Judicial dialogue is a concept that has gained academic and institutional attention for decades. There are various forms of cooperation conducive to judicial dialogue, including judges’ associations, as well as international organisations. Entire systems are premised on such dialogue, such as the European Union (EU), whose preliminary ruling procedure has helped the development of a legal order as well as the socialisation of national judges thereto.
Five judges, sitting in five different apex national and transnational courts, met at the Centre of European Law in London on 20 June to discuss this topic from their unique perspective. This high-level panel was composed by Tim Eicke KC, European Court of Human Rights; Dr Jan Passer, Court of Justice of the European Union; Professor. Avv. Giovanni Pitruzzella, Italian Constitutional Court; Lady Rose, The Supreme Court of the United Kingdom; Professor. Dr Simina Tănăsescu, Romanian Constitutional Court. Professor. Oana Stefan, Chair of European Law at The Dickson Poon School of Law, chaired the panel.
What does judicial dialogue mean?
The first question explored how judges perceive judicial dialogue. There was a broad consensus that this phenomenon takes many forms. Judicial dialogue is not limited to formal instances where the written judgment of one court discusses the ruling of another, be it to apply its legal reasoning or to distinguish from it. In fact, informal dialogue is equally important. For example, European judges often interact through semi-structured meetings, where they share best practices and discuss areas of common interest (such as, recently, Artificial Intelligence and digitisation). Bilateral meetings are also quite common.
Each panellist also highlighted a different nuance of this process. From a practical standpoint, it was underlined that successful judicial dialogue is a skill that needs development. This is why members of some judiciaries undergo specific training to that end. The panel also discussed the more pragmatic side of a well-known formal pathway for judicial dialogue: the preliminary reference procedure in the EU legal order. This has become an important venue to accommodate the different priorities of national constitutional courts and the Court of Justice of the European Union (CJEU).
On a more systemic level, the answers also shed some light on why judges are driven to dialogue: they sense their involvement in a common endeavour. More specifically, the panel observed that judicial dialogue is a driving force in the process of substantial evolution of law. Indeed, law is based on a multitude of tests that evolve and mature precisely through dialogue.
It was also remarked that dialogue flows in multiple directions: both between national and transnational courts and within the network of superior courts. For instance, domestic courts may interface with the European Court of Human Rights (ECtHR) for guidance; other times, it is the Strasbourg court that seeks the expertise of national courts on their legal system. True to its name, dialogue is not a one-way street where supranational courts merely instruct national courts what to do.
How does judicial dialogue orient the creation of a common constitutional space?
The next question explored how judicial dialogue can orient the creation of a common constitutional space, both inside and beyond the European Union. The answers positively showcased the potential for such an effect.
The panel highlighted how judicial dialogue beyond Europe is already a reality. The ECtHR regularly engages with the Inter-American Court of Human Rights, demonstrating the global reach of this phenomenon. Judges learn from the case law of other systems to understand and inform their reasoning. One notable example mentioned was a court in continental Europe citing a ruling from the United States in its arguments. These dynamics may well lead to the “transplant” of legal concepts across borders and arguably indicate that judicial dialogue is playing a strong role in shaping an emerging common constitutional space.
The unique position of the CJEU was also discussed. The number of preliminary references to the Luxembourg court both enables and cements its status as a nexus for judicial dialogue. This system is heavily conducive to a common constitutional space, inasmuch as the principle of equality between Member States of the EU and respect of their national identities entails learning from each other.
What should we understand by judicial openness?
The final question asked how judicial dialogue is correlated with judicial openness, where courts engage with civil society, other branches of government, or indeed the epistemic communities of judges outside the courtroom.
The panel discussed the importance of drafting judgments not only for a legal audience, but in a way that enables dialogue with the broader public. To that end, it also discussed the importance of open hearings and different ways that judicial openness may be achieved, for instance through the deployment of streaming technologies or the use of dissenting opinions.
This event was funded by the European Commission under the Jean Monnet Centre of Excellence on Next Generation EU–UK Relations.