I Introduction
Human rights raise dilemmas. One such dilemma is that while both deliberation and democracy are required for reasoning about rights, each seems to be incompatible with the other. Resolving rights disputes typically requires inputs from courts or other elite decision-makers capable of effective deliberation about legal details and technical evidence. Yet notionally deliberative actors with narrow technical expertise often cannot represent democratic communities’ diverse values and interests, which may also bear on rights decisions. For example, during the COVID-19 outbreak, while many rights disputes raised virological, economic, epidemiological and technical-legal questions, they also impacted and were understood by groups differently, based on factors such as age, class, culture or disability.
Theories of human rights typically recognise such dilemmas and offer theoretical and institutional replies in response. In recent years, in the commentary and practice of constitutional and quasi-constitutional human rights, many theorists have sought to expand democratic input into decision-making.Footnote 1 These democratising approaches perceive no real need to choose between deliberation and democracy. For example, dialogue theories imagine legislatures and judges passing a case on rights back and forth between them, with the result incorporating both democratic and elite-deliberative influences.Footnote 2 Related models include ‘collaborative’ and ‘responsive’ approaches, each seeking to accommodate both deliberation and democracy.Footnote 3 ‘Popular’, ‘political’, ‘democratic’, ‘minimalist’ and ‘deliberative’ theories of rights or constitutionalism, moreover, promote democratic carriage of cases, yet often nod to at least modest continuing roles for judges.Footnote 4 These assorted theories can be grouped together as ‘contemporary proceduralist’, as each preserves and relies on democratic procedures to help interpret and develop rights.Footnote 5
In this lead article for the Federal Law Review’s symposium on ‘Deliberative Rights Theory’ (hereafter ‘DRT’), we identify and evaluate a key development within the contemporary proceduralist movement: a deliberative democratic turn. As we will see, globally a number of works on contemporary proceduralism have adopted conceptual lenses from deliberative democracy, a prominent field of political theory. Much like legal commentary, deliberative democracy research has long considered the dilemma between deliberation and democracy (hereafter the ‘deliberation-democracy dilemma’). Yet deliberative democracy theory at times offers a more nuanced picture of this dilemma – and of the prospects of its resolution.
Deliberative democracy theory appears with increasing regularity, if still largely inchoately, in the rights literature. In this article, we map past research, summarising key past arguments within two strands of DRT: normative and institutional. We also make novel additions to the literature – as do the other articles of this symposium.
Within the existing normative strand of DRT, despite many variations, we can discern a core set of shared arguments in past commentary: that the participants involved in communication and decision-making about rights should afford each other the time and opportunity to make reasoned representations. In turn, if cogent and compelling, these representations should influence other participants’ preferences via uncoerced persuasion, generally irrespective of each other’s formal statuses.Footnote 6
While a number of works in DRT focus on these core principles, existing accounts are yet to explore their rationales in a sustained way. We develop such rationales here by deploying categories from deliberative democracy theory, including Habermas’s distinction between communicative (deliberative democratic) and ‘strategic’ interactions in decision-making.Footnote 7 Strategic actors do not aim to inform and persuade one another, but attempt to counter and block one another using what formal or informal power they possess. As we will see, some authors who subscribe to strategic models support judicial leadership of rights decision-making as a bulwark against democratic abuses. Others take the opposite tack and adopt anti-elitist approaches that invest strategic authority over rights in the democratic system itself. In our view, either strategic option falls short. Each merely recaps the deliberation-democracy dilemma: either democracy wins out over deliberation, or deliberation wins out over democracy. Strategic interactions over rights entail deliberative or democratic actors initially settling their views on rights independently from one another, and thereafter attempting to coerce and dominate one another.
By contrast, DRT aims for deliberative and democratic processes to influence each other via mutually persuasive interactions, with deliberative and democratic inputs each ideally improving the quality of the other in the course of their formation. We label this the ‘integrative ideal’ for human rights. Under the ideal, neither deliberation nor democracy generally forces the other. Deliberative and democratic representations about a given right instead develop in concert by persuasively reshaping and informing each other, beginning from an early stage. The normative parts of this article seek – uniquely in the literature thus far – to articulate and evaluate this ideal of rights practice systematically.
Of course, the integrative ideal imposes high demands on rights practice, which are far from easily achieved. Yet there has also been a marked development towards DRT institutionalism, which aims to operationalise DRT’s normative ideals. Globally,Footnote 8 a suite of new DRT institutional models aim to support deliberation in the course of democratic preference formation. These novel models potentially improve on both legislatures and courts, which have long been the focus of most contemporary proceduralist theories. A prominent development (though not the only one) is a rights-centred version of the deliberative ‘mini-public’. Mini-publics are assemblies of randomly-selected but demographically representative citizens who undergo extensive learning and facilitated deliberation, before issuing a reform recommendation on an advisory basis. In parallel research, we have empirically explored recent iterations of mini-publics centred on rights adjudication (eg finding 19 recent mini-publics focusing on rights adjudication in nine countries).Footnote 9 Mini-publics appear generally well-suited to operationalising ideals of reasoned persuasion and deliberative-democratic integration. The mini-public model seeks to integrate deliberative and democratic inputs into rights early in a democratic process, as well as to create relatively widely-trusted approaches to managing deeply divisive public policy debates.
The present article proceeds as follows. In Part II we outline the deliberation-democracy dilemma, noting how this formulation differs from the more standard court-legislature tensions observed in human rights scholarship. We then map out and evaluate the deliberative democratic turn’s theoretical and institutional strands, both addressing the deliberation-democracy dilemma. In Part III we describe normative DRT in ideal (‘in-principle’) terms to stipulate how deliberative democratic approaches would respond to the dilemma, assuming the right institutions were in place. In Part IV, we then turn our attention to those institutions. No institution can faultlessly fulfil DRT’s normative ideals. Nevertheless, we ultimately sound a positive, if cautious, note about several novel institutional options for DRT – at least some of which are promising responses to the deliberation-democracy dilemma.
II The deliberation-democracy dilemma and contemporary proceduralism
In this part we lay out the deliberation-democracy dilemma and explain how contemporary proceduralist models generally respond with varieties of democratisation. The essence of the deliberation-democracy dilemma is that there is, on the one hand, a need for deliberation about technical matters generally beyond the competence of democratic constituents, while, on the other hand, democratic input is also necessary. For example, the COVID-19 pandemic required deliberation about the virological, immunological and epidemiological features of the evolving virus. Also relevant were rates of infection, death and chronic illness, novel variants’ distinct epidemiologies, vaccine efficacy and safety, and the health and welfare costs and benefits of containment.Footnote 10 Economic costs and savings from the disease or its mitigation were also key considerations, which in theory were amenable to forecasting.Footnote 11 Technical legal questions also arose, for example around the constraints of federalism,Footnote 12 the applicability of specific rights,Footnote 13 and legislative or executive powers.Footnote 14
These factors could be assessed with scientific, economic or legal knowledge, but could still be contested. Some contestation turned on reasonable disagreement. Yet much also strayed into problematic forms of reasoning. Claimants were often fixated on the particular rights that suited their claims, and were in turn unresponsive to the reasonable competing claims of others. Those claiming rights or freedoms of life, privacy, bodily integrity, family and movement within the territory of a nation-state, for example, often misunderstood these guarantees as absolute.Footnote 15 Polarised conventional and social media prompted this phenomenon in part.Footnote 16 In many jurisdictions, political parties also assumed absolute positions for or against mitigation.Footnote 17 Such factors affected many jurisdictions’ abilities to reach stable and widely trusted agreements on mitigation, especially among disaffected groups whose interests did not prevail – or were ignored – in polarised policy contests.Footnote 18
Complex, probabilistic scientific determinations are ‘almost tailor-made to exploit the weaknesses of representative democracy’.Footnote 19 For instance, during the pandemic, many people held binary understandings of risks and expected absolute rather than relative protections from masks, vaccines or border closures.Footnote 20 Many also misunderstood the exponential nature of virus spread, insisting on weighing risks in static or linear terms.Footnote 21 Still others tended to minimise the risks from a microscopic and effectively invisible disease agent like SARS-CoV-2.Footnote 22 Political polarisation may have aggravated such empirical misunderstandings in turn. The phenomenon of ‘motivated reasoning’ generally causes polarisation over policy: individuals with strong affective needs to remain members in good standing of groups to which they belong often parrot party-line positions, even coming to believe them implicitly.Footnote 23
Given the doubts that democratic constituents and democratic procedures will decide technical matters with sufficient rigour, it may seem appropriate to turn to elite-deliberative decision-makers such as courts. But democratic content is also indispensable to reasoning about policy and rights.Footnote 24 Balancing rights against other rights (or other interests) requires weighing up subjective values and perspectives.Footnote 25 For instance, COVID-19 mitigation policies weighed the burdens and benefits of discrete groups (eg children kept home from school, as against elderly and other susceptible populations). Group-versus-group balancing cannot wholly depend upon scientific or economic criteria. It must turn as well on assessments of groups’ particular circumstances.Footnote 26 Amid the pandemic, these included stages of life, susceptibilities to disease, economic precarity, family composition, care responsibilities, historical encounters with government, and membership in identitarian groups.Footnote 27 Groups or individuals additionally ascribed varying degrees of value to life preservation and health, affective connection to family and social milieus, bodily integrity and autonomy, and personal information privacy.Footnote 28 Also relevant were personal dispositions of risk-taking or risk-aversion, extraversion or introversion, public-good orientation versus individualistic outlook, and general trust or distrust in the beneficence of governments.Footnote 29
Decisional factors such as these tend to be subjective in the sense that, though they may be shared to some extent by most people, their salience and weight vary markedly from person to person and group to group. So long as they are not intended to dominate, harm or exclude other groups or individuals, subjective individual or group concerns – interests, fears, passions, goals, preferences and normative values – can legitimately drive policy preferences.Footnote 30 Rights balancing is, indeed, not a wholly technocratic and abstract activity, but one that must take on board individual- and group-specific concerns that account for why a particular right or policy matters to particular people in particular ways and degrees.
To be sure, the boundary between subjective individual or group concerns, on the one hand, and technical factors, on the other, is often elusive. For instance, many individual or group preferences rest on normative values that are predicated on technical arguments (eg laissez-faire readings of property rights often assume that top-down economic regulation is economically inefficient). Yet the deliberation-democracy dilemma remains significant despite such ambiguities. When rights decision-making evaluates scientific, economic and other technical matters through polarised lenses (eg motivated reasoning), the result is liable to be technically unsound. Conversely, when values and interests are misunderstood as matters of objective judgment, seemingly best settled solely by judicial or other empowered elites, decision-making can be underinclusive and underinformed about relevant values, interests and preferences.Footnote 31
We have used COVID-19 cases as examples here – but only as examples. Many of the same observations could apply as well to other complex and contentious rights disputes. This group of disputes, whether debated inside or outside of the courts, raises considerations that are (i) technically arcane, thus requiring specific empirical, legal or analytic expertise that many citizens will not possess; (ii) quantitative, in that they call for precise line-drawing or balancing between competing concerns; (iii) based partly on value and other choices that differ based on individuals’ or groups’ circumstances and preferences; and (iv) prominent, in that they arouse public notice, controversy or inter-group division.Footnote 32 In both emergency and ordinary circumstances, many cases meet these conditions. Some concern ‘first-order’ substantive matters (eg climate change, discrimination or self-determination). Others are ‘second-order’ cases that directly or indirectly bear on political authority (eg voting rights, federal/devolved powers and the scope of executive action). We may find the deliberation-democracy dilemma arising in all of these cases.
Note that by focusing on this dilemma, we depart from the more common framing of a dilemma between courts and legislatures.Footnote 33 Yet the more essential tension is between deliberation and democracy. Both courts and legislatures (and other parts of government) can engage in quintessentially deliberative tasks: invoking technical expertise, balancing interests or values, and highlighting the interests of vulnerable minorities.Footnote 34 Thus, in some cases, tensions may arise between courts and legislatures, on the one hand, and democratic publics, on the other. In other cases, legislatures may represent majoritarian or populist perspectives and can seem hostile to deliberative reason. Moreover, debates about rights are not limited to mainline governmental branches, but often circulate among media, think tanks, academic experts, lobby and interest groups, parties and associations, foundations and many others.Footnote 35 Hence the actors involved in rights decision-making vary, and each may take on deliberative or democratic roles, or indeed both. The question whether democracy or deliberation should drive, or even dominate, rights processes cuts across these various arrangements.
Among contemporary proceduralist theories, the common reply to this question is that neither one should dominate the other. The theories aim to have things both ways: to introduce both deliberative and democratic inputs into rights decision-making. Each contemporary proceduralist theory in turn elaborates distinct models or metaphors to conceptualise how such complementary deliberative and democratic contributions might be achieved.
The theories differ firstly in the actors involved. As we said above, the ‘actors’ in rights decision-making can include both formal decision-making institutions, and individuals or groups debating or claiming rights. Yet many theories focus on judges as the main deliberative actors in rights decision-making. Theories of dialogue generally focus on institutional interactions between courts and legislatures.Footnote 36 Theories of democratic constitutionalism also describe judges as centrepieces of deliberative-democratic interaction, yet imagine a ‘dialectical relationship’ between judges and the broader political culture. The dialectic serves (among other effects) to democratise constitutional decision-making.Footnote 37
On the other hand, some theories imagine reduced roles for judges. For example, minimalist theories expect courts to avoid altering democratic decisions unless a manifestly unjust decision calls for such intervention.Footnote 38 Still another theory – that of deliberative systems – understands governmental branches, such as courts, as just one set of actors in a wider network of formal and informal decision-making nodes, which collectively contribute to the interpretation and settlement of rights controversies.Footnote 39 This approach concedes that no actor is perfectly deliberative or democratic, yet expects them to compensate for each other’s deficiencies and produce, as a whole, robustly deliberative and democratic decision-making.
Contemporary proceduralist theories secondly differ, either subtly or markedly, in the interactions they describe. In some court-focused theories, interactions may be strong and binding (eg invalidation, reading down, reading in, positive mandates and ongoing review),Footnote 40 and in others weak and advisory (eg the Commonwealth Model’s interpretive and declarative tools).Footnote 41 In theories focused on cultural and societal influence on rights, such as Post and Siegel’s democratic constitutionalism, interactions among actors are instead generalised into discourses or preferences developed across myriad cultural sites (eg media and public advocacy by parties and civil society groups), which ultimately give context to and determine the normative boundaries of rights decisions (eg influencing whether ‘marriage’ is viewed as an institution based on tradition and religion alone, or additionally on love and recognition).Footnote 42 Moreover, systemic theory details in precise terms how distinct preferences, values and arguments can be ‘transmitted’ – that is, expressed by one actor and taken up by another – across the system’s widespread sites (eg whether sexual minorities and LGBTQIA+ organisations effectively communicate their views about the psychological benefits of public recognition of marriage equality).Footnote 43
Among their key concerns, then, contemporary proceduralist theories of rights often address the deliberation-democracy dilemma. Each theory concludes that the dilemma’s tensions can be relaxed by the inclusion of both deliberative and democratic inputs of various kinds. However, in the next part we identify a rising subset of contemporary proceduralist theories that go a step further. These converge on the notion that contemporary proceduralist theories are incomplete without a deliberative democratic lens. This lens details in principle how, rather than compete with each other in zero-sum terms, deliberative and democratic inputs may inform and non-coercively reshape each other.
III Normative deliberative rights theory
Constitutional theorists have been drawing occasionally from the well of deliberative democratic theory for some time. For example, soon after the advent of modern deliberative democracy theory, Sunstein used it to analyse the origins of US constitutional law.Footnote 44 Moreover, Kramer expressly sought to connect deliberative democracy to his own theory of popular constitutionalism.Footnote 45 Yet few if any contributions have offered sustained explorations of contemporary proceduralist aims and methods through the lens of deliberative democracy theory. In Section A of this part, we describe a common core set of principles partially elaborated or hinted at in recent works on DRT. A key principle is that rights decision-makers should interact through non-coercive reasoned persuasion, in which the probative value of an actor’s communications outweighs the actor’s institutional status. We then turn to evaluating DRT in Section B, arguing that the principle of reasoned persuasion is critical for deliberative democratic integration, which can at least partly resolve the deliberation-democracy dilemma.
The discussions in this part are idealised. They examine how rights models would or could function, were they to feature DRT’s core normative principles. Only later, when we turn to DRT institutionalism in Part IV, will we consider the concrete conditions needed to realise these principles.
(A) DRT Core Principles
An expanding group of contemporary proceduralist commentators expressly favour deliberative democratic interactions of various kinds. Of these, several delve into the literature of deliberative democracy and outline or touch on the core principles described in this section: especially Fredman,Footnote 46 Levy,Footnote 47 Tremblay,Footnote 48 WebberFootnote 49 and Young.Footnote 50 Others do not extensively rely on the deliberative democracy literature, yet at times converge on similar core ideals: for example, Dixon and Tushnet.Footnote 51 Still other contemporary proceduralist rights theorists invoke deliberative democracy theory in ways that stand outside the core we describe here.
The core centres on reasoned persuasion, but also features ancillary expectations. Reasoned persuasion denotes that any influence actors in rights decision-making have should be tied to how informative their specific representations are, generally regardless of the actors’ institutional or social statuses. In deliberative democratic theory in general – that is, outside of the specific context of rights – this principle commonly holds that actors should be open to being persuaded by the best arguments that others bring forward, rather than by the status of others.Footnote 52 The latter only ‘distorts communication’.Footnote 53
Expressions or hints of the principle of reasoned persuasion have surfaced in works on rights by several contemporary proceduralist authors. For example, Webber examines a form of the dialogue model that ‘focuses on the exchange of reasons justifying constitutional meaning’, and in which ‘[e]ach institution’s reasons for action are subject to critical evaluation by the other’.Footnote 54 Fredman in turn describes how rights reasoning may improve on mere ‘bargaining’: ‘[w]hile interests-based bargaining is an inevitable and often an appropriate component of democracy, the possibility of deliberation stands out as an alternative which can transcend inequalities of bargaining power’.Footnote 55
To facilitate reasoned persuasion, Young notes, the actors generally must make their reasons clear.Footnote 56 By stipulating the facts, values or arguments on which their positions rely, the actors may help their interlocutors choose whether and how much to heed those positions. However, giving reasons may not be sufficient. For instance, as Young also observes, there is a risk of judicial reasons ‘restricting deliberation as legislatures feel bound to follow the reasoning of the judiciary’.Footnote 57 Hence decisions should be guided by reasons, yet reason-giving must not prompt other actors’ unreasoned persuasion – as might happen if a given body becomes accustomed to having its way as a rule. Indeed, Bustamente cautions that a deliberative body’s ‘moral authority must not be accepted unconditionally’.Footnote 58 For instance, in the Commonwealth Model of rights, a legislature might uncritically adopt a judicial finding of incompatibility as a consequence of the court’s apparently greater expertise in rights matters. This could amount to an abdication of the democratic role in rights decision-making.
To be sure, like minimalists, most DRT theorists would generally still wish to see a judge step in to check a legislature when the latter manifestly overreaches (e.g. when a political party entrenches itself in power by gerrymandering, or a legislature gratuitously targets an identity group).Footnote 59 Outside of such cases, however, core assumptions of DRT hold that there must be no rigid calibration of how forcefully or weakly actors should engage with each other. Neither should there be any formal or implicit hierarchy of authority. The actors involved should not defer to or dominate each other as a rule but should remain open to all relevant and persuasive information or reasons.
This principle, which is express or entailed in each of the contributions above, challenges many lay understandings of courts and rights, as well as liberal constitutionalist assumptions.Footnote 60 The principle provides that any probative view that any actor communicates should be heeded, provided that the view widens, deepens, nuances or reinforces reasoning in a rights case. For instance, in judicial-legislative dialogue or in the deliberative systemic approach, a branch of government or civil society association, respectively, may uncover compelling data on the effects of COVID-19 infection on the aged or chronically unwell. When communicated, this information may extend the parties’ collective understandings of disease prevention mandates.
The expectations ancillary to reasoned persuasion include epistemic diversity. Including a diversity of deliberative democratic actors in policy decision-making presents, in turn, a diversity of distinct perspectives and interests.Footnote 61 This is plainly more democratic, but it also potentially provides greater deliberative rigour if it widens the store of insights available to inform sound decision-making (eg indicating how policy options concretely impact those most affected).Footnote 62 Levy writes that a rights process that is ‘relatively open to social representations … may access an important epistemic resource in the form of diverse social views’.Footnote 63 Thus a ‘systemic deliberative process’ should ‘to the extent possible [be] widely inclusive of the people in a democratic society, comprehensive, accurate and capable of persuading others’.Footnote 64
The participants in deliberative democratic decision-making on rights should also maintain other-regarding outlooks, in the sense of being open to recognising the validity of the normative claims of others, rather than exclusively finding merit in their own. In addition, they should remain flexible, in that they continue to seek ways to compromise or find common ground.Footnote 65 At times they may even modify their own views and preferences, especially if doing so will help to settle politically contentious and destabilising policy debates.Footnote 66
Finally, temporal deferral may facilitate these assorted ideals: no single decision-maker should impose a final decision on others until the others have had a chance to make representations, including about how policy choices may affect them.Footnote 67 Dixon, Webber and Levy point out that this can facilitate reasoned persuasion.Footnote 68 Actors should delay their final decisions so that they may first take on board, and potentially be swayed by, other actors’ contributions. A more rushed conclusion by a rights actor – whether a mainline institution or a prospective rights claimant – may foreclose further opportunities for reasoned interaction and probative persuasion. Moreover, once an apex court finalises an adjudicative decision, it may be difficult to encourage the ‘winners’ of the rights contest to loosen their grip on their entitlements. The court’s recognition may have solidified the view that these entitlements are fixed and sacrosanct.Footnote 69 Decision-making processes should therefore attempt to ensure that actors in rights decision-making interact long before this can occur.Footnote 70 (How this might happen is our subject in Part IV.)
In sum, reasoned persuasion entails that institutions and other actors in rights decision-making – even including courts – should enjoy influence when, and only when, they can offer probative information from their own perspectives to aid decision-making. This is the core of DRT’s normative expectations for rights. Epistemic diversity, other-regarding outlook, flexibility and temporal deferral are in turn aspects of this core. To be sure, some rights commentaries expressly rely on deliberative democracy theory but do not reach or even hint at this particular core set of principles.Footnote 71 In this article we focus on the core, however, as it provides what we view as the strongest in-principal response to the deliberation-democracy dilemma. In the next section, we argue that core DRT principles are consistent with the integrative ideal of deliberative democracy, which, again at least in principle, can effectively answer the deliberation-democracy dilemma.
(B) Evaluating Normative DRT
Deliberative democratic interactions among participants in rights decision-making may be unusually adept at managing the deliberation-democracy dilemma. Normative DRT theories aim to integrate deliberation and democracy at early stages, with each exerting a non-coercive, persuasive form of influence on the other. Such interactions may avoid seeing either deliberation dominate democracy or democracy dominate deliberation. In principle, neither deliberation nor democracy would yield to the other, and each would genuinely drive decision-making.
As noted, we will examine DRT institutions geared to this objective in Part IV. However, we stay with in-principle description for the moment, starting with Habermas’s distinction between communicative (deliberative democratic) and strategic types of interaction.Footnote 72 This distinction is significant for rights practice. Strategic theories of rights decision-making expect separate actors (eg legislatures or courts) to solidify their positions on a right before they even begin to engage with one another. Turning thereafter to advocate for these positions, strategic actors look for ‘wins’ against their notional opponents who hold contrary positions.Footnote 73 There is little suggestion in strategic theory that actors should deliberate toward mutually-agreeable policy solutions, whether by finding common ground or altering their views after communicating with differently-placed others. Strategic theories of rights do not, as we will see, disclose any obvious way of avoiding domination of one type of actor over another.
Several theories echo the strategic ideal. Mouffe champions ‘agonistic pluralism’, which she defines in opposition to deliberative democracy.Footnote 74 While deliberative democracy favours uncoerced persuasion, agonism prioritises interactions characterised by vigorous conflicts among contenders for power. Since no single power centre is expected to dominate, broader inclusions of democratic voices are said to result. Mouffe claims that agonism is ‘much more receptive than the deliberative democracy model to the multiplicity of voices that pluralist society encompasses’.Footnote 75 The model stresses ‘recognition and legitimation of conflict’ in order to avoid ‘authoritarian order’.Footnote 76
Mouffe is sceptical of deliberative democracy.Footnote 77 She views public decision-making interactions based on the deployment of force as a more modest, but more realisable, way to keep power-holders and partisan groups in check. In Mouffe’s words, there is a ‘need to acknowledge the dimension of power and antagonism and their ineradicable character’.Footnote 78 Agonism thus taps into a vein of scepticism of cooperative decision-making familiar from early modern theories of constitutional design, which also sought to distribute power to constrain power.Footnote 79
Contemporary proceduralist commentaries often expect or advocate for effectively strategic relations among rights actors.Footnote 80 Strategic assumptions are common, implicitly at least, within dialogue theory for instance.Footnote 81 Among many examples, consider Roach’s description of a dialogic approach in which judges ‘should decide cases as they see them and let the chips fall where they may’.Footnote 82 Here, rights serve as boundaries cabining permissible governmental action, and courts police these boundaries generally without taking account of democratic views in the course of their decisions. (The legislature will have a chance to push its own views later on, in legislative replies to judicial rulings.) Since judicial decisions appear to be distinctly deliberative, to some they may also appear distinctly legitimate.Footnote 83
Indeed, Roach seems generally wary of democratic decision-making in relation to rights. He doubts ‘that the legislature will be inclined to stand up for the rights of the truly unpopular such as those accused of crime, suspected terrorists, and prisoners’.Footnote 84 Roach is additionally concerned about democratic decision-makers challenging ‘respect for the courts and the rule of law’ and about ‘encourag[ing] legislatures to casually override judicial decisions defending’ rights.Footnote 85 His preference, then, is for judges to hold the line against democratic power. This in effect requires them to remain insensitive to a range of democratic perspectives.
Yet such implicitly strategic theories do not offer adequate responses to the deliberation-democracy dilemma. Strategic theories say too little about how parties competing for power might avoid dominating one another.Footnote 86 In many cases, strategic constitutional and institutional arrangements do in fact yield domination (eg when a single political party controls all branches of power).Footnote 87 However, at other times, policy agreements eventuate that do not simply mirror power. The missing piece in strategic theories is an account of how and why parties sometimes reach such agreements.Footnote 88 In particular, strategic theories struggle to explain agreement without making conceptual moves that resemble deliberative democracy. Mouffe herself partly concedes the point: ‘[t]o be sure, pluralist democracy demands a certain amount of consensus’, which concerns ‘some ethico-political principles’.Footnote 89
In the rights context, a strategic approach that promotes judicial power may be principled (like Roach’s view), or it may result from pro-elite biases.Footnote 90 In either case, promoting judicial dominance may mean sharply constricting the space for legitimate democratic reasoning about rights. Roach is right that the mere unpopularity of prisoners and others provides normatively invalid reasons for a decision about rights, but this is not the only type of reasoning that democratic input can offer. We saw the critical importance of democratic input into rights throughout Part II.
To concretise our claims here, consider again COVID-19 cases, all of which raised technical as well as value-based and other deeply subjective considerations.Footnote 91 A legislature’s decisions may trade off interests, and in doing so may choose to burden some groups (eg in school closure cases, children missing educational and social development) to help others (eg children, teachers and workers with pre-existing vulnerabilities). A court that enjoys formal supremacy may, however, decide to alter the balance, for instance if the court assumes its own reasoning is of a higher quality.
Such judicial power is, of course, controversial, especially (although not only) in relation to proportionality analyses of rights. Much commentary considers whether the judicial power should be strong or weak,Footnote 92 or – seen another way – whether a court or a legislature should have the final say in rights analyses. Yet how the strategic/deliberative distinction bears on this kind of analysis is often neglected. Who gets the final say is particularly important if we assume that relations between the branches are strategic – and that the branch with the final say will therefore impose its view. On the strategic view, either a notionally deliberative actor wins out over others, or a notionally democratic actor does.
On a deliberative democratic view, by contrast, whichever branch gets the final say is significantly less important; all branches will ideally have had bona fide opportunities to inform the outcome at earlier stages of decision-making. As Webber points out, judges sometimes in practice hew to deliberative democratic models of judging (though whether they do so is unpredictable).Footnote 93 Indeed, although strategic theories imply that a formally empowered actor will exploit its power to the full, in practice as we saw this does not always happen. Strategic theories again cannot explain why such actors in fact sometimes hold back from pursuing dominance over each other, and why instead they engage with and learn from each other.
The closest these theories come to accounting for this phenomenon is by pointing out that interactions may involve bargaining.Footnote 94 Bargaining usually denotes negotiation toward an outcome that reflects power distributions (eg who enjoys the most support in a population). If no single actor holds enough power to impose its choices unilaterally, the actors involved might instead seek outcomes that align with their preferences as much as possible. Bargaining over rights may occur, for instance, between legislative houses or between courts and legislatures. Although no single actor can impose its will in full, bargaining may still achieve at least a partial policy ‘win’ for some. However, bargaining of this kind has little deliberative value. Its outcomes do not ‘represent anyone’s idea of the best position; they are compromises with which no one is entirely satisfied [and] they represent the balance of forces, not the weight of arguments’.Footnote 95
Even on a bargaining model, then, the strategic model offers no clear way of solving the deliberation-democracy dilemma. At best bargaining grants a partial win to one type of input (deliberative or democratic) over the other, based on the deployment of power. This is in marked contrast to the deliberative democratic ideal of integration, where deliberative and democratic inputs into a given right develop in concert and influence each other, based on persuasion.
The absence of integration in the strategic model has important practical consequences in turn. One is that the model leaves both deliberation and democracy diminished. When the strategic model promotes a notionally deliberative body’s dominance over notionally democratic actors, or vice-versa, it siloes deliberation and democracy to the detriment of both.Footnote 96 To demonstrate this, consider first how democracy would function in the absence of deliberation. As with any type of consent, democratic consent must be informed consent, rather than consent relying on constituents’ ‘top-of-mind’ preferences.Footnote 97 Consent is a fiction unless based on accurate and relatively comprehensive knowledge of its implications. For instance, we saw above that incomplete and polarised information was often evident in COVID-19 policy debates. Popular misunderstandings of the relative risks of vaccines, as against risks of the virus itself, frequently created democratic preferences based on false assumptions.Footnote 98 Rights processes or systems in which democratic choices form without adequate deliberation are thus generally deficient qua democracy.
A similar problem arises the other way around. Deliberation decoupled from democracy generally falls short qua deliberation. For instance, rights deliberations centred largely within courts may lack nuanced details gleaned from the day-to-day experience of constituents. We saw previously how rights may require democratic information about, for instance, how a COVID-19 policy affects specific group interests or implicates their values and preferences. Judicial tests alone may lack wide-ranging and detailed evidence of group-specific impacts and concerns. More generally, as Zurn notes, focusing only on the case before it ‘distort[s] to some extent the Court’s ability to gather relevant information, perhaps most important concerning the impact of likely decisions on the interests of all those affected’.Footnote 99 Thus deliberation without democracy is at best notional: it is based on a narrow range of facts, values and arguments chosen arbitrarily by a court or other elite deliberative body.Footnote 100
Failing to integrate deliberation and democracy may also, importantly, undermine the perceived legitimacy of public decisions. Such legitimacy is partly determined by soundness, fairness, technical rigour and other deliberative qualities, on the one hand,Footnote 101 and by democratic input into decision-making, on the other.Footnote 102 Above we often noted how trust figures importantly in effective rights decision-making, especially in complex and contentious cases. Those who find themselves on the ‘losing’ side of a decision, and especially those with histories of social or political exclusion, may resist compliance when decisions enjoy at best limited or uneven public trust (a proxy measure for perceptions of legitimacy). Neither democracy nor deliberation alone – given their thinness in isolation from one another – may be widely viewed as legitimating. However, processes that integrate both, avoiding placing each in tension with the other, often in practice enjoy relatively high perceptions of legitimacy.Footnote 103
To summarise, the strategic model, as applied to rights, in principle does not integrate deliberation and democracy, but allows one of these to dominate the other in whole or in part. In principle the model does not solve, but rather recaps, the deliberation-democracy dilemma. Moreover, to the extent that the strategic model allocates deliberative and democratic contributions to separate spheres or actors, it may leave both deliberation and democracy incomplete, and attract low levels of public trust in turn. In a significant contrast, DRT seeks to integrate deliberative and democratic contributions, with each expected to develop in close connection with the other. DRT thus potentially furnishes what we termed the ‘missing piece’ above: a sense of how and why domination by a single actor might be avoided.
Yet DRT sets out admittedly very high normative demands. A key question this raises is whether any set of actors or institutions can realistically meet such demands in practice. We turn next to consider institutional designs that aim to facilitate the kinds of integrative interactions that DRT requires.
IV Institutions in deliberative rights theory
We have seen that strategic theory is sceptical of deliberative democracy. Yet it is clear from extensive research outside the rights field that certain doubts are overstated. In Section A of this part, we survey a selection of novel institutional DRT models. These provide institutional spaces for democratic actors to develop their contributions to rights decision-making under conditions of reasoned deliberation. Empirical evidence indicates that various institutional designs are capable, at least some of the time, of promoting relatively deliberative forms of democracy. These designs have been extended for use in rights decision-making, though as yet very little academic work examines such rights-centred innovations.Footnote 104 In Section B, we evaluate a more straightforward institutional approach: using existing courts to realise DRT ideals. Even in the best possible light, we find that court-based decision-making is largely incompatible with the integrative ideal. For complex and contentious cases, novel DRT institutions should be preferred.
(A) Novel DRT Institutions
While no single research article can comprehensively survey all of DRT’s institutional possibilities, we aim to explore a selection of models showing some of the range and directions of DRT design, as well as common concerns and trade-offs associated with these innovations.
(1) Deliberative Mini-Publics
Mini-publics, as noted, are randomly selected, demographically representative assemblies of lay citizens who undergo extensive facilitated learning and deliberation, before ultimately submitting an advisory recommendation on a matter of law or policy reform. The assemblies are meant to reflect broader publics in miniature, and to encourage actors to work toward policy agreements on contentious matters in relatively deliberative and widely trusted ways. The mini-public model has an important and growing presence in the rights arena, where it has been used to address thorny policy and legal matters featuring sharp disagreements between societal groups (eg defined by ideology or identity), political parties or litigants. For instance, around the world mini-publics have sought to balance rights in relation to COVID-19, internet speech or assisted dying. By our count, at least nineteen such bodies have run across nine countries: Australia, Belgium, Canada, Finland, France, Germany, North Macedonia, the United Kingdom and the United States.Footnote 105 Such mini-publics expressly or implicitly addressed the right to health, freedom of speech, freedom of movement and bodily autonomy.Footnote 106
Many also matched, or came close to matching, key criteria for mini-public design.Footnote 107 These criteria include, first, random selection and demographic stratification (eg to match gender, geographic and ethnic diversity of the broader population).Footnote 108 Second, members gain extensive exposure to technical matters and contexts in a learning phase that kicks off the mini-public’s deliberations. Third, mini-publics undergo facilitated discussion based on ground-rules for respectful and inclusive deliberation.Footnote 109 And fourth, the bodies’ demographic diversity widens perspectives and especially highlights views that are often excluded from legislative or judicial deliberations.
Mini-publics have been a focus of interest, and of conditionally positive empirical and normative assessments, in the deliberative democratic field for at least two decades. As political neophytes, mini-public members generally lack strong party allegiances and avoid the extremes of partisanship among self-selected actors (eg in legislatures).Footnote 110 In practice, as well, members tend to remain relatively flexible in their policy preferences; the experience of deliberating and learning together with others of diverse backgrounds can induce shifts of perspective.Footnote 111 At the same time, mini-publics’ extensive learning and deliberation phases often effectively bring lay members up to speed on the particular policy or legal matter before them.Footnote 112
Mini-publics are generally adept at the kind of deliberative democratic integration that is needed for both deliberation and democracy to have genuine influences on public decision-making. Democratic preferences form in a milieu of robust deliberation, often incorporating such deliberation in the course of preferences’ development (rather than, less plausibly, after they have solidified). Not merely tools of democratic input, then, mini-publics aim to give a selection of ordinary democratic citizens opportunities to become apprised of the technicalities of policy, under conditions in which participants are less prone to partisanship and polarisation than in more standard democratic processes. For example, in legislatures, partisan representatives are unlikely to change their prefixed positions; and in ordinary public consultations, the focus is often heavily skewed toward the loudest or most empowered self-selected participants.Footnote 113 By contrast, mini-publics are randomly selected, and their deliberations bring a diversity of citizen interests to the fore – for example, how policies and rights affect specific groups of people.
Mini-publics’ robust integration of both democratic and deliberative inputs is key to why these bodies often enjoy high perceived legitimacy.Footnote 114 In some contentious cases, neither democracy nor deliberation will on its own be widely viewed as legitimate enough to lead public decision-making on contentious matters. Yet a body that incorporates both deliberation and democracy into decision-making, without placing the two in tension, may compensate for the deficiencies of each. The high perceived legitimacy that mini-publics enjoy is particularly important in the rights context, given a point we stressed above: that there is a need for trusted sites of decision-making on matters that have become mired in complex and contentious political debate or stalemate.
To be sure, mini-publics attract normative criticism due precisely to their non-standard form of democratic representation.Footnote 115 Their representation is primarily descriptive: rather than consult the whole of a population or democratically elected leaders, mini-publics consult small but demographically diverse selections of constituents. Outside of the rights field, a common response to this criticism of mini-publics is to offer a proviso for their use: a mini-public should never do more than merely complement a legislature.Footnote 116 Indeed, in the rights field too, mini-publics should generally only seek to use their high perceived legitimacy to persuade elected bodies to adopt their recommendations.Footnote 117
If mini-publics eclipse any institution in the rights field, it should be courts rather than legislatures. A rights-focused mini-public could be designed to step in for courts to some extent (with the caution noted above that courts must remain on hand to reverse manifestly unjust democratic decisions). Mini-publics may deliberate about complex and contentious cases, after which their recommendations may inform and persuade legislative or executive decision-makers. A mini-public could, for instance, demonstrate to these decision-makers and to the wider public how diverse groups can achieve agreement with one another – especially when they operate outside of the political spotlight, in a non-partisan, informed and deliberative setting. Mini-publics have often been shown to influence the substantive course of public deliberations,Footnote 118 including in contentious and polarised policymaking contexts.Footnote 119
But if mini-publics are to step in for courts, even in part, are they competent to conduct the formalised evaluations required for rights reasoning? It is clear from extensive evidence from outside of the rights field that, following their intensive learning and deliberation phases, mini-publics are generally adept at understanding technical information (indeed far more than sceptics of deliberative democracy assume).Footnote 120 More particularly, several past rights-focused mini-publics have effectively adopted rights frameworks that included standard forms of proportionality testing.Footnote 121 Experimentation with rights-focused mini-publics should continue to take place, ideally with express guidance given to members regarding proportionality or other broad rights doctrines.
(2) Legislative Scrutiny Committees
In some jurisdictions, a scrutiny committee chiefly made up of legislators (eg Australia’s Parliamentary Joint Committee on Human Rights) is required to vet bills and certify that human rights have been considered.Footnote 122 This process aims to give rights due weight. Formalised scrutiny committees may provide better alternatives to relying on ordinary legislative deliberation to account for rights. Like other institutional DRT models, legislative scrutiny committees can potentially address the deliberation-democracy dilemma, in this case by integrating more rigorous human rights reasoning into the initial lawmaking process. As Williams and Hume note, the model is often termed ‘deliberative’,Footnote 123 likely because scrutiny committees do not bind but may inform lawmakers about the human rights implications of laws in development.
However, a lack of bindingness does not itself signify deliberation; deliberation also requires particular varieties of reasoning (eg, as we saw, policy preferences should be reasoned, informed, other-regarding and flexible). A risk arising with committees of legislators (though they may be aided by civil servants) is that the committees will descend into the same partisanship and strategic division that characterise legislatures as a whole. This strong possibility may negate the deliberative benefits of scrutiny committees.Footnote 124
In addition, if scrutiny occurs as an afterthought or box-ticking exercise,Footnote 125 then the scrutiny is unlikely to provide deliberation in its full sense. Indeed, in Australia ‘there has been a tendency for bills to be enacted into law before the Committee has reported on them’.Footnote 126
For legislative scrutiny to work, it must be reformed and improved. Consistent with what we said above about temporal deferral, a bill’s enactment should occur only well after the scrutiny committee’s inputs. In later stages it may be too late to dislodge legislators, or the constituents they represent, from choices already solidified. Deliberative interventions should inform legislative choices as they develop, rather than seek – far more implausibly – to reverse finalised legislative choices post facto. The nomenclature of scrutiny committees should also be reconsidered. ‘Scrutiny’ may self-fulfillingly connote strategic and post facto interactions. The goal should instead be deliberative democratic integration throughout the legislative process.
(3) Legislative Adjuncts
A final model hybridises and potentially draws on the best features of the previous two. As indicated above, a mini-public aims to influence legislative and public decision-making. The ‘legislative adjunct’ is our term for a mini-public or a mini-public-like body with a legally mandated, and particularly close and stable, relationship with a legislature. It aims to ensure that when institutionally supported deliberation occurs within a small deliberative democratic body, there is a direct line of communication between the body and the legislature. The body can review legislation and provide ongoing insights about a representative selection of citizens’ views on pending laws.Footnote 127
Legislative adjuncts remain rare. Belgium institutionalised the world’s first standing mini-public in the province of Ostbelgien. Over time, a shifting roster of citizens takes turns staffing the body, which has both a permanent and prominent institutional presence in the legislative complex.Footnote 128 Australia’s defeated constitutional proposal to enshrine an Aboriginal and Torres Strait Islander Voice would have comprised Indigenous leaders chosen from numerous regions, and would have made representations to Parliament and government on matters of relevance to Indigenous people.Footnote 129 Indigenous Australians constitute a micro-minority within the wider political system. The Voice proposal aimed to give greater prominence to values, interests and preferences that Indigenous people have often struggled to push to the forefront of the legislative agenda. The proposed body has been analysed as a deliberative democratic solution both to this pragmatic problem, as well as to deeper difficulties around the unresolved conflict between Indigenous and state sovereignty claims.Footnote 130
Legislative adjuncts generally seek to diversify and amplify democratic voices, ideally relying on reasoned persuasion. Like most mini-publics, legislative adjuncts are advisory, and focus not on binding but rather informing political bodies about perspectives often overlooked or misconceived by legislators. At the same time, close formal connection to the formal seats of power could help to ensure their representations are robustly heard.
(B) Courts as DRT Institutions
Each novel DRT model above aims to integrate deliberative and democratic representations into rights decision-making. Doing so may be harder without the dedicated institutional innovations described. Notably, when it comes to complex and contentious rights, legislative and public debate – as we have noted throughout – are often beset by partisan divisions, which may in turn severely undermine deliberation. Yet in this regard courts may sometimes be different. Thus, in this final substantive section, we analyse how courts would function with respect to DRT under ideal conditions. To do so, we will assume that courts are committed to deliberative democratic principles. Works in deliberative democracy sometimes, for instance, describe courts or other empowered elite bodies as being driven ultimately by constituents; the courts’ task is thus to weigh and filter constituent preferences, issuing rational and workable decisions in accordance with those preferences.Footnote 131
In reality, however, even courts may be partisan or strategic. Like other empowered elite bodies, they may in practice substitute their own value choices for those of democratic constituents.Footnote 132 This is most evident in jurisdictions where courts are deeply polarised across ideological lines.Footnote 133
Even in jurisdictions where courts appear to lack such polarisation, there is little guarantee that judges will exercise the self-restraint that DRT requires (eg temporal deferral, and persuasive rather than coercive influence), nor that they will even recognise value in doing so. As Webber notes, expecting a court to adopt deliberative democratic approaches depends on a ‘disposition by the court to forego arrogating to itself sole responsibility for constitutional review’.Footnote 134 Many judges can be expected to align instead with Roach’s analysis above, or similar models, which promote judicial dominance over democratic choices in light of judges’ apparently stronger deliberative capabilities. Judges may also doubt either the value or the plausibility of DRT, and thus self-fulfillingly avoid deliberative democratic interactions in practice – leaning instead toward strategy.
While such empirical questions raise important concerns, from here on we return to in-principle considerations. Our aim is to show that, even under ideal conditions in which courts are non-partisan and commit to DRT, there would remain (with some exceptions) a significant conceptual weakness associated with judicial approaches to DRT. Judicial models of DRT would largely seek to impose deliberation on democratic preferences post-facto: not while such preferences remain plastic, but – less realistically and more coercively – once they have already-solidified. For this key reason, the novel DRT institutions above should generally be preferred.
(1) Courts and Post-Facto Coercion
As noted, certain seminal deliberative democracy theories expect courts and other mainline institutions to be best at deciding how policy objectives can be realised relatively rationally. Habermas declares that ‘binding decisions, to be legitimate, must be steered by communication flows that start at the periphery and pass through the sluices of democratic and constitutional procedures situated at the entrance to the parliamentary complex or the courts’.Footnote 135 This filtering model aims to preserve a democratically legitimate role by recasting courts (or other elite bodies) as the people’s deliberative servants. Empowered elites are thus meant not to second-guess, but only to be guided by the raw values, interests and preferences of democratic constituents. Courts would therefore be largely passive actors, merely committed to reshaping initially messy, contradictory and underinformed democratic perspectives into workable policy and law.
To scholars of legal rights, the filtering model may seem to resonate with the familiar structured proportionality analysis. As we saw in Part III, when values, interests or preferences are in tension, there is often little deliberative value to groups bargaining over policies, as this may only yield outcomes reflecting each group’s power. But proportionality methods may improve on such power-based democratic bargaining; after making representations to a court, the parties may find that their assorted perspectives have been given due attention, irrespective of power differences.Footnote 136 This may have a positive effect on deliberation.Footnote 137
Yet judicial deliberation is often unable to answer the deliberation-democracy dilemma. Democratic perspectives on rights often develop in the polarised and deliberatively poor contexts of contemporary democracy noted above. With pathologies of democratic systems such as deepening inter-group division and worsening patterns of misinformation, many democratic perspectives generated in the public sphere will be poorly informed and generally divisive and exclusionary, rather than epistemically inclusive, flexible and other-regarding. In response, courts may offer apparently superior deliberation, which may make up for what is lacking in democratic discussions of rights. However, for courts to impose these alternative views requires them to try to take on board a range of democratic views, and thereafter to reshape the democratic choices they encounter. For instance, in pandemic cases on lockdowns, a court may have gauged public views via exposure to diverse litigants and intervenors/amici curiae, or to social science evidence.Footnote 138 In turn a court may have perceived that opposition to such measures was ill-informed, and that deeply partisan litigants had lost the capacity to engage in reasonable debate and to find common ground.
However, and importantly, in such examples judicial filtering of democratic choices entails replacing actual (deliberatively degraded) democratic preferences with notional (more deliberatively robust) democratic preferences. A court must try to predict what decisions constituents would have made under more deliberative conditions. This offers at best a fictive response to the deliberation-democracy dilemma. Putting aside doubts about whether courts really can offer accurate democratic representation,Footnote 139 the more fundamental problem is that, even if they could, their post-facto revision of solidified democratic choices would be both significantly counterfactual and significantly coercive.
In just a limited set of straightforward cases, the court may be able to estimate how correcting a single clearly false assumption would alter democratic choices. But the complex and contentious cases on which we focus by definition are not straightforward. The variables in these cases are numerous, and their trade-offs chaotic and unpredictable. For instance, as we saw, assessing lockdown measures required weighing diverse arguments drawing on economic data, infection rates, personal impacts, assorted rights and various values. Technical information was interlaced with highly subjective content. Even purportedly objective technical information had meanings and salience that depended on observers’ diverse, and largely inscrutable, values, interests and preferences stemming from individual circumstances. How a given new item of information (eg a study of the social-psychological effects of lockdowns) would have influenced diverse people’s democratic choices, if only they had known about it from the outset, generally cannot be predicted. Also unknown is how litigants would have resolved their differences if, while initially forming their positions, they were not siloed but rather engaged in flexible, other-regarding and inclusive deliberation with each other.
A filtering court that cannot know what constituents’ choices would have been under more deliberative conditions, but that nevertheless tries to predict what those choices would have been, does not offer genuine resolution of the deliberation-democracy dilemma. The model more closely resembles coercive strategic interactions, where one type of empowered and notionally deliberative actor (in this case a court) ultimately displaces the substantive choices of notionally democratic actors (legislatures or citizen groups).Footnote 140 In addition, and again recalling earlier discussions, post-facto reversal of democratic choices places filtering courts in the unenviable position of having to reverse democratic choices once they have already formed and solidified. Under these circumstances, there is high potential for non-compliance with, or even backlash against, judicial decisions.Footnote 141
While judicial filtering does not allow for the time and institutional spaces needed for genuine integration of deliberative and democratic views, the novel institutional DRT models seen in Section A of this part aim to do so. These alternatives seek to integrate deliberative and democratic views while they remain plastic, and they therefore commence far earlier in the development of democratic preferences. An integrative model would demonstrate in practice how people in a jurisdiction actually view policy questions when their views are factually informed and develop under generally deliberative conditions.
To be sure, a number of authors suggest that judges can lead a process akin to deliberative-democratic integration across the broader public sphere. In works by Rawls and Zurn, for instance, judicial deliberations are said to inform the democratic community about styles of argument or particular issues, helping to discipline the ways in which democratic preference formation occurs in the first place.Footnote 142 In Habermas’s conception, moreover, a feedback loop forms between empowered elites and ordinary citizens, as the latter hear about and learn from judicially-decided cases.Footnote 143
However, again we must consider the worsening contexts of democratic deliberation. Habermas’s assumption of a dialectic between the public sphere and mainline elite institutions may sometimes play out, but it is not a consistently plausible expectation after the sharpening of political divisions in most democratic states. Only a fairly small selection of rights disputes have been stably settled through widespread systemic public deliberations; in these rare instances (eg marriage equality), discriminatory burdens on specific groups were gradually publicly revealed to be manifestly unjustified.Footnote 144 A far greater set of disputes is harder to resolve this way, especially as they rest on conflicts between relatively durable oppositional interests or preferences (eg lockdown disputes pitting rights to health against freedom of movement).
In sum, even a court committed to DRT principles may find itself engaging in forms of coercion akin to the strategic model. The filtering metaphor is largely unconvincing in complex and contentious cases, where courts’ coercive displacement of democratic positions formed in the public sphere would recap rather than solve the deliberation-dilemma.
(2) Exceptional Cases
In some cases, however, judicial filtering may avoid coercing democratic outcomes.
(a) Accommodation: Filtering may be non-coercive in non-rivalrous cases – that is, where the interests of constituents are not appreciably in conflict with each other. Non-rivalrous cases are on their face win-win rather than zero-sum.Footnote 145 Thus a court can find an accommodation in which no democratic preferences are overridden.Footnote 146 Least-restrictive means testing, which forms part of a standard proportionality analysis, may highlight such cases. For example, rationales for state border closures within federations often turned on the risk of exponential rise of COVID-19 cases if infected individuals entered the jurisdiction.Footnote 147 For their part, opponents asserted that residents of a particular state should enjoy rights of re-entry into their home jurisdiction. A court may note that high-quality quarantine facilities in a remote location would, hypothetically, have allowed residents to re-enter the state while still curbing nearly all spread of the disease – a win for everyone.
(b) Recasting: A number of scholars suggest that judicial carriage of rights can facilitate agreement by changing, or what we call ‘recasting’, the terms of parties’ engagement over rights. Deliberative democracy theory sometimes divides policy questions based on whether rivalrous policy differences between groups can or cannot be mitigated through preference change.Footnote 148 If they can, then such changes may yield common ground or accommodative policy outcomes, even where neither was initially available. For instance, Sunstein, echoing Rawls, says that by imposing ‘conceptual ascent’ (ie leaving aside details to focus on the overarching values and concepts implicated in a case), a court can sometimes change the views of the contesting groups by raising the level of abstraction.Footnote 149 Indeed, after shifting deliberations from the more particular to the more general, even divided groups may agree on certain ‘public’ values (eg freedom, non-violence, equality).Footnote 150 Such reasoning can aid the achievement of policy agreement, if it omits (at least for a time) more detailed and contentious questions about what the broad values entail (eg whether equality means equality of individuals or groups). While there is a coercive element here, it is relatively modest; recasting arguably only reframes, but does not fundamentally alter or impair, substantive democratic preferences.
(c) Blocking: In still other cases, divisions over rights may be driven by untenable values. As Rawls suggests, in the interests of finding workable policy and minimising social discord, those who put forward non-public reasons for policy preferences – reasons that cannot be reasonably agreed to by all (eg a purportedly divine basis for a group’s special status) – may need to abandon these reasons.Footnote 151 Accordingly, courts may simply block certain values deemed illegitimate. Governmental objectives may aim to express animus toward or to dominate a given group, or to entrench a political party or ideological faction in power. In such cases, courts may deny these objectives at proportionality’s threshold stages, or devalue the objectives at later stages. Similarly, in the relatively rare instances in which rights are absolute, no objective could justify abrogating or limiting a right.Footnote 152 Although judicial invalidation of democratic action may be highly coercive in these cases, in that it may deny governments or litigants their deeply held preferences, such coercion is (consistent with judicial minimalism) justified to avoid the extreme coercion of others.
Each of these three case types is either an exception to the rule that judicial filtering is deeply coercive of democratic choices, or identifies a category of cases in which such coercion is broadly acceptable. Yet many rights cases see rivalrous claims compete in zero-sum terms. For instance, proportionality tests frequently require difficult trade-offs. Many COVID-19 mitigation measures affected people coexisting in a single space. People who could not cabin themselves from each other (eg by decamping to high-quality quarantine facilities) had to abide by collective rules to manage the inevitable zero-sum clashes between their distinct interests. (Indeed, even building a quarantine facility might have been too slow or costly an option for many jurisdictions.)
A further difficulty is that, while Sunstein and others place faith in courts as top-down actors capable of reshaping the terms in which rights debates occur (or, in extreme cases, excluding certain values altogether), the question remains whether decision-makers enjoy sufficient public trust to make such interventions stick. Rawls and others suggest that courts can induce gradual and lasting preference changes.Footnote 153 Courts indeed might have this effect in the normatively one-sided cases noted above (eg the struggle for marriage equality), where one side gradually loses ground as the weaknesses of its case emerge.Footnote 154 But many cases are two-sided and likely to remain so. Whether courts – which may rightly be perceived as elite and under-representative in comparison with novel DRT bodiesFootnote 155 – can induce preference changes within this wider and more intractable set of cases is uncertain.
V Conclusion
The contemporary proceduralist movement to democratise human righs practice must contend with the deep polarisation and related pathologies now globally endemic to most legislatures. In the current practice of most courts, too, not only is fulfilling DRT’s normative ideals difficult, but the ideals themselves often lack judicial support. It may be in vain to expect litigants, legislators and judges to adopt DRT’s idealised deliberative democratic interactions; strategic values and conduct are at least as likely to prevail. In this light, DRT’s focus on novel, purpose-designed institutions, which aim to support the integrative deliberative democratic normative ideal, is a notable and promising development.
Yet significant areas of research on DRT are yet to be mined. We have seen that mini-publics are generally able to learn about and make decisions on public policy, but does this extend to their use of the proportionality test that is standard in rights cases?Footnote 156 We have also seen that such bodies are broadly trusted externally, and also able to meet internal ideals of flexible and other-regarding reasoning; mini-publics’ interventions sometimes provide an effective ‘reset’ in divisive or deadlocked public debates. Yet can we consistently expect such outcomes in a range of highly complex and contentious contexts? Conversely, have we been too hasty to suggest that judges cannot consistently realise DRT ideals? Are there further complex and contentious cases for which this observation does not hold, and where courts may usefully serve as sites of integrative DRT reasoning?
Such questions offer grist for the development of DRT. Though increasingly prominent, the theory remains at an early stage. Other contributions to this symposium flesh out many of the questions above. These contributions, along with the broader rise of interest in DRT, reflect the continuing pursuit – among both rights theorists and practitioners – of new normative ideals and institutional approaches to the enduring dilemma between deliberation and democracy in human rights practice.
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