Inter-and-Intra Continental Dialogue: Hierarchical Belonging, Constitutional Doctrine and Communicative Structures

The paper examines three models of constitutional dialogue between apex courts. One model identifies “beacon courts” which take a leadership role and communicate a relatively coherent constitutional approach with respect to a set of doctrines and the institutional setting within which the doctrines operate. Another situates some courts as performing a “brokering” function, thereby allowing other nation-state courts to refer to jurisprudence of neighboring states while mitigating some of the symbolic costs associated with such conversations. The third model emphasizes the checking function (or “peer review”) integral to rigorous constitutional dialogue among courts. The paper outlines the attributes of each model, the tensions between the models, and reflects on key “dialogical moments” that shed light on the choices made by courts regarding which model to adopt. It concludes by situating the debate in the larger context of the contemporary pressures faced by liberal democracies.