Can We Talk? the Application of the Public Law Democratic Dialogue Model to the Interactions between Domestic Legislatures and the European Courts

Abstract

The democratic dialogue model is a domestic constitutional model of rights protection, which is used to explain and evaluate the relationship between domestic courts and legislatures. It is characterised by there being some capacity on the part of the legislature to respond to a court decision and it claims, among other things, to produce a 'better protection of human rights'. This paper examines whether the democratic dialogue model can be, and should be, applied to the relationship between state legislatures and, respectively, the European Court of Human Rights and the Court of Justice of the European Union (the European Courts). The paper first demonstrates that this proposed application of the model differs from other accounts of dialogue hitherto applied at the transnational level. It examines how exactly the model can be applied to the relationship between national legislatures and the European Courts and it demonstrates that the model provides an explanatory framework for the interactions between the institutions. It argues that the normative claims of the domestic dialogue model are achieved when the model is applied in the proposed way, but it acknowledges that the achievement of those normative claims might not always be desirable at the transnational level.