Deliberative Democracy Theory and how it undermines fundamental rights

Deliberative democracy is a theory which attempts to use public policy in order to give more legitimacy to the decision-making process through public involvement. Deliberative democracy might be able to fulfil this role, by puncturing the boundaries between deliberation and participation by bringing different public decision making process back into public policy. Citizens’ juries and deliberative pools are political instruments which arose out of this theory.

This essay argues that there is an inherent contradiction, within deliberative democracy theory between the participation of society in the decision-making process and the nature of deliberation itself. If implemented, this theory would undermine a democratic state by the right of the majority to take away principal rights of individuals and groups. In order to illustrate this contradiction, this paper begins by defining deliberation and deliberative democracy, while arguing that the definitions themselves are not to be understood in a dogmatic fashion.

This work continues by arguing that deliberation and participation conflates with negative effects within deliberative democracy theory. While showing the general and specific pros and cons of this theory, it will be argued that even a soft definition of deliberative democracy, which acknowledges that the framework within the deliberative process is needed, is unsuccessful in merging participation and deliberation. Different interpretations of deliberative democracy theory try to reconsolidate deliberation and participation, even though they are structurally and in practice separate, as will be illustrated.

Defining deliberation and deliberative democracy

Before a discussion over the conflation of deliberation and participation in deliberative democracy can be given, this essay will define deliberative democracy and deliberation. To commence with this definition, it should be clarified that deliberative democracy does not have a unified school of thought or a well-established definition of deliberative democracy (Weale, 2007: 78). Therefore, the general and broad definition of deliberative democracy seems to be a reasonable approach.

Deliberative democracy may be defined as a public political procedure which is associated with well-functioning democratic practices, in which a deliberative process involving society provides legislation under which the society is governed fairly (Weale, 2007: 84). This leads to the process over democratic deliberation in which there the process of deliberation within democracies creates legitimating through both good deliberation and fair aggregation (Mansbridge, 2007: 251). Therefore deliberation may be defined as a process whereby different relevant reasons are measured, while a decision is made on the basis of this measurement (Cohen, 2007: 219). Moreover, Cohen assesses that deliberation is a process that is distinct to collective reasoning (Cohen, 2007: 220). This leads to the assumption that inside the deliberative process, legitimacy is created through a variety of institutionalized processes, which are systematically and politically distinct.

Habermass agrees while explaining that the proper application of deliberation is a vital function for a democracy because deliberation draws legitimacy through process of negotiations in which equally entitled participants can freely agree on a course of action, which partly includes the concept of public participation. Conversely, the participants of the deliberative process commit themselves to laws as a medium for regulating their common life in which they are using the Kantian concept of political autonomy in order to grant individual liberties which cannot be taken away by the deliberative discourse itself (Habermas & Rehg, 2001: 772).

     It is vital to acknowledge that legitimacy itself does not simply arise from collective decision-making but also from the process which protect the minority of the rule of the majority (Mansbridge, 2007: 263). Therefore, it could be argued that deliberative democracy sacrifices the distinct practice of deliberation in favour for the important element of participation inside a democracy in order to achieve a maximum of legitimacy, which in return might undermine the rights of individuals.

Deliberation, participation and democracy

Today, democracies are faced with the declining interest of society in political participation, and this undermines the legitimacy of the current government. According to the proponents of the deliberative democracy theory, deliberative democracy promotes social justice (Cohen, 2007: 221), while equal opportunity to participate in the decision-making process gives the citizen a platform for social critique (Rosenberg, 2007: 154). It conforms to citizens and heightens their sensitivity towards political issues and broadens their knowledge about these issues (Cohen, 1989: 699; Sanders, 1997: 351). Deliberative democracy theorists are convinced that through this process of deliberation the will of the people can be changed as well as the norms which defines the society itself through this process (Rostboll, 2005: 371, 392). In return, this leads to the assumption that the people are never wrong if they have a direct say about matters of policy, because the decisions made enjoys wide legitimacy through the fusion of deliberation and participation within the political process (Rostboll, 2005: 392).

These assumptions however, are contradicted with some general and specific critiques of the deliberative democracy theory. In general, critics of the deliberative democracy theory argued that deliberative democracy does not acknowledge the complexity of some policies (Warren, 1996). Deliberative democracy ignores the prejudices people naturally have when they engage in to a deliberative discussion (Cohen, 1989: 699) and that there will never be a fair discussion because some individuals take control (Sanders, 1997: 365) while others are overly egoistic (Weale, 2007: 81) or fall prey to the human inability for self reflection (Rosenberg, 2007: 157). In addition, it is doubtful that an agreement will be reached with a diverse multiethnic society that has conflicting interests. Some defenders of deliberative democracy theory, whom are confronted with this critique suggest that a merge between aggravated democracy and deliberative democracy could create an alternative institutionalized decision-making process which is needed when no agreement can be reached (Weale, 2007: 80). However, the aforementioned critique seems to be plausible because average citizens might not be the best deliberators to engage in a balanced deliberative process.  

The most specific and valid critique of deliberative democracy is that deliberative democracy adds too much participation into the deliberation process, resulting in inefficient outcomes (Morrell, 2005). As mentioned, “citizens can make an appropriate use of their public autonomy, as guaranteed by political rights, only if they are sufficiently independent in virtue of an equally protected private autonomy in their life conduct” (Habermas & Rehg, 2001: 767). Defenders of deliberative democracy theory would argue that citizens would be able to make that distinction and not abuse the power over time which implies a “self-correcting historical process” (Habermas & Rehg, 2001: 768). It seems doubtful that society would ever be able to engage in rational and practical form of deliberation without external structures pushing for these practices. Parkinson agrees that the discourse itself does not depend on the reasoning within the discourse but rather on the existing structure, in which discourse it is embedded (Parkinson, 2003: 186).  In other words “(...) where there are differences of opinion about what collectively has to be done,  then some set of instruction will be necessary to deliberate about the different points of few that are advanced”(Weale, 2007: 77). In contrast, constructivists would argue that this framework itself goes against the political autonomy of the individual in the deliberative process (Rosenberg, 2007: 155) which in the consequence is against the ideal of deliberative democracy. However, it seems to be clear that the practical collective decision-making process needs a framework. Still, from the liberal point of view the legislative process needs specific legal institutionalized process in which deliberation and participation is separated from one another (Habermas & Rehg, 2001: 770). This separation is needed in order to guarantee that individual rights are not violated by the right of self-determination of the society (Habermas & Rehg, 2001: 766). Therefore there should be a clear separation between the participation of society and the deliberation of policymakers because society needs institutionalized regulations in order to protect the minority or the individual from the majority in the decision-making process.

Proponents of deliberative democracy would argue that this separation would lead to a system which exists at the moment in which consensus rarely occurs (Rostboll, 2005: 389) and legitimacy is missing. It is exactly this rule of the majority which proponents of deliberative democracy ought to deter thorough the process of public deliberation in the legislative process (Rosenberg, 2007: 220). According to this line of reasoning deliberation and participation have to be combined in order to give the maximum amount of individuals in society a say in the deliberation process in order to gain a maximum of legitimacy and therefore justice. Habermass disagrees: “(...) whereas the morally acting individual binds her will to the idea of justice, the reasonable self-binding of the political sovereign means that the latter binds itself to legitimate law” (Habermas & Rehg, 2001: 779). Therefore, the institutional structure which separates deliberation from participation, which in return guarantees private liberty, enjoys more legitimacy than the collective decision-making process. Arguments for this point of view are plentiful. For example, their collective decision-making processes of the deliberative democracy theory disregards the fact that the whole society cannot participate in the collective decision making process for practical reasons which will be deemed illegitimate from the individuals outside the process (Parkinson, 2003: 181, 186). Moreover, the quality of the discourse in the collective decision-making process varies tremendously which leads to a declining in legitimacy under deliberative democracy (Rosenberg, 2007: 157).

This clash between public autonomy, which guarantees the individual rights under the rule of law, and political autonomy, which guarantees the society to be the ultimate tool  for shaping laws and policy, is the central critique of deliberative democracy wherein the deliberation and participation conflates (Habermas & Rehg, 2001: 767). For the defendants of deliberative democracy theory this contradiction does not really exist. They argue that deliberation and participation can indeed coexist because deliberation is not about advancing personal interests of the participants, but rather to create an outcome which can be accepted by all parties and therefore protects the autonomy of the individual (Cohen, 2007: 221). The society within the collective decision-making process is aware of the risk that they might violate the autonomy of the individual and therefore refrain of doing so. This however is highly arguable.

In practice this seems to be unfeasible because the deliberative process itself cannot include all parts of the society (Sanders, 1997: 353) which makes it highly unlikely that the parts of the society that are involved in the collective decision-making process are aware of the variety of interests within the society because they are not represented. From a Republican point of view the weakness of this theory can be disregarded because the framework will be established through the deliberative process which reassures that the deliberative practice itself protects all parts of the society even if they are not participating (Habermas & Rehg, 2001: 771). Again, this seems to be applicable in theory but there is no guarantee that the deliberative process will refrain from undermining the autonomy of individuals that are part of the minority by the framework. The reason for this being that there is no oversight by any other independent body that reassures that public autonomy and private autonomy are in balance with one another. In addition, it seems doubtful that self legislation by the society will have enough consideration for individual freedom of members of the society (Habermas & Rehg, 2001: 767 - 768). This implies that the deliberative institutions are necessary in a democracy in order to prevent citizens to abuse the deliberative process for their practical end which shows that institutionalized discussions also lead to better results than free unrestricted deliberative decision-making (Weale, 2007: 81, 84). Consequently, deliberation and participation need to be theoretically and politically distinct in order to guarantee a just and applicable outcome within a democracy.

Conclusion

This essay set of by defining deliberative democracy and deliberation. While defining this terminology, this essay clearly distinguishes between the decision-making process of a Democratic state and public participation, which in return would go against the very definition of deliberative democracy. Deliberative democracy theorists argue that citizen participation in collective decision-making results in more legitimacy and therefore reject the clear distinction between the two.

This paper disputed this argument by illustrating that a true deliberative process is highly unlikely when all citizens are confronted with a collective decision-making process which requires a fair and balanced approach to all points of views and needs within the society, because of general flaws within the public deliberation process. In return deliberative democracy proponents suggested that the framework and the use of a model of aggravated democracy, which suggests voting when no agreement can be reached, could force the citizen to a true deliberative decision which takes all the different aspects of the decision making process itself into account. In response, it is argued that the framework itself goes against the true intentions of the deliberative democracy theory.

This work illustrates that; if the deliberative democracy were implemented then the balance between private autonomy and public autonomy would be endangered. Participation and deliberation are distinct concepts within the Democratic state and if assimilated would lead to political outcomes in which the majority could suppress a minority or individual rights would not be guaranteed. Deliberative democracy theorists disagree, because they see the general citizen as educated and conscious enough that they would refrain from violating the rights of individuals and the rights of minorities within a state. However, they acknowledge that this would take time because deliberative democracy is something a society needs to learn.

This paper argues for clear separation between participation and deliberation because an institutional oversight over to decision-making process is needed in order to guarantee individual rights. By giving the society the right to govern itself through a deliberative process would endanger fundamental democratic values such as: the clear distinction between legislative, executive and judicative branch, as well as the right of any individual to pursue its own freedom. It seems to be naive to believe that a contemporary existing democratic society would be able to deliberate in a fashion envisioned by deliberative democracy theorists.  
 
 
 
 
 
 
 
 
 
 
 
 
 

Bibliography

Cohen, J. (1989) ‘Democratic Equality’, Ethics 99:4, pp.727-751. 

Cohen, J. (2007) Deliberative Democracy In S. W. Rosenberg (Ed.), Deliberation, Participation and Democracy: Can the People govern? (New York: Palgrave MacMillan), pp. 219 - 251. 

Habermas, J. r., & Rehg, W. (2001) ‘Constitutional Democracy: A Paradoxical Union of Contradictory Principles?’ Political Theory 29:6, pp.766-781. 

Mansbridge, J. (2007) Deliberative Democracy or Democratic Deliberation? In S. W. Rosenberg (Ed.), Deliberation, Participation and Democracy: Can the People govern? (New York: Palgrave MacMillan), pp. 251 - 271. 

Morrell, M. E. (2005) ‘Deliberation, Democratic Decision-Making and Internal Political Efficacy’, Political Behavior 27:1, pp.49-69. 

Parkinson, J. (2003) ‘Legitimacy Problems in Deliberative Democracy’, Political Studies 51, pp.180 - 196. 

Rosenberg, S. W. (2007) Typs of Discourse and the Democracy of Deliberation. In S. W. Rosenberg (Ed.), Deliberation, Participation and Democracy: Can the People govern? (New York: Palgrave MacMillan), pp. 130 - 159. 

Rostboll, C. F. (2005) ‘Preferences and Paternalism on Freedom and Deliberative Democracy’, Political Theory 33:3, pp.370-396. 

Sanders, L. M. (1997) ‘Against Deliberation’, Political Theory 25:3, pp.347-376. 

Warren, M. E. (1996) ‘Deliberative Democracy and Authority’, The American Political Science Review 90:1, pp.46-60. 

Weale, A. (2007) Democracy (New York: Palgrave Macmillan).