From John H. Ely’s Representative Reinforcement Theory On the Dispute of Legitimacy of Judicial Review
Date Issued
2007
Date
2007
Author(s)
Lee, Hsung-Han
DOI
zh-TW
Abstract
Because There are few discussions about the legitimacy of judicial review in Taiwan, we have a brief discussion about the dispute of legitimacy of judicial review in the U.S. academy at first, hoping that this could be helpful for Taiwanese academy to have deeper and more innovative discussions in one hand, and that this could be helpful to set a background of the representative reinforcement theory in the other hand.
Therefore, having introduced professor John H. Ely’s representative reinforcement theory, we makes several responses to the dispute of legitimacy of judicial review. This article suggests because representative reinforcement theory holds that the court shouldn’t make substantial value determinations, and that it intervenes only when the political market is systematically malfunctioning, there are less tension between judiciary and democracy.
Afterwards, this article also collects otheresearchers’ critiques on representative reinforcement theory. Based on these critiques, we hold that there are much more phenomenon of systematically malfunctioning of political market than Ely had identified. Therefore, we have no need to limit ourselves to exclusion from formal political participation and prejudice against discrete and insular minorities as the only phenomenon of systematically malfunctioning of political market.
At the end of this article, we even apply the revised representative reinforcement theory to several important decisions about clearing the channels of political change and facilitating the representation of minorities, not only to reveal how representative reinforcement theory can be applied in concrete cases, but also to prove that representative reinforcement theory does give some innovative and different thinking for the practice of interpreting constitution in Taiwan.
Subjects
司法違憲審查
正當性
代表性補強理論
抗多數困境
系統性失靈
多元民主
孤立而隔絕的少數
Judicial Review
Legitimacy
Representative Reinforcement Theory
Counter-majoritarian Difficulty
Systematically Malfunctioning
Pluralism
Discrete and Insular Minorities
SDGs
Type
thesis
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