Journal Article•
Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy
About: This article is published in Review of Metaphysics.The article was published on 1997-02-01 and is currently open access. It has received 2568 citations till now. The article focuses on the topics: Democracy.
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01 Jan 2006
2,797 citations
TL;DR: In this paper, the authors develop a framework for understanding the range of institutional possibilities for public participation, including who participates, how participants communicate with one another and make decisions together, and how discussions are linked with policy or public action.
Abstract: The multifaceted challenges of contemporary governance demand a complex account of the ways in which those who are subject to laws and policies should participate in making them. This article develops a framework for understanding the range of institutional possibilities for public participation. Mechanisms of participation vary along three important dimensions: who participates, how participants communicate with one another and make decisions together, and how discussions are linked with policy or public action. These three dimensions constitute a space in which any particular mechanism of participation can be located. Different regions of this institutional design space are more and less suited to addressing important problems of democratic governance such as legitimacy, justice, and effective administration.
1,526 citations
01 Dec 2000
TL;DR: In this paper, the authors examine the current debate about the nature of democracy and discuss the main theses of the approach called "deliberative democracy" in its two main versions, the one put forward by John Rawls, and the other one put forth by Jurgen Habermas.
Abstract: This article examines the current debate about the nature of democracy and discusses the main theses of the approach called 'deliberative democracy' in its two main versions, the one put forward by John Rawls, and the other one put forwardby Jurgen Habermas. While agreeing with them as regards to the need to develop a more of democracy than the one offered by the 'aggregative' model, I submit that they do not provide an adequate understanding of the main task of democracy. No doubt, by stating that democracy cannot be reduced to a question of procedures to mediate among conflicting interests, deliberative democrats defend a conception of democracy that presents a richer conception of politics. But, albeit in a different way thanthe view they criticize, their vision is also a rationalist one which leaves aside the crucial role played by 'passions' and collective forms of identifications in the field of politics. Moreover, in their attempt to reconcile the liberal tradition with the democratic one, deliberative democrats tend to erase the tension that exist between liberalism and democracy and they are therefore unable to come to terms with the conflictual nature of democratic politics. The main thesis that I put forward in this article is that democratic theory needs to acknowledge the ineradicability of antagonism and the impossibility of achieving a fully inclusive rational consensus. I argue that a model of democracy in terms of 'agonistic pluralism' can help us to better envisage the main challenge facing democratic politics today: how to create democratic forms of identifications that will contribute to mobilize passions towards democratic designs.;
1,338 citations
TL;DR: Public diplomacy, as the diplomacy of the public, not of the government, intervenes in this global public sphere, laying the ground for traditional forms of diplomacy to act beyond the strict negotiation of power relationships by building on shared... as mentioned in this paper.
Abstract: The public sphere is the space of communication of ideas and projects that emerge from society and are addressed to the decision makers in the institutions of society. The global civil society is the organized expression of the values and interests of society. The relationships between government and civil society and their interaction via the public sphere define the polity of society. The process of globalization has shifted the debate from the national domain to the global debate, prompting the emergence of a global civil society and of ad hoc forms of global governance. Accordingly, the public sphere as the space of debate on public affairs has also shifted from the national to the global and is increasingly constructed around global communication networks. Public diplomacy, as the diplomacy of the public, not of the government, intervenes in this global public sphere, laying the ground for traditional forms of diplomacy to act beyond the strict negotiation of power relationships by building on shared...
936 citations
Book•
05 Oct 2012
TL;DR: Tweets and the Streets as mentioned in this paper examines the relationship between the rise of social media and the emergence of new forms of protest, arguing that activists' use of Twitter and Facebook does not fit with the image of a "cyberspace" detached from physical reality.
Abstract: Tweets and the Streets analyses the culture of the new protest movements of the 21st century. From the Arab Spring to the "indignados" protests in Spain and the Occupy movement, Paolo Gerbaudo examines the relationship between the rise of social media and the emergence of new forms of protest. Gerbaudo argues that activists' use of Twitter and Facebook does not fit with the image of a "cyberspace" detached from physical reality. Instead, social media is used as part of a project of re-appropriation of public space, which involves the assembling of different groups around "occupied" places such as Cairo's Tahrir Square or New York's Zuccotti Park. An exciting and invigorating journey through the new politics of dissent, Tweets and the Streets points both to the creative possibilities and to the risks of political evanescence which new media brings to the contemporary protest experience.
911 citations
References
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TL;DR: In this article, the role of discourse in copyright debates is investigated by analysing user-directed marketing campaigns and submissions to UK government policy consultations, concluding that legitimacy claims are justified and critiqued, and that there is some hope of achieving a more legitimate policy resolution to the copyright wars.
Abstract: Digitization and the internet have posed an acute economic challenge to rights holders in the cultural industries. Faced with a threat to their form of capital accumulation from copyright infringement, rights holders have used discourse strategically in order to try and legitimate and strengthen their position in the digital copyright debate with governments and media users. In so doing, they have appealed to general justificatory principles – about what is good, right, and just – that provide some scope for opposition and critique, as other groups contest their interpretation of these principles and the evidence used to support them. In this article, we address the relative lack of academic attention paid to the role of discourse in copyright debates by analysing user-directed marketing campaigns and submissions to UK government policy consultations. We show how legitimacy claims are justified and critiqued, and conclude that amid these debates rests some hope of achieving a more legitimate policy resolution to the copyright wars – or at least the possibility of beginning a more constructive dialogue.
29 citations
DOI•
01 Jan 2014TL;DR: In this article, the authors present a case study of the Delgamuukw Dam case and the Zirahuén Dam case in the British Columbia Court of Appeal in Canada.
Abstract: ......................................................................................................................................... ii Preface........................................................................................................................................... iii Table of Contents ......................................................................................................................... iv List of Abbreviations ................................................................................................................... vi Acknowledgements ..................................................................................................................... vii Dedication ................................................................................................................................... viii Chapter 1: Introduction ...............................................................................................................1 Chapter 2: Methodology and Law ..............................................................................................9 2.1 Case studies...................................................................................................................... 14 2.2 Interviews and visits ........................................................................................................ 21 2.3 Literature review and other sources................................................................................. 25 2.4 About the researcher/author............................................................................................. 29 Part I: The Three Cases in Context............................................................................................32 Chapter 3: The Delgamuukw Case ............................................................................................37 3.1.1 Context of the Delgamuukw case.............................................................................. 39 3.1.1.1 Indigenous peoples............................................................................................. 40 3.1.1.2 Aboriginal title in Canada and British Columbia ............................................. 42 3.1.1.3 Judicial decision-making on the matter of Aboriginal title and rights in BC.... 44 3.1.1.4 The Gitksan and the Wet’suwet’en peoples ....................................................... 55 3.1.2 The claims at trial...................................................................................................... 63 3.1.2.1 Study of evidence................................................................................................ 70 3.1.2.2 The trial decision ............................................................................................... 76 3.1.2.3 The British Columbia Court of Appeal’s decision............................................. 78 3.1.2.4 The Supreme Court of Canada’s decision ......................................................... 83 Chapter 4: The Nibutani Dam Case ..........................................................................................91 4.1.1 Context of the Nibutani Dam case ............................................................................ 94 4.1.1.1 Ainu people and Japan....................................................................................... 96 4.1.1.2 The Nibutani area and the dam ....................................................................... 108 4.1.1.3 The plaintiffs .................................................................................................... 114 4.1.2 The claims in the Nibutani Dam case ..................................................................... 116 4.1.3 The Sapporo District Court’s decision.................................................................... 119 Chapter 5: The Zirahuén Case ................................................................................................128 5.1.1 Context of the Zirahuén case .................................................................................. 130 5.1.1.1 The Zirahuén Community ................................................................................ 136 5.1.1.1.1 The Zapatista Movement, the San Andrés Accords, and the constitutional reform of August 14, 2001.......................................................................................... 146 5.1.2 The claims............................................................................................................... 153 5.1.3 The decisions rendered in the case.......................................................................... 155 5.1.3.1 The Federal District Court’s decision ............................................................. 156 5.1.3.2 The Second Chamber of the Supreme Court of Justice’s decision .................. 157 Part II: Uncertainty, Misunderstanding and Subordination.................................................161 Chapter 6: Examining the Issues of Procedure in the Three Cases .....................................169 6.1 The paucity of suitable causes of action ........................................................................ 169 v 6.2 The issue of proof .......................................................................................................... 177 6.3 The lack of suitable remedies ........................................................................................ 193 6.4 The contested meaning of Indigenous peoples’ rights and uncertainty in the law ........ 202 6.5 Conclusions.................................................................................................................... 209 Chapter 7: The Rationale Behind the Law in Delgamuukw, Nibutani Dam, and Zirahuén217 7.1 ‘Reason’ ......................................................................................................................... 218 7.2 Individualism ................................................................................................................. 223 7.3 Law as an Autonomous discipline ................................................................................. 226 7.4 Autonomy and the decision in Delgamuukw ................................................................. 229 7.5 Individualism and the Nibutani Dam case ..................................................................... 233 7.6 The presumptions of the court in Zirahuén.................................................................... 234 7.7 Conclusions.................................................................................................................... 235 Chapter 8: The Principles That Guided the Decisions in Delgamuukw, Nibutani Dam, and Zirahuén ......................................................................................................................................240 8.1 The notion of sovereignty .............................................................................................. 241 8.2 The decisions in Delgamuukw, Nibutani Dam, and Zirahuén and ‘sovereignty’.......... 243 8.3 Conclusions.................................................................................................................... 258 Chapter 9: Conclusions ............................................................................................................263 Bibliography ...............................................................................................................................276 Appendices..................................................................................................................................307 Appendix A List of Individuals Interviewed .......................................................................... 307
29 citations
TL;DR: In this paper, the authors present content analysis as a method for identifying the range of civic and cultural perspectives in curricu- la. Once these perspectives are identified, social studies educators can revise curri- cula to increase inclusion and strengthen student deliberation.
Abstract: Although student delib- eration of public issues is recognized as a vital component of democratic educa- tion, little research focuses on the range of perspectives available to students during such deliberation. Social justice and legitimacy demand a wide range of inclusion, choices, and perspectives dur- ing student deliberation. This article con- trasts soft versus deliberative democratic education, where the range of perspec- tives is correspondingly narrow or broad. Unfortunately, research shows that social studies textbooks promote soft demo- cratic education by privileging dominant cultural representations, ideologies, and metanarratives of American exceptional- ity. This article presents content analysis as a method for identifying the range of civic and cultural perspectives in curricu- la. Once these perspectives are identified, social studies educators can revise curri- cula to increase inclusion and strengthen student deliberation. To illustrate this method, the author examines two sets of instructional materials. While on oppo- site sides of the ideological spectrum, the sets are similar in their narrow range of perspectives concerning controversial public issues.
29 citations
TL;DR: Ethnographic and transcript analysis reveals small group deliberation to be a two-stage process, operating according to two different discursive logics, and concludes with five lessons for theorists and practitioners of deliberative public engagement with science.
Abstract: Genomics-related "deliberative" public consultations are all the rage. Drawing from theories of deliberative democracy, run by social scientists, governments and non-profit organizations globally, these events can produce valuable insights and governance solutions. There is a danger, however, of "deliberation" being viewed by its new practitioners as a homogenous "tool" due to a marked lack of analysis of the discursive processes at play. This paper addresses this gap, employing the discourse theory of Laclau to analyze small and large group deliberation at a public consultation on biobanking in British Columbia (BC), Canada, during 2007. Ethnographic and transcript analysis reveals small group deliberation to be a two-stage process, operating according to two different discursive logics. The paper concludes with five lessons for theorists and practitioners of deliberative public engagement with science.
29 citations
TL;DR: The authors examined the dynamics of political talk across three general interest UK-based online forums and found that discussions about austerity were just as likely to emerge from non-political discussions as they were ones that began as political.
Abstract: Taking forward a new agenda for online political deliberation – the study of everyday political talk in non-political, online ‘third spaces’ – this article examines the dynamics of political talk across three general interest UK-based online forums. The quantitative analysis found that discussions about austerity were just as likely to emerge from non-political discussions as they were ones that began as ‘political’, demonstrating the links people made between everyday experiences and public policy. Our qualitative analysis represents the first real attempt to analyse political actions within third spaces, with some striking outcomes. Over half of all political discussions led to at least one political action (with significant variation between forums). The findings demonstrate that while such third spaces remain concerned with the preoccupations of everyday life, they can and do perform a role of mobilizing agent towards political participation.
29 citations