Conclusion

Evidently from Canada, Australia to Taiwan, a recent global trend that focuses on citizen deliberation has emerged. It is not yet clear, however, whether this trend of citizen deliberation on constitutions would be a success. Against a now prevailing model of citizen deliberation, this paper argues for an alternative: constitutional deliberations by citizens of social groups. This new alternative would undermine neither rationality nor impartiality sought by deliberative democracy. To the contrary, deliberative process based upon social groups would benefit greatly from the strength and energy of citizens in their respective social groups –rather than overburden each and every isolated citizen at his or her own home. It would also ensure the extent of social mobilization that is necessary to motivate concerned citizens and enlarge public discussion. Besides theoretical and practical reasons, constitutional deliberation by citizens of social groups offers a rather fluid and pluralist picture of constitutional regime that is inevitable in the age of transnational constitutionalism.

98 Chung-yeh Deng & Chia-ling Wu, Civic Groups Forum: Implications to Public Participation in New Democracy, 1 TAIWANFOUNDATIONS FORDEMOCRACY35 (2004). (Chinese article w. English abstract)

99 The introduction of this forum and its results are available at http://www.21cra.org.tw/

附錄：出席國際會議發表論文

在本計畫所通過之出席國際會議差旅費的資助下，申請人參與2007年6月 11-15日國際憲法學會(International Association of Constitutional law)於希臘雅典 所舉行第七次年會，提出論文並獲該次年會接受，於「制憲之人民參與」(Popular involvement in Constitution-making)場次中發表。

國際憲法學會為目前國際憲法學界中唯一且最重要的學會，1999年在荷蘭舉 行的第五次年會首次有多位臺灣憲法學者的參與，2003年於聖地牙哥舉行年會卻 很可惜地並沒有任何臺灣學者發表論文。此次在本計畫經費補助下，能參與該次 會議，並與來自各國憲法學者認識、交流，殊為難得。

在與作者同一場次發表的論文中，理論及比較研究兼有，學者更來自加拿 大、美國、南非、臺灣、尤其有許多非洲國家之憲法學者就其新近之制憲經驗作 報告，使作者比較視野擴增，也增加將來跨國合作的機會，受益良多。

茲將申請人於該次國際會議發表之論文附如下頁。

Changing Faces of Deliberating Citizens

-A Thesis for Social

Groups-Wen-Chen Chang^

[Table of Content]

I. Forward...2

II. Nature & Paradox of Deliberative Democracy ...5

A. Deliberative Democracy v. Representative Democracy ...6

B. Deliberative Democracy v. Popular Sovereignty ...7

III. Democratic Deliberation & Citizens of Social Groups...8

A. Problematic Deliberation among Citizens of Strangers ...9

B. Deliberations among Citizens of Social Groups ...11

1. Public Sphere with Citizens of Social Groups ...11

2. Concept of Social Groups: Thick or Thin? Static or Fluid? ...13

3. Voluntary Nature of Social Groups & Civic Organizations ...15

C. Defense against Critics...16

D. Constitutional Deliberation v. Policy Deliberation...18

IV. Conclusion ...19

I. Forward

Most constitutions were deliberated and enacted by representative assemblies.

Some recent ones were deliberated in representative assemblies but enacted with public votes.¹ Very few constitutions, if any, were deliberated popularly before enactment. This is perhaps for two reasons: practical and normative. Practically, it is nearly impossible for such a large group to deliberative on anything, least an abstract and fundamental document called a constitution. Normatively, a constitution rarely demands such a popular deliberative act for its validity and legitimacy. Against such common understandings, however, a recent discourse has risen to emphasize the relationship between a constitution and popular deliberation.

On a theoretical front, scholars of deliberative democracy have been outspoken in criticizing the problematic concept of aggregative democracy and proclaiming the

Assistant Professor, College of Law, National Taiwan University; JSD, Yale Law School

1 Vivien Hart, Democratic Constitution Making, Special Report 107, United States Institute of Peace (2003), available at http://www. usip.org/(accessed January 14, 2005)

fundamental legitimacy of democratic deliberation.² As fundamental as constitutional governance, it must not be established upon force or disingenuous consent but instead upon a rational, reciprocal deliberation process by which all agree.³ In this way, the thesis of deliberative democracy is more than the theory of legitimacy, and

deliberative democrats have begun to engage in intensive dialogues with theory of justice, communitarianism, popular sovereignty, rule of law, or even new institutional economics.⁴

Similarly in practice, various forms of deliberation, in particular public deliberation, have been installed in recent exercises of constitution making or

constitutional reforms. For instance, the role of constitutional convention was stressed in the constitution making of European Union. Public consultations were utilized successfully in South Africa’s 1997 Constitution.⁵ Carefully designed citizen deliberative polling® was tried several times in Australia on amending proposals of constitution acts.⁶ Mostly radically, a citizen assembly was formed in British

Columbia of Canada to take up deliberative role and make constitutional amendment proposals that were traditionally at the hand of a parliament.⁷ As it seems, a so-called

“deliberative turn”in modern democracy and constitutionalism has taken hold.⁸ Despite earned acceptance, deliberative democrats still confront serious challenges. Practically, the extent to which citizens were engaged in deliberative process was put into question. The use of public consultation in both South Africa and European Union was seen as rather ceremonial. Many young people showed

2 See e.g. AMYGUTMANN& DENNISTHOMPSON, WHYDELIBERATIVEDEMOCRACY? (2004).

3 See e.g. Jon Elster, Deliberation and Constitution Making, in DELIBERATIVEDEMOCRACY 97-122 (1998); Anne van Aaken, Deliberative Institutional Economics, or Does Homo Oeconomicus Argue? A Proposal for Combining New Institutional Economics with Discourse Theory, in

DELIBERATION ANDDECISION: ECONOMICS, CONSTITUTIONALTHEORY ANDDELIBERATIVE DEMOCRACY(Anne van Aaken et al eds., 2004).

4 See generally SEYLABENHABIB, DEMOCRACY ANDDIFFERENCE: CONTESTING THEBOUNDARIES OF THEPOLITICAL(1996); James Bohman & William Rehg, DELIBERATIVEDEMOCRACY: ESSAYS ON REASON ANDPOLITICS(1997); Jon Elster ed., DELIBERATIVEDEMOCRACY(1998); Anne van Aaken et al eds., DELIBERATION ANDDECISION: ECONOMICS, CONSTITUTIONALTHEORY ANDDELIBERATION DEMOCRACY3-32 (2004).

5 Christina Murray, A ConstitutionalBeginning:Making South Africa’sFinalConstitution,23 UNI. ARKANSASLITTLEROCKL. REV.809 (2001).

6 James Fishkin, Deliberative polling®: toward a better informed democracy, at http://cdd.stanford.edu/polls/docs/summary/#results

7 http://www.citizensassembly.bc.ca/public

8 The term of “deliberative turn”appeared in JOHNS. DRYZEK, DELIBERATIVEDEMOCRACY AND BEYOND: LIBERALS, CRITICS, CONTESTATIONS(2000).

ignorance about what was going on and the less educated expressed frustrations.⁹ In cases where deliberative process was carefully designed to ensure the quality of pubic engagement, they would have to limited to only certain number of citizens. The help from the media or internet in enlarging or disseminating deliberative discourse was rather trivial.¹⁰ The ideal of deliberation day¹¹ –albeit with the potential in resolving aforementioned technical constraint–remains as utopia. The greatest practical

challenge above all is the effectiveness of democratic deliberation regarding its

end-result. The questions of effectiveness include whether democratic deliberation has any impacts on its final product –a constitution–and whether a constitution whose birth is through democratic deliberation is more effective in its abidance and successful in its governance.¹²

Theoretical challenges to deliberative democrats are multifold. First, they are criticized as misunderstanding law and politics. Opponents maintain that it is political authority capable of making a founding decision stands at the core of establishing constitutions.¹³ Political masses, popular mobilization and in some cases passion were what historically created –even legitimized–any existing polity.¹⁴ Secondly, the thesis of deliberative democracy frustrates the division of labor between political institutions –based upon reasons and representatives–and political will –based upon powers and the people–. Third, by merely highlighting citizens in discursive process, deliberative thesis underestimates the role of social groups and labor unions in a plural polity with socio-economic complex.¹⁵ Last and perhaps strongest is the criticism that citizen deliberation –no matter how carefully designed its process–may

9 For the discussion of South Africa, see Christina Murray, supra note. For the critics of European Constitution making process, see Neil Walker, Europe’s constitutional momentum and the search for political legitimacy, 3 I-CON INT’LJ. CON. L. 211 (2005).

10 Almost everywhere, citizen conferences were only covered by local public televisions and their own established websites whose watching and reading audience was very limited.

11 BRUCEACKERMAN& JAMESFISHKIN, DELIBERATIONDAY(2004).

12 Stefan Voigt, The Consequences of Popular Participation in Constitutional Choice –Towards a Comparative Analysis, in DELIBERATION ANDDECISION: ECONOMICS, CONSTITUTIONALTHEORY AND DELIBERATIVEDEMOCRACY199- 229 (Anne van Aaken et al eds., 2004).

13 CARLSCHMITT, GEORGESCHWAB TRANS., POLITICALTHEOLOGY: FOURCHAPTERS OF THE CONCEPT OFSOVEREIGNTY(1985, 2005).

14 Id. at 30-31.

15 See e.g. IRISM. YOUNG, INCLUSION ANDDEMOCRACY(2000).

never deliver what it promises but merely polarizes those with opposing views¹⁶ and even discourages them from participating in politics.¹⁷

With mounting pressure, deliberative democrats must find new ways to defend their thesis and rejuvenate their position. Some revisions are necessary. This essay does not –certainly cannot–tackle all above challenges. Rather, given the sustained belief in deliberative democracy, it attempts at reconstructing the ways that citizens are to be understood in constitutional deliberations. The pre-existing links between citizens and their political/social/economic/cultural/ethnical identities must be

formally recognized and reckoned with in deliberative process. In other words, citizen deliberation on constitutions should be understood as citizens of various

political/social/economic/cultural/ethnic groups (hereinafter “

social group”) coming and deliberating together in a reciprocal fashion on fundamental constitutional choices. In so doing, neither rationality nor impartiality sought by deliberative democracy would be jeopardized. To the contrary, deliberative process based upon social groups would benefit greatly from the strength and energy of citizens in their respective social groups –rather than overburden each and every isolated citizen at his or her own home. It would also ensure the extent of social mobilization that is

necessary to motivate concerned citizens and enlarge public discussion.

In the following essay, I shall first explain why it is better to have citizens of various social groups –instead of isolated citizens–in public deliberation of constitutions. Then I shall argue its institutional advantages and defend potential disadvantages and challenges from classical views of citizen deliberation. Last, I shall hope to advocate a pluralist constitutional regime that is implied in my design and is inevitable in the age of transnational constitutionalism.¹⁸

II. Nature & Paradox of Deliberative Democracy

16 Cass Sunstein, Group Judgments: A Statistical Means, Deliberation and Information Market, 80 N. Y. U. L. REV. 962 (2005); Cass Sunstein, Deliberating Trouble? Why Groups Go to Extremes, 110 YALEL, J. 71 (2000).

17 DIANAC. MUTZ, HEARING THEOTHERSIDE: DELIBERATIVE VERSUSPARTICIPATORY DEMOCRACy (2006).

18 Jiunn-rong Yeh & Wen-Chen Chang, From Origin to Delta: Changing Landscape of Modern Constitutionalism, paper draft available athttp://law.bepress.com/expresso/eps/1815.

A. Deliberative Democracy v. Representative Democracy

The idea of deliberative democracy affirms the need to justify decisions in any polity.¹⁹ Counting heads or aggregative voting is not considered as a valid or legitimate way of making decisions. Reasons accessible to all must be given in

mutually respectful fashion. In this sense, deliberative democracy does not necessarily require any public, popular or citizen deliberation. So long as a deliberative process is undertaken, it is not a concern whether a decision is made by representatives or more popularly by the people. As Gutmann & Thompson make it clear,

“what makes deliberative democracy democratic is an expansive definition of who is included in the process of deliberation– an inclusive answer to the questions of who has the right (and effective opportunity) to deliberate or choose the deliberators, and to whom do the deliberators owe their justifications.”

²⁰

Hence, deliberative democracy is not necessarily popular or direct democracy. In focusing on reasoned decisions, however, a potential link exists between deliberative democracy and popular democracy. For, it remains considerably paranoid for

deliberative democrats that representatives, therefore the deliberators, are chosen by mere preferences or even powers while their decisions must justified by reasons. After all, representatives obtain mandates to make decisions for all. The indirect link

between the people and decisions made by representatives suffices neither that the people cannot be deliberators nor that decisions made by representatives need not be justified to the people.

In order to ease this tension, two kinds of solution are offered by deliberative democrats. One way is to add deliberative elements in election process by which the people choose their representatives –future deliberators. For instance, a deliberative polling® was held with the aide of the Center for Deliberative Democracy directed by James Fishkin before a British general election.²¹ In Taiwan, an experimental citizen deliberative conference was conducted before the city and county mayor election in 2005.²² Ackerman & Fishkin advocate for a national day of deliberation before

19 Amy Gutmann & Dennis Thompson, supra note, at 3.

20 Id. at 9-10.

21 James Fishkin, supra note.

22 The introduction and analysis of the event is provided by Taiwan Think Tank, available at http://www.taiwanthinktank.org/ttt/servlet/OpenBlock?Template=Article&lan=tc&category_id=55&art icle_id=519(visited April 1, 2007).

people go to the poll for next elections of Congress and President.²³ The other way is to have citizen deliberations on major policies as supplements for representative deliberative decision making. Public consultation, citizen conferences, citizen juries or deliberative polling® exemplifies some of ways in which the rational and

legitimate deficit of representative democracy may be rescued by extended

deliberations into those who are ultimately bound by public decision making. In this way, deliberative democracy works like participatory democracy –despite the difference being that the latter emphasizes participatory power from the people while the former focuses on supplementary reasons offered by citizens.

In what other more direct ways, then, would deliberative democracy find its popular element? Or whether deliberative democracy has any popular root?

B. Deliberative Democracy v. Popular Sovereignty

Jürgen Habermas, a great thinker of our time, is perhaps the first to link

expressively deliberative politics into popular sovereignty.²⁴ Mindful of Schimttian critique that separates politics from law,²⁵ Habermas argues for an internal link between law and politics, that is, discursive politics.²⁶ He further defines popular sovereignty as procedure in that popular sovereignty embodied in public discourse would “

mediate between reason and will, between the opinion-formation of all and the majoritarian will-formation of the representatives”

.²⁷ To justify popular

sovereignty as the fundamental source of legitimacy in modern constitutional states, Habermas relies upon a popular discourse by which a collective judgment is made through a reciprocally reason-giving process. The normative foundation of “We the People”thus comes from the discursive act of the people in forming their own polity but not from their decisive act.

It is in this Habermasian sense that constitutional decisions must be more akin to popular deliberation than normal policy decisions. Modern constitutions, no matter made by parliaments or by direct popular votes, must ground ultimately their

23 BRUCEACKERMAN& JAMESS. FISHKIN, DELIBERATIONDAY(2004)

24 Jürgen Habermas, Popular Sovereignty as Procedure, in DELIBERATIVEDEMOCRACY: ESSAYS ONREASON ANDPOLITICS35-65 (James Bohman & William Rehg eds., 1997)

25 Carl Schmitt, supra note.

26 JÜRGENHABERMAS, WILLIAMREHG TRANS, BETWEENFACTS ANDNORMS: CONTRIBUTIONS TO DISCOURSETHEORY OFLAW ANDDEMOCRACY133-151 (1998).

27 Jürgen Habermas, supra note [Popular Sovereignty as Procedure], at 49.

legitimacy in this popular discursive act in order to resolve the fundamental paradox between human rights, democracy and popular sovereignty.²⁸

Another link between public deliberation and constitutions is found in contractual theory of modern constitutional democracies.²⁹ In contractual terms, modern constitutions are justified by consents. Public deliberation developed by discourse theory rescues such a fundamental contract from being deceitful or

hypocritical. Procedural requirements by deliberative democrats are seen as external constraints upon which all parties enter into contract on equal and reciprocal terms.

While contractual theorists may maintain that social contract is reached as a result of outcome-oriented utility, procedural utility during contractual process ensure a successful decision making process without which contract cannot be reached.³⁰

There also exists a rather practical reason why popular deliberation should be emphasized even in the context of institutions being trusted to decision making.

According to him, “

it is because the institutions are designed in such a way that representatives normally do not want to expose themselves to the criticism of their voters.”

³¹ Thus it is no surprise that Habermas has labored considerably to advocate citizen deliberation for European constitution making while knowing that it is only to be ratified by separate governments.³²

Thus, it is fair to conclude that public deliberation –the embodiment of popular sovereignty in both political and normative senses–generates a primary source of legitimacy in constitution making but delivers supplementary legitimacy in ordinary policy making. The latter is supposed to be confined by a rather classical division of labor between representatives and their voters. The remaining issue, however, is how should this “public discursive act”be properly understood, designed or even realized.

Is popular deliberation necessarily citizen-based deliberation? Is it possible for this public deliberation to be institutionalized or to have relations with formalized institutions? Should we distinguish public deliberation in constitution making from that in policy context? How exactly should this line be drawn?

III. Democratic Deliberation & Citizens of Social Groups

28 Id. at 48-9.

29 Anne van Aaken, supra note.

30 Id. at 17.

31 Jürgen Habermas, supra note, at 60.

32 Jürgen Habermas, Remarks on Dieter Grimm’s “Does Europe Need a Constitution?”,1 EUR. L. J. 303 (1995).

A. Problematic Deliberation among Citizens of Strangers

In the beginning of this essay, I have mentioned a recent trend in incorporating public deliberation into constitutional process. Public consultations in European Union and South Africa, deliberative polling® in Australia and citizen assembly in Canada were mostly cited practices. Intriguingly however, in all these cases, “

the public”called on for deliberation included only “ citizens”

. Citizens scattered and isolated at their own homes were invited to submit their proposals or comments on constitutional drafts and at times called up to ask whether they would like to spend one day or two –or even several weekends–to join in a randomly selected group for deliberation.

Having received sufficient information prepared and articulated by experts and engaged in reciprocal reason-giving conversations, some citizens have completed with better understandings of debated issues and consequentially change their minds.³³ Their confidence and interests in engaging in public debates and civil activities are once again reestablished, and a genuine sense of citizenship is felt.³⁴

Others may not. According to recent studies done by political and social

psychologists, having exposed to opposing views may have a silencing effect on those who are initially uncertain about their own views or do not feel strongly about them.

Worse yet, it is discovered that some people, having realized the fact that others hold very strongly views against their own, may begin feeling not very enthusiastic to discuss them in fear of social confrontation or undermining harmonious relationships.

Certain distancing effects or even retreating from political conversations and active political participations appears at times as a result of being exposed to opposing views.³⁵ In addition, Cass Sunstein has contended that group polarization and information cascade as detrimental to deliberative process.³⁶ In some cases, deliberating groups end up in a more extreme position in line with their tendencies before deliberation. It is because people receive and process better views or facts they are originally oriented at. The phenomenon of information cascade points to the fact

Certain distancing effects or even retreating from political conversations and active political participations appears at times as a result of being exposed to opposing views.³⁵ In addition, Cass Sunstein has contended that group polarization and information cascade as detrimental to deliberative process.³⁶ In some cases, deliberating groups end up in a more extreme position in line with their tendencies before deliberation. It is because people receive and process better views or facts they are originally oriented at. The phenomenon of information cascade points to the fact

在文檔中 憲法變遷的公民審議：全球化脈絡下的台灣實踐 (頁 35-54)