Measuring popular and judicial deliberation: A critical comparison

Abstract

This article compares instruments designed to measure deliberation in judicial and non-judicial settings. I thus provide a critical examination of different mechanisms deliberative democrats have designed to test what transpires when individuals deliberate from the perspective of ordinary citizens vis-à-vis the point of view of judges. From this appraisal, I conclude, first, that an examination of the literature on deliberation measurement brings to light several problems in the process of translating ideal deliberative theory into empirical evaluative schemes. Second, by relying on a critical examination of Conrado Hübner Mendes’s work on deliberation in constitutional courts, I argue that that those difficulties become starker when we try to assess the quality of judicial deliberation, given that our access to the courtroom is limited by the very structure of judicial procedures. Third, I argue that these two problems combined entail that idealizations of the courtroom as the forum in which ideal aspects of deliberative democracy are instantiated, are misguided, and should be avoided.