Democratisation, communicative freedom and communicative power

In more or less fully realised, existing democracies, citizens exercise a variety of freedoms and powers in virtue of their membership in the polity. Such freedoms and powers derive from having a particular mutually recognised membership, the status of being a citizen. For this reason, civic republicans often think of citizenship as constitutive of freedom, as when they argue that freedom is nondomination, indeed that ‘to be free is to be a citizen of a free state.’ This status is not simply given, but is an historical achievement in which some who do not have such powers and freedom come to acquire them in a political process. Kant and others have given this idea of status and membership a distinctively cosmopolitan and normative twist. To use Hannah Arendt's terms, such a form of cosmopolitanism sees any just political order as based not on a specific set of civil rights, but ‘the right to have rights’ that applies to all persons.Footnote ² This republican turn to cosmopolitanism concludes that this status must be shared, so that all may be recognised as having minimal legal status.Footnote ³ Without some such status, Kant argues, human beings would be persons without personality, ‘beings who have only duties and no rights’, and thus ‘slaves or serfs’Footnote ⁴ who are dominated by those who have the power to assign those duties. Thus, persons can avoid domination only if they have some status in virtue of which duties are not simply imposed upon us. It is this capability that enables citizens to avoid the great ills of being dominated by others and subjected to private and public forms of coercion, including the denial of free status and political expulsion. Legal status brings with it specific kinds of normative powers, the most important of which is the power over rights and obligations exercised with others who have the same rights and powers, and it is this status is constitutive of civil freedom. Or, as Kant put this condition of freedom: ‘no one can bind another, without also being bound in the same way by the other.’Footnote ⁵ While we need not endorse a specific version of this fundamental status here, these arguments point out that whatever status assures nondomination, it is a status that must be shared with others. For democratisation, a complex set of statuses are required to provide a measure of shared freedom that would provide the reciprocal basis for us to make claims upon others and upon institutions and for them to make claims upon us.

In existing democracies, citizenship is a status that makes it possible that political authority is not under the control of any given individual or group of citizens. But even in a democracy with well developed protections from political domination, a central precondition for such nondomination is the existence of the public sphere, a space for the exercise of shared communicative freedom. This communicative space is currently being transformed through new forms of technological and institutional mediation. Without the open structure of publics, transnational interactions across various political communities could very well surpass existing civil and legal statuses. Communicative freedom is tied to a particular, reciprocally recognised informal communicative status that is the necessary condition for having a public sphere at all. Participants create a space for communicative freedom to the extent that they regard themselves as a public and interact with each other accordingly. It establishes a two way power to address claims to others and to be so addressed by them. In the first instance, a public sphere institutionalises a particular kind of relationship between persons and makes it possible to achieve a similar relation between the public and political authority. As members of a public, persons can regard each other as having at the very least the capacity and standing to address and to be addressed by each other's acts of communication.

In his Structural Transformation of the Public Sphere, Habermas gives an historical account of the creation of the distinctly modern public sphere that depends upon just such a free exercise of the creative powers of communication. In contrast to the representative public of the aristocracy for whom nonparticipants were regarded as spectators, participation in a democratic public is fundamentally open. ‘The issues discussed became “general”, not merely in their significance but also in their accessibility: everyone had to be able to participate.’Footnote ⁶ Call this the ‘communicative freedom’ of publics, a form of freedom that may take on a constructive role by which members grant each other rights and duties in their roles as participants in the public sphere. This freedom emerges from the interaction between the communicative freedom of participants in the public sphere and statuses to enter into decision making processes within various institutions. By acquiring such communicative freedom beyond the control of even a disaggregated authority, membership in a public uses the creative and constructive powers of communication and public opinion to reshape the operations of authority. For this reason publics have a special role in processes of democratisation, since they realise two way powers even in the absence of other statuses and powers, so long as participants see themselves as addressing others and being addressed by them in turn. To be a member of a public is to possess at least one two-way power and thus to have a kind of political freedom. For this reason, communicative freedom can be transformed into communicative power.

NGOs now often act as surrogate publics and expand the scope of those who can influence decision making and act to ensure some accountability is the case, for example, with environmental groups who both monitor compliance to pollution and whaling regimes and represent environmental interests in discussions and negotiations of their relevant rules and policies.Footnote ⁷ By contrast some civil society organisations move from being facilitators to being intermediaries of weak publicity to strong publics with decisional as well as communicative status. In this regard the Women's International League for Peace and Freedom illustrates how communicative status can be transformed into decisional status at the international level. The League had a long history of advocacy around issues of peace and opposition to war. As Molly Cochran has pointed out, the League formed itself into a ‘strong’ international public over time and began to shape decisions made by nation-state and League of Nations officials through three mechanisms of normative leverage. First, they saw themselves as purveyors of ‘publicness’Footnote ⁸ in the sense that the League sought to establish both a transnational public sphere and the communicative status for women within it. The transnational public sphere, they argued, was in danger of disappearing during the period of the First World War, and they saw as their task its revitalisation so that international problems can be addressed by an emerging public. Second, they saw themselves as establishing a forum in which the distinct perspective of women could enrich discussions of international issues of war and peace. In this way, they regarded the public sphere that they established as significantly enriching the quality of discussions of such issues that were epistemically deficient because past discussions and negotiations had lacked an important perspective, the perspective grounded in the experience of women. Third, as a plural public sphere, the League could claim to represent women, at least in the sense that it provided a forum in which their communicative status could be realised and transmitted. Thus, it was not just an interstate actor, but a self-conscious international public that realised the conditions for communicative freedom and the epistemic advantages of its plurality of perspectives for solving problems in the international sphere.

But they sought not only to form opinion, but also to shape the decisions of extant international institutions, the League of Nations in particular. It was a self-consciously formed public that sought to legitimate its influence on these decisions as representatives of women and humanity in general. This communicative freedom was effectively transformed in a campaign to influence the League to do something about the many stateless women and children who continued to be held in Turkey after World War I. In this case, the transnational public began to interact with and shape this formal organisation, where the public for whom the organisation was formed shifts from states and other formal actors to the public of humanity at large. The WLIPF did not just influence specific decisions but interacted with the League of Nations so as to reshape and direct this institution away from its orientation just to member states, but also to emerging strong international publics.

Many similar publics have emerged, such as publics formed by women to establish the communicative freedom of groups to address issues of living under Islamic regimes and laws. Movement organisations such as Women Living under Muslim Laws also have this dual status as both public and civil society organisation, in that they conceive of their task more in terms of both communicative freedom and deliberation, as establishing international networks, which in turn create the conditions of a public sphere to advocate for interpretations of Islamic texts and changes in various Muslim practices across the range of cultural, religious and national backgrounds of their members.Footnote ⁹ Similarly, DAWN functions as a forum for deliberation about development issues and advocates for perspectives of women that should receive uptake in formal development organisations. Both groups are internationally diverse, creating conditions for wide and transnational deliberation and promoting inquiry in various communities through the presence of a novel public. Even when they are not themselves organised as democracies, they are examples of the democratising force of transnational civil society.

Even now, it is telling that in the international arena, many powerful institutions lack strong connections to public spheres, and also lack any mechanism for creating publics and channels of public influence over their agendas and have very heterogeneous and opaque authority structures. By comparison, state-oriented public spheres have significantly different features that have developed from long-term processes of democratisation. Even when citizens are too far removed from decisions to influence them directly, they are still able to exercise indirect influence and often use the communicative statuses that they grant each other as members of publics to make claims about policies. How might democratisation have a foothold?

Rather, the solution is, as Amartya Sen puts it, ‘better democratic practice’ in which citizens are participants in common deliberative forums and sufficiently protected and empowered to change the powers linked to their statuses, the most basic of which is reciprocally granted communicative freedom. In this way, the capability to initiate deliberation, even if only in the public itself, is the most basic freedom necessary for improving democratic practice, in which communicative freedom is transformed into communicative power. To put it somewhat differently, the issue is not merely to construct a more protective democracy, but to create conditions under which publics become capable of initiating democratisation, that is, using their powers to extend the scope of democratic entitlements and to establish new possibilities of creative and empowered participation in decision making processes. In such transnational processes of democratisation, it is clear that a responsive civil society is but one condition of possibility. The protective reach of democracy is in part the mutual protection afforded by other citizens' exercise of substantive communicative freedoms, by those who challenge and contest policies that affect them. Furthermore, it is through institutions of the free press and other media that produce a public sphere of citizens that such contestation occurs. Today transnational advocacy networks often attempt to produce such conditions, providing access to international publics and aiding previously unempowered local actors.Footnote ¹⁰ Sometimes the force of publicity is enough, and organisations can act as intermediaries of such publicity. For example a variety of organisations created a forum for debate on the Multilateral Agreement on Investment, an issue that hardly registered in the national media. Not only did these organisations make the Agreement on Investment widely available, they also held detailed on-line discussions of the merits of its various provisions.Footnote ¹¹ Without being empowered within the decision making process, publishing the Agreement and exposing its flaws were enough to have the MAI withdrawn by national governments.

But such capability to participate in the public sphere is only one condition for the transformation of communicative freedom into communicative power. These processes of reflexively improving democratic practices also requires plurality, the plurality of associations and perspectives available in civil society together with the crosscutting interaction and deliberation in various forums in which such transformations are enacted. In the next section, I look at deficiencies of democratisation due to the lack of sufficient plurality and diversity necessary for fruitful deliberative practices. In the examples discussed above, the communicative freedom of publics led to communicative power. In the case of some existing publics formed around institutions, democratisation requires the further expansion of communicative freedom. In this case, those with decisional status do not regard themselves as a public, and their deliberation is not informed by the full range of social perspectives. Civil society organisations do not further democratisation unless they foster such plurality.

Civil society and plurality

In order to understand the role of civil society in transnational democratisation, it is important to first understand its role in a well-functioning democracy. The account that I give here will be deliberative and thus emphasise the role and benefits of civil society in deliberative practices. It is clear that democracy demands inclusion, and that in turn requires seeing citizens as diverse across a number of different dimensions. Plurality has intrinsic value to the extent that it is a result of the ideal of political equality and practices of inclusion. But it is also instrumentally valuable in improving the quality of deliberation, especially with respect to avoiding error. But the relevant dimensions of such plurality cannot be democratically determined in advance. In a well-functioning democracy, they are shifting and changeable as new problems and issues emerge in unpredictable ways. One role of civil society is to be responsive to this kind of volatility, to be the location for the emergence of novel reasons even before they are widely recognised. According to Dewey, such plurality distinguishes a ‘public’ from ‘mass’ opinion and for this reason institutions and publics are mutually constitutive, giving a determinate shape to each other and with respect to other broader publics.

Even if democracy requires an inherently pluralistic ideal of deliberation, at any given time its practices may not be able to solve problems or sufficiently test current solutions. These difficulties are not a matter of some inherent restriction of citizens' rationality, but rather related to the limitations of existing deliberative practices. Those limitations often involve restrictions in the availability of relevant perspectives that have two main sources. First of all, a deliberative body may not be sufficiently diverse to solve a particular practical problem, to the extent that important perspectives are left out and for that reason not addressed institutionally. Second, the institutional procedures themselves may have particular limitations, such as having high entry requirements or costs of participation. International financial institutions present such a difficulty. In these cases, democratic practice as it is currently structured is unable to afford diverse citizens the capacity to express their reasons and interests effectively. In these cases, civil society offers the possibility of a wider set of possibilities that have not yet been incorporated into the public sphere. An open and vibrant civil society thus has epistemic benefits to the extent that it preserves the wider set of available perspectives than are ever currently available in institutional public deliberation. The challenge for institutions is to be open to these kinds of challenges from civil society.

If this is one of the important roles of civil society in a functioning democracy, it is misleading to think of it in terms of ‘democracy from below’. Civil society is not a level playing field, but a domain of asymmetries and contestation. The relevant aspect of diversity that is necessary for improving the process of deliberation is not the pool of reasons as such but the availability of the perspectives that inform these reasons and give them their cogency. Perspectives are social, to the extent that they are practical stances towards the social world that are informed by experiences that agents have, often in common with others in their particular situation. Such practical stances inform our participation in the deliberative process and make up the background against which citizens find reasons or arguments compelling or not. In light of such practical knowledge, some may find certain reasons obvious and others not, as when we consider the costs of a tax policy or the consequences of tax cuts. But such practical knowledge is not determinate, since agents are able to adopt a variety of such reflexive stances, as citizens, experts, members of communities and so on.

This ability suggests a second sense of perspective. Competent social agents are able to adopt and to employ a variety of social perspectives, often seeing some reason as convincing in deliberation precisely by taking up the perspective of others that makes available the experiential basis for its cogency. In this way, maximising the pool of reasons is not the most important purpose of plurality in deliberation; reasons as such can be increased even while still leaving out relevant perspectives. While reasons are items to be considered in deliberation such as opinions or values, perspectives are cognitive properties of deliberators and thus are available only when actual participants exercise their communicative freedom and make claims. Thus, to have a perspective is, in Rawls' terms, to be ‘a self-originating source of claims’, whose contributions also supply potential deliberative contexts in which such claims are meaningful. Before a reason can first be seen as a reason and then potentially as one that passes the critical scrutiny of all citizens, the perspectives of others and the experiences that inform them must be recognised as legitimate; in light of the inclusion of their perspective, groups are able to get uptake when they offer reasons and thus recognise for themselves that they are contributing to democratic decisions.

Consider two examples of the deliberative benefits of diverse perspectives. Just as in arguments for the superiority of deliberation by a few, considerations of objectivity seem to suggest that certain perspectives are better than others, and the point of such deliberation would be to figure out which ones are somehow more likely to be correct or authentic. The point of inclusion, however, is not to find the right perspective but to have such perspectives interact and inform each other, in order to open up deliberation, as it is currently constituted, to correction. Various experiments have been constructed to show how subjects find solutions to problems through novel information that is accessible only through the uptake of the perspectives of others. It could be argued that such correction occurred in the early days of the HIV epidemic when patients had no say about the regime for testing experimental drugs. Here the weakness of homogeneity among deliberators is apparent, even when those deliberators are experts. From the perspective of patients, the highest possible standards of statistical significance in random controlled trials were simply unacceptable as a social policy. In deliberation that included the perspectives of patients (who also make up the pool of participants in tests and as such must restrict their use of other possible remedies), doctors, researchers and policy makers, standards of validity were balanced with other values such as quicker availability of drugs, safety and effectiveness. In a similar case, Bina Agarwal has studied the effects of the exclusion of the perspective of women from deliberation on Community Forestry groups in India and Nepal.Footnote ¹² Because women had primary responsibility for wood gathering in their search for cooking fuel, they possessed greater knowledge of what sort of gathering was sustainable and about where trees were that needed protection. This is not simply a matter of increasing the pool of reasons, but rather to include those relevant perspectives that are the source of reasons.

Deliberation about the implementation of such goals is certainly inferior if the full range of actors and their epistemically relevant perspectives are not included. This improvement concerns the shaping of the process of deliberation rather than the specific outcome, since the pool of reasons is narrowed by testing. As Randall Germain points out, similar processes were at work in the successful efforts of civil society actors to achieve a multilateral response to debt relief for Highly Indebted Poor Countries, something that would not have been achieved without arguments that emerged from the broader public sphere.Footnote ¹³ It is particularly striking that publics were able not only to initiate deliberation on this particular issue, but also to mobilise communicatively generated power to change the decision. Here the public can exercise its communicatively generated power through influence over the principles governing the normative framework of the institution. Because of the commitment to well-grounded policies in multilateral financial institutions, critical engagement with the arguments of such institutions improves deliberation by making available reason-informing experiential knowledge.

There is a further role that civil society associations and organisations can play in global politics, and here I have in mind movements such as those inspired by feminism that could be thought of as having the goal of creating a kind of global citizenship. Feminist social movements can create transnational networks such as Development Alternatives with Women for a New ERA (DAWN) or Women Living under Muslim Laws (WLUML). Perhaps more important is the fact that such networks also engage in self-referential discussions of the role of NGOs and of human rights norms in cross-cultural social criticism. Understood in this light, NGOs are not just associations but have also served as social spaces and networks for interaction, communication and deliberative inquiry into the variety of perspectives on gender norms in international forums, including issues of health, poverty, education, and religion. They have also served other democratic purposes, such as self-organisation in civil society or gaining access to influence in various political domains, including the state as well as international development institutions in which gender has not until quite recently been considered a relevant perspective.Footnote ¹⁴ This sort of democratic politics certainly requires the resources of transnational civil society in order to challenge various powerful institutions. But such challenges also take place in the public sphere, and in doing so permits the ongoing challenge to the authority of NGOs and other civil society organisations as much as the authority of international institutions.

The role of some NGOs in creating public spaces is vindicated not so much by any claim to be properly representative of all those affected by such international institutions but in providing the public space for communicative freedom, for the expression of views and perspectives that would not otherwise be available. In the case of a political setting where there is no public to whom appeal can be made and no responsive and accountable institutions for which the public's voice matters, NGOs and other international organisations may try to open up and to influence procedures and standards by making manifest now missing perspectives, the absence of which undermines the quality of deliberation. In this way, they may function as a public and to open up institutions to public influence by recognising the claims of those who address them and thereby add this communicative status to their basic freedoms. Transnational civil society movements thus realise some conditions of democratisation by acting as intermediaries for publicity. Certainly, such movements can also fail to be responsive and inclusive, but at the very least this claim can be made in the networks and publics that purport to be open to all perspectives.

The implications of such an interactive strategy for democratisation leads to my third point: that global feminism represents an attempt to create multi-perspectival forms of politics. As a transnational movement rather than as a mere set of civil society associations, feminism has often created innovative public spaces and generated novel transnational publics. In this way, feminist human rights activism in the public sphere surrounding international political institutions (such as in the UN conferences on human rights or on the rights of women) has helped to change and indeed successfully revise the understanding of human rights themselves, as well as many other international political norms. Feminist global citizenship has provided good examples of the innovative practices of communication and inquiry that are necessary conditions for fulfilling democratic goals in the international arena. At the same time, feminists have begun to criticize the democratic deficits of some NGOs, even ones with feminist aims. On the basis of the account of democratisation that I have been developing here, it is possible to begin to develop criteria by which to judge the democratising potential of various forms of civil society or associations. Feminist organisations have not been immune from the trend towards NGOs as the model for movement organisations, with the structural consequences of ‘NGOization’, including increasing professionalisation and the adaptation of means and ends to funding imperatives.Footnote ¹⁵ Furthermore, as Neera Chandhoke points out, such organisations fail to be genuinely global and thus in my terms fail to realise plurality and communicative freedom.Footnote ¹⁶ Here DAWN and Women Living under Muslim Laws are more like the WLIPF in that they self-consciously promote publicity and conditions for wide and transnational deliberation and inquiry through the emergence of a novel public.

These analyses of global civil society and global publics suggest that one way to improve the democratic practices of international institutions would be to incorporate novel institutional designs and procedures that would be better able to promote such interaction with global publics and citizens. Given the analysis of the roles of civil society and the public sphere in democratisation, we can infer at least two institutional designs that might bind transnational political authority to communicative freedom and the power to create and implement norms associated with citizenship: the use of minipublics and the republican demand that power be dispersed across overlapping and differentiated institutions.

Institutional designs for transnational public spheres

As I have discussed thus far, communicative freedom typically operates in a generic modern public sphere with mutually recognised statuses, that is, one that combines both face-to-face and mediated communication. The forms of such mediation now seem insufficient to a public sphere writ large enough to obtain on the global level. And even if this were possible, it would hardly create the conditions for communicative freedom necessary for democracy. Two problems are now emerging: the first concerns the issue of a feasible form of mediation and the possibilities for communicative freedom within it; and the second takes up the possibility of new institutional forms that could interact to mediate such preconditions transnationally. The first issue concerns informal networks of communication, such as those made possible by the Internet and other newer media institutions; the second concerns new forms of highly dispersed deliberation such as those emerging in certain practices and institutions of the EU, primarily at the level of policy formation. Both permit the exercise of new forms of political agency. If that is the case, then it would be better not simply to rely on publics forming around institutions to exercise their communicative freedom, but also to design institutions so that they will be open to communicatively generated power.

Given that what is needed in order to secure various public spaces are alternatives to the current set of intermediaries rather than the absence of them, civil society organisations have distinctive advantages in taking on such a responsibility for publicity. The creation of publics is a matter of communicators becoming concerned with and acting to create the general conditions that make such a process possible; once such agents are present, it is a matter for formal institutionalisation, just as sustaining the conditions for the national public sphere is a central concern of the citizens of democratic nation states. In the case of such shifting and potentially transnational publics, the institutions that sustain publicity and become the focus of civil society must also be innovative if they are to have their communicative basis in dispersed and decentred forms of publicity.

At the same time, these institutions must be deliberative and democratic. The public must itself be embedded in an institutional context, not only if it is to secure the conditions of publicity, but also in order to promote the interaction among publics that is required for deliberative democracy. Thus, both network forms of communication and the publics formed in them must be embedded in larger institutional and political contexts if they are to be transformed into public spheres in which citizens can make claims and expect an appropriate response. In much the same way that they have responded to censorship, publics interact with institutions in order to shape them and to secure their own communicative freedom. In so doing, they expand their status as citizens to include the status to shape the conditions of communication rather than simply demand immunity from interference.

Currently distributive publics are ‘weak’ publics, which exert such influence over decision-making institutions through public opinion generally. However, global institutions do not generally concentrate power in the ways that state institutions did in the past. Distributive publics may become ‘strong’ publics when they are able to exercise influence through institutionalised decision procedures with regularised opportunities for input, however dispersed they may be. One necessary condition for transnational institutions to be democratic is that they be conducive to the formation of publics by promoting access to influence distributively across various domains and levels, rather than merely aggregatively in the summative or unitary public sphere of all citizens. Because there is no single institution to which strong publics are connected, the contrast between weak and strong publics is much more fluid than the current usage presupposes. Rather than look for a single axis on which to connect emerging publics to decision making processes in international and transnational institutions, it will be more useful to consider a variety of possible forms of communication given various ways in which connections can be made between communicative status and decisional status the public sphere.

Despite the seeming robustness of transnational civil society, international institutions do not currently make proper deliberative use of diversity in fashioning policies and goals. In considering possible institutional designs that enhance and democratise deliberation, it is necessary to see that different institutional arrangements can function best at different levels, starting with the local, the national the regional and the transnational. The overall design here is polyarchical, where deliberation and forums of different types are distributed across various levels and institutional sites.

One possibility for correcting this deliberative deficit at the local level is to organise deliberation self-consciously by convening and empowering ‘minipublics’.Footnote ¹⁷ Whether chosen randomly or as representatives of the body of citizens as a whole, such procedures ought to avoid the problem of self-selection that limits the perspectives available in many civil society organisations. Minipublics offer a strategy for getting beyond the dilemma of insider consultation and outsider contestation that is a structural feature of civil society activity in current international arrangements. Minipublics are self-consciously created out of the plurality of civil society. They seek to include all the relevant stakeholders and perspectives, even if only in a randomly selected body of citizens. To give just a few examples, citizen assemblies have been empowered as minipublics to propose electoral reform in British Columbia, adjudicate environmental disputes in Australia and other places, and much more, with an increase in democratic legitimacy over less diverse alternatives.

Minipublics provide opportunities for the exercise of communicative power through participation aimed at making a decision, where groups of citizens, not experts or office holders, are given the communicative freedom to deliberate and form opinions and the communicative power to make recommendations and decisions. The advantage is that such smaller publics are able to deliberate within specific institutional, functional, and temporal constraints in ways that the public at large cannot. Rather than simply a form of consultation, this form of deliberation would require that institutions transfer some of their authority to the minipublic whose deliberation it empowers, opening up a directly deliberative process within the institution that includes as many perspectives as possible and can be repeated when necessary. The use of randomly selected citizens for empowered deliberation is useful for democratisation only if it increases the heterogeneity of participants and epistemically enhances the quality of deliberation. Such empowered publics, however important for dispersing decision making, must always be located within a wider set of institutions in which communicative power is exercised, as when decisions made in this way are debated and tested the relevant public as a whole.

The second aspect of a transnational design is the promotion of diversity in institutional settings for deliberation, to the extent that it issues in decisions according to a variety of different procedures. Rather than have deliberative reform be based on having each forum approximate a single institutional ideal, democratic practice is better served by overall institutional pluralism. This would allow for a variety of overlapping and mutually checking procedures, each formulated according to its contribution to the division of decision making and epistemic labour within the system of deliberation as a whole. In this way, optimal deliberation is not a property of each individual forum because democracy requires collective agents rather than merely publics. Deliberation is rather a matter of interaction among and testing across institutionally structured deliberative bodies that yield epistemic gains and self-correction. It is not that there is one such body, say the national or regional legislature that can best stand in for the whole or somehow more closely approximates the ideal procedure. Rather, the availability of perspectives is a goal of the system as a whole.

The benefits of diversity in improving deliberation can best be realised in systems that institutionalise diverse forms of deliberation in different types of forums at various levels of organisation.Footnote ¹⁸ In the case of deliberation about debt relief, it is certainly the case that many different publics were formed around the relevant multilateral institutions in order to convert their communicative freedom into communicative power, particularly evidenced by the fact that debt relief was initially opposed by the officials of these institutions. As in the case of minipublics, the design is already aimed at decision making. Such institutions work best when they aim to maximise the available perspectives in deliberation, and also to use other forums or collective agents to check those decisions by distributing deliberative labour. It would seem then that institutional design with the appropriate cognitive division of labour allows even complex societies to reap the benefits of smaller group deliberation by using the diversity of perspectives as the appropriate measure for the composition of any deliberating body. The single perspective institutions of the state with their concentrated forms of political authority are not the best way to organise democracy epistemically and to attenuate some of the loss of the bundled powers of citizenship connected with transferring authority to international institutions. As in the case of minipublics, deliberation in smaller and larger units needs to be organised so as to be mutually enhancing. Furthermore, it is important also to note that change and democratisation is fully multidirectional on this sort of account, from the transnational to the local, the national to the transnational, the local to the regional, and so on. Democratisation depends on the emergence of various ‘constitutional moments’ of change distributed across institutions.

Such mutual enhancement is best illustrated by the ways in established democratic institutions incorporate republican and federal features. While the Internet provides a paradigm case of the sort of media institutions that support a distributive public sphere, the EU provides the fullest and most exemplary case for formal institutional processes. As Charles Sabel has argued, a ‘directly deliberative’ design in many ways incorporates epistemic innovations and increased capabilities of economic organisations, in the same way as the regulatory institutions of the New Deal followed the innovative patterns of industrial organisation in the centralised mass production they attempted to administer and regulate.Footnote ¹⁹ Roughly, such a form of organisation uses nested and collaborative forms of decision-making based on highly dispersed processes of jointly defining problems and setting goals already typical in many large firms with dispersed sites of production. One such process is found in the use of the Open Method of Coordination (OMC) for developing norms that govern many different policies (such as unemployment or poverty reduction) within the EU, and is best described as ‘a decentralized specification of standards, disciplined by systematic comparison.’Footnote ²⁰ Such forms of decision making do not require convergence on single policy across various levels of organisation and thus could potentially engage a variety of different publics at different domains.

This organised institutional differentiation permits political participation in a variety of units and levels. Moreover, the institutions of these units often entrench the very same rights and thus make them more robust by giving individual rights bearers multiple addressees for their rights claims. Given a certain complexity and internal pluralism among citizens, constitutionalisation would further require institutional differentiation so as to ensure that citizens can initiate deliberation and effectively exercise their decisional status in cases in which parts of the institutional structure fails to be sufficiently reflexive, including the power of amendment that enables the ‘reordering the order itself.’Footnote ²¹ For example, the existence of EU-level courts has broadly impacted the legal recognition of immigrants' rights, by giving them the status to make direct appeals to the European Human Rights Court. Indeed, the European Convention on Human Rights already entitles foreigners without nationality in any EU member state to appeal to the European Human Rights Court and the EU Court of Justice for the ongoing juridical recognition of their rights, creating adjudicative institutions that build upon the constitutional traditions of member states, even as they are extended to non citizens.Footnote ²² In addition to the statuses contained in the legal status of EU citizenship, the multiplication of institutions whose task it is to preserve the conditions of nondomination makes such powers and statuses more robust. EU-level institutions can thus ‘serve to make these states more democratic.’Footnote ²³

Apart from the sort of structure found in the EU, current transnational publics are weak, in the sense that they exert influence only through general public opinion without the benefits of institutionalised deliberation. Or, as in the case of NGOs with respect to human rights, publics may rely heavily on supranational judicial institutions, adjudication boards and other already constituted and authoritative bodies that exercise authority on the behalf of an indefinite plurality of persons. Nor will public spheres produce democratisation on their own, as John Dryzek insists that they will when he argues that ‘deliberative and democratic global politics can most fruitfully be sought in the more informal realm of international public spheres.’Footnote ²⁴ Absent in the informal realm is the decisional dimension of democracy, which requires institutions in order to transform communicative freedom into communicative power. Without better deliberative forms of institutionalisation that go beyond the informal realm and facilitate the transitions from communicative freedom to communicative power, civil society and the public sphere are not sufficient for democratisation. More than NGOs, global publics and social movements have contributed not only toward instituting conditions of communicative freedom, but the process of adequately distributing communicative power requires the emergence of new institutional forms.