At the Irish Jurisprudence Society (IJS) Symposium, the second paper was delivered by Dr Darren O’Donovan (UCC) who spoke on The Role of Rights in Furthering Democratic Decision-Making: The Fruitful Conflict between Deliberative Democrats and Critical Race Theorists. Many threads were interwoven into a fascinating cloth. Against the background of the protection of the rights of the travelling community, UK and ECHR case-law concerning the banning of veils and burqas in schools, and special needs education, he strove for participation as a principle for the implementation of rights and and the re-invigoration of a human rights culture. These practical considerations grounded an analysis of two competing perspectives, deliberative democracy as represented by Juregen Habermas and John Rawls, and critical race theory as represented by Iris Marion Young and Melissa Williams. His basic position is that law should be based on a realistic understanding of human behaviour, and that the consequential limits of the law should be properly appreciated. From the abstract:
In deliberative theory, the aim of law, and human rights in particular, is to remove coercion and inequality from democratic decision-making, so that the only influence is the force of the better argument. Much of the work of both deliberative democrats and their critics falls upon the possibility of this ideal consensus. On the other hand, for many critical race theorists and feminists, the emphasis upon consensus fails to account adequately for the rupturing effect of racism and cultural marginalisation. Recently, however, some critical race theorists have adopted empirical approaches to identify the cognitive and affective biases which distort citizens’ ability to shift from an ‘I to we’ perspective in considering questions of justice. These developments provide a measured and co-ordinated account of the difficulties of including minority and excluded perspectives in an impartial public debate.
If human rights are to fulfil their function of integrating minorities and their interests at both national and local levels, an examination of the barriers to genuine consensus must be carried out. From the European Court of Human Rights to constitutional courts around the world, great emphasis has been placed upon statutory schemes involving elaborate consultation and renewed procedures which require decision-making to ‘consider’ or ‘weigh’ human rights. In this analysis, there are common themes: in the context of structural inequalities and entrenched relations of power, how much should be put up for debate? And how frequently does the implementation of human rights through consultation and participation collapse into empty process rather than improved democratic engagement?
Deliberative democracy has at its core a pragmatic circularity: the fundamental position that democracy and rights are co-original and co-dependent. This represents deliberative democracy’s greatest strength, in offering the possibility for revision in the light of actual contexts and exclusions. For lawyers, the picture which emerges is a need to continue to reflect on the role of law in furthering both rights, and mechanisms such as civil society engagement and consultation, in shaping an inclusive, democratic public sphere.