Shotgun Referendums: Popular Deliberation and Constitutional Settlement in Conflict Societies

By Levy, Ron | Melbourne University Law Review, April 2018 | Go to article overview

Shotgun Referendums: Popular Deliberation and Constitutional Settlement in Conflict Societies


Levy, Ron, Melbourne University Law Review


  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? …

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