Dialogue and Domination: A Theory of Judicial Review

Abstract

Abstract: This dissertation justifies a general republican theory of how and why modern courts and legislatures should pursue constructive dialogues about legal rights. It provides a general theory for why constructive dialogue might realize freedom from domination, an explanation of how republican citizens should reason about rights, and applies the general theory to the “new commonwealth model” of constitutionalism. In the first chapter it distinguishes between three reasons and corresponding norms of dialogue: interrogative dialogues, which require courts to assess legislative reasons for justifiably violating rights; interruptive dialogues, which require courts to interrupt statutes threatening rights but then defer to legislative replies; and constructive dialogues, which require courts and legislatures to share and take responsibility for the role of specifying indeterminate rights. Only constructive dialogue will realize the equally shared control of the citizenry over the legal functions of modern courts and legislatures. The second chapter explains the theory of rights underpinning the interrogative conception of dialogue, and argues that this conception of rights is at odds with legally finite rights, and also with two basic desiderata necessary for it to connect with justice: relational consistency and normative conclusiveness. The third chapter develops a republican-specificationist theory of practical reasoning about rights, and argues that republican citizens must prioritize the political justice of freedom from the state over patterns of social justice in order for their reasoning to be consistent and conclusive. This recursively reinforces the claims of the first chapter regarding the justification of the norm of constructive dialogue. The final chapter models how the pre-enactment rights review and non-final judicial review of the “new commonwealth model” is dependent on the norm of constructive dialogue. It demonstrates how the Canadian constitutional version of this model is uniquely dependent on a Madisonian form of co-ordinate construction, and vulnerable to interrogative and interruptive dialogues. It also demonstrates how the New Zealand and UK statutory bills of rights constitute their own model with its own form of potential constructive rights dialogue. Constructive rights dialogues between courts and legislatures are justified as part of the republican watchword: audi alteram partem (listen to the other side).