Who Decides? The Rule of Law, Constitutional Structures and the Judiciary in the United Kingdom, the United States, China and South Korea

Abstract

Over the past century or so, the intoxicating Anglo-American concoction of values bolstered by constitutional structures have been unleashed into the world through various globalising forces. Built upon the foundation of the rule of law, this brew of market economics and constitutionalism including enshrined human rights, variations of democratic institutions and the separation of powers ? has swept the world like a wave. Since the late twentieth century, this wave has had a growing impact on the governing structures and values of the People’s Republic of China (“China”) and the Republic of Korea (“Korea”). Given the relatively new exposure to Anglo?American ideas (as well as a few from continental Europe), now is a good time to analyse where China and Korea are with respect to their building up of structures, particularly judicial institutions, that can promote, use and defend the rule of law. Critical to this analysis is determining the answer to this simple question: Who decides? For who decides both (ⅰ) what the law means (interprets the law) and (ⅱ) what types of actions may be taken by executive, judicial and legislative authorities (the limits of governmental action) will have a profound impact on determining to what extent a government respects the rule of law, civil rights, democratic values and economic freedom. Remarkably, the answer to who decides these critical issues is different in not only China and Korea, but also the United Kingdom and the United States. This article analyses certain elements of the constitutional structures of China, South Korea, the United Kingdom and the United States, paying particular attention to the structures that determine how well the rule of law is upheld and where judicial power fits into their respective balance of powers. In China and the United Kingdom, we find courts that are, for very different reasons?one being subject to indirect party control and the other subject democratic hegemony) incapable of checking legislative power and thus systems that have serious deficiencies in upholding the rule of law. In the United States and Korea, we find courts that are structurally empowered. In Korea, there are still questions about whether the courts, particularly the Constitutional Court, can overcome larger societal and cultural issues that stand in the way of a full embrace of the rule of law. There is a strong trend towards Americanization of court power, meaning that judges have become more assertive, and creating more tension between themselves and the legislative and executive officials in their countries. This tension is not something to be feared but it should be embraced as a sign of a healthy, functioning government that is committed to the rule of law. At the same time, it can lead to judiciaries who overstep their bounds, improperly crowd out legislators and thus engage in juristocratic behaviour. All countries, including the United States, need to work to find a better way to balance judicial and legislative hegemony over structural matters. Until a better form of government is devised than those currently on earth, some form of imbalance is inevitable. This is due to the fact that for the rule of law to work, people, some group of imperfect humans, must decide what the law is that does rule. That is why all societies need to pay more careful attention to this question: Who decides?