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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*
Affiliation:
University College Dublin
*
Eoin Carolan, Sutherland School of Law, University College Dublin, Belfield, Dublin, Ireland. Email: eoin.carolan@ucd.ie

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
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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13. See eg so-called ‘second order’ theories.

14. Notably those associated with the emphasis on a unitary outcome or false consensus.

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28. As of 30 July 2013, 28 declarations of incompatibility had been made under the HRA: fewer than three per year since it came into force. See Ministry of Justice Responding to Human Rights Judgments, Report to the Joint Committee on Human Rights, Cm 8962 (London: HMSO, 2013).Google ScholarPubMed

29. Hickman, above n 2, at 326.

30. Phillipson, above n 2, at 41.

31. Hogg and Bushell, above n 1.

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33. See criticisms of legislative responses along such lines in, eg, Fredman, above n 2; Southerden, TDysfunctional dialogue: lawyers, politicians and immigrants’ rights to private and family life’ (2014) Eur Hum Rts L Rev 252 Google Scholar; Phillipson, above n 2.

34. Southerden, above n 33, at 254.

35. Fredman, above n 20.

36. Southerden, above n 33.

37. Fredman, above n 20, at 296–297 (emphasis added).

38. Ibid, at 294.

39. de Londras, FDeclarations of incompatibility under the ECHR Act 2003: a workable transplant?’ (2014) 35 Statute L Rev 50 CrossRefGoogle Scholar; Carolan, ELeaving behind the Commonwealth model of rights review’ in Bell, J and Paris, M-L (eds) Rights-Based Constitutional Review (Cheltenham: Edward Elgar, forthcoming, 2015).Google Scholar

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43. Phillipson, above n 2; Southerden, above n 33.

44. Roach, KSharpening the dialogue debate: the next decade of scholarship’ (2007) 45 Osgoode Hall L J 169 at 191.Google Scholar

45. This follows from Tremblay's argument that dialogue conceived as mere conversation cannot provide legitimacy in the constitutional context because ‘a dialogue as ‘informal’ conversation has no specific practical purpose, it does not aim at taking a collective decision; reaching agreement; solving problems or conflicts; … or determining together which particular view should govern actions or decisions …. [It[ has no practical outcome to legitimize’: Tremblay, above n 25, at 631.

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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51. Mureinik, EA bridge to where? Introducing the Interim Bill of Rights’ (1994) 10 S Afr J Hum Rts 31.Google Scholar

52. Depending on the theory being applied, this could be read as a moral, constitutional or legal standard.

53. King, JInstitutional approaches to restraint’ (2008) 28 Oxford J Legal Stud 409.CrossRefGoogle Scholar

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55. For the difficulties that this type of approach can create, see the extensive literature on theories of ‘departmentalism’ in the US constitutional jurisprudence. See eg Meese, above n 16; Stokes Paulsen, MThe most dangerous branch’ (1994) 83 Geo L J 217 Google Scholar; Cross, FInstitutions and enforcement of the Bill of Rights’ (2000) 85 Cornell L Rev 1529 Google Scholar; Johnsen, DFunctional departmentalism and nonjudicial interpretation’ (2004) 67 Law & Contemp Probs 105 Google Scholar; Fisher, L Defending Congress and the Constitution (Lawrence, KS: University Press of Kansas, 2011).Google Scholar

56. As opposed to an approach – such as that which the dialogue metaphor can encourage – which, even if it accepts the existence and potential value of distinct perspectives, ultimately aims to resolve them away.

57. Nicol, above n 2, at 743.

58. Allan, above n 2, at 576.

59. Ibid, at 571.

60. Kavanagh, A Constitutional Review under the Human Rights Act (Cambridge: Cambridge University Press, 2009) p 407.Google Scholar

61. Carolan, E The New Separation of Powers (Oxford: Oxford University Press, 2009) ch 7CrossRefGoogle Scholar. That is consistent with the approach advanced in this section, which is an attempt to explore and develop the implications of this view of constitutional government. See also Carolan, EThe relationship between judicial remedies and the separation of powers: collaborative constitutionalism and the suspended declaration of invalidity’ (2011) 46 Irish Jurist 180.Google Scholar

62. See the comprehensive analysis of notions of restraint in King, above n 53, at 428.

63. Ansell, C Pragmatist Democracy: Evolutionary Learning as Public Philosophy (Oxford: Oxford University Press, 2011) p 168.CrossRefGoogle Scholar

64. Ibid, at 169.

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66. Ibid, at 114.

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69. Henneman, E, Lee, A and Cohen, JCollaboration: a concept analysis’ (1995) 21 J Adv Nursing 103 at 104.CrossRefGoogle ScholarPubMed

70. O'Flynn, above n 65, at 112.

71. Ibid, at 115.

72. Gray, B Collaborating: Finding Common Ground for Multiparty Problems (San Francisco, CA: Jossey-Bass, 1989) p 5.Google Scholar

73. Vangen, S and Huxham, CThe tangled web: unravelling and principle of common goals in collaborations’ (2011) 22 J Pub Admin Res & Theory 731 at 731.CrossRefGoogle Scholar

74. Phillipson, above n 2, at 49.

75. Hickman, above n 21, at 96.

76. 384 US 436 (1966).

77. [1994] 3 SCR 63.

78. Roach, KDialogue or defiance: legislative reversals of Supreme Court decisions in Canada and the United States’ (2006) 4 Int'l J Const L 347 at 357.Google Scholar

79. Title II of the Omnibus Crime Control and Safe Streets Act 1968; Act to Amend the Criminal Code 1995.

80. Vangen and Huxham, above n 73, at 732.

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

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