The Legal Construction of Power in Deliberative Governance

52 Pages Posted: 30 Jan 2020

See all articles by Henrique A. Castro

Henrique A. Castro

University of São Paulo (USP) - Law School

Date Written: October 29, 2019


Deliberative democracy has grown into an influential normative paradigm for political theory and reform programs alike, but doubts persist about its desirability in a world where strategic action and inequality are prevalent. This problem has spurred efforts to understand the empirical dynamics of power-relations in institutionalized participation. This article argues that sociolegal scholarship has yet to join this turn to power, but that doing so can help it to specify law’s causal and normative relevance in deliberative governance. This is because the legal environment within which actors interact affects causal mechanisms by distributing opportunities for the exercise of power between potential participants, actual participants, and participants and government. The utility of a power-distributional perspective is illustrated through a study of São Paulo’s health councils, one of the world’s largest experiments in deliberative governance. The study demonstrates that the councils’ trajectory and current functioning—including some of their normatively problematic aspects—cannot be understood without reference to legal arrangements. This article is meant as a building-block for sociolegal scholarship to continue investigating deliberation.

Keywords: deliberative democracy, citizen participation, law in politics, institutional change, power assymetries

Suggested Citation

A. Castro, Henrique, The Legal Construction of Power in Deliberative Governance (October 29, 2019). Law and Social Inquiry, Forthcoming, Available at SSRN: or

Henrique A. Castro (Contact Author)

University of São Paulo (USP) - Law School ( email )

São Paulo
+5511983380111 (Phone)

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