A Positive Theory of Constitutional Judicial Review: Evidence from Singapore and Taiwan

Abstract

The consensus over independent constitutional judicial review – that it inevitably stems from electoral and inter-branch competition – has been weakened by recent empirical discoveries; however, empiricists have yet to offer a coherent explanation why non-competitive, authoritarian, governments would tolerate constitutional courts that strike down their legislation. This article proposes a “Constitutional Investment Theory” that solves this puzzle: expressive symbolism is central to these regimes’ calculus for acquiescing in the activation of judicial review; the variable perdurability of judicial review depends on how much trust the regime invest in the judiciary; and activism in judicial review is the likelier to emerge the higher the transaction costs of retaliating against offending courts. Evidence from Singapore and pre-2000 Taiwan lends support to this theory.