Confucian Constitutionalism? The Emergence of Constitutional Review in Korea and Taiwan

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.