Courts and Deliberation: The Role of the Judiciary in a Deliberative System

This paper re-evaluates the role of the judiciary in deliberative democracy, a role that remains unaddressed after deliberative democracy’s systemic turn. Scholars championing the deliberative capacities of the judiciary have not reflected on whether to envision it as an ideal deliberative forum. In view of this lack of theoretical elaboration and of the elements characterising a deliberative system, I claim that we should abandon this idealisation and re-examine the role of courts within this theory. Section I describes the role four authors have ascribed to the judiciary during deliberative democracy’s normative and empirical stages. This serves the purpose of identifying scholarly evaluations and justifications of a division of labour that places courts as ideal sites for deliberation. Section II describes the main tenets of the systemic turn, defines it, and discusses some ways in which a systemic approach may be useful to deal with three groups of criticisms directed against deliberative democracy. I do this to highlight the main features of the move from the first two stages of the literature on deliberative democracy to its present systemic phase, and to suggest that those critiques are either outdated, or that the systemic approach may help to tackle them. Section III reflects on these changes, shows some limitations of systemic approaches, and argues that the accounts described in section I are limited in their reach within the current state of the art, and should be thus reconsidered. The reconsideration shed lights on the important but rather limited place courts may have in a deliberative system. Concluding remarks are offered in section IV.