Legitimacy and Economy in Deliberative Democracy

TLDR

Deliberative democracy claims that legitimacy derives from reflective assent through inclusive deliberation, yet in practice many affected individuals are excluded, undermining its legitimacy claims. The study questions whether legitimacy should be granted to a deliberative process that involved very few participants in Oregon’s health‑care rationing. The authors examine Oregon’s health‑care rationing case and critique Cohen’s definition of legitimacy, arguing that outcomes are legitimate only if they could result from fully inclusive deliberation.

Abstract

Deliberative democracy, though the dominant theme in recent democratic theory, remains on the face of it impossible-at least to the degree it is cast as an account of democratic legitimacy. Yet this is how the theory arrived in Joshua Cohen's classic formulation, and this is still the claim at the theory's core: that are legitimate to the extent they receive reflective assent through participation in authentic deliberation by all those subject to the decision in question. ' As Seyla Benhabib puts it, Legitimacy in complex democratic societies must be thought to result from the free and unconstrained deliberation of all about matters of common concern (emphasis added).2 The essence of deliberation is generally taken to be that claims for or against collective decisions need to be justified to those subject to these decisions in terms that, given the chance to reflect, these individuals can accept. But in real-world deliberations, all or even very many of those affected do not appear to participate, thus rendering deliberative democracy vulnerable to demolition of its legitimacy claims. In the context of the supposedly exemplary case of health care rationing in Oregon,3 Ian Shapiro asks, Why should we attach legitimacy at all to a deliberative process that involved very few of those whose health care priorities were actually being discussed?4 There are ways to fudge the issue; for example, Cohen specifies only that outcomes are democratically legitimate if and only if they could be the