Legal Dilemmas of the Practice of Deliberation: Between Scientific Methodology and Democratic Principles

Between the philosophical ideals of democratic deliberation and their practical realization there is an inevitable tension. In my talk, I will focus on one particular source of this tension, which is the striving to make practical renditions of deliberation in a democratic society small-scale forms of democracy, governed by essentially the same legal rules as the large-scale ones. I focus on the legal aspects of selection procedures involved or potentially involved in the processes of creating deliberative small publics in various forms of social consultations. I will cover a number of points related to inclusiveness and openness of deliberation, which fall broadly into two domains of legal thinking: constitutional law and administrative law. I will in particular discuss the limitations to the openness of participation, the equality and freedom of expression, as well as certain considerations regarding data protection and the right to privacy. The goal of my talk is to illustrate the dilemmas of deliberation in small publics as a form that from the point of view of its effectiveness had best be guided by social scientific methodology. Depending on the particular method of deliberation, it may entail reducing the spontaneity of the deliberative process for reasons of representativeness, accuracy and quality of deliberation. As a result, the social-scientific approach to deliberation seems hardly reconcilable not only with the philosophical ideals of democracy, but also with a number of procedures and practices which substantially reduce the workload of the administrative authorities involved in organizing, supervising and implementing the results of the consultations required by law. My thesis is that a serious approach to deliberation realized in scientifically informed procedures with the participation of small publics requires a new approach to democracy, most of all its legal aspects, both in constitutional and administrative law. A number of insights coming from legal scholarship on other fields characterized by an ongoing interplay of scientific knowledge and legal norms, such as biotechnology, medical law, environmental law or intellectual property law could contribute to finding a workable solution to the legal dilemmas of democratic deliberation. In all this fields, the standard of protection of basic rights of individuals seems to be at stake, and the same goes for deliberative democracy: social science can offer results whose legality cannot, however, be determined by science. Hence, finding a solution to the legal dilemmas of the practice of deliberation requires a new approach not only to democracy but also to the complex nexus of law, science and individual rights.