Using Habermas’s terms, the application discourse (which takes place inside the courts) and the justification discourse (which is affected by social dialogue and interaction taking place
(hereinafter, ‘Harris’). This case can be used to show how the interaction between officials and citizens can be improved. (This is Postema’s type-two interaction as discussed in the previous section.)
In the case of Harris, the judges re-affirmed an established principle by finding that sexual harassment was an instance of discrimination. In addition, Justice Ginsburg elaborated a reciprocal test: “[t]he critical issue, as Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”
After the Supreme Court established that sexual harassment constitutes discrimination, Harris built on this definition by outlining “a framework that is capable of providing for dynamic interactions between general legal norms and workplace-based institutional innovation.” At the same time, the court refused to substantively define what constitutes sexual harassment. It provided affirmative defense for the defendant companies that had done their best to
institutionalize an effective internal protection scheme to prevent sexual harassment and fair dispute resolution mechanisms, in cases of real offense.
Harris is significant and, indeed, could legitimately serve as a demonstrative case where court decisions could empower and guide better social interaction to derive social norms by establishing legal principles while not providing substance for the construction of the principle.
Courts could further provide incentives to the affected parties to actively search for outside help to meet the requirement of the law. Such a guideline is significant, since it directs attention to the examination of patterns of interaction and to other organizational, social, and cultural factors that may twist an interactional pattern into one that is biased but unnoticed.
In the Harris case and subsequent cases, the courts, while refusing to define what constitutes a hostile environment of sexual harassment have provided companies with an affirmative
defense if they “exercised reasonable care to avoid harassment and to eliminate it when it might occur.” Together, the courts have fostered both the need and an incentive for companies to open themselves to outside intermediaries, like lawyers, consultants, non-profit organizations, and insurance companies: the premise is that this kind of exposure would help the companies to institutionally regulate and prevent sexual harassment and the courts have encouraged or demanded that companies implement effective procedures for settlement of internal
sexual-harassment claims. In this way, better practices should become more prevalent, since institutional internal data are accessible to intermediaries who would presumably be able to fully understand the problem. The pooling and the sharing of information, knowledge and experience among intermediaries has also improved society’s focus on the issue.
20 See supra note 2.
outside the courts) can be mutually enhanced by the courts initiating a relationship between the two and providing principled guidance for such interaction. Harris is just one model that can be used to establish a successful co-original relationship between the public and private sectors, in the sense of court adjudication. Innovative ways to further the co-originality cause is by no means limited by the Harris model.
IV. Efforts of Institutional Building for Co-originality
Harris is one institutional example that could enhance the thesis of co-originality. Its theoretical as well as institutional meaning is worth exploring. Especially, for discourse theory, the institutional level is not simply a stage of realization for the theory. Discourse theory is critically dependent on the performance intention of and the real communication conducted within a dialogic structure that needs to be objectively examined and evaluated.
“For the justification of moral norms, the discourse principle takes the form of a universalization principle. To this extent, the moral principle functions as a rule of argumentation. Starting with the general
presuppositions of argumentation as the reflective form of communicative action, one can attempt to elucidate this principle in a formal-pragmatic fashion.”21
Alexy and Peczenik provided the concept of discursive coherence. This is worth considering as one of the criteria for a structural evaluation of communication.22 The idea of discursive coherence is intended to be an improvement on Dworkin’s idea of coherence,23
Discursive coherence evaluates the degree of coherence by its observable supporting structure of statements: “The more the statements belonging to a given theory approximate a perfect supportive structure, the more coherent the theory.”
which may be understood to be deliberative. Dworkin’s theory requires that judges select the interpretation that sheds the best light on the law or makes it the most meaningful as a whole. This would apply during the stage of selecting relevant precedent sequences for the case at hand and later when the judge conducts the argument of justification.
24Generally speaking, the more that statements support a theory, the more coherent the theory; the longer the chain of reasons
belonging to a theory, the more coherent the theory; the more statements belonging to a theory are strongly supported by other statements, the more coherent the theory.25
21 BFN, 109.
22 See Alexy and Peczenik, 1990, The Concept of Coherence and Its Significance for Discursive Rationality, Ratio
Juris, Vol. 3, pp. 130-47 (1990). See also Peczenik, A., 1994, Why Shall Legal Reasoning be Coherent?
ARSP-Beiheft, Vol. 53 pp. 179-84.
23 Alexy and Peczenik, 1990, 131.
24 Id.
25 Id., 131-35; other factors include: number of conclusions which are supported by the same premise belonging to
This article believes that these criteria are important to not only gauge the effectiveness of authentic communication but also to evaluate the level of legitimacy of the decisions reached from claims made during authentic communication. In the Harris model, the communication of different claims would also be important for judges to consider when adjudicating related cases.
Certainly, in an internet world, assuming these discussions would be conducted over the internet and be accessible to the courts. The institutional design of these real communications, whether an online dispute resolution, e-rulemaking, or for other e-participation settings, is being actively pursued in academic circles, as discussed in the following sections. Theoretical guidance, like an improved co-originality thesis, and institutional design principles derived from Harris and discursive coherence are vital for the success of these new academic endeavors.
Sturm’s concept of multi-partiality26
Multiple perspectives do exist in the social world; their existence should be treated as a virtue and not a vice. We need an institutional design in which every perspective can be considered and be subjected to thoughtful examination. Such examination should be an obligation. In other words, we could build participatory accountability that requires “ongoing examination and justification to participants and a community of practitioners”.
is also relevant here. Multi-partiality challenges the monopoly of detached neutrality as the basis of legitimacy in the legal world. The latter represents an aspect of a persistent internal legal premise that the decision maker, such as a judge, must be detached and neutral to both parties in the case at hand. However, the process of deriving social norms through the interaction of the public as represented by various groups and by individuals as representative of the social world, lacks the relevant legitimacy base. Sturm suggests multi-partiality as a possible solution. Certainly, Sturm’s challenge also goes deeper. Not only is detached-neutrality under dispute, but she also confronts the unitary concept of the law based on a dominant internal legal point of view. Law-making ought to be by the cooperation of and interaction between state-made laws and social normative derivation processes. These two law-making processes are co-original.
27 It is inevitable that these participants may very well hold different perspectives due to their different professional
experiences, academic disciplines, or values. Those involved with conflict resolution should also
“subject their analysis to the scrutiny of their peers and to explain and justify their choices as part of doing their work.”28
the theory in question; number of priority relations between the principles related to the theory; number of reciprocal empirical relations between statements belonging to a theory; number of reciprocal analytic relations between statements belonging to a theory; number of reciprocal normative relations between statements belonging to a theory; statements without individual names a theory uses; number of general concepts belonging to a theory, and the higher their degree of generality; resemblances between concepts are used within a theory;
concepts a given theory has in common with another theory; number of individual cases a theory covers; fields of life a theory covers. id., 135-42.
26 Sturm and Gadlin, 2007, Conflict Resolution and Systemic Change, Journal of Dispute Resolution, Vol. 2007:3, pp.
1 – 63.
27 Id., 4.
Multi-partiality therefore opens up a new source for the cultivation of
public norms; these public norms can derive from sources other than the traditional adjudication process.
“They also emerge when relevant institutional actors develop values or remedies through an accountable process of principled and
participatory decision making, and then adapt these values and remedies to broader groups or situations. ADR can play a significant role in developing legitimate and effective solutions to common problems and, in the process, produce generalizable norms.”29
Intermediaries are persons or organizations that function as bridges to connect different social networks. They can successfully bridge seemingly dichotomous groups such as the public and the private, the legal and the non-legal, the general and the contextual, and the coercive and the cooperative. Intermediaries can serve a vital function because they can pool information or knowledge and they can filter the context of the interaction without being influenced by embedded cultural, social, or organizational factors. The intermediaries usually build up their working relationships with multiple social networks in the institution. These long-standing connections provide the basis for communication and mutual understanding. The strength of the intermediaries who work within an organization lies in the fact that they can counteract the obstacles such as traditional institutional practices. They have access to external intermediaries, whether organizations or individuals, and can pool information, thus obtaining cross-contextual perspectives.
Another aspect of Sturm’s theory is her contention that the involvement of intermediaries, both individual and institutional, is critical. Though more empirical research is needed, it is certain that in any community where social dialogue takes place, there will be obstacles. We cannot merely hope that multi-partiality will be successful.
30
One of the deliberative democracy research communities is also actively pursuing the institutional issues associated with deliberative democracy. At the end of this section, Landwehr’s recent works
31
Landwehr first points out that “[t]he success of deliberative democracy has in the last two decades shifted the focus of democratic theory, and increasingly also of empirical political
is examined based on the discussion in this paper.
29 Id., 3.
30 These discussions of Sturm’s ideas are based on her three empirical studies published in Sturm, S., 2001 (empirical study of three major American corporations’ effort to invite outside help to build internal infrastructure for sexual harassment prevention and dispute resolution); Sturm, S., 2007 (empirical study of the dispute resolution center inside the American Institute of Health (NIH) to resolve internal conflicts); and Sturm, S., 2006, the
Architecture of Inclusion: Advancing Workplace Equity in Higher Education, Harvard Journal of Law & Gender, Vol. 29:2, pp. 247-334 (empirical study of the ADVANCE program administered by the American National Science Foundation (NSF) to advance workplace equity in Higher education).
31 See Landwehr, C., 2010, Discourse and Coordination: Modes of Interaction and their Roles in Political Decision-Making, The Journal of Political Philosophy, Vol. 18:1, pp. 101–22; and Landwehr and Holzinger, 2010,
science, from matters of aggregation and regulation towards communication.”32 Landwehr believes that as decision-making processes always involve both informative and distributive aspects, we need to do justice to both discursive and coordinative issues involve in these processes. The informative aspects incline the decision-making process towards discourse; the decisions reached will inevitably have a distributive impact on the affected people; this tends to drive the decision-making process toward coordination. This theory criticizes Habermas’s discourse theory as it emphasizes discourse but lacks the coordination dimension. “In rare cases, coordination may be achieved through argumentation alone.”33
“to use a notion … that is neither as normatively charged as Habermas’s, which entails strong requirements of equality and freedom from coercive power, nor as
encompassing as the Foucauldian. I suggest to describe interaction as discursive in so far as it has both public and dialogical qualities.”
Regarding the discursive dimension, Landwehr prefers
34
A less rigid discursive requirement could, Landwehr believes, provide room for coordination, where reciprocity based on the basic principle of tit-for-tat reigns.
35
To develop her balanced approach toward incorporating both discourse and coordination, Landwehr conducted an empirical study of two forums in Germany. These were constituted in response to an ethical debate of stem-cell research which had been triggered by a neurobiologist at the University of Bonn who submitted a proposal to the German Research Foundation in August 2000 for a research project using imported ES cells. One forum was a German
parliamentary debate, which was celebrated as one of the parliament’s finest hours; the other was a citizens’ conference modeled after the Danish consensus conferences. The Speech Act
Analysis (SAA) techniques were adopted to examine the hypothesis: “[t]he more discursive and coordinative communicative interaction is, the more preference change is likely to occur.”
36
This could be considered to be pioneering research. Landwehr found that the Bundestag debate did not qualify as discourse as it lacked dialogical interaction. The sequence of speakers was pre-determined according to the number of signatories and members took turns to speak, resulting in the division of speakers and listeners. The content of the speeches was typical of public monologue and the speeches were dominated by words such as ‘to ASSERT’ and ‘to
32 Landwehr, C., 2010, 101.
33 By being closer to discourse or coordination, Landwehr describes a total of four ideal-typical modes of interaction: discussion, deliberation, bargaining and debate. Id., 102-4.
34 Id., 105. Baechtiger also finds one type of deliberation research now that is more flexible to the forms of dialog, emphasizing more on outcome than process; unlike the deliberation research approach based on Habermasian discursive logics. See Baechtiger, Niemeyer, Neblo, Steenbergen and Steiner, 2010, Symposium: Toward More Realistic Models of Deliberative Democracy. Disentangling Diversity in Deliberative Democracy: Competing Theories, their Blind Spots and Complementarities, The Journal of Political Philosophy, Vol. 18:1, pp. 32–63.
35 Id., 105-7. However, Landwehr also notices a recent change in Habermas to leave more rooms for
non-deliberative and non-democratic modes of political interaction, so long as the overall discursive structure remains both deliberative and democratic. Id., 119. See also the Habermas’s work that Landwehr cites: Habermas, J., 2006, Does Democracy Still Enjoy an Epistemic Dimension? Communication Theory, Vol. 16, pp. 411–26.
ESTABLISH’.37 The citizens’ conference took place after the Bundestag had made the decision on the stem-cell matter which significantly reduced the coordinate nature of the forum.38
The dialogical structural and formal research is especially important for the measurement of the legitimacy of the end result reached by the local public spheres. Such research is also critical to evaluate further decisions made by local authorities, courts and administrative bodies in response to the dialogic efforts of social political interactions. An example of this is in the context or e-rulemaking. If there is participation on the internet dialogue platform with people commenting and arguing about the rule-making proposal of an administrative agency, then the result reached by the dialogic public ought to be binding on the administrative agency which would be obliged to amend the rule accordingly. In essence, co-originality makes us understand that decisions reached by a dialogic community may have two public consequences at the same
In light of the discussion of the co-originality thesis and associated institutional
improvement, this article raises two issues worthy of further investigation. First, as demonstrated in Landwehr’s study, legislative procedures are not ideal for empirical communicative studies.
The maxim for scientific investigation is that if the problem is divided into manageable-sized portions, there is a higher likelihood of success. The highly strategic and indeterminate nature of legislative issues exacerbates the difficulties of such a study; it is difficult to anticipate
reasonable results for the accumulation of information. For this reason, this article focuses more on governance, especially the interaction between the public authority (mainly the courts in this paper), and its mutually related public communities. Authentic communication in the local public spheres which deal with better defined and delimited issues may provide discursive experiences that are easier to analyze.
Second, the co-original nature of public and private autonomy between courts and its social counter-parts, as revealed in this article, may significantly reduce the academic burden of
analyzing real dialogical communities. To mix the dialogical and coordinative dimensions in the study of a forum seems to blur the data by placing the two dimensions in a bipolar relationship. It may also be more difficult to exchange interpretations of the findings. In short, observing how a group conducts dialogue and how members of the group bargain with each other to reach joint decisions tends to lose the focus of our study.
Actually reaching a decision is not always desirable. If we can find out the structural determinants of a true multi-partiality public norm derivation process, we can know whether the end result of the political interaction, no matter whether a decision is reached or not, has a legitimate basis. Alexy and Peceznik’s concept and criteria of discursive coherence have made a significant contribution to our progress in this area. We certainly will debate the question of what structural formation provides us with the confidence to affirm the legitimacy of the dialogic efforts and to what extent this occurs. It is anticipated that such arguments will result in progress.
37 Id., 389-90.
time; one is internal in nature and has to do with whether participants of the dialogue ought to accept and follow the decision reached; the other is public in terms of the impact of the decision and to what extent it ought to influence or change the other, especially formal organizations in their public decision making. There ought to be correspondence between the quality of the dialogue and its public influence.39
Though the introduction of the internet brought tremendously high hopes, so far, it has not brought about any major changes at the macro level, compared with other media.
V. The Internet and Law-Making -- Conclusion
40 From a bottom-up and dialogical point of view, which is what this paper emphasizes, e-participation is a general field with multiple approaches and use of different software tools. It is a field that is attracting great interests and it is showing rapid development.41 Applications with a specific purpose, like e-rulemaking,42 online dispute resolution,43 e-petitioning,44 etc. also keep progressing.45
Overall, it is appropriate for Habermas to coin the discourse theory as a paradigm, following
Overall, it is appropriate for Habermas to coin the discourse theory as a paradigm, following