Judicial Role in Divided Society: An Institutional Approach to Juristocracy
Date Issued
2005
Date
2005
Author(s)
Zhu, Deh-Ming
DOI
zh-TW
Abstract
This world has been observing a prevailing phenomenon of judicial empowerment while entering the 21st century. With the impact of globalization and transnational constitutionalism, the third wave democratization uses judicial review as the vital institution to guarantee the consolidation of democracy. But it also shows a tendency that more and more cases are filed into the courts, of which are traditionally in the domain of democratic decisions, but cannot be resolved because of a bi-polar stand-off in the political arena. From Quebecois independence referendum to U.S. Presidential election in 2000, or from the gun-shot case in Taiwanese Presidential election campaign to the fraud case in Ukrainian Presidential election, we saw the judiciary is caught as the battlefield of adversarial political powers. That what are the implications in constitutionalism, and how should the judiciary intervene into these highly contentious cases and, to put it further, how do courts promote democracy, are the main questions we want to analyze in this thesis.
This thesis would use institutional approach to investigate the role that judiciary plays, and tries to build a model of spectrum between the “fundamentally divided societies” and “policy-oriented societies” By consulting the theories of political philosophy and empirical studies of democracy in plural societies, this thesis wants to make a theoretical connection among democracy, constitutionalism and divided society itself, which is the foundation of analytical framework in this thesis.
This thesis finds that in “fundamentally divided societies”, the fault line issues are identity-centered, with value-based arguments which disable the judiciary from intervening actively. By contrast, the issues concerned in “policy-oriented divided societies” are identity-neutral with arguments based on rights. These characteristics make the courts the suitable institutional mechanism of dialogic politics, which is championed by deliberative democracy theorists.
This thesis argues that, in the concrete case of Taiwan, because the divided societal characteristics show a hybrid type of mixture tendency, with different divided arguments being found in the same issue, the political figures that shape the public opinions should adopt a discourse model of policy-oriented, so that when an issue develops to be societal divided and cannot be resolved through democratic elections, the judiciary may act as mediator to heal the division in time, and to fulfill the new constitutionalism paradigm shown in the ear of globalization.
Subjects
民主
憲政主義
全球化
司法治理
形式法治主義
司法積極主義
Constitutionalism
Democracy
Divided Society
Globalization
Juristocracy
Formal Legalism
Judicial Activism
SDGs
Type
thesis
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