What determines the character of judicial review as it operates in new democracies? One important factor is the institutional design of the court and access to it, which is the subject of this chapter. The institutional design of the judicial review mechanism is generally, though not always, a product of the written constitution itself. As such, it reflects, in large part, the choices of the constitutional designers. The political bargain struck at the outset of the democratic regime and embodied in the constitutional text will frequently include some provisions for judicial review. Some important features of the judicial review body, such as its jurisdiction, composition, and selection method of its members, may be detailed in the constitutional text.

Text is not the only source of judicial power, however. This qualification is necessary both because some systems of judicial review are not derived from constitutional text (the systems in Israel and the United States are two well-known examples), but also because nonconstitutional norms may be important in shaping the environment of judicial review. Frequently, matters such as terms and procedures are listed in ordinary organic statutes of the judicial review body. Furthermore, judicial decisions themselves will fill in many of the gaps in these frameworks. Particularly important are decisions related to jurisdiction and standing that play a major role in a court's self-articulation of its political role.

This chapter is primarily concerned with the institutional choices embodied in written constitutions and their importance in setting the stage for judicial review.

The remainder of this book will apply the concepts developed thus far to real-world cases of the establishment of judicial review. This chapter begins the inquiry by taking a wide perspective, briefly considering the history of a few well-known courts and their strategic interactions with other branches of government. The three subsequent chapters look deeply at three particular cases of the establishment and expansion of judicial review in Asia.

Judicial review has spread around the globe in three waves. The first wave was that of the United States and the constitutions of its various constituent states. Although judicial review was adopted in a couple of European polities thereafter, particularly after Kelsen's reconceptualization of constitutional review in the early twentieth century, it was not until a second wave of constitution writing after World War II that the practice spread broadly. The third wave of judicial review has been the recent adoption of judicial review in the postcommunist world and other new democracies. In discussing cases from these three waves, we will examine successful cases as well as an instance where judicial review failed to contribute to democratic development and consolidation, namely postcommunist Russia. For each, we will consider the extent of political diffusion as the environmental condition supporting judicial review.

My argument is that, other things being equal, the insurance theory of design and the diffusion theory of judicial power will explain the behavior of courts and politicians.

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.

INTRODUCTION

In contrast with Taiwan's gradual transition, Mongolia presents a useful context for examining the position of a constitutional court created after a clear “constitutional moment.” Since 1990, Mongolia's democratization process has been unparalleled in socialist Asia and is as muscular as any postcommunist society in Europe. Several free and fair elections have been held, a new constitution with extensive human rights provisions ratified, and the formerly Leninist Mongolian People's Revolutionary Party (MPRP) has alternated turns in power with younger democratic parties. By any definition of the slippery concept of democratic consolidation, Mongolia has achieved it.

The new constitutional court, called the Tsets, initially played an important role in this process, constraining legislative majorities and building up a body of constitutional law in a society where socialist traditions of parliamentary sovereignty had previously held sway. As democratic institutions developed, however, the court was increasingly criticized for making overly political decisions. Ultimately, the court provoked a constitutional crisis and found itself increasingly politicized from outside.

Much of the controversy surrounding the court can be traced back to a single decision in 1996 that thrust the court into the center of heated political battle. This was the decision on the structure of government, issued immediately following the historic electoral victory of the National Democrat–Social Democrat coalition. That electoral victory had ended seventy-two years of continuous rule by the Mongolian People's Revolutionary Party (MPRP), the former communist party that had tried to steer post-1990 reforms.

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.

Modern scholarship on judicial review begins with the countermajoritarian difficulty. This famous problem focuses on the propriety of unelected judges, who lack democratic legitimacy, overturning duly enacted decisions of democratic assemblies. This normative challenge has been bolstered by theorists of democracy who argue that judicial power comes at the expense of representative institutions. Judicial review, from these perspectives, is not only unnecessary for democracy, but in fact suspect. In the face of these critiques, most legal scholars discussing judicial review have self-consciously adopted a defensive tone at the outset, trying to justify the role of courts in terms of democratic theory.

The conventional move to solve the problem of courts in democratic theory is to celebrate the role of judicial review in democracy as a check on majority power. Judicial review in this view can facilitate the democratic process by clearing out obstacles to its advancement. Such obstacles can emerge, for example, through majority impositions on the electoral process: It may be in the narrow self-interest of permanent majorities to disenfranchise political minorities, who then have no recourse through ordinary legislative processes. In such instances of systemic failure, the courts can clear the channels of the political process by striking statutes. By serving as a countermajoritarian institution, judicial review can ensure that minorities remain part of the system, bolster legitimacy, and save democracy from itself.

Several scholars have recently articulated a more majoritarian view of constitutionalism that emphasizes the need to empower rather than restrict majoritarian processes.

An old proverb says that when elephants fight, the grass gets trampled. So it is with political conflict and democracy. When political conflict becomes too severe, democracy can be trampled by political institutions run amok. By transforming political conflicts into constitutional dialogues, courts can reduce the threat to democracy and allow it to grow. To play this important role of contributing to democratic stability and deliberation, courts must develop their own power over time.

Constitutional courts play games of power in legal arenas. Courts are empowered by constitutional designers and given tools to protect the constitutional bargain. But the subsequent choices courts make as they play their games can supplement or deplete their arsenals. Courts can challenge others or can seek powerful allies. They can cautiously accumulate policy gains in an incremental fashion or boldly battle for large pieces of territory. They can choose their battles carefully, limiting conflicts to those they can win and thus making future threats credible; or they can blunder badly and provoke crippling counterattacks.

This chapter draws some comparative conclusions from the three case studies of courts in new democracies. These cases, though unusual in the sense that they have been heretofore understudied, illustrate the universal political logic of judicial review and present a range of outcomes that can serve as the basis for broader theory.

THE DESIGN OF SYSTEM: JUDICIAL REVIEW AS INSURANCE

Chapter 1 analogized the decision to adopt judicial review to the decision to purchase insurance in uncertain contracting environments.

INTRODUCTION

The two previous case studies of Taiwan and Mongolia traced the growth of judicial power in the shadow of dominant Leninist parties. In both cases, the dominant party was able to maintain substantial influence on the constitutional court in a democratic era, even as the preferences of the party evolved to reflect the changing rules of the political game. Korea presents a very different context for democratization because the prior regime was a military dictatorship. This type of regime has a different capacity for influencing a court under conditions of democratization, as argued in Chapter 3. Unlike dominant parties, military authoritarians have difficulty translating their power into democratic constitutional schemes. Their only threat is to exit the constitutional order completely. The Korean case therefore illustrates the difference between political party and military regimes in setting the stage for judicial review.

Unlike Taiwan and Mongolia, Korea's democratization process is sometimes characterized as incomplete. Whereas local scholars and politicians in the former two countries celebrate the successful transformation to democracy, scholars of Korean politics focus on the imperfections of its democracy, using such terms as procedural democracy, partial democracy, and electoral democracy to reflect their ambiguity. By any objective measure, however, Korea has made great strides since 1988 in reestablishing representative institutions, expanding protection of civil rights and political liberties, and transferring effective power from the military to civilians. The 1998 presidential inauguration of long-time dissident Kim Dae-jung marked a significant milestone in this regard.

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 France. The government du juges replaced the crown as the primary threat to popular will in French political thought.

It was natural that the early proponents of democracy supported parliamentary sovereignty. They saw threats to liberty from the traditional sources: the ancien régime, the monarchy, and the church.

Our central question is why governments do or do not act according to laws.

The traditional answer to this question has been that the law has an autonomous causal efficacy. People obey the law because it is the law: actions follow prior norms. This view is now being contested by arguments that law cannot be treated as an exogenous constraint on actions. In some situations, the actions that individuals want to and do undertake are stable and predictable even if they do not implement any antecedent laws.

The normative conception of the rule of law is a figment of the imagination of jurists. It is implausible as a description. Moreover, it is incomplete as an explanation. Why do people obey laws? Why do they obey a particular law? Would they obey any norm just because it is a law?

By a normative conception, we mean only the following. First, a set of rules constitutes law if and only if it satisfies some formal conditions. Second, the rules that satisfy these formal conditions are obeyed. Hence, law rules when actions follow anterior norms. The question whether the law rules is thus one of obligation, obedience, or compliance.