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  • Print publication year: 2016
  • Online publication date: September 2018

Chapter III - A Characterisation of Dialogue

from Part 1


The origins of academic legal writing about dialogue can be traced back to publications about dialogue between the (supreme) courts and the legislature in national constitutional systems. Although therefore originally devised for the national legal system, various authors have demonstrated convincingly that the notion can also be usefully applied to judicial dialogue in the EU and to transjudicial communication, that is ‘communication among courts – whether national or supranational – across borders’. Their contributions form a valuable source for explaining why and how dialogue can be of added value to the Convention system, which is done in chapter IV.

This chapter aims to give a characterisation of how the notion of dialogue has been employed in academic legal writing. It is emphasised that this is a characterisation and by no means an exhaustive inventory. It serves to contextualise the dialogue discourse and to give some insights into the possible uses of the notion. To this end, section III.1 starts off with an analysis of why and how dialogue has come to be used by authors writing about national constitutional systems in order to sketch the background to this notion. Additionally, that section explains how various authors have applied the same notion to the EU and other forms of transjudicial communication. In order to place the use of the notion in perspective, the background against which it has been developed in each setting is briefly sketched. To structure the discussions, a distinction is inter alia made between authors who use the notion as a descriptive tool and those who use it normatively. Structuring the chapter in this manner serves to emphasise that the notion of dialogue is applied in different ways and that, depending on one's choice, different questions arise. The descriptive use of the notion leads to the question how the phenomenon can be observed empirically and, when observed, why it takes place. Its normative use prompts the question why dialogue should take place, pointing to the need for dialogue to not be an end in itself, but to have a higher goal, such as promoting judicial learning, preventing conflict or legitimising the role of the judiciary. Once it has been established why dialogue can be of added value, the question arises how dialogue can be attained. Section III.