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8 - Why Do We Care about Dialogue?

‘Notwithstanding Clause’, ‘Meaningful Engagement’ and Public Hearings: A Sympathetic but Critical Analysis

from Part III - Adjudication and Rights

Published online by Cambridge University Press:  04 April 2019

Katharine G. Young
Affiliation:
Boston College, Massachusetts
Amartya Sen
Affiliation:
Harvard University, Massachusetts
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Summary

The theory of dialogic constitutionalism attempts to unite democratic and constitutionalist principles. The goal of this chapter is to study the scope and limits of the practice of dialogic constitutionalism, after almost four decades of its emergence. In particular, the chapter focuses on the study of three so-called dialogic practices, namely the one derived from the use of the “notwithstanding clause” in Canada; the “meaningful engagements” promoted by the South African Constitutional Court; and the public hearings celebrated by both the Argentinean and Brazilian Courts, since the mid-2000s. The intuition that guides this chapter is that, in spite of their remarkable importance and potential, such dialogic practices have not developed in attractive ways, and are still much too dependent on the discretionary will of public officers, and judges in particular. More specifically, the chapter suggests that prevalent institutional systems tend to discourage rather than favor the kind of collective conversations that the theory of dialogic constitutionalism aims to promote.
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Publisher: Cambridge University Press
Print publication year: 2019

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