Deliberative Governance & Law
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In conjunction with the UBC Allard School of Law Faculty Colloquium Series: Deliberative Democracy & Public Authority
Theories of deliberative democracy emphasize deliberative or reasoned decision-making as a necessary and central part of any democracy. As deliberative democracy has come to dominate political theory, legal scholars have begun to elaborate how deliberative democratic ideals and legal norms and principles are mutually informing. This proposed Faculty Colloquium session, entitled “Deliberative Democracy & Public Authority,” combines four papers that investigate how the law-deliberative democracy interface constitutes public authority in constitutional, municipal, environmental and planning law.
The first paper examines federalism-related rationales, grounded in theories of deliberative democracy, for providing cities with a protected status.
The second paper analyses the foundational cases in public law, beginning in the Victorian era until now, to illuminate the concept of democratic authority with an eye to exploring what implications a more modern approach would have for cities and municipalities in Canadian public law.
The third paper elaborates the connections between deliberative democratic theory and the common law doctrines of fairness and the duty to consult in order to draw out the specific substantive content of the seemingly “procedural” nature of environmental assessment laws in Canada.
The fourth paper argues that the decision by Waterfront Toronto, a tri-governmental corporation, to create a smart city along Toronto’s long-neglected waterfront was beyond the public body’s legal powers.
Each panelist took 7-10 minutes to set out the key themes of their paper. The remaining time (30-45 minutes) was spent responding to questions.
Speakers: Alexandra Flynn, Hoi Kong, Mary Liston & Jocelyn Stacey
ALEXANDRA FLYNN is an Assistant Professor specializing in urban law and governance. Her current project explores Indigenous-municipal legal relationships.
HOI KONG is the Rt. Hon. Beverley McLachlin, P.C., UBC Professor in Constitutional Law. He researches broadly in the fields of constitutional and public law and co-directs the Deliberative Governance and Law Project
MARY LISTON is an Assistant Professor who specializes in administrative law, comparative public law, legal theory, and law and literature. She has written about participatory democracy in Canadian public law and a current research project examines the legal construction and treatment of democratic authorities in Canadian administrative law.
JOCELYN STACY is an Assistant Professor whose work focuses on the intersections between public law and environmental issues. She writes about the rule of law and how its requirements can respond to our ever-present vulnerability to environmental disaster.
Please see the event poster here.
DGAL co-director Ron Levy led a half-day workshop on research in the areas of direct and deliberative democracy, as well as public law. The participants were Rod Dacombe (King's College London), Udit Bhatia (Oxford - Lady Margaret Hall and Jesus Colleges), Jeff Kennedy (Queen Mary University London), James Organ (Liverpool), Leah Trueblood (Oxford - Worcester College), Matt Qvortrup (Coventry) and Ronald van Crombrugge (KU Leuven). Many thanks to Dr Trueblood and Worcester Colelge for hosting this intensive, highly successful event.
Mark Warren, Mary Liston, Jocelyn Stacey, Alex Flynn and Spencer MacKay (all of UBC), joined Ian O'Flynn (Newcastle, UK), Katy Collin (Georgetown) and DGAL directors Ron Levy (ANU) and Hoi Kong (UBC) for a day-long, intensive workshop on emerging research at the intersection of deliberative democratic theory and law. A number of speakers focused on direct-deliberative democracy, including O'Flynn and Levy, who presented on their developing work (pursued in collaboration with Kong) on 'deliberative peace referendums'.
With Prof Baogang He and Dr Michael Breen
In recent years, several countries in Asia have sought to respond to ethnic conflict and uneven development by introducing federalism. Outcomes have been mixed. In Nepal’s case, participatory constitution-making created a groundswell of opinion that informed the new federal structure, while in the Philippines, an elite-driven constitution-making process seems destined for failure. Myanmar is at a critical stage in its democratic transition as it tackles the form of federalism most suited to its conditions and aspirations. Yet, much like the Philippines, its process is top-down and has failed to capture the public’s imagination. To demonstrate the value and viability of a deliberative constitution-making process, the presenters organised four deliberative forums based on the deliberative polling methodology. Two deliberations involved mostly members of political parties, ethnic armed groups and civil society organisations, while the other two involved mostly laypersons selected by civil society organisation. In each case a mixture of different ethnic groups was involved. Overall, more than 130 participants returned surveys both before and after the deliberation. This presentation discusses some of the key findings, and challenges arising from those deliberative forums, and how they can contribute to federal constitution-making in Myanmar, and elsewhere.
@DelibGovLaw
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In the Media
Scott Morrison showed a new contempt for democracy yesterday
Ron Levy interviewed by The New Daily
First Nations Voice to Parliament
Ron Levy interviewed by ABC Radio National
Our research shows public support for a First Nations Voice is not only high, it’s deeply entrenched
Ron Levy writes in The Conversation
Solid legal basis for NSW vaccine mandates to enter businesses, expert says
Ron Levy quoted in The Guardian
Call for any vaccine passport to balance human rights
Ron Levy quoted in Canberra Weekly
Questions linger over business and vaccine passports as Australia charts path out of Covid
Ron Levy quoted in Canberra Times
Mandatory jabs and bans on the unvaccinated? Try getting that past the High Court
Ron Levy quoted in The Spectator
Upcoming events
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Past events
Against epistocracy: Reconsidering the demographic objection
- Udit Bhatia, University of Oxford
Why should we prefer democracy to an epistocracy of competent persons? In his response to this question, David Estlund appeals to the ‘demographic objection’.
Wellbeing in the Law Week - Mon 8 to Fri 12 May
The ANU College of Law is committed to health and wellbeing in the law, for all our students and academic and professional staff. This is the inaugural Wellbeing in the Law Week, presented by the ANU College of Law Wellbeing Initiative and the ANU Law Students' Society.
The Deliberative Governance and Law Project bridges the gap between the theory and real-world practice of democratic deliberation. The project connects a network of scholars, lawyers and members of governments working in the area, enabling them to share results and collaborate to provide practical reform proposals to improve deliberation in democracies around the world. Uniquely, we focus on the roles of law and legal practice in enabling, inhibiting or shaping democratic deliberation.
Deliberative democracy
The discipline of deliberative democracy emerges from a concern for resolving tensions between the ideals of democracy and the growing number of issues confronting public governance. In an era of increasing political and legal complexity, deliberative democracy focuses on finding solutions to how citizens can remain meaningfully engaged and involved in democratic decision-making.
With its ambitious aims and an impressive emerging track-record of real-world application, deliberative democracy is arguably the most important movement in political theory and institutional design of the past two decades. Yet most research in the area lacks sustained analyses of laws as critical, and qualitatively distinct, features of the deliberative democratic institutional landscape.
The use of statute and judge-made law to regulate political process has burgeoned in many democracies, reflecting attempts to grapple with corruption, electoral inequality and concentrations of official power. These fields are now well-established, yet they have often developed around a limited class of theories about ‘politics’ that omits discussion of deliberative democracy.
The project
The Deliberative Governance and Law Project aims to address this gap through the dissemination of research, engagement with political decision-makers, and popular discourse. A principal aim is to help lead an international conversation about how law – and law reform – can affect deliberation.
The project sits within the Centre for International and Public Law, at the ANU College of Law and the McGill University, Faculty of Law in Montreal, Canada.
The Co-Directors are Dr Ron Levy of The Australian National University, ANU College of LAW, Canberra, Australia, and Dr Hoi Kong, of the McGill University Faculty of Law, Montreal, Canada. The Associate Director is Dr Dominique Dalla-Pozza, also of the ANU College of Law.
Members
Affiliates
The Deliberative Governance and Law Project has three current sub-projects, these are outlined below.
BOOKS & EDITED COLLECTIONS
Ron Levy, Hoi Kong, Graeme Orr and Jeff King (eds), The Cambridge Handbook of Deliberative Constitutionalism (Cambridge University Press, 2018)
Ron Levy and Graeme Orr, The Law of Deliberative Democracy (Routledge, 2016)
Ron Levy and Graeme Orr (eds), Symposium: The Law of Deliberative Democracy (2013) Election Law Journal 12:4
OTHER PUBLICATIONS
Ron Levy, '"Shotgun Referendums": Popular Deliberation and Conflict Settlement in Conflict Societies' (2018) 41(3) Melbourne University Law Review 1237
Ron Levy, Amelia Simpson, Ian O’Flynn and Georgina Flaherty, 'Designing Referendums for Peacemaking: The Case of Bougainville', (2018) 33(2) Australasian Parliamentary Review (forthcoming)
Hoi Kong and Ron Levy, 'Deliberative Constitutionalism', in André Bächtiger, John Dryzek, Jane Mansbridge and Mark Warren (eds), The Oxford Handbook of Deliberative Democracy (Oxford University Press, forthcoming)
Ron Levy, 'The Deliberative Case for Constitutional Referenda', (2017) 16(2) Election Law Journal 213
Ron Levy, Neomal Silva and Benjamin Saunders, 'Deliberation at the Founding: Deliberative Democracy as an Original Constitutional Value', (2017) 28(1) Public Law Review 41
Ron Levy, 'The "Elite Problem" in Deliberative Constitutionalism', in Ron Levy, Hoi Kong, Graeme Orr and Jeff King (eds), The Cambridge Handbook of Deliberative Constitutionalism (Cambridge University Press, 2018)
Hoi Kong, “Democratic Deliberation in the Wild: The McGill Online Design Studio and the Regulation Room Project” (2014) 41 Fordham Urban Law Journal 1527-1580 (with Cynthia Farina et. al.).
Hoi Kong, “Republicanism and the Division of Powers in Canada” (2014) 64:3 University of Toronto Law Journal 359-401.
Ron Levy, 'Regulating Opinion Polling: A Deliberative Democratic Perspective', (2016) 39(1) UNSW Law Journal 318-340 (with G. Orr)
Ron Levy, 'La démocratie délibérative et de la loi électorale: le conflit et la congruence', (2014) 8(2) Journal of Parliamentary and Political Law (Amanda Mihoub Wright, James O McCarthy and Charlotte-Anne Malischewski transl; based on 'The Law of Deliberative Democracy: Seeding the Field')
Hoi Kong, “The Citizen Submissions Process in the North American Agreement on Environmental Cooperation: Theory and Practice in Deliberative Democratic Institutional Design for Transnational Institutions” in Kong & Wroth (eds.) NAFTA and Sustainable Development: The History, Experience and Prospects For Reform (Cambridge University Press, 2015) 351-372.
Hoi Kong, “Election Law and Deliberative Democracy: Against Deflation” (2015) 9 Journal of Parliamentary and Political Law 35-58.
Ron Levy, 'Deliberative Voting: Realising Constitutional Referendum Democracy', (2013) Public Law 555-574
Ron Levy, 'The Law of Deliberative Democracy: Seeding the Field', (2013) 12(4) Election Law Journal 355-371
REPORT
Ron Levy, 'Independent Report on ACT Citizens' Jury Pilot', 2 February, 2018 (requested by the Law Society of the Australian Capital Terrritory)
Prospective graduate scholars are encouraged to contact us for inquiries about graduate study, at ANU or McGill, in our subject areas:
- deliberative democracy
- governance
- legal regulation of democracy
- judicial, parliamentary and popular deliberation
- referendums and plebiscites
- urban planning
- environmental regulation
Related organisations
- Centre for Deliberative Democracy and Global Governance (D2G2), in the Institute for Governance and Policy Analysis (IGPA) at the University of Canberra (UC)
- D2G2 weblog
- Center for Deliberative Democracy at Stanford University
- Democracy in Practice
- Cultural Cognition Project
- Citizens' Initiative Review Research Project
- Jury and Democracy Project
- Public Reason
Activities archive
In conjunction with the UBC Allard School of Law Faculty Colloquium Series: Deliberative Democracy & Public Authority
Theories of deliberative democracy emphasize deliberative or reasoned decision-making as a necessary and central part of any democracy. As deliberative democracy has come to dominate political theory, legal scholars have begun to elaborate how deliberative democratic ideals and legal norms and principles are mutually informing. This proposed Faculty Colloquium session, entitled “Deliberative Democracy & Public Authority,” combines four papers that investigate how the law-deliberative democracy interface constitutes public authority in constitutional, municipal, environmental and planning law.
The first paper examines federalism-related rationales, grounded in theories of deliberative democracy, for providing cities with a protected status.
The second paper analyses the foundational cases in public law, beginning in the Victorian era until now, to illuminate the concept of democratic authority with an eye to exploring what implications a more modern approach would have for cities and municipalities in Canadian public law.
The third paper elaborates the connections between deliberative democratic theory and the common law doctrines of fairness and the duty to consult in order to draw out the specific substantive content of the seemingly “procedural” nature of environmental assessment laws in Canada.
The fourth paper argues that the decision by Waterfront Toronto, a tri-governmental corporation, to create a smart city along Toronto’s long-neglected waterfront was beyond the public body’s legal powers.
Each panelist took 7-10 minutes to set out the key themes of their paper. The remaining time (30-45 minutes) was spent responding to questions.
Speakers: Alexandra Flynn, Hoi Kong, Mary Liston & Jocelyn Stacey
ALEXANDRA FLYNN is an Assistant Professor specializing in urban law and governance. Her current project explores Indigenous-municipal legal relationships.
HOI KONG is the Rt. Hon. Beverley McLachlin, P.C., UBC Professor in Constitutional Law. He researches broadly in the fields of constitutional and public law and co-directs the Deliberative Governance and Law Project
MARY LISTON is an Assistant Professor who specializes in administrative law, comparative public law, legal theory, and law and literature. She has written about participatory democracy in Canadian public law and a current research project examines the legal construction and treatment of democratic authorities in Canadian administrative law.
JOCELYN STACY is an Assistant Professor whose work focuses on the intersections between public law and environmental issues. She writes about the rule of law and how its requirements can respond to our ever-present vulnerability to environmental disaster.
Please see the event poster here.
DGAL co-director Ron Levy led a half-day workshop on research in the areas of direct and deliberative democracy, as well as public law. The participants were Rod Dacombe (King's College London), Udit Bhatia (Oxford - Lady Margaret Hall and Jesus Colleges), Jeff Kennedy (Queen Mary University London), James Organ (Liverpool), Leah Trueblood (Oxford - Worcester College), Matt Qvortrup (Coventry) and Ronald van Crombrugge (KU Leuven). Many thanks to Dr Trueblood and Worcester Colelge for hosting this intensive, highly successful event.
Mark Warren, Mary Liston, Jocelyn Stacey, Alex Flynn and Spencer MacKay (all of UBC), joined Ian O'Flynn (Newcastle, UK), Katy Collin (Georgetown) and DGAL directors Ron Levy (ANU) and Hoi Kong (UBC) for a day-long, intensive workshop on emerging research at the intersection of deliberative democratic theory and law. A number of speakers focused on direct-deliberative democracy, including O'Flynn and Levy, who presented on their developing work (pursued in collaboration with Kong) on 'deliberative peace referendums'.
With Prof Baogang He and Dr Michael Breen
In recent years, several countries in Asia have sought to respond to ethnic conflict and uneven development by introducing federalism. Outcomes have been mixed. In Nepal’s case, participatory constitution-making created a groundswell of opinion that informed the new federal structure, while in the Philippines, an elite-driven constitution-making process seems destined for failure. Myanmar is at a critical stage in its democratic transition as it tackles the form of federalism most suited to its conditions and aspirations. Yet, much like the Philippines, its process is top-down and has failed to capture the public’s imagination. To demonstrate the value and viability of a deliberative constitution-making process, the presenters organised four deliberative forums based on the deliberative polling methodology. Two deliberations involved mostly members of political parties, ethnic armed groups and civil society organisations, while the other two involved mostly laypersons selected by civil society organisation. In each case a mixture of different ethnic groups was involved. Overall, more than 130 participants returned surveys both before and after the deliberation. This presentation discusses some of the key findings, and challenges arising from those deliberative forums, and how they can contribute to federal constitution-making in Myanmar, and elsewhere.
This workshop, held simultaneously at McGill University's Faculty of Law and the ANU Law School, was the latest in a series of such events featuring graduate students' and other academics' works-in-progress. Presenttions covered work by Jeffrey Kennedy, Sarah Berger Richardson and Ron Levy.
EXECUTIVE SUMMARY
- This Report presents an independent review of the ACT’s pilot citizens’ jury on compulsory third party insurance reform. Key findings of the Report are:
- The planned series of citizens’ juries in the ACT is worthwhile and should be continued.
- A wealth of international experience shows that citizens’ juries are frequently more broadly-trusted and effective than relatively partisan and gridlocked decision-making in legislatures.
- This Report recommends changes in the practice of ACT citizens’ juries in order to improve their design and performance:
- The close and ongoing involvement of expert decision-makers in the pilot citizens’ jury’s deliberation stages risked undermining the autonomy of jurors.
- Most claims of bias in the process cannot be established or are subject to reasonable disagreement. However, bias was evident in the official rhetoric surrounding the proceedings.
- The ACT Government and democracyCo raised barriers to external scrutiny of, and democratic input into, the citizens’ jury process.
- Insufficient evidence exists to verify other alleged faults in the process, including: that some official information released to the public was incomplete or misleading; that some information presented tojurors was incomplete or misleading; that the citizens’ jury was insufficiently demographically representative of the wider community; and that the process was disorganised and chaotic, resulting in prejudice to some stakeholders.
This workshop, held simultaneously at McGill University's Faculty of Law and the ANU Law School, was the latest in a series of such events featuring graduate students' works-in-progress. DGAL co-directors Hoi Kong (McGill) and Ron Levy (ANU) also presented their work-in-progress on 'Shotgun Referendums'.
11am–1pm Thursday 30 November 2017
Law School
PRESENTED BY SWISSINFO #DEARDEMOCRACY AND THE ANU/MCGILL PROJECT ON DELIBERATIVE GOVERNANCE AND LAW
A roundtable discussion comparing the recent marriage plebiscite experience in Australia with recent events in Europe.
Bruno Kaufmann, Initiative and Referendum Institute Europe
Dr Ron Levy, ANU College of Law
Dr Ryan Goss, ANU College of Law
Kevin Boreham, ANU College of Law
Guest speaker Bruno Kaufmann is Director of the Initiative and Referendum Institute Europe, co-president of the Global Forum on Modern Direct Democracy. As a Board member of the Swiss Democracy Foundation and an Expert of Modern Direct Democracy, he will visit Australia on his world tour on modern direct democracy. Mr Kaufmann was involved in the publication of the IDEA Global Passport to Modern Direct Democracy, a compact book describing the tools of modern direct democracy, providing key definitions and giving a global overview of available direct democracy mechanisms.
Upcoming seminar: Udit Bhatia, Lecturer in Political Theory, Lady Margaret Hall, University of Oxford, presents a seminar for the Deliberative Governance and Law Program and the wider ANU community, at the ANU College of Law (room tba) at 3pm on 26 Sept, 2017. Chair: Dr Ron Levy.
Against Epistocracy: Reconsidering the Demographic Objection
Why should we prefer democracy to an epistocracy of competent persons? In his response to this question, David Estlund appeals to the ‘demographic objection’. He argues that ‘The educated portion of the populace may disproportionately have epistemically damaging features that countervail the admitted epistemic benefits of education’. The force of the argument lies in its attempt to undermine the epistocratic argument on its own terms. Epistocracy privileges the epistemic quality of decisions in the design of political institutions. Estlund argues that it is precisely this quality that is likely to suffer as a result of the unequal distribution of education and its resultant exclusion of some groups in an epistocracy. This paper attempts to build upon and strengthen Estlund’s argument in three ways. Firstly, it emphasises specific epistemic harms that stem from the exclusion of already disadvantaged demographic groups. Secondly, it attempts to sever the objection from the assumption of the ‘best judge’ principle. Thirdly, it turns the focus away from purely consequentialist harms of epistocracy’s epistemic weaknesses. Instead, it shows how such epistemic weaknesses result, simultaneously, in the violation of a side constraint for epistocracy, the equitable distribution requirement.
This intensive workshop, held at McGill University's Faculty of Law, was the first in a series of such events featuring graduate students' works-in-progress. Two graduate student speakers (Jeffrey Kennedy and Sarah Berger Richardson, both of McGill) presented his own work for feedback from DGAL co-directors Hoi Kong (McGill) and Ron Levy (ANU). Dr Levy also presented work for feedback from graduate students and others in attendance.
Meeting of Project members and discussion of works-in-progress, featuring Daniel Weinstock (McGill), Mark Walters (McGill), Michael Pal (University of Ottawa) and Ron Levy (ANU), and hosted by Hoi Kong (McGill)
Ron Levy has a new book published by Routledge - The Law of Deliberative Democracy.
Essential reading for those interested in either law or politics, the book presents a challenging critique of laws governing electoral politics in the English-speaking world. The book contends that the conflict between law and public deliberation is not inevitable: it results from judicial and legislative choices. An extended, original analysis demonstrates how lawyers and deliberativists can engage with each other to bridge their two solitudes.
Talk by Dr Stephen Elstub, Newcastle University (UK)
A comparative analysis of the deliberative quality of televised election debates in Europe.
See our event page for more information.
On 7-9 April, members of our project attend the Deliberative Constitutionalism workshop, held at McGill University in Canada.
On 9-10 November 2015, members of our project attended the 'Deliberative Constitutionalism' workshop held at University College London.
