This speech was given at the Department of Politics of National Taiwan University on 23 October 2025. It aimed to discuss the pros and the cons of judicial activism and minimalism from the perspective of constitutional jurisprudence and judicial behaviourism.
Judicial activism can be understood as a derivative of written (or to use the British legal term, codified) and rigid constitutionalism. It is generally held in high esteem in many countries, and most of its advocates regard its drawbacks as little more than technical problems.
Dr Huang set out to prove that they are systematic flaws. Judicial minimalism or inactivism is nearly perfect in terms of theory, but the precondition for applying it is unbelievably difficult to attain, so it is nothing short of suicidal for an immature democracy to choose it.
TABLE OF CONTENTS
Abstract
Table of Contents
1. Introduction
2. Judicial Review
2.1 My Learning Process
2.2 Judicial Review in the United Kingdom
2.3 Judicial Review in the United States
2.4 Judicial Review in the Republic of China and Its German Origin
2.5 Judicial Review in the Republic of China and Its Adventure
3. Judicial Activism
3.1 Written Constitution: Originalism or Non-Originalism
3.2 The Attitudinal Model
3.3 The Strategic Model I: Separation of Power Games
3.4 The Strategic Model II: Democracy as Judicial Audience
3.5 Towards Judicial Supremacy
4. Judicial Minimalism
4.1 Parliamentary Sovereignty and the Rule of Law
4.2 When There Is a Written and Rigid Constitution
4.3 Judicial Approach of Obiter Dictum
4.4 The Strategic Model III: Judicial Approach of Self-Restraint
4.5 The Recommended Proper Image of the Judiciary
5. Conclusion
ABSTRACT
This speech was given at the Department of Politics of National Taiwan University on 23 October 2025. It aimed to discuss the pros and the cons of judicial activism and minimalism from the perspective of constitutional jurisprudence and judicial behaviourism. Judicial activism can be understood as a derivative of written (or to use the British legal term, codified) and rigid constitutionalism. It is generally held in high esteem in many countries, and most of its advocates regard its drawbacks as little more than technical problems. Dr Huang set out to prove that they are systematic flaws. Judicial minimalism or inactivism is nearly perfect in terms of theory, but the precondition for applying it is unbelievably difficult to attain, so it is nothing short of suicidal for an immature democracy to choose it.
1. INTRODUCTION
I have enjoyed a long debate with Professor Li concerning judicial activism and minimalism (or inactivism, if preferred) ever since I earned my doctorate (PhD in constitutional law). The debate began with his awareness of my resistance to judicial activism. He was very surprised by my change, because it was he who taught me judicial activism 27 years ago. As his former student, I seized upon the opportunity to brainwash him when he sought to figure out how the British had brainwashed me. This is the real life of open-minded jurists per se: we all strive to find a better institution for all mankind, so we debate with each other. If you are curious as to why Professor Li has invited me to give you a speech, especially given that my teaching may contradict his, you have the answer now. In other words, Professor Li and I are, at most, academic competitors rather than enemies, and he is a man who demonstrates his nobility by inviting me to lecture you about something that is contrary to his teaching. In fact, no genuine academic should have enemies; all we should have is our gratitude to and respect for our honourable colleagues for their devotion and contribution to scholarship.
In this speech I shall begin by explaining the origin of judicial review and its development in the United Kingdom and the United States. Because the Republic of China is influenced by Germany and Austria in terms of its jurisprudence,1 I will also discuss the German-Austrian concept of judicial review when I refer to the development of judicial review in Taiwan. As a British-trained constitutional jurist, I feel that history can provide us with many details to comprehend the very nature of an institution, whereas people may often overinterpret something when they undertake pure doctrinal analysis without accessing history. Please try to avoid doing so in your future studies, and I shall take the lead in this speech.
It has been said that written (or to use the British legal term, codified) and rigid constitutionalism gives birth to judicial activism.2 To a certain extent, I would agree. The subsistence of a supreme legal norm that grants judges the power to suppress the present democracy will lead to judicial activism, and by the American separation of powers, which assumes that every branch seeks to maximise its power, it is illogical, if not impossible, to expect judges to self-restrain. When ‘the Constitution is what the judges say it is’,3 democracy is also what the judges say it is, instead of what the people consider it to be, because you have just granted the judiciary the power to determine the tyranny of the majority.4 In brief, judicial activism is still dangerous and we need to know it thoroughly before we choose it.
Judicial minimalism (or inactivism, if preferred) is logically perfect, but in practical terms it is also dangerous. Requiring judges to show complete respect to the present democracy is perfect only if the present democracy is mature enough. It goes without saying that it is suicidal to have no guardian of the constitution (Hüter der Verfassung)5 when our present democracy remains unsatisfactory. I do not have to convince you about this by using the example of the Weimar Republic6 – please just have a look at modern Taiwan!
2. JUDICIAL REVIEW
My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ‘proportionality’ which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.7
In the GCHQ case,8 Lord Diplock held that there were three grounds of judicial review in the United Kingdom, and a fourth ground was open to discussion.9 He also said that judicial review ‘provides the means by which judicial control of administrative action is exercised’.10 This definition surprised me when I was a law school student, as it sounded like administrative litigation (Xing-Zheng-Su-Song) to me. For this reason, I began to pay attention to the historical development of judicial review and tried to figure out what it is from a transnational perspective. Now let me show you what I have found, and please bear in mind what Lord Diplock said before our adventure begins:
Judicial review […] provides the means by which judicial control of administrative action is exercised. The subject matter of every judicial review is a decision made by some person (or body of persons) whom I will call the ‘decision-maker’ or else a refusal by him to make a decision. […] For a decision to be susceptible to judicial review the decision-maker must be empowered by public law (and not merely, as in arbitration, by agreement between private parties) to make decisions that, if validly made, will lead to administrative action or abstention from action by an authority endowed by law with executive powers.11
2.1 My Learning Process
It is worth mentioning my learning process regarding judicial review, because it reflects how difficult it can be for a law student to comprehend such a crucial mechanism when he or she is from a country that lacks a long-standing constitutional culture.12 I will make a small dig at Professor Li right here because he was the person who gave me the first impression of judicial review, and it took me 10 years to discover that his definition was neither complete nor accurate, although it was not wrong.13 As you already know that I was a student of Professor Li 27 years ago, it would be hard for me to criticise his definition. However, he offers me the chance to criticise him right here, because we both embrace the principle of amicus Socrates, amicus Plato, sed magis amica veritas.14
His definition (and description) of judicial review was so heroic (or perhaps, chivalrous) as far as an 18-year-old boy was concerned. He said that judges at all levels should play the role of the Guardians of the Constitution, viz der Hüter der Verfassung,15 striking down evil decisions made by the executive and the legislature solely in line with the constitution.16 Would you all agree with me that this definition (and description) sounds very attractive to boys and girls at your ages? I devoted myself to the study of constitutionalism mainly because of such heroism, but I sincerely thank Professor Li for ‘misleading’ me in such a way. I would probably have pursued my doctorate in macroeconomics instead of constitutional law, or maybe philosophy, had he not persuaded me into believing that I could change the fate of my own country if I become a heroic judicial decision-maker.
I am therefore caught in a dilemma. On the one hand, I want to encourage you to believe that, as a judge, your honesty and determination could change the fate of your respective countries.17 On the other, I must warn you all that judicial heroism is the contempt of democracy, viz countermajoritarian difficulty,18 and a foe to the rule of law.19 If judges are allowed to be too creative, there would be no different from granting them the power to decide what is law on their own. Are you sure that this is a good idea? Would you feel safe letting a specific minority decide what is law for you? And please allow me to pick a fight right here: what is the difference between king worship and judge worship in institutional terms? If you agree with judge worship for whatever reason, I am afraid that you are in no position to laugh at people who believed in dieu et mon droit20 in medieval times, because you all support a cult of personality rather than institution, rule by man (or more precisely, rule by great men or even strongmen) instead of rule of law.
My father was a heroic judge in my eyes when I was young, and I am confident that his reputation as a judge is still noteworthy. You may all sense his great enthusiasm for justice by supporting his son to become a constitutional jurist – but this is extremely costly. My father is no longer my hero now. My criticism is that he, as a judge, always placed his personal sense of justice and morality above the law of democracy, and that, as far as I am concerned, is dictatorship. For the fundamental principle of the rule of law is that no one should have the power to decide what is law on their own. The principle of non ultra petita 21 is not an excuse for judicial activism – it is hilarious, if not ridiculous, to assert that judges should be allowed to behave like Adolf Hitler in court, is it not?
I am aware that you are students from the school of politics rather than the school of law. This means that it is very likely that many of you will become a politician in the future. If there is anything you should learn from law school, I firmly believe that it should be our belief in institution (or, by German legal terminology, norm) and our distrust of any individual, including eminent jurists (and many of them are judges per se). What I have learnt from the constitutionalism of the United Kingdom is that the greatest threat to democracy and freedom is our compulsion to abuse power for the sake of what we think to be just. We can always find a reason that justifies our abuse of power, but sacrificing institution on the alluring altar of expedience usually leads to self-destruction, including the abuse of judicial power.
2.2 Judicial Review in the United Kingdom
Judicial review is a principal means by which the rule of law is enforced. It enables people to challenge the actions of public authorities when they have misunderstood, exceeded, or abused their legal powers, or breached rights protected by the common law. It also provides a route for protecting rights under the Human Rights Act 1998 (HRA). In providing redress, judicial review imposes legal accountability on public authorities that requires them to justify the legality of their actions to the courts. Importantly, the High Court’s power to judicially review decisions of public bodies is ‘inherent’ which means that it is based on the common law and is not granted to the courts by Parliament.22
I obtained a law degree (LLB) in Taiwan first and received a fundamental legal education (GDL) in the United Kingdom later. Because the Republic of China (Taiwan) is a typical Germanic civil law country,23 when I began to study English law, I was very surprised to discover that the counterpart of British (or English) judicial review in Taiwan is not our so-called ‘judicial review’ (Wei-Xian-Shen-Cha) but our administrative litigation (Xing-Zheng-Su-Song). I cannot tell you how much this discovery shocked me, because I found myself ignorant of the links between constitutional and administrative law, as many, if not most, of the constitutional jurists from civil law jurisdictions did. I share this personal experience with you because it shows how hard legal transplant from one country to another can be,24 and how the butterfly effect might work if you decide to modify an institution without careful consideration, even if your modification is a minor one.
The history of judicial review can be traced back at least to the Tudor period.25 It served as a mechanism (and reason) for the English jurists of the time, such as Lord Coke, to establish a constitutional monarchy.26 One of the most remarkable examples is the 1610 Case of Proclamations, in which Lord Coke decided that ‘the King hath no prerogative, but that which the law of the land allows him’.27 The first judgement of judicial activism in the history of mankind was also held by Lord Coke in 1610, viz Thomas Bonham v College of Physicians,28 which predated the well-known Marbury v Madision 29 by 194 years.30 Lord Coke rendered in this historical case that:
[I]t appeareth in our Books, that in many Cases, the Common Law doth controll Acts of Parliament, and somtimes shall adjudge them to be void; for when an Act of Parliament is against Common right and reason, or repugnant, or impossible to be performed, the Common Law will controll it, and adjudge such Act to be void.31
I suppose that some of you may sense that Lord Coke’s understanding of judicial review is close, if not entirely identical, to the model we define as American judicial review today. In logical terms, they are the same. The difference is that the Americans replaced English common law with the Constitution of the United States. For that matter, it may be ironic but arguably reasonable to conclude that logically speaking the American model of judicial review is the prototype, whilst modern (or, more precisely, post-Glorious Revolution) British judicial review is an evolved model.32 Historically it was the enactment of the immortal Bill of Rights 1689 that resulted in such an institutional evolvement, for it declared:
That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;
That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal.33
Please allow me to explain the logic behind the immortal Bill of Rights 1689 to you all: it announced that from now on, the legality of all executive and judicial conduct would be determined only by law, and what is supposed to be law must be determined only by Parliament ultimately and exclusively. Parliament, as the only institution that represents the people, can be thought of as having the sovereignty of England and later the United Kingdom ever since the enactment of the immortal Bill of Rights 1689, and it would be illogical to challenge the will of the true sovereign owner by whatever means, including by means of judicial review, from a legal point of view, viz parliamentary sovereignty.34 Steven Gow Calabresi observed that:
William Blackstone, the greatest commentator ever in English legal history, came up with the fiction that the King-in-Parliament was sovereign because it comprised the three great estates of English society: the monarchy, the aristocracy, and the people. Blackstone followed Hobbes and believed (idiotically) that sovereignty must reside in one institution, and he decided the eighteenth-century English mixed regime passed this test because sovereignty was vested in one place: the King-in-Parliament. Blackstone’s theory, which evolved into parliamentary sovereignty, made judicial review of acts of parliament inconceivable in Britain and for a time in her colonies. A British or colonial judge could no more engage in judicial review of the lawfulness of an act of the King-in-Parliament.35
2.3 Judicial Review in the United States
Huntington argued that after the Tudor period, England went on to develop the concept of a unified sovereignty and a centralized state in the eighteenth and nineteenth centuries. […] The local governing bodies of medieval England evolved into parliamentary districts, with authority increasingly centralized in London; in the years following the Glorious Revolution, Parliament came to be understood as the sole source of sovereignty. While the Common Law remained sacrosanct, England never developed a theory or practice of judicial review by which the courts could invalidate an act of Parliament. Americans, by contrast, clung to Tudor institutions: ‘Political modernization in America has thus been strangely attenuated and incomplete. In institutional terms, the American polity has never been underdeveloped, but it has also never been wholly modern … In today’s world, American political institutions are unique, if only because they are so antique’.36
I must admit firstly that I was completely wrong in my assertion that the American judicial review was an evolved model when I wrote my LLM dissertation at SOAS, University of London in 2012.37 The truth is that British (or English) judicial review was the one that evolved. The British developed a far more rational constitutionalism in which democracy was to be regarded as the genuine sovereign (so as to become the ‘supreme lawgiver’),38 viz parliamentary sovereignty.39 As for the Americans, they chose the path of Lord Coke, which is de facto an antique Tudor-Stuart institution, after independence. However, they had to determine what was supposed to be the American common law by logic before they clung to this old-fashioned English institution. I expect that you are clever enough to realise that the replacement of English common law created by the American framers was the first rigid constitution in human history, viz the Constitution of the United States. And if you think about this question in greater depth, you will understand that the American Constitution has to be rigid to serve as the replacement. Article 6(2) of the US Constitution provided:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.40
I wonder whether the above Article surprises you when you first read it, as it says absolutely nothing about the US Constitution superior to acts of Congress throughout the text. This is beyond our knowledge of the American hierarchy of law,41 by which the Constitution should be the highest norm. But if you compare Article 6(2) of the US Constitution to Lord Coke’s decision in Thomas Bonham v College of Physicians,42 you might wish to explore the legal theoretical link between Lord Coke and American constitutionalism:
[I]t appeareth in our Books, that in many Cases, the Common Law doth controll Acts of Parliament, and somtimes shall adjudge them to be void; for when an Act of Parliament is against Common right and reason, or repugnant, or impossible to be performed, the Common Law will controll it, and adjudge such Act to be void.43
Did Lord Coke say that English Common Law was superior to Acts of Parliament at all times? What do ‘in many Cases’44 and ‘somtimes’45 mean? I would say that Lord Coke ruled in favour of Thomas Bonham because he believed that the Physicians Act 1523 and the College of Physicians Act 1553 (both of which were Acts of Parliament) infringed the English common law principle of nemo debet esse iudex in sua causa.46 Both Acts of Parliament were therefore inapplicable (to the point of becoming void) in the eyes of the courts47 due to the conflict of laws.48 To put it more plainly, Lord Coke regarded Acts of Parliament as lex inferiori and English common law lex superior,49 and by the (conflict of laws) principle of lex superior derogat legi inferiori,50 no Act of Parliament could be enforced by English courts if it contradicted the common law, which would make that Act of Parliament void in legal practice, rather than being abolished in the legal sense. In this sense, his terms ‘in many Cases’51 and ‘somtimes’52 referred to the judicial event we normally address as unconstitutionality today. Let us review some key quotes from Marbury v Madison,53 and I am confident that you all would like to learn how Lord Coke’s ratio decidendi in Thomas Bonham v College of Physicians 54 was reaffirmed (or maybe succeeded) by Chief Justice John Marshall:
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.55
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.56
2.4 Judicial Review in the Republic of China and Its German Origin
Kelsen used to say that what the court does when it invalidates a statute can be classified as part of the ‘legislative function’. The legislative function, he wrote, has two aspects: one is ‘positive’, and the other is ‘negative’. The positive function consists of enacting (or modifying) statutes, and it pertains to parliament exclusively. The negative function, instead, consists of repealing statutes. When the court examines a law and concludes that it offends the constitution, the court cancels that law with general effects. Since this outcome is similar to what parliament does when it repeals a law, Kelsen claimed that the ‘legislative power’ (when it comes to repealing legal provisions) is now shared by two institutions: parliament and court.57
As I have shown that the core of the Tudor-Stuart-American judicial review since Marbury v Madison 58 and Thomas Bonham v College of Physicians 59 is the conflict of laws, it goes without saying that in the event of unconstitutionality, American courts can merely disregard Acts of Congress in cases they are about to decide. No Act of Congress would technically be repealed by any court in this scenario, so no law has ever been made by the trial court. When I choose between two apples, I produce no apple nor ruin any apple; I just make a choice and nothing more, and it would be ridiculous to accuse me of either creating or destroying apples. As to the question of stare decisis,60 it only describes how my way of choosing apples should be appreciated by the later decision-makers. Though I am confident that they would ultimately go with the same choice because my way of choosing apples is too good to defy, they are not bound to do so. In Chinese, we have a colloquialism which vividly describes such a thing: Geng-Fen, to imitate a person’s choice or behaviour voluntarily because you think he or she is so cool. In fact, Robert L. Clinton found that Marbury v Madison 61 was not considered a crucial case by the American courts during the 19th century, and its mythology was created in the early 20th century.62 This is normal, for it usually takes generations to appreciate a smart way of choosing apples voluntarily. However, this is exactly what stare decisis 63 means, and please try not to overinterpret it.
Pursuant to Article 78 of the Constitution, the Judicial Yuan is vested with the power to interpret the Constitution and provide uniform interpretations with respect to statutes and ordinances. The intent of Article 78 of the Constitution is to have the Judicial Yuan assume the responsibility of clarifying and enunciating the correct meaning of the Constitution and statutes and ordinances. The interpretations thus rendered shall be binding upon every institution and person in the country, and each institution shall abide by the meaning of these interpretations in handling relevant matters. Previous precedents that are inconsistent with these Interpretations shall, of course, be null and void.64
The above quote from Judicial Yuan Interpretation No.185 [1984] just exemplifies how a judiciary influenced by Hans Kelsen would behave, and this has irritated Professor Li for life, as far as I know. You know that I was a student of his 27 years ago, and that I am a British-trained jurist, so I am also vexed with Hans Kelsen for this interpretation: how dare you as a judiciary (with no democratic base) declare that your decision ‘shall be binding upon every institution and person in the country’?65 This is of course a typical British legal-constitutional argument which surrounds the question of who is entitled to become the supreme lawgiver.66 I am not sure if Professor Li favours this classic British argument, but I am sure that he would challenge Kelsen and his followers in our Judicial Yuan in accordance with the classic American separation of powers argument: how dare you as a judiciary claim that you are entitled to formally repeal Acts of the Legislative Yuan by constitutional interpretations?67
Our criticisms – from the perspectives of either British or American jurisprudence – are too simple to be concluded by one question: who are you (the judiciary)? Constitutional jurists with American educational backgrounds (such as Professor Li) would query Kelsen and his followers in our Judicial Yuan as to how could it not be a breach of the separation of powers principle to allow courts to possess any kind of legislative power? British-trained jurists (such as me) would ask how can it not be overstepping the mask to permit courts, which are not democratic institutions of power per se, to formally repeal the law of democracy enacted by the legislature? You may disregard it, as a result of a conflict of laws; but you may not repeal it directly, for it would be no different from undermining democracy if any of the institute with no democratic legitimacy, including the judiciary, is allowed to make laws. He who has the power to bypass due democratic procedure of lawmaking and determine what is law unilaterally is a dictator, and I firmly believe that people would pay the price for contempt of democracy sooner or later if such a conduct were to be deemed acceptable.
2.5 Judicial Review in the Republic of China and Its Adventure
Now I am going to tell you how Professor Li ‘misled’ me when I was your age. Please also be aware in advance that I am going to slap my own face by telling you two glorious stories of judicial activism that changed the fate of my own country in 1990 and 2000. I am ultimately a judicial inactivist and an advocate of parliamentary sovereignty,68 but I have no intention of arguing that judicial activism is completely useless. It is quite useful when a democracy is not mature, but it cannot dispose of the law of diminishing marginal utility,69 and ultimately brings more harm than good by undermining the supremacy of democracy.70 Perhaps judicial activism is like antibiotics for constitutionalism; it is very helpful when democracy runs a fever, but it weakens democracy if it is taken as frequently as vitamins.
The terms of office of members of respective congressional bodies are expressly provided in the Constitution. After the members of the First Congress were elected and took office, the nation endured serious upheavals, which militated against election of new members of Congress. In order to keep the constitutional system functioning, it was necessary that all members of the First Congress continue to exercise their powers. However, periodic election of members of Congress is a sine qua non to reflect the will of the people and implement constitutional democracy. Neither J.Y. Interpretation No.31, nor Article 28, Paragraph 2 of the Constitution, nor Section 6, Paragraphs 2 and 3 of the Temporary Provisions Effective During the Period of National Mobilization for Suppression of the Communist Rebellion allow the members of the First Congress to exercise powers indefinitely. None of these provisions was intended to change their terms of office or prohibit election of new members of Congress. In fact, since 1969, the Central Government has been holding regular elections of congressional members in the Free Territory, in order to solidify the congressional bodies gradually. To address the present situation, those members of the First Congress who have not been re-elected shall cease exercising their powers no later than December 31, 1991. Those who have been proven to be incapable of exercising or to have often failed to exercise their powers as revealed by investigations shall be immediately discharged from their offices. The Central Government shall schedule, in due course, a nationwide election of the next members of Congress in compliance with the spirit of the Constitution, the essence of this Interpretation, and all relevant regulations, so that the constitutional system may function properly.71
Does it come as a surprise to you all that Taiwan’s peaceful democratisation was court-ordered ? Another surprise is that the official translation of this judicial decision, as quoted above, was translated word-for-word by Professor Li. Let me tell you the story of this historical judicial review in a brief and humorous way: Once upon a time there was only one China. However, the Chinese communists founded the second China on 1 October 1949, which let the first China lose 99% of its land and then became Taiwan, though its official name remains the Republic of China.72 Congressional representatives from the lost territories were impossible to renew, and the Judicial Yuan made a decision of judicial activism in 1954: let the old keep their seats until holding new elections becomes possible, viz until the fall of the second China.73 These representatives – if they had not died – remained in position until 31 December 1991, when they were removed by another decision of judicial activism.74 Should we make a dig at the 1954 Justices because it appears that they thought so little of the Chinese communists?
You did not hear me wrong. This country was truly freed from dictatorship by a decision of judicial activism, at least in the formal sense75 – what a surprise! However, I must warn you all that it also fell into the hands of dictators (or strongmen) by a decision of judicial activism.76 Power in the hands of the few, including the hands of judges, can be used in either good or bad ways, and it is unrealistic, if not outright madness, to expect it being used only in good ways. You can of course choose to give judges, as the few with no democratic base, the power to judicial activism, but you will suffer from their arbitrariness as much as from the arbitrariness of a king. However, we also need such arbitrariness as antibiotics for our constitutionalism if our democracy is too immature and has fevers frequently. In the event of people being betrayed by their representatives, our Justices rendered a decision of (super) judicial activism by repealing the Fifth Additional Articles of the Constitution of the Republic of China77 in Judicial Yuan Interpretation No.499 [2000], boldly saving our democracy from self-destruction.78 The Justices held that:
The National Assembly is a constitutionally-established organ with its competence provided for in the Constitution. The Additional Articles, enacted by the National Assembly via the exercise of its amending power, are at the same level of hierarchy as the original texts of the Constitution. Some constitutional provisions are integral to the essential nature of the Constitution and underpin the constitutional normative order. If such provisions are open to change through constitutional amendment, adoption of such constitutional amendments would bring down the constitutional normative order in its entirety. Therefore, any such constitutional amendment shall be considered illegitimate, in and of itself. Among various constitutional provisions, Article 1 (the principle of a democratic republic), Article 2 (the principle of popular sovereignty), Chapter II (the protection of constitutional rights), and those providing for the separation of powers and the principle of checks and balances are integral to the essential nature of the Constitution and constitute the foundational principles of the entire constitutional order. All the constitutionally-established organs must adhere to the constitutional order of liberal democracy, as emanating from the said constitutional provisions, on which the current Constitution is founded.79
3. JUDICIAL ACTIVISM
Judges, like most everyone, care about their utility and respond to incentives. Hence, their reputation is an important social and economic asset to the extent that it helps them to achieve their goals and maximize their utility. Reputation provides a credible signal of high quality, which allows judges to fulfill professional duties and achieve career goals. In that respect, judges are provided with different incentives created by a large set of agents, audiences to whom judicial decisions and actions matter.80
Before we discuss judicial activism, the first thing I want you to know is that judges are only ordinary people, albeit generally a little smarter. They have ambitions and personal interests, and their decisions are guided by their motives. They certainly might benefit personally in one way and lose in another by a single decision, but they would not make any decision that would simply harm themselves. They can be considered as jurists, officers of law enforcement (Fa-Guan) or even politicians, but they are neither angels nor saints.
In this part of my speech, I am going to present the ground for judicial activism and the theories that relate to how judicial decisions need to be made in the eyes of political scientists worldwide. I look forward to seeing you change your attitude towards judges, and I apologise in advance if I ruin your heroic vision of them.
3.1 Written Constitution: Originalism or Non-Originalism
Laws that are in conflict with the Constitution shall be null and void.81
Ordinances that are in conflict with the Constitution or with laws shall be null and void.82
I presume that the above provisions are included in almost all written (or by British legal term, codified) constitutions. Hans Kelsen summed up these provisions as the hierarchy of law, viz Stufenbau der Rechtsordnung,83 and construed the constitution as a nation’s basic (or ‘supreme’) norm which shall be applied to invalidate all legal norms inferior to it. Carl Schmitt developed the notion of the guardian of the constitution, viz der Hüter der Verfassung.84 Though Schmitt originally regarded the Reichspräsident as the Guardian of the Constitution85 (a fact that no one informed me about when I was a law school student in Taiwan), this German terminology is commonly used to describe the judiciary today. I suppose that it is because this notion is usually associated with the following provisions, which are also included in almost all written constitutions:
The Judicial Yuan shall interpret the Constitution and shall have the power to unify the interpretation of laws and orders.86
The Constitution shall be interpreted by the Judicial Yuan.87
I have no intention of concluding that a written constitution is the matrix of judicial activism, but I do agree that most of those who believe in a written constitution are judicial activists. As far as I am concerned, it depends on how a person understands the word ‘interpretation’ and how far that person believes in democracy and the rule of law.88 Let me pick a fight by asking a sharp but profound question here: should a judge be allowed to place his or her personal beliefs above the law of democracy? Is it truly democratic to allow judges to put their words into the mouths of constitutional framers? As a firm supporter of same-sex marriage in this country,89 I find it difficult to accept any assertion which says that my constitutional framers supported same-sex marriage. It is impossible for a crowd of geezers born in the late 19th century to accept homosexuality, is it not? I even advocated that we should change the law (by the Legislative Yuan) or amend the Constitution, if necessary, because it is absurd and irrational to ban same-sex marriage, but I want to do it democratically, rather than relying on judges putting their words into the constitutional framers’ mouths. Jurists of my kind are labelled by the Americans as originalists, even though I am not a prototype. True American originalists usually refuse to change, whereas I merely want changes to be made democratically. Sir Francis Bacon wrote:
Judges ought to remember that their office is jus dicere and not jus dare; to interpret law and not to make or give law.90 – Sir Francis Bacon (1612)
The word ‘interpretation’ should be understood in a manner that is consistent with Sir Francis Bacon’s quote as far as I am concerned, and I have no problem with judicial activism if it follows Bacon’s doctrine of jus dicere. For example, my Constitution provides people with the freedom of secrecy of communication.91 I am totally fine with judges determining what should fall within the ambit of secrecy of communication,92 and if this is what you mean by judicial activism, I have no problem with it at all. But it is unacceptable to me in toto if judges announce the very subsistence of the right to privacy in line with Article 12 of my Constitution. Philosophically you may regard the right to secrecy of communication as part of the right to privacy, but logically speaking you may not deduce reversely. If you think about it, all acts regarding human rights protection can be applied to animals because human beings are one kind of animal amongst many. Dare we call this jus dicere if our judges feel entitled to extend human rights protection to animals? And what does the rule of law mean if our judges are free to jus dare, viz to make or unmake any law? Philosophy really matters a lot.
In fact, written constitutions are silent in many aspects. Even if the text of a constitution is as thick as a book, such as the Indian Constitution, it may be silent on some occasions. Judicial activists often argue that judges ought to be entitled to say what the constitution is93 whenever the constitution is silent. They even claim that judge-made constitutional law is an institution settled by the constitution itself, which voids the demand for democratic base as the ultimate legitimate source of lawmaking power. I am afraid that this kind of judicial activism is something I cannot accept, because it is no different from telling me that I must accept that a specific minority, be their title king, queen, president or judge, to make or unmake (constitutional) laws for me without my consent. As far as I am concerned, this is undemocratic – and even anti-democratic.
Those who want to convince me to do something morally right when I become a judge may be interested in the case called West Virginia State Board of Education v Barnette.94 Though I do not intend to discuss this case in detail, I am willing to tell you my personal opinion: If I were a judge, I cannot tell what is morally wrong, so I also cannot tell what is morally right. I cannot judge morality – either right or wrong – because I have no power to jus dare.
3.2 The Attitudinal Model
Influenced by legal realism, political scientists proceed on the assumption that Court can be understood in the same manner as other important government agencies that make policy. As summarized by one respected political scientist, ‘[T]he dominant conception of the Supreme Court [in political science] is of an institution in which justices’ policy preferences are the primary basis for decisions and legal considerations – the desire to follow legal rules correctly – are much less important … the primary reason for the dominance of this conception is that it is largely accurate’.95
The respected political scientist referred to above is Lawrence Baum, professor of political science at the Ohio State University. He influenced me a lot, for my doctoral dissertation was founded on his studies in the realm of judicial audience. As you can see, in the eyes of the American political scientists of the attitudinal school, such as Herman Pritchett96 and Glendon A. Schubert,97 judges are not so much law enforcement specialists as policy (and law) makers.98 Pritchett founded the attitudinal school, whilst Schubert ‘showed how decisions could be placed at ideological points on an attitudinal spectrum’.99 Jeffrey A. Segal and Harold J. Spaeth subsequently produced statistics and built a model based on them to predict future judicial decisions in light of judicial preferences.100 I can only comment that nothing can be hidden before science. Stephen M. Griffin wrote:
[The American] justices over roughly the last half century do not seem to adhere to a strictly legalistic conception of their role. The Justices frequently overturn important precedents and thus do not accept a strong version of stare decisis. The often strained reasoning in Court opinions leads to the suspicion that justices manipulate legal doctrines to produce results that accord with their policy preferences.101
If Professor Li becomes the Justice of the Republic of China, I believe he would become an attitudinal judge because he is an honest person. He has told me since I was a student that no self-respecting judge would ever overturn precedents without righteous reasons, and I agree with him. We are both firm supporters of abolishing capital punishment as well. However, in my view we are not identical, for I suppose that he would regard supporters of capital punishment as irrational people (who must be convinced), whereas I do not attempt to convince anybody even though I support its abolition, for I am open to the possibility that I may be the irrational one. Our attitudes determine how we behave when we become judges, and it would not surprise me to see Professor Li, as the Justice of the Republic of China, declare capital punishment unconstitutional. However, you will see me writing an obiter dictum at most, because my ratio decidendi must adhere to the law of democracy – my personal belief cannot just override the law of democracy. As to the so-called ‘righteous reasons’, I told Professor Li that we are both good enough to defend our respective beliefs through colourful words that appear righteous and noble, so I do not buy this argument at all.
Judicial Yuan Interpretation No.261 [1990] is the most extraordinary attitudinal judicial decision this country has ever taken. In my doctoral dissertation, I described it as a victory for sincere decision-making.102 I have already explained to you all that the Republic of China was defeated by the People’s Republic of China in 1949,103 and that as a result no congressional representative elected from mainland China could be renewed ever since.104 By 1990, it had become a constitutional crisis and disgrace to democratism to allow the old members keep the seats as ordered by Judicial Yuan Interpretation No.31 [1954]. However, it was not easy to remove them when the country had fallen into the hands of dictators (or strongmen) for more than 40 years. The then Justices encountered great political pressure in making any decision in their disfavour, for power once given is very hard to take away.105 However, our Justices still chose to dissolve the congress.106 Justice Herbert H.P. Ma told me in person on 19 July 2013 that:
[T]he issue of indefinite congress must be solved at some time or other, so the Judicial Yuan was not able to sit idly by indefinitely. [I think that people from] your generation should have heard exactly what happened [in those days]: it was questionable whether those old national representatives represented the public opinion of the time, despite the fact that they were still [physically] capable of exercising power? They were all elected from the Chinese mainland. Besides, how could a representative elected 40 years ago reflect public opinion now? For this reason, we – the majority of the fifth-term Justices – held that [our] nation must have [constitutional and political] innovation.107
3.3 The Strategic Model I: Separation of Power Games
Judges, like all political actors, certainly have preferences and goals, but from a rational choice perspective, that claim by itself is not very interesting. Attitudes are essential, as strategic considerations do not make much sense absent clearly defined preferences. But the institutional rules and norms that constrain those attitudes and the interdependent nature of political choices are what matter most. Picking up where [Walter F.] Murphy left off, [Lee] Epstein and [Jack] Knight (1998) argue that every aspect of Supreme Court decision-making should be viewed through a strategic lens. Justices have short-term goals, and the pursuit of these goals involves a series of interdependent choices. The strategic literature quickly developed along two largely separate lines of inquiry – models of strategic interaction between the justices (internal models) and models of the strategic interaction between the Court and non-judicial actors (external models). The internal models are primarily concerned with how justices constrain one another during the opinion-writing process. […] The external constraints literature focuses mostly on [separation of powers] games. The SOP literature developed rapidly in the late 1980s and was in fact responsible for launching the general interest in strategic models of judicial decision-making.108
By considering the above quote, I am sure that you all understand what strategic model refers to. But let me remind you of one thing before we begin the discussion of strategic theories: political scientists of the strategic school simply regard judges as politicians (Zheng-Ke), which is in most of the cases very true, so they find it rational to study judicial decision-making in the same way as they study how politicians (Zheng-Ke) make decisions. This means that if you imagine that judges are like medieval knights (making it rational to support judicial activism), you had better wake up from your beautiful dream. Science often hurts believers, but it tells the truth. If you are willing to be influenced by me, please be a scientist instead of a believer.
I in turn was influenced by Walter F. Murphy,109 the founder of the separation of powers games model of strategic judicial behaviourism110 whilst pursuing my doctorate (PhD). I was quite surprised to learn that judges must let neither the executive nor the legislature win completely (Ying-Ma) on trials because judicial power expansion requires that neither power obtain legal-political dominance. Judges must therefore decide strategically to make sure that the two powers continue to hurt each other, and the best judicial strategy is to let both powers win only partly in one case, or to let one power win on one occasion and lose on the next. In this respect, what judges are doing can be thought of as allowing the people (represented by the legislature) and the king (or president) to fight endlessly. Does this really sound just – even if you claim that this is exactly what the American version of separation of powers wants? Why would we need an institution that allows a power to benefit from making sure that the people and the king (or the president) fight each other endlessly and in the meantime claim falsus that we firmly embrace democratism? What my PhD supervisor, Professor and Dr Alexander C. Fischer, told me regarding the questions above was that it is our real life and our real politics unless you live in Britain, and that is why ‘[l]egal theory must give way to practical politics’111 even if that theory is logically perfect. I think – with some regret – that to a certain degree, he is right.
Judicial Yuan Interpretation No.419 [1996] is a typical strategic decision, because when the decision was rendered, both parties claimed victory over the other – what an amazing decision! This historical case referred to the constitutionality of the President appointing the Vice President as the Premier, and its judicial decision was ambiguous enough to offend neither the President nor the Legislative Yuan, for the Justices ruled that:
The Constitution does not explicitly specify whether the Vice President may concurrently assume the office of Premier of the Executive Yuan. While the nature of the duties of the two offices is not apparently incompatible, the Constitution’s purpose of setting two separate offices, i.e. Vice President and Premier, would not be fully served because the order of presidential succession and the rules of action for the presidency would be affected, should the office of President be vacant or the President be unable to attend to office. The situation that led to the present Interpretation should be properly attended to according to the principles mentioned above.112
If you were on the Legislative Yuan’s side, arguing that it is unconstitutional to allow the Vice President to assume the office of Premier concurrently, you would say that your side won the case because the then Justices said that it would cause problems in the future. But if you were on the President’s side, you would also claim that your side won, because the then Justices said that it is not unconstitutional for this to happen until the event of presidential succession. In particular, when you read the following words of the then Justices as a loyal and humble servant of the President, you would definitely claim victory over the congress, whom you simply see as a crowd of mobs:
[T]he Legislative Yuan’s resolution of June 11, 1996, ‘requesting the President to nominate the candidate for the Premier of the Executive Yuan and to submit such nomination for the Legislative Yuan’s confirmation in the most expedited fashion’ exceeded the constitutional authority of the Legislative Yuan and thus shall be considered advisory and carry no constitutional binding power over the President.113
Judicial Yuan Interpretation No.419 [1996] was formally promulgated on 31 December 1996. However, the then Vice President remained in the office of Premier until 1 September 1997, and no one in this country would support the President’s position as time went by. I should let Professor Li tell you the story of Judicial Yuan Interpretation No.419 [1996] in a more positive way, but please remember how strategic the then Justices were – even if the result was an overall win from the perspective of the future.
3.4 The Strategic Model II: Democracy as Judicial Audience
IN THEIR ESSENCE, the premises of my inquiry into judges and their audiences are simple:
1. People want to be liked and respected by others who are important to them.
2. The desire to be liked and respected affects people’s behavior.
3. In these respects, judges are people.114
The above quote from Lawrence Baum’s book Judges and Their Audiences enlightened me as to the relationship between the people and the Judicial Yuan in the early stages of Taiwan’s democratisation when I pursued my LLM degree at SOAS, University of London. I accomplished my doctoral dissertation, Judicial Supremacy in Taiwan: Strategic Models and the Judicial Yuan, 1990-1999, in light of Baum’s idea. This means that the person standing in front of you all today is a judicial inactivist who is a specialist in judicial activism – what nonsense! In fact, my PhD dissertation was mainly challenged by my honourable British colleagues on the basis of how could I ensure that judges can read the common will of the people correctly in the absence of due democratic procedure? I will tell you my latest answer: I still hold that all individuals, including judges, can feel the common will of the people, but no one can ascertain that his or her personal feeling is correct. In this respect, I thank my honourable British colleagues for reminding me of the importance of due procedure, and I firmly believe that it was right to write down the following academic ‘disclaimer’ in my doctoral dissertation:
[T]his thesis does not intend to challenge electoral democracy. The intention here is to point out that it is possible for an unelected administrator or judge to obtain democratic legitimacy if his/her decision answers to public interests, and he may be as powerful as elected officials in politics by doing so. This thesis considers that elections provide the fundamental precepts of democracy and does not support the Chinese definition of democracy, i.e. democracy with Chinese characteristics.115
If your audience is the people, this is a really serious question. If it is not, any one at helm may claim that the common will of the people is exactly what he or she thinks it is, and no democratic procedure is needed. I believe that this represents a typical way of dictatorial thinking, viz demo-orientation (Min-Ben),116 which stopped the Chinese from building a genuine democracy for thousands of years. Demo-orientation (Min-Ben) is just an old institution which advocates that democracy subsists when the rulers decide in favour of the interests of the people without their consent in advance, and it is obvious that judges would become the aforesaid rulers if they were allowed to jus dare. Because this institution cannot get rid of the law of diminishing marginal utility,117 it is doomed to failure. Even if judicial demo-orientation (Min-Ben) works well in the initial stages of democratisation (such as its operation in Taiwan in the 1990s), its destiny would remain unchanged. The reason is that in cases regarding matters of principle, it is not difficult to guess what the will of the people is. Both Judicial Yuan Interpretation No.261 [1990] and Judicial Yuan Interpretation No.499 [2000] serve as good examples of this. However, these kinds of judicial decisions will all be settled one day, and what are the odds that judges will read the common will of the people correctly in cases that are becoming more complicated and controversial due to the continuous development of democracy? I might be a forecaster of doom (Wu-Ya-Zui) with very high accuracy in the past, but I sincerely hope that I am wrong this time.
Judicial Yuan Interpretation No.618 [2006] is perhaps the best example for showing how judges distort the constitution in accordance with their idea of public opinion. This is a case regarding discrimination against mainland Chinese immigrants by law,118 which apparently contradicts Article 7 of the Constitution.119 I should let Professor Li tell you the story of Judicial Yuan Interpretation No.618 [2006], and I am confident that you would all find the decision completely ridiculous. Of course, we know that it was all about national security, and I am fine with the Act of Cross Strait Relations if it provides that no mainland Chinese immigrant can obtain our nationality unless and until he or she can prove that he or she is not a communist. I do not even mind amending an exceptional clause for Article 7 of the Constitution which provides the necessity to create a second-class citizenship for immigrants from hostile countries, if that is what our people want, though such a thing is extremely stupid as far as I am concerned. But it goes against every shred of democratism and constitutionalism I have ever learned to create a second-class citizenship by judicial decision – what a crazy court that would be! The fact is that judicial activism can do more harm than good, even if judges can read public opinion correctly. In this case the then Justices harmed the dignity of our Constitution, did they not?
No believer in constitutionalism would seek to bypass any due constitutional procedure for whatever reason, because that would be a contempt of his or her personal belief. When we are under a rigid constitution, creating a second-class citizenship can only be possible if the constitution is amended with an exceptional clause for equality, and the difficulty of amending the constitution is no excuse. It is against democratism and the rule of law to create a second-class citizenship without first amending the constitution with an exceptional clause for equality, and in the absence of this clause it would be a contempt of constitution for the judiciary to recognise the very subsistence of that exceptional clause when the constitution is in fact silent. If you allow them to do so, the judiciary can downgrade your citizenship by reason of your stupidity next time, and I am afraid that you prove yourself stupid perfectly well by giving them such a power, which is something I, as a smart proper geezer, would say no to. Lastly, if you are interested in knowing how the American courts decided in similar cases, please study Korematsu v United States 120 and Trump v Hawaii.121
3.5 Towards Judicial Supremacy
We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution. I do not want to see any direct assault upon the courts, nor do I want to see any indirect assault upon the courts.122 – Governor Charles Evans Hughes (1907)
The above quote by Justice Charles Evans Hughes is quite well-known today, but in fact he said that on 3 May 1907, when he was the Governor of New York rather than as a Supreme Court Justice. I suppose that no one would disagree that Justice Hughes’ idea provides judicial activism with an authoritative, if not theoretical, base, because obviously he was somebody, which forces me as a comparative nobody to cite another somebody’s words to back me up. Lord Acton once said that:
Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority.123 – Lord Acton (1887)
It is perhaps thanks to Lord Acton’s maxim that you are willing to listen to me as a nobody now. Let me pick a fight by paraphrasing Justice Hughes’ comment (with modification), and please tell me how you feel:
We are under a Constitution, but the Constitution is what [Kim Jong-Un says] it is, and [the Abeoji (father)] is the safeguard of our liberty and of our property under the Constitution. I do not want to see any direct assault upon [the Abeoji (father)], nor do I want to see any indirect assault upon [the Abeoji (father)].124
How do you feel when the words ‘judges’ and ‘courts’ are replaced with ‘Kim Jong-Un’ and ‘the Abeoji (father)’? Please do not try to convince me that all judges are elites, because no North Korean, if he or she wanted to stay alive, would question that the Abeoji (father) is not an elite. My modification reveals an embarrassing truth, that logically there would be little difference between the executive as the guardian of the constitution125 and the judiciary as the guardian of the constitution,126 because both ideas request a specific minority to decide what ‘the supreme law of the land’127 is. In this respect, choosing the judiciary is perhaps even more unreasonable because in most cases judges have no democratic base, whereas many of the heads of the executive are elected. Professor Li might tell you that it is because the executive and the judiciary are different in nature. Well, even if I accept this argument, I still wonder why it is so hard for a real democrat, if you claim yourself to be one, to accept that no judge in a democracy should be entitled to jus dare ‘the supreme law of the land’128 even if they should be empowered to jus dicere ?
People can strike down any judge-made constitution by amending the constitution when they dislike a specific judicial decision. But that is just a theory. In practice, people may do so only if that judicial decision is completely unbearable, because it is very costly to amend the constitution, which relates to the pros and the cons of the rigid constitution. Anyway, it is not as easy as passing a constitutional act by the UK Parliament, as all judges know. There is an ancient Chinese political philosophy called ‘the transfer of the mandate of heaven’ (Tian-Ming-Zhuan-Yi), which mainly argues that Chinese rulers can become good dictators because the people will overthrow them if they are not.129 As a legal-constitutional academic, I assert that such philosophy is nonsense, and I apply the same reasoning to criticise judicial activism. In the journal article Why China Finds It Difficult to Appreciate Democracy, Professor Li and I wrote:
[T]he lack of sense of [democratic] procedure produces inadequate means against tyranny, that the Chinese people can either admonish the ruler when he or she is still tolerable, or rebel when he or she is unbearable.130
You did not hear me wrong. What I am telling you is that we can only admonish judicial activism until it becomes unbearable whilst choosing a rigid constitution. All judges are smart enough to realise that they would do better not to irritate the public to the extent that we decide to amend the constitution at all costs. I may even agree that judges are generally smarter than dictators. But we still must understand the cost we pay for choosing a rigid constitution, because it is an institution with major – albeit not grave – defects. In fact, it is very unrealistic to expect judges under a rigid constitution to merely jus dicere, as we tell them that their power comes from the constitution131 and that they are entitled to suppress democracy (by labelling that decision as the tyranny of the majority132 ) for the good of our constitutionalism.133 We just bind ourselves to prevent our democracy from going mad, at the cost of losing our capability to ensure that no court would dare to defy the common will of the people, viz countermajoritarian difficulty.134 I identify this political reality as judicial supremacy, and I suggest that you think carefully about whether it is worthwhile to admonish judicial activism (and rigid constitutionalism). My answer is that it is always worthwhile until our democracy becomes mature, but it is (or they are) not our future constitutional institution. In a mature democracy, neither judicial activism nor rigid constitution is needed. Let me make a dig at those who come from the countries with a rigid constitution (including me): when our courts make a judicial decision like Trump v United States,135 do not forget to ridicule ourselves in whatever way you like, because apparently it serves us right.
4. JUDICIAL MINIMALISM
In applying section 3 [of the Human Rights Act 1998] courts must be ever mindful of this outer limit. The Human Rights Act reserves the amendment of primary legislation to Parliament. By this means the Act seeks to preserve parliamentary sovereignty. The Act maintains the constitutional boundary. Interpretation of statutes is a matter for the courts; the enactment of statutes, and the amendment of statutes, are matters for Parliament. […] For present purposes it is sufficient to say that a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate. In such a case the overall contextual setting may leave no scope for rendering the statutory provision Convention compliant by legitimate use of the process of interpretation. The boundary line may be crossed even though a limitation on Convention rights is not stated in express terms.136
I began to change my mind about judicial activism when I was a law school student and Lord Nicholls’ decision in In Re S and In Re W was the straw that broke the camel’s back. What he meant by his decision is that courts cannot alter the repercussions of the implementation of a particular law because this would constitute a conduct of jus dare. I truly appreciated the wisdom of Lord Nicholls, especially when I think that maybe he tried to hint to us that the destruction of our institution usually begins with our overly liberal attitudes towards fundamental constitutional principles. To persist with these principles is not conservative. Instead, it reflects our great enthusiasm for liberty. All I can suggest you is that do not let your liberal attitudes ruin your liberty. Lord Nicholls wrote:
The area of real difficulty lies in identifying the limits of interpretation in a particular case. This is not a novel problem. If anything, the problem is more acute today than in past times. Nowadays courts are more ‘liberal’ in the interpretation of all manner of documents. The greater the latitude with which courts construe documents, the less readily defined is the boundary. What one person regards as sensible, if robust, interpretation, another regards as impermissibly creative.137
4.1 Parliamentary Sovereignty and the Rule of Law
Let me pick a fight right from the start of this part of my speech by asking the following question: which country would you consider it to be a democracy; a country where there is no parliament but a president elected by the people democratically, or a country where there is a democratic parliament with a monarch who was not elected by the people? Please think carefully before answering my question, because Nazi Germany represents the former and the United Kingdom represents the latter. In history, Adolf Hitler became the Führer (Führer und Reichskanzler) through the German referendum of 1934,138 and in the meantime I wonder if any reasonable person would regard the United Kingdom as anything other than a democracy. Would you? My question also tells an embarrassing truth, that no parliament nor congress would be needed if you believe that your president can represent you simply because you voted for him or her. Are you sure this would be a democracy you are satisfied with? Well, I am not, because I refuse to consider any elected executive official as my representative – I just grant consent to their ruling, so I always need my representative to monitor them on my behalf. That is why we need a democratic parliament or congress, because only our parliament or congress can represent us. Please try to learn the lesson from the Nazis and never repeat the German tragedy of trusting the executive officials during the period of the Third Reich. No person in power deserves your trust, so they cannot represent you. British constitutional jurist Albert Venn Dicey wrote:
In England we are accustomed to the existence of a supreme legislative body, i.e. a body which can make or unmake every law; and which, therefore, cannot be bound by any law. This is, from a legal point of view, the true conception of a sovereign.139 – Albert Venn Dicey (1915)
Sovereign power is not an indistinct legal-political concept in the United Kingdom. Dicey’s quote provides a clear and concrete idea about sovereign power, that it is the ultimate power to make or unmake laws (including the constitution).140 This is the most specific definition of sovereign power (or sovereignty) I have ever learned, and let us recall how all kinds of governments and authorities rule in the real world – by law. So, the focus of our attention becomes who can make laws, and the most important question we must answer is whose law shall be supreme? Can you find any better answer than democracy? I doubt it.
Because democracy is the best choice when possessing sovereign power, the law of democracy ought to be supreme, and no one should be able to challenge it for whatever reason. This constitutes the concept of the rule of law. Please be aware that what I mean by ‘no one’ should not only include citizens but also executive officials (Xing-Zheng-Guan) and judges (Fa-Guan) because they are all ‘Guans’. The Chinese usually find it difficult to distinguish executive officials from judges, which causes problems in constitutionalisation.141 But this time our old categorisation prevails, and when we are about to learn which power under the separation of powers framework can truly represent us, our old notion helps. Neither the executive nor the judiciary can defy the law of democracy by making their own laws because they are all ‘Guans’. No law of democracy could be produced by the will of Adolf Hitler despite the fact that he was democratically elected to be the Führer of Germany, and that is determined by its very nature. If one man cannot produce the law of democracy, I see no reason why 9 or 15 persons should – this is called ‘oligarchy’ in terms of political theory. In this respect, there is no difference between elected and unelected executive officials, because by the very nature of the executive, neither could produce the law of democracy. I am afraid that judges, by the very nature of the judiciary, are the same.
Democracy refers to an institution in which the people (demo-) shall rule (-cracy), so it is important to confirm the common will of the people. Parliamentary legislation is usually recognised as the most formal form of the common will of the people, because parliament, by its very nature, possesses democratic diversity. ‘Seven nays and one aye, the ayes have it’142 can never be the way parliament makes decisions, but it may be the routine the executive uses to make decisions. Do you know who established the ‘[s]even nays and one aye, the ayes have it’143 rule? Would you be surprised if I told you that the rule was established by President Abraham Lincoln?144 If you feel surprised, the story behind Judicial Yuan Interpretation No.419 [1996] could shock you out of trusting the judiciary in future: the decision of strategic ambiguity in this Interpretation, according to Justice Tung Hsiang-Fei, was not the final determination of the then Justices. Six key Chinese characters that had proved that the bench had made a determination of unconstitutionality were removed from the judgement without the consent of the bench, thus making the Interpretation as ambiguous as we see it today.145 Justice Tung Hsiang-Fei hinted that only the then Head of the Judiciary, Shih Chi-Yang, had sufficient power to do this unilaterally, and the then Chief Justice Weng Yueh-Sheng remained silent when Justice Tung Hsiang-Fei asked him why those six key characters were removed.146 Well, ‘[y]ou don’t know the power of the dark side’,147 do you?
4.2 When There Is a Written and Rigid Constitution
In my view only parliament or congress – if our democracy is mature – can produce the law of democracy; the executive can only produce the law of autocracy and the judiciary the law of oligarchy. These laws are determined by observing the decision-making processes of the three powers, and I doubt that any of the processes could be altered by a written (or by British legal term, codified) and rigid constitution. What we usually know about separation of powers is the American version of the concept, which is, according to Paul D. Monero, an extreme version – in contrast with the original version that was developed in England.148 The law of democracy, the law of autocracy and the law of oligarchy are given equal weight under the constitution, and we look forward to watching the show of checks and balances.149 I believe that this is really a good idea in practice, but in theory it is very problematic and may even be paradoxical. Let me explain to you why.
If you claim that the judiciary can repeal an act of the legislature, by logic you are agreeing that the law of oligarchy can prevail over the law of democracy, viz countermajoritarian difficulty.150 Whatever justifies the claim, including the claim that it is constitutionally authorised, cannot change the fundamental logic. When there is a constitution by which all three powers are settled accordingly,151 the power that is institutionally entitled to define that constitution152 is de facto supreme, especially in the countries such as mine, where the judiciary is entitled to declare constitutional amendments unconstitutional.153 How dare we claim to be a democratic country if our law of democracy is not superior to our law of oligarchy? Please do not argue that this is because the constitution provides for it; that this is one of the stupidest answers I have ever heard, as you are telling me that the communists are entitled to rule China in perpetuity because it has been constitutionally provided that they can do so.154 This is exactly the theoretical illogic of written and rigid constitutionalism of which we all must be aware.
You also may argue in line with social contract155 that the written and rigid constitution is the social contract agreed by our constitutional framers, but that does not mean that we must comply with it. If you claim that we must comply with whatever our predecessors had agreed to, I must warn you that in logical terms your way of thinking is the same as that which is advocated by the Chinese communists. They argue that the Chinese Communist Party was already chosen by the Chinese people in 1949 so that an estoppel has been raised against the Chinese people.156 – what a magical way of applying promissory estoppel! I am persuading you all into believing that you, as sovereign owners, cannot abandon any of your respective sovereign powers whatsoever. You can of course choose to comply with the constitution established by your forefathers, which is the choice I would recommend in most cases, but you must do it voluntarily. It is your voluntary compliance that legitimises your constitution, and if it is not, the genuine sovereign owners of your nation would not be you; it would be that crowd of dead geezers who founded the constitution. This means that we can only become a contracting party to our respective great social contracts (and thus our respective constitutions) by our own free will, and this will lead to two crucial principles of constitutionalism: that democracy is supreme and shall not be bound by a constitution simply because the present democracy legitimises that constitution, and that nothing can prohibit the people from founding a new constitution, which means that nothing can stop the people from amending whatever articles they want into the constitution. Lord Justice Laws in Thoburn v Sunderland City Council ruled that:
Parliament cannot bind its successors by stipulating against repeal, wholly or partly, of the ECA. It cannot stipulate as to the manner and form of any subsequent legislation. […] The British Parliament has not the authority to authorise any such thing. Being sovereign, it cannot abandon its sovereignty.157
There is a pre-Brexit British legal presumption that argues that Parliament can choose to leave the European Union, so if it chooses to stay in the Union, the EU law should be regarded as a legal norm with parliamentary consent. If you want to apply this British theory and assert accordingly that no new constitution or amendment to it means voluntary compliance, the two crucial principles stated above must serve as the premise of your argument, because it is nonsense to talk about voluntary compliance if you have no sovereign power (and right) to refuse to comply with it. This is logic, which means that it is universal.
However, ‘[l]egal theory must give way to practical politics’.158 As I have told you, only parliament or congress can produce the law of democracy. Logic therefore dictates that neither the executive nor the judiciary can produce the law of democracy. However, it does not mean that parliament or congress can guarantee the production of the law of democracy, because this depends on whether or not our democracy is mature enough, right? Parliament or congress, in most countries, does not produce the law of democracy but more likely the law of partocracy. Such a phenomenon creates a dilemma: in the event that the will of a specific political party (and its leaders) is likely to prevail over the will of the people in parliament or congress, should we insist that acts of the legislature must be superior to the law of oligarchy made by the judiciary when they apparently follow the law of partocracy? Even I would tell you that I would rather support the law of oligarchy.159
4.3 Judicial Approach of Obiter Dictum
Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process.160
I shall begin by claiming that parliamentary sovereignty161 is a form of constitutionalism that is applicable only in a mature democracy, whereas written constitutionalism is a more realistic institution for immature democracies. As I have already said, when democracy remains immature, we must admit that our parliament or congress may fail to produce the law of democracy from time to time, and no reasonable person would accept a claim of legal supremacy (a synonym for legal sovereignty in the political sense, for no institution in a democracy can possibly be supreme in real politics per se) by parliament or congress. Even if our parliament or congress could consistently deliver the law of democracy, it would still be problematic as our people are often irrational. As Lord Hoffmann said that ‘Parliament can … legislate contrary to fundamental principles of human rights’162 and ‘[t]he constraints … are ultimately political, not legal’,163 I assume that you would not be naïve enough to believe that there would be any political constraint upon the legislature if the people acted irrationally in a specific matter, would you? Let us recall the most notorious Judicial Yuan Interpretation No.618 [2006], by which our law of democracy deprived a citizen of the right to public service as an elementary school clerk because of her origin, and our law of oligarchy created a second-class citizenship to back that irrational law of democracy up.164 Neither the legislature nor the judiciary ‘must squarely confront what it is doing and accept the political cost’.165
Let us go back to the United Kingdom. Its landmark case A and Others v SSHD 166 serves as a good example of how the judiciary influences parliament, with respect. The case centres on an act of Parliament regarding the ‘indefinite detention without trial of foreign national terrorist suspects who could not be prosecuted or deported’,167 namely Section 21 of the Anti-terrorism, Crime and Security Act 2001. I cannot go into detail, so please read the judgement if you are interested. In this case the House of Lords agreed that the judiciary should respect Parliament’s political judgement,168 but the Law Lords clearly showed concern over Section 21 of the Act if it targeted alien terrorists only, as this would constitute discrimination per se. Lord Hoffmann therefore persuaded Parliament to change its mind by submitting an obiter dictum that has deeply impressed me ever since I was a student:
The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.169
The UK Parliament passed a new law, viz Prevention of Terrorism Act 2005, in response to Lord Hoffmann’s obiter dictum, showing that democracy in the United Kingdom was (and still is) mature (and rational) enough to listen to the advice of the judiciary. At the same time, it also proves that humiliating parliament or congress by striking down the law of democracy may not be the judiciary’s best possible approach. The judiciary in whatever jurisdiction will fall into the trap of countermajoritarian difficulty170 if it challenges the legislature because of a lack of democratic base, and I really doubt that any reasonable person would dare to advocate electing all judges directly unless they did not care about the consequence of judges becoming complete politicians (Fang-Fei-Zi-Wo). The judiciary is supposed to be composed of law enforcement specialists; if we want judges to do their jobs well, we must expect them to be neutral, but they can only be neutral when they realise that their personal belief cannot override the law of democracy. They are of course more than welcome to write down what they personally believe, but only in the form of obiter dictum instead of ratio decidendi.
4.4 The Strategic Model III: Judicial Approach of Self-Restraint
By institution, professors are judges in classrooms because we are entitled to mark, but what is even worse is that in most circumstances you cannot reverse the result even if the law allows you to complain. Now let me ask you a question: would you agree that professors should mark you in accordance with ‘marking activism (or maximalism)’ and claim that we, as professors, should be entitled to full and unlimited discretion to give you any mark in the event that the rules of marking are unclear or silent, simply because we are by institution entitled to mark? Please do not ever grant such a power to your professors, even if you consider them to be noble people. Instead, you should demand that your professors interpret the rules of marking in a minimum way, which would mean that their personal preferences would not affect the marks they gave you.
If a university regulation provides that a student shall fail if he or she skips lectures to an unacceptable level, and you fail because you skip every lecture, would you blame your professor by making the decision to fail you? But if you fail by skipping just one lecture, can you accept your professor’s decision? In fact, the university’s regulation is too ambiguous to become a rule – what does the regulation-maker mean by ‘an unacceptable level’? In the former situation I suppose that almost everyone in this class – apart from me – might agree that you should fail because skipping every lecture is surely unacceptable, and no discretion is needed to determine that your conduct falls within the definition of the university’s regulation. In the latter situation the decision is of course controversial, but in the philosophical sense the controversy originates precisely in the use of discretion. As to my decision, I shall comply with precedents, viz stare decisis. This means that if the precedents show that a student would fail by skipping 10 lectures, I will never fail you if you skip only 9 lectures. Please be aware that I use no discretion, unless you want to assert that following the precedents is my way of using discretion. I can accept your argument if you acknowledge that I have at least provided legal clarity, namely that you clearly know where the cutoff point is before you decide to skip 9 or 10 lectures, insofar as I lose the discretion to change my mind.
Legal certainty (Rechtssicherheit) is supposed to be a fundamental principle that neither civil law nor common law jurists would disapprove of. But the above example simply tells us an ugly truth, that using discretion will usually result in uncertainty, because discretion is by its very nature arbitrary, so it is generally unpredictable. If you truly regard legal certainty (Rechtssicherheit) to be an important institution, you will do your best to avoid using discretion – unless you are caught out by an unprecedented case. You will find judicial activism perilous, and following precedents will be considered as a safer choice even if you are legally not bound to do so. Such way of thinking is indeed strategic, and the core of the strategy is to persuade judges into doing no wrong by sticking strictly to the law of democracy and in the meanwhile establishing a stare decisis system accordingly.
Judges should not behave like busybodies (Ji-Po) who seek to generate value in politics. No judge can be a hundred percent sure that his or her judicial audience will like his or her way of using discretion to meddle in the affairs of law-making. It is quite imprudent, if not naïve, to think that everybody likes judge-made laws. Judicial activism could therefore bring more harm than good to the judiciary itself when no judge can ensure that judge-made laws are always favoured by the people. Judicial activism is destined to anger the people at some point or other, especially if judges try to legalise something they firmly believe to be just – it is just a matter of when.
It is said that judges are usually smart enough to avoid provoking the people. To a certain extent, I would agree with that. For example, both Judicial Yuan Interpretation No.476 [1999] and Judicial Yuan Adjudication, 113 Constitutional Trial No.8 [2024] serve as good examples of judges constitutionalising capital punishment when the vast majority of my country’s citizens stand for it (reciprocal justice).171 However, the problem is just not that simple. Even if it were true that judges can always avoid provoking the people when the preference of the vast majority is clear, what happens when public opinion is equally divided? For example, the US Supreme Court might irritate half of the population when it constitutionalised abortion in Roe v Wade,172 and enrage the other half by overruling Roe v Wade 173 via Dobbs v Jackson Women’s Health Organization.174 People living in democracies usually have different opinions on different topics. This simply means that no matter how judges choose, they will eventually provoke all the people by angering half of the population in every single case. What is even worse is that judges would still be blamed even if they decided not to make any decision based on judicial activism again. If a court has the prestige of judicial activism, how can it explain to the people whose hope is dependent on judicial activism as to why judges decide to pull back in certain situations?
Now let me elaborate the merit of judicial self-restraint. When I as a judge sentence the accused in the light of the law of democracy, no one on earth can accuse me of doing wrong even if my judgement seems to be unfair to him or her. For I cannot make laws, it would just be nonsense to blame me for unfair results if my ratio decidendi adheres to the law; it is parliament or congress that should be blamed for such unfair results, and it is crystal clear that only the legislature, and not the judiciary, can alter an unpleasant situation by amending a new act democratically. The most I can do is to write my obiter dictum, suggesting that parliament or congress enacts what I believe is right. Under this scenario, I am not a lawmaker, I am at most the advocate of a democratic bill (with prestige), insofar as no one can accuse me of violating the separation of powers principle, because I make no law. I am not even responsible for the new law because it is enacted by the legislature democratically. It is the people (and their representatives) who decide when and if to change the law, not me. I am part of the judiciary, and a promoter at most.
4.5 The Recommended Proper Image of the Judiciary
In the last part of my speech, let us talk about the proper image of the judiciary. This is of course an open question, but I suppose that most people would have a broadly similar answer: the judiciary should deliver justice to all of us. This was the image of the judiciary Professor Li showed me 27 years ago, and the picture my father had shown to me since I was a child. But once again, the issue is just not that simple, for we must ask the following question as the premise of our consent to the above answer first: whose justice should the judiciary deliver to all of us? Their respective sense of justice or the justice of democracy? For those who are unfamiliar with this philosophical debate, please go back to my previous speech, The Spirit of Democracy,175 which I would not repeat here. However, my question highlights two possible images of the judiciary: it can either become an institution which delivers justice capriciously (and sometimes astonishingly, for every judge has unique sense of justice) or an institution which shows complete respect to the law of democracy and delivers justice accordingly.
If you ask me how judges go about showing complete respect for the law of democracy, I believe that it is imperative for them to distinguish lex ferenda from lex lata, insofar as they should learn not to put their words into the mouths of the lawmakers and constitutional framers. Let me tell you a funny story. I often tell a brother of mine, Harry ZH Lin, that according to the signs it appears that the will of God is X. As my former student who now specialises in constitutional law and macroeconomics, he often argues that I read the signs wrongly, so the will of God should be the opposite. One day, I poked fun at us both by saying that God in fact said nothing at all, and that when we attempt to persuade each other it is only us putting our respective words into God’s mouth. Harry laughed. He answered that this is the behaviour all people have but very few are willing to admit to. Judges are ordinary people. This means that they might say what the law is (lex lata) in line with their vision, thus creating disguised (or new) laws through the overinterpretation of the law of democracy by putting their words into the mouths of the lawmakers and constitutional framers – I shall identify such kind of laws as judicial lex ferenda. And only if we require judges to show complete respect for the law of democracy (including the constitution as the highest form of the law of democracy), I think that they would keep telling us that judicial lex ferenda is lex lata.176 They would seize any opportunity to materialise their belief into our law, instead of admitting that the law of democracy is silent right there and it requires amendment by the will of the people.
You may be interested in knowing that proportionality was introduced to Taiwan by the Judicial Yuan without parliamentary consent in the 1990s. Though I appreciate it, I must admit that proportionality was never mentioned in any official document in this country during the initial period of constitutional implementation, which weakens the allegation of Article 23 of the Constitution177 as its source of constitution. To put it plainly, I doubt that the allegation reflects the historical truth, and it is more likely that my constitutional framers were totally unaware of it. We probably put our words into their mouths, though nobody, including the Legislative Yuan, cares if it was smuggled by the Judicial Yuan into our Constitution because it is generally good in terms of results. This story shows that people in my country lack a sense of due democratic procedure of lawmaking and cannot sense anything wrong before their authorities do evil. In this respect, the Judicial Yuan creating something that drives the people mad (such as Trump v United States 178 ) is only a matter of when, unless they learn from Lord Ackner, who held in R v Secretary of State for the Home Department ex parte Brind that:
Unless and until Parliament incorporates the Convention into domestic law, a course which it is well known has a strong body of support, there appears to me to be at present no basis upon which the proportionality doctrine applied by the European Court can be followed by the courts of this country.179
Another issue that most of the legal academics in Taiwan never acknowledge is the linkage between legal clarity (Rechtsklarheit) and separation of powers. Taiwan’s judiciary overall holds itself responsible for plugging the loopholes in acts of the legislature, and for this reason judges enjoy arbitrary (for no stare decisis system has been settled on the pretest of judicial independence, which is quite amusing) power to interpret laws.180 They have produced plenty of cases that contradict each other due to the absence of a stare decisis system. When the judicial activism of a busybody (Ji-Po) combines with judicial resistance on stare decisis, it simply becomes a perfect storm over judicial reputation. What is even worse is that judges in Taiwan are unlike judges in the United Kingdom, for we do not have Lord Nicholls to draw a line between jus dicere and jus dare.181 What we have instead is Judicial Yuan Interpretation No.371 [1995], in which our Justices ruled to let the Judicial Yuan do the jus dare job exclusively if that affair is constitutionally concerned.182
Legal clarity (Rechtsklarheit) produces legal certainty (Rechtssicherheit). The judiciary should know that there would have been no judicial dignity or reputation had there been no legal certainty, which makes legal clarity a more desirable value for the courts to pursue. This means that a mature (and wise) judiciary should not only self-restrain in order to strengthen legal clarity, but also check-and-balance the legislature by holding acts of the legislature unusable in situations where the wording is overly ambiguous, viz presumption against an alternation to the common law (or to the status quo, if there is no common law in that jurisdiction).
In a nutshell, we do not pretend that parliament or congress can do no evil, but it is very important for the judiciary not to make laws and stick strictly to the law of democracy. Because ‘the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost’,183 the demand for legal clarity is just the way judges check-and-balance parliament or congress by forcing lawmakers to announce what they truly mean in a crystal clear form. It is perfectly possible that our representatives in parliament or congress want to do evil, and their best strategy to avoid being sanctioned by the people is to pass an act of the legislature that is vague and indefinitely worded. In this context, would you look forward to seeing judges behaving like busybodies (Ji-Po)? Or would you prefer them to become demon-detectors (Zhao-Yao-Jing)?
5. CONCLUSION
Whether judges should behave actively is a matter of choice. Whatever choice – judicial activism or minimalism – is made has a price attached to it, so I would assert that the key point is choosing the most advantageous option in line with the development of our respective democracies. Neither choice comes without a price. The only thing I am opposed to is creating a priceless or perfect image for either option, because doing so would mislead us into making wrong decisions when the crucial constitutional moment184 emerges. For that matter, if there is anything I as a former student want to blame Professor Li for, it should be that he gave me a too perfect image for written and rigid constitution and judicial activism. And my ‘reprisal’ has been to teach him parliamentary sovereignty and judicial minimalism as my feedback in the past decade – what an evil former student I am. However, you must know that I actually blame him for nothing – though I might make a few small digs – because even I would agree that choosing a written and rigid constitution and judicial activism is still the best option for my own country for the moment. In Chinese, we have a vivid analogy: do not take the cathartic approach if you are not strong enough (Mei-Na-Ge-Pi-Gu-Bie-Chi-Na-Xie-Yao), and this is my comment on the promotion of judicial minimalism in modern Taiwan, though it does not mean that I would encourage my own country to persist in its present written and rigid constitutionalism and judicial activism forever.
However, ‘[l]egal theory must give way to practical politics’.185 The ground for judicial minimalism is the subsistence of a mature democracy under which either the people or their representatives in parliament or congress must behave rationally, so that the production of the law of democracy lasts indefinitely. It is meaningless to talk about judges showing complete respect for the law of democracy if there is no such law, and it is parliament or congress or even the people themselves that should be blamed when there is no such law. Now let me say straight away that I am not interested in having a debate with you as to what a mature democracy is supposed to be, for whether or not you accept judicial minimalism as a proper institution for your country speaks for itself. If you are so confident that your parliament or congress can produce the law of democracy in most cases, which is the key feature of a mature democracy, you will not tolerate the judiciary defying any act of the legislature whatsoever because in your eyes that would be a contempt of democracy.186
Unfortunately, no reasonable person would agree that the Legislative Yuan can produce the law of democracy all the time. When the lawmakers of this country cannot even comply with their own code of conduct in lawmaking,187 how could people believe that they are making democratic laws? When they take the lead to defy the genuine spirit of democratism, in the sense that they are proud to show no respect to their peers from the opposition and refuse to compromise for the good of the entire country, would you still believe that they could be able to make any law of democracy on behalf of the people? I sincerely doubt it.
We are facing a dilemma: in the philosophical sense, judicial activism is anti-democratic, viz countermajoritarian difficulty,188 but in the absence of the law of democracy due to the frequent (or even standing) incompetence of the legislature, under which the law of partocracy (or even the law of a specific political party) is likely to be constantly made, is judicial activism a better idea under this scenario? I must tell you that I think it is. The only thing I should draw your attention to is the phrase ‘under this scenario’, as it states that I would only support judicial activism conditionally, at a specific point of time. Lastly, I would advise you to learn about a famous Indian case of judicial activism, Sajjan Singh v State of Rajasthan, in which Justice Mohammad Hidayatullah prevented Parliament of India from removing Article 32 of the Constitution by asserting that it would make the Constitution of India ‘the play thing[] of a specific majority’189 if the court chose not to intervene. I suppose that what he meant by ‘a specific majority’190 referred to a specific political party in parliament, rather than a specific majority of the people – but of course, I could be wrong.
[...]
1 Mark Williams, Competition Policy and Law in China, Hong Kong and Taiwan (Cambridge University Press 2005) 382 (indicating that ‘[t]he German system was thought to be a desirable object for transplantation to Taiwan, especially as much of the Taiwanese legal system originated in the adoption of a German inspired codal system by the ROC in the 1920s’).
2 Marbury v. Madison, 5 U.S. 137 (1803).
3 Charles E. Hughes, Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906-1908 (G.P. Putnam’s Sons 1908) 139.
4 See generally Donald L. Beahm, Conceptions of and Corrections to Majoritarian Tyranny (Lexington Books 2002) 1-102.
5 See generally Weng Yueh-Sheng, ‘Xian Fa Zhi Wei Hu Zhe [The Guardian of the Constitution]’ (1972) 17 Xian Zheng Si Chao [Thought of Constitutionalism] 146, 146-148; see also Carl Schmitt, Der H ü ter der Verfassung [The Guardian of the Constitution] (J.C.B. Mohr 1931) 1-159.
6 See generally Shen Yu-Chung, Wei Ma Xian Zheng Bian Zou Qu: Ban Zong Tong Zhi Xian Fa De Sheng Ming Shi [The Variation of the Weimar Constitutionalism: Life of a Semi-Presidential Constitution] (Wu-Nan Books 2009) 19-368.
7 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410 (Lord Diplock).
8 [1985] AC 374.
9 See also R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696, 763 (Lord Ackner).
10 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 408 (Lord Diplock).
11 Ibid 408-409 (Lord Diplock).
12 See generally David K.C. Huang, The Political Question Doctrine in Taiwan: A Critical Analysis of Taiwan’s Judicial Review and Judicial Yuan Interpretation No.328 [1993] (GRIN 2012) 7-16.
13 See generally Nigel N.T. Li, Si Fa Zhe De Xian Fa [The Jurists’ Constitution] (Wu-Nan Books 2000) 1-305; see also Nigel N.T. Li, Si Fa Zhe De Xian Fa II [The Jurists’ Constitution II] (Angle Press 2013) 1-713.
14 Marco Lamanna, ‘Benet Pereta: The Epistemological Question at the Heart of Early Jesuit Philosophy’ in Cristiano Casalini (ed), Jesuit Philosophy on the Eye of Modernity (Brill 2019) 271.
15 See generally Weng Yueh-Sheng, ‘Xian Fa Zhi Wei Hu Zhe [The Guardian of the Constitution]’ (1972) 17 Xian Zheng Si Chao [Thought of Constitutionalism] 146, 146-148; see also Carl Schmitt, Der H ü ter der Verfassung [The Guardian of the Constitution] (J.C.B. Mohr 1931) 1-159.
16 Compare Constitution of R.O.C. § 78 (1947), with Constitution of R.O.C. §§ 170-173 (1947).
17 E.g., Judicial Yuan Interpretation No.261 [1990]; Judicial Yuan Interpretation No.499 [2000].
18 See generally Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Yale University Press 1986) 1-272.
19 David K.C. Huang, The Spirit of Democracy: A Speech at Department of Politics, National Taiwan University (GRIN 2025) 19-33.
20 William T. Brande, A Dictionary of Science, Literature, and Art: Comprising the History, Description, and Scientific Principles of Every Branch of Human Knowledge; with the Derivation and Definition of All the Terms in General Use (Longman, Brown, Green and Longmans 1842) 342.
21 Aaron X. Fellmeth and Maurice Horwitz, Guide to Latin in International Law (Oxford University Press 2009) 200.
22 Andrew Le Sueur, Maurice Sunkin and Jo E.K. Murkens, Public Law: Text, Cases, and Materials (5th edn, Oxford University Press 2023) 476.
23 See Gunawan Widjaja, Hotmaria H. Sijabat and Manjula R. Mallepalli, Comparative Civil Law and Common Law Systems Legal Traditions and Reforms (RK Publications 2025) 45-46.
24 See generally Pierre Legrand, ‘The Impossibility of “Legal Transplants”’ (1997) 4 Maastricht J Eur & Comp L 111, 111-124.
25 Samuel P. Huntington, ‘Political Modernization: America vs Europe’ in Reinhard Bendix (ed), State and Society: A Reader in Comparative Political Sociology (University of California Press 1973) 183 (indicating that ‘[i]t is, nonetheless, clear that Tudor and early Stuart courts did use the common law to “controul” acts of Parliament at least to the point of redefining rather sweepingly the purposes of Parliament’).
26 Steven G. Calabresi, The History and Growth of Judicial Review: Volume I: The G-20 Common Law Countries and Israel (Oxford University Press 2021) 21.
27 Case of Proclamations (1610) 12 Co Rep 74, 75 (Lord Coke CJ).
28 (1610) 8 Co Rep 107.
29 Marbury v. Madison, 5 U.S. 137 (1803).
30 See also Zhang Qian-Fan, Xian Fa Xue Dao Lun: Yuan Li Yu Ying Yong [An Introduction to the Law of the Constitution: Principles and the Practices] (Law Press China 2004) 154-155.
31 Thomas Bonham v College of Physicians (1610) 8 Co Rep 107, 118 (Lord Coke CJ).
32 Cf. Francis Fukuyama, Political Order and Political Decay: From the Industrial Revolution to the Globalization of Democracy (Farrar, Straus and Giroux, 2014) 135-137.
33 Bill of Rights 1689.
34 Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan Press 1915) 70 (indicating that ‘[i]n England we are accustomed to the existence of a supreme legislative body, i.e. a body which can make or unmake every law; and which, therefore, cannot be bound by any law. This is, from a legal point of view, the true conception of a sovereign’).
35 Steven G. Calabresi, The History and Growth of Judicial Review: Volume I: The G-20 Common Law Countries and Israel (Oxford University Press 2021) 21.
36 Francis Fukuyama, Political Order and Political Decay: From the Industrial Revolution to the Globalization of Democracy (Farrar, Straus and Giroux, 2014) 136.
37 Cf. David K.C. Huang, The Political Question Doctrine in Taiwan: A Critical Analysis of Taiwan’s Judicial Review and Judicial Yuan Interpretation No.328 [1993] (GRIN 2012) 7-14.
38 David K.C. Huang, The Spirit of Democracy: A Speech at Department of Politics, National Taiwan University (GRIN 2025) 23-25.
39 See generally Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan Press 1915) 37-82.
40 U.S. Const. art. VI, cl.2 (1789).
41 Thomas R. van Dervort, American Law and the Legal System: Equal Justice under the Law (Thomson Learning 2000) 52; Beth Walston-Dunham, Introduction to Law (Delmar, Cengage Learning 2009) 21-23.
42 (1610) 8 Co Rep 107.
43 Ibid 118 (Lord Coke CJ).
44 Ibid (Lord Coke CJ).
45 Ibid (Lord Coke CJ).
46 Aaron X. Fellmeth and Maurice Horwitz, Guide to Latin in International Law (Oxford University Press 2009) 194.
47 Thomas Bonham v College of Physicians (1610) 8 Co Rep 107, 118 (Lord Coke CJ) (rendering that ‘ quia aliquis non debet esse Judex in propria causa, imo iniquum est aliquem sui rei esse judicem; and one cannot be Judge and Attorney for any of the parties’).
48 See generally Gilles Cuniberti, Conflict of Laws: A Comparative Approach: Text and Cases (Edward Elgar 2022) 71-134.
49 Thomas Bonham v College of Physicians (1610) 8 Co Rep 107, 118 (Lord Coke CJ).
50 Giovanni Sartor, ‘Rules and Exceptions, in Law and Elsewhere’ in Lorand Bartels and Federica Paddeu (eds), Exceptions in International Law (Oxford University Press 2020) 50.
51 Thomas Bonham v College of Physicians (1610) 8 Co Rep 107, 118 (Lord Coke CJ).
52 Ibid (Lord Coke CJ).
53 Marbury v. Madison, 5 U.S. 137 (1803).
54 (1610) 8 Co Rep 107, 118 (Lord Coke CJ).
55 Marbury v. Madison, 5 U.S. 137, 177 (1803).
56 Ibid 177-178.
57 Víctor F. Comella, Constitutional Courts and Democratic Values: A European Perspective (Yale University Press 2009) 17.
58 Marbury v. Madison, 5 U.S. 137 (1803).
59 (1610) 8 Co Rep 107.
60 See generally Philip C. Tobin, 25 Doctrines of Law: Survival Tools for a Litigious Society (Algora Publishing 2007) 215-222.
61 Marbury v. Madison, 5 U.S. 137 (1803).
62 See generally Robert L. Clinton, ‘Precedent as Mythology: A Reinterpretation of Marbury v. Madison’ (1990) 35(1) Am J Juris 55, 55-86.
63 See generally Philip C. Tobin, 25 Doctrines of Law: Survival Tools for a Litigious Society (Algora Publishing 2007) 215-222.
64 Judicial Yuan Interpretation No.185 Reasoning ¶ 1 [1984] (Official translation).
65 Ibid.
66 Compare Herbert L.A. Hart, The Concept of Law (Oxford University Press 2012) 66, with Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan Press 1915) 70.
67 Judicial Yuan Interpretation No.185 [1984].
68 See generally Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan Press 1915) 37-82.
69 See generally Sampat Mukherjee, Mallinath Mukherjee and Amitava Ghose, Microeconomics (Prentice-Hall of India 2003) 49-50.
70 See also David K.C. Huang, The Spirit of Democracy: A Speech at Department of Politics, National Taiwan University (GRIN 2025) 37-39.
71 Judicial Yuan Interpretation No.261 [1990] (Official translation).
72 Ann Kerns, Seven Wonders of Architecture (Twenty-First Century Books 2010) 66.
73 Judicial Yuan Interpretation No.31 [1954].
74 Judicial Yuan Interpretation No.261 [1990].
75 See generally David K.C. Huang, Judicial Supremacy in Taiwan: Strategic Models and the Judicial Yuan, 1990-1999 (GRIN 2016) 221-262.
76 Judicial Yuan Interpretation No.31 [1954]; but see Judicial Yuan Interpretation No.150 [1977].
77 Constitution of R.O.C. amend. (1991/1999).
78 See generally David K.C. Huang and Nigel N.T. Li, ‘Unconstitutional Constitutional Amendment in Taiwan: A Retrospective Analysis of Judicial Yuan Interpretation No.499 [2000]’ (2020) 15(3) U Pa Asian L Rev 421, 421-461.
79 Judicial Yuan Interpretation No.499 [2000] (Official translation).
80 Tom Ginsburg and Nuno Garoupa, ‘Judicial Audiences and Reputation: Perspectives from Comparative Law’ (2009) 47 Colum J Transnat’l L 451, 457-458.
81 Constitution of R.O.C. § 171I (1947) (Official translation).
82 Constitution of R.O.C. § 172 (1947) (Official translation).
83 Hans Kelsen, General Theory of Law and State (Anders Wedberg tr, Harvard University Press 1949) 124-135.
84 Carl Schmitt, Der H ü ter der Verfassung [The Guardian of the Constitution] (J.C.B. Mohr 1931) 1-159.
85 Ibid 132-159.
86 Constitution of R.O.C. § 78 (1947) (Official translation).
87 Constitution of R.O.C. § 173 (1947) (Official translation).
88 See generally David K.C. Huang, The Spirit of Democracy: A Speech at Department of Politics, National Taiwan University (GRIN 2025) 4-48.
89 See generally David K.C. Huang, ‘The Court and the Legalisation of Same-Sex Marriage: A Critical Analysis of the Judicial Yuan Interpretation No.748 [2017]’ (2019) 14(1) U Pa Asian L Rev 63, 63-95.
90 Graham L. Hammill, Sexuality and Form: Caravaggio, Marlowe, and Bacon (University of Chicago Press 2000) 149.
91 Constitution of R.O.C. § 12 (1947).
92 E.g., Judicial Yuan Interpretation No.631 [2007].
93 Charles E. Hughes, Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906-1908 (G.P. Putnam’s Sons 1908) 139.
94 West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).
95 Stephen M. Griffin, American Constitutionalism: From Theory to Politics (Princeton University Press 1996) 131.
96 See generally Charles H. Pritchett, The Roosevelt Court: A Study in Judicial Politics and Values, 1937-1947 (first published 1948, Quid Pro Books 2014) 1-287.
97 See generally Glendon A. Schubert, Quantitative Analysis of Judicial Behavior (Free Press 1959) 1-392.
98 Stephen M. Griffin, American Constitutionalism: From Theory to Politics (Princeton University Press 1996) 131-132.
99 Brian M. Barry, How Judges Judge: Empirical Insights into Judicial Decision-Making (Routledge 2021) 150.
100 See generally Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model (Cambridge University Press 1993) 214-260.
101 Stephen M. Griffin, American Constitutionalism: From Theory to Politics (Princeton University Press 1996) 132.
102 David K.C. Huang, Judicial Supremacy in Taiwan: Strategic Models and the Judicial Yuan, 1990-1999 (GRIN 2016) 221-262.
103 See generally Michael Dillon, China: A Modern History (I.B. Tauris 2012) 228-255.
104 Compare Judicial Yuan Interpretation No.31 [1954], with Judicial Yuan Interpretation No.261 [1990].
105 Cf. Blackburn v Attorney General [1971] 2 All ER 1380, 1382 (Lord Denning MR) (indicating that ‘[f]reedom once given cannot be taken away. Legal theory must give way to practical politics’).
106 Judicial Yuan Interpretation No.261 [1990].
107 David K.C. Huang, Judicial Supremacy in Taiwan: Strategic Models and the Judicial Yuan, 1990-1999 (GRIN 2016) 256.
108 Chad L. Westerland, ‘The Strategic Analysis of Judicial Behavior and the Separation of Powers’ in Lee Epstein and Stefanie A. Lindquist (eds), The Oxford Handbook of U.S. Judicial Behavior (Oxford University Press 2017) 255.
109 See generally Walter F. Murphy, Elements of Judicial Strategy (University of Chicago Press 1964) 1-210.
110 Chad L. Westerland, ‘The Strategic Analysis of Judicial Behavior and the Separation of Powers’ in Lee Epstein and Stefanie A. Lindquist (eds), The Oxford Handbook of U.S. Judicial Behavior (Oxford University Press 2017) 255.
111 Blackburn v Attorney General [1971] 2 All ER 1380, 1382 (Lord Denning MR).
112 Judicial Yuan Interpretation No.419 [1996] (Official translation).
113 Ibid (Official translation).
114 Lawrence Baum, Judges and Their Audiences: A Perspective on Judicial Behavior (Princeton University Press 2006) 25.
115 David K.C. Huang, Judicial Supremacy in Taiwan: Strategic Models and the Judicial Yuan, 1990-1999 (GRIN 2016) 63.
116 See generally Nigel N.T. Li, Ren Guo Zhi Li: Xian Fa Bian Qian De Kua Yue [The Classical Chinese ‘Li (Charter)’ of the Land and the People: The Transition of China’s Constitutionalism] (San Min Books 2012) 82-97.
117 See generally Sampat Mukherjee, Mallinath Mukherjee and Amitava Ghose, Microeconomics (Prentice-Hall of India 2003) 49-50.
118 Act of Cross Strait Relations § 21I (1992/2000).
119 Constitution of R.O.C. § 7 (1947) (providing that ‘[a]ll citizens of the Republic of China, irrespective of sex, religion, race, class, or party affiliation, shall be equal before the law’).
120 Korematsu v. United States, 323 U.S. 214 (1944); see also Ex parte Endo, 323 U.S. 283 (1944).
121 Trump v. Hawaii, 138 S. Ct. 2392 (2018).
122 Charles E. Hughes, Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906-1908 (G.P. Putnam’s Sons 1908) 139.
123 John E.M. Dalberg-Acton, ‘Letters to Archbishop Mandell Creighton’ in John N. Figgis and Reginald V. Laurence (eds), Historical Essays and Studies (Macmillan Press 1907) 504.
124 Charles E. Hughes, Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906-1908 (G.P. Putnam’s Sons 1908) 139.
125 See Carl Schmitt, Der H ü ter der Verfassung [The Guardian of the Constitution] (J.C.B. Mohr 1931) 132-159.
126 See Weng Yueh-Sheng, ‘Xian Fa Zhi Wei Hu Zhe [The Guardian of the Constitution]’ (1972) 17 Xian Zheng Si Chao [Thought of Constitutionalism] 146, 146-148.
127 U.S. Const. art. VI, cl.2 (1789).
128 Ibid.
129 Compare John S. Major and Constance A. Cook, Ancient China: A History (Routledge 2017) 121, with Bao Er, China’s Child Contracts: A Philosophy of Child Rights in Twenty-First Century China (Blue Mountains Legal Research Centre 2008) 141.
130 David K.C. Huang and Nigel N.T. Li, ‘Why China Finds It Difficult to Appreciate Democracy’ (2019) 8(2) Global Constitutionalism 332, 332.
131 Compare Constitution of R.O.C. § 78 (1947) with Constitution of R.O.C. § 173 (1947), and Judicial Yuan Interpretation No.185 [1984].
132 See generally Donald L. Beahm, Conceptions of and Corrections to Majoritarian Tyranny (Lexington Books 2002) 1-102.
133 Compare Constitution of R.O.C. §§ 170-171 (1947), with Judicial Yuan Interpretation No.31 [1954], Judicial Yuan Interpretation No.261 [1990], and Judicial Yuan Interpretation No.499 [2000].
134 See generally Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Yale University Press 1986) 1-272.
135 Trump v. United States, 603 U.S. 593 (2024).
136 In Re S and In Re W [2002] UKHL 10 [39]-[40] (Lord Nicholls).
137 Ibid [40] (Lord Nicholls).
138 Catherine Epstein, Nazi Germany: Confronting the Myths (John Wiley and Sons 2015) 54 (indicating that ‘[o]n August 19, the Nazis held a referendum to affirm Hitler’s new position as Führer…. In the August 19 plebiscite, roughly 95% of the German population voted. If official figures are to be believed, 89.9% of voters affirmed Hitler’s unlimited power’).
139 Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan Press 1915) 70.
140 Ibid.
141 E.g., Judicial Yuan Interpretation No.86 [1960].
142 Michael Nelson, The Presidency A-Z (Routledge 2013) 53.
143 Ibid.
144 Ibid.
145 Tung Hsiang-Fei, Tung Hsiang-Fei Da Fa Guan Hui Yi Lu [The Reminiscences of Hon. Hsiang-Fei Tung Grand Justice Constitutional Court R.O.C.] (Academia Historica 2010) 305-306.
146 Ibid.
147 John C. McDowell, The Gospel according to Star Wars: Faith, Hope, and the Force (Westminster John Knox Press 2007) 160.
148 Paul D. Monero, The Bureaucrat Kings: The Origins and Underpinnings of America’s Bureaucratic State (ABC-CLIO LLC 2017) 7.
149 See generally Julia Hargrove, Judicial Branch of the Government (Teaching and Learning 2000) 8-9.
150 See generally Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Yale University Press 1986) 1-272.
151 Julia Hargrove, Judicial Branch of the Government (Teaching and Learning 2000) 8.
152 Cf. Charles E. Hughes, Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906-1908 (G.P. Putnam’s Sons 1908) 139.
153 Judicial Yuan Interpretation No.499 [2000].
154 Constitution of P.R.C. § 1II (1982/2018).
155 See generally Jean-Jacques Rousseau, On the Social Contract (George D.H. Cole tr, Augustine Press 2018) 11-153.
156 Fang Ning, ‘Li Shi He Ren Min Xuan Ze Le Zhong Guo Gong Chan Dang [History and the People of China Have Chosen the Chinese Communist Party]’, China Youth Daily (Beijing, 15 February 2005) <http://www.ib.cas.cn/zt/bcgcdxjxjy/200502/t20050216_8703.html> (indicating that ‘[f]rom the historical perspective, the leadership of the Communist Party of China is chosen by the Chinese people. Hence, the legitimacy of the Communist regime is history, which is accepted even by foreigners who have no prejudice’).
157 Thoburn v Sunderland City Council [2003] QB 151 [59] (Laws LJ).
158 Blackburn v Attorney General [1971] 2 All ER 1380, 1382 (Lord Denning MR).
159 E.g., Judicial Yuan Interpretation No.499 [2000].
160 R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115, 131 (Lord Hoffmann).
161 See generally Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan Press 1915) 37-82.
162 R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115, 131 (Lord Hoffmann).
163 Ibid.
164 Judicial Yuan Interpretation No.618 [2006].
165 R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115, 131 (Lord Hoffmann).
166 [2004] UKHL 56.
167 Andrew Ashworth and Lucia Zedner, Preventive Justice (Oxford University Press 2014) 244.
168 A and Others v Secretary of State for the Home Department [2004] UKHL 56 [29] (Lord Bingham) (indicating that ‘I would accept that great weight should be given to the judgment of the Home Secretary, his colleagues and Parliament on this question, because they were called on to exercise a pre-eminently political judgment’).
169 Ibid [97] (Lord Hoffmann).
170 See generally Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Yale University Press 1986) 1-272.
171 Compare Judicial Yuan Interpretation No.476 [1999], with Judicial Yuan Adjudication, 113 Constitutional Trial No.8 [2024].
172 Roe v. Wade, 410 U.S. 113 (1973).
173 Ibid.
174 Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).
175 David K.C. Huang, The Spirit of Democracy: A Speech at Department of Politics, National Taiwan University (GRIN 2025) 12-14.
176 E.g., Charles E. Hughes, Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906-1908 (G.P. Putnam’s Sons 1908) 139.
177 Constitution of R.O.C. § 23 (1947).
178 Trump v. United States, 603 U.S. 593 (2024).
179 R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696, 763 (Lord Ackner).
180 Compare Constitution of R.O.C. § 80 (1947), with Civil Code of R.O.C. § 1 (1929).
181 In Re S and In Re W [2002] UKHL 10 [34]-[44] (Lord Nicholls).
182 Judicial Yuan Interpretation No.371 [1995].
183 R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115, 131 (Lord Hoffmann).
184 Bruce Ackerman, We the People, Volume II: Transformations (Harvard University Press 1998) 93-94.
185 Blackburn v Attorney General [1971] 2 All ER 1380, 1382 (Lord Denning MR).
186 Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan Press 1915) 37-38; see also VLA Deb 14 May 1903, vol.104, 123.
187 E.g., Judicial Yuan Interpretation No.342 [1994].
188 See generally Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Yale University Press 1986) 1-272.
189 Sajjan Singh v State of Rajasthan (with Connected Petitions) [1965] SCR (1) 933.
190 Ibid.
- Arbeit zitieren
- Dr David KC Huang (Autor:in), 2025, Judicial Activism and Minimalism, München, GRIN Verlag, https://www.hausarbeiten.de/document/1685471
