Dialogical theory of constitutional jurisdiction

Abstract

The metaphor of dialogue between constitutional jurisdictions and legislatures was born in Canada to describe the role of the Supreme Court after the adoption of the Charter of Rights and Freedoms in 1982. Then he was engaged in the Anglo-American academic space of comparative constitutional law. It is the relationship of the constitutional judiciary to the deliberative paradigm that raises questions, as it is difficult to see how the supervisory function of the judge and his authority to repeal or amend legislative texts can be anything other than a transfer within the limits of the separation of powers. A famous argument in the 1803 U.S. Supreme Court decision Marbury v. Madison: Justice Marshall postulated that the existence of a written Constitution, supreme since its adoption by a sovereign people, implied a judicial guarantee, even if the text did not state it, which applies to all legal acts. including the law. Constitutional justice developed mainly a century later, and then especially at the end of World War II, as did the theory that accompanied it. Those proposed in the context of continental Europe by the Austrian legal theorist Hans Kelsen, who participated in its creation in Austria in 1920. Schematically, the legal order is a hierarchically structured system of norms, each norm of which is valid when it is produced by a norm of a higher rank, up to the Constitution. The judge checks the validity of the rules within the system; A constitutional judge, whether a court specializing in this control or an ordinary judge headed by a universal Supreme Court, checks the conformity of all or part of the norms with the constitutional norm, thus performing an essential function in structuring the legal order. Outside the European Union, the dialogue metaphor has been reused in two contexts where it has played two very different roles, in the space of English-language comparative law and then in America. Then the theory of democratic deliberation was extended to the constitutional judge. In the dialogic conception, as in other variants of constitutionalism understood as cooperative, the case for constitutional revision derives from the ability of courts to help counter failures of inclusiveness and responsiveness to the political process, framed here in terms of "blind spots" and "inertia weights."