Whither Judicial Dialogue after Convergence? Finding Transnational Public Law in Nomos-Building
International Journal of Constitutional Law, Forthcoming
32 Pages Posted: 24 Jun 2020
Date Written: May 29, 2020
One of the major themes emerging from the reinvigorated interest in legal comparativism in the burgeoning transnational legal phenomena is the transnational dialogue among judiciaries the world over, namely, the mutual referencing to judicial decisions across jurisdictional boundaries. This paper aims to rethink the role of transnational judicial dialogue in the development of transnational public law by drawing upon Robert Cover’s discussion of the relationship between nomos and narratives. It is argued that the convergent legal doctrines and principles channeled through transnational judicial dialogue are ‘jurispathic’ as they only generate ‘thin’ transnational values with little power of persuasion. To contribute to the thriving of transnational public law, judicial dialogue should look beyond comparative constitutional jurisprudence, shifting the focus away from the convergence of constitutional doctrines to the building of a transnational nomos. By moving from the mutual learning of doctrines to the comparative articulation of nomos-making narratives — the way a specific doctrine or a legal principle is understood and gains its meaning in its legal culture — in transnational judicial dialogue, comparative constitutional law can enable a robust transnational public law enriched with meanings, which hold the key to persuasion.
Keywords: Judicial Dialogue, Transnational Jurisgenesis, Nomos and Narratives, Transnational Public Law, Law and Community, General Principles of Law, Proportionality Analysis, Transnational Epistemic Community, Persuasion, Judicial Reasoning
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