Rhetoric and Reality: Going Beyond Discourse Ethics in Assessing Legislative Deliberation

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Abstract:

Political science has recently devoted some attention to the study of legislative deliberation. But it has reached no consensus about the basic concepts and approaches for investigating such deliberation. We identify four distinct normative perspectives in the legislative deliberation literature, and give particular attention to two of them—one that focuses on a debate's compliance with expectations of discourse ethics, and one that focuses on the substantive adequacy and intelligence of its consideration of policy issues. We consider the major comparative study by Steiner, Bachtiger, Sporndli and Steenbergen (2004) to clarify its relation to the various perspectives. We then discuss the challenges and possibilities for the perspective concerned directly with the intelligence of deliberation in more detail. In the largest part of this article, we provide an overview of our own work employing this perspective, presented in our recent book, Deliberative Choices: Debating Public Policy in Congress. Finally, we make brief comments on how our methods—and in contrast, those of Steiner, ea.—pertain to the performance of the lower chamber in a parliamentary democracy. In the end, we seek to vindicate the possibility and indeed centrality of an approach that assesses legislative deliberation primarily for its ability to deal accurately and intelligently with the realities of public policy.
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  • Legisprudence aims at contributing to the improvement of legislation by studying the processes of legislation from the perspective of legal theory. The content of the journal covers legislation in a broad sense. This comprises legislation in both the formal and the material sense (from national and European parliaments, regulation, international law), and alternatives to legislation (covenants, sunset legislation, etc.). It also takes in regulation (pseudo-legislation, codes of behaviour and deontological codes, etc.). The journal is theoretical and reflective. Contributions to the journal make use of an interdisciplinary method in legal theory. Comparative and system transcending approaches are encouraged. Sociological, historical, or economic studies are taken into account to the extent that they are relevant from the perspective of interdisciplinary legal theory. Dogmatic descriptions of positive law are not taken into consideration.
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