Joel Conrad Bakan

The concept of democracy is open-textured, in the sense it can accommodate varying normativeand practical conceptualizations. Today, global visions of democracy are trending away from ideals of human rights, egalitarianism, and empowerment – the constituent features of what this project calls ‘quality democracy’. That shift reflects global democratic decline and rising authoritarianism, echoes of which, I argue, can be found in, among other places, discourses of international peacebuilding and governance transition. Democracy discourse in the peacebuildingcontext increasingly lacks substantive reference to or inclusion of ‘quality democracy indicators’ – metrics that are connected to human rights, egalitarianism and empowerment. The United Nations Peacebuilding Commission (PBC) is one of the primary international entities engaged in coordinating peacebuilding support efforts, and incorporating democratization norms and standards into states in transition. Through a case study of the democracy-related discourse of the PBC, focusing on post-conflict Sierra Leone, this project reveals and tracks shifts in theconceptualization, forms, and usage of the concept of democracy. These shifts manifestmovement away from quality democracy towards more formal and weaker conceptions of governance and democracy. In contrast, it is argued, a human-rights and empowerment-based vision of democracy, conveyed through PBC messaging, reports, and documentation, couldfoster more robust quality democratization processes in post-conflict contexts. Thus, this research demonstrates the importance of critical analysis of discourse in International Organizations and the need to articulate quality democracy in discourse within current peacebuilding processes. The case study of the United Nations and PBC organizational discourse lends importance to examination of shifts in democracy discourse and the normative foundationsof democracy support. The goal is to argue for the importance of moving the policy arena awayfrom generic and empty conceptualizations of democracy towards a quality, human-rights and empowerment-based discourse and practice of democratization.

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This dissertation undertakes a cumulative effects analysis of the fossil fuel industry’s numerous tactics to influence public discourse in the U.S., including its use of lobbying, campaign spending, advertising, organizational funding, educational funding, and manipulative rhetoric. In particular, this thesis focuses on the industry’s leveraging of three trends—manufacturing uncertainty, targeting protesters, and expanding constitutional protections for commercial speech. While the fossil fuel industry’s influence over public discourse is often analyzed in parts, this dissertation argues that the true consequences of its actions on discourse and democracy only become visible when seen as a whole. Drawing on dozens of empirical examples, this dissertation documents and analyzes the political infrastructure and financial might the fossil fuel industry can regularly leverage to shape public discourse. It details the fossil fuel industry’s campaign to manufacture uncertainty around climate science, including a timeline, key actors, and key strategies. It demonstrates that the fossil fuel industry is playing a critical role in initiating, amplifying, and supporting government actions to target and stifle climate protesters in the U.S. Drawing on First Amendment theory and doctrine, it shows how protections for commercial speech are expanding, narrowing the distinction between core and commercial speech, and making government regulation and enforcement actions targeting manufactured uncertainty campaigns vulnerable to First Amendment challenges from corporations. Ultimately, this dissertation shows how the multi-pronged approach of the fossil fuel industry allows it to inject its own ideas and policy preferences into the marketplace of ideas, often without the public knowing those ideas are directly linked to industry funding. Simultaneously, the fossil fuel industry targets two of the most powerful checks on industry influence over the marketplace of ideas—public protest and government enforcement actions against false and misleading corporate speech. The impact of the fossil fuel industry’s strategies to influence public discourse is to undermine the constitutional values enshrined in the First Amendment. Yet, the multi-pronged nature of the strategies poses serious challenges for decisionmakers seeking to protect public discourse.

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This thesis develops a theory of curial deference in proportionality analysis under section 1 of the Charter, one of the most undertheorized and doctrinally confused areas of Canadian constitutional law. By drawing, among other things, on insights from Robert Alexy’s theory of epistemic (knowledge-related) discretion, the work outlines the conceptual topology of deference, sketches out the ways in which deference ought to inform judicial review of the proportionality of legislatively chosen measures in achieving legislatively sought objectives, and offers a novel, rule-of-law-based theoretical justification for deference that departs in significant respects from existing justifications based on democratic legitimacy and institutional expertise. In particular, the theory of deference proposed herein carries to a higher level of abstraction the rule of law’s capacity to constrain the political nature of judicial function by fettering the excesses of epistemic discretion inherent in dispensing justice (as explored in the works of Joseph Raz and Judith Schklar, among others). In explaining why the rule-of-law rationale for curial restraint is normatively superior to traditional, competence-based rationales, this thesis re-situates the discussion on deference within the debate over the proper role of judiciary in reviewing the soundness of impugned policy measures. To this end, the work draws on the philosophical, normative, and institutional commitments of Hans Kelsen’s theory of constitutional review and upgrades Kelsen’s insights into the limits of judicial discretionary law-making with reference to modern formal notions of rule of law.Having justified deference on normative and epistemic grounds, this dissertation shows how the doctrine can be brought to bear on the analytical framework for section 1 proportionality reasoning. These proposals offer a course-correction away from currently flawed trends in deference jurisprudence and develop principled solutions to the epistemic difficulties in rights reasoning. Moreover, the suggested corrections incorporate awareness of institutional, doctrinal, and epistemic realities of adjudicating rights disputes under conditions of empirical and normative uncertainty.

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