4 - On Dialogue and Domination

Summary

In this chapter I evaluate the interrogative, interruptive, and constructive reasons for favouring dialogue between courts and legislatures in light of the contemporary republican political theory of the relationship between freedom and constitutionalism. First, dialogue might be valued as a means by which courts identify justifiable reasons for legislatures to violate rights. Second, dialogue could be valued as both a chance for courts to interrupt legislative processes concerning rights, and for legislatures to respond. Third, dialogue could be valued as a means by which courts and legislatures co-ordinately construct the meaning of rights in a way that protects both rights and the legitimacy of political decisions. I argue that the republican conception of freedom from domination justifies constitutional construction as the ideal norm for such dialogue. Interrogative dialogue increases the risk of domination by exhorting courts to engage in a form of political contestation. It also delegitimizes legislative responsibility for rights. Interruptive dialogue solicits aggressive judicial review that minimizes the probability of legislative responses to unjust forms of adjudication. In contrast, constructive dialogue encourages courts to minimize the risk judicial review poses to political justice, while respecting prospective legislative rights constructions.