MINI-PUBLICS AND THE LEGITIMACY DILEMMA: BALANCING THE TENSION BETWEEN DELIBERATION AND PARTICIPATION IN DELIBERATIVE THEORY

ABSTRACT

This paper explores the so-called legitimacy dilemmas as it arises in deliberative theory. The dilemma is that the higher the number of people participating in deliberation, the lower the quality of deliberation is likely to be, but the outcome might be more legitimate. The more restricted deliberation is, the higher its quality, but the outcome might lack legitimacy. Mini-publics have been proposed as one way out of this dilemma, however, there have been recent criticisms that mini-publics are not an adequate solution because they are not suitably representative of ordinary citizens; nor are they accountable to them. Drawing on analogous debates in the procedural justice literature on the difference between descriptive legitimacy and normative legitimacy, and the ways they converge, I offer an alternative way out of the legitimacy dilemma. I suggest that the perception by ordinary voters that mini-publics are legitimate is both a necessary and sufficient condition for normative legitimacy.

BIO

Sarah Sorial is a Professor of Law at the Macquarie Law School. Her research specialisation is primarily at the intersection of political philosophy and law. She is particularly interested in how philosophical concepts can be utilised to address various and persistent legal dilemmas, including dilemmas about the limits of speech, the importance of democratic deliberation, and the place of rights in liberal democracies. She has published widely on topics to do with free speech, deliberation, responsibility and punishment, in a range of journals including Law and Philosophy, Journal of Applied Philosophy, Criminal Law and Philosophy, Journal of Social Philosophy, Metaphilosophy, Australian Journal of Legal Philosophy, Journal of Medicine and Philosophy.