On Dialogue and Domination

Abstract

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 interrogatively distinguish justifiable reasons for legislatures to violate rights from violations unjustifiably made in pursuit of certain objectives by specific means. Second, dialogue could be valued as both a chance for courts to interrupt legislative processes or statutory schemes concerning rights, and for legislatures to deliberatively respond. Third, dialogue could be valued as a means by which courts and legislatures co-ordinately construct the legally indeterminate meaning of rights in a way that protects both rights and the democratic legitimacy of political decisions implicating rights. I argue that the republican conception of freedom from domination justifies constitutional construction as the ideal republican norm of dialogue between courts and legislatures concerning most rights. Interrogative dialogue increases the risk of domination by exhorting courts to engage in a form of political contestation better suited to ancient courts than to the independence and professionalism of modern judiciaries. It also delegitimizes legislative responsibility for rights. Interruptive dialogue solicits aggressive judicial review in ‘first look’ cases that minimizes the probability of legislative responses to unjust forms of adjudication, and thereby stifles the very dialogues it is supposed to provoke. In contrast, the norm of constructive dialogue will encourage courts to minimize the risk judicial review poses to political justice by using their institutional independence and professionalism to primarily enforce the determinate meaning of rights, while recognizing and respecting prospective legislative rights constructions. It will also promote the legislative duty to correct unjust adjudicative constructions.