Legitimacy in Deliberative Democracy.pdf

7/23/2019 Legitimacy in Deliberative Democracy.pdf

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Legitimacy Problems in

Deliberative Democracy

John Parkinson

Australian National University

The classic accounts of deliberative democracy are also accounts of legitimacy: that outcomes are

legitimate to the extent they receive reflective assent through participation in authentic delibera-

tion by all those subject to the decision in question (Dryzek, 2001, p. 651). And yet, in complex

societies deliberative participation by allthose affected by collective decision-making is extremely

implausible. There are also legitimacy problems with the demanding procedural requirements

which deliberation imposes on participants. Given these problems, deliberative democracy seems

unable to deliver legitimate outcomes as it defines them.

Focusing on the problem of scale, this paper offers a tentative solution using representation, a

concept which is itself problematic. Along the way, the paper highlights issues with the legitimate

role of experts, the different legitimate uses of statistical and electoral representation, and differ-

ences between the research and democratic imperatives driving current attempts to put delibera-

tive principles into practice, illustrated with a case from a Leicester health policy debate. While

much work remains to be done on exactly how the principles arrived at might be transformed

into working institutions, they do offer a means of criticising existing deliberative practice.

Since democracy theory took a deliberative turn just over a decade ago (Dryzek

2000, p. v), theorists and practitioners from starkly contrasting traditions have

applied the deliberative label to everything from radical democracy in the

public sphere, to consultative forums engaged with the state, to representative

assemblies, to the determination of public reason by small groups of jurists,

even to the internal processes of making others present in an individuals own

deliberations.1

And yet, despite the bewildering variety of theoretical starting points, deliberative

democracy does have a core set of propositions that distinguish it from its rivals.

The essentials are its insistence on some form of inter-personal reasoning as the

guiding political procedure, rather than bargaining between competing interests;

the idea that the essential political act the giving, weighing, acceptance or rejec-

tion of reasons is a public act, as opposed to the purely private act of voting

(Elster, 1997); and the point that it is democratic deliberation, not deliberation

without modifier, despite some undemocratic usages of the term. Democratic

deliberation should somehow embody the essential democratic principles of

responsiveness to public wishes and the political equality of every member of that

public (Beetham, 1994, pp. 2631; May, 1978).

In order to secure genuine deliberation such that no force except that of the betterargument is exercised (Habermas, 1975, p. 108), participants must meet a set of

procedural conditions which minimally include communicative competence reci

POLITICAL STUDIES: 2003 VOL 51, 180196


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LEGITIMACY PROBLEMS IN DELIBERATIVE DEMOCRACY 181

procity, and inclusiveness (Cohen, 1989; Gutmann and Thompson, 1996), and a

willingness to be persuaded, to have ones pre-formed preferences transformed in

the face of a better argument, and thus to set aside strategic concerns and behav-

iour in the pursuit of those preferences (Dryzek, 2000, p. 2). These procedural fea-

tures make deliberation much more than mere talk it is a very particular kind of

public talk. This point is often missed by writers who label as deliberative practices

which exhibit none of the procedural conditions of genuine deliberation (for

example, Button and Mattson, 1999). Often this is a function of scale: beyond a

very small number of participants (certainly fewer than 20) deliberation breaks

down, with speech-making replacing conversation and rhetorical appeals replac-

ing reasoned arguments (Goodin, 2000, p. 83n) although I will return to discuss

rhetoric later. Thus there is very little in mass public communication, including a

great deal of media debate, large-scale referendum processes, or even public meet-

ings, which merits the label deliberative (Parkinson, 2001).

There is a further feature of deliberative democracy which is common to those for-

mulations which take the democracy modifier seriously. Deliberative democracy

is also an account of legitimacy, that outcomes are legitimate to the extent they

receive reflective assent through participation in authentic deliberation by all those

subject to the decision in question (Dryzek, 2001, p. 651).2 But if we accept that

classic formulation, then there is a contradiction at the heart of deliberative de-

mocracy. Because the deliberation of all those subject to a decision or regime is

impossible (Goodin, 2000, p. 82), deliberative democratic practices cannot deliver

legitimate outcomes as the theory defines them.

This is deliberative democracys scale problem deliberative decisions appear to beillegitimate for those left outside the forum, while bringing more than a few people

in would quickly turn the event into speech-making, not deliberation. It also has

a legitimacy problem to do with motivations. In order for genuine deliberation to

take place, those participants who do make it into the forum must meet the

minimal procedural conditions set out above, including the demands of reciproc-

ity and willingness to set aside strategic concerns. And yet, peoples pre-formed

preferences, interests and goals are an essential part of what motivates them to

enter political arenas in the first place (Rawls, 1996, p. 82). If deliberative democ-

racy rules those interests out of court, it may seem to people that deliberative

democracy is procedurally unfair, and thus illegitimate. To take a concrete example,in order to advance her beliefs, why would a religious fundamentalist enter the

deliberative spirit of toleration of plural truths at all, when to enter that spirit

means she must abandon her belief in a unitary, revealed truth (Shapiro, 1999,

pp. 301)?

In this article I primarily explore the scale problem. After clarifying the concept of

legitimacy, I survey and find wanting the very few solutions offered so far. I then

focus on the legitimacy of representation as one step towards overcoming the scale

problem. The second step is to take a broader view of the deliberative forum,

drawing on the concept of the deliberative system (Mansbridge, 1999) to imaginethe contribution that different moments in that system might make to overall

legitimacy which I illustrate with a case from a health services debate in the


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182 JOHN PARKINSON

The Concept of Legitimacy

It is remarkable that while the term legitimacy crops up often in the democratic

literature, it is rarely defined except by implication. In this section, I outline a con-

ceptual map of legitimacy offered by Beetham (1991) to highlight those aspects

which are not captured by the deliberative conception, aspects which offer us one

step out of deliberations theoretical contradictions. While there is a great deal to

Beethams scheme, for the purposes of this paper I want to draw out a few essen-

tial features.

At its most abstract level, legitimacy is the moralization of authority (Crook, 1987,

p. 553), the moral grounds for obedience to power, as opposed to grounds of self-

interest or coercion (Poggi, 1978, pp. 1012). It is only when decisions or regimes

are legitimate in this way that those who refuse to accept them should be coerced

into following them, on the grounds that their refusal is illegitimate. As well as

value that springs from our moral convictions, legitimacy also has instrumentalvalue: legitimacy makes political processes more efficient by reducing the costs of

enforcing compliance. Regimes, institutions or decisions with low legitimacy face

higher costs associated with uncooperative, strategic behaviour.

Beetham divides legitimacy into three separate conditions: legality, legitimacy, and

legitimation. I find the repetition of the legitimacy label unhelpful and so refer to

them as legality, justifiability and consent. Legality is the rules of the game, and

is fairly uncontroversially subordinate to the other two, because the rules them-

selves may be just or unjust according to some external standard. Legality includes

not just the law of the land, but other rules as well, be they non-legislative regu-lations or social conventions. The rules of the game, whether they are individual

decisions or the decision-making procedures themselves, need to have a certain

amount of stability because people need to be able to learn the rules and use them

if they are to be equally effective members of the polity; if the rules change all the

time, only those who can bear the cost of re-learning the rules will be enfranchised.

Thus legitimacy includes what Flathman (1972) calls a stability requirement.

Legitimacy involves a balance between the deliberative ideal in which the rules

themselves must be redeemable in discourse and the need to ensure that the rules

are not up for grabs every single time.

The next condition is justifiability, which Beetham divides into source norms and

content norms. The source norms of justifiability concern the rightful source of

authoritative decisions, which Beetham further divides into sources that are exter-

nal and internal to society. External sources include appeals to divine command,

natural law, even scientific doctrine; internal sources are society-as-it-was tradi-

tion and society-as-it-is the people for whom the decisions are being taken.

Given the liberal concern with the moral equality of persons, the most legitimate

source of authoritative decisions is considered to be all those people affected, rather

than tradition or external sources.3

What Beetham calls content norms are, in part, about the legitimacy of the rulesfor dividing deciders and followers; thus, Beetham takes the fact of scale into

account by including division rules in his account of legitimacy While this con

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LEGITIMACY PROBLEMS IN DELIBERATIVE DEMOCRACY 183

decision-making moments that is, a political elite there is nothing in this con-

struction which suggests that deciders and followers always have to be the same

from one decision moment to the next: one days deciders could be the next days

followers. Rather, the important point is that these content norms boil down to

legitimating divisions of responsibility on the grounds that those who decide rep-

resent those who follow, that they express what Schaar (1984) calls mutuality,

identification and co-performance with those who are led.

The claim of common interest itself requires substantiation by leaders against two

benchmarks: the degree to which policy outcomes match the substantive goals of

the society in question; and the degree to which they achieve normatively justifi-

able or desirable ends. Thus, legitimacy includes a concern about the ends of politi-

cal life, not just its procedures Estlund (1997) provides a strong defence of a

similar point. Beetham only goes so far as to give labels to these ends: freedom,

equality, justice, as well as the mere (but essential) meeting of basic physical and

emotional needs of life. He argues that in a fully legitimate polity the meanings ofthose terms will themselves be determined by the people in whose names they are

invoked, although philosophy and other forms of expertise have a role in inform-

ing the decision-making process, and criticising and challenging the results.

Thus, for Beetham the knowers (philosophers, technical experts or bureaucrats)

are subordinate to the people affected. In liberal democracies we tend to demand

that those most able to serve the common good get leadership positions, and judge

that ability partly in terms of expertise and experience; that is, we apply a meri-

tocratic principle (Beetham, 1991, pp. 801). However, in liberal democracies we

also tend to differentiate between the legitimate decision-making power of repre-sentatives and the more limited advisory power of experts on the basis that rep-

resentatives derive their authority from the internal source of the people, while

experts derive theirs from an external source which we regard as less legitimate,

given the foundational respect for the equality of persons referred to above. In

terms of deliberative ethics, this means that experts opinions have weight, but

only in as much as they are offered in a process of public deliberation, and are

found persuasive by those to whom they are offered, in a context in which the

substantive goals of society are plural and essentially contested (see Dryzek, 1990,

pp. 12632, for a similar discussion). The legitimacy of expertise is derived from

the discursively determined ends of the people at large, and is not internal to ex-pertise itself.

This leads us to the final element in Beethams scheme of legitimacy, the proce-

dures by which the people consent to decisions or regimes. While traditionally

political scientists have concentrated on acts of consent like voting, party mem-

bership, interactions with elected representatives and interest group participation,

now one would include a much wider range of participation in civil society, either

directly oppositional or more collaborative (Jones and OToole, 2001). It is these

procedures for the creation of public agreements that deliberative democracy is

particularly concerned with.

Because of the three-fold nature of legitimacy, it is important to emphasise that

there is no magic line to draw between decisions or regimes that are clearly legit

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