The new issue of Academia Sinica Law Journal is available online. HERE! Prof. Chuin-Zeng Lee discusses the procedural rationality of constitutional review by investigating theories of Ronald Dworkin and Habermas. It is worth to read. The full text is written in Chinese and the following is the English abstract:
This article claims that constitutional review, while often engages in quasi-legislation, can achieve its rationality through Habermas’s procedurals approach. Whereas Dworkin’s adjective theory aims to reconcile positive law and justice by ways of Rawlsian reflective equilibrium, this article challenges Dworkin’s monological approach and proposes that the rationality of addiction be founded instead on a revision of Habermas’s theory of judicial legal discourse, which also seeks to accommodate the needs for law’s being both stable and just. To make possible that the discourses of justification are taken into due consideration in the course of constitutional review, this article argues for the relaxation of Habermas’s sharp distinction between the discourses of justification and the discourses of application. With the help of such theoretical modification, this article maintains, the procedural rationality of constitutional review as embedded in the Habermasian multi-discourses therein, may serve to ensure the substantive rationality of constitutional review.