Judicial Review in New Democracies: Constitutional Courts in Asian Cases

Judicial Review in New Democracies: Constitutional Courts in Asian Cases

Judicial Review in New Democracies: Constitutional Courts in Asian Cases

Judicial Review in New Democracies: Constitutional Courts in Asian Cases


New democracies around the world have adopted constitutional courts to oversee the operation of democratic politics. Where does judicial power come from, how does it develop in the early stages of democratic liberalization, and what political conditions support its expansion? This book answers these questions through an examination of three constitutional courts in Asia: Taiwan, Korea, and Mongolia. In a region that has traditionally viewed law as a tool of authoritarian rulers, constitutional courts in these three societies are becoming a real constraint on government. In contrast with conventional culturalist accounts, this book argues that the design and functioning of constitutional review are largely a function of politics and interests. Judicial review - the power of judges to rule an act of a legislature or national leader unconstitutional - is a solution to the problem of uncertainty in constitutional design. By providing 'insurance' to prospective electoral losers, judicial review can facilitate democracy.


The decline of parliamentary sovereignty

The idea of the sovereignty of Parliament was long seen as the core of democratic practice. the superior position of the popularly elected legislature and its corollary of majority rule have been central principles for democratic revolutionaries since the notion was appended to the unwritten English constitution. At that time, the threat to liberty was monarchical power, and the subjugation of monarchical power to popular control was the primary goal. the resulting doctrine was that Parliament had “the right to make or unmake any law whatever; and further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament.”

In the continental tradition, the intellectual underpinning of parliamentary sovereignty was provided by the Rousseauian concept of the general will. the people were supreme, and their general will as expressed through their republican representatives could not be challenged. This theory, combined with the regressive position of the judicial parlements in the French Revolution, led to a long tradition of distrust of judges in

the original focus in England during the Glorious Revolution was on control of the crown rather than the rule of the people per se, because the democratic franchise was quite restricted. Jeffrey Goldsworthy, The Sovereignty of Parliament: History and Philosophy (1999). Rakove distinguishes the supremacy of Parliament from the idea that representative bodies were primarily designed to be law-making bodies. Jack Rakove, “The Origins of Judicial Review: a Plea for New Contexts, 49 Stan. L. Rev. 1031, 1052 (1997).

Albert V. Dicey, The Law of the Constitution 3–4 (8th ed., 1915).

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