The Legal Construction of Power in Deliberative Governance

Abstract

Deliberative democracy has grown into an influential normative paradigm for political theory and reform programs alike, but doubts persist about its desirability in a world where strategic action and inequality are prevalent. This problem has spurred efforts to understand the empirical dynamics of power-relations in institutionalized participation. This article argues that sociolegal scholarship has yet to join this turn to power, but that doing so can help it to specify law’s causal and normative relevance in deliberative governance. This is because the legal environment within which actors interact affects causal mechanisms by distributing opportunities for the exercise of power between potential participants, actual participants, and participants and government. The utility of a power-distributional perspective is illustrated through a study of Sao Paulo’s health councils, one of the world’s largest experiments in deliberative governance. The study demonstrates that the councils’ trajectory and current functioning—including some of their normatively problematic aspects—cannot be understood without reference to legal arrangements. This article is meant as a building-block for sociolegal scholarship to continue investigating deliberation.