The democratic foundations of judicial review under authoritarianism: Theory and evidence from Hong Kong

Abstract

Constitutional judicial review has often been described as "countermajoritarian" and antidemocratic. Recent empirical findings, however, suggest that reviewing courts in some authoritarian states have in fact adopted policies more to the liking of the disenfranchised majority than the unelected ruling elite. This article addresses this gap by proposing a positive theory which explains how judicial review and public opinion could ever mutually reinforce in the absence of viable representative institutions. Evidence from Hong Kong under Chinese sovereignty is used to illustrate this theory. In the teeth of persistent authoritarianism, the Hong Kong Court of Final Appeal's repeated, though not uninterrupted, alignment with public opinion, combined with its strong focal power, has enabled conflicting constitutional players to converge on policy outcomes usually preferable to the people or a majority of them. The Court's ability to "represent" majoritarian public opinion, and public support for its judicial review, have been reinforced by idiosyncratic conditions specified in the theory, which do not generally stabilize or endure in authoritarian polities. © The Author 2014. Oxford University Press and New York University School of Law. All rights reserved.