An Account of the Constitutional Dialogue Theory
Martin Shapiro argued that the legitimacy of the judicial review and of courts in general, depends on their “triadic” character.329 The logic of the triad is based on the idea that two parties in conflict refer their dispute to a third, neutral party for resolution. In order to give a full account of what judicial (constitutional) review is, the triadic model of dispute resolution needs to be accompanied by maintain- ing the consent both on the norm that will serve as a ground for settling the dis- pute, and on the judge, the third person who would find the facts and apply the norm previously agreed upon. Still, there is a risk that the moment the third party decides in favour of one of the disputants, the party to which the ruling was not in favour interprets the situation as a shift to a situation of two against one. Therefore, Shapiro supplements his concept by adding a “mediating con- tinuum” that serves to provide communication and positions the third party as a mediator, arbiter. The triadic model mirrors the theory of constitutional dia- logue. The theory of constitutional dialogue was referred to as an intra- institutional channelling of communication on the visions of materialisation of constitutional provisions, particularly on those that bind the state to undertake an action in socio-economic matters. Constitutional review is perceived, in this context, as being conducted to ensure democratic standards of decision-making rather than a means of guaranteeing “right answers” to socio-economic policy complexities. With...
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