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Deliberative Democracy and the Internet: New Possibilities for Legitimising Law through Public Discourse?

Published online by Cambridge University Press:  20 July 2015

Geoffrey W.G. Leane
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Does the Internet offer the promise of a newly empowered, egalitarian public sphere more completely informing the institutions of representative democracy through an engaged and articulate public sphere? The Internet is with us now as a social fact. Its potential remains inchoate at a time when mass media, already debased as an intermediate medium for public discourse, suffers further erosion. The limitations of the Internet as a new medium for an enriched deliberative discourse are not necessarily fatal. Indeed the time may well be right. The institutional means for realising it are largely untried and controversial but not likely beyond our capabilities. In short, there is a need and a promise but not yet an active engagement. Against idealised Habermasian criteria the prospects are bleak and indeed there is danger of further fragmentation of publics. But judged against already debased modes of political discourse and the reality of the erosion of their mass media forms the prospects are perhaps not so bleak. The utopian best ought not to be allowed to crowd out the achievable good.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 23 , Issue 2 , July 2010 , pp. 373 - 401
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Copyright © Canadian Journal of Law and Jurisprudence 2010 

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References

1. See www.avaaz.org first visited 9 Sept. 2009.

2. See for example, http://www.gn.apc.org first visited 14 Sept. 2009. GreenNet is a network for environmental activists and is in turn a member of the Association for Progressive Communications (‘a global network of networks that work for peace, human rights and the environment through the use of ICTs [Information and Communication Technologies]’) and claims ‘45 member networks serving over 50,000 activists, non-profit organizations, charities and NGOs in over 133 countries’.

3. See, for example, Goode, L., Jurgen Habermas: Democracy and the Public Sphere (Ann Arbor, MI: Pluto Press, 2005) at 108 Google Scholar (paraphrasing Poster): ‘… hypertext and spatial navigation through digital media deprive traditional sources of authority of their canonical power and their ability to dictate the pathways we citizens beat through our texts.’

4. ‘Flashmobs’ ‘meet’ only briefly for a specific purpose and then disappear. Such mobs may organise at any level from the local to the global. See generally Rheingold, H., Smart Mobs: The Next Social Revolution (Cambridge, MA: Perseus, 2002).Google Scholar

5. The concept of ‘will formation’ used here incorporates the process by which citizens arrive at a collective form of action. In particular it is a process centred on open-minded, rational public argument among free and equal citizens. It is about praxis, that is to say the process through which theory, or in this case issues of public concern, move toward practical action in the form of consensus, which will in turn inform and legitimise political action. Ideally open-minded citizens will participate in reflexive debate and ultimately reach positions on the basis of meritorious argument. See, for example, Jacobsson, K., ‘Discursive Will Formation and the Question of Legitimacy in European Politics’ (1997) 20 Scandinavian Pol. Studies 69 at 70.CrossRefGoogle Scholar

6. Deliberative democracy is broadly defined for present purposes as a trade-off between direct and representative democracy in which legitimacy derives through public deliberation by citizens rather than mere voting. See further discussion in the text below.

7. United Nations Conference on Environment and Development 1992. See in particular Agenda 21 (program for implementation)—for example, at ch.8.4 (f) ‘Ensuring access by the public to relevant information, facilitating the reception of public views and allowing for effective participation.’

8. Froomkin, M., ‘[email protected]: Toward a Critical Theory of Cyberspace’ (2003) 116 Harv. L. Rev. 749 at footnote 15CrossRefGoogle Scholar (quoting Habermas): ‘[T]he discourse theory of law conceives constitutional democracy as institutionalizing—by way of legitimate law …—the procedures and communicative presuppositions for a discursive opinion—and will—formation that in turn makes possible … legitimate lawmaking.’

9. Rosenfeld, M. ‘Law as Discourse: Bridging the Gap Between Democracy and Rights’ (Book Review of Between Facts and Norms by Habermas, Jurgen) (1994-1995) 108 Harv. L. Rev. 1163 at 1163.CrossRefGoogle Scholar

10. See, for example, Margolis, M., Moreno-Riano, G., The Prospect of Internet Democracy (Burlington, VT: Ashgate, 2009) at 2.Google Scholar

11. Ibid. at 11.

12. See, for example, Etzioni, A. & Carney, D., eds., Repentance: A Comparative Perspective (Totowa, NJ: Rowman & Littlefield, 1997) at 10.Google Scholar

13. See, for example, McLaughlin, L., ‘Feminism and the political economy of transnational public space’ in Crossley, N. & Roberts, J., eds., After Habermas: New Perspectives on the Public Sphere (Oxford: Blackwell, 2004) 156 at 168Google Scholar, envisaging the creation of ‘a transnational consciousness oriented to cosmopolitan solidarity,’ ‘an emerging transnational civil society [pioneered by NGO’s] presaging the development of ‘world citizenship’.’

14. Note again that Agenda 21, the implementation program formulated in Rio de Janeiro at the UN Conference on Environment and Development 1992, demonstrates the ambition if not the means for such public awareness on environmental issues. It sought to empower and engage a variety of affected groups such as women, youth, workers, farmers and so on (Section III) and to promote implementation through inter alia education, public awareness and training (Section IV). The framers could hardly have imagined the explosive growth in the Internet which was to follow and the possibilities it offered for furthering the ambitions of Agenda 21 and of environmental movements generally.

15. See, for example, www.techworld.com; www.gartner.com (visited 10 Sept. 2009).

16. Ibid.

17. www.Internetworldstats.com (visited 10 Sept. 2009).

18. See, for example, The Economist (18 Dec. 2008) quoting computer ownership data (from the International Telecommunications Union). Rates of computer ownership per 100 people in 2006 varies from above—50 in most developed nations to around 12-14 in less developed nations such as Romania, Russia, Namibia, Mexico. More than one third of expected growth will be in the emerging markets of China, Russia and India.

19. Supra note 17.

20. Ibid.

21. J. Bohman, ‘Expanding dialogue: The Internet, the public sphere and prospects for transnational democracy’ in N. Crossley, J. Roberts, supra note 13 at 134.

22. Goode, supra note 3 at 97.

23. The IPCC was established in 1988 under the auspices of two UN agencies—the World Meteorological Association and the UN Environment Program. Its periodic Assessment Reports claim to represent a consensus of the international scientific community.

24. For a interesting anecdotal account of the difficulties facing The New York Times see Bowden, M. ‘The Inheritance’ Vanity Fair (May 2009) 114 (for example, at 165 Google Scholar ‘[t]he invention of the Internet has caused a fundamental shift not just in the platform for information—screen as opposed to paper—but in the way people seek information. In evolutionary terms, it’s a sudden drastic change of climate.’).

25. Goode, supra note 3 at 95.

26. McLaughlin, supra note 13 at 157.

27. An extreme example would be the television, publishing and advertising interests of Italian Prime Minister Berlusconi.

28. See, for example, Jacobsson, supra note 5 at 75.

29. Ibid. (quoting Habermas).

30. For example, Habermas requires that status of participants is disregarded, that the discourse goes to issues of common concern, and that the discourse be open to all affected ( Habermas, J., The Structural Transformation of the Public Sphere (Cambridge, MA: MIT Press, 1989) at 36–35.Google Scholar

31. On the other hand Hauser specifies an issue-based public sphere that is judged against criteria of inclusivity, active rather than passive engagement, communication that is intelligible to participants, an appearance of believability to those inside and outside the discourse, and tolerance of alternative opinions ( Hauser, G., Vernacular Voices: The Rhetoric of Publics and Public Spheres (Columbia: University of South Carolina Press, 1999) at 64.Google Scholar

32. See, for example, Habermas, J., ‘Further Reflections on the Public Sphere’ in Calhoun, C., ed., Habermas and the Public Sphere (Cambridge, MA: MIT Press, 1992) 421 at 437Google Scholar: Therewith emerged a new sort of influence, i.e. media power, which, used for purposes of manipulation, once and for all took care of the innocence of the principle of publicity. The public sphere, simultaneously prestructured and dominated by the mass media, developed into an arena infiltrated by power in which, by means of topic selection and topic contributions, a battle is fought not only over influence but over the control of communication flows that affect behaviour while their strategic intentions are kept hidden as much as possible.

33. Bowden, supra note 24 at 168.

34. The issue was raised by the author Michael Crichton in a 1993 edition of Wired magazine—see Woolf, M., ‘Politico’s Washington Coup,’ Vanity Fair (August 2009) at 46 Google Scholar, reporting on a Washington D.C. website that offers very detailed political reporting more or less ‘as it happens’ thereby reducing the news cycle to 15-20 minutes from around 48 hours for newspapers and 24 hours for television.

35. Isaacson, W, ‘How the Save Your Newspaper,’ Time Magazine (Feb. 2009).Google Scholar

36. Recently in the U.S., for example, the Rocky Mountain News and the Seattle Post-Intelligencer (gone exclusively online), both almost 150 years old; the Christian Science Monitor (100 years old) has gone exclusively online; the Tribune Company (owner of a variety of newspapers including the Los Angeles Times and Chicago Tribune); the Cincinnati Post closed in 2007.

37. Note that advertising revenues for US newspapers have been falling dramatically—see, for example, Perez-Pena, R., ‘Newspaper Ad Revenue Could Fall as Much as 30%’ The New York Times, 15 April 2009 Google Scholar. One estimate is that 2009 advertising revenues (in constant 2009 dollars) will be the lowest since 1965 ( Chittum, R., ‘Newspaper Industry Ad Revenue at 1965 Levels’ Columbia Journalism Review (19 Aug. 2009)Google Scholar, available online at http://www.cjr.org/.

38. Goode, supra note 3 at 105. Similarly (at 106) ‘ … the democratic imagination demands that we do not demonise large-scale and professionalised media simply because they do not conform to the Socratic ideals which are often assumed to enjoy a monopoly on virtue in Habermasian thought ….’

39. See, for example, Allott, P., ‘The Concept of International Law’ (1999) 10 European J. Int’l L. 31.CrossRefGoogle Scholar

40. Heng, M. & Moor, A. de, ‘From Habermas’ communicative theory to practice on the Internet’ (2003) 13 Information Systems J. 331 at 339 (quoting Habermas).CrossRefGoogle Scholar

41. Smith, G., Deliberative Democracy and the Environment (New York: Routledge, 2003) at 56 CrossRefGoogle Scholar (quoting Benhabib).

42. Gimmler, A., ‘Deliberative Democracy, the public sphere and the Internet’ (2001) 27 Phil. & Social Criticism 21 at 22.CrossRefGoogle Scholar

43. ‘Crowd’ is used to describe any group who can act collectively to make decisions and solve problems. Certain preconditions are necessary to achieve crowd intelligence—that it be diverse, decentralized (rather than led), be composed of independent people, and have ways of summarizing opinions into a verdict ( Surowiecki, James, The Wisdom of Crowds Q & A at www.randomhouse.com visited 20 Oct. 2009 Google Scholar). The argument is that the Internet ‘opens the door to a new world of democratic idea generation and collaborative production,’ though successful models are those ‘carefully designed for a particular task and when the incentives are tailored to attract the most effective collaborators’ ( Lohr, S., ‘The Crowd is Wise (When It’s Focused)’ The New York Times (18 July 2009 Google Scholar). The Internet enhances the possibilities for ‘smart’ outcomes by providing exponentially increasing network links between participants for information gathering and social coordination. There is also the possibility of aberrant outcomes (for example, from socially undesirable actors and irrational market behaviours creating stock market bubbles). Democracy itself aspires to such crowd intelligence.

44. From the literature see, for example, Slaughter, Anne-Marie, “The real new world order” (1997) Foreign Affairs 5 Google Scholar; Slaughter, Anne-Marie, A New World Order (Princeton, NJ: Princeton University Press, 2004)Google Scholar; Anderson, Kenneth, “Book Review: Squaring the Circle? Reconciling Sovereignty and Global Governance through Global Government Networks: A New World Order by Slaughter, Anne-Marie” (2005) 118 Harv. L. Rev. 1255 Google Scholar; Alvarez, Jose, “Do Liberal States Behave Better? A Critique of Slaughter’s Liberal Theory” (2001) 12 European J. Int’l L. 183 CrossRefGoogle Scholar; Suh, Don, ‘Situating Liberalism in Transnational Legal Space” (2002) 12 Duke J. Comp. & Int’l L. 605 Google Scholar; Marks, Susan, “The End of History? Reflections on Some International Legal Theses” (1997) 3 European J. Int’l L. 449.CrossRefGoogle Scholar

45. Even manual voting systems have their problems, not only in less-developed democracies but, for example, in the American elections of 2004 and the debacle of vote counting in Florida.

46. Barber, B., ‘Book Review, Sunstein, C., Republic.com 112 Ethics 866 at 869.CrossRefGoogle Scholar

47. Kristoff, N., ‘The Daily Me’ International Herald Tribune (19 March 2009)Google Scholar citing evidence that self-selecting political groups of the likeminded tend to become more extreme in their views and consequently more polarized and less tolerant—precisely the opposite of what deliberative democracy calls for. See also Sunstein, C., Republic.com (Princeton, NJ: Princeton University Press, 2001) at ch.1.Google Scholar

48. Sunstein, ibid at 8-9.

49. Ibid. at 16.

50. Barber, supra note 46 at 867.

51. See, for example, Habermas, J., ‘Political Communication in Media Society: Does Democracy Still Enjoy an Epistemic Dimension? The Impact of Normative Theory on Empirical Research’ (2006) 16 Communication Theory 411 at n. 3CrossRefGoogle Scholar (‘In the context of liberal regimes, the rise of millions of fragmented chat rooms across the world tend instead to lead to the fragmentation of large but politically focused mass audiences into a huge number of isolated issue publics.’).

52. Goode, supra note 3 at 100.

53. Ibid. at 96—Goode writes ‘imagined’ in the sense that there is little or no direct sensory connection to most of our fellow citizens—we deal with an absent public, as opposed to (say) conversations in Habermas’ eighteenth century (or indeed today’s) coffee houses. Goode also says that electronic communicative media can at least ‘facilitate quasi-interaction and imagined bonds with absent others’ (ibid. at 130) [original emphasis].

54. Smith, supra note 41 at 59.

55. Ibid. at 58.

56. Ibid. at 73.

57. Ibid.

58. For a response see, for example, ibid. ch.4. Possible general directions include radical decentralisation of politics, ‘appropriate scale’ regarding the relevant political community for particular problems, reform of legislatures (re marginalised groups and for example, proxy representation of non-human nature). Specifically Smith offers 3 alternative models—mediation and stakeholder group engagement (at 81), citizen forums (at 86) and citizen initiative and referendum (at 93). Oddly Smith does not consider the possibilities of the Internet, discussed below in the text. Note, however, (at 98, quoting Saward) he acknowledges that ‘direct democracy need not … be face-to-face democracy; it does not depend upon the capacity of the members of the political unit to gather in one place to make decisions ….’ Computer-mediated communication will by implication suffice.

59. See Heng & de Moor, supra note 40, for an example of such approaches.

60. Ibid. at 349 (quoting an anonymous reviewer for this very useful phrase).

61. See, for example, Bohman, supra note 21 at 140 regarding the ability of corporations to assert power and control by ‘creating inaccessible and commercial spaces within networks by the use of firewalls and other devices commercial and monetary interactions among corporations and anonymous consumers.’ Similarly (at 141, quoting Sassen) ‘[w]e are at a particular historical moment in the history of electronic space when powerful corporate actors and high performance networks are strengthening the role of private electronic space and altering the structure of public electronic space.’ … (at 141) ‘we are now in a period of the development of the software and hardware of the Internet in which the nature of the Web is at issue’ [emphasis added].

62. Ibid.

63. Krasner, S., ‘Structural Causes and Regime Consequences: Regimes as Intervening Variables’ in Krasner, S., ed., International Regimes (Ithaca, NY: Cornell University Press, 1983) 1 at 2.Google Scholar

64. For example, albeit one not publicly funded, the Bill & Melinda Gates Foundation in the U.S. is ‘ … helping U.S. libraries provide the free, reliable computer and Internet access that will allow patrons to make meaningful contributions to society’—see http://www.gatesfoundation.org/libraries/.

65. Bohman, supra note 21 at 138.

66. Heng & de Moor, supra note 40 at 342.

67. Ibid. 341-50.

68. Again climate change is a good example—although at the time of writing there has evolved a strong scientific and political consensus on the reality of global warming a controversy has arisen over the apparent sup Pression of flawed data (see, for example, Pearce, F., ‘Leaked climate change emails scientist ‘hid’ data flaws’ The Guardian (1 Feb. 2010 Google Scholar), Pearce, F., ‘Climate change emails between scientists reveal flaws in peer review’ The Guardian (2 Feb. 2010).Google Scholar

69. Supra note 61.

70. Heng & de Moor, supra note 40 at 339.

71. For example, Froomkin, supra note 8 at 872: ‘ … the Internet as a whole is not some freestanding public sphere filled with transformed denizens who will magically drop the attitudes, practices, and objectives that shape our familiar institutions of government.’

72. See earlier discussion. There are various definitions, for example, in Emirbayer, M. & Sheller, M., ‘Publics in History’ (1998) 27 Theory & Society 727 at 738CrossRefGoogle Scholar (quoted in Crossley & Roberts, supra note 13 at 16): the public sphere represents open-ended flows of communication that enable socially distant interlocutors to bridge social-network positions, formulate collective orientations, and generate … ‘working alliances,’ in pursuit of influence over issues of common concern. Publics are not simply ‘spaces’ or ‘worlds’ where politics is discussed … but, rather, interstitial networks of individuals and groups acting as citizens. States, economies, and civil societies may all be relatively ‘bounded’ and stable complexes of institutions, but publicity is emergent.

73. Indeed one author claims (in respect of Habermas) that ‘there is no plausible alternative model to rational and uncoerced discourse as the normative basis for democracy’ (Gimmler, supra note 42 at 23).

74. For example, Roberts & Crossley, supra note 13 at 2.

75. Ibid. at 4.

76. See, for example, McLaughlin, supra note 13 at 158.

77. Ibid. at 158 (quoting Habermas).

78. Ibid.

79. See, for example, Froomkin, supra note 8 at 759.

80. Ibid. at 768 (defining false consciousness as the inability of people ‘ … to figure out what is best for them, either because of cognitive shortcomings or because the nature of their society warps their understandings’).

81. Social solidarity being a scarce resource in complex societies according to Habermas—see, for example, Jacobsson, supra note 5 at 73.

82. Rosenfeld, supra note 9 at 1180.

83. Allott, supra note 39 at 37 defining International Law as ‘ … the self-constituting of all-humanity through law. It is the actualizing through law of the common interest of international society, the society of all societies.’

84. Generally for Habermas ‘the ‘lifeworld’ of a given society at a given time in history is the sum of commonly shared assumptions, beliefs, customs, and practices so deeply embedded that they remain unquestioned … [it] thus provides a massive background consensus against which normative questions arise’ (see Rosenfeld, supra note 9 at 1172).

85. Ibid. at 1175. See also Froomkin, supra note 8 at 769.

86. Rosenfeld, supra note 9 at 1175.

87. Ibid. at 1172.

88. See, for example, ibid. at 1169.

89. Froomkin, supra note 8 at 765.

90. Ibid. at 771.

91. Froomkin, supra note 8 at 771. See also (at 776, quoting Habermas): ‘ … we are concerned with finite, embodied actors who are socialized in concrete forms of life, situated in historical time and social space, and caught up in networks of communicative action.’

92. Ibid. at 773.

93. Ibid. at 774.

94. Rosenfeld supra note 9 at 1169.

95. Supra note 23.

96. Heng & de Moor, supra note 40 at 340.

97. Bowden, supra note 24 at 165.

98. Habermas, supra note 51 at 423.

99. See, for example, Jacobsson, supra note 5 at 76.

100. Some say not—see, for example, Bohman, supra note 21 at 131. See also Sunstein, supra note 47 generally.

101. Froomkin, supra note 8 at 755.

102. See infra notes 106 and 107 for examples in the literature.

103. Though the two terms are often confused, a ‘smart mob’ is a self-organising group enabled by technology such as computer mediated communication (any communication transaction occurring through two or more networked computers). It empowers individuals and, it is claimed, exhibits intelligent and/or efficient behaviour by virtue of its exponentially increasing network links with other participants. They may of course be used for socially beneficial or detrimental purposes. ‘Flash mobs’ ‘meet’ only briefly for a specific purpose and then disappear. Such mobs may organise at any level from the local to the global. See generally Rheingold, supra note 4.

104. See, for example, Fishkin, J., Democracy and Deliberation (New Haven, CT: Yale University Press, 1991).Google Scholar

105. Froomkin, supra note 8 at 855-56 (‘ … documenting the existence of a real-life, transnational discourse that substantially meets the demanding conditions of Habermas’ best practical discourse’ in reference to the Internet Engineering Task Force (which sets the basic technical standards that define Internet functions). He speculates ‘ … about how emerging Internet technologies might enable new types of Internet-based discourses with the ‘communicative power’ Habermas proposes and, in time, educate and mobilize citizens to demand their governments make better and more legitimate decisions’). He similarly claims (at 871) that ‘ … conditions in cyberspace are ripe for the construction of a critical theory of how decisions might be made in a globalized society.‘ [emphasis added].

106. Heng & de Moor, supra note 40 at 340-44.

107. Gimmler, supra note 42 at 32, re gubernatorial elections in Minnesota and (at 33) re the Association for Progressive Communications (a civil society association ‘which has created a ‘network of networks’ and worldwide maintains affordable servers for the use of all civil society associations and, above all, NGOs’ and ‘ … illustrates how the internet can be used as a space for deliberation within an international public sphere.’ Similarly (at 33-34) the Association for Progressive Communications is said to ‘give both parties to an issue the opportunity to present their positions along with supporting arguments, evidence and reasons why they hold the view they do.’

108. See, for example, Putman, R., ‘Bowling Alone: America’s Declining Social Capital’ (1995) 6 J. Democracy 65.Google Scholar

109. Froomkin, supra note 8 at 755.

110. Paraphrasing from Roberto Mangabeira Unger, The Boutwood Lectures, Corpus Christi College, Cambridge University, Second lecture: ‘The transformation of experience’ (available at http://www.law.harvard.edu/faculty/unger/english/docs/corpus2.doc, visited 11 Feb. 2010).

111. Barber, supra note 46 at 869.

112. Froomkin, supra note 8 at 855-56.