Publications

This is a searchable catalogue of the College's most recent books and working papers. Other papers and publications can be found on SSRN and the ANU Researchers database.

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Deliberative Constitutional Referendums in Deeply Divided Societies

Author(s): Ron Levy

If referendums are not carefully designed and conducted so as to promote moderation, they may undermine deliberation and hence undermine one of the necessary or principal conditions of their own success. Naturally, there is no suggestion here chat referendums can solve all the ills that deeply divided societies face or that democracy can be reduced to referendums. Yet, if skilfully and sensitively designed, they can play a crucial role, so long, that is, as ordinary people are made to feel that their views count for something in the process.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

The Cambridge Handbook of Deliberative Constitutionalism

The Cambridge Handbook of Deliberative Constitutionalism

Editor(s): Ron Levy, Hoi Kong, McGill University, Montréal, Graeme Orr, University of Queensland, Jeff King, University College London

Deliberative democratic theory emphasises the importance of informed and reflective discussion and persuasion in political decision-making. The theory has important implications for constitutionalism - and vice versa - as constitutional laws increasingly shape and constrain political decisions. The full range of these implications has not been explored in the political and constitutional literatures to date. This unique Handbook establishes the parameters of the field of deliberative constitutionalism, which bridges deliberative democracy with constitutional theory and practice. Drawing on contributions from world-leading authors, this volume will serve as the international reference point on deliberation as a foundational value in constitutional law, and will be an indispensable resource for scholars, students and practitioners interested in the vital and complex links between democratic deliberation and constitutionalism.

Order your copy online.

Centre: DGAL

Research theme: Constitutional Law and Theory

Shotgun Referendums: Popular Deliberation and Constitutional Settlement in Conflict Societies

Author(s): Ron Levy

Referendums are now common in ‘conflict societies’ — societies where widespread armed engagement recently occurred, is occurring or is liable to occur. If well designed, a referendum might improve the prospects of achieving a conflict settlement. The referendum’s relative democratic legitimacy may also help to ensure against subsequent breach, once a settlement is reached. However, in practice the utility of referendums for conflict settlement has been inconsistent. Some past referendums faltered (e.g. a ‘no’ vote delayed settlement) as a result of neglect of careful institutional design. In particular, a number of past referendums proceeded as simple majoritarian exercises with little in the way of support for voters’ deliberation about issues at stake. By contrast, a handful of authors have described ‘Deliberative Referendums’ purpose-designed to generate more rational and informed referendum campaigns. Nearly all past work on Deliberative Referendums has focused on peaceful societies. Building on this past work, the present article introduces the term ‘Shotgun Referendum’ to refer to a Deliberative Referendum held under conditions of ongoing or apprehended violence. The article explains why such a referendum might incrementally improve the prospects for conflict settlement. It proposes the use of deliberative design features — some novel, others well known — and places these within a distinctive frame drawing on constitutional and deliberative theory. The article thus serves as a scoping study of the aspirations and boundaries of Shotgun Referendums. This can offer more careful direction when, as seems inevitable, in future more conflict societies hold referendums.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

Designing Referendums for Peacemaking: The Case of Bougainville

Author(s): Ron Levy, Amelia Simpson

The use of referendums in conflict societies has increased significantly in recent decades. A planned referendum in Bougainville, Papua New Guinea, is a current example. Referendums potentially help a conflict society to progress towards a peaceful resolution of its conflict even in the face of entrenched opposition by certain elites. And, because they can enjoy broad social perceptions of democratic legitimacy, referendums may also help to ensure against subsequent breach of any settlement reached. Yet, in practice referendums have not always been beneficial. Little institutional effort has gone toward improving the popular discourse leading up to the final vote. Standard referendum campaigns often merely amplify the voices of contending and entrenched political parties and elites. In a conflict society, where social polarization is pronounced, referendums thus risk aggravating, rather than ameliorating, tensions.

Research in deliberative democracy - with its concern for channeling disagreement into reasoned forms of persuasion - has yielded insights relevant to resolving violent inter-communal conflict. In this article we suggest the use of a specially-designed ‘deliberative referendum’ in Bougainville. Such a referendum may improve the conflicting parties' prospects of reaching common ground. Even a marginal improvement in the referendum’s deliberative quality may help to reconstruct the referendum from a potential destabilizing factor to a more effective peace-building tool. Yet, while we explore how a deliberative referendum might help to impel the Bougainville peace process toward successful resolution, we also consider the referendum’s hazards.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

Designing Referendums for Peacemaking: The Case of Bougainville

Author(s): Ron Levy, Amelia Simpson

The use of referendums in conflict societies has increased significantly in recent decades. A planned referendum in Bougainville, Papua New Guinea, is a current example. Referendums potentially help a conflict society to progress towards a peaceful resolution of its conflict even in the face of entrenched opposition by certain elites. And, because they can enjoy broad social perceptions of democratic legitimacy, referendums may also help to ensure against subsequent breach of any settlement reached. Yet, in practice referendums have not always been beneficial. Little institutional effort has gone toward improving the popular discourse leading up to the final vote. Standard referendum campaigns often merely amplify the voices of contending and entrenched political parties and elites. In a conflict society, where social polarization is pronounced, referendums thus risk aggravating, rather than ameliorating, tensions.

Research in deliberative democracy - with its concern for channeling disagreement into reasoned forms of persuasion - has yielded insights relevant to resolving violent inter-communal conflict. In this article we suggest the use of a specially-designed ‘deliberative referendum’ in Bougainville. Such a referendum may improve the conflicting parties' prospects of reaching common ground. Even a marginal improvement in the referendum’s deliberative quality may help to reconstruct the referendum from a potential destabilizing factor to a more effective peace-building tool. Yet, while we explore how a deliberative referendum might help to impel the Bougainville peace process toward successful resolution, we also consider the referendum’s hazards.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

Introduction: Fusion and Creation

Author(s): Ron Levy

Deliberative democratic theory emphasises the importance of informed and reflective discussion and persuasion in political decision-making. The theory has important implications for constitutionalism - and vice versa - as constitutional laws increasingly shape and constrain political decisions. The full range of these implications has not been explored in the political and constitutional literatures to date. This unique Handbook establishes the parameters of the field of deliberative constitutionalism, which bridges deliberative democracy with constitutional theory and practice. Drawing on contributions from world-leading authors, this volume serves as the international reference point on deliberation as a foundational value in constitutional law, and is an indispensable resource for scholars, students and practitioners interested in the vital and complex links between democratic deliberation and constitutionalism.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

New Directors for Law in Australia

New Directions for Law in Australia

Editor(s): Ron Levy, Molly Townes O'Brien, Pauline Ridge, Margaret Thornton

For reasons of effectiveness, efficiency and equity, Australian law reform should be planned carefully. Academics can and should take the lead in this process. This book collects over 50 discrete law reform recommendations, encapsulated in short, digestible essays written by leading Australian scholars. It emerges from a major conference held at The Australian National University in 2016, which featured intensive discussion among participants from government, practice and the academy. The book is intended to serve as a national focal point for Australian legal innovation. It is divided into six main parts: commercial and corporate law, criminal law and evidence, environmental law, private law, public law, and legal practice and legal education. In addition, Indigenous perspectives on law reform are embedded throughout each part. This collective work—the first of its kind—will be of value to policy makers, media, law reform agencies, academics, practitioners and the judiciary. It provides a bird’s eye view of the current state and the future of law reform in Australia.

Free download or order a printed copy

Centre: LRSJ, PEARL

Research theme: Law and Social Justice

Deliberation at the Founding: Deliberative Democracy as an Original Constitutional Value

Author(s): Ron Levy

This article examines whether Australia’s constitutional founders intended that a deliberative form of democratic government should govern federally in Australia. Deliberative democratic ideals have long occupied a prominent place in democratic theory. However, they have seldom been brought to bear in a sustained way on historical questions about Australia’s constitutional design. For constitutional scholars, democratic deliberation is now generally a forgotten element of the Australian constitutional system. We show here how the framers concerned themselves with democratic deliberation, including how precisely they envisaged deliberative democratic practices during the federation Conventions and within the new federation. Our focus is on the framers’ understandings of deliberation within the institution of Parliament, and the subsidiary issues bearing on that question such as the relationship between Parliament and the executive and the role of political parties. Our research suggests that deliberative democracy should assume a prominent place alongside more widely acknowledged original constitutional values.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

A People's Federation? Populism, Deliberation and Federal Reform

Author(s): Ron Levy

In some ways populism provides a starkly poor fit to federal decision making – including decision making about a federation itself. As I describe in this chapter, contemporary populism is at once impatient for, and prone to derailing, federal reform. However, after diagnosing problems, I turn to consider institutional routes around them. The best solutions – those perhaps most able to restart stalled progress toward reform – may be those aiming to harness and redirect, rather than deny, populism’s rising tide. In this regard, deliberative democratic approaches to reform appear to hold particular promise.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

The Deliberative Case for Constitutional Referenda

Author(s): Ron Levy

In this article I examine controversies over the use of referenda and plebiscites for constitutional reform. My chief example is a recent development toward plebiscitary democracy in Australia. Although there is no legal requirement in Australia for a popular vote to legalize same-sex marriage, the federal government considered holding such a vote. Marriage rights provide a key example in which the normative case for direct democratic constitutional reform remains unsettled, and indeed controversial. I rely on deliberative democratic theory to conclude that referenda and plebiscites generally should be part of constitutional reform processes. I nuance this conclusion by outlining categories of legal norms raising distinctive considerations as to whether and when public voting should precede constitutional reform.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

The Law of Deliberative Democracy

The Law of Deliberative Democracy

Author(s): Ron Levy, Graeme Orr,

Laws have colonised most of the corners of political practice, and now substantially determine the process and even the product of democracy. Yet analysis of these laws of politics has been hobbled by a limited set of theories about politics. Largely absent is the perspective of deliberative democracy – a rising theme in political studies that seeks a more rational, cooperative, informed, and truly democratic politics. Legal and political scholarship often view each other in reductive terms. This book breaks through such caricatures to provide the first full-length examination of whether and how the law of politics can match deliberative democratic ideals.

Order your copy online.

Centre: DGAL

Research theme: Legal Theory, Regulatory Law and Policy

The Law of Deliberative Democracy: Seeding the Field

Author(s): Ron Levy

Election law scholarship has been slow to take note of the deliberative turn in political theory. Aiming to remedy this omission, a special symposium issue (12:4, 2013) of the Election Law Journal recently featured eleven contributions toward an incipient “law of deliberative democracy” subfield of research in election law. The issue included works from scholars of politics (James Fishkin, Lisa Hill and Dennis Thompson) and law (Yasmin Dawood, James Gardner, Paul Kildea, Graeme Orr, Joo-Cheong Tham, Stephen Tierney and Jacob Rowbottom). Contributors initially aired and discussed ideas - including positions sceptical of deliberative democratic projects - in workshops at New York University and King’s College London in April 2013.

In this introduction to the symposium I provide theoretical context and map out where the various contributions fit among key emerging debates in the law of deliberative democracy. Throughout, I argue that we cannot understand the conditions for effective deliberative democracy without considering the roles of election law. Election law is a pervasive and distinctive element of deliberative democracy’s institutional backdrop. Yet deliberation still enjoys too little normative weight in studies of election law, in comparison with libertarian, egalitarian and other sources of legal reasoning.

Initially I identify three reasons why election law may be unable appreciably to set conditions for deliberative democracy: (1) the accommodation problem: that “accommodative” (win-win) reasoning in deliberative democracy may clash with law’s focus on balancing (zero-sum); (2) the elite problem: that legal elites may be unusually hostile to deliberative democratic projects; and (3) the performative problem: that election law’s underlying assumptions promote partisanship rather than deliberation. However, I conclude by identifying provisional solutions to each of these difficulties.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

A Tale of Two Questions? An Evidence-Based Argument for Coordinated Constitutional Reform in Australia

Author(s): Ron Levy

Australia recently convened two nationwide consultation panels to plan for upcoming referendums on constitutional reform. The first panel considered how to update the Constitution to recognise Indigenous Australians. The second considered the place of local governments in the federal constitutional scheme. The existence of two separate panels, without a clear process for the next step of providing the Parliament and people with coordinated advice about the proposals, raises natural questions. Assuming that recommendations can be found for both proposals to proceed, should the people be presented with two proposals for constitutional alteration, or just one? If not presented together, then should there be a staged process of reform, and if so, what should be its public logic? Given that there are also other issues of constitutional reform of importance to many Australians, how can the Parliament proceed with either or both of these particular issues in a way that makes public sense, rather than one open to accusations of pandering to sectional political interests, engaging in ad hoc tinkering as a political distraction, or worse?

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

Deliberative Constitutional Change in a Polarised Federation

Author(s): Ron Levy

Citizens’ Assemblies are innovative deliberative democratic processes that recommend constitutional or other key legal reforms. They are formed from 100-plus randomly-selected citizens who convene over several months to learn from experts in a particular area of public policy, and thereafter to recommend a specific law reform. In the 2010 Australian general election, the incumbent Labor government’s promise to create a Citizens’ Assembly attracted strongly unfavourable popular media responses. In contrast, this article reports empirical data showing generally high Australian levels of trust in Citizens' Assemblies and deliberative democracy. The article also engages in further analysis to search for signs that such trust varies with social demographics; marked demographic cleavages could potentially be fatal to the success of reforms. In a first set of results, the article finds surprisingly uniform trust in deliberative democracy across most demographic groups (eg, defined by age, sex, educational achievement, political party and region). However, trust in Citizens’ Assemblies, while still generally uniform, is subject to more variation, including intriguing regional, populist and other distinctions.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

A Tale of Two Questions? An Evidence-Based Argument for Coordinated Constitutional Reform in Australia

Author(s): Ron Levy

Australia recently convened two nationwide consultation panels to plan for upcoming referendums on constitutional reform. The first panel considered how to update the Constitution to recognise Indigenous Australians. The second considered the place of local governments in the federal constitutional scheme. The existence of two separate panels, without a clear process for the next step of providing the Parliament and people with coordinated advice about the proposals, raises natural questions. Assuming that recommendations can be found for both proposals to proceed, should the people be presented with two proposals for constitutional alteration, or just one? If not presented together, then should there be a staged process of reform, and if so, what should be its public logic? Given that there are also other issues of constitutional reform of importance to many Australians, how can the Parliament proceed with either or both of these particular issues in a way that makes public sense, rather than one open to accusations of pandering to sectional political interests, engaging in ad hoc tinkering as a political distraction, or worse?

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

Drawing Boundaries: Election Law and Its Democratic Consequences

Author(s): Ron Levy

This chapter delineates three conceptions of fairness in election law using the example of electoral boundary drawing. A tradition of ‘positive’ fairness in Australia and Canada – though recently challenged – is shown to be more democratically representative and coherent than ‘negative’ and ‘perfectionist’ conceptions dominant in the American election law setting.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

Judicial Selections Reform in Comparative Context

Author(s): Ron Levy

In the past two decades, many common law states have tweaked, modernized, or radically upended their methods of judicial selections, including Australia, Canada, Ireland, Israel, New Zealand, South Africa, the United Kingdom and the United States. This article reviews a number of these innovations, including public hearings and efforts to set more 'objective' methods and criteria for selections. The article focuses on the impact of reforms on cultures of judicial decision-making and selections.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

Electoral Malapportionment: Partisanship, Rhetoric and Reform in the Shadow of the Agrarian Strong-Man

Author(s): Ron Levy

This article revisits the zonal malapportionment endemic in Queensland’s electoral system before the Fitzgerald Inquiry and examines how reform was won. The process is found to be one of liberalising but not ground-breaking catch-up. Viewing Queensland’s zonal system in the larger perspective of manipulation of electoral maps, this article compares Premier Bjelke-Petersen with populist strongmen in South Australia (Playford) and Québec (Duplessis), who employed similar rhetoric to entrench themselves. Ultimately, as others had, Queensland’s agrarian chauvinism proved long-running but brittle. The Queensland example is intriguing for the paradoxes it presented. An important rhetorical component of it was the signalling of anti-democratic values inherent in the zonal system. The electoral manipulations merged pretence with openness. The pointed rejection of democratic pluralism married with the projection of an image of leadership by right. Bjelke-Petersen was proud to govern over, rather than through, democracy.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

Book Review: Reflections on Democracy and Deliberation in Australia – Australia The State of Democracy

Author(s): Ron Levy

A few years ago, the convenors of the Australian National University’s Democratic Audit asked scholars of politics and of law to report on democracy in this country. The result is Australia: The State of Democracy. Not an edited collection but an ‘audit’, the book’s three authors have synthesised contributors’ reports into a single volume in order to diagnose the ‘health’ of Australian political life. The result is a revealing fullbody scan of the body politic and the institutions sustaining it.

In this article's review of the book, the focus is on the quality of political deliberation in Australia.

Read on SSRN

Centre: CIPL, CLAH, CMSL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

Breaking the Constitutional Deadlock: Lessons from Deliberative Experiments in Constitutional Change

Author(s): Ron Levy

This work provides comparative insights into how deliberation on proposed constitutional amendments might be more effectively pursued. It reports on a new nationwide survey of public attitudes to constitutional reform, examining the potential in Australia of innovative Canadian models of reform led by Citizens’ Assemblies. Assembly members are selected at random and are demographically representative of the wider public. They deliberate over reforms for several months while receiving instruction from experts in relevant fields. Members thus become ‘public-experts’: citizens who stand in for the wider public but are versed in constitutional fundamentals. The author finds striking empirical evidence that, if applied in the Australian context, public trust would be substantially greater for Citizens’ Assemblies compared with traditional processes of change.

The article sets these results in context, reading the Assemblies against theories of deliberative democracy and public trust. One reason for greater public trust in the Assemblies’ may be an ability to accommodate key values that are otherwise in conflict: majoritarian democratic legitimacy, on the one hand, and fair and well-informed (or ‘deliberatively rational’) decision-making, on the other. Previously, almost no other poll had asked exactly how much Australians trust in constitutional change. However, by resolving trust into a set of discrete public values, the polling and analysis in this work provide evidence that constitutional reform might only succeed when it expresses, at once, the values of both majoritarian and deliberative democracy.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

Pages

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