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Beyond DisagreementOpen Remedies in Human Rights Adjudication$
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Aruna Sathanapally

Print publication date: 2012

Print ISBN-13: 9780199669301

Published to Oxford Scholarship Online: January 2013

DOI: 10.1093/acprof:oso/9780199669301.001.0001

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The Role of the Legislature

The Role of the Legislature

Chapter:
(p.35) 2 The Role of the Legislature
Source:
Beyond Disagreement
Author(s):

Aruna Sathanapally

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199669301.003.0003

Chapter 2 examines what role the legislature might play relative to the courts when open remedies are employed, and prepares the ground for the analysis of the interaction between courts and legislatures. It cogently and critically evaluates the development of, and debate over, the notion of ‘dialogue’ between courts and legislatures over fundamental rights, identifying two divergent understandings of dialogue. It presents two models that guide the analysis of declarations of incompatibility: specialisation (a process of adjustment of legislation between courts and legislatures, with each institution playing its own distinct, or specialised, role) and dual review (where judicial conclusions on human rights compliance are not treated as authoritative and binding, but rather provisional and open to disagreement). This chapter concludes by identifying a notable gap in the existing dialogue scholarship, namely, a tendency to focus on legislative output rather than interrogate the role and processes of the legislature itself.

Keywords:   democratic dialogue, institutional interaction, legislatures, specialisation, dual review, burdens of inertia, blind spots, reasonable disagreement, democratic legitimacy, institutional capacity

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