SHOTGUN REFERENDUMS: POPULAR DELIBERATION AND CONSTITUTIONAL SETTLEMENT IN CONFLICT SOCIETIES.

• Date: 01 April 2018
• Author: Levy, Ron

I Introduction II Deliberative Challenges of Conflict Society Referendums A Five Characteristics of Conflict Societies 1 Social Division and Polarisation 2 Group-Targeting 3 Low Information and Misinformation 4 Uneven Deliberative Commitments 5 Violence and Reaction B Referendums in Conflict Societies III Value-Deliberation A Referendums and Value-Deliberation 1 Value-Deliberation and Public Reason 2 Value-Deliberation by Non-Elites B Limitations 1 Inclination to Applied-Deliberation 2 Incompatible Values 3 Low Information and Misinformation 4 Axiomatic and Identitarian Values C Shotgun Referendum Conditions 1 Value Focus 2 Deliberative Referendum Design 3 Generalisation 4 Deliberative Minimalism IV Popular Legitimacy A Referendums and Popular Legitimacy B Limitations 1 Uneven Deliberative Commitments 2 Elite Roles 3 Popular Unity C Shotgun Referendum Conditions 1 Deliberative and Democratic Referendum Conditions 2 Non-Elite Priority V Conclusion I Introduction

Referendums are now common in 'conflict societies'--societies where widespread armed engagement recently occurred, is occurring or is liable to occur. Referendums have addressed both intrastate and international cases of conflict. (1) In either case, referendums typically aim to draw on the sovereign power of the people themselves to reopen basic legal arrangements between communities, and to prompt or legitimate settlement agreements. In one recent example, after a peace plan negotiated with FARC rebels in 2016, the Colombian government hoped--in vain, as it turned out--to gain popular endorsement of the plan. The intention was to secure the kind of durable agreement that had remained elusive in negotiations dating to the 1980s. (2)

In the ideal case, popular decision-making conducted by referendum can have broad appeal, generating common feeling across sections of populations not usually accustomed to agreeing. A referendum can potentially bypass differences of interests and worldview in order to reset a stalled process of reconciliation. In part it may do so by sidelining elite leaders who seek to inflame division and conflict; a state's non-elite citizens may feel comparatively little commitment to sustaining a conflict and be more eager to reach an agreement. If well designed, a referendum might therefore improve the prospects of settlement. The referendum's perceived legitimacy may even help to ensure against subsequent breach, once a settlement is reached.

Of course, many referendums fall short of such high aspirations. A referendum process might lend a settlement little more than a fig leaf of legitimacy. There may be no neutral authority available to administer the vote. Ballot questions can mislead, and those in control can exclude or intimidate classes of voters. Even a fair voting process can aggravate divisions. In conflict societies, where inter-group polarisation and mutual distrust are pronounced, a referendum might only entrench an unstable accommodation between groups, or provide new outlets for divisive social discourse. And, though a referendum amplifies the voices of the many, it does not necessarily quiet those of the demagogic few. Some referendums do more to aggravate than to resolve inter-communal friction.

This article considers when referendums might nevertheless have useful roles to play in conflict societies. The substance of peacemaking proposals is also critical. (3) Yet the focus here is on the process of conflict settlement. While referendums have already entered common use in conflict settings and have even been involved in successful peace agreements--in Northern Ireland, for example--their utility has been inconsistent. What are the rationales for using referendums as tools for conflict settlement? What, in turn, are the prospects and limitations of the approach? Addressing these questions, at the broadest level the article contributes to the large and complex literature on conflict.

Within this literature, however, the article focuses on a relatively novel strand drawing on deliberative democratic theory. This theory assumes that those subject to collective decisions should have voices in the decisionmaking process, but also that the process should involve an exchange of reasons in which participants persuade and are persuaded based on the 'force of the better argument'. (4) The deliberative ideal of public reason requires citizens to put ideas to each other using relatively rational, generalisable and widely understood forms of argumentation that others 'may reasonably be expected to endorse'. (5) Democratic procedures should be inclusive of people on equal terms, (6) and should promote reflective, (7) well-informed (8) and other-regarding decision-making. (9) Deliberative democratic institutions ideally encourage participants to remain flexible about their value commitments and policy preferences. (10) This departs from a common perception that democracy mostly involves strategic actors aiming for a zero-sum 'win' over supposed political or social competitors. (11) Deliberative democratic theory focuses on achieving 'overlapping consensus' or 'normative meta-consensus': (12) areas of public policy where citizens can find and share common ground despite differing worldviews.

Given its concern for channelling disagreement into rational forms of persuasion, it is clear why deliberative democratic theory has forcefully entered the field of conflict research. By reworking institutions of decisionmaking we might incrementally improve the quality of deliberation, which in turn might improve prospects for the successful settlement of conflicts. However, few deliberativists have yet advanced arguments for referendums in conflict societies; many authors indeed view referendums as paradigmatically anti-deliberative. A handful of deliberativists have considered how to construct 'Deliberative Referendums', whose design features enhance public deliberation. (13) But these works have seldom strayed beyond polities with relatively modest social divisions. (14) This reticence is unsurprising: designing a Deliberative Referendum is a vexed problem even in the most peaceable societies.

Yet abandoning deliberative institutional schemes because deliberation appears too hard, and a polity too divided, overlooks the possibility that some division can be traced to scarce opportunities to deliberate in the first place. When, if ever, can referendums provide such opportunities? As there have been very few genuine experiences with Deliberative Referendums in conflict societies thus far, there is a limited empirical record, and any answers must be tentative. This article thus serves as a scoping study to place the aspirations and boundaries of the technique into a useful theoretical frame. This can offer more careful direction when, as seems inevitable, in future more conflict societies hold referendums.

The article proceeds in three main parts. In Part II, I outline key impediments to deliberation in conflict societies. At this point I do not yet distinguish between deliberation in referendums versus deliberation in elite-controlled processes.

Next, I outline two rationales specifically supporting the use of referendums as compared with elite-controlled models of conflict settlement. Both rationales rest on distinctive combinations of deliberative democratic and constitutional theory. Much conflict settlement involves reasoning that is 'constitutional' in nature (or is analogous to such reasoning); settlement often requires fundamentally altering political powers or territory. Conceptualising conflict settlement as constitutional settlement has implications for how settlement ought to be approached.

In Part III, I focus on the first of the rationales, value-deliberation. I build here on past work by myself and others on constitutional referendum deliberation in non-conflict societies to argue that, contrary to prevailing assumptions, constitutional referendums may be amenable to deliberatively robust popular engagement, even in conflict societies. I show how non-elites are often adept at deliberating over constitutional matters, provided that the deliberation applies principally to constitutional values, not constitutional technicalia.

In Part IV, I describe the second rationale, popular legitimacy. Here I depart from traditional theories that rely on abstract notions of popular legitimacy. Popular legitimacy can be understood instead as a collective judgment about the relative capabilities of elite and non-elite decision-makers in a democracy, including about decision-makers' capacities to deliberate carefully and impartially. Here, again, the constitutional nature of settlement is relevant. Even a brief act of entrenchment, if it proceeds by referendum and enjoys popular perceptions of legitimacy, may yield a lasting constitutional settlement.

Together these deliberative rationales describe a minimalist approach to deliberation. Rather than seek in the first instance to design deliberation to mend deep social divisions, some referendums can--far more manageably--contribute toward deliberation of limited scope and duration, albeit with potentially enduring effects. In practice, whether a referendum can improve deliberation and aid permanent settlement crucially depends on the kind of conflict and the kind of referendum. Most referendum models still neglect deliberation as a design goal and tend to falter partly for this reason. Throughout Parts III and IV, then, I also suggest what such supports might look like, and interrogate whether they can help to realise the two deliberative rationales. I introduce the term 'Shotgun Referendum' to refer to a Deliberative Referendum held under conditions of ongoing or apprehended violence. A principal feature of this type of referendum is the requirement that voters choose settlement options framed as generalisable principles. This innovation, which has antecedents in commercial...