A transnational judicial public sphere as an idea and ideology: Critical reflections on judicial dialogue and its legitimizing potential

Abstract

This article sheds a critical light on judicial dialogue when its purpose and meaning are taken beyond cross-fertilization and comparative reasoning. It cautions against a conceptualization of judicial dialogue as a means to foster commonalities between courts and to legitimize judicial governance. The argument develops from an idealized notion of a ‘transnational judicial public sphere’. In this sphere, domestic, regional and international courts ideally form common opinions through dialogue and pursue common purposes. The danger of this understanding is to construct a new paradigm that not only overlooks important differences in the interest, influence and opinion of courts, but also overstates the socio-normative significance of exchanges between courts and of judicial governance in general. The critical potential of judicial dialogues lies less in the formation of commonalities or in the legitimization of judicial authority than in bringing alternatives and a plurality of opinions to the fore.