David S. Law

The Evolution and Ideology of Global Constitutionalism

It has become almost universal practice for countries to adopt formal constitutions. Little is known empirically, however, about the evolution of this practice on a global scale. Are constitutions unique and defining statements of national aspiration and identity? Or are they standardized documents that vary only at the margins, in predictable and patterned ways? Are constitutions becoming increasingly similar or dissimilar to one another over time, or is there no discernible overall pattern to their development? Until very recently, scholars have lacked even basic empirical data on the content of the world’s constitutions, much less an understanding of whether there are global patterns to that content.This Article offers the first empirical account of the global evolution of rights constitutionalism. Our analysis of an original data set that spans the rights-related content of all national constitutions over the last six decades confirms the existence of several global constitutional trends. These include the phenomenon of rights creep, wherein constitutions tend to contain an increasing number of rights over time, and the growth of generic rights constitutionalism, wherein an increasing proportion of the world’s constitutions shares an increasing number of rights in common. Perhaps our most striking discovery is that 90% of all variation in the rights-related content of the world’s constitutions can be explained as a function of just two variables. Both of these variables are underlying traits of a constitution that can be measured quantitatively. The first variable is the comprehensiveness of a constitution, which refers simply to the tendency of a constitution to contain a greater or lesser number of rights provisions. The second variable is the ideological character of the constitution. We find empirically that the world’s constitutions can be arrayed along a single ideological dimension. At one end of the spectrum, some constitutions can be characterized as relatively libertarian, in the sense that they epitomize a common law constitutional tradition of negative liberty and, more specifically, judicial protection from detention or bodily harm at the hands of the state. At the other end of the spectrum, by contrast, some constitutions are more statist in character: they both presuppose and enshrine a far-reaching role for the state in a variety of domains by imbuing the state with a broad range of both powers and responsibilities. For every constitution in the world, we calculate a numerical score that measures its position on this ideological spectrum. These scores yield an ideological ranking of the world’s constitutions – the first of its kind.Using these scores, we are able to map the ideological evolution of global constitutionalism. We show that the world’s constitutions are increasingly dividing themselves into two distinct families – one libertarian in character, the other statist. Within each family, constitutions are becoming increasingly similar to one another, but the families themselves are becoming increasingly distinct from one another. The dynamics of constitutional evolution, in other words, involve a combination of ideological convergence and ideological polarization.

Constitutional Variation Among Strains of Authoritarianism

Authoritarian regimes can make surprising constitutional choices. Many adopt sham constitutions packed with rights guarantees that they do not uphold. Others, however, adopt brutally candid constitutions that forthrightly limit or omit a variety of basic rights. The result is a considerable degree of constitutional variation among authoritarian regimes. In this contribution to an edited volume, we find that some of this variation can be explained by distinguishing among different strains of authoritarianism. As an empirical matter, we find that constitutional candor is more common among monarchical and military regimes than civilian or party-based dictatorships. As a theoretical matter, we argue that this pattern reflects the divergent strategic incentives faced by different types of authoritarian regimes.Our empirical analysis compares the constitutional choices of four different types of regimes — democratic regimes, monarchical regimes, military regimes, and civilian or party-based regimes — over the period from 1981 to 2008. Specifically, we estimate a multinomial logit model in which the predictor variable of interest is the type of regime, and the dependent variable is the type of constitution adopted. This regression analysis confirms the existence of statistically significant differences among monarchical, military, and civilian dictatorships that cannot be explained by variables such as economic development, geographic region, or civil war. Even after controlling for such variables, civilian dictatorships are significantly less likely to practice constitutional candor, and more likely to adopt sham constitutions, than either monarchical or military dictatorships. These findings support our hypothesis that authoritarian regimes are rational, self-interested actors that make constitutional choices on the basis of strategic calculations which vary from one type of regime to another. On the one hand, adoption of a sham constitution offers authoritarian rulers a relatively cheap way of appealing ideologically to domestic and international constituencies. On the other hand, adoption of a candid constitution can help authoritarian rulers to resolve a variety of coordination problems. A relatively candid constitution can be useful to an authoritarian regime as a means of allocating power and resolving conflict within the regime, and of generating self-reinforcing popular beliefs about the ubiquity of government control and the consequences of opposition or dissent. Conversely, a sham constitution can backfire by depriving regime members of a device for overcoming internal coordination problems while simultaneously providing regime opponents with a coordination device of their own. The three types of authoritarian regimes balance the costs and benefits of constitutional candor largely in the manner that we would expect under this hypothesis. Compared to civilian or party-based dictatorships, monarchical regimes enjoy greater historical legitimacy, while military regimes enjoy superior capacity for coercion. These advantages ought to render monarchical and military regimes less dependent than civilian regimes on ideological approval or international acceptance, and more at liberty to adopt unappealingly candid constitutions. By contrast, because civilian regimes are not as well positioned to flout the expectations of domestic and international audiences, they may weigh the costs of constitutional candor more heavily. Consistent with this account, civilian regimes are in fact less prone to constitutional candor than either monarchical or military regimes.

Proportionality Review of Administrative Action in Japan, Korea, Taiwan, and China

Much of East Asia has moved in recent decades toward more extensive substantive review of administrative action, and the doctrinal vehicle for this movement has typically been the adoption of some form of proportionality analysis. This contribution to an edited volume describes and offers explanations for the trajectory of proportionality review in Japan, South Korea, Taiwan, and China. Substantive judicial review of administrative action is far from uniform across these four countries. Whereas the Japanese judiciary remains reluctant to embrace proportionality review openly, courts in Korea and Taiwan have developed increasingly elaborate versions of proportionality analysis, and there are signs that the principle of proportionality is gaining traction in Chinese administrative law. More surprisingly, however, our account also highlights the existence of significant differences within countries that rival in magnitude the differences between countries. These intranational as opposed to international variations are attributable in large part to the existence of multiple institutions with overlapping responsibility for shaping administrative law. In Korea and Taiwan, the existence of specialized constitutional courts in addition to ordinary courts or administrative courts has meant in practice that different courts sometimes end up applying competing versions of proportionality analysis to administrative decisionmaking. In China, the potential for intranational variation is even greater, notwithstanding the absence of constitutional review. A combination of uncoordinated experimentation at the provincial level, piecemeal legislation at the national level, and episodic guidance from top leadership has generated a fragmentation of administrative law and opened the door to multiple evolutionary possibilities.The chapter concludes with a discussion of four potential explanations for the spread of proportionality review in East Asia that might also apply more broadly. These explanations are (1) conscious effort by courts to expand their own power, (2) the functional difficulty of performing substantive review without resort to some form of proportionality analysis, (3) the sheer global popularity of proportionality review, and (4) the potential for doctrinal migration from constitutional law to administrative law.

The Myth of the Imposed Constitution

Japan’s post-war constitution, the Nihonkoku Kenpo, is routinely cited as an example of an imposed constitution. It is generally understood to be the product of military occupation by the United States. More than six decades after the end of that occupation, however, the Kenpo not only remains in place, but has outlasted the average constitution and survived longer without amendment than any other constitution in the world. Given the supposedly unfavorable circumstances of its birth, how can the exceptional longevity and stability of the Kenpo be explained, and what lessons can be drawn from its success that might apply elsewhere? nThis contribution to an edited volume offers two explanations for the longevity of the Kenpo. First, it is not true that Japan’s constitution has remain unchanged. Rather, constitutional evolution in Japan has favored informal mechanisms that have obviated formal amendment of the Kenpo itself. In Japan as elsewhere, it is necessary to distinguish between the large-C constitution, or the formal document that bills itself the constitution, and the small-c constitution, consisting of the rules, practices, and understandings (written or otherwise) that actually govern the operation of the state. Tension between these two sources of constitutional meaning is inevitable and gives the practice of constitutionalism a syncretic character. nAlthough Japan’s large-C constitution has remained fixed, its small-c constitution has evolved through a combination of interpretation, nonenforcement, and functional obsolescence. The last of these evolutionary mechanisms goes largely unremarked but is not unique to Japan. Its existence is manifest in the form of zombie constitutional provisions that are formally respected but no longer perform any meaningful function and are thus, for all practical intents and purposes, dead. nA second explanation for the longevity of the Kenpo is that it was never truly imposed. A distinction must be drawn between Japan’s political leaders, who opposed significant constitutional revisions, and the Japanese people, who lacked faith in their discredited leaders and supported meaningful change. Contemporaneous public opinion data strongly supports the view that General MacArthur’s constitutional maneuvering is best understood not as an act of imposition upon Japan as a whole, but rather as an act of agenda control that bypassed elite resistance in favor of a document that enjoyed widespread popular support. Since then, legislative supermajority and popular ratification requirements for constitutional amendment have enabled public sentiment and opposition parties to thwart the long-standing efforts of Japan’s center-right Liberal Democratic Party to dilute the pacifist provisions of the Kenpo. nJapan’s experience suggests that widespread popular support, not the support of governing elites, is the sine qua non of an enduring democratic constitution. Logic and experience alike support the conclusion that, in any country where the people truly hold political power, the people can and will eventually modify or reject a constitution that they do not support. Conversely, however, if the people generally support the constitution, their leaders will encounter great difficulty amending it. nIn closing, the chapter argues that the very concept of an imposed constitution lacks explanatory or analytical value because it rests upon a false dichotomy between imposed and unimposed constitutions. Constitution-making routinely implicates multiple authors, constituencies, and narratives in a process that is part negotiation, part dialectic, and part coercion. This multiplicity of participants and processes makes it difficult to say with confidence what is an imposed constitution and what is not. In the politics of constitution-making, as in any other kind of politics, there are invariably both winners and losers, both those who participate and those who are marginalized. Elements of imposition and alienation are therefore endemic to constitution-making.

The Global Language of Human Rights: A Computational Linguistic Analysis

Abstract Human rights discourse has been likened to a global lingua franca, and in more ways than one, the analogy seems apt. Human rights discourse is a language that is used by all yet belongs uniquely to no particular place. It crosses not only the borders between nation-states, but also the divide between national law and international law: it appears in national constitutions and international treaties alike. But is it possible to conceive of human rights as a global language or lingua franca not just in a figurative or metaphorical sense, but in a literal or linguistic sense as a legal dialect defined by distinctive patterns of word choice and usage? Does there exist a global language of human rights that transcends not only national borders, but also the divide between domestic and international law? Empirical analysis suggests that the answer is yes, but this global language comes in at least two variants or dialects. New techniques for performing automated content analysis enable us to analyze the bulk of all national constitutions over the last two centuries, together with the world’s leading regional and international human rights instruments, for patterns of linguistic similarity and to evaluate how much language, if any, they share in common. Specifically, we employ a technique known as topic modeling that disassembles texts into recurring verbal patterns. The results highlight the existence of two species or dialects of rights talk—the universalist dialect and the positive-rights dialect—both of which are global in reach and rising in popularity. The universalist dialect is generic in content and draws heavily on the type of language found in international and regional human rights instruments. It appears in particularly large doses in the constitutions of transitional states, developing states, and states that have been heavily exposed to the influence of the international community. The positive-rights dialect, by contrast, is characterized by its substantive emphasis on positive rights of a social or economic variety, and by its prevalence in lengthier constitutions and constitutions from outside the common law world, especially those of the Spanish-speaking world. Both dialects of rights talk are truly transnational, in the sense that they appear simultaneously in national, regional, and international legal instruments and transcend the distinction between domestic and international law. Their existence attests to the blurring of the boundary between constitutional law and international law.

Constitutional Dissonance in China

Chinese law and comparative constitutional law are both thriving fields, but the comparative study of Chinese constitutional law remains rare. Part of the explanation may lie in skepticism on the part of comparative constitutional scholars as to whether China can be said either to possess a genuine constitution or to practice constitutionalism, due to its lack of judicial review and disregard for civil and political rights. This chapter seeks to explain why it is not only appropriate, but also highly beneficial for comparative constitutional scholars to study Chinese constitutionalism. nFirst, we argue that “Chinese constitutionalism” is not an oxymoron, and that definitional objections to the study of Chinese constitutionalism are therefore misplaced. We articulate a pluralistic framework for defining the terms “constitution” and “constitutionalism” that incorporates three types of criteria: regime goals, regime characteristics, and regime performance. The result is a rich matrix of definitional possibilities, many of which are capable of encompassing China and other authoritarian regimes without either implying approval of their practices or conflating them with liberal democracies. nSecond, we explain why the study of Chinese constitutionalism would affirmatively benefit both the field of comparative constitutional law and the development of constitutionalism in China. Not only is scholarly engagement with China more likely to promote constitutional development than scholarly indifference, but it also provides an opportunity to broaden and enrich the discipline of comparative constitutional law by focusing our attention on important and recurring constitutional phenomena other than judicial review. nProminent features of the Chinese constitutional experience that render China a valuable case study for comparative constitutional scholars include: n(1) the use of quasi-constitutional statutes that shape the powers of the administration and the courts; n(2) the articulation and enforcement of constitutional norms by political means, such as popular movements; n(3) the role of transnational law in supplementing constitutional law; and n(4) the phenomenon of dissonant constitutionalism, wherein a constitution is blatantly violated yet at the same time commands too much normative authority to be simply ignored. In such situations, the constitution may function as a constructive irritant: in the best-case scenario, the unresolved contradiction generates genuine constitutional discourse that in turn fuels the development of the constitutional order.