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Discovering sovereignty in dialogue : is judicial dialogue the answer to constitutional conflict in the pluralist legal landscape?
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Kuo, Ming-Sung (2013) Discovering sovereignty in dialogue : is judicial dialogue the answer to constitutional conflict in the pluralist legal landscape? Working Paper. Coventry: University of Warwick. Warwick School of Law Research Paper (Number 2013/06).
An open access version can be found in:
Official URL: http://ssrn.com/abstract=2246679
Abstract
Legal scholars have been inspired by the dialogic approach and rallied around it as the solution to constitutional conflict in domestic constitutional orders and the transnational legal landscape. This paper aims to show that the gravitation towards judicial dialogue in contemporary constitutional theory misses the point, given the ambiguities surrounding it. My investigation reveals that the dialogic approach does not succeed in guiding the inter-departmental or inter-regime interactions in a way that no single power would exert unilateral domination. The emergence of judicial supremacy in both national and transnational constitutional orders further suggests that underlying those ostensible examples of judicial dialogue is a transfigured conception of sovereignty. As it is the rise of judicial sovereignty that drives the move towards judicial dialogue in contemporary constitutional developments, I suggest that legal scholars shift focus of attention from the idea of dialogue to the enhanced judicial role in the new constitutional era.
Item Type: | Working or Discussion Paper (Working Paper) | ||||
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Divisions: | Faculty of Social Sciences > School of Law | ||||
Series Name: | Warwick School of Law Research Paper | ||||
Publisher: | University of Warwick | ||||
Place of Publication: | Coventry | ||||
Official Date: | 8 April 2013 | ||||
Dates: |
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Number: | Number 2013/06 | ||||
Number of Pages: | 56 | ||||
Institution: | University of Warwick | ||||
Status: | Not Peer Reviewed | ||||
Publication Status: | Published | ||||
Access rights to Published version: | Open Access (Creative Commons) | ||||
Open Access Version: |
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