Publication: The Law As a Conversation Among Equals - A Skeptical View
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2024-11-08
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In the context of the discussion about strengthening democratic regimes while facing the problems of constitutional and democratic erosion, Roberto Gargarella has offered a new regulatory ideal called "The Law As a Conversation Among Equals" to guide the discussion. He suggests placing our efforts of democratic recovery in new, more experimental forms of political participation, such as citizens' assemblies. This essay argues that Gargarella's valuable prescription for the problem may become self-defeating. If the main focus is not on helping the infrastructure of representative democratic regimes recover or heal, the focus on new experimental forms of political participation can even deepen the harm that the political systems are suffering. This is not to say that these new forms of political participation should always be avoided. As I will show, they should be used to complement and not replace representative institutions. I suggest a more modest, narrow, and cautious way to implement those participatory mechanisms. If the infrastructure of democracy is to be recovered, we should not avoid discussing issues such as the functioning of political parties, how fourth-branch institutions can impose limits and slow down processes of erosion while offering opportunities for democratic forces to regroup, and the way citizens access information and participate in the flawed marketplace of ideas.
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Attribution-NonCommercial-NoDerivatives 4.0 International
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IE Law School
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Verdugo, S. (2024). The Law As a Conversation Among Equals-A Skeptical View. Rivista di Diritti Comparati, forthcoming. http://dx.doi.org/10.2139/ssrn.4989529.