Deliberative Democracy’s Attempt to Turn Politics Into Law

Abstract

The theory of deliberative democracy sketches a model of politics based on models of law and legal decision-making. It aspires to turn political decisions into a form of legal decision-making. It is easy to see how this ambition responds to the widespread belief that partial interests dictate public outcomes. Among other things, it implies that the kind of electoral calculations sketched out above would be entirely out of bounds, and that a sound public decision would be one based on science and ethics-science to predict the consequences of possible decisions, and ethics to evaluate the relative merits of those consequences. This legalistic vision of politics leaves much out of account, portrays an unrealistic and unattractive picture of politics, and is ultimately self-defeating, or so this paper will argue. Part II elaborates on deliberative democracy's attempt to displace politics with law. Part III exposes some of the difficulties with that attempt. Part IV returns to the impetus behind the attempt - deliberative democracy's belief that comprehensive views and partial interests should play no role in politics - and questions that belief. The role of partial interests in influencing particular political outcomes is and needs to remain endogenous to political practice itself. Politics should thus bear less resemblance to law than the deliberativists claim, and partial interests should rightly play a greater role in political decisions than the deliberativists would prefer.