The Lawyer's Role(s) in Deliberative Democracy

Abstract

This article explores the possible marriage of recent political theory on deliberative democracy with conflict resolution theory and practice. It reviews the theoretical framework for encouraging more active public participation in both governmental and political decision making (Guttman & Thompson, Bohman, Habermas, Hampshire) and asks how processes can be structured to maximize political participation through several different modes of discourse: reasoned argument/principle; trading of preferences/bargaining and appeals to passion, emotion, and deeply held beliefs. The article suggests a variety of different modes of conflict resolution sorted by the need for constitutive, permanent or ad hoc decision-making, plenary vs. committee or task oriented organizational principles and whether deliberations are to be private and confidential or transparent and public, with predictions about how different outcomes will be produced by different process structures. In addition, the article suggests that lawyers might be particularly well suited (with additional disciplinary training) to performing Tocquevillian facilitative roles between and among deliberators in processes that seek to increase participative democracy and improve the quality of decision making.