Discovering Sovereignty in Dialogue: Is Judicial Dialogue the Answer to Constitutional Conflict in the Pluralist Legal Landscape?

56 Pages Posted: 8 Apr 2013

See all articles by Ming-Sung Kuo

Ming-Sung Kuo

University of Warwick - School of Law

Date Written: April 8, 2013

Abstract

Legal scholars have been inspired by the dialogic approach and rallied around it as the solution to constitutional conflict in domestic constitutional orders and the transnational legal landscape. This paper aims to show that the gravitation towards judicial dialogue in contemporary constitutional theory misses the point, given the ambiguities surrounding it. My investigation reveals that the dialogic approach does not succeed in guiding the inter-departmental or inter-regime interactions in a way that no single power would exert unilateral domination. The emergence of judicial supremacy in both national and transnational constitutional orders further suggests that underlying those ostensible examples of judicial dialogue is a transfigured conception of sovereignty. As it is the rise of judicial sovereignty that drives the move towards judicial dialogue in contemporary constitutional developments, I suggest that legal scholars shift focus of attention from the idea of dialogue to the enhanced judicial role in the new constitutional era.

Keywords: judicial supremacy, judicial dialogue, sovereignty, constitutionalist project, constitutional conflict, judicialization

Suggested Citation

Kuo, Ming-Sung, Discovering Sovereignty in Dialogue: Is Judicial Dialogue the Answer to Constitutional Conflict in the Pluralist Legal Landscape? (April 8, 2013). Canadian Journal of Law and Jurisprudence, Vol. 26, Forthcoming; Warwick School of Law Research Paper No. 2013/06. Available at SSRN: https://ssrn.com/abstract=2246679

Ming-Sung Kuo (Contact Author)

University of Warwick - School of Law ( email )

Gibbet Hill Road
Coventry, CV4 7AL
United Kingdom

HOME PAGE: http://warwick.ac.uk/fac/soc/law/people?id=4945a0b0c6550cc21bbcc89cf0b570af

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