Beyond the Courts, beyond the State: Reflections on Caldwell\u27s Horizontal Rights and Chinese Constitutionalism

This article provides a critical response to Ernest Caldwell\u27s article, Horizontal Rights and Chinese Constitutionalism: Judicialization through Labor Disputes. According to Caldwell, those looking for an emerging constitutional culture in China should be looking not in the higher courts (as the American paradigm of constitutional law suggests), but in the lower courts that settle day-to-day disputes. Moreover, the constitutional discourse in those lower courts is not about limiting state power, but about the need for horizontal protections of citizens—specifically laborers—from their powerful employers in furtherance of constitutional values. This article offers three responses to Caldwell\u27s thesis. First, while acknowledging and drawing on other constitutional traditions in western liberal democracies to illustrate the significance of horizontal rights in constitutional thought, Caldwell nevertheless concludes that China\u27s approach to rights is distinct from the Western tradition, glossing over important differences within Western constitutional thought. Second, while criticizing a single-minded focus on the decisions of the higher courts, Caldwell\u27s approach remains largely court-centric: there are, however, other understandings of constitutionalism in U.S. constitutional scholarship and in the varying practices of constitutionalism in East and Southeast Asia that are less focused on courts. Finally, the observation that constitutional principles might play an important role in moderating private power in an age of multinational enterprises could be extended beyond the jurisdictional boundaries of the state. If private and hybrid (public-private) forms of power are increasingly operating beyond states, we need to find innovative ways of moderating that power that stretch our understanding of constitutional law

Beyond the Courts, beyond the State: Reflections on Caldwell\u27s Horizontal Rights and Chinese Constitutionalism

This article provides a critical response to Ernest Caldwell\u27s article, Horizontal Rights and Chinese Constitutionalism: Judicialization through Labor Disputes. According to Caldwell, those looking for an emerging constitutional culture in China should be looking not in the higher courts (as the American paradigm of constitutional law suggests), but in the lower courts that settle day-to-day disputes. Moreover, the constitutional discourse in those lower courts is not about limiting state power, but about the need for horizontal protections of citizens—specifically laborers—from their powerful employers in furtherance of constitutional values. This article offers three responses to Caldwell\u27s thesis. First, while acknowledging and drawing on other constitutional traditions in western liberal democracies to illustrate the significance of horizontal rights in constitutional thought, Caldwell nevertheless concludes that China\u27s approach to rights is distinct from the Western tradition, glossing over important differences within Western constitutional thought. Second, while criticizing a single-minded focus on the decisions of the higher courts, Caldwell\u27s approach remains largely court-centric: there are, however, other understandings of constitutionalism in U.S. constitutional scholarship and in the varying practices of constitutionalism in East and Southeast Asia that are less focused on courts. Finally, the observation that constitutional principles might play an important role in moderating private power in an age of multinational enterprises could be extended beyond the jurisdictional boundaries of the state. If private and hybrid (public-private) forms of power are increasingly operating beyond states, we need to find innovative ways of moderating that power that stretch our understanding of constitutional law

Prospects for Judicial Review of Transnational Private Regulation: Singapore and Canada

Transnational regulatory power is increasingly exercised by bodies with no formal accountability to states, although such bodies affect the way individuals, organizations, and states themselves conduct their affairs. As a general rule, courts have been reluctant to engage with these transnational private regulators. This article argues that courts in Singapore and Canada are gradually, if haltingly, fashioning public law principles that enable them to judicially review decisions of domestic private regulators. These principles tend to focus not on the formal status of the body exercising power but on the nature of that power, essentially articulating a functional test. The article argues further that, as it has developed in Singapore and Canada, administrative law contains within it legal tools and principles that would enable courts to judicially review the decisions of transnational private regulators and allow them to play an important role in shaping the emerging norms that govern transnational regulation

Emergency Powers and Constitutional Theory

Drawing on the experiences of aspiring constitutional orders in Southeast Asia (East Timor, Malaysia, Singapore and Thailand) with emergency powers, Victor V. Ramraj, National University of Singapore, seeks to shift the attention of constitutional theorists away from parochial debates, towards an understanding of constitutional theory and emergency powers that extends beyond the familiar domain of liberal democracies. respondent: François Tanguay-Renaud Osgood

Senses of Sen: Reflections on Amartya Sen’s Ideas of Justice

This review essay explores how Amartya Sen’s recent book, The Idea of Justice, is relevant and important for the development and assessment of transnational theories and applications to transnational justice and legal education programs. The essay captures a trans-jural dialogue of multinational scholars and teachers, discussing Sen’s contributions to moral justice theory (criticizing programs for “transcendental institutionalism” (like Rawlsian theory) and instead focusing on “comparative broadening” including empirical, relative, and comparative assessments of programs to ameliorate injustice in the world in its comparative concreteness (as in Indian social justice theory and Adam Smith’s Theory of Moral Sentiments and related work). The authors are professors in the transnational legal education program, the Center for Transnational Legal Studies, sponsored by over 25 different law schools, located in London. They teach courses in a wide variety of subjects, including comparative legal theory, constitutional law, business and legal ethics, moral and legal philosophy, international and comparative law, capital markets and business law, emergency powers, international dispute resolution and a variety of other common and civil law subjects

Eulogy for Sam Selvon

I was not surprised when some years ago I learnt that Sam, as a young man, before he turned to writing fiction, had wanted to become a philosopher. In all his works, even his lightest humorous sketches, and in his daily life with family and friends, we saw the philosopher in him. But he was not just any philosopher; he was a philosopher whose contemplation led him to look at the bright side of things, to see beauty and goodness and glory even in moments of deepest sadness; and this gave him a infinite capacity for resilience and optimism and good cheer