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Abusive Constitutional BorrowingLegal globalization and the subversion of liberal democracy$
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Rosalind Dixon and David Landau

Print publication date: 2021

Print ISBN-13: 9780192893765

Published to Oxford Scholarship Online: August 2021

DOI: 10.1093/oso/9780192893765.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 04 December 2021

Abusive Judicial Review

Abusive Judicial Review

Abusive Borrowing by and of Constitutional Courts

(p.81) 5 Abusive Judicial Review
Abusive Constitutional Borrowing

Rosalind Dixon

David Landau

Oxford University Press

This chapter explains the concept of abusive judicial review: the use of courts by regimes to achieve anti-democratic constitutional change. Abusive judicial review involves abusive constitutional borrowing in two distinct senses: first, regimes lean on captured or cowed courts as a strategy to legitimate or advance authoritarian goals, and second, those courts often draw upon liberal democratic doctrines in abusive ways. It develops a typology of two different forms of the phenomenon—a weak form where courts uphold authoritarian moves by political actors, and a strong form where they act more directly to remove obstacles to authoritarian programs. Finally, it draws out two main examples: the Venezuelan Supreme Court’s repression of the opposition-held legislature using a doctrine of ‘legislative omission’ and other tools, and the wielding of militant democracy doctrines by the Cambodian and Thai apex courts to ban parties for authoritarian ends.

Keywords:   judicial review, abusive judicial review, court-curbing, court-packing, militant democracy, legislative omission, Venezuelan Supreme Court, Cambodian Constitutional Court, Thai Constitutional Court

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