Overview of the law of deliberative democracy

Abstract

Laws have colonised many corners of democratic practice. After several decades of the juridification of politics, the so-called ‘laws of politics’ now are often integral to (even constitutive of) the sites of political deliberation. Yet much deliberative theory neglects to address law as a set of norms whose influences on political practice are both substantial and varied. Equally, legal scholars have been slow to join the deliberative turn in research. Few scholars on either side of the disciplinary divide have sought comprehensively to bridge studies of the law of politics with deliberative theory. My current research (with co-author and co-CI Prof Graeme Orr) aims to do exactly this.

In the seminar I will update Centre members on the progress of our book and ARC project entitled ‘The Law of Deliberative Democracy’. Making use of the opportunity of an audience familiar with deliberative theory, I will focus not on narrow examples from the book, but on overall arguments. A key contention is that, though the laws of politics may often frustrate the best laid plans of deliberative democrats, this outcome is not inevitable. In particular, it is not the form of common-law decision-making that determines law’s fit to deliberative democracy, but only the particular substantive legal choices that judges make. I will touch on three areas of doctrine in the law of politics (relating to political liberty, equality, and anti-corruption) where such judicial choices have either thwarted or helped to realise deliberative democratic ideals.

About the speaker

Dr Ron Levy researches and writes on public law and political theory, especially constitutional law, the law of politics, and deliberative democracy. He is the winner of several research awards including grants from the Canadian Social Sciences and Humanities Research Council and the Australian Research Council. Ron is currently a chief investigator on two ARC Discovery Projects:

'The Law of Deliberative Democracy: Theory and Reform' (DP130100706, 2012-2015, with Graeme Orr) bridging research on election law with deliberative democratic theory and 'Confronting the Devolution Paradox' (DP140102682, 2013-2016, with AJ Brown, Robyn Hollander, Paul Kildea, Rodney Smith, Richard Cole and John Kincaid) on federalism and political culture.

Ron has also been guest co-editor of the Election Law Journal's 2013 symposium issue on 'the law of deliberative democracy' and is co-writing a monograph: The Law of Deliberative Democracy (Routledge, under contract, with Graeme Orr). Ron's other projects include studies of constitutional reform, including prospects for reform via deliberative democracy. He has been a Visitor at Yale Law School, Cambridge University and King's College London.

At the ANU College of Law, he convenes Advanced Constitutional Law and Torts, and gives seminars in Commonwealth Constitutional Law.