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Dialogue isn't working: the case for collaboration as a model of legislative–judicial relations

Published online by Cambridge University Press:  02 January 2018

Eoin Carolan
Eoin Carolan*
Affiliation:
University College Dublin
*
Eoin Carolan, Sutherland School of Law, University College Dublin, Belfield, Dublin, Ireland. Email: [email protected]
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Abstract

In the past two decades, it has become commonplace for legislative–judicial engagement on contested constitutional questions to be described as a dialogue. This paper argues that the time has come to abandon the notion of dialogue. The first part of the paper describes the difficulties with dialogue theories. Despite the existence of many different versions, these theories share certain constitutionally problematic characteristics. Dialogue theories promote a view of government that is unrealistic, susceptible to normative bias and that overlooks the critical importance of disagreement and institutional differences to a system of democratic government based on the rule of law. The second part of the paper argues that Christopher Ansell's idea of collaboration-as-fruitful-conflict provides a more descriptively and normatively appropriate account of the relationship between the legal and political branches of government.

Type
Research Article
Information
Legal Studies , Volume 36 , Issue 2 , June 2016 , pp. 209 - 229
Copyright
Copyright © Society of Legal Scholars 2016

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Footnotes

*

I am very grateful to Gavin Phillipson and Jeff King for their helpful comments on early ideas for this paper, and to the anonymous reviewers for their detailed comments on the first draft.

References

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46. See eg Chandrachud's reference to the ‘promotion of consensus building’ between courts and legislatures as one of the HRA's functions: Chandrachud, above n 23, at 633.

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81. There is a separate and legitimate question about whether metaphors, despite their popularity, are apt to assist or mislead.