Book contents
- Frontmatter
- Contents
- Acknowledgments
- Notes on Usage
- Judicial Review in New Democracies
- Introduction: The Decline and Fall of Parliamentary Sovereignty
- 1 Why Judicial Review?
- 2 Constituting Judicial Power
- 3 Building Judicial Power
- 4 Courts in New Democracies
- 5 Confucian Constitutionalism? The Grand Justices of the Republic of China
- 6 Distorting Democracy? The Constitutional Court of Mongolia
- 7 Rule by Law or Rule of Law? The Constitutional Court of Korea
- 8 Conclusion: Comparing Constitutional Courts
- Bibliography
- Index
5 - Confucian Constitutionalism? The Grand Justices of the Republic of China
Published online by Cambridge University Press: 21 July 2009
- Frontmatter
- Contents
- Acknowledgments
- Notes on Usage
- Judicial Review in New Democracies
- Introduction: The Decline and Fall of Parliamentary Sovereignty
- 1 Why Judicial Review?
- 2 Constituting Judicial Power
- 3 Building Judicial Power
- 4 Courts in New Democracies
- 5 Confucian Constitutionalism? The Grand Justices of the Republic of China
- 6 Distorting Democracy? The Constitutional Court of Mongolia
- 7 Rule by Law or Rule of Law? The Constitutional Court of Korea
- 8 Conclusion: Comparing Constitutional Courts
- Bibliography
- Index
Summary
INTRODUCTION
Political constraints on judicial power can become most apparent as they disappear during transitions from authoritarian rule. Conceptually, the simplest kind of transition involves a replacement of one regime by another and the formation of a new constitutional structure as the basis for government power. The task for constitutional courts in such circumstances is to speak for the new democratic order. By contrast, courts in gradual political and constitutional transitions face a more ambiguous environment. They may be unclear on the shifting preferences of key political forces. Furthermore, where courts had formerly served as instruments of government suppression, they are likely to face problems of legitimacy. As guardians of the old order, they may be under pressure to slow reform. They are subject to residual political controls and more subtle pressures.
How can a constitutional court that served an authoritarian regime become an instrument for democracy and human rights? This chapter discusses the Council of Grand Justices in the Republic of China (ROC) and its careful use of doctrine to expand constitutional review power where it had previously been constrained. In contrast with a “grand case” model of judicial review, wherein Herculean judges force the governing powers to comply with the dictates of the rule of law, the Taiwan example illustrates the merits of careful expansion of judicial power through a gradual, step-by-step process.
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- Chapter
- Information
- Judicial Review in New DemocraciesConstitutional Courts in Asian Cases, pp. 106 - 157Publisher: Cambridge University PressPrint publication year: 2003
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