How not to open contemporary democracies to citizen dialogue.

Abstract

In this contribution I analyze some central arguments from Roberto Gargarella's book, Law as a conversation between equals. I focus first on the diagnosis of the current crisis of democracy that Gargarella traces back to structural features of the original institutional design that was established in the 18th century and that contemporary constitutional democracies have inherited, in particular, the system of checks and balances and the system of political representation. Regarding both features, I question the plausibility of assuming continuity with the elitist and antidemocratic assumptions of the 18th century without analyzing the development in the two subsequent centuries of party democracy, which is what currently prevails in all democratic societies. Second, I analyze the proposals offered in the book for opening contemporary democracies to citizen dialogue through the proliferation of various types of deliberative mini-publics. Although I agree that these democratic innovations are very promising, I argue that proposals to empower such mini-publics to make political decisions on behalf of citizens, far from opening democracies to citizen debate, would generate yet another shortcut with which to exclude the citizenship of the debate on the decisions that affect them. Finally, I discuss some arguments from the book about the relationship between democracy and human rights.