The All-Affected Principle has an important status in recent theoretical discussions on democracy. According to the principle, all who are affected by a decision should have a right to participate into making it. The principle is supposed to ground the right or optimal boundaries of democratic decision-making units. This paper is basically a critique of the principle. In the first parts of the paper, the All-Affected Principle is distinguished from some related principles. However, even a more precise version of the (...) principle is still troubled by ambiguities. It is argued that Robert Goodin’s expansive reading is the only coherent one. However, if it is accepted, the principle cannot be used for its original purpose. The last parts focus on some largely unexamined aspects of the principle. First, the principle also works as a means of exclusion, not only of inclusion. Second, if, as the principle says, participation rights are based on interests, it is by no means obvious that these rights should be equal. Third, the principle cannot provide us with a non-institutional starting point. Nevertheless, a much weaker form of the principle may be plausible. (shrink)

I give a pragma-dialectical reconstruction of the role of teleological-evaluative argumentation referring to goals and values in the justification of judicial decisions. I establish the role and place of this form of argumentation in complex forms of justification in which the argumentation interacts with other forms of legal argumentation. I will do this by integrating the insights from legal theory and legal philosophy into a pragma-dialectical framework for the analysis and evaluation of argumentation.

This study addresses the deliberative democracy from a critical perspective, highlighting the benefits of the deliberative turn. Among the deliberative democracy’s benefits the study includes: community-generating power, improving the accuracy of decisions, democratic legitimation of political power, democratic accountability, shaping policy by market-testing, informing public policy process. But beyond deliberative democracy advantages which are recognized by most scholars, it still remains the issue of the possibility of real-world deliberative democracy. The study presents a number of possibility conditions for deliberative democracy (...) and several models of deliberation that can be extended. We particularly discuss the deliberative democracy’s scale problem. The most important research questions in the present study are: How do we go from micro to macro-deliberation? Who is entitled to a say? What counts as good discourse and deliberation? How citizen deliberation can have consequences in democratic practice? The main idea is that deliberative democracy in practice implies a rethinking of politics and its feasibility is part of its desirability. (shrink)

Sartori (1970) warned a long time ago of the danger of concept stretching for effective and cumulative theory building. Such concept stretching has happened with regard to deliberation, which has become a very faddish term. For theoretically well-founded empirical research it is better conceptually to distinguish clearly between strategic bargaining and deliberation, although in the empirical political world the two concepts are usually heavily intertwined. Keywords deliberation; concept stretching; strategic bargaining.

There are two basic views concerning the relationship between constitutional rights and proportionality analysis. The first maintains that there exists a necessary connection between constitutional rights and proportionality, the second argues that the question of whether constitutional rights and proportionality are connected depends on what the framers of the constitution have actually decided, that is, on positive law. The first thesis may be termed ‘necessity thesis’, the second ‘contingency thesis’. According to the necessity thesis, the legitimacy of proportionality analysis is (...) a question of the nature of constitutional rights, according to the contingency thesis, it is a question of interpretation. The article defends the necessity thesis. | A previous version of this article was published in Chinese Yearbook of Constitutional Law, Vol. 2010, 221–235. (shrink)

Dva su osnovna shvatanja odnosa između ustavnih prava i analize proporcionalnosti. Prvo drži da postoji nužna veza između ustavnih prava i proporcionalnosti; drugo tvrdi da pitanje o tome da li su ustavna prava i proporcionalnost povezani zavisi od toga šta su ustavotvorci zapravo odlučili, tj. zavisi od pozitivnog prava. Prva teza se može označiti kao “teza o nužnosti”, druga se može označiti kao “teza o kontingentnosti.” Prema tezi o nužnosti, legitimnost proporcionalnosti je pitanje prirode ustavnih prava, dok je prema tezi (...) o kontingentnosti legitimnost proporcionalnosti pitanje tumačenja. U članku se zastupa teza o nužnosti. | Prethodna verzija ovog članka je objavljena u Chinese Yearbook of Constitutional Law (2010). 221–235. (shrink)

Theoreticians of deliberative democracy have sometimes found it hard to relate to the seemingly contradictory experimental results produced by psychologists and political scientists. We suggest that this problem may be alleviated by inserting a layer of psychological theory between the empirical results and the normative political theory. In particular, we expose the argumentative theory of reasoning that makes the observed pattern of findings more coherent. According to this theory, individual reasoning mechanisms work best when used to produce and evaluate arguments (...) during a public deliberation. It predicts that when diverse opinions are discussed, group reasoning will outperform individual reasoning. It also predicts that individuals have a strong confirmation bias. When people reason either alone or with like-minded peers, this confirmation bias leads them to reinforce their initial attitudes, explaining individual and group polarization. We suggest that the failures of reasoning are most likely to be remedied at the collective than at the individual level. (shrink)