudsman may play little or no part in t he
investigation and resolution of the complaint, merely being notified of the result at the
end of the process. By contrast, judicial review, for instance, involves the active
participation of the applicant in the process of resolving the dispute. Modes of
challenge also differ in the degree to which they are adversarial on the one hand or
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2 Adopting Lon Fuller's famous phrase: 'The Forms and Limits of Adjudication' (1978) 92
Harvard Law Review 353.
3 This term is borrowed from Philip Pettit, 'Democracy, Electoral and Contestatory' in
Ian Shapiro and Stephen Macedo (eds), Designing Democratic Institutions (2000) 105.
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