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>Judicial deference and democratic governance in nascent democracies: Self-restraining courts in post-transitional South Africa, Taiwan, and Poland .
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Judicial deference and democratic governance in nascent democracies: Self-restraining courts in post-transitional South Africa, Taiwan, and Poland .
Post-transitional democracies usually face two contradictory needs. On the one hand, owing to political atrocity of the past, people aspire to a democratic state based on the rule of law, which can effectively constrain the executive power from abuse. On the other, the government has to rebuild a well-functioning state on the wreckage of former authoritarian regimes, which requires a potent administrative body. This conflict can be vividly and repeatedly seen in administrative cases in constitutional courts of post-transitional countries. This dissertation examines the latest development of judicial control of administrative action in three post-transitional countries: South Africa, Taiwan, and Poland. By focusing on three significant cases and the trajectories of administrative law reform in these countries, this dissertation explores three questions: Why would these courts like to defer to agencies in the post-transitional politics? When would they be willing to defer to agencies? What are the consequences of judicial self-restraint in these nascent democracies?;For the first question, I argue that the courts would like to defer to agencies because the courts can play a pivotal role in the process of policymaking. By deference, the courts would not at all lose their power to agencies by deference. Indeed, they simply delegate the decisional power to agencies and can adjust and readjust the deference over the long run. As for the second question, I articulate four conditions on which the courts would be willing to defer to agencies: structural entrenchment of the rule of law, diffusion of social monitoring, a relatively long time horizon, and information deficit. Finally, drawing from the experience of Chevron deference in the United States, I elaborated a model of information elicitation to explain the logic of judicial deference. By this model, I justify the legitimacy of judicial deference on its function of information elicitation which will empower institutional agency of post-transitional governments and secure the autonomy of their citizens. These two elements will in turn facilitate democratic consolidation in nascent democracies.
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