Confucian Constitutionalism: Globalization and Judicial Review in Korea and Taiwan

Abstract

This paper documents the recent emergence of judicial 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. Nevertheless, the institution of judicial review can be described in terms compatible with the Confucian tradition, a point that has implications for how we think about globalization and institutional transfers across borders. By constructing a locally legitimate account of what is undeniably a modern institution of foreign origin, the paper argues that globalization should not be viewed as an imposition of Western norms, but as a more complex process of adaptation and institutional transformation.