Professor Ron Levy is an interdisciplinary researcher writing on public law and political theory - especially deliberative democratic theory. His recent projects explore referendums in deeply divided societies, Indigenous constitutional reform, environmental constitutionalism and the deliberative dimensions of rights practice. Levy's books include Deliberative Peace Referendums (Oxford University Press, 2021, with Ian O'Flynn and Hoi Kong); The Cambridge Handbook of Deliberative Constitutionalism (Cambridge University Press, 2018, with Hoi Kong, Graeme Orr and Jeff King eds); and The Law of Deliberative Democracy (Routledge, 2016, with Graeme Orr). He has published numerous works on law and political theory, in several countries, including in Public Law, McGill Law Journal, UBC Law Review, UNSW Law Journal, Melbourne University Law Review, Federal Law Review, Public Law Review, Election Law Journal, Australian Journal of Political Science, Journal of Deliberative Democracy, Journal of Law and Philosophy and The Oxford Handbook of Deliberative Democracy. Levy is the winner of several research awards including grants from the Canadian Social Sciences and Humanities Research Council and the Australian Research Council. He was a chief investigator on two ARC Discovery Projects: 'The Law of Deliberative Democracy: Theory and Reform' (DP130100706, 2013-2015) bridging research on election law with deliberative democratic theory; and 'Confronting the Devolution Paradox' (DP140102682, 2014-2016) on federalism and political culture. Levy convenes the International Advisory Panel on Referendums, a global network of scholars providing advice to governments and non-governmental organisations on referendum design and innovation. He also founded and co-convenes the ICON•S Constitutional Theory Group (Australia/New Zealand). Levy has been a Fellow or Visitor at Cambridge, Yale, UC Berkeley, Stanford, McGill, Hebrew University, Sydney, King's College London and Oxford. He previously worked in the Ministry of the Attorney-General of Ontario, Constitutional Law Branch.

Gulan: In your research you stress the importance of participation and discussion in constitutional referendums in communities that are sharply divided. Could you provide more details on how institutions could actually reconcile the conflict between truly bottom-up citizen engagement and elite-driven deliberative design?

Professor Ron Levy: In upcoming work I describe what I call the ‘conciliation branch’ in constitutional design. This is a branch or office of government dedicated to resolving deep differences between groups, in ways that traditional separations of power, power-sharing and other familiar constitutional tools generally cannot achieve on their own. Traditional constitutional and democratic arrangements tend to neglect the crucial element of deliberation. But deliberation involves reason-giving, mutual civility, factual information, and other modes of discussion conducive to agreement, and such deliberation is in turn critical to avoiding political dysfunction and division.  Effective conciliation, then, requires deliberative democracy, which entails in turn relying not merely on democratic participation, nor on technocratic top-down government, but on gauging the interests and values of citizens and weighing these up, in a deliberative way, with other citizens’ interests and values. In deliberative democratic governance, then, neither democracy alone nor technocratic deliberation is solely in charge. Both are robustly consulted, and neither regularly displaces or trumps the other.  To make deliberative democracy a realistic possibility, inclusive deliberations should take place within institutions where deliberation can be carefully facilitated and informed. Such institutions can involve extensive learning from neutral experts, as well as learning and relationship-building between groups in a society. For instance, we may have randomly selected mini-publics become informed about human rights decisions and make advisory or binding decisions on human rights matters. (There is increasing evidence of this method being used globally.) Alternatively, there can be a formal office within which a particular minority group in society is able to make deliberative representations to larger groups, in ways mediated by deliberative facilitators. These bodies can be provided for in law (e.g. in a constitution), and may even be able to obligate government to listen to and heed their recommendations.

Gulan: According to your approach, deliberative constitutional referendums can reduce conflict by influencing how people interact with one another across social divides. Which real-world examples, in your opinion, most closely match your suggested criteria based on your comparative study, and what insights did they provide?

Professor Ron Levy: There have been a few cases in which deliberative peace referendums were at least partly useful in reducing conflict. For instance, the Belfast Agreement in 1998 ran in both Ireland and Northern Ireland and showed strong public support for peacemaking. Before this referendum ran, the parties had laid out a set of broadly agreed values to help influence voters – values such as peaceful settlement of disputes, and parity of esteem. This centering of broad values can be important, as it may help to avoid voters blocking a peace plan based on its technical details. A focus on broad values may help to illustrate to voters what is essentially at stake in the referendum. In our book Deliberative Peace Referendums we also discuss a range of other methods for making referendums more deliberative, such as running mini-publics to provide trusted information on the issues at stake.

Gulan: You contend that depending on how they are structured, referendums can either deepen or lessen divisions. What are the three most important design elements you would want for a constitutional referendum in a sharply divided country if you were advising legislators today?

Professor Ron Levy: As above, a focus on values – even in the ballot itself – can help to illustrate the essential matters at stake.  As also mentioned, a neutral, trusted mini-public made up of randomly selected lay people who are, nevertheless, informed by extensive learning from diverse experts, can help to issue authoritative information. This can help to counter the rising trend of misinformation and disinformation in referendums. And finally, when peace or democracy are at stake, it is important that hateful or manifestly untrue or misleading speak be regulated. A number of democratic jurisdictions, including South Africa and some Australian states, have adopted legislation to curb misinformation and disinformation. A trusted and neutral but inclusive body such as a mini-public may again be a useful tool, in this case to review manifest misstatements or hateful statements that otherwise threaten to make referendums unworkable.

Gulan: What particular institutional design elements do you think are most likely to make federal arrangements resilient in sharply divided countries based on your comparative research, and what are the primary obstacles to their effective implementation?

Professor Ron Levy: The ‘conciliation branch’ that I noted above is of critical importance. Too often, democratic system design involves the creation of constitutional checks and balances, or new democratic institutions, which lack any focus on deliberation. As mentioned, deliberation is critical if deeply divided groups are to agree with each other rather than to merely deadlock or descend again towards violence. Power sharing constitutions, in particular, should be augmented by deliberative and inclusive bodies to serve as ‘umpires’ of disagreements. This may help to make new and post-conflict constitutions more workable.

Gulan: You have pointed out that deliberative constitutionalism is distinguished from more conventional constitutional. In retrospect, do you think any facets of deliberative constitutionalism have been misinterpreted or undervalued in later research?

Professor Ron Levy: There is a tendency of people to conflate deliberation with democratic participation, discussion or dialogue. But deliberative democracy is more than democracy alone. Very often, when people discuss things in inclusive ways, even if the discussion is termed a ‘dialogue’ the outcome can be toxic. When you bring deeply divided enemies together to talk, the mode of discussion matters. As mentioned, it is important that broad and shared values, dependable facts, and a carefully facilitated process of deliberation take place. Only under these circumstances can we be confident that agreement between groups is a possibility. So, not democracy alone, but deliberative democracy, is what is needed in conflict or post-conflict societies seeking stability.

Gulan: You talk about the institutional framework that permits substantive discussion in constitutional settings. Has your theoretical framework been unexpectedly enhanced or tested by any real-world constitutional processes or revisions? And according to your study, deliberative constitutional change is both limited and made possible by federal arrangements. How would you rank the institutional and procedural adjustments that could improve deliberation in Australia's federal amendment procedures in the future?

Professor Ron Levy: While I have focused on how a ‘conciliation branch’ dedicated to deliberation would help mitigate deep divisions in conflict and post-conflict societies, the same deliberation can be useful in a relatively established democratic state such as Australia. After all, no state is entirely without deep divisions. In Australia, divisions between Indigenous peoples and later settlers still lead to persistent constitutional challenges and disagreements. A referendum to adopt a conciliation-branch-like model (which would have been called the Indigenous Voice) was rejected at a referendum. Many of the guidelines regarding a more deliberative referendum noted above would likely have been useful had the Australian government invested in them and adopted them during the Voice referendum.