Judicial Review in New Democracies: Constitutional Courts in Asian Cases

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Cambridge University Press, Jul 23, 2003 - Law - 295 pages
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.
 

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Contents

The Decline and Fall of Parliamentary Sovereignty
Why Judicial Review?
19
Constituting Judicial Power
32
Building Judicial Power
63
Courts in New Democracies
88
Confucian Constitutionalism? The Grand Justices of the Republic of China
104
Distorting Democracy? The Constitutional Court of Mongolia
156
Rule by Law or Rule of Law? The Constitutional Court of Korea
204
Conclusion Comparing Constitutional Courts
245
Bibliography
263
Index
279
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