International Human Rights in Asian Constitutions

International law is integrated into national constitutions across the world. Particularly, the convergence of national constitutions with international human rights (IHR) law has been a global trend. Asia has been underexplored in the global scholarship on constitutional convergence. This Article seeks to make both theoretical and empirical contributions by exploring three models of convergence with IHR law in seven Asian constitutions: convergence impelled by international inducement in post-war and post-conflict states (Japan and Cambodia), convergence propelled by the domestic precommitment of new democracies (South Korea and Indonesia), and convergence compelled by the international socialization of the socialist states (China, Laos, and Vietnam). Formal convergence creates the condition for several Asian constitutional courts to engage with IHR law. Convergence is not merely a top-down project. This Article additionally proposes a bottom-up theory of discursive convergence, which holds that citizens\u27 public discourse can influence the incorporation of IHR into constitutions

Russia's big-bang constitutional amendments

On July 1, 2020, Russians approved the amendments to Russia’s 1993 Constitution in a national vote. Drawing from comparative scholarship on constitutional change and insights from comparative political studies, this article argues that Russia’s 2020 constitutional amendments can be understood as “big-bang constitutional amendments”— amendments that rapidly introduce large-scale change to the existing constitution all at once. The political elites’ uncertainty regarding their continued influence and the centralization of power combined to create a window for the passage of these amendments. The amendments were all enacted together, in a short time-frame, thanks to legislative supremacy and political conditions. The amendments are also substantial: they changed nearly one-third of the original Constitution and deal with a wide-range of international and domestic issues. They annul presidential term limits; significantly increase presidential power over the legislative, executive, and judicial bodies; prioritize national law over international law; constitutionalize Russian as the “state-forming” language, faith in one God, and marriage as between a man and woman; and provide for a minimum wage of not less than the subsistence minimum, compulsory social insurance, and indexation of pensions. These political, economic, social, religious, and moral changes are not merely institutional: they signify the ideational constitutional turn to centralism, nationalism, and welfarism. The big-bang constitutional amendments will entail massive effort in implementation and promise a long-term effect on Russian constitutional identity generally

International human rights in Asian constitutions

International law is integrated into national constitutions across the world. Particularly, the convergence of national constitutions with international human rights (IHR) law has been a global trend. Asia has been underexplored in the global scholarship on constitutional convergence. This Article seeks to make both theoretical and empirical contributions by exploring three models of convergence with IHR law in seven Asian constitutions: convergence impelled by international inducement in post-war and post-conflict states (Japan and Cambodia), convergence propelled by the domestic precommitment of new democracies (South Korea and Indonesia), and convergence compelled by the international socialization of the socialist states (China, Laos, and Vietnam). Formal convergence creates the condition for several Asian constitutional courts to engage with IHR law. Convergence is not merely a top-down project. This Article additionally proposes a bottom-up theory of discursive convergence, which holds that citizens' public discourse can influence the incorporation of IHR into constitutions

Discursive Constitutionalism

“Constitutionalism” has been contentiously debated at national and international levels. This Article develops the concept of discursive constitutionalism, defined as the construction of constitutionalism through public discourse. It theorizes about four elements (ideas, actors, actions, and spaces) and the constructive logic of discursive constitutionalism. Public constitutionalist discourse can be shaped by the existing relations of political power. At the same time, it can constrain the political monopoly of constitutional thinking, shape the design of institutions to limit political power, and prevent the arbitrary use of political power in practice. This study provides an explanatory account of three models of discursive constitutionalism in East Asia. The protectionist model in Japan refers to the discursive defense of national constitutional commitments to international peace and renouncing war. The reformist model in China denotes the discursive promotion of institutional reforms in line with normative values of constitutionalism. The diffusionist model in Vietnam features the discursive spread of constitutionalist ideas from external international and comparative sources into internal intellectual communities. Discursive constitutionalism can be a useful conceptual tool to understand the quest for constitutionalism through public discourse

Globalization of Constitutional Identity

This Article extends Gary J. Jacobsohn’s theory of constitutional identity to better understand the dynamics of constitutional identity in the era of globalization. The extended theoretical framework features the relation of constitutional globalization to the change of national constitutional identity. Within that framework, this Article offers an original, empirical examination of the case of Vietnam and compares it with other socialist regimes (China, Laos, North Korea, and Cuba). It argues that globalization induces adaption to the socialist constitutional identity. The socialist constitutional identity is adapted by the pragmatic incorporation of fundamental ideas and principles of global constitutionalism. Consequently, the essence of the socialist constitutional identity remains but is modified and extended in the globalizing context. Although there is convergence in the adaption to socialist constitutional identity among the five socialist countries due to the impact of constitutional globalization, there are four divergent models which these countries adopt to react to the global impact on their constitutional identity, namely constitutional globalism (Vietnam and Laos); constitutional exceptionalism (China); constitutional isolationism (North Korea); and constitutional reservationism (Cuba). This Article contributes to the scholarship on constitutional globalization, comparative theory on constitutional identity, and empirical knowledge on constitutional dynamics in the contemporary socialist world

Discursive constitutionalism

“Constitutionalism” has been contentiously debated at national and international levels. This Article develops the concept of discursive constitutionalism, defined as the construction of constitutionalism through public discourse. It theorizes about four elements (ideas, actors, actions, and spaces) and the constructive logic of discursive constitutionalism. Public constitutionalist discourse can be shaped by the existing relations of political power. At the same time, it can constrain the political monopoly of constitutional thinking, shape the design of institutions to limit political power, and prevent the arbitrary use of political power in practice. This study provides an explanatory account of three models of discursive constitutionalism in East Asia. The protectionist model in Japan refers to the discursive defense of national constitutional commitments to international peace and renouncing war. The reformist model in China denotes the discursive promotion of institutional reforms in line with normative values of constitutionalism. The diffusionist model in Vietnam features the discursive spread of constitutionalist ideas from external international and comparative sources into internal intellectual communities. Discursive constitutionalism can be a useful conceptual tool to understand the quest for constitutionalism through public discourse

Vertical law and development

Drawing on the scholarship on the transnational legal process and the diffusion of international law, this Article conceptualizes and illustrates vertical law and development. Vertical law and development refers to a transnational legal process whereby a state or institution integrates norms of public international law into international economic law which may then be adopted in the national legal system of another state to facilitate domestic law reform and societal change

Constitutional Mobilization

People around the world are mobilizing for constitutional change. This global phenomenon has been underexplored in comparative constitutional studies. This Article introduces the concept of constitutional mobilization, theorizes about it, and offers an original, empirical case-study. First, it develops a general theoretical framework defined by the following key concepts. Constitutional mobilization is the process by which social actors employ constitutional norms and discourses to advocate for constitutional change. Constitutional opportunity refers to the general political and constitutional environment in which constitutional mobilization operates, and particular political and constitutional processes that provoke constitutional mobilization. Constitutional framing concerns identifying constitutional problems and proposing constitutional solutions, the process of which involves invocation of constitutional language, ideas, norms, or symbols presented in national constitutions, transnational constitutional law, and international law. Constitutional resources take the form of state actors who play the influential role in constitutional change. And finally, constitutional change is understood as a multiple concept, which includes three types of change, namely revolutionary, reformative, and cultural. Second, this article develops a contextual theory to answer this question: under what conditions, how and why do social actors mobilize for constitutional change in authoritarian regime? The theory holds that, in an authoritarian regime, social actors seize the opportunity presented by constitution-making process to mobilize the public and also political leaders to engage in a popular, national constitutional dialogue, which results in reformative and cultural constitutional changes. Third, on that theoretical ground, this Article offers a case-study of Vietnam. This case-study has implications for China, which, like Vietnam, is also governed by a communist regime. However, as this article will demonstrate, China also presents significant constitutional divergences from Vietnam. More generally, this Article proposes establishing constitutional mobilization as a new area of empirical comparative constitutional inquiry based on case-studies exploration and contextual theorization