Motivation

Certain theories of legal authority hold that (certain) law are (under certain conditions) authoritative at least in part because they are the outcome of democratic deliberation. Some theories of deliberative democracy think that the fact that a law was the result of democratic deliberation is a reason that the law is authoritative. A full-blown coherentist, pragmatic theory of democracy might treat democratic ratification as a necessary and sufficient condition for legal authority. Standing opposite such a theory are objective theories of authority that argue that the balance of reasons for any particular law are never changed by the outcomes of democratic deliberation. Between these two positions stand mixed theories that treat democratic deliberation as a certain sort of reason to treat a given law as authoritative but that maintain that there is also a balance of reasons that can be ascertained independent of this reason. See Henry Richardson, Our Call: The Constitutive Importance of the People’s Judgment, J. OF MORAL PHIL., available at http://www1.georgetown.edu/departments/government/programs/speakerseries/27718.html. I am interested in the accounts of authority generated by these mixed theories. Typically, these theories of deliberative democracy think that democratic deliberation is a reason to treat a law as authoritative because deliberation among people with divergent views generates outcomes closer to the true balance of reasons, or because it helps individual people better understand their own preferences, or it allows people to modify their individual preferences to make their preferences somehow “better” (e.g., more rational, by eliminating preference intransitivity). (Of course, there are other reasons that deliberative democracy may be good aside from providing reasons that laws are authoritative—for instance, deliberation may make people more cooperative with one another, may improve friendships, etc.)
Social psychological findings about deliberation point in a very different direction. Empirical data indicate that democratic deliberation may: increase intra-group homogeneity, increase the prevalence of extreme political opinions, and increase inter-group polarization. See David Schkade, Cass Sunstein, and Reid Hastie, What Happened on Deliberation Day?, JOHN M. OLIN L. & ECON. WORKING PAPER NO. 298, June 2006, http://ssrn.com/abstract_id=911646. In non-political settings, deliberation can also lead to higher error rates. See id. Deliberation can lead to cognitive errors through information availability influences, a desire to be perceived favorably by other group members, increased confidence brought about by agreement with others, and a desire to be perceived as a group member. Motivation crowding may also lead people to set aside their original preferences in order to develop more politically expedient preferences once they begin to seek approval from other group members, thereby further strengthening the possible homogeneity effect of deliberation.
This should be of major concern to deliberative democracy theorists. First, the fact that deliberation can introduce such preferences indicates that it may not better realize individuals preferences, much less the Truth. On the mixed account of deliberation and authority, democratic deliberation may lead to laws that are, according to the balance of non-democratic reasons, better or worse, depending on the situation. This implies that care must be taken in describing deliberation that is appropriately democratic, because different background conditions for deliberation will result in different results from deliberation. A more overarching problem is that it appears impossible to have a truly theoretically neutral deliberative framework. Framing effects will always influence the sort of outcomes that deliberation produces (e.g., including only a certain city, including a state, including a country, or including the whole world). This suggests that some political commitments must preexist any commitment to deliberation, and that there are certain political commitments for which democratic deliberation cannot provide reasons.