I Introduction
Elite-led approaches to the adjudication of rights disputes often arouse citizen backlash when the issues at stake are complex and contentious (eg contagious disease, social media regulation, assisted dying). As the lead article of this symposium on ‘Deliberative Rights Theory’ observes, some such backlash is unreasoned or even conspiracist in nature; yet much of it, more reasonably, resists decision-making processes that are underinclusive and systematically overlook a selection of relevant citizen interests and points of view.Footnote 1
Against this background, it is perhaps inevitable that the practice of rightsFootnote 2 has, as we observe in this paper, increasingly adopted institutional innovations such as deliberative mini-publics. These bodies randomly select decision-makers from a community’s lay population, ensure that they are representative of the wider population, and – as importantly – provide support to help the lay decision-makers deliberate effectively. The decision-makers receive extensive technical guidance before deliberating independently, under the guidance of neutral facilitators, toward a policy recommendation. Around the world, such bodies have become common features of policymaking processes addressing complex and contentious issues.
Deliberative mini-publics are mainstays of theoretical and empirical studies of deliberative democracy, a vast field of research on politics and policy that evaluates whether democratic decision-making is, or can be, practiced under conditions of rigorous deliberation (eg adequate information, equal inclusion of diverse perspectives, and mutual reason-giving). Deliberative mini-publics are subjects of abiding interest in this field given their track records of integrating genuine democratic input with technical expertise. Empirical studies also indicate that mini-publics are, on the whole, publicly viewed as legitimate due to this combination of deliberative and democratic sources of reasoning.Footnote 3 This in turn has allowed some mini-publics to reset public policy conversations, or to coalesce public opinion around key directions for reform.Footnote 4 These novel bodies, then, may both enhance legitimacy and lower the partisan heat and division in rights debates. Less democratic or more polarised institutions, such as courts and legislatures, often struggle to achieve these important objectives.
However, deliberative mini-publics are usually convened to consider whether a jurisdiction should enact a significant new law, such as a constitutional provision. In this article, our distinct interest is in what we call rights-adjudicative deliberative mini-publics. That is, we focus on bodies tasked with evaluating a balance of rights (or of rights against countervailing interests) asserted by specific classes of claimants under specific factual circumstances. Though it has attracted some initial attention from theorists,Footnote 5 there has been no empirical evaluation of rights-adjudicative deliberative mini-publics. Is it feasible in practice for mini-publics to adopt their deliberative democratic method to adjudicative human rights analysis? A spate of recent examples across a variety of jurisdictions (eg addressing COVID-19 policies, free speech, and assisted dying) provide a matchless opportunity to address this question.
Legal scholars are, we argue, well positioned to assess the capacities of deliberative mini-publics to function as human rights adjudicators. The questions we pose in this article include whether mini-publics can adequately address complex and contentious human rights disputes that call for expertise not only from the physical or social sciences, but also from legal practice. Whether mini-publics can, or if in practice they do, adopt these forms remains a wide-open question.
We proceed as follows. In Part II we provide an outline of the mini-public as a deliberative democratic institution and survey the existing, theoretical literature on the application of deliberative democracy theory and deliberative mini-publics to rights – including rights adjudication. We also develop our evaluative framework here. The first element of the framework addresses whether rights-adjudicative mini-publics match classic hallmarks of mini-public design or practice. Second, and more uniquely, we contend that to adjudicate rights disputes effectively, the bodies must adopt key forms of legal human rights analysis: especially the main structures of proportionality or non-discrimination testing.
In Part III, we apply this two-part framework to instances in which rights-adjudicative mini-publics have run, finding high levels of conformity with formal deliberative-democratic design principles. Yet as to whether deliberative mini-publics have served adequately as rights adjudicators, we find a more variable answer. In Part IV, we then pick up on these findings to discuss what factors may determine whether mini-publics can effectively adjudicate human rights disputes. We conclude in Part V.
II Framework: Deliberative Mini-Publics and Human Rights
In this part, we first lay out hallmarks of deliberative mini-public design before going on to discuss why the model may be suited to rights adjudication. We also define both the kinds of rights we have in mind and what their adjudication entails. Mini-publics’ track records around the world include many examples, both experimental and practical. Yet their direct engagement with rights adjudication, as we define it, is a discrete and relatively new phenomenon.
A deliberative mini-public’s lay members are randomly selected but ‘stratified’ to ensure they descriptively reflect the wider public (a process known as ‘sortition’). Selection may focus on gender, region, age and other forms of identitarian diversity. Ultimately, following deliberations and a final vote, a mini-public submits its final policy recommendation to formally empowered decision-makers (eg legislators or referendum voters). The process and its outputs can enjoy high trust and perceived legitimacy.Footnote 6 This seems to result from the ‘integration’Footnote 7 of deliberative and democratic inputs into decision-making within a mini-public. Mini-public members are not generally elites habituated to power, but rather a descriptively diverse group of representatives perceived by other citizens to be ‘just like’ them.Footnote 8 Yet neither are mini-public members simply ordinary citizens deciding complex policy through top-of-the-mind intuitions. Before issuing policy recommendations, members learn extensively from diverse experts, as well as from each other, in structured and facilitated deliberative settings.Footnote 9
Mini-publics therefore differ from wider and less institutionally-confined consultative and participatory methods. Large groups of citizens cannot usually become apprised of policy specifics to the same extent as a mini-public; most people in a wider population lack the time and institutional support to do so. By contrast, a mini-public’s small membership (eg 20-200) enables more sustained and extensive deliberation. Provided that a matter is not excessively arcane, and that the policy question put to the mini-public is relatively focused, mini-public members often acquire higher degrees of knowledge of the policy in question.Footnote 10
Random choice by sortition also generally selects participants who lack strong party allegiances, and thus it avoids the extremes of partisanship that we tend to see with elected, self-selected or appointed legislative or executive decision-making bodies. While there remains an abstract risk that a mini-public’s wide demographic representation will prompt a strategic form of ‘identity-politics’, in practice this rarely eventuates. Studies generally affirm that a well-designed and executed mini-public can function with greater fairness and impartiality, and with relatively little prejudgment or partisan polarisation, as compared (for example) with legislatures.Footnote 11 Notably, mini-public members may find a degree of common ground even on deeply divisive issues (eg abortion).Footnote 12
Institutions such as deliberative mini-publics have been repeatedly used or proposed as antidotes to problems of ‘complex and contentious’Footnote 13 public decision-making. Such decision-making is ‘technically arcane’, is often ‘quantitative’ (calling for ‘precise line-drawing or balancing between competing concerns’), raises ‘value choices that differ based on individuals’ or groups’ circumstances’, and generally arouses ‘public notice’ and ‘inter-group division’.Footnote 14 As Maija Setälä describes them,
[d]eliberative mini-publics potentially remedy the problems of the epistemic, political and moral complexity of public decision-making in modern societies. As participants of deliberative mini-publics interact with experts, they are likely to learn about the issue. The deliberative setting encourages people to justify their own position by arguments acceptable to others who represent different, perhaps conflicting, viewpoints on the issue, and also to consider others’ arguments. As a consequence, deliberative mini-publics can be assumed to help define reasonable solutions to complex and divisive issues.Footnote 15
Work in political science and theory has often suggested pushing deliberative mini-publics into new corners of state decision-making (and indeed beyond the state).Footnote 16 For instance, Ethan Leib, Alexander Guerrero, Arash Abizadeh and others have each suggested that bicameral legislatures should replace their upper chambers (eg a national senate) with a randomly selected body, in part because of the capacity of random citizens to perform the ‘legislative-review and balancing functions’ required of such a chamber.Footnote 17 A ‘lottocratic’ (ie sortition-based) legislative branch, argues Guerrero, would also go some way to mitigating the problem of complexity since the absence of a requirement to fundraise, campaign and placate constituents leaves more time to consult with experts and community members.Footnote 18
Most relevantly for our purposes, several scholars have argued that human rights questions ought to be addressed by deliberative democratic institutions. While such suggestions only began to develop fully in recent years, John McCormick identifies enthusiasm for the use of sortition in a rights context in works as early as those of Machiavelli, who had praise for the randomly-selected Roman Tribunate.Footnote 19 Some recent empirical work has investigated how decisions about adopting rights charters are dealt with in deliberative democratic institutions. Da Kyoung Kim, Pan Suk Kim and PerOla Öberg examined the (ultimately unsuccessful) drafting process for a Charter of Human Rights for Seoul Citizens.Footnote 20 In a similar vein, Hélène Landemore finds that the ‘crowdsourced’ draft for a new Icelandic constitution was more ‘rights-heavy’ than the previous constitution, or a new draft prepared by legal experts, because it led to the inclusion of a more diverse array of individual interests and perspectives.Footnote 21 In these analyses, deliberative democracy was causally linked to an enhanced capacity to deal with rights issues.
However, these past empirical studies largely pertain to mini-publics’ leadership of constitutional drafting (including decisions on inclusion of particular rights and how rights should be expressed), rather than rights adjudication. By contrast, some theorists have advocated specifically for rights-adjudicative mini-publics. Adam Gjesdal, for example, argues that Jeremy Waldron’s objections to judicial review (that courts are often no better equipped than democratic actors to make normative judgments)Footnote 22 lead to the result that, in some cases regarding citizens’ ‘basic political rights’, we should
replace the vote by nine members of the court with majority decision by a randomly selected body of ordinary citizens. This ‘lottocratic’ proposal would transfer the court’s authoritative power over issues subject to reasonable disagreement to a deliberative mini-public representing the diversity of informed reasonable views citizens have in the wider polity.Footnote 23
Similarly, Horacio Spector has argued that a randomly selected ‘constitutional jury’ can protect constitutional rights at least as well as traditional judicial review, while also more fully respecting the democratic principle of equal political liberty.Footnote 24 He draws on the track record of deliberative mini-publics to suggest that a constitutional jury is an achievable option for democracies.Footnote 25 In more practical terms, Eric Ghosh has asserted that a sortition-based constitutional jury – operationalised as a ‘Citizens’ Court’ – would address the deficit of democratic legitimacy in judicial review while also enhancing the quality and inclusiveness of political deliberation.Footnote 26 Ghosh’s work also draws on existing deliberative mini-publics – in this case, James Fishkin’s method of deliberative polling – to support using randomly selected citizens’ bodies to address rights issues.Footnote 27
But can deliberative mini-publics adjudicate rights disputes? To answer this question empirically, we must be clear about our definitions. Rights adjudication firstly sets apart rights-based public debates from other, less bounded forms of policy reasoning. While many public issues are contentious, only some are conceived in rights terms. (We adopt in turn the view that rights enunciate and detail, often in law, certain settled normative values and interests that a society holds to be most essential.Footnote 28) Thus, for example, while climate change may touch on rights, it is generally conceived of and debated in far wider policy terms. For this reason, we will exclude from our analysis the many ‘climate assemblies’ that have run as deliberative mini-publics in recent years,Footnote 29 such as the Irish Citizens’ Assembly on climate change in which references to rights were exceedingly rare.Footnote 30 However, other issues (eg COVID-19 vaccination mandates or travel restrictions, and social media) have been debated more squarely in rights-based terms.
A specifically adjudicative rights analysis entails, in turn, that certain broad qualified rights have already been publicly recognised or legally adopted, and that the analytic focus has now turned to applying these rights to a specific factual scenario (or class of recurring factual scenarios) in relation to specific competing rights claimants (or classes of rights claimants). For instance, parent groups concerned about harms to children on social media may compete with social media companies over whether a government should impose age limits on social media use, controls on news feed algorithms, etc. Here, a broad free speech guarantee is applied to the circumstances and claims of the parties involved and competes with other specifically-applied rights (or interests). Rights adjudication is an effort to resolve such particularised rights competitions.Footnote 31
Our study asks whether mini-publics are suited to this species of reasoning. We know from copious past work that they are generally suited to other types of public policy reasoning. But do the distinct features of rights adjudication frustrate the effective use of deliberative mini-publics?
In principle, a deliberative mini-public’s benefits in the rights-adjudicative context may be similar to its benefits elsewhere. Democratic reasoning as it is currently practiced in legislatures and the public sphere is, in most jurisdictions, often of low quality: limited information and polarisation severely hobble such deliberation, not least in relation to contentious rights matters.Footnote 32 Political partisans in polarised policy contests tend to be ‘motivated reasoners’ who use facts or sophistry to promote a value or policy position to which they committed long before the contests began.Footnote 33 In legislatures, partisan groups tend to demand party allegiance in lieu of inclusive, informed or flexible policy decision-making. Thus, despite their theoretical capacity to do so, legislatures often do not adequately integrate deliberation into their democratic practice; deep partisan divisions instead tend to drive their responses to rights disputes.
Of course, many jurisdictions therefore turn to courts to conduct adjudicative rights reasoning. However, complex and contentious matters that place rights in conflict with other rights (or with countervailing interests) lay bare a main weakness of courts: their limited capacity for democratic inclusion. Courts may underrepresent the perspectives of discrete groups and dissenting positions. For example, not infrequently during the COVID-19 pandemic, specific groups called the legitimacy of courts into doubt, thus aggravating divisions over policy.Footnote 34 Protest movements against (or occasionally for) virus mitigation measures such as school closures and vaccine mandates were stand-out features of the pandemic. Other examples of contentious and seemingly intractable rights debates, where judicial interventions inspire societal and partisan backlash (or even later reversals), arise in contexts such as abortion and social media regulation.Footnote 35
While dialogues between courts and legislatures would seem to mitigate this problem, as the lead paper in this collection showed dialogue does not restore deliberation to a legislature; rather, it generally overrules poor legislative decisions (including those issued under partisan and polarised conditions). The result is not genuine dialogue, but judicial dominance within wide areas of policy.Footnote 36 As Tom Tyler, Jonathan Jackson and other empirical scholars have shown, minority electoral or identity groups tend to accept democratic decisions only after they are robustly and genuinely heard from, which can encourage them to see that they retain a stake in the community.Footnote 37 A democratic process of inclusion may also provide information on the range, details and weights of citizen viewpoints – essential for building legitimacy and encouraging social adherence to public policy choices.Footnote 38 As we have seen, mini-publics integrate diverse democratic perspectives and technical competence, and may attract higher trust – and higher compliance – as a result.Footnote 39
However, and importantly, despite their generally encouraging track records, mini-publics’ abilities to absorb technical information is presumably finite. In some cases at least, a mini-public may not be competent to address matters that are excessively arcane or require copious background knowledge – more background, in any case, than can be gleaned in up to several weeks of a mini-public’s learning and deliberation phases. Our study assesses whether mini-publics can, in particular, adopt the doctrinal guidance (either general or specific) that may be necessary for human rights decision-making. Are the legal doctrinal tests of rights adjudication too arcane, or do they require too much background knowledge of law, to allow for effective mini-public deliberation? While, as we saw, both the theory and practice of rights adjudication by deliberative mini-publics have developed, a considerable lag remains in empirical examination of the phenomenon.
Our hypothesis is that rights-adjudicative mini-publics can apply legal rights tests to the facts in a dispute. A rights-adjudicative mini-public in principle may be much like any other mini public, in which technical experts (including legal experts) inform lay reasoners, who ultimately issue an independent recommendation. Like other mini-publics, then, a rights-adjudicative mini-public may enable deliberations combining expert advice and lay decision-making. We may also draw an analogy to civil or criminal legal juries, which weigh facts within clearly articulated legal frameworks. Legal juries need not be apprised of every nuance of doctrine. In a civil cause of action such as defamation or a criminal offence such as manslaughter, doctrinal details accumulated over centuries of practice are all but ignored in directions to juries; only the most directly relevant factual tests, as selected by the trial judge, are presented to juries for their consideration.Footnote 40 Similarly, as Ghosh observes, rights cases mainly involve ‘trade-offs between competing moral values’.Footnote 41 He continues:
An impression of great complexity in interpreting rights can be conveyed by the case law interpreting a bill of rights. However, this complexity is partly based on attempts to reconcile decisions with precedent and authoritative texts. As Waldron mentions, discussion of precedent can go beyond what is necessary to reach morally sound outcomes; it can instead be a symptom of judges seeking authority for their decisions, in the absence of the democratic legitimacy that legislatures enjoy.Footnote 42
The main complication is that rights tests such as those of proportionality and non-discrimination require decision-makers to weigh not facts alone, but facts and values (ie broad normative propositions – what Ghosh terms ‘moral values’).Footnote 43 Although scholarship makes clear that value-based reasoning is a forte of mini-publics in general,Footnote 44 no previous study has looked at their capacities to undertake adjudicative rights tests.Footnote 45
In the next part, as we review mini-publics (or mini-public-like bodies) that have sought to adjudicate rights disputes, we apply a two-part analytic framework. The first part assesses whether putative rights-adjudicative mini-publics have adopted the main institutional hallmarks of deliberative mini-public design. We look here to four features essential for such design:
1) Random selection. As noted, sortition involves random selection from the broader population. This again ensures that members are not self-selected, elected or appointed, but are relative political neophytes capable of addressing policy questions with comparatively little partisanship or prejudgment.Footnote 46
2) Stratification. Sortition also requires demographic stratification, such that mini-public members descriptively match the gender, geographic, age, ethnic or other diversities of the broader population.Footnote 47
3) Information exposure. In learning phases, lay members are presented with extensive information on technical matters and also normative context. The subject matter experts who speak with mini-public members in learning phases should possess a diversity of views, to ensure informational breath and avoid biasing outcomes.Footnote 48
4) Facilitated discussion. Discussion should be umpired to enforce ground-rules – for example, laying out stages of deliberation and rules for rigorous, respectful and inclusive deliberation.Footnote 49 A cadre of trained facilitators has developed globally in the last decade and is available for this role.
In the second part of our framework, we evaluate rights-adjudicative deliberative mini-publics’ conformity with either of two key markers of legal human rights analyses:
1) Proportionality testing, standard in international human rights law and constitutional rights practice in many jurisdictions, assesses a policy’s burdens on a right in relation to any objectives that may justify the policy.
2) Non-discrimination, a form of analysis in some respects similar to proportionality, arises mostly in equality rights cases where a policy that subjects a class of people to differential treatment is assessed in relation to whether, and to what degree, the policy is justified.Footnote 50
More specific legal doctrines – bodies of rules, standards and tests – often set out steps for deciding whether a law or action violates a given right. Specific doctrines may flesh out the general tests for proportionality, for instance by requiring particular kinds of assessments of the means and ends of policies: whether the ends are legitimate, whether the means are rationally connected to the ends and least-restrictive of a right, and whether the restriction’s gravity is approximately in balance with the importance of the ends. As for non-discrimination doctrine, specific doctrines can include tests that identify discrimination based on either formal legal distinctions or more substantive (‘indirect’ or ‘adverse’) effects.Footnote 51
Still more specific doctrines may also arise for a given right: for instance, rules defining the scope of the right, determining when and how that right is triggered, and varying or augmenting the standard proportionality test. However, given lay members’ limited time and preexisting expertise, we can expect subject-matter experts and facilitators to avoid pushing lay members too far toward the legal arcana of rights, or to encounter push-back if they do. If Ghosh and others are correct, however, the omission of such next-level legal detail should, in general, not negatively affect rights-adjudicative deliberative mini-publics.
We turn next to evaluate the mini-publics against the benchmarks above.
III Reviewing Rights-Adjudicative Deliberative Mini-publics
In this part, following the two-part schema above, we evaluate cases involving a deliberative mini-public that our broad-ranging study identified as having significant aspects of rights adjudication. We cannot claim comprehensiveness; new cases will continually arise, and given the inevitably ‘fuzzy’ boundaries between categorical distinctions,Footnote 52 what qualifies as ‘rights-adjudicative’ may be contested. Yet more important than comprehensiveness is our aim of identifying wide sets of examples to yield lessons about how rights adjudication has been, and in turn how it should be, conducted via deliberative mini-publics.
Our global analysis locates deliberative mini-publics that have substantially focused on adjudicative rights reasoning. Mini-publics with a rights-adjudication focus arose especially often in relation to COVID-19, which understandably dominated policy agendas during the pandemic years. But deliberative mini-publics have also been deployed to adjudicate a diverse range of contentious rights disputes. Our analysis looks specifically at processes that culminated in publicly available final reports or similar documents. We do not include those deliberative mini-publics that produced reports that discussed methodology alone, as opposed to the substantive content of the deliberation.Footnote 53 We also excluded forums that some sources described as mini-publics but that clearly operated as more standard town halls or community consultations.Footnote 54 Even with these exclusions, our search identified 19 deliberative mini-publics convened to adjudicate rights disputes across nine countries (Australia, Canada, Finland, France, Germany, New Zealand, North Macedonia, the United Kingdom and the United States).
As discussed previously, our interest in rights-adjudicative mini-publics means that we do not include mini-publics charged with addressing broad policy questions, nor mini-publics geared to enunciating broad new rights rather than focusing on rights’ application to specific scenarios. Rights-adjudicative mini-publics thus differ from more commonplace deliberative mini-publics that recommend new broad-ranging policies and laws.Footnote 55 For instance, most of Ireland’s mini-publics in recent years covered either broad policy issues (eg climate change, biodiversity, governance structures, ageing) or broad rights issues (eg gender equality), rather than clearly focusing on a competition between specific classes of rights claimants.Footnote 56
A Deliberative Mini-Public Design
As explained in Part II, the central aim of a deliberative mini-public is to expose a group of randomly selected but demographically stratified citizens to technical and normative background information. This in turn allows them to engage in policy reasoning under informed and facilitated deliberative conditions that would be far more difficult to achieve across the whole of a population. Applying the first set of deliberative mini-public hallmarks above, we find a large number of bodies – indeed far more than might be expected – that matched, or came close to matching, ideal criteria for deliberative mini-public design. This is a notable finding in itself. We summarise these findings in the Table below.
Deliberative Mini-Public Benchmarks
We see in the table widespread use of deliberative mini-publics to adjudicate rights issues, with most examples adhering relatively closely to design ideals. The mini-publics nearly all employed sortition – a practical indication that many governments or activists are comfortable with the technique’s legitimacy, despite occasional doubts on this point in the deliberative democracy literature.Footnote 57
Stratification of some kind was also a near-universal feature, albeit with a variable range of included groups. For instance, in the Franco-German Dialogue to Strengthen Cross-Border Cooperation in Times of COVID-19, among other demographics represented the participants were equally divided between French and German citizens – a reasonable choice given the body’s objective of supporting dialogue between the two nations. In other bodies, descriptive representation included, for example, diverse ethnic, age and gender representation. On the other hand, organisers of the Finnish mini-public noted that some groups already relatively prominent in politics (eg highly educated individuals, residents of major cities) were overrepresented in that particular body.Footnote 58
Nearly all of the mini-publics exposed participants to technical as well as other information. Some further information included specifics of normative argumentation. For example, diverse experts exposed lay participants to principles of ethics implicated by the dispute (see more on this in section III.B below), while others let participants themselves set normative agendas by bringing an open-ended range of normative concerns to the group.
Facilitated discussion featured in nearly every mini-public. In commissioning the Public Deliberations on COVID-19 Vaccine Access in New York City, the city’s health officials hoped to use the highly structured process to gain democratic insights into the normative choices involved as initially scarce vaccines became available.Footnote 59 Policy options included a formally equal (‘lottery’) approach, whereby every resident begins at the same point in the queue for the vaccine; and equity-based considerations, which prioritise vaccinations for people with particular roles (eg front-line city workers, such as bus drivers, highly exposed to the virus), and others with vulnerabilities due to personal characteristics (eg ethnicity, socioeconomic position, age or underlying medical conditions). As is standard in deliberative mini-publics, lay participants were organised at various times into large or small groups, allowing both expert instruction and subjective personal experience to be shared and discussed freely. In a follow-up account, some organisers stressed that such bodies:
include opportunities to reflect on relevant information with others, including those whose demographic background and experiences vary. The combination of information and structured discussion leads to more carefully considered recommendations, allowing health departments to gain a nuanced understanding not only of what participants think but also underlying reasons why.Footnote 60
After the structured and facilitated process, in which participants were able ‘to think carefully about definitions of fairness in the context of preventing COVID-19’, the recommendations issued included support for the equity principle – a clear answer to the question originally posed by health officials.Footnote 61
Not every putative deliberative mini-public adopted each of the ideal markers of the model. Yet our findings that relatively large numbers of rights-adjudicative bodies adopted most or all of these markers suggest that what the Organisation for Economic Co-operation and Development has called the global ‘deliberative wave’Footnote 62 has spread to rights adjudication. In the Global North especially, deliberative mini-publics have repeatedly served as alternative institutions for the adjudication of rights disputes.
Nevertheless, if deliberative mini-publics are increasingly being deployed to adjudicate rights disputes, a critical question is how – that is, according to which deliberative frames and normative principles – the adjudication is occurring. In the next section, we consider whether rights-adjudicative deliberative mini-publics have analysed rights in ways that satisfy the principal forms of legal rights adjudication.
B Legal Forms of Rights Adjudication
In this section, we look at whether the mini-publics in our study showed reasoning consistent with either of two general legal-analytic forms of deliberation over rights disputes: proportionality and non-discrimination. We also look for evidence of specific doctrinal tests. In the result, only a subset of deliberative mini-publics undertook deliberations consistent with legal forms of rights reasoning, whether general or specific. Notably, these particular subsets often reached more productive outcomes when addressing complex and contentious rights disputes.
1 Proportionality
Globally, proportionality is the dominant method of legal reasoning for resolving disputes between competing rights (or rights and interests).Footnote 63 As Kumm notes, proportionality testing is an essentially justificatory exercise. It ‘provides a structure for the assessment of public reasons [given for the government action in question]’; and more broadly for the deliberative analysis and contestation of laws.Footnote 64 Proportionality frameworks can particularly facilitate deliberation by foregrounding the necessity of balancing (ie weighing rights in tension with other rights or interests), accommodation (ie win-win outcomes) or limited carve-outs (ie exceptions to the general rule) in adjudicating rights.Footnote 65 This potentially allows dispute outcomes to account for analytic nuances, exceptions, conditional outcomes and outcomes that are not zero-sum but in which all parties benefit. The main contrast here is with the blanket assumption, especially common amid polarised rights debates, that rights are absolute. That assumption frequently surfaced, for example, during the COVID-19 crisis as rights claimants ‘often fixated on the particular rights that suited their claims, and in turn [were] unresponsive to the reasonable competing claims of others’.Footnote 66 A deliberative mini-public that instructs its members on proportionality reasoning might, then, be expected to adjudicate rights cases more effectively. Conversely, we can predict that a deliberative mini-public lacking such instruction would have difficulty deliberating over the tensions among rights (and interests) that arise in the great bulk of rights cases.
Our analysis provides some support for these assumptions. Two deliberative mini-publics stood out as equipped with proportionality-oriented reasoning tools. In Australia, the New South Wales COVIDSafe App Deliberation Workshops’ mandate specifically prompted participants to engage in a rights-balancing exercise. Participants were asked whether the legislation enabling the COVIDSafe App went too far in protecting individuals’ personal and privacy rights or did not go far enough.Footnote 67 The participants saw video recordings from experts and had live question-and-answer sessions with them. None of the experts had formal backgrounds in law.Footnote 68 Nevertheless, the record of discussions and reasoning indicates that workshop participants were guided by proportionality principles. The participants appreciated that privacy is not an absolute right, but that any interference must be on the basis of law aiming to achieve a legitimate objective. The result of the Workshops was that ‘more than two thirds of participants supported the balance between privacy protection and potential public health benefit enacted through the COVIDSafe app’.Footnote 69
A consideration in reaching this outcome was ‘whether the intrusiveness of the new technology was proportional to the risk to public health’.Footnote 70 Most of the participants concluded that the COVIDSafe app ‘achieved an acceptable balance between privacy concerns and the need to enhance the public health response in’ New South Wales.Footnote 71 In specific terms, the participants evidently undertook a minimal-impairment analysis (ie identifying policies that are least-restrictive of rights) in relation to public health protection outcomes. Some of the factors considered in the assessment of the impact of the policy were: voluntariness (the majority only supported the balance struck in the current legislation on the basis that the app remained voluntary), that the app traced proximity as opposed to specific locations, that data were only available to government officials performing contact-tracing, and that a person’s data would be wiped after they deleted the app from their phone.
Similarly, the Canadian Assembly on Democratic Expression took a highly informed approach to the political rights considered. The Assembly was tasked with generating recommendations on internet regulation to prevent harmful online behaviours such as hate speech, misinformation and online harassment. The participants recognised the challenge of ‘striking the right balance and developing a regulatory framework that was equal to the challenge of reducing the prevalence of online harms without becoming too heavy-handed’.Footnote 72 Identifying suitable limits on freedom of speech was a particular concern; the tension between freedom of expression and the benefit of regulation was a central issue.
In its final report, the Assembly proposed a detailed suite of reforms designed to reduce online harm while simultaneously protecting democratic expression. The participants clearly considered relevant elements of rights frameworks: the Assembly recommended that legal responsibility of online platform providers for content posted on their platforms not be extended to ‘lawful but awful speech’Footnote 73 in a way that would limit ‘healthy dialogue’;Footnote 74 and that the power to effect an urgent takedown of harmful content be given a ‘tiered’ operation to differentiate between different types of harmful content.Footnote 75 The Assembly also recommended tailored regulations to create enhanced protections for the online data of minors.Footnote 76 These recommendations indicate the Assembly’s reflections on specific elements of a legal proportionality framework, such as minimal impairment. They also broadly demonstrate that lay participants can evaluate complex rights conflicts when presented with proportionality tests as deliberative frames.
Interestingly, in a number of instances the specific instructions given to lay members were in the nature of normative rather than legal tests. Some experts who were not legally trained relied on frameworks from moral philosophy to give greater structure and specificity to the questions of proportionality raised in deliberations. Indeed, such normative instruction was a common feature of the mini-publics’ learning phases. In the Scottish Parliament Citizens’ Panel on COVID-19, Professor Paul Cairney introduced the participants to the different ways in which they might decide between different conflicting rights, while focusing on broad values (giving liberty or equity as examples) rather than specific rights.Footnote 77
Mini-publics were often primed to misfire when tasked with deliberating rights tensions without being instructed on proportionality as either a legal or a normative concept. One example was the French Citizen’s Committee on Vaccination against COVID-19, which evaluated proposed mandatory vaccination policies. The Committee considered, on the one hand, the right to bodily integrity and children’s right to informed consent to medical treatment, and, on the other, the community’s right to health. The final report positioned this tension as an insoluble ethical dilemma – ‘[w]e’re free to live as we please, but our liberty can have drastic impacts on others’ – for which ‘we don’t really have a solution’.Footnote 78 There was no consideration of well-developed human rights law proportionality principles that could have facilitated and guided the discussion.Footnote 79 The Committee recommended against mandatory vaccination. In doing so, it prioritised bodily integrity and informed consent over the community’s right to health, without providing reasons. The accompanying report observed simply that mandatory vaccination ‘impacts our bodies, our right to do with our body as we please, a right to which we are very attached, such as in the Universal Declaration of Human Rights’.Footnote 80
We see here a difficulty facing participants trying to deliberate rights issues without an awareness of the centrality of proportionality in human rights practice. The reasoning and conclusions were premised on absolutist conceptions of rights similar to those that prompted vitriol in public discourses at the height of the pandemic, in France and elsewhere.Footnote 81 The Committee appears to have identified a conflict between different rights, debated it, but eventually chosen one right claim to supersede another entirely. If a goal of using deliberative mini-publics to adjudicate rights disputes is to move beyond the terms of a polarised public debate and seek out more nuanced decision-making, then the French Committee was not overtly successful.
Similarly, the Citizen Assembly on Vaccination Confidence in North Macedonia enunciated, in a broad declaration, ‘[r]espect for the right to choose (unrestricted human freedoms)’.Footnote 82 While the Assembly wished to see the state recommend and encourage mass vaccination, it focused on one right in the dispute: ‘the right of citizens who do not want to be vaccinated because it is a personal choice’.Footnote 83 The North Macedonian assembly thus categorically rejected any mandatory vaccination. The Baden-Württemberg Citizens’ Forum demonstrates a similar approach, albeit with the opposite outcome. Its participants narrowly endorsed universal compulsory vaccination, expressly discounting the more tailored approach of profession-specific vaccine mandates.Footnote 84 Participants viewed vaccination as a zero-sum game between competing rights.
In a similar absolutist approach to rights conflicts, the Scottish Parliament Citizens’ Panel on COVID-19 supported border closures and border restrictions on the grounds that such policies would allow schools to remain open.Footnote 85 The final report indicated that the Panel recognised border closures would interfere with freedom of movement rights. Thus, the Panel broadly prioritised children’s right to education over freedom of movement rights.Footnote 86 There is no indication that, in discussing freedom of movement rights, the panel considered specific doctrines within the broader umbrella of freedom of movement, such as the rights of nationals to enter their own countryFootnote 87 or children’s rights to family unity.Footnote 88 The Panel’s recommendations in support of border closures and border restrictions did not provide any exceptions for returning UK nationals who ordinarily reside in Scotland or situations in which children would be separated from their parents.
A lack of nuance or exception in mini-public deliberations demonstrates how rights can be used by mini-publics as blunt instruments if participants are not primed with relevant legal or normative deliberative tools such as structured proportionality.Footnote 89 The examples illustrate that when a contentious rights conflict is referred to a mini-public for deliberation, bodies partly or wholly uninformed about rights principles may not see participants resolve tensions via nuanced approaches to balancing, accommodation or carve-outs. Ordinary citizens are given a dilemma to tackle but are not equipped with the established reasoning toolkit to address the problem. Participants instead recognise a rights conflict but choose one side – and one set of rights claimants – to prevail wholly over another.
2 Non-Discrimination
While proportionality frameworks have (with the limited exceptions above) not seen regular use in rights-adjudicative deliberative mini-publics, a related form of reasoning – non-discrimination – has been far more common. Non-discrimination principles account for the rights and interests of minorities or marginalised populations. From a human rights law perspective, gauging the views of specific populations and developing a solid understanding of legal and political processes can, as observed in Part II, lend legitimacy to finalised recommendations. Non-discrimination is a key consideration in rights analyses recognising that certain groups have additional rights or need special protections for their rights to be realised.Footnote 90
Notwithstanding its greater incidence, engagement with non-discrimination principles once again suggests that express instruction is critical for effective rights deliberation inside mini-publics. While most deliberative mini-publics took account of some minority and marginalised populations, engagement with the interests of these groups was often haphazard. Consideration of non-discrimination in some mini-publics was also limited in scope, focusing only on a limited subset of the population. Such a limited view is problematic if it generates a partial picture of the group rights and interests affected.
For example, the only group discussed by the Franco-German deliberative mini-public on strengthening cross-border cooperation during COVID-19 was cross-border workers, a group whose interests might be ignored by national governments regulating their domestic tax and health affairs.Footnote 91 Similarly, the Scottish Parliament Citizens’ Panel was interested in financial inequality, but only insofar as it related to people’s ability to afford a ‘vaccine passport’.Footnote 92 The West Midlands Recovery deliberative mini-public’s report acknowledged its own limited vision, stating that ‘the impact of coronavirus on minorities was shocking and Panellists found it difficult to understand. Many [Panellists] expressed confusion as to why [minorities] were more vulnerable’.Footnote 93 Thus, without express direction on rights reasoning, the ability of a deliberative mini-public to generate substantive recommendations regarding minority interests appears to be weak. Given the wealth of extant literature on healthcare inequity, and the demonstrated capacity for deliberative mini-public participants to be educated on complex policy issues (as discussed above), the Panellists’ confusion about minority interests is likely attributable to a lack of instruction.
By contrast, despite the complexity involved, some mini-publics effectively tackled minority concerns when expressly instructed to do so. The Public Deliberations on COVID-19 Access in New York City focused on identifying factors that placed certain populations at higher risk of infection and severe illness, and included presentations on risk factors and healthcare inequity. These presentations were crucial to the main task of the deliberative mini-public: to decide how vaccine access should be prioritised. In contrast to the West Midlands deliberative mini-public’s approach, the participants in the New York deliberations demonstrated a sophisticated understanding of relevant risk factors for COVID-19, focusing (as we discussed above) on underlying health conditions and associated factors like socioeconomics and ethnicity.Footnote 94 The mini-public’s deliberations even reflected an advanced grasp of the idea of intersectionality and its importance when considering minority interests. As one participant noted:
[Grocery store workers are] gonna be the most exposed, and also those are the jobs done by minorities, too. So, I feel like itʼs gonna tackle both at the same time: dealing with the problem of race, and also people living with low income, who are the ones who are – a lot of the time – employed in those occupations.Footnote 95
The Canadian Assembly on Democratic Expression took a similarly nuanced approach to minority interests in relation to hate speech and disinformation regulation. The Assembly generated highly detailed recommendations alive to the importance of minority interests. In addition to measures designed to protect minorities from ‘discrimination and victimisation’, such as establishing a Digital Services Regulator and Ombudsperson, the Assembly’s recommendations included a section specifically devoted to ‘Decolonisation and Inclusion’.Footnote 96 That section recommended prioritising affordable internet access to all Canadians, and placing obligations on internet platform providers to account for the ‘concerns of historically marginalised groups’ in their product design. Moreover, the use of terminology from critical theory is indicative of presentations or facilitation strategies designed to encourage participants to include a wide array of minority interests in their reasons. An explicit focus on minority human rights gave participants the chance to unpack the issue in depth.
The changing views of participants in the London Deliberative Workshops on COVID-19 also demonstrated the importance of comprehensively informing participants about minority issues. The Workshops considered the imposition of a blanket 14-day isolation period for patients prior to undergoing a hospital procedure. Initially, participants approved of the mandatory isolation policy, viewing it as ‘sensible and necessary’. However, following discussions and exposure to case studies, the Workshops strongly opposed a universal 14-day isolation period. Participants had concerns for those in financially precarious situations; people without housing; and those with mental health conditions and learning disabilities, or who suffer from pre-existing conditions requiring regular in-person treatment (eg dialysis). As summarised in the final report, ‘participants worried about the impact of the proposed changes on specific groups, and wanted specific measures put in place for them’.Footnote 97
As with discussions of proportionality, some of the more effective engagements with discrimination principles were couched in normative rather than legal terms. The Public Deliberations on COVID-19 Vaccine Access in New York introduced participants to normative frameworks such the lottery approach (ie all persons formally treated the same), utilitarian welfare maximisation, and the ‘fairness as equity’ approach. Fairness as equity, analogous to the notion of substantive equality in law, particularly informed the deliberative mini-public’s ultimate recommendations for prioritising vulnerable workers and minority groups. Professor Erika Blacksher, an expert on bioethics whose work focuses on health equity and social justice, explained the fairness as equity framework and used graphical illustrations of the concept.Footnote 98 She also adverted to the unique conditions of particular groups defined, for example, by age, ‘[u]nderlying health condition’, ‘[r]ace/ethnicity’ and ‘[n]eighborhood vulnerability’.Footnote 99
IV Discussion
In this final substantive part, we outline three conclusions that we deem most important from our global study of rights-adjudicative deliberative mini-publics.
First, express doctrinal instruction, where used, enhanced the quality of deliberation by allowing participants to move beyond impasses. This was the case for both proportionality and non-discrimination analyses. Conversely, omission of doctrinal instruction by organisers often resulted in mini-publics getting ‘stuck’ in the same place as the public debate writ large. Others have noted that mini-publics can become more polarised following deliberation;Footnote 100 our study indicates that human rights legal tests, imported in various forms into mini-publics, may reduce the likelihood of such polarisation.
Thus, while a drive toward mini-publics as new models for rights decision-making is evident, we have seen the importance of proper design if deliberative mini-publics are to be useful in this context. Mini-publics that applied a clear proportionality framework provided proof of concept that mini-publics can in principle take legal rights doctrines on board in their own deliberations. These mini-publics were particularly adept at providing nuanced answers to rights disputes – answers that did not simply hand an outright win to one side in a complex and contentious conflict.
A related observation was deliberative mini-public participants’ willingness to account for the interests of minority and marginalised groups in their deliberation. By carefully tying minority interests to a specific question (eg the prioritisation of vulnerable cohorts for vaccine access or protection against hate speech), and by sufficiently educating their participants on the relevant legal or normative frameworks for approaching that question, subject matter experts and facilitators prompted more effective insights within mini-publics.
But these positive results entail a significant caveat. The quality of outcomes was mixed in practice, the results being generally conditioned on the quality of doctrinal instruction and mini-public facilitation. John Gastil and Dennis Hale have found something similar in the conduct of legal juries, where clear and comprehensible substantive instructions also seem to be required.Footnote 101 In the ideal of mini-public practice, and indeed of jury practice,Footnote 102 a deliberative division of labour develops between expert and lay participants. Lay members should be the ultimate, independent decision-makers; experts should in turn inform and support these lay decision-makers’ deliberations, without dictating outcomes. Hence, just as judges play a hands-off guidance and support role in jury trials – for example by stipulating which factual questions jurors must answer and on what standardsFootnote 103 – a deliberative mini-public’s facilitators and other experts should indicate which essential tests lay members should apply to the rights dispute.
In practice, however, rights-adjudicative deliberative mini-publics sometimes encountered impasses or merely echoed the polarised and entrenched rights debates that they were meant to resolve. This was especially so for mini-publics that did not employ proportionality or non-discrimination tests. On the other hand, as we saw, mini-publics instructed on these tests were often able to resolve impasses and issue informed decisions accommodating divergent points of view. Deliberative mini-publics not instructed on (for example) a proportionality framework were prone to using rights as blunt instruments, deploying them to assert one claim’s broad privilege over another. On such an approach, rights or interests simply vie against one another in zero-sum ‘agonistic’Footnote 104 terms, as in the highly polarised COVID-19-era debates as to whether personal liberty or health protection should prevail in deciding lockdown policy.Footnote 105 Those deliberative mini-publics given instruction on the broad structures of proportionality and non-discrimination reasoning tended to arrive at more points of consensus, moving beyond bluntly agonistic conflicts.
If mini-publics are to resolve rights disputes effectively, then at the very least doctrines or principles of proportionality and non-discrimination should structure their deliberations. Ideally, subject-matter experts and deliberative facilitators should offer general instruction on such forms of reasoning. Especially in relation to conflicts between different rights, having an epistemic toolkit specifically designed to help decision-makers balance rights against one another (or against other interests) in a nuanced way was a key factor behind the more effective mini-publics.
Turning to our second point, as we predicted based on Ghosh’s groundwork, the omission of more detailed doctrinal specifics did not appear to prevent some mini-publics from conducting their work effectively. In particular, beyond the basic structure of a proportionality or non-discrimination test, few mini-publics delved into legal arcana. Such omissions, however, did not prevent some mini-publics from achieving their main objectives: integrating informed and inclusive decision-making into a decisional process that resolves rights competitions in nuanced, rather than all-or-nothing, terms.
There appeared to be no need to extend reasoning beyond key principles. For proportionality reasoning, key principles included least-restrictive means analyses. For non-discrimination analyses, express expert instruction on the basic distinction between formal and substantive inequalities was helpful, as was instruction about intersectional perspectives. Beyond this, further doctrinal specificity was all but omitted. Technical questions such as whether a given right formally applied in a given scenario (eg in the Canadian Assembly on Democratic Expression, whether the freedom of expression under s 2(b) of the Canadian Charter of Rights and Freedoms applies to a particular non-governmental act) did not feature prominently.
There is an in-principle risk that such omissions can lead to technical errors in the conclusions and recommendations of rights-adjudicative mini-publics. Indeed, in the practice of mini-publics more generally, one reason why recommendations are generally advisory rather than formally binding is to allow other actors, such as experts in the executive of government, to recommend against adopting particular recommendations. This may catch and reverse any legally untenable or otherwise technically unrealistic recommendations issued by the mini-public (though in practice, the high trust generally enjoyed by these bodies means that such denials may be rare).
In any event, as we previously saw, Ghosh’s assumption (drawing on Waldron), and examples from law juries too, suggest that there is little need for high-level doctrinal specificity beyond key principles such as those noted. Such technical specificity can be beside the point when the main analytic task involves applying principles to factual circumstances or weighing normative principles against each other. Our results seem consistent with this assumption, if the main ambition of a rights-adjudicative deliberative mini-public is to resolve a competition between rights via an informed, inclusive and trusted process.
A third lesson, related to the previous one, is that some mini-publics received instruction in forms that abandoned legal language altogether, relying instead on chiefly normative categories of reasoning. The survey reveals that a particular form of instruction makes key normative concepts underlying rights more accessible to mini-public members. Translating doctrines into more broadly accessible normative principles represents, in our view, what Cass Sunstein terms ‘conceptual ascent’: downplaying more technical and detailed legal norms in favour of the basic principles underlying these norms.Footnote 106 In Sunstein’s work, conceptual ascent is understood as a strategy of conflict-avoidance. But the main reason for conceptual ascent in the presentation of key doctrinal details to mini-public members may have been to avoid overcomplicating what are, at root, basic normative propositions.
Stripping rights down to their conceptual foundations can reveal those rights’ essential, and relatively accessible, contents. A mini-public’s facilitators and expert witnesses may choose to present the normative concerns underlying legal tests, rather than detailing the legal tests themselves. The ‘necessity’ step in structured proportionality analysis, for example, can be explained through the highly intuitive concept of Pareto optimality.Footnote 107 Conceptual ascent from legal to normative principles therefore, again, seems to reflect a view that rights disputes can be addressed through normative deliberation, rather than solely via the more rarefied language and methods of legal reasoning.
Avoiding legal language may indeed be useful in light of the theoretical risk of expert-capture of mini-publics. The division of labour noted above between experts and lay members may become degraded if the experts who participate in or design a mini-public system prefer certain outcomes, or neglect to present a wide enough range of principles or possible outcomes from which lay members may then choose.Footnote 108 Presenting rights concepts in normative rather than legal terms may partly offset this potential problem, if ethical norms are less rarefied and intimidating than are laws and doctrines. Normative re-framing of rights doctrines may avoid some of the undue deference that lay participants may sometimes give to legal experts.
V Conclusion
The spread of deliberative mini-publics around the world has gained momentum in parallel with the accumulating evidence of their capabilities. Indeed, no other model of democratic or deliberative decision-making has inspired the same level of evidence-based enthusiasm among political scientists and theorists. The bodies are, as we saw, generally trustworthy, informed and inclusive, and often capable of overcoming divisions and even attracting widespread popular trust. Yet a key open question has been whether such lauded uses of deliberative mini-publics can extend to adjudicative rights disputes. More particularly, can these bodies adopt forms of adjudicative reasoning familiar from the legal practice of rights?
Our first and most straightforward, yet still notable, finding is the stark rise of rights-adjudicative mini-publics, on subjects ranging from hate speech to COVID-19. Our second set of results address the more complex question of whether the emerging rights-adjudicative mini-publics can deliberate about rights effectively. Some commentators have assumed they can; lay participants may be capable of considering fact- and value-based evidence at least as well as legally-trained experts. Indeed we find – in a further notable result – that deliberative mini-publics can effectively apply proportionality and non-discrimination tests to balance or accommodate conflicting rights, avoiding the zero-sum contests typical of polarised rights debates. Deliberative facilitators and subject matter experts have succeeded in calling members’ attention to key rights doctrines, such as proportionality and non-discrimination. Expert instruction of lay members may in turn be aided by a focus on the normative underpinnings of legal doctrines, rather than legal language and arcana.
Our findings generate a picture of a potentially important entrant to the practice of rights adjudication. The global wave of deliberative mini-publics has evidently spread to the field of applied human rights. Indeed, mini-publics may be set to continue addressing rights disputes, in light of the headwinds facing democratically deficient courts, polarised legislatures and often deeply divided and underinformed wider public discourses. On the other hand, mini-publics’ effectiveness may depend, at least, on refining and regularising their practices of facilitation and expert instruction as they continue their push into the field of rights adjudication.
Acknowledgements
The authors wish to thank the two anonymous reviewers and Jeffrey Kennedy, Hoi L Kong, Tanya Kuzman, Kimberlyn McGrail, Manish Oza and Andy Yu for advice on this piece.
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