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.
Constitutional systems are interconnected with each other, and legal ideas have increasingly been exchanged between different constitutional systems. Courts are playing a crucial role in this globalization: they are almost always inspired by and often cite foreign law in their decisions. ‘Judicial dialogue’ is a widely used term for this process in the legal scholarship. However, ‘dialogue’ postulates a two-way communication, an opportunity for understanding the differences and influencing (even shaping) the other party. In the practice, one of the courts is often an unconscious participant. The paper uses the case study of the relationship between the Supreme Court of Canada and the European Court of Human Rights to examine whether it is really a dialogue or rather parallel monologues. It assesses the interrelatedness of the case-law, the form and channels of the communication, the contribution to the development to the other court’s jurisprudence, and the challenges of the dialogue.
There is the growing tendency (and temptation) to refer to the language of constitutional identity by Constitutional Courts when constitutional conflicts with the CJEU and the ECtHR are at stake. It has been also argued that the alternative language of common constitutional traditions would be much more pluralistic by nature and more open to the judicial dialogue model and, it would serve better the purpose of regulating inevitable constitutional conflicts in the EU laboratory of transnational law. Against this background, the paper goes beyond the labels “constitutional identity” and “(common) constitutional traditions” as keywords formalistically used to take for granted the (in)existence of a true will of judicial engagement. The goal is to show as, sometimes, the language of common constitutional traditions could be much less pluralistic, less cooperative and especially less transparent and unfit for a productive judicial conversation than that one of constitutional identity.
The idea of judicial dialogue has immediately been the target of criticism. This criticism is also due to the ambiguity of the concept. Dialogue can be conceived as a kind of judicial interaction, characterized by the presence of some specific features, namely the existence of differing viewpoints, the symmetry between the interlocutors, mutual recognition and respect, equal opportunity to participate, and continuity over time (Torres Pérez). If taken too rigidly, this view risks setting aside forms of influence that could be relevant according to other definitions. According to Tzanakopoulos, dialogue ‘could thus be defined as influence (exercised by the decision of one court on the reasoning and decision of another), or as reaction, or even better, criticism and rejection (by one court of the reasoning or decision of another)’. This paper looks at the origin of this concept in comparative law to stress the transformation that it has known in European law.
Eleven years after it came into force, the Charter of Fundamental Rights is still on probation. It is used occasionally to annul EU acts and double-down on state measures that are already EU-illegal under other EU provisions. However, the Court of Justice has never used the Charter alone as a standard of review for state acts. What appeared as a latency problem hinging on the obscurity of Article 51(1) CFR now emerges as a more unsettling story. The Court has no intention to wield the Charter against member states. Conversely, domestic courts could use it to set domestic measures aside, but do not dare to do so. After a decade, the Court’s hesitation infected domestic courts, which are left without guidance. Does this scenario reflect a tacit understanding between the masters of the treaties or an accidental deadlock? The communication breakdown between Luxembourg and the member states could be a strategy or an accident, and is defusing the Charter’s effect on State measures.