Skip to main content Accessibility help
×
Hostname: page-component-7c8c6479df-ph5wq Total loading time: 0 Render date: 2024-03-29T01:12:07.245Z Has data issue: false hasContentIssue false

7 - Dialogue, Finality and Legality

from Part II - Dialogue and Institutions

Published online by Cambridge University Press:  19 April 2019

Geoffrey Sigalet
Affiliation:
Stanford University, California
Grégoire Webber
Affiliation:
Queen's University, Ontario
Rosalind Dixon
Affiliation:
University of New South Wales, Sydney
Get access

Summary

This chapter has two tasks. The first is to clarify different senses of the term ‘dialogue’. It explores whether it implies an egalitarian relationship between institutions, whether it justifies judicial review, who has the last word under the metaphor, and how, importantly, it relates to the ‘passive virtues’ tradition of judicial restraint associated with Alexander Bickel, John Hart Ely and Cass Sunstein. The second task is to point out certain problems with the dialogue metaphor, and in particular those relating to recent reformulations of the idea. The author argues that the equivocation over who has the last word in rights disputes puts rights at substantial risk; that the dialogue metaphor pays insufficient attention to the need for finality and authoritative resolutions of law; and that the separation of powers is put in doubt where legislatures are invited to reject the constitutional interpretations of the judicial branch. Agreeing with these criticisms does not commit one to a robust view of judicial supremacy, one that makes no room for judicial restraint. To the contrary, the passive virtues tradition that dialogue theory seeks to replace or compete with has fewer of these problems.
Type
Chapter
Information
Constitutional Dialogue
Rights, Democracy, Institutions
, pp. 186 - 206
Publisher: Cambridge University Press
Print publication year: 2019

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×