Is Deliberative Theorists' Dream Legal Scholars’ Nightmare? – Reconciling Public Online Deliberation and Online Consultation Forums with Existing Legal Regulations in Germany

Deliberative theorists put inclusive “taking and giving of reasons” at the very heart of their conception of democratic legitimacy. This conception of democracy places high value on non-hierarchical communicative exchanges in public opinion- and will-formation and collectively binding decision-making. Thereby, deliberative democrats formulate a highly demanding normative ideal of democratic legitimacy. Digitalization processes deeply effect contemporary societies and politics: Digital fora are often understood as threat to democracy as they provide fertile ground for populism, fake news and may increase inner-societal divides. However, online spaces also provide significant opportunities to approximate the deliberative ideal that often appeared unattainable in pre-digitalized societies: The internet provides access to almost unlimited information and enables society-wide communicative exchanges that allow for participation independently of, e.g., physical or geographical constraints. Online citizen consultations or mini-publics may reduce the time, effort and cost necessary in realising more inclusive, participatory forms of democratic decision-making. From deliberative theorists’ perspective, online spaces therefore provide a unique opportunity for improving democracy. Such potential advancements pose, however, serious challenges for legal scholars engaged with their implementation. Recent debates about regulating the spread of fake-news, the use of hate speech or disputes about data protection laws are just a few examples of such challenges. Any implementation of a deliberative system will be confronted with serious challenges. Against this background, the paper poses the following overarching question: What are the specific challenges to deliberative systems’ legal implementation that are rooted in digitalization-associated changes (e.g., the development of ICT) – and how may they be overcome? The paper focuses, more specifically, on the compatibility of digitalization-associated changes in democratic opinion-formation and decision-making processes in Germany with German constitutional and basic legal norms. The paper proceeds in three basic steps: First, it outlines in what ways digital spaces may facilitate deliberative modes of democratic decision-making. Second, it is argued that precisely these ‘advancements’ tend to conflict with basic legal and/or constitutional regulations structuring German politics. The paper refers to exemplary case studies on online consultation processes and online public deliberation in Germany to illustrate these cleavages. Third, it explores legal and political strategies for reconciling novel modes of online participation with German basic legal and/or constitutional regulations. In conclusion, I argue that digitalization does not pose ‘genuinely new’ challenges for implementing “participatory innovations” and strengthening mass democracy. Rather, I demonstrate that previously existing challenges to implementing deliberative systems are amplified: Debates about regulating deliberation on Facebook or Twitter highlight, for example, the limitations of regulations (and legislative reforms) at the nation state level. Well-known discussions about the ideals of “inclusion” and “openness” in deliberative participation have been reinforced and renewed in considering, e.g., implications of the “digital divide” for online participation. Strategies for reconciling deliberative norms with existing legal regulations must therefore reflect the ambivalent character of digitalization processes: They can facilitate more effective and inclusive forms of deliberative participation and, at the same time, aggravate existing challenges to their legal implementation.