AustLII Home | Databases | WorldLII | Search | Feedback

Alternative Law Journal

Alternative Law Journals (AltLJ)
You are here:  AustLII >> Databases >> Alternative Law Journal >> 2000 >> [2000] AltLawJl 26

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Hands, Tatum --- "Dealing with democracy" [2000] AltLawJl 26; (2000) 25(2) Alternative Law Journal 65

Dealing with Democracy

Can deliberative theory work in practice?

Tatum Hands[*]

The future of democracy in contemporary society continues as a dominant theme of political theory. The conditions of pluralism, multiculturalism, increasing complexity and fragmentation of society challenge political theorists to reassess the traditional conceptions of democratic theory in order to find a suitable political model. In recent years a new model of democracy has emerged to address the problems of reconciling the legitimising need for popular participation in government with the desire for unanimity in collective decision making and retention of the market economics which defines our advanced capitalist era. This model has variously been termed ‘discursive’, ‘discourse theoretical’ or more widely, ‘deliberative’ democracy. Despite being ultimately addressed to the voting public, most accounts of deliberative democracy suffer from being overly theoretical and therefore potentially unavailable to the masses. This article seeks to lay open deliberative theory and address its practical feasibility in our current system of representative government.

Defining deliberative democracy

Deliberative democracy is a concept grounded in notions of political equality and emancipation. Essentially, it is an attempt to reintroduce the popular into ‘popular sovereignty’ and refocus our current representative manifestation of democracy from ‘government for the people’ to ‘government by the people’. It seeks to achieve this aim by advocating a system of institutionalised deliberative arenas where citizens meet to discuss, debate and decide policy issues. These arenas would take the form of voluntary collective institutions or associations which have a community, as opposed to issue, orientation. Informed decisions taken by these groups would generate a ‘communicative power’ which, though it cannot take the place of public administration, can exert significant influence on it.[1] The model is not conceived of as a replacement for representative democracy rather, it is hoped, that by involving civic discussion groups in public policy formation the deliberative model will add to the democratic legitimacy of our current representative system.

In Three Normative Models of Democracy,[2] Jurgen Habermas places a greater emphasis on legal and institutionalised procedures as the defining feature of deliberative democracy than his fellow theorists. This highly procedural approach is aimed at addressing certain problems he locates in the ‘liberal’ and ‘civic republican’ models which he identifies as the ‘two received views of [modern] democratic politics’.[3] The liberal (or Lockean) model of democracy is focused on a conception of the citizen as an anonymous, strategically acting individual pursuing private interests in a free market place. The model is defined by a manifest equality advanced by certain preordained and constitutionally entrenched ‘natural law’ rights. These rights act as a means of controlling or limiting government power by creating vast areas of the private public sphere which are prohibited from government intervention. It is essentially an instrumental conception of democracy that relates well to the reality of complex pluralistic societies by virtue of its individualist focus.

Civic republicanism, on the other hand, is a model of ethical discourse which relies on a self-organised and collectively acting citizenry freely participating in public communication oriented towards mutual understanding and the common good. It depends, rather unrealistically, on a presupposed culturally established ethical foundation to its citizenry that predetermines a consensual conception of the common good. It could thus be described as an extreme reaction to the individualistic, strategic-action-based account of democracy which we find in the liberal model. Unlike the liberal model, which draws its democratic legitimacy from the ‘natural’ right to equality and the derivative right to vote, the civic republican model relies on a citizen status which is determined according to positive or assertable rights of political participation, drawing its democratic legitimacy from the concrete ethical substance of the community and the act of public deliberation.[4]

Habermas’ alternative conception of democracy develops the discourse thesis first advanced in his seminal text The Theory of Communicative Action.[5] This model, which he terms the ‘discourse theoretical’ model, is predicated on the observation that through everyday use of language a certain degree of mutual understanding is already present in civil society. By taking this as a foundation and overlaying it with a highly procedural and institutionalised deliberation process, Habermas seeks to overcome the problem of ‘ethics overload’ and utopianism which he perceives in the civic republican model and the lack of democratic legitimacy inherent in the liberal model.

The ‘discourse theoretical’ model is constructed by taking favourable elements from both ends of the democratic spectrum represented by the liberal and civic republican models. For instance, Habermas accepts the practical necessity of compromise and bargaining in contemporary society but advocates a more legitimate basis for such activity by the institution of fair regulatory procedures, acceptable to all as a legal foundation from which to operate.[6] He also accepts the legitimising force of free and inclusive public deliberation, but he rejects the notion of a preordained (and unrealistic) ethical consensus, preferring to conduct such public discourse in an environment constituted by institutionalised legal procedures which facilitate fair play via a concrete system of rules. Thus such ethical issues come out via rather than prior to debate which better suits the condition of reasonable value pluralism in contemporary society.[7]

Can the practice match the theory?

Whilst Habermas insists on a procedural framework to avert substantive challenges to his theory, he cannot deny the fact that some underlying substantive assumptions remain. Chambers points out that even this highly procedural account of deliberative democracy cannot escape the presumption that citizens possess the will to participate in public deliberation and the necessary commitment to essential themes of equality, respect and impartiality to ensure its success.[8] She sees these requirements as social preconditions to discourse which the mere procedural guarantees of inclusion and freedom from coercion cannot fulfil. Indeed freedom from coercion itself cannot be secured without some fundamental and ongoing individual commitment to these key themes. It is inevitable that deliberation will become, as Manin suggests, adversarial and grounded in conflicting preferences.[9] In such circumstances there is the potential for the stronger and most persuasive public speakers to overwhelm opposition and convince the weaker of an individual truth or preference. This scene is played out daily in the presence of juries in common law courts with surprising turns of opinion, sometimes in the face of clear evidence to the contrary. If a competent lawyer can thus convince 12 citizens of a verdict that may go against their conscience, there is little hope for preferences of the weaker members of the demos to prevail. Such members of society will remain, as they are at present, marginalised or otherwise dependent on patronising collective representation in order to have their preferences heard in the deliberative arena.

Though group decisions are often based on conformity rather than genuine unanimity, there are issues going to the very core of human existence and personal liberty which tend to polarise a society to such an extent that no amount of deliberation can result in an acceptable outcome. The continuing abortion debate is one such issue where oratory excellence and persuasive argument have no real effect. Deliberative democracy in both its substantive and procedural manifestations does not offer a satisfactory alternative to state intervention in these circumstances where individual moral agendas have the propensity to overcome rational discourse. There is, therefore, always the potential for a loss of popular sovereignty to the state where debate on significant issues causes extreme polarities.

A further problem of Habermas’ proceduralist theory lies in the circular nature of its legitimate institution. To secure the democratic legitimacy that Habermas seeks, the procedural arrangements that facilitate discourse must themselves be justified by democratic mandate via reasoned discourse.[10] Without such originating discourse, the rules established to institute a process for deliberation may be subject to challenge — of course, the process by which this original discourse is conducted is similarly faulted. Whether this undermines the legitimacy of the model is largely dependent on the significance one attaches to procedures of the original discourse. If one were to begin from a foundation of basic mutual commitment to inclusion, impartiality, equality and firm majority then the problem of instituting such procedures for future discourse would not be insurmountable. Presumably Habermas doesn’t view the argument as having any great consequence as he simply neglects to deal with it.

The issue of efficiency of deliberative discourse is perhaps the most forceful argument against its institution. Deliberation depends on the notions of freedom, equality of input and at least the pursuit of mutual consensus. This means that every citizen wishing to be heard should have the opportunity to do so whether individually or by collective preference representation. Clearly though, the discourse must be brought to a conclusion at some stage or presumably nothing will be settled. This practical necessity of forced closure of deliberation militates against the ‘constraint free’ nature of deliberative discourse.[11] Given the time involved in the practice of deliberation it would be unrealistic to propose that every decision to be made be the subject of mass deliberation.[12] In view of this, some decision must be taken as to which issues are to be properly put to the deliberative demos for consideration. Deliberative democracy, like its antecedent direct form of democracy is thus not a feasible model for large scale democratic government.

Despite the perceived virtues of the discourse model in theoretical terms, relatively little attention is paid to how deliberative democracy might function in practice. It is clear that Habermas conceives of the deliberative process as an ongoing process of public debate rather than a discrete event for the formulation of particular social policy, yet he does not address the problem of how such a permanent process might be instituted. Rather, he assumes the effortless construction of certain conducive conditions including the unlikely ideal of a decentred society. Of course, this criticism cannot be directed at Habermas alone and indeed may not be seen as a legitimate reprobation of a pure theorist. However, theorists do have a certain responsibility to consider problems pertaining to the practical application of their theories, especially when proposing such radical alternatives to longstanding systems of government. In the present case many questions of praxis remain unanswered. For instance, how are citizens to be mobilised into effective deliberative groups ensuring true representation without some incursions on their democratic freedoms? Who decides which issues and what information should be submitted to groups for deliberation? And how are resulting decisions translated into legislative or administrative action? Habermas himself acknowledges that ‘discourses do not govern’,[13] but how are autonomous public bureaucracies to be refigured such that they can effectively administer deliberative decisions? Though Cohen attempts to address some of these issues his conclusions inevitably suffer from the same charges of utopianism and irrealism that Habermas seeks to avoid.[14]

Deliberative democracy of the kind conceived by Habermas would require immense restructuring of government at every level, including a new hierarchy of administrative power to oversee decision-making procedures, resolve procedural or membership disputes and effect communication of deliberative decisions to parliamentary representatives. More significantly, parliament itself would require substantial reorganisation to reflect the shift in the locus of policy making and problem solving.[15] This paradigm shift from absolute parliamentary sovereignty to exaggerated popular sovereignty depends on a manifest attitudinal change in both society and government. It also necessitates constitutional change both to facilitate the practice of democratic deliberation and shore up a system of checks and balances to ensure its successful operation. Without such constitutional protections deliberative democracy would be both ineffectual and at risk of losing its coveted democratic legitimacy. Its influence, as Habermas notes, would be ‘ limited to the procurement and withdrawal of legitimation’.[16] That being the case, it is little different to our present liberal/capitalist form of ‘democracy’ where the general populus is heard only via the ballot box.


Though deliberative democratic theory is not without its problems, it impresses as a commendable attempt to carve a model of community-based participatory politics from the increasingly fragmented foundation of modern society. Other models such as ‘teledemocracy’ and similar virtual participation models rely on this social fragmentation and the consumer identity of the individual in their pursuit of democratic participation.[17] Indeed, in light of more easily mobilised virtual alternatives, the effort required to establish institutionalised public discourse, the social precondition of willingness to collectively participate and the time and cost involved may reflect seriously on the future of deliberative democracy. However, despite the immensity of the task of instituting a deliberative model, one cannot ignore the communitarian benefits of its operation. As we move beyond the 20th century the democratic dilemma of representation by multiple elite minorities will almost certainly become compounded. A more discursive model of democracy that incorporates the individual as part of political society, thus revitalising civic culture, seemingly provides a rational solution to this polyarchic trend. Of course this sentimental attachment to the fundamental notion of democracy may be inhibiting our ability to conceive of more suitable forms of government. Such thoughts have prompted one commentator to note that ‘democracy has become the ideology of the age … but is it also the illusion of the epoch?’[18]


[*] Tatum Hands is a PhD candidate in the Department of Political Science at the University of Western Australia.

[1] Habermas, J., ‘Further Reflections on the Public Sphere’, in C. Calhoun (ed.), Habermas and the Public Sphere, MIT Press, Massachusetts, USA, 1992, p. 452; Cohen, J., ‘Procedure and Substance in Deliberative Democracy’ in S. Benhabib (ed.), Democracy and Difference: Contesting the Boundaries of the Political, Princeton University Press, 1996, p.95.

[2] Habermas, J., ‘Three Normative Models of Democracy’ in S. Benhabib (ed.), Democracy and Difference: Contesting the Boundaries of the Political, Princeton University Press, 1996, pp.21–31.

[3] Habermas, J., above, ref 2, p. 21.

[4] Habermas, J., ref 2, p.22.

[5] Habermas, J., Theory of Communicative Action, Beacon Press, Boston, 1987.

[6] Habermas, J., above, ref 2, p.25.

[7] Cohen, J., ‘Deliberation and Democratic Legitimacy’ in A. Hamlin and P. Pettit (eds), The Good Polity: Normative Analysis of the State, Basil Blackwell, UK, 1989, p.29.

[8] Chambers, S., ‘Discourse and Democratic Practices’ in S. White (ed), The Cambridge Companion to Habermas, Cambridge University Press, NY, 1995, p.239.

[9] Manin, B., ‘On Legitimacy and Political Deliberation’, (1987) 15(3) Political Theory 338 at 352.

[10] Chambers, above, ref 8, p.241.

[11] Chambers, above, ref 8, p.241. See also Cohen, above, ref 7, p.28.

[12] Manin, above, ref 9, p.356.

[13] Habermas, above, ref 1, p.452.

[14] Cohen, above, ref 7, p.31.

[15] Cohen, J. and Sabel, C., ‘Directly Deliberative Polyarchy’, < < 11/DDP.html> > p.18.

[16] Habermas, above, ref 1, p.452.

[17] For a comprehensive outline of the proposed teledemocracy model see: S. London, ‘Teledemocracy vs Deliberative Democracy: A Comparative Look at Two Models of Public Talk’, (1995) 3(2) Journal of Interpersonal Computing and Technology 33.

[18] Parry, G. and Moran, M., Democracy and Democratisation, Routledge, London, 1994, p.1.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback