Constitutional Deliberative Democracy in Europe

Min Reuchamps, Jane Suiter

• Verlag: ECPR Press
• Jahr: 2016
• ISBN:
  9781785522031
• Auflage: 1
• Thema: Politik & Internationale Beziehungen
• Thema: Geschichte & Theorie der Politik

From small-scale experiments, deliberative mini-publics have recently taken a constitutional turn in Europe. Iceland and Ireland have turned to deliberative democracy to reform their constitutions. Estonia, Luxembourg and Romania have also experienced constitutional process in a deliberative mode. In Belgium the G1000, a citizen-led initiative of deliberative democracy, has fostered a wider societal debate about the role and place of citizens in the country's democracy. At the same time, European institutions have introduced different forms of deliberative democracy as a way to connect citizens back in. These empirical cases are emblematic of a possibly constitutional turn in deliberative democracy in Europe. The purpose of this book is to critically assess these developments, bringing together academics involved in the designing of these new forms of constitutional deliberative democracy with the theorists who propagated the ideas and evaluated democratic standards.

Chapter One

A Constitutional Turn for Deliberative Democracy in Europe?

Jane Suiter and Min Reuchamps

Deliberative democracy and its constitutional turn

In recent years, public authorities and civil-society organisations, driven by increasing public disengagement and a growing sense of distrust between the public and their representatives, have been instituting exercises in public deliberation, often using ‘mini-publics’, that is relatively small groups of citizens, selected according to various criteria and representing different viewpoints, brought together to deliberate on a particular issue. From small-scale experiments, mini-publics have recently taken a constitutional turn, at least in Europe. Iceland and Ireland have turned to deliberative democracy to reform their constitutions. Estonia, Luxembourg and Romania have also experienced constitutional processes in a deliberative mode. In Belgium, the G1000, a citizen-led initiative of deliberative democracy, has fostered a wider public debate about the place and role of citizens in the country’s democracy. At the same time, the European Union institutions have introduced different forms of deliberative democracy as a way to reconnect with citizens. These empirical cases are indicative of a possible ‘constitutional turn’ in deliberative democracy in Europe. These examples of constitution-making happened in a particular time and place but they may also serve as models for other events.

The purpose of this book is, first, to critically assess these developments, bringing together academics who have been involved in designing these new forms of constitutional deliberative democracy with theorists practised in evaluating normative standards. This combination of contributors allows us the opportunity to speak across the praxis divide, bringing empiricists and those involved in the design and implementation of these processes, together with more normatively engaged theorists. Second, we hope to be able to offer answers or, at least, clues to possible pathways to generalisation as to which kinds of participatory processes work best for constitutional change and under what conditions.

In essence, deliberative democracy is concerned with building and engaging with authentic and reasoned debate in order to decide on a course of action. In other words, if it is deliberative, it is inclusive and consequential (Dryzek 2009). Deliberation can take place in mini-publics and parliaments and among the masses and there are many high-profile real-world examples of innovation in deliberative democracy, notably the participatory budgeting practices that originated in Brazil (Souza 2001); the deliberative polling exercises that have been applied widely (Fishkin 2009; Suiter, Farrell and O’Malley 2014); and the long tradition in Scandinavia of citizen-deliberation about complex issues at the intersection between science and society (Rose and Sæbø 2010), to name but a few. All share some features: they are based on some form of deliberation among samples of citizens; they aim to foster positive and constructive thinking about solutions (they are not simply protest movements); they seek genuine debate about policy content; they seek solutions beyond adversarial politics; and they seek to identify common ground. What’s more, there is cross-fertilisation of existing models and techniques and a rising number of experiments that combine traditional modes of political participation with some elements of deliberation. The field of deliberative democracy is kicking and striving.

But why should deliberative democracy be an appropriate mode for constitution-making? Modern constitution-making started in the late eighteenth century. Elster (1995) describes seven waves of constitution-making, across Europe and North America as well as in their former colonies throughout the world. The first wave came before the end of the eighteenth century, with the novel constitutions that followed the American and French revolutions. The second wave swept through Europe following the revolutions of 1848, when around fifty new constitutions were introduced, including those in the many small German and Italian states. In the third wave, many of the states newly created after World War I, for example, Poland and Czechoslovakia, wrote their constitutions. Under pressure from the victorious allied forces, in the fourth wave, the defeated states of World War II, Germany, Italy and Japan, wrote new constitutions introducing democracy. The fifth wave came with the breakup of the British and French colonial empires, starting in India and Pakistan in the 1940s, gradually gaining momentum and then running through Africa in the 1960s. The sixth wave washed through southern Europe in the mid 1970s, with the end of dictatorships in Greece, Portugal and Spain. The seventh wave broke in Eastern Europe in the 1990s, with the collapse of communism and the end of the cold war leading to the introduction of many new and progressive constitutions; this was also the case in Finland, where the constitution of 2000 is a product of the mini banking crisis in Scandinavia in the 1990s.

Many of these cases of constitutional revision have three characteristics in common. First, they were instigated in response to crises or exceptional circumstances. They each happened at what Ackerman (1998) refers to as a ‘constitutional moment’, which mobilised social forces for fundamental change. Elster (1995) counts only two instances in which new constitutions were drawn up under non-crisis circumstances: Sweden in 1974 and Canada in 1982. All the others were responses to economic crisis, regime-change or revolution. Second, all involved, though to varying extents, the deliberation of elites. Third, many of the recent bouts of constitution-making have not resulted in long-lived documents (Kellermann, de Zwaan and Czuczai 2001; Albi 2005; Ginsburg and Dixon 2011).

The cases discussed in this book (see Bergmann 2016; Suiter, Farrell and Harris 2016; and Jacquet, Moskovic, Caluwaerts and Reuchamps 2016, Chapters Two, Three and Four of this volume) were also products of crisis, particularly of the global financial crisis of 2008, and of the diminishing trust in institutions among European publics in general. Indeed, both Ireland and Iceland suffered large drops in GDP as a result of the banking crisis. Yet, given the importance of constitution-making, should it not preferably be undertaken at a time when rational reflection and consideration is possible (Elster 1995)? It is possible that the deliberative mode of this recent wave has, at least to some extent, been an attempt to overcome citizens’ diminishing trust in institutions and that they can be distinguished from all previous waves in terms of who was deliberating and how they were doing so. This is an issue to which we shall return to in greater depth in the relevant country chapters.

Given the characteristics of the current political context and also of deliberative democracy, is this mode likely to be appropriate for constitution-making? Previous rounds of constitution-making involved the deliberation of elites – principally, constitutional lawyers, senior politicians and so on – who constituted the deliberative component of such assemblies as the framers of the US Constitution and the Constitutional Assembly in post-revolutionary France. In most, decisions were reached by a qualified majority of the delegates, although a few aimed at something close to consensus, for example, during the making of the 1949 German Constitution and the 1978 Spanish Constitution (Elster 1995). In several instances, however, citizens also had a role in constitution-making as well as elites (Fishkin 2011; Mendez and Wheatley 2013).

What is crucial in terms of constitutional deliberative democracy is that, in all cases, the central principle is an attempt to involve the public in deliberation. In this perspective, a version of the deliberative model involving a mini-public was the chosen route for the assemblies to deliberate. In addition, in terms of the how (or the throughput) of deliberation, Elster also noted that in many previous episodes of constitution-making, self-serving arguments tended to dress themselves in the garb of public interest. While there is no guarantee that a deliberative mini-public would not operate in a similar fashion, if it is functioning in conformity with deliberative criteria such as inclusiveness, equality transparency and publicity, it would not.

So why should a deliberative mini-public function in this normatively desirable fashion? Constitutions, as the supreme norms that shape legitimate law-making, must be normatively legitimate if citizens are to be considered under an obligation to obey the laws of their polity (Dworkin 1995). There is agreement in the literature that deliberative democracy is primarily focused on producing legitimate political outcomes (Manin 1987; Cohen 1998). Thus, introducing elements of deliberative democracy to constitution-making ought to make constitutional changes more legitimate. The link between the mini- and the maxi-public (that is, the whole of the people) will also be crucial here and that is an issue we shall return to later. In addition, as Elster (1995) notes, creating a constitution involves making collective choices under constraints, that is, constitutions are works produced by constituent assemblies rather than by individuals. Thus, in general, the goals of individual constitution-makers and the mechanisms by which these are aggregated into collective choices are vital. In theory, utilising the principles of deliberation should result in a process that functions so as to ground constitution-making in the thought-through will of the people.

In addition, the intrinsic importance of constitution-making requires that procedures be based on rational and logical argument: and the deliberative model is ideally suited to such tasks. Rawls (1999), for example, argued that deliberation should be central to a conception of public reason. Thus we might expect that constitution-making in a deliberative mini-public would result in policies and priorities being adopted that are better solutions than those that can emerge when framers are incentivised more towards horse-trading and log-rolling (Elster 1995). In other words, as Caluwaerts and Reuchamps (2015) argued, discussions that take place in the public sphere should have the capacity to translate the deliberation of the public into normatively valuable public outcomes. Thus, we would expect deliberative democracy to be appropriate for constitution-making, in that it will both give the process greater legitimacy and produce outcomes based on rational and logical argument.

However, there is still the issue of content. Constitutional deliberative democracy deals with issues that might, potentially, lead to a transformation of the polity; these deliberations also, potentially, need to include more abstract issues of principle and theory than some of the political issues traditionally associated with mini-publics. Many of the earlier mentioned examples of mini-publics are rooted in the practical, or the ordinary experiences of the public, focused on local spending, the environment and so on. However, the new wave of large-scale initiatives aimed at changing constitutions either directly or indirectly are, by their very nature, more abstract, less tied to the day-to-day realities of life, for the deliberating public. Yet there is no reason why some of these constitutional issues – from electoral systems, to marriage-equality, to producing new constitutions – should be beyond the competence of ordinary members of a mini-public to decide. The evidence from the wave of citizens’- assemblies in Canada and the Netherlands (Fournier et al. 2011) is that citizens embraced the technical elements of the proposals and many became experts. In other, more general mini-publics, such as Ireland’s We the Citizens experiment (Farrell, O’Malley and Suiter 2013; Suiter, Farrell and O’Malley 2014), members deliberated on both political reform and redistribution to produce more informed and nuanced opinions.

As a result of this widening of the parameters of what is deemed possible within deliberation, other forms of constitutional deliberative democracy have emerged, especially in Europe. In Iceland, the output of a deliberative process has been presented in a referendum that confirmed the will of the population to change the constitution. In Ireland, the Convention on the Constitution is now done with its first deliberations and two referendums have been held, including one introducing same-sex marriage. These can be seen as examples of deliberative constitutional reform. In Belgium, even though the G1000 was not designed to affect the constitution of the country, it is currently widely replicated in different settings, in Belgium and elsewhere, and it has fostered a wider debate in society about the role and place of citizens in Belgian democracy (Caluwaerts and Reuchamps 2015). Last but not least, notably with the introduction of European Citizens’ Initiatives, the European Union has paved the way for the introduction of new forms of democracy (Auer 2005). These developments also represent a number of forms and practices, including deliberative constitutional reforms (that is, constitutional reforms initiated via deliberative democracy procedures and not only by representative and/or direct-democratic ones); constitutional mini-publics (which are organised to deliberate about – some articles of – the constitution); and also deliberative events on issues that are not directly related to constitutional change but concerned with the nature of democracy in a polity (for instance, whether it should become more participatory and/or deliberative).

To sum up, the first two experiences discussed in the volume – Iceland and Ireland – are true examples of constitutional deliberative reform, while the latter – the G1000 in Belgium – is a sui generis form of deliberative democracy with a potential for political and constitutional transformation. We argue that, together, these can be envisaged as constitutional deliberative democracy and that there is now a need for a serious and systematic inquiry into these developments, which go to the heart of democracy. The choice of cases in this volume (Iceland, Ireland and Belgium) makes sense because all these cases were large-scale experiments and were similar from a methodological perspective. They call for a combined research endeavour, bringing together theoretical claims and empirical validations. Thus, this volume brings together not only theoretical and empirical researchers who have studied these cases but others who have been involved in the organisation of this constitutional turn in deliberative democracy.

In other words, we shall explore and reflect on innovations made in deliberative democracy as a result of its application to constitutional reform (Farrell 2014). This can be envisaged as a particular form of deliberative democracy – one that harnesses the democratic potential of mini-publics (Parkinson 2006; Pateman 2012) – or as instances of deliberative democracy in service of the masses (Niemeyer 2014). This is important, as the link between the mini- and the maxi-public is not yet fully conceptualised (Grönlund et al. 2014) and, in most cases, constitution-making is ratified by ‘the people’ at some point. Thus, while these constitutional deliberative processes are not themselves decision-making as proxies for mass-publics, they c...