英文摘要 |
Democracy emphasizes that law (including the Constitution) should be made by the majority according to the principle of majority rule. The purpose of the courts to apply the law (including the Constitution) under a democracy is not to fight against the will of majority but to safeguard the rights of majority. However, the rule of law stresses that courts should be in compliance with the norm of judicial impartiality and under no political control so as to apply the law (including the Constitution) to protect the rights of minority. Thus the majority rule and rule of law are in essence contradictory in a democracy. The gist of judicial independence is to avoid the political control of court so that courts may maintain social justice by means of impartial application of law. Nevertheless, according to the researches of American political scientists, American courts, particularly the U.S. Supreme Court, may in the name of judicial independence take part in government policy making by exercise of judicial review. And American judges, especially the justices of the U.S. Supreme Court, may in disguise of judicial impartiality declare law unconstitutional based on personal values and policy preferences. Therefore, how to blend the principle of majority rule with the norm of judicial independence under a democracy becomes the main concerns of American judicial politics. |