Brian Tamanaha on Why Not Judicial Review: The Rule of Law or The Rule of (Politicized) Judges?(Brian Tamanaha論為何不是司法審查?法治或是被政治化的法官統治?)

Brian Tamanaha在Balkinization中發表了一篇文章:Why Not Judicial Review: The Rule of Law or The Rule of (Politicized) Judges?,是針對Jack Balkin之前討論憲法法院的重要功能的回應。關於Balkin的主張可以參考此篇!而Tamanaha的批判或許可以這一句作為說明:「Legitimacy based on the rule of law does not come about simply because judges in black robes issue decisions couched in legal terminology. It requires that decisions be determined by the law and appear to be determined by the law. Issues that come before constitutional courts, however, are often the most legally open as well as politically fraught.」

Tamanaha在文後也有提及,在新興民主國家中由於憲法法院的決定較難被推翻,因此提名對於政治行動者便顯得重要:「More to the point, granting judges the power to strike legislation on constitutional grounds raises the stakes for the other political branches because constitutional decisions are harder to overcome. This inevitably leads to battles to control who becomes judges (witness the politicization of judicial appointments in the US). In many societies with fragile democracies, courts are also fragile institutions. Giving courts the power of judicial review may increase efforts to undermine judicial independence, making it all the harder for the rule of law to develop. 」

我想這些討論仍有持續發展的可能性!如果有後續的討論,本部落格再行轉載!

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