End of the Conversation or Recasting Constitutional Dialogue?

Abstract

Constitutional dialogue has become an influential concept to understand the relationship between courts and other the institutional branches of the state, with the primary focus being on legislatures. More recently, the place of dialogue within the constitutional literature has been challenged as vague; providing a potential to over-reach or overstate the judicial role and distorting the reality of practices which in fact shape the relationship between courts and other institutions. Critics have placed into focus the question: should constitutional scholarship abandon ‘constitutional dialogue’ as a way of understanding the relationship between courts and other institutions within the constitutional order? This article seeks to respond to this question by arguing that constitutional dialogue remains an important aspect of understanding the development of constitutional understanding about inter-institutional roles but does so by acknowledging the criticisms levelled against constitutional dialogue. Developing this approach, the argument made in this article seeks to recast the theoretical foundations of dialogue in constitutional theory by shifting the understanding of dialogue away from its normative and descriptive tethers. In its place, constitutional dialogue should be considered in the context of a philosophical understanding of language and the role that it plays to create constitutional meanings and experiences. Dialogue has a deeper and more significant register than a metaphor conveying a ‘conversation’, ‘communication’ or a ‘deliberative rationality’ between the institutions of the constitutional order—dialogue must be understood through the perspective of language as disclosing a world of common meaning and experience.