Constitutional, Remedial, and International Dialogues about Rights: The Canadian Experience

I. INTRODUCTION It is striking that this symposium on globalization and the judiciary should select the concept of judicial dialogue as one of its central themes. The idea of dialogue is in some respects an implausible way to describe the authoritative act of judging. Judges, at the end of the day, do not enter into dialogue or a conversation with anyone. In a jurisprudential sense, they decide cases according to their view of the law. Institutionally, they expect their decisions will settle disputes and be obeyed, not start conversations. Nevertheless, the idea of judicial review as a form of dialogue between courts and legislatures has caught on in recent years among both judges1 and commentators2 in Canada. It is now gaining increasing attention in other parts of the world as well.3 President Barak of the Supreme Court of Israel discussed the idea of a constant dialogue between the judiciary and the legislature in his path-breaking Foreword in the Harvard Law Review,4 and the concept has been discussed in recent writings about judicial review in both the United Kingdom5 and Australia.6 Discussion of dialogue is also found in scholarship about law and institutions.7 The idea of judicial dialogue is gaining increasing attention and this attention only makes it more important to be precise about the many different meanings of judicial dialogue and to examine the consequence of conceiving of judging as part of a dialogue. The idea of dialogue is in many ways a more plausible way to understand globalization and some forms of law than judicial review under domestic law. A globalized world is one where people, including judges, engage in multiple and ongoing conversations that cross borders. It is hopefully a world characterized by a sense of openness, modesty, and willingness to learn from others. Justice L'Heureux-Dube, recently retired from the Supreme Court of Canada, has spoken about the importance of a two-way dialogue between courts of different countries and has contrasted the idea of dialogue with a more authoritarian, monological, and colonial idea of the reception of laws.8 The metaphor of dialogue may also be particularly appropriate to understanding some forms of law. As two leading Canadian lawyers have stated, international law most commonly works horizontally, through processes such as normative discourse and negotiation, as opposed to the hierarchical processes of adjudication or enforcement,9 most commonly associated with traditional domestic law. The idea of judgments as part of an ongoing dialogue about the treatment of rights fits into a globalized world where authority is disaggregated10 and judgments are the start of a continued process of critical self-reflection and dialogue as opposed to being final commands that must be obeyed with no questions asked. In this paper, I will examine five different but related forms of dialogue that do not in themselves exhaust all the possible meanings of dialogue in law.11 The first form of conversation and interchange will be the dialogue that occurs between different constitution makers in the making of constitutions. The second will be the dialogue that occurs between courts and legislatures in the context of judicial review and, in particular, the ability of legislatures under many modern bills of rights to enact laws limiting and even overriding rights as interpreted by the courts. The third will be the dialogue that occurs when courts issue remedies that have implications for the executive and legislative branches of government, but allow the elected branches of government a range of possible responses. The fourth form of dialogue concerns the impact of nonenforceable decisions of bodies, such as the U.N. Human Rights Committee, on domestic jurisdictions such as Canada. The final form of dialogue concerns the use that domestic courts make in dualist systems of nonbinding comparative and law in their decisions. …

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