In this book, Walter F. Baber and Robert V. Bartlett continue to develop a project that emerged in two previous coauthored books: Deliberative Environmental Politics (2005) and Global Democracy and Sustainable Jurisprudence (2009). The book offers a clear vision of the constructive role that the authors believe could be played by deliberative citizen juries in the development of international environmental law, and so of the institutions of global environmental governance. While the argument is focused upon environmental governance, in its form and structure it is more widely applicable to international law in general. The book offers a nuanced but full-throated defense of deliberation and consensus among citizens both as values and as techniques for effective global governance.
The basic premise is this: International law—in general and as the basis for environmental governance—suffers by comparison with the laws of nation-states, and in particular, by comparison to the common law foundation for many legal systems (the authors make a case that this foundation can be found in continental systems as well as Anglo-American ones), in that there are relatively few documents or decisions upon which international legal principles are established, and there is no adherence to precedent in their formulation. International law also suffers a lack of legitimacy in that those documents and decisions that do exist reflect the agreements of nation-states rather than the views of citizens themselves. Importantly, the authors argue that the lack of legitimacy of existing international law is a more significant weakness than the more widely noted dilemma of a lack of coercive enforcement mechanisms (p. xii).
Legitimacy is not “merely” a normative concern for Baber and Bartlett. The efficacy of the law is also at stake. That is, to be effective, citizens must widely perceive it as legitimate. To be legitimate, it must be “grounded in widely shared social understandings … and internalized (or at least capable of being internalized) by those who participate in its adoption and implementation. It must, in short, be deliberative” (p. 9). This conclusion leads the authors to a mildly contrarian view of recent climate accords. For example, many have been dismissive of the seemingly weak and voluntaristic outcomes to emerge from the Copenhagen (2009) and Cancun (2010) climate conferences, contrasting them with the enforcement mechanisms of a protocol such as that negotiated in Kyoto (1997). Yet Baber and Bartlett argue convincingly that “public support for whatever preventative measures are developed will be vital, but ultimately unavailable, if the policy process has been nondemocratic.” To the degree that these more recent conferences “establish a bottom-up process,” even if noncompliance is not subject to international sanction, the authors maintain that they hold greater potential for overcoming the democratic deficit common to such negotiations and so for actually achieving emission reductions (p. 41).
The authors’ primary aim, however, is not to encourage voluntary accords. Instead, they propose a highly ambitious new foundation for international law: one founded upon widespread iterations of citizen juries that will deliberate upon hypothetical yet realistic disputes faced in the course of global environmental governance. These juries will be convened in diverse locales around the world and will be structured to ensure their members’ representativeness. Significantly, Baber and Bartlett anticipate that individual juries will generally be able to reach consensus and that there will be enough consistency in the outcomes of such juries across cultures that these can be aggregated and restated in the form of consensual juristic principles (in a process analogous to the American Law Institute’s restatements of general principles of common law in the United States; see pp. 123–24), which will thereby provide a more legitimate and democratic basis for global governance.
Of course, attention to deliberative democracy is hardly new to discussions of environmental thinking. In addition to the authors’ own previous books, John Dryzek’s body of work on the subject is particularly noteworthy; Graham Smith’s (2003) Deliberative Democracy and the Environment also provides a valuable if now somewhat dated overview. Many deliberative democratic theorists and proponents of minipublics such as citizen juries aim to identify policy outcomes through a deliberative process. Alternately, many other scholars and activists have focused upon local stakeholder partnerships—at the local or regional level—that seek to develop a consensus on the implementation of an environmental regulatory regime. Yet in this book, Baber and Bartlett emphasize a different role for deliberative assemblies: that of developing a “normative consensus” upon general legal principles (p. 14).
A book this ambitious in both its theoretical and practical objectives can hardly avoid being subject to critique. Yet the authors do an admirable job of anticipating many likely questions, concerns, and criticisms and offering both judicious presentation of these views and a careful consideration and response. This is most evident in their effort to address criticisms of their quest for consensus through deliberation, raised by agonistic democratic theorists and others who place cultural diversity at the center of their analysis. While these critics may not find Baber and Bartlett to be convincing, they will find a serious effort to engage—indeed, to find consensus.
In the end, it is consensus—the first word in their book’s title—that is central to both its ambition and its limitations. More than any other political concept, this book rests upon the authors’ understanding of consensus. While they often defend consensus as an outcome of deliberation against its critics, as I have just described, there is a key area where reliance upon the concept is crucial yet underdeveloped, and where an engagement with critics is less evident. To see this requires attention to the significant difference between 1) the pursuit of a consensus among the members of a small deliberative group (such as a citizen jury) and 2) the identification of what we might call a “meta-consensus” across a great many such groups. This difference often seems elided in the book.
With regard to the first sort of consensus, the authors conclude that “citizen juries composed of diverse individuals nonetheless can converge on a limited set of solutions to concrete (but hypothetical) disputes” (p. 172). Here, their case makes use of research on small-group deliberation to argue for the feasibility (under properly controlled conditions) of noncoercive consensus among the members of a deliberative group. Here, the authors devote less attention to the question of how this small group consensus will be perceived by the larger population from which the group was selected, but which has not deliberated. Yet perhaps more urgently, they need to make a case for the achievement of the second sort of (meta-)consensus in which “differently situated people in different parts of the world resolve the same dispute in similar ways” (p. 174). By definition, this meta-consensus cannot be a product of deliberation; Baber and Bartlett imagine it instead as the product of expert distillation of juristic principles embedded within the many iterations of small-group deliberation (as noted, pp. 123–24). Yet no findings are offered to support the existence—or even the likelihood—of such a global meta-consensus on normative principles for environmental governance. While it is crucial to the book’s ambitions, it remains only a hypothesis throughout.
My reading of the earlier chapters of Consensus and Global Environmental Governance led me to anticipate that the authors would present the reader with findings to support this hypothesis. In an appendix, they do state that they have conducted “twelve experimental trials,” in the United States and four European countries, of the sort of deliberative panel they recommend (p. 203). Yet they are explicit, there, in emphasizing that their trials were preliminary and results cannot be generalized to the populations of these countries, to say nothing of the global population (p. 205). Their caution here is reflected in the absence of discussion of these trials in the main body of the book.
There is an odd sense, then, in which the later chapters are written as though evidence of a meta-consensus exists and has been presented in the book, when it has not. The final chapter (10), in particular, offers a wide-ranging set of speculations about the bases for a meta-consensus upon normative juristic principles across citizen juries. Yet in casting for explanations that would allow us to make sense of findings that have been posited but not provided, the authors get well ahead of their project.
Perhaps Baber and Bartlett will coauthor another book in this series that will provide such support for their ambitious proposal. In the meantime, they have offered a sophisticated vision that promises to address some important challenges facing global environmental governance. While I have argued that much more is needed in order to convince a reader that the vision is plausible, to say nothing of being feasible, this remains a significant contribution for one book.
