Comparative Constitutional Law in Asia

Comparative Constitutional Law in Asia

Edited by Rosalind Dixon and Tom Ginsburg

Comparative constitutional law is a field of increasing importance around the world, but much of the literature is focused on Europe, North America, and English-speaking jurisdictions. The importance of Asia for the broader field is demonstrated here in original contributions that look thematically at issues from a general perspective, with special attention on how they have been treated in East Asian jurisdictions.

Chapter 5: Weak-form review and its constitutional relatives: An Asian perspective

Mark Tushnet and Rosalind Dixon

Subjects: asian studies, asian law, law - academic, asian law, comparative law, constitutional and administrative law


Weak-form constitutional review was one of the late twentieth century's major innovations in constitutional design. Specific forms vary, but all share the characteristic that a court decision ultimately resolving a constitutional matter can be followed by a legislative or popular response short of constitutional amendment that differs in whole or in part with the court's decision (and the interpretation of the existing constitution on which the court's decision rests). What Lorraine Weinrib calls the "post-war paradigm" of constitutional law includes institutions to perform constitutional review in a systematic way (Weinrib 2006). Weak-form review was developed in response to concerns that conforming to the paradigm by establishing a system of full-fledged or strong-form constitutional review in nations with deep traditions of parliamentary supremacy would disrupt the established scheme of things too substantially, and with unknowable follow-on effects. Proponents of weak-form review contended that it was a better institutional embodiment of the post-war paradigm's accommodation of constitutional review and democratic self-governance. As experience accumulated with weak-form review, another feature emerged: weak-form review could promote valuable constitutional dialogues about the constitution's meaning (Hogg and Bushell 1997; Symposium 2007), especially where legislatures might have overlooked constitutional problems lurking in the details of otherwise defensible legislation, where political considerations led legislatures deliberately to finesse constitutional questions, or where long-standing legislation had become problematic in light of changes in constitutional understandings (Dixon 2008).

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