2 - Dialogue and Its Myths

Summary

Accounts of democratic dialogue get a bad press. They appear to promise a strong protection of rights which counteracts accusations of democratic deficit. However, legal systems which adopt this approach demonstrate that dialogue is unstable, failing to fulfil its objective. However, these difficulties arise not because dialogue is wrong; but because it is misunderstood. Democratic dialogue cannot provide a ‘middle way’ between legal and political protections of rights. Moreover, interactions between the legislature and the judiciary occur in most legal systems which provide for a legal protection of human rights. In addition, democratic dialogue is not unique to commonwealth models of rights protections. Dialogue can take place in a range of legal systems and those systems with a commonwealth model of rights protections may operate in a manner that does not facilitate dialogue. If we are to understand dialogue properly we need to recognise its role as a constitutional model, focusing on analysing interactions between institutions and identifying the values that may be promoted by such interactions. The real value of commonwealth models is that they may ensure these values are more easily realised.