Journal Article

The legitimacy of judicial review: The limits of dialogue between courts and legislatures

Luc B. Tremblay

in International Journal of Constitutional Law

Published on behalf of The New York University School of Law

Volume 3, issue 4, pages 617-648
Published in print October 2005 | ISSN: 1474-2640
Published online October 2005 | e-ISSN: 1474-2659 | DOI: http://dx.doi.org/10.1093/icon/moi042
The legitimacy of judicial review: The limits of dialogue between courts and legislatures

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  • Constitutional and Administrative Law
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According to the theory of “institutional dialogue,” courts and legislatures participate in a dialogue aimed at achieving the proper balance between constitutional principles and public policies and the existence of this dialogue constitutes a good reason for not conceiving of judicial review as democratically illegitimate. This essay sets out to demonstrate that there are important limits to the capacity of insitutional dialogue to legitimize the institution of judicial review. To that end, it situates the theory of institutional dialogue within the debate over the legitimacy of judicial review of legislation within democracy and introduces a distinction between two conceptions of dialogue—dialogue as deliberation and dialogue as conversation—and examines the limits of each theory. The author does not contend that there can be no dialogue between courts and legislatures but, rather, that the kind of dialogue that would be needed to confer legitimacy on the institution and practice of judicial review does not—and cannot—exist. Consequently, the normative character of institutional dialogue theory, as conceived thus far, is ultimately rhetorical.

Journal Article.  15125 words. 

Subjects: Constitutional and Administrative Law ; UK Politics

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