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It might be objected that deliberative democracy is a notion wholly alien to law and legal thinking generally, which have tended to rely on more traditional ideas of popular sovereignty, that we have discussed before. It is arguable, however, that deliberative democracy actually underpins the structure of common law thinking, the legal system that, for better or for worse, is our legal system today.

There are two aspects of common law that I wish to highlight, that are specifically relevant to ideas of deliberative democracy. The first is that common law has never – traditionally – been considered to be promulgated by a lawgiver, or created by a conscious, legislative act; rather, common law, in the deepest sense, is regarded as being customary – its growth is gradual, lateral and from below, as contrasted with statutes, that are created in one single moment of enactment, vertically and from above. The common law judge’s task has been believed to be not a task of creation but of merely finding the law that already exists, that is, the community’s law, that has grown up through several different acts by the people over a period of time (see, e.g., Sabine, A History of Political Theory; Maitland, A History of Common Law Before the Time of Edward I). In this way, common law is about self-government through collective action.

The manner in which this action takes place leads us to the second aspect of the common law. The best description is provided by David Strauss, in his book, The Living Constitution, which we here extract in full:

The foundation of the common law is humility about the power of individual human reason. It is a bad idea to try to resolve a problem on your own, without referring to the collective wisdom of other people who have tried to solve the same problem. That is why it makes sense to follow precedent, especially if the precedents are clear and have been established for a long time. “We are afraid to put men to live and trade each on his stock of reason,” Burke said, “because we suspect that this stock in each man is small, and that individuals would do better to avail themselves of the general bank and capital of nations.” The accumulated precedents are the “general bank and capital.” It is an act of intellectual hubris to think that you know better than the accumulated wisdom…”

These two ideas – the Aristotelian notion that wisdom lies in a collective pooling of talents and ideas (developed, in modern form, by Waldron) – and the Burkean idea of incremental evolution over sudden change – are both relevant to our conception of deliberative democracy. The ideal of collective wisdom overriding individual insight – if it is to make any meaningful sense – presupposes extensive and open participation in the formation of that collective wisdom. At the time Burke was writing, of course, a significant section of society was excluded from such deliberation (women, serfs, “vagabonds” etc.) because of various exclusionary notions of human worth (that were themselves determined by a dominant subset of society) – for instance, the idea that only property-owners had a relevant stake in political affairs, and therefore, were entitled to vote (see, e.g., Kyssar, The History of the Right to Vote in America); or the idea that women were “virtually represented” by their husbands or fathers, and therefore needed no place in public discourse. While these notions are now thoroughly repudiated (we hope!), the basic idea of the common law remains, but now with a difference – collective folk wisdom now means incorporating the viewpoints of the entire polity. And it is also easy to see how an extensive process of deliberation favours incremental changes over sweeping transformations.

This is, of course, a sketchy and highly simplified account, and does not make any pretense of proving the case. The objective, however, is to simply raise the possibility that when we need not think of constitutional law – and, by extension, the basic structure – as unelected judges standing as bulwarks (or, depending upon your point of view, as barriers) against the majoritarian process. The binary is unhelpful, leads nowhere and ensures that more often than not, participants in the debate talk past each other. On the contrary, there is another way of thinking about law and democracy, one that re-imagines democracy as a value-laden set of processes to arrive at justifiable outcomes – and that this conception is at least arguably already contained – albeit in a latent form – within the broader set of ideas that structure our vision of the common law.