Deliberative Law

The “systemic turn” in deliberative democractic theory builds off the critical insight that one instance or site of deliberation does not legitimate an entire political system. But accepting too easily that non-deliberative parts can contribute to a deliberative sum can risk deliberative democracy’s aspirations for reform. This chapter examines three evolving areas of deliberative lawmaking—administrative lawmaking, districting commissions, and deliberative plebiscites—that underscore the ongoing relevance and promise of “second wave” deliberative democratic institutional design. The “notice and comment” structure of administrative rule-making, for instance, can invite the admission of multiple voices into the lawmaking process, especially when combined with the court’s role in incentivizing such practice. The trend toward nonpartisan or bipartisan commissions establishing legislative district lines can also generate powerful deliberative democratic dividends. Similarly, practices in plebisicitary democracy—whether through instances such as citizen policy juries or other directly democratic mechanisms—can contribute toward the deliberative democratization of law and society.