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Deliberative Essay

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Deliberative democracy denotes a normative model of democracy that rests on the belief in the persuasive power of systematic argumentations and resolutions reached in public debates and in the central role of understanding-oriented communicative action. Thus, this model of democracy is intimately connected with the discourse theory of philosopher Jürgen Habermas.

On an ideal level, Habermas defines deliberative democracy as a third kind of democracy, different from the liberal and republican models but integrating aspects of both. The main distinction among these three types of democracy bears on the role assigned to the democratic process. The deliberative model of democracy draws on the conditions of communication, under which it is assumed the political process tends to generate reasonable results, because the process takes place in a deliberative manner. Like the republican model, the deliberative model places emphasis on the process of forming the political opinion and will but does not consider a collectively acting citizenry as a condition for the realization of deliberative politics. This kind of politics depends instead on the institutionalization of the required procedures.

Discourse theory stresses the intersubjectivity of the understanding processes, which take place in parliamentary consultations and within the communication network of political publics. The informal process of opinion formation flows into institutionalized decision making and legislative resolutions, which transform the communicatively generated power into administrative power. Like the liberal model, deliberative democracy respects the demarcation between state and society. However, society is not considered to be a market-based plurality of private interests that the political process aggregates. Civil society is a base for autonomous publics and in this sense differs both from the economic handling system and the public administration. As in the republican model, solidarity plays a central role as a social integrative power, which should develop through autonomous publics and constitutional procedures of democratic opinion formation, and which should be able to withstand the influences of money (economic system) and the administrative power (political system).

According to discourse theory, the communicative conditions for the democratic formation of opinion and political will function as an important channel for the wide-ranging rationalization of decisions, which are made by the law-bound government and administration. Rationalization is more than just legitimization, as in the liberal model, but also less than constitution of power, as in the republican model. It is only the political system that can “act,” not the society as a collective subject.

Though the society cannot govern by itself, it can direct the administrative power into specific channels. The political public is a differentiated arena in which the decentered society detects, identifies, and deals with social problems. In this sense, there is no need to concretely define the subject of sovereignty. The interpretation of the sovereignty of the people is intersubjective: It continues to exist, but it becomes anonymous and retreats to the democratic procedures and legal implementation of its ambitious communication requirements in order to assert itself as a communicatively generated power. From this discourse-theoretical perspective, the political system is not the society’s summit, nor its center, nor its structure-giving model, but it is instead only one of many handling systems.

Related to Habermas’s approach, many conceptualizations and some concretizations of deliberative democracy have been developed. They all refer to an “ideal . . . association whose affairs are governed by the public deliberation of its members,” as noted by Joshua Cohen in his 1989 article “Deliberation and Democratic Legitimacy,” and they share some characteristics: Deliberative democracy is a normative and procedural model. It describes how democracy should be based upon a specific communicative procedure. Although public deliberation requires some necessary conditions (e.g., equality among free citizens) and is oriented to specific ends (common good), the deliberative dimension is the theory’s pivotal point. Free deliberation is conceived as a communicative process that disposes of a transformative character. It stresses neither the importance of giving due weight to each individual’s distinct preferences (as in the liberal model), nor the ethical validity of the outcomes. As David Miller notes in his 1993 article “Deliberative

Democracy and Social Choice,” it rather “relies upon a person’s capacity to be swayed by rational arguments and to lay aside particular interests and opinions in deference to overall fairness and the common interest of the collectivity” (77).

As a normative model, deliberative democracy is situated on a high level of abstraction and lacks depth to give the concept concrete form. It is based on a communicative and cooperative conception of human nature. As for its implementation, even when given the ambitious conditions for a widely open and free deliberation over “rational arguments,” it is difficult to imagine how the influence of “nonrational” aspects, such as emotions and status, on this process can be avoided. Moreover, the model delivers no clear criteria for the “rationality” and “reasonability” of arguments. Its emphasis on the desirability of a genuine understanding in the context of a free and open communication in which all citizens are involved are its main merits.


  1. Bächtiger, André, Marco R. Steenbergen, and Simon Niemeyer. “Deliberative Democracy: An Introduction.” Swiss Political Science Review 13, no. 4, (2007): 485–496.
  2. Benhabib, Seyla, ed. Democracy and Difference. Contesting the Boundaries of the Political. Princeton: Princeton University Press, 1996.
  3. Cohen, Joshua. “Deliberation and Democratic Legitimacy.” In The Good Polity, Normative Analyses of the State, edited by Alan Hamlin and Philip Pettit, 17–34. New York: Basil Blackwell, 1989.
  4. Elster, John, ed. Deliberative Democracy. Cambridge: Cambridge University Press, 1998.
  5. Fischkin, James S. Democracy and Deliberation: New Directions for Democratic Reform. New Haven:Yale University Press, 1991.
  6. Habermas, Jürgen. “Drei Modelle der Demokratie.” In Die Einbeziehung des Anderen. Studien zur politischen Theorie, by Jürgen Habermas, 277–292. Frankfurt am Main, Germany: Suhrkamp, 1996.
  7. Faktizität und Geltung. Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats Frankfurt am Main, Germany: Suhrkamp, 1992.
  8. The Legitimation Crisis of Late Capitalism, translated by T. McCarthy. Boston, Mass.: Beacon Press, 1975.
  9. Theorie des Kommunikativen Handels. Zur Kritik der funktionalistischen Vernunft. Frankfurt am Main, Germany: Suhrkamp, 1981.
  10. “Three Normative Models of Democracy.” In Democracy and Difference: Contesting the Boundaries of the Political, edited by Seyla Benhabib, 21–30. Princeton: Princeton University Press, 1996.
  11. Held, David, ed. Prospects for Democracy: North, South, East,West. Cambridge: Polity Press, 1993.
  12. Miller, David. “Deliberative Democracy and Social Choice.” In Prospects for Democracy: North, South, East,West, edited by David Held, 74–92. Cambridge: Polity Press, 1993.
  13. Mutz, Diana C. “Is Deliberative Democracy a Falsifiable Theory?” Annual Review of Political Science 11 (2008): 521–538.

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Many legal theorists and political philosophers – among them John Rawls, Ronald Dworkin, Amy Gutmann, Dennis Thompson, and Joshua Cohen – believe that decision making through deliberation is a normative ideal that yields both better laws as well as a positive transformation in its participants. They further have assumed the judiciary is perhaps best equipped to realize this kind of “deliberative democracy,” and that the courts can effectively provide an example for other, less deliberative branches of government to follow. This essay argues, however, that judicial deliberation is both more complicated than is assumed by these theorists and also embodies a kind of deliberation different in nature than the one we would expect in a deliberative model. Indeed, contributions from social science suggest that judges are strategic (and oftentimes political) actors, and that their “deliberations” are more like akin to bargaining than reasoned exchanges. In addition, the products of judicial decision making – the courts’ opinions – often fail to reflect true deliberative reasoning. Thus, the judiciary might in many ways be less deliberative than its sister branches. This is not to say that judicial processes cannot be modified to become more deliberative – and therefore more normatively desirable -- but it does suggest that the assumption that the courts provide a deliberative model for other decision makers to follow might be based on a romanticized view of judicial processes, rather than on the way judges actually behave. This conclusion has, moreover, strong implications for the feasibility of deliberation as a decision making mechanism.

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