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Not the Last Word, but Dialogue: Deliberative Separation of Powers II

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Abstract:

Objections against either judicial or legislative supremacy in the definition of constitutional meaning have usually been cast under a fixed point of departure: who should have the last word, parliaments or courts? “Theories of last word” have been struggling to show the normative and descriptive power of this prism for decades. More recently, a renovated approach seeks to subvert the common core of those theories: in politics, specially when structured under a system of the separation of powers, there is no last word, but an enduring web of new decisions over time. This new strand suggests that the interaction between political branches can be perceived and normatively defended as a form of dialogue. Following an article that systematizes the “theories of last word”, this article frames the variants of the “theories of dialogue” in the American and Canadian literature. In addition, it questions to what extent these theories help to open new avenues for the justification of judicial review and whether it reaches a proper balance between finality and continuity in the construction of a “deliberative separation of powers” ideal.

Document Type: Research Article

Publication date: November 1, 2009

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