Title: The interplay of deliberative legitimacy, constituent power and constitutional form
Author, co-author: Burks, Deven
Abstract: Enhanced legitimacy is a driving force behind deliberative innovations (Fung 2015, Curato and Böker 2016). This is no less the case for constitutional deliberative innovations. Assessing deliberative constitutionalism’s success in generating legitimacy necessitates a better grasp of the distinct legitimacy standards which constitutional deliberative innovations may meet. Bound up with those standards is deliberative constitutionalism’s attempt to navigate the tension between politics and law, constituent power (CP) and constituted form (CF). How do factors of deliberative legitimacy interact with standard ways of modelling that tension? To answer this question, I proceed in three parts, the first of which maps ten factors of deliberative legitimacy at four levels: personal, interpersonal, institutional, and systemic. The second lays out four ways of modelling the tension between CP and CF from Loughlin and Walker (2007): the containment, mutual articulation, radical potential, and irritant models. The last part sets out to determine whether the four models directly or indirectly support or neglect the realization of the forms of deliberative legitimacy and casts in a different light from Parkinson (2016) the landscape of deliberative democracy and constitutions. I conclude that certain forms of deliberative legitimacy may be more sensitive to and better served by some models of CP and CF than by others.
Author, co-author: Burks, Deven
Abstract: Enhanced legitimacy is a driving force behind deliberative innovations (Fung 2015, Curato and Böker 2016). This is no less the case for constitutional deliberative innovations. Assessing deliberative constitutionalism’s success in generating legitimacy necessitates a better grasp of the distinct legitimacy standards which constitutional deliberative innovations may meet. Bound up with those standards is deliberative constitutionalism’s attempt to navigate the tension between politics and law, constituent power (CP) and constituted form (CF). How do factors of deliberative legitimacy interact with standard ways of modelling that tension? To answer this question, I proceed in three parts, the first of which maps ten factors of deliberative legitimacy at four levels: personal, interpersonal, institutional, and systemic. The second lays out four ways of modelling the tension between CP and CF from Loughlin and Walker (2007): the containment, mutual articulation, radical potential, and irritant models. The last part sets out to determine whether the four models directly or indirectly support or neglect the realization of the forms of deliberative legitimacy and casts in a different light from Parkinson (2016) the landscape of deliberative democracy and constitutions. I conclude that certain forms of deliberative legitimacy may be more sensitive to and better served by some models of CP and CF than by others.