Deliberative Democracy and Political Law: The Coercion Problem

Abstract

Deliberative democratic theories contend that, prior to the making of collective decisions, there ought to be deliberation among those affected by the decision, where deliberation is understood in some sense as interpersonal discussion. A deliberative theory imposes moral demands upon citizens: each citizen ought to remain open to her co-citizens’ views (that is, to listen attentively and try to understand them); and she should be willing to change her view or preferences in light of what she learns from the discussions. Deliberative perspectives dominate modern democratic theory. Yet most deliberative democrats undervalue law and neglect to address its substantial and varied influences on political practice. Since the 1960s, the legalisation of politics has deepened. “Political law” now extensively regulates democratic procedures. In this paper (part of an ongoing “Law of Deliberative Democracy” collaborative project) I consider whether institutional designers can help to realise deliberative democratic ideals through carefully tailored law, or alternatively whether law has a generally anti-deliberative role to play in democratic politics. Much turns on this question. If the latter is more likely, then given political law’s modern spread throughout democratic practice, the general feasibility of achieving deliberative democratic ideals appears doubtful.The paper focuses on what I call “the coercion problem.” A hallmark of deliberative theory is that nothing should compel decision-makers to reach a particular decision except rational persuasion. But the aim of law is often precisely to coerce: to use the force of the state to pressure a law’s subjects to conform to mandates and restrictions. According to Habermas, law might coerce only up to a point. But political law uniquely influences deliberation not just by creating broad institutional foundations, but additionally by establishing a fine matrix of political rules. The problem of legal coercion is potentially fatal to deliberative democracy. Yet I conclude on a note of cautious optimism: that certain modes of regulation may mitigate coercion, such as Raz’s “guidance,” and Sunstein, Anderson and Pildes’ “expressivism.”