End of the Conversation or Recasting Constitutional Dialogue?
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.
KeywordsConstitutional dialogue Role of courts Philosophical hermeneutics
- 3.Bickel, Alexander. 1986. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. New Haven: Yale University Press.Google Scholar
- 4.Hogg, P.W., and A.A. Bushell. 1997. The Charter Dialogue between Courts and Legislatures (Or Perhaps the Charter Isn’t Such a Bad Thing After All). Osgoode Hall Law Journal 35: 75.Google Scholar
- 5.Kavanagh., A. 2014. A Hard Look at the Last Word. Oxford Journal of Legal Studies 35: 825.Google Scholar
- 6.Sharpe, R.J., and K. Roach. 2013. The Charter of Rights and Freedoms. Toronto: Irwin Law.Google Scholar
- 10.Hogg, P.M., A.A. Bushell, and W.K. Wright. 2007. Charter Dialogue: Or Much Ado about Metaphors. Osgoode Hall Law Journal 45: 1.Google Scholar
- 11.Gadamer, H.G. 2004. Truth and Method (trans: Weinsheimer and Marshall). London: Continuum Press.Google Scholar
- 13.Ricouer P. 1981. Hermeneutics and the Human Sciences (translated: John Thomson). Cambridge: Cambridge University Press.Google Scholar
- 15.Friedman, B. 2005. The Politics of Judicial Review. Texas Law Review 84: 257.Google Scholar
- 16.Bateup, C. 2006. The Dialogic Promise-Assessing the Normative Potential of Theories of Constitutional Dialogue. Brooklyn Law Review 71: 1109.Google Scholar
- 17.Tate, Neal, and Torbjörn Vallinder (eds.). 1995. The Global Expansion of Judicial Power. New York: New York University Press.Google Scholar
- 18.Hirschl, Ran. 2006. The New Constitutionalism and the Judicialization of Pure Politics Worldwide. Fordham Law Review 75: 721.Google Scholar
- 19.Patrick, Macklem, and Carl Rogerson (eds.). 2012. Canadian Constitutional Law, 4th ed. Toronto: Edmond Montgomery Publications.Google Scholar
- 20.Burrows, John. 2001. Domesticating Doctrines: Aboriginal People after the Royal Commission. McGill Law Journal 46: 615.Google Scholar