Confucian Constitutionalism? The Emergence of Constitutional Review in Korea and Taiwan |
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| Authors: | Tom Ginsburg |
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| Affiliation: | Assistant professor of law and political science, University of Illinois, Urbana-Champaign. Thanoks to Kyong-whan Ahn, Kittisak Prokati, Randall Peerenboom, Wen-Chen Chang, Dae-Kwon Choi, Chenglin Liu, Shin-ichi Ago, Robert Kagan, Edward Rubin, Dimitri Vanoverbeke, Bronwen Morgan, and Javier Couso for helpful comments and discussions. Thanks also to audiences at Chicago-Kent College of Law, the Center for Asian Studies and the College of Law at the University of Illinois, Urbana-Champaign, the Law and Society Association Annual Meeting, Budapest, July 2001, and the Asian Law Center, Faculty of Law, Kyushu University, Fukuoka, Japan, where this paper was delivered as the inaugural lecture in December 2001. |
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| Abstract: | This paper documents the recent emergence of constitutional review of legislative and administrative action in Korea and Taiwan, two East Asian countries seen to be historically resistant to notions of judicial activism and constitutional constraint. It argues that the ability to draw from foreign legal traditions, especially those of the United States and Germany, empowered judges in these countries and therefore helped to alter the structure of public law away from executive-centered approaches of the past. This is consistent with viewing judicial review as essentially a foreign transplant. Nevertheless, the institution of judicial review has some compatibilities with Confucian legal tradition, a point that has implications for how we think about institutional transfers across borders. By constructing a locally legitimate account of what is undeniably a modern institution of foreign origin, the paper argues that constitutional constraint should not be viewed as an imposition of Western norms, but as a more complex process of adaptation and institutional transformation. |
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