Comparative Constitutional Theory
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Comparative Constitutional Theory

Edited by Gary Jacobsohn and Miguel Schor

The need for innovative thinking about alternative constitutional experiences is evident, and readers of Comparative Constitutional Theory will find in its pages a compendium of original, theory-driven essays. The authors use a variety of theoretical perspectives to explore the diversity of global constitutional experience in a post-1989 world prominently marked by momentous transitions from authoritarianism to democracy, by multiple constitutional revolutions and devolutions, by the increased penetration of international law into national jurisdictions, and by the enhancement of supra-national institutions of governance.
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Chapter 6: Judicial dialogue and fundamental rights in the European Union: a quest for legitimacy

Aida Torres Pérez


Abstract: In Europe, fundamental rights are enshrined in national constitutions, the EU Charter of Fundamental Rights, and the European Convention on Human Rights, which partly overlap but are not hierarchically ordered. In this context, the goal of this chapter is to provide a theoretical account of judicial dialogue as a source of legitimacy for the Court of Justice of the European Union in adjudicating fundamental rights. The prolific use of dialogue and similar notions has worked to mystify the meaning of dialogue. First, the diverse uses of dialogue in the EU academic literature will be examined. Next, the reasons for dialogue from a normative perspective will be spelled out in order to frame a theoretical account of judicial dialogue in the EU. Finally, I will respond to the challenges to judicial dialogue from the perspective of the opposition between strategic and dialogic action, and the adequacy of the preliminary reference as an avenue for dialogue.

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