Dialogic Judicial Review and its Critics
Supreme Court Law Review (2nd), Vol. 23, pp. 49-104, 2004
29 Pages Posted: 16 Jun 2008
The idea that judicial review can produce a dialogue between courts and legislatures has been getting much scrutiny in Canada. This attention can be explained by the structure of the Canadian Charter of Rights and Freedoms. By allowing ordinary legislation to place limits on rights as interpreted by the courts and even to override them, the Charter contemplates and invites dialogue between courts, legislatures and the larger society about the treatment of rights in a free and democratic society.
In the first part of this article, I will outline the major features of dialogic judicial review in Canada as a political or constitutional theory about how both courts and legislatures can contribute to debates about controversies about rights and freedoms. These key features include both sections 1 and 33 of the Charter, the exercise of remedial discretion to allow legislatures to select among a range of constitutional options and cabinet-dominated Parliamentary government.
Some critics of dialogue argue that dialogue theory lacks normative content ... The fact that one institution can escape the consequences of another's actions says nothing about the latter's legitimacy. In the second part of this article, I will respond to this important critique by acknowledging that there is a need to articulate what courts can uniquely contribute to political debates about rights. Courts should play a role that will not otherwise be played by legislatures.
In the third part of this article, I will attempt to disentangle empirical and normative strands in this important critique of dialogue theory. At an empirical level, we need a better understanding of when and why legislatures accept certain judicial decisions. This will increasingly take those interested in dialogic judicial review into the realm of case studies of the interaction of the judicial and legislative processes.
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By Kent Roach
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