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Whither judicial dialogue after convergence? Finding transnational public law in Nomos-Building

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Kuo, Ming-Sung (2022) Whither judicial dialogue after convergence? Finding transnational public law in Nomos-Building. International Journal of Constitutional Law . doi:10.1093/icon/moab093 (In Press)

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Official URL: https://doi.org/10.1093/icon/moab093

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Abstract

One of the major themes emerging from the reinvigorated interest in legal comparativism in the burgeoning transnational legal phenomena is the transnational dialogue among judiciaries the world over, namely, the mutual referencing to judicial decisions across jurisdictional boundaries. This article aims to rethink the role of transnational judicial dialogue in the development of transnational public law by drawing upon Robert Cover’s discussion of the relationship between nomos and narratives. It is argued that the convergent legal doctrines and principles channeled through transnational judicial dialogue are “jurispathic” as they only generate “thin” transnational values with little power of persuasion. To contribute to the thriving of transnational public law, judicial dialogue should look beyond comparative constitutional jurisprudence, shifting the focus away from the convergence of constitutional doctrines to the building of a transnational nomos. By moving from the mutual learning of doctrines to the comparative articulation of nomos-making narratives—the way a specific doctrine or a legal principle is understood and gains its meaning in its legal culture—in transnational judicial dialogue, comparative constitutional law can enable a robust transnational public law enriched with meanings, which hold the key to persuasion.

Item Type: Journal Article
Subjects: K Law [LC] > K Law (General)
K Law [Moys] > KC International Law
Divisions: Faculty of Social Sciences > School of Law
Library of Congress Subject Headings (LCSH): Communication in law, Judicial process, International law, Sociological jurisprudence
Journal or Publication Title: International Journal of Constitutional Law
Publisher: Oxford University Press
ISSN: 1474-2659
Official Date: 2022
Dates:
DateEvent
2022Published
30 November 2021Available
28 April 2020Accepted
DOI: 10.1093/icon/moab093
Status: Peer Reviewed
Publication Status: In Press
Reuse Statement (publisher, data, author rights): This is a pre-copyedited, author-produced version of an article accepted for publication in International Journal of Constitutional Law following peer review. The version of record Ming-Sung Kuo, Whither judicial dialogue after convergence? Finding transnational public law in nomos-building, International Journal of Constitutional Law, 2021;, moab093, is available online at: https://doi.org/10.1093/icon/moab093
Access rights to Published version: Restricted or Subscription Access
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