| 英文摘要 |
Is judicial review a deus ex machina institution? Commentators disagree on the legitimacy of judicial review in a constitutional democracy. Many scholars who argue for (or against) judicial review have based their claims on democracy or democratic theory, while other scholars have founded their positive (or negative) arguments on constitutionalism or constitutional theory. Taking three current trends of worldwide development--the global spread of democratization, the global adoption of constitutionalism, and the global proliferation of judicial review- as background, this paper firstly poses a key question that what is the role of judicial review within a constitutional democracy amid these three rising global trends? Second, based on a general assessment of the literature, this article demonstrates that most scholars neglect the role of judicial review may play in a modern constitutional democracy from the perspectives of structural and functional analysis. And thus extant literature has a gap. Third, in order to fill this gap, this article, relying on a structural and functional approach, embarks on justifying the role of judicial review in striking a dynamic balance between constitutionalism and democracy. At structural level, it tries to illuminate the constitutional democracy as a structural framework consisting of two main systems-constitutionalism and democracy. Functionally analyzing, the justification will be made on the bases of three major pillars: necessity, feasibility, and suitability. Accordingly, judicial review might be plausibly regarded as a necessary, feasible, and suitable institution for maintaining a proper balance between constitutionalism and democracy in modern democracies.
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