Law and Deliberative Democracy: Current Questions

Abstract

The 'law of deliberative democracy' field is a hybrid of legal and deliberative democratic theory. This hybrid field has arisen – and indeed burgeoned over the past decade – given the common concern of both constitutional and deliberative democratic theorists to find out how deliberation and democracy can be squared with one another. For example, can the adjudication of constitutional rights disputes enhance deliberation in deeply contentious and divisive policy areas (eg Covid-19, climate and systemic inequality) without simply setting democratic participation in policymaking aside? While constitutional and deliberative democratic theory have each long puzzled over this question, the law of deliberative democracy field uniquely draws together insights from each. Deliberative democratic theories, for instance, can help to draft normative guidelines for legal rights adjudicators to preserve both deliberation and democratic input. Moreover, the literature on deliberative democratic institutions can be relied on to suggest how adjudicators can give concrete effect to such normative objectives. This chapter initially provides an overview of central questions in the law of deliberative democracy. It then provides an update on recent directions taken in the field, before finishing by speculating about future directions. Show more