The Dialectic Between Judicial Review and Political Democratization─A Case Study on the Transition of “besonderes Gewaltverh?ltnis”(Special Rule of the State Over Specific Citizens) Recognized by the Practice of Law in Taiwan.
Date Issued
2015
Date
2015
Author(s)
He, Lu-Yuan
Abstract
This thesis focuses on the democratization-judicial review interaction in Taiwan. On account of the surveying instrument for democratization process and rule of law in practice is human right protection, the main research subject in my thesis is the transition of “ besonderes Gewaltverhältnis”, which signifies the special rule of the state over specific citizens, upon decisions of the judicial organs in Taiwan such as Grand Justices and Administrative Courts. In every single process of democratization, which is upon definitions in this thesis, the features of objective constitutional order that are marked by the transition of “ besonderes Gewaltverhältnis” are compared and taken as a tool for interpreting how the democratization-judicial review interaction in Taiwan is. Upon research methods in Jurisprudence such as legal literature review, comparative law and interpretation in legal reasoning, this thesis make the main argument from some perspectives as follows: theory of constitutional transition, citizens’ control over the state by law, and Hegelian dialectics of legal philosophy. The main argument in this thesis is as follows: as time goes by, what the constitution says, which has been recognized by judicial review of the state, must be inconsistent with how it works, which is influenced and urged by the democratization of the state. In other words, as what the constitution says is regarded as a thesis of Hegelian dialectic stages, how it works as an antithesis to challenge the thesis, and both conflicted as a new specific constitutional controversy. When a new decision to resolve the controversy is made by judicial review, it could be regarded as the synthesis of former dialectic stages and the thesis of next ones at the same time. Such Hegelian dialectic formula, thesis-antithesis-synthesis, could be a powerful model of the democratization-judicial review interaction in Taiwan. This thesis has some findings as follows: 1. Upon the theory of constitutional transition and the one of citizens’ control over the state by law, that the Hegelian dialectic formula being powerful model of the democratization-judicial review interaction in Taiwan is possible in theory. 2. It is applicable to take the moments of R.O.C Constitution amended in history as the milestone to mark democratization processes of Taiwan. 3. The Judicial Yuan interpretations referring to “ besonderes Gewaltverhältnis” embody features of the Hegelian dialectic formula, which are consistent with the main argument in this thesis. 4. In Taiwan, upon some cases of law-amending and the ones of judicial decision-making, the Hegelian dialectic formula is the model of democratization-judicial review interaction, and this model could deconstruct “ besonderes Gewaltverhältnis” .
Subjects
Judicial Review
Democratization
Das besonderes Gewaltverh?ltnis
Dialectic
Constitutional Transition
SDGs
Type
thesis
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