Deliberative Governance & Law

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The Deliberative Governance and Law project is an international network of scholars advancing research on institutional innovations based on cutting-edge studies of law, governance and deliberative democracy. The project provides a platform for innovative ideas to influence domestic and international approaches to governance.

Last updated date

4.52pm Tuesday 19 June 2018

Recently

31
Oct
2018
Research Seminar: 2-4pm Seminar: Deliberative polling on Federalism Questions in Myanmar

With Prof Baogang He and Dr Michael Breen

In recent years, several countries in Asia have sought to respond to ethnic conflict and uneven development by introducing federalism. Outcomes have been mixed. In Nepal’s case, participatory constitution-making created a groundswell of opinion that informed the new federal structure, while in the Philippines, an elite-driven constitution-making process seems destined for failure. Myanmar is at a critical stage in its democratic transition as it tackles the form of federalism most suited to its conditions and aspirations. Yet, much like the Philippines, its process is top-down and has failed to capture the public’s imagination. To demonstrate the value and viability of a deliberative constitution-making process, the presenters organised four deliberative forums based on the deliberative polling methodology. Two deliberations involved mostly members of political parties, ethnic armed groups and civil society organisations, while the other two involved mostly laypersons selected by civil society organisation. In each case a mixture of different ethnic groups was involved. Overall, more than 130 participants returned surveys both before and after the deliberation. This presentation discusses some of the key findings, and challenges arising from those deliberative forums, and how they can contribute to federal constitution-making in Myanmar, and elsewhere.

2
May
2018
DGAL Graduate Student Workshop

This workshop, held simultaneously at McGill University's Faculty of Law and the ANU Law School, was the latest in a series of such events featuring graduate students' and other academics' works-in-progress. Presenttions covered work by Jeffrey Kennedy, Sarah Berger Richardson and Ron Levy.

1
Feb
2018

Read the Report Here

EXECUTIVE SUMMARY

  • This Report presents an independent review of the ACT’s pilot citizens’ jury on compulsory third party insurance reform. Key findings of the Report are:
  • The planned series of citizens’ juries in the ACT is worthwhile and should be continued. 
  • A wealth of international experience shows that citizens’ juries are frequently more broadly-trusted and effective than relatively partisan and gridlocked decision-making in legislatures. 
  • This Report recommends changes in the practice of ACT citizens’ juries in order to improve their design and performance:
  • The close and ongoing involvement of expert decision-makers in the pilot citizens’ jury’s deliberation stages risked undermining the autonomy of jurors. 
  • Most claims of bias in the process cannot be established or are subject to reasonable disagreement. However, bias was evident in the official rhetoric surrounding the proceedings. 
  • The ACT Government and democracyCo raised barriers to external scrutiny of, and democratic input into, the citizens’ jury process. 
  • Insufficient evidence exists to verify other alleged faults in the process, including: that some official information released to the public was incomplete or misleading; that some information presented tojurors was incomplete or misleading; that the citizens’ jury was insufficiently demographically representative of the wider community; and that the process was disorganised and chaotic, resulting in prejudice to some stakeholders.

 

18
Jan
2018
DGAL Graduate Student Workshop

This workshop, held simultaneously at McGill University's Faculty of Law and the ANU Law School, was the latest in a series of such events featuring graduate students' works-in-progress. DGAL co-directors Hoi Kong (McGill) and Ron Levy (ANU) also presented their work-in-progress on 'Shotgun Referendums'.

@DelibGovLaw

Latest news

12
Aug
2019
ACT citizens' assembly
ANU College of Law Associate Professor Ron Levy and other proponents of citizens’ assembly make their proposal on behalf of the ACT.
30
Jul
2019
2019 Zines Prize
Professor Susan H Williams of the Maurer Law School at Indiana University Bloomington has won the 2019 Zines Prize for Excellence in Legal Research.
16
Jul
2018
Composite image of George Duke and cover of Federal Law Review
Assoc Prof George Duke, Deakin University
22
Jun
2018
Image is deliberately blurred and shows people walking
Ron Levy on the Future of Australia’s Federation Survey.

Upcoming events

No upcoming events found.

Past events

26
Sep
2017

Against epistocracy: Reconsidering the demographic objection

Udit Bhatia
3.00PM to 4.00PM
  • Udit Bhatia, University of Oxford

Why should we prefer democracy to an epistocracy of competent persons? In his response to this question, David Estlund appeals to the ‘demographic objection’.

08-12
May
2017

Wellbeing in the Law Week - Mon 8 to Fri 12 May

Wellbeing week
12.00PM to 5.00PM

The ANU College of Law is committed to health and wellbeing in the law, for all our students and academic and professional staff. This is the inaugural Wellbeing in the Law Week, presented by the ANU College of Law Wellbeing Initiative and the ANU Law Students' Society.

The Deliberative Governance and Law Project bridges the gap between the theory and real-world practice of democratic deliberation. The project connects a network of scholars, lawyers and members of governments working in the area, enabling them to share results and collaborate to provide practical reform proposals to improve deliberation in democracies around the world. Uniquely, we focus on the roles of law and legal practice in enabling, inhibiting or shaping democratic deliberation.

Deliberative democracy

The discipline of deliberative democracy emerges from a concern for resolving tensions between the ideals of democracy and the growing number of issues confronting public governance. In an era of increasing political and legal complexity, deliberative democracy focuses on finding solutions to how citizens can remain meaningfully engaged and involved in democratic decision-making.

With its ambitious aims and an impressive emerging track-record of real-world application, deliberative democracy is arguably the most important movement in political theory and institutional design of the past two decades. Yet most research in the area lacks sustained analyses of laws as critical, and qualitatively distinct, features of the deliberative democratic institutional landscape.

The use of statute and judge-made law to regulate political process has burgeoned in many democracies, reflecting attempts to grapple with corruption, electoral inequality and concentrations of official power. These fields are now well-established, yet they have often developed around a limited class of theories about ‘politics’ that omits discussion of deliberative democracy.

The project

The Deliberative Governance and Law Project aims to address this gap through the dissemination of research, engagement with political decision-makers, and popular discourse. A principal aim is to help lead an international conversation about how law – and law reform – can affect deliberation.

The project sits within the Centre for International and Public Law, at the ANU College of Law and the McGill University, Faculty of Law in Montreal, Canada.

The Co-Directors are Dr Ron Levy of The Australian National University, ANU College of LAW, Canberra, Australia, and Dr Hoi Kong, of the McGill University Faculty of Law, Montreal, Canada. The Associate Director is Dr Dominique Dalla-Pozza, also of the ANU College of Law.

Members


Anthony Connolly
Professor

Dominique Dalla-Pozza
Senior Lecturer

Ron Levy
Associate Professor
Vince Redhouse
Research scholar
Centre for Moral, Social and Political Theory
The Australian National University
Canberra, Australia
Hoi Kong
The Rt Hon Beverley McLachlin PC UBC Professor in Constitutional Law and Co-Director of DGAL
Faculty of Law
University of British Columbia
Vancouver, Canada

Affiliates

Flynn
Assistant Professor
Peter A. Allard School of Law
University of British Columbia
Vancouver, Canada
Ian O'Flynn
Senior Lecturer in Political Theory
School of Geography, Politics and Sociology
University of Newcastle (UK)
Newcastle, United Kingdom
Elisabeth Alber
Senior Researcher
Institute for Comparative Federalism
Eurac Research
Bolzano, Italy
Spencer McKay
PhD Candidate
Political Science
University of British Columbia
Vancouver, Canada
hickey
Law and Government
Dublin City University
Dublin, Ireland
liston
Associate Professor
Peter A. Allard School of Law
University of British Columbia
Vancouver, Canada
Bagg
Postdoctoral Fellow
Department of Political Science
McGill University
Montreal, Canada
Bhatia
Udit Bhatia
Lecturer in Political Theory
Lady Margaret Hall
University of Oxford
Oxford, United Kingdom
Lerner
Senior Lecturer
Political Science
Tel Aviv University
Tel Aviv, Israel
Nils
PhD Candidate
Leuven Centre for Global Governance Studies
University of Leuven
Leuven, Belgium
Dyzenhaus
Albert Abel Chair and University Professor
Faculty of Law
University of Toronto
Toronto, Canada
Tierney
Professor of Constitutional Theory
Law School
University of Edinburgh
Edinburgh, United Kingdom
Gardner
SUNY Distinguished Professor and Bridget and Thomas Black Professor
School of Law
University of Buffalo
Buffalo, United States
Stacey
Assistant Professor
Allard School of Law
University of British Columbia
Vancouver, Canada
Dryzek
Centenary Professor
Centre for Deliberative Democracy and Global Governance
Institute for Governance and Policy Analysis at the University of Canberra
Canberra, Australia
Kildea
Senior Lecturer
Law School
University of New South Wales
Sydney, Australia
Zurn
Professor of Philosophy
College of Liberal Arts
University of Massachusetts
Boston, Australia
Leib
Professor of Law
School of Law
Fordham University
New York, United States
Fishkin
Janet M. Peck Professor of International Communication
Department of Communication
Stanford University
Stanford, United States
Gastil
Professor and Political Science Senior Scholar
Arts and Sciences and McCourtney Institute for Democracy
Pennsylvania State University
University Park, United States
Pal
Assistant Professor
Faculty of Law (Common Law Section)
University of Ottawa
Ottawa, Canada
Walters
F.R. Scott Professor of Public and Constitutional Law
Faculty of Law
McGill University
Montreal, Canada
Puja
Associate Professor
Faculty of Law
University of Hong Kong
Hong Kong, Hong Kong S.A.R., China
Reid
Graduate Student
School of Social and Political Sciences
University of Melbourne
Melbourne, Australia
Mendes
Assistant Professor
Department of Public Law
University of São Paulo
São Paulo, Brazil
Andrew Geddis
Professor
Faculty of Law
University of Otago
Dunedin, New Zealand
Pavlos Eleftheriadis
Associate Professor in the Faculty of Law; Fellow of Mansfield College
University of Oxford
Oxford, United Kingdom
Sarah Sorial
Associate Professor
Philosophy
University of Wollongong
Wollongong, Australia
Scott Stephenson
Senior Lecturer
Law School
University of Melbourne
Melbourne, Australia
Flanders
Associate Professor
School of Law
St Louis University
St Louis, United States
Orr
Professor
TC Beirne School of Law
University of Queensland
Brisbane, Australia
Elstub
Lecturer in British Politics
Geography, Politics & Sociology
University of Newcastle
Newcastle, United Kingdom
Eric Ghosh
Senior Lecturer
School of Law
University of New England
Armidale, Australia
Amy Preston-Samson
Amy Preston-Samson
LLM Candidate
McGill University
Montreal, Canada
Jeffrey Kennedy
Lecturer
Law School
Queen Mary University of London
London, United Kingdom

The Deliberative Governance and Law Project has three current sub-projects, these are outlined below.

Projects & clusters

Deliberative Governance and Law

Contact:

Institutional Designs for Public Deliberation: Empowering Citizens to Shape Political Life

Project Leader: Associate Professor Hoi Kong

‘Shotgun Referendums’: Popular Deliberation in Contested Regions

Much deliberative democracy theory examines the capacity of public institutions to promote governance by deliberation instead of bald coercion (eg, majority domination or military might). Recent works have even examined the prospects for deliberation during an exercise long thought to be paradigmatically anti-deliberative: referendum voting.

Authors such as Stephen Tierney, Jim Fishkin, Paul Kildea, and Ron Levy have assessed the possibilities of designing ‘deliberative referendums’. Levy has described how creative referendum ballot design can prompt relatively purposive and generalised (rather than narrowly self-interested) voter deliberation, for instance by including fundamental questions about voters’ preferred values prior to questions on specific reform options.

Yet these past works have seldom strayed from the comfort zone of stable polities with relatively homogenous commitments to liberal-democratic principles. This project sets out to assess the plausibility of using deliberative referendums to achieve lasting constitutional settlements in conflict regions.

‘Shotgun referendums’ refer to referendums/plebiscites in regions such as Crimea, Hong Kong, and (aspirationally) Israel-Palestine. Depending on their design, and on the intentions of their creators, shotgun referendums can either help to resolve or catalyse conflict. Armed conflict – real or threatened – presents an outsized difficulty for deliberation. In part this is due to markedly varying levels of commitment – among ordinary citizens and governmental elites – to deliberation in lieu of coercive force.

Only a few authors have previously considered the viability of deliberative democracy across borders and in conflict areas. This project assesses, specifically, the capacity of deliberative referendums to reset a social, political, or even military impasse over the shape and nature of a contested border

Project Leaders: Associate Professor Hoi Kong and Dr Ron Levy

Deliberative Constitutionalism

Expectations of widespread direct citizen involvement have emerged in the constitutional law and practice of many countries. Yet corresponding standards of deliberation in democratic constitutional reform remain unsettled. Drawing on theories of deliberative democracy, this project asks whether, to count as democratically legitimate, constitutional reform must safeguard the quality of deliberation.

The project identifies new requirements for constitutional legitimacy: that reforms must be at once widely participatory and robustly deliberative. It also evaluates a selection of legal and institutional innovations capable of achieving these high aims. Several kinds of deliberative constitutional practice can be imagined. Some see citizens become more meaningfully involved in reform and adjudication. Others focus on how more elite bodies, especially including courts, can bring a comparatively rational and deliberative inputs into public democratic discussion. In either case, this project describes and evaluates a range of possibilities using theoretical and empirical scholarship.

Activities thus far have included:

  • A three-city series of conferences on Deliberative Constitutionalism: at the Australian National University (October 2015), University College London (November 2015) and McGill University (April 2016).
  • An edited collection airing cutting-edge ideas about Deliberative Constitutionalism, and drawing on contributions from leading public law and deliberative democracy scholars from 10+ countries, is currently in development.

Project Leaders: Associate Professor Hoi Kong and Dr Ron Levy

BOOKS & EDITED COLLECTIONS

Ron Levy, Hoi Kong, Graeme Orr and Jeff King (eds), The Cambridge Handbook of Deliberative Constitutionalism (Cambridge University Press, 2018)

Ron Levy and Graeme Orr, The Law of Deliberative Democracy (Routledge, 2016)

Ron Levy and Graeme Orr (eds), Symposium: The Law of Deliberative Democracy (2013) Election Law Journal 12:4

OTHER PUBLICATIONS

Ron Levy, '"Shotgun Referendums": Popular Deliberation and Conflict Settlement in Conflict Societies' (2018) 41(3) Melbourne University Law Review 1237

Ron Levy, Amelia Simpson, Ian O’Flynn and Georgina Flaherty, 'Designing Referendums for Peacemaking: The Case of Bougainville', (2018) 33(2) Australasian Parliamentary Review (forthcoming)

Hoi Kong and Ron Levy, 'Deliberative Constitutionalism', in André Bächtiger, John Dryzek, Jane Mansbridge and Mark Warren (eds), The Oxford Handbook of Deliberative Democracy (Oxford University Press, forthcoming)

Ron Levy, 'The Deliberative Case for Constitutional Referenda', (2017) 16(2) Election Law Journal 213

Ron Levy, Neomal Silva and Benjamin Saunders, 'Deliberation at the Founding: Deliberative Democracy as an Original Constitutional Value', (2017) 28(1) Public Law Review 41

Ron Levy, 'The "Elite Problem" in Deliberative Constitutionalism', in Ron Levy, Hoi Kong, Graeme Orr and Jeff King (eds), The Cambridge Handbook of Deliberative Constitutionalism (Cambridge University Press, 2018)

Hoi Kong, “Democratic Deliberation in the Wild: The McGill Online Design Studio and the Regulation Room Project” (2014) 41 Fordham Urban Law Journal 1527-1580 (with Cynthia Farina et. al.).

Hoi Kong, “Republicanism and the Division of Powers in Canada” (2014) 64:3 University of Toronto Law Journal 359-401.

Ron Levy, 'Regulating Opinion Polling: A Deliberative Democratic Perspective', (2016) 39(1) UNSW Law Journal 318-340 (with G. Orr)

Ron Levy, 'La démocratie délibérative et de la loi électorale: le conflit et la congruence', (2014) 8(2) Journal of Parliamentary and Political Law (Amanda Mihoub Wright, James O McCarthy and Charlotte-Anne Malischewski transl; based on 'The Law of Deliberative Democracy: Seeding the Field')

Hoi Kong, “The Citizen Submissions Process in the North American Agreement on Environmental Cooperation: Theory and Practice in Deliberative Democratic Institutional Design for Transnational Institutions” in Kong & Wroth (eds.) NAFTA and Sustainable Development: The History, Experience and Prospects For Reform (Cambridge University Press, 2015) 351-372.

Hoi Kong, “Election Law and Deliberative Democracy: Against Deflation” (2015) 9 Journal of Parliamentary and Political Law 35-58.

Ron Levy, 'Deliberative Voting: Realising Constitutional Referendum Democracy', (2013) Public Law 555-574

Ron Levy, 'The Law of Deliberative Democracy: Seeding the Field', (2013) 12(4) Election Law Journal 355-371

REPORT

Ron Levy, 'Independent Report on ACT Citizens' Jury Pilot', 2 February, 2018 (requested by the Law Society of the Australian Capital Terrritory)

Prospective graduate scholars are encouraged to contact us for inquiries about graduate study, at ANU or McGill, in our subject areas:

  • deliberative democracy
  • governance
  • legal regulation of democracy
  • judicial, parliamentary and popular deliberation
  • referendums and plebiscites
  • urban planning
  • environmental regulation

Activities archive

31
Oct
2018
Research Seminar: 2-4pm Seminar: Deliberative polling on Federalism Questions in Myanmar

With Prof Baogang He and Dr Michael Breen

In recent years, several countries in Asia have sought to respond to ethnic conflict and uneven development by introducing federalism. Outcomes have been mixed. In Nepal’s case, participatory constitution-making created a groundswell of opinion that informed the new federal structure, while in the Philippines, an elite-driven constitution-making process seems destined for failure. Myanmar is at a critical stage in its democratic transition as it tackles the form of federalism most suited to its conditions and aspirations. Yet, much like the Philippines, its process is top-down and has failed to capture the public’s imagination. To demonstrate the value and viability of a deliberative constitution-making process, the presenters organised four deliberative forums based on the deliberative polling methodology. Two deliberations involved mostly members of political parties, ethnic armed groups and civil society organisations, while the other two involved mostly laypersons selected by civil society organisation. In each case a mixture of different ethnic groups was involved. Overall, more than 130 participants returned surveys both before and after the deliberation. This presentation discusses some of the key findings, and challenges arising from those deliberative forums, and how they can contribute to federal constitution-making in Myanmar, and elsewhere.

2
May
2018
DGAL Graduate Student Workshop

This workshop, held simultaneously at McGill University's Faculty of Law and the ANU Law School, was the latest in a series of such events featuring graduate students' and other academics' works-in-progress. Presenttions covered work by Jeffrey Kennedy, Sarah Berger Richardson and Ron Levy.

1
Feb
2018

Read the Report Here

EXECUTIVE SUMMARY

  • This Report presents an independent review of the ACT’s pilot citizens’ jury on compulsory third party insurance reform. Key findings of the Report are:
  • The planned series of citizens’ juries in the ACT is worthwhile and should be continued. 
  • A wealth of international experience shows that citizens’ juries are frequently more broadly-trusted and effective than relatively partisan and gridlocked decision-making in legislatures. 
  • This Report recommends changes in the practice of ACT citizens’ juries in order to improve their design and performance:
  • The close and ongoing involvement of expert decision-makers in the pilot citizens’ jury’s deliberation stages risked undermining the autonomy of jurors. 
  • Most claims of bias in the process cannot be established or are subject to reasonable disagreement. However, bias was evident in the official rhetoric surrounding the proceedings. 
  • The ACT Government and democracyCo raised barriers to external scrutiny of, and democratic input into, the citizens’ jury process. 
  • Insufficient evidence exists to verify other alleged faults in the process, including: that some official information released to the public was incomplete or misleading; that some information presented tojurors was incomplete or misleading; that the citizens’ jury was insufficiently demographically representative of the wider community; and that the process was disorganised and chaotic, resulting in prejudice to some stakeholders.

 

18
Jan
2018
DGAL Graduate Student Workshop

This workshop, held simultaneously at McGill University's Faculty of Law and the ANU Law School, was the latest in a series of such events featuring graduate students' works-in-progress. DGAL co-directors Hoi Kong (McGill) and Ron Levy (ANU) also presented their work-in-progress on 'Shotgun Referendums'.

30
Nov
2017

11am–1pm Thursday 30 November 2017

Law School

PRESENTED BY SWISSINFO #DEARDEMOCRACY AND THE ANU/MCGILL PROJECT ON DELIBERATIVE GOVERNANCE AND LAW

A roundtable discussion comparing the recent marriage plebiscite experience in Australia with recent events in Europe.

Bruno Kaufmann, Initiative and Referendum Institute Europe

Dr Ron Levy, ANU College of Law

Dr Ryan Goss, ANU College of Law

Kevin Boreham, ANU College of Law

Guest speaker Bruno Kaufmann is Director of the Initiative and Referendum Institute Europe, co-president of the Global Forum on Modern Direct Democracy. As a Board member of the Swiss Democracy Foundation and an Expert of Modern Direct Democracy, he will visit Australia on his world tour on modern direct democracy. Mr Kaufmann was involved in the publication of the IDEA Global Passport to Modern Direct Democracy, a compact book describing the tools of modern direct democracy, providing key definitions and giving a global overview of available direct democracy mechanisms.

26
Sep
2017
Udit Bhatia (Oxford) Seminar: 'Against Epistocracy'

Upcoming seminar: Udit Bhatia, Lecturer in Political Theory, Lady Margaret Hall, University of Oxford, presents a seminar for the Deliberative Governance and Law Program and the wider ANU community, at the ANU College of Law (room tba) at 3pm on 26 Sept, 2017. Chair: Dr Ron Levy.

Against Epistocracy: Reconsidering the Demographic Objection

Why should we prefer democracy to an epistocracy of competent persons? In his response to this question, David Estlund appeals to the ‘demographic objection’. He argues that ‘The educated portion of the populace may disproportionately have epistemically damaging features that countervail the admitted epistemic benefits of education’. The force of the argument lies in its attempt to undermine the epistocratic argument on its own terms. Epistocracy privileges the epistemic quality of decisions in the design of political institutions. Estlund argues that it is precisely this quality that is likely to suffer as a result of the unequal distribution of education and its resultant exclusion of some groups in an epistocracy. This paper attempts to build upon and strengthen Estlund’s argument in three ways. Firstly, it emphasises specific epistemic harms that stem from the exclusion of already disadvantaged demographic groups. Secondly, it attempts to sever the objection from the assumption of the ‘best judge’ principle. Thirdly, it turns the focus away from purely consequentialist harms of epistocracy’s epistemic weaknesses. Instead, it shows how such epistemic weaknesses result, simultaneously, in the violation of a side constraint for epistocracy, the equitable distribution requirement.

31
May
2017
DGAL Graduate Student Workshop

This intensive workshop, held at McGill University's Faculty of Law, was the first in a series of such events featuring graduate students' works-in-progress. Two graduate student speakers (Jeffrey Kennedy and Sarah Berger Richardson, both of McGill) presented his own work for feedback from DGAL co-directors Hoi Kong (McGill) and Ron Levy (ANU). Dr Levy also presented work for feedback from graduate students and others in attendance.

24
Apr
2017
First Annual Project Workshop - McGill University, Montreal, Canada

Meeting of Project members and discussion of works-in-progress, featuring Daniel Weinstock (McGill), Mark Walters (McGill), Michael Pal (University of Ottawa) and Ron Levy (ANU), and hosted by Hoi Kong (McGill)

16
Aug
2016

Ron Levy has a new book published by Routledge - The Law of Deliberative Democracy

Essential reading for those interested in either law or politics, the book presents a challenging critique of laws governing electoral politics in the English-speaking world. The book contends that the conflict between law and public deliberation is not inevitable: it results from judicial and legislative choices. An extended, original analysis demonstrates how lawyers and deliberativists can engage with each other to bridge their two solitudes.

The Law of Deliberative Democracy

12
Jul
2016

Talk by Dr Stephen Elstub, Newcastle University (UK)
A comparative analysis of the deliberative quality of televised election debates in Europe.
See our event page for more information.

7
Apr
2016
Deliberative Constitutionalism workshop, McGill University

On 7-9 April, members of our project attend the Deliberative Constitutionalism workshop, held at McGill University in Canada.

9
Nov
2015

On 9-10 November 2015, members of our project attended the 'Deliberative Constitutionalism' workshop held at University College London.

Updated:  24 August 2017/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team