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
3 - Building Judicial Power
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
Chapter 2 focused on the creation of constitutional courts and argued that the design of judicial review is to a large degree a function of politicians' insurance needs. However, courts that are created to do one thing can gradually adopt new roles for themselves. Courts are not passive players in the judicial review “game.” Although politicians design judicial review with their own interests in mind as a way of reducing future political uncertainty, there is substantial evidence that courts behave strategically once they are established, both with respect to individual cases and with respect to their own position in the constitutional system.
Judicial activism leads to a potential problem with regard to the insurance theory. If courts are able to assume roles that differ from those anticipated by constitutional designers, would not constitutional designers discount the value of the insurance provided by constitutional courts? In other words, would not prospectively weak constitutional designers want to specify in some detail the norms to be used by courts in constraining political authorities? From the point of view of prospective minorities, however, this is not a problem as long as there is some positive probability that the court will use its powers to constrain political majorities. While the designers will try to channel judicial decision making into certain areas, for example, by specifying jurisdiction, enumerating rights to be protected, and listing sources of law to be considered – the intertemporal nature of the insurance contract means that they cannot do so with perfect confidence.
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- Judicial Review in New DemocraciesConstitutional Courts in Asian Cases, pp. 65 - 89Publisher: Cambridge University PressPrint publication year: 2003
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