Not the Last Word, But Dialogue – Deliberative Separation of Powers 2

Abstract

Dialogue is a fecund and expressive image for politics. It is a sign of equality, mutual respect and reciprocity. It denotes a horizontal, non-hierarchical and autonomy-enhancing relationship. It carries a seductive value to justify the exercise of authority. This same image has also been invoked to justify the democratic legitimacy of judicial review of legislation. Despite variations, their basic claim is that the traditional concern with ‘last word’ does not give an adequate account of how the problem of judicial review should be conceived. ‘Last word’, for these theories, does not exist. This article surveys the broad range of ‘theories of dialogue’ and depicts what they add to this old debate.