11 Harv Hum Rts J109

+(,121/,1(
Citation: 11 Harv. Hum. Rts. J. 109 1998 Content downloaded/printed from HeinOnline (http://heinonline.org) Sun Mar 17 05:00:59 2013 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=1057-5057
Constitutionalism and Political Culture: The Debate over Human Rights and Asian Values
Michael C. Davis*
Human rights ideals in the present age face many challenges, the most persistent of which is the "Asian values" claim being promoted by some authoritarian East Asian leaders. In taking the initiative to challenge the present liberal human rights and democratic trends,1 authoritarian East Asian political leaders have argued against the wholesale importation of Western democracy and human rights. The human rights practices of the West are said to be unsuited to Asian soil and to the particular cultural and historical conditions of the East. East Asian leaders point to the Western origin of liberal democracy and the high levels of crime and social problems in the West and question the merits of principles they claim are contrary to "Asian values"-a term in which they seem to include authoritarianism, cooperation, harmony, and order as the predominant values of Asian culture. 2 This claim has some academic currency among cultural theorists who argue for an exception to democratic ideals for societies that lack certain cultural prerequisites.
* Professor of Law, Chinese University of Hong Kong (mcdavis@cuhk.edu.hk). Special thanks for opportunities to present earlier versions of this argument and receive comments to the
International Conference on Trends in Contemporary Constitutional Law held at the University

of Hong Kong in December 1996, the 1997 Asian Law Forum Speaker Series at Yale Law School, and the 1997 Clason Endowed Lecture Series at the Western New England College of Law. A
further personal thanks to Victoria Hui, Thomas Eldert, and Sophie Courtemanch for their
comments on and assistance with various drafts. 1. The present analysis treats democratic rights as a constituent element of human rights.
Democratic rights are usually categorized under civil and political rights. See, eg., International Covenant on Civil and Political Rights, adoptedDecember 16, 1966, arts. 18, 19, 21, 22 and 25, 999 U.N.T.S. 171, 178-79, rqrintedin 6 I.L.M. 368 (1967). 2. Se,? Samuel P. Huntington, Democracy's Third Wave, in THE GLOBAL. RESURGENCE OF DEmOCRACY 3, 15 (Larry Diamond & Marc E Platner eds., 1993). The present essay will focus largely on the Confucian component of the Asian values debate and more directly on those societies in East Asia that are historically characterized as Confucian. In this regard, it is important to note that several of the democracies in Asia (e.g., Japan, South Korea, Taiwan, and Hong Kong, the last three now in transition) are societies that were traditionally Confucian.
HeinOnline -- 11 Harv. Hum. Rts. J. 109 1998
HarvardHuman Rights Journal / Vol. 11 The present Article offers both a critique of the Asian values and broader cultural claims and a positive constitutionalist agenda for addressing the issues implicated in this crucial debate. The critique is twofold: (1) that the proponents of the Asian values argument, in advancing an agenda for authoritarian rule, fail to appreciate the rich values discourse of the East Asian region; and (2) that the cultural relativist theories of the academy are tautological and overly deterministic because they fail to appreciate the roles of both human agency and institutions in the transformative processes of cultural discourse. Following the critique of Asian values and broader cultural claims, the second half of this Article addresses its main concern: the crosscultural implications of the globalization of liberal constitutional practices. 3 The primary mission here is to encourage renewed appreciation of the positive role of constitutionalism in the construction of social and political values. 4 I will emphasize the positive role of constitutionalism as a venue both to secure the legitimate autonomy of the politically developmental state and to make the state responsive to current public values. 5 While theorists often discuss constitutionalism and 6 human rights in terms of the constraints they impose on the state, I will emphasize their positive discourse-engendering role. In this regard, I argue that liberal constitutional democracy should advance a twofold mission: first, the implementation of the liberal constitutional fundamentals of democracy, human rights and the rule
3. Globalization here is generally understood to refer to the emergence of social, political and
economic phenomena that extends beyond the control of individual states. See, e.g., John G.
Ruggie, Territoriality and Beyond: Problematizing Modernity in InternationalRelations, INT'L ORG.,
Winter 1993, at 139. In the present context, the application of this term to constitutionalism
suggests the emergence of liberal constitutional practices and expectations that are considered
fundamental across various stare systems. The globalization of constitutional human rights values through a global discursive process also offers an alternative to metaphysical arguments in support
of the universality of human rights.
4. There are several complex issues which need to be addressed in considering economic development and its relationship to constitutional government. The economic development
argument is set aside here and is the subject of a separate essay. See Michael C. Davis, The Price
of Rights: Constitutionalismand East Asian Economic Development, 20 Hum. R'rs. Q. 303, (forthcoming
1998). The present Article will focus, instead, on the claims made about Asian values and relate
these issues to constitutionalism. 5. For purposes of the present discussion, I will adopt a positive, empowering notion of liberal constitutionalism with three core components: (1) democratic elections with multi-party contestation; (2) security of human rights, especially freedom of expression; and (3) the rule of law with
firm adherence to principles of legality. In this essay, the term "constitutionalism" will be used
interchangeably with the term "liberal constitutionalism" to signify attention to these elements.
I will argue below that these core components ideally take on local institutional embodiment through a process I characterize as constitutional indigenization.
6. Constitutional discourse often emphasizes the way in which constitutional processes serve
to check or block governmental actions. See Stephan Holmes, Prccommitment and the Paradox of
Democray, in CONSrTUMONAUSM AND DEImocRAcy 195, 226 (Jon Elster & Rune Slagstad eds.,
1988).
1998 / Constitutionalism and Asian Values

of law, which creates a venue for an open-ended conversation about values; second, within this venue, the use of the particular practices of each country to embed this conversation in the local community-a process I characterize as indigenization. 7 In the modern context, this engendering conversation offers the most realistic avenue to cultural and community reconstruction. I. THE ASIAN VALUES POLITICAL DEBATE Official and academic claims concerning Asian values exaggerate the constraints imposed by these values and fail to account for the richness of the values discourse in East Asia. Setting aside the economic development argument,8 there are essentially two contentions. First, the more extreme form of the Asian values claim generalizes that Asian cultures, particularly Confucian cultures, are undemocratic or positively anti-democratic, and that authoritarian forms of governance are more suitable to Asian soil. 9 With respect to historically Confucian societies, this alleged hostility is reflected in the stereotypes that characterize them as advancing the group over the individual, authority over liberty, and responsibility over rights, and as promoting such values as harmony, cooperation, order and respect for hierarchy. 10 Second, a less extreme contention focuses on the historical stage of development of the society and argues that while human rights may ultimately have universal application, they are, at most, a distant dream for societies in the early stages of development." This argument, in effect, affords justification for harsh or authoritarian measures in the present. Such claims to exception, not new in human rights history, are rehearsed almost daily in East Asian political discourse. 12 A succinct
7. In this essay, I use the terms "indigenization" and "constitutional indigenization" interchangeably.
8. Sce Davis supra note 4.
9. See Huntington, supra note 2, at 15.

10. Id. 11. The Chinese government emphasized historical condition, cultural relativism and national sovereignty in the preface of its 1991 White Paper on human rights, a report prepared and published in five languages largely as a proactive response to international human rights criticism:
Owing to tremendous differences in historical background, social system, cultural

tradition and economic development, countries differ in their understanding and practice of human rights. From their different situations, they have taken different attitudes towards the relevant U.N. conventions. Despite its international aspect, the issue of human rights falls by and large within the sovereignty of each country. Therefore, a country's human rights situation should not be judged in total disregard of its history and national conditions, nor can it be evaluated according to a preconceived model of the conditions of another country or region. HuMAN RIGHTS IN CHINA II (Information Office of the State Council ed., 1991). 12. See, eg., Bilahari Kausikan, Governance That Works, J. DEMOCRACY, Apr. 1997, at 24,
HarvardHuman RightsJournal / Vol. 11 official statement in this regard was offered by the Chinese Ambassador, later Deputy Foreign Minister, Liu Huaqiu at the 1993 Vienna World Conference on Human Rights: The concept of human rights is a product of historical development. It is closely associated with specific social, political and economic conditions and the specific history, culture and values of a particular country. Different historical development stages have different human rights requirements ... Thus, one should not and cannot think the human rights standard and model of certain countries as the only proper ones and demand all other countries to comply with them ... For the vast number of developing countries, to respect and protect human rights is first and foremost to ensure the full realization of the rights to subsistence and development. .... 13 These views were expressed collectively in the 1993 Bangkok Declaration, the declaration of the official Asian Regional Meeting of the World Conference on Human Rights.' 4 While accepting some degree of universality, the Bangkok Declaration emphasized cultural exception, recognizing that "while human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm setting, bearing in mind the significance of national and regional particularities and various historical, cultural and 15 religious backgrounds."
24-34; Yahya Sadowski, The New Orientalism and the Democracy Debate, MIDDLE EAST REP., July-Aug. 1993, at 14; Beijing Attacks 'Imposed Values', S. CHINA MORNING POST, Sept. 27, 1996, at 11 (on file with the HarvardHuman Rights Journal); Peace Not A Sign Of Weakness, Says Li, S. CHINA MORNING POST, Sept. 20, 1996, at 12 (on file with the Harvard Human Rights Journal); Sustain Miracle, Entreats Founder, S. CHINA MORNING POST, June 9, 1996, at 7 (on file with the HarvardHuman Rights Journal); Those Deferential Asians, ECONOMIST, Dec. 9, 1995, at 12. In a recent interview prior to his first Washington summit, Chinese President Jiang Zemin emphasized the relative quality of human rights: "it]he theory of relativity can also be applied to the political field .... Both democracy and human rights are relative concepts and not absolute."JiangDefends Rights Record, S. CHINA MORNING POST, Oct. 20, 1997, at 7 (on file with the Harvard Human RightsJournal). 13. Liu Huaqui, Head of Chinese Delegation at the World Conference on Human Rights, Remarks at the Meeting of the World Conference on Human Rights 2-3 (June 15, 1993) (on file with the HarvardHuman RightsJournal). 14. Declaration of the Ministers and Representatives of Asian States, March 29-April 2, 1993, in OUR VOIcE, BANGKOK NGO DEcLARATIoN ON HUMAN RIGHTS (Asian Cultural Forum on
Cultural Development ed., 1993) [hereinafter BANGKOK DECLARATION]. 15. See id., art. 8. While this language is not objectionable on its face, the accompanying emphasis on "national sovereignty and territorial integrity as well as non-interference in the internal affairs of States, and the non-use of human rights as an instrument of political pressure" (Article 5), as well as the emphasis on the use of domestic institutions (Articles 9 and 24), lead to skepticism about the seriousness of this official East Asian commitment. Id. art. 5, 9, 24. The greater emphasis placed on certain economic, cultural, and social rights (Articles 10, 17, 18, 19) tend to further align this declaration in opposition to serious protection of civil and political
1998 / Constitutionalismand Asian Values Even more striking in Asia than these official polemics is the rich diversity of voices in varied degrees of opposition to the Asian values argument. The fact that four leading governments, those of Japan, Taiwan, South Korea and the Philippines, have openly adopted multiparty democratic political systems with substantial constitutional commitments indicates the strength of this opposition.' 6 Though these newly reforming countries have not completely forsaken their historical authoritarian practices, there is considerable evidence of an emerging commitment to constitutional requirements: periodic elections occur and opposition governments take power at both the local and national levels; human rights and freedom of press and association are evident in a vigorous press and in high levels of civic action and associational activities; and courts are increasingly exercising the power to review 7 government action.1 The seriousness of these endeavors is further demonstrated by recent efforts, in defense of democratic reforms, to make former authoritarian corrupt officials accountable for their abuses of power.' 8
rights. This drew fire from the regional NGO meeting that took place simultaneously in Bangkok. See generally OUR VOICE, BANGKOK NGO DECLARATION ON HUMAN RIGHTS (Asian Cultural Forum on Cultural Development ed., 1993). 16. The role of democracy in securing human rights and vice versa will become apparent in the analysis of the constitutionalist project discussed in the second part of this Article. 17. The processes of transition have been well documented in the secondary literature of the past decade. See, ag., JAUSHIEH JOSEPH Wu, TAIwAN's DEMOCRATIZATION, FORCES BEHIND THE NEw MOMENTUM (1995); Lawrence W. Beer, Freeom of Expression: The Continuing Revolution, LAw & CONTEMP. PROBS., Spring 1990, at 39; Tun-jen Cheng, Taiwan in 1996: From Euphoria to Melodrama, ASIAN SURVEY, Jan. 1997, at 43; Haruhiro Fukui & Shigeko N. Fukai,Japan in 1996: Between Hope and Uncertainty, ASIAN SURVEY, Jan. 1997, at 20; H. Itoh,Judicial Review and JudicialActivism in Japan, LAw AND CONTEMP. PROBS., Winter 1990, at 169; B.C. Koh, South Korea in 1996: Internal Stains and External Challenges, ASIAN SURVEY, Jan. 1997, at 1; J.A. Lent, Human Rights and Freedom of Expression in Asia and the Philippines, 17 ASIAN PROFILE 137 (1989); L.S.L. Liu,JudicialReview and Emerging Constitutionalism: The Uneasy Casefor the Republic of China on Taiwan, 39 AM. J. COMP. L. 509 (1991); C. Neal Tate, The Judicializationof Politics in the Philippinesand Southeast Asia, 15 INT'L POL. SCL REV. 187 (1994); J.W. West & Ej. Baker, The 1987 ConstitutionalReforms in South Korea: EleetoralProcessesandJudicialIndependence, 1 HARv. HUM. RTs. YB. 135 (1988); H.K. Youm, Current Development: South Korea, Press Laws in Transition, 22 COL. HUM. RTs. L. REv. 401 (1991); Kim the Peacemaker, ECONOMIST, Jan. 31, 1998, at 41; Strictly Ballroom, ECONOMIST, Sept. 13, 1997, at 39 (discussing how President Ramos cancelled plans to amend the constitution to allow for a second term due to public protests). 18. Corruption has too often been the dark underside of the East Asian economic miracle. The relationship between corruption and economic development is better addressed in a separate essay. See Davis, supra note 4. It is important to note here, however, that the moral baseness reflected in the extreme corruption of previous authoritarian governments in South Korea and the so-called soft authoritarian government under the previous one-party dominant system in Japan, while omnipresent in traditional societies, would hardly be held out as an ideal conception of Asian values. South Korean officials and business leaders were recently convicted of receiving or paying over U.S. $300 million in illegal bribes. The Mighty Fall in South Korea, ECONOMIST, Aug. 31, 1996, at 31; The Quality of Korean Mercy, ECONOMIST, Aug. 31, 1996, at 16. The seriousness with which people view this corruption was again demonstrated by the conviction of former South Korean President Kim Young-Sam's son.
HarvardHuman RightsJournal / Vol. 11 Though less secure than in the previously mentioned countries, some degree of democratization in Thailand and Hong Kong stands as further testimony to East Asia's attraction to democracy,' 9 as do the 2 0 current struggles over democracy in Cambodia and Burma. Most of these developments have been encouraged by substantial mass movements, a phenomenon also sometimes evident in China and Indonesia.2 1 Even the official polemic reflected in the Bangkok Declaration did not go unchallenged; at a concurrent meeting, numerous Asian nongovernmental organizations (NGOs) published an opposing decla22 ration.
The numerous Japanese corruption scandals and prosecutions are testimony to that country's disgust with the back-room politics of soft authoritarianism (a perennial problem of Imperial Japan, as well). Beginning in the mid-1970s, when Japanese Prime Minister Kakuei Tanaka was indicted (August 16, 1976, with conviction in 1983) in the Lockheed scandal, the fate of the ruling Liberal Democratic Party (LDP) spiraled downhill until the LDP was no longer able to sustain power in 1993, thus ending 40 years of LDP rule. In 1989, the party put forth Toshiki Kaifu, a reformist leader of a minor faction, as Prime Minister because they had great difficulty finding untainted politicians to take up the post-this time due to the Recruit scandal, where stock was sold to numerous politicians at favorable terms prior to public listing. The Japanese electorate now appears to take a very dim view of corrupt officials and this remains a political issue. See generally RICHARD H. MITCHELL, POLITICAL BRIBERY IN JAPAN 121-32 (1996); KARIL vAN WOLFEREN, THE ENIGMA OF JAPANESE POWER 132-38 (1989). 19. See e.g., Michael C. Davis, Human Rights and the Founding of the Hong Kong Spcial Administrative Region, 34 COL. J. 'TRANSNAT'L L. 301, 321 (1996); Thailand, Reaching for the Moon, ECONOMIST, Sept. 20, 1997, at 45. 20. On August 26, 1988, a half million people defied the Burmese regime to hear Aung San Suu Kyi speak. These same people supported her party, the National League for Democracy, in the 1990 election for the National Assembly, giving it 392 out of 485 available seats, a result that was harshly overturned by the military regime. See, eg., AUNG SAN Suu Kvz, FREEDOM FROM FEAR 192, 227 (1995); Cambodia'sMany-Headed Monster, ECONOMIST, Nov. 1, 1997, at 41; Bertil Lintner, Reward for Resistance, FAR E. ECON. REV., Commemorative Edition, July 1997, at 120. 21. The prototypical mass democracy movement was the 1986 "people power" demonstrations led by Corozan Aquino in the Philippines, resulting in the overthrow of the Marcos regime and the institution of what may be the most liberal constitution in East Asia. See S. Guingona, The Constitution of the Philippines: An Overview, NEW ZEALAND LJ., December 1989, at 419; Guy Sacerdoti & Rodney Tasker, Power From the People, FAR E. ECON. REv., Commemorative Edition, July 1997, at 106; Tate, The Judicializationof Politics in the Philippines and Southast Asia, supra note 17; C. Neal Tate, The Courts and the Breakdown and Re-creation of Philippine Democracy: Evidence from the Supreme Court's Agenda 6 (1997) (paper presented at the 17th World Congress of the International Political Science Association, Seoul, South Korea, Aug. 21, 1997) (on file with the Harvard Human Rights Journal). This was followed in 1989 by the failed democracy movement centered in Tiananmen in China. See generally THE AFTER ATH OF THE 1989 CRIsIs IN MAINLAND CHINA (Bj. Lin ed., 1992). Similar demonstrations took place in Taipei in 1990, resulting in the national constitutional conference and the institution of democratic reforms. See Wu supra note 17 at 36-70, 123-37. Similar demonstrations in 1987 brought the South Korean military regime to an end in 1988. See Tun-jen Cheng & Eun Mee Kim, Making Democracy: Generalizing the South Korean Case, in THE POLITICS OF DEMOCRATIZATION: GENERAulZING EAST ASIAN EXPERIENCFS 125, 135-39 (Edward Friedman ed., 1994). Mass demonstrations have failed to produce real change in Burma and Indonesia. See Aung San, supra note 20, at 192, 227; R. William Liddle & Rizal Mallarangeng, Indonesia in 1996: Pressuresfrom AsoVe and Below, ASIAN SURvEY, Feb. 1997, at 167. 22. These NGOs challenged the official claims that universal standards of human rights did
1998 / Constitutionalismand Asian Values II. THE SCHOLARLY DEBATE OVER THE CONTENT OF ASIAN VALUES Scholars of the Chinese classics and political theorists have challenged the official claims made on behalf of Confucianism. They question current official Asian practice of attributing authoritarianism to Asian values. Alternative explanations can account for these official practices more accurately than the Asian values claims raised by political leaders. On a factual level, North Korea, China, and Vietnam, which are among the most extreme examples of regimes with authoritarian or sometimes totalitarian practices, each have an alternative Marxist state ideology that would alone explain much of their political 23 behavior. Confucianism would not. Leading classics scholar Wejen Chang argues, "If we take authoritarianism to mean a general submission of the people to the government and the exercise of power by the authorities with little or no respect for the public opinion or basic rights of the individual, we find that classical Confucians advocated just the opposite." 24 Chang notes that the two golden rules of classical Confucianism elevate higher moral principles, such as compassion and mutual respect: "do not impose on others what you do not desire," and "help others to achieve their goals as you wish to achieve your own.'' 25 Under such norms, the government is there to serve the people and to provide order.26 Therefore, as under human rights principles, the government is not completely unencumbered by higher principles in the execution of power. In this light, Confucianism certainly does not appear to be hostile to human rights. In arguing against the authoritarian Confucian thesis, Chang further cites an important admonition from Mencius, the second great thinker of Confucianism, concerning the exercise of the ruler's power:
not apply to Asia. See supra text accompanying note 15. They questioned the claim that special local circumstances justified the abuse of basic rights. See OUR VOICE, BANGKOK NGO DEcLARATION ON HUasAN RIGHTS, supra note 15. 23. See Wejen Chang, The Individual and the Authorities in Traditional Chinese Legal Thought 1 (1995), (paper presented for the Constitutionalism and China Workshop, Columbia University,
Feb. 24, 1995) (on file with the HarvardHuman RightsJournal);see generally Gangjian Du & Gang
Song, Relating Human Rights to Chinese Culture: The FourPaths of the Confician Analeas and the Four
Principles of a New Theory of Benevolence, in HuMAN RIGHTS AND CHINESE VALUES, LEGAL, PHILOSOPHICAL, AND POUTICAL PERSPECTIVES 35 (Michael C. Davis ed., 1995).
24. Chang, supra note 23, at 1. See also Du & Song, supra note 23. This argument, based on
philosophical content, merely contests the alleged antagonism between tradition and human
rights, and does not argue for the existence of an established Asian tradition of rights. Ta Van Tai has taken that extra step, arguing that both notions of the rule of law and human rights were established in traditional pre-Confucian Vietnamese society. See generally Ta Van Tai, THE VIETNAMESE TRADITION OF HUMAN RIGHTS (1988). 25. Chang, supra note 23, at 1. 26. Id. at 1-2.
HarvardHuman Rights Journal / Vol. 11

The people . . . are of the greatest importance, the state comes next, and the ruler last. . . . [f the ruler treats his subjects as his hands and feet, they will treat him as the heart; if he treats them as dogs and horses, they will treat him as a mere fellow countryman; if he treats them as dirt and grass, 27 they will treat him as an enemy Chang concludes that when a ruler becomes "autocratic and violates the basic principles of benevolence and righteousness" he is "a despot" 28 and can be rightfully deposed. Chang attributes the evolution of harsh authoritarian rule in the Chinese dynastic cycle to Chinese legalism and the habits of dynastic rulership-a potent combination that some academics call "neo-Confucianism. ''29 It was in the later dynastic cycle that the rudiments of authoritarianism were imported into Confucian ideals. 30 In this importation, the moral relationships of Confucianism were stripped of the principles of compassion and mutual respect that early Confucians 31 emphasized. The contemporary intellectual foundation of the current Asian values political argument has also come under attack. Asian scholars and others have condemned the persistent patterns of "orientalism" in both Western and Asian scholarship and political polemics. 32 Beng-Huat Chua, citing earlier work by Edward Said, highlights how, in recent years, some Asian intellectuals and policymakers have embraced the Western discourse of "orientalism" as a self-defining discourse. 33 This leads to the paradoxical result that an originally Western discourse aimed largely at defining Asians as part of the "other," or outside of the West-centered world, 34 has been taken on board by its putative objects: the Asians themselves. The consequence is the perpetuation of 3 politically authoritarian regimes. '
27. 28. 29. 30. 31. Id at 2. Id Id. at 8-14. Id. at 10-14. Id at 10.
32. BENG-HUAT CHUA, COMMUNrTARIAN IDEOLOGY AND DEMOcRACY IN SINGAPORE 147
(1995). The term "orientalism" refers to the tendency of Western intellectuals, pursuing "oriental" studies, to ratify and mystify Asian societies, treating them as exceptions to Western ideas and practices. Edward Said points out that this orientalist tradition is exclusionary, treating Asians as the "other," perhaps incapable of meeting Western standards. EDWARD SAID, ORIENTALISM 22 (1978). See also Haocheng Yu, On Human Rights and Their Guarantee by Law, in HUMN RIGHTS AND CHINESE VALUES, LEGAL, PHILOSOPHICAL, AND POLITICAL PERSPECTIVES 93 (Michael C. Davis ed., 1995). 33. CHUA, supra note 32, at 147. 34. Said feels that this claim was made to rationalize Western domination over the East. SM SAID, supra note 32, at 22. 35. CHUA, supra note 32, at 147. Positivist social scientists have seemingly not been the only
1998 / Constitutionalismand Asian Values
117
Although "orientalist" logic would have us believe that the intellectual ideas and practices of human rights were misunderstood when first encountered in East Asia, the record concerning the initial reception of these rights indicates that they were not misunderstood. The evidence from the endless debates in early modern Chinese magazines and newspapers demonstrates a high level of sophistication in early Chinese understanding of enlightened thought and its basic human rights 37 concepts. 36 There were many Chinese advocates of natural rights. These early Chinese writers, reflecting a utilitarian bent, did acknowledge the need to limit rights in the national interest, but, in a true Confucian spirit, 38 did not view the national interest as identical to the interest of the regime in power.39 The anti-Confucian and, later, cultural relativist components of Chinese rights discourse did not really surface until the May Fourth Movement of 1919 and beyond.40 The May Fourth Movement was a multi-faceted student and intellectual movement that attacked tradition, promoted science and democracy, and expressed anti-imperialist nationalist sentiments. 41 This wave of nationalism opened a window for cultural relativist elements to slip into Chinese rights discourse. It has been argued that Chinese have favored social and economic rights over political rights, as part of their minben tradition of governance, which emphasizes the people as a basis. 42 Some might conclude from this minben tradition that civil and political rights would be
ones guilty of orientalism. William Afford levels a similar accusation at Roberto Unger, a critical legal theorist normally considered an advocate of a more textured approach. See William Alford, The Inscrutable Ocidental? Implications of Roberto Unger's Uses and Abuses of the Chinese Past 64 TEx. L. REV. 915 (1986). 36. See iARINA SVENSSON, THE CHINESE CONCEPTION OF HuiAN RIGHTS: THE DEBATE ON Hus.&RIGHTS IN CHINA, 1898-1949 (1996). 37. See id. at 106-12. 38. See Chang, supra note 23; Du & Song, supra note 23. 39. See SVENSSON, supra note 36, at 119-26, 129-38. See also Chang, supra note 23; Du & Song, supra note 23. 40. See SVENSSON, supra note 36, at 156-204.
41. The May Fourth M1dovement was triggered by the decision of the Versailles Conference at the end of World War I, on May 4, 1919, that the German concessions in Shandong were to be transferred to Japan. As a result of such imperialist actions, many Chinese intellectuals became disillusioned with the Western powers and, to some extent, with Western liberal ideas. Id. at 156-66. Some of those who were disillusioned turned to socialism and started Chinas communist movement; while some of those who remained more oriented toward Western liberal democracy became attached to the nationalist movement, eventually giving rise to the Nationalist government now in power in Taiwan. See Wu, supra note 17, at 13. 42. The ancient Chinese minben tradition asserts that good government should be benevolent and concerned with the people's welfare. This could be distinguished from the liberal notion of democracy which emphasizes the people's control over government. If early modern Chinese
thinkers had interpreted democracy in minben terms, they might have emphasized social welfare concerns, which would have advanced the power of the state and thus emphasized social and economic rights over civil and political rights. See ANDREW J. NATHAN, CHINESE DEMOCRACY 127-28 (1985). If civil and political rights were in fact emphasized by early Chinese rights
HarvardHuman Rights Journal / Vol. 11 willingly sacrificed for the sake of benevolent rulership and social welfare. But this alleged connection between Chinese concern with benevolence and a willingness to sacrifice civil and political rights is questionable. Most of the earlier Chinese writings on the modern notion of human rights focused on civil and political rights.43 Chinese writers, influenced by John Stuart Mill, especially focused on the importance of freedom of thought, speech, and publication.44 Accordingly, if we look beyond traditional Chinese thought to consider the actual facts of Chinese reception of Western thought, we again find little hostility to liberal rights notions. We should, therefore, not only question the claim that human rights are incompatible with Chinese tradition but also observe that early modern Chinese were, in fact, attracted to liberal rights notions. Finally, it is important to ask whether claims about the modern practice of Confucian politics are legitimate. If, contrary to Wejen Chang's view, one accepts that the so-called neo-Confucianism evident in China's last dynasty is genuine, does this form of government now exist? While there is general agreement that levels of Confucian family and personal morality exist in East Asian societies, this does not necessarily translate into an affinity for the authoritarian political values said to be associated with Confucianism or establish the practice 4 of Confucian-style authoritarianism. ' Francis Fukuyama argues that the kind of political Confucianism characterized by Huntington 46 -involving commitments to authoritarianism; advancement of the group over the individual, authority over liberty, responsibility over rights; and promotion of values such as harmony, cooperation, order and respect for hierarchy-was characteristic of pre-democratic Japan and is now largely discredited. 47 Beyond Japan, it is noteworthy that Singapore actually had to import eight Confucian scholars to "implant" the rudiments of this so-called political Confucianism. 48 Of course, the idea of implanting a state value system or perverting an existing one to national purposes is not new.49
thinkers then this slightly relativist logic is to some extent undermined. SVENSSON, supra note 36, at 114-21. 43. SVENSSON, supra note 36, at 106-21. 44. See id. at 114. 45. See, e.g., Chang, supra note 23; CHUA, supra note 32; Francis Fukuyama, Confucianism and Democracy, J. DEmocRAcy, Apr. 1995, at 20, 20. 46. Huntington, supra note 2 at 15. 47. Fukuyama, supra note 45, at 20. 48. See id. at 30; CHUA, supra note 32, at 159. 49. Looking at other East Asian examples, one might conclude that in China, "socialism with Chinese characteristics" becomes essentially capitalism without freedom; in Indonesia, the state ideology of "pancasila" becomes authoritarianism; in North Korea, extreme "self-reliance" becomes a recipe for economic collapse. See Bruce Cumings, The Contemporary State in North Korea,
in STATE AND SocIETY IN CONTE PoRARy KOREA 197, 213-16 (Hagen Koo ed., 1993); JuNE
1998 / Constitutionalism and Asian Values However, if the allegedly Confucian political values of authoritarianism are just an implant, it is difficult to argue that deeply held Asian values compel such authoritarianism. For Singapore, Chua feels the implant was largely rejected, claiming that in the recent elections of 1984, 1988, and 1991, many Singaporeans made effective use of whatever 5 0 political space they were allowed in order to register their dissent. It is difficult to defend the proposition that the recent extreme manifestations of "great-leaderism" found in North Korea, China and Vietnam is Confucianism. 51 While some Asian leaders may claim that the Confucian component in East Asian governments, especially in the rapidly developing countries, is government by consensus, this must also be questioned. 52 Democratic governments also require consensus. Consensus should not be confused with collusion or back-room dealing, as the recent corruption trials in South Korea and Japan demonstrate. Much of what passes as consensus governance in these traditionally Confucian societies is neither Con53 fucian nor desirable in East Asia. III. THE BROADER ACADEMIC DEBATE ABOUT CULTURE In arguments about cultural prerequisites for democratization, scholars who may not even be sympathetic to the Asian values argument have also introduced an element of relativism into studies of democracy and human rights. Others have contested democracy and human rights as an affront to traditional notions of community. My analysis of these broader academic culture arguments advances a threefold critique: first, an examination of the support for an Asian values-type argument often engendered in academic claims about cultural prerequisites for democratization; second, an analysis of claims made about community as a basis for resisting liberal constitutional democracy; and, third, an evaluTEUFEL DREYER, CHINA'S POLITICAL SYSTEM: MODERNIZATION AND TRADITION 149, 430 (1993); JOSEPH FEwsMITH, DIEMMs OF REFORI IN CHINA: POLITICAL CONFLICT AND EcoNOMIC DEBATE 249 (1994); DOUGLAS E. RAMAGE, POLITICS IN INDONESIA: DEMOCRACY, ISLAM, AND THE IDEOLOGY OF TOLERANCE 10-44 (1995). 50. CHUA, supra note 32, at 166. 5 1. "Great leaderism" here refers to a style of leadership based on a personality cult that was
evident in China under Mao Zedong, in North Korea under Kim Il-Sung and in Vietnam under
Ho Chi-min. While Confucianism certainly includes the elements of father figure leaders, such as the emperor in pre-war Japan, it does not include the mass party and totalitarian characteristics of these recent cases. Bruce Cumings has characterized the North Korean form of governance as a kind of socialist corporatism with a charismatic father figure as leader-this leader is called by various terms of endearment such as "great leader." See Cunings, supra note 49, at 197, 199, 206-30. 52. Here the suggestion is that, rather than public confrontation and debate, political actors will favor a system of quiet, behind-the-scenes consensus building, a style of politics not essentially concerned with the protection of liberal political rights. 53. See supra text accompanying note 18.

ation of new institutionalism 54 both as a challenge to the cultural prerequisites argument and as a foundation for the constitutionalist project. As a preliminary matter, in considering culture and political change in East Asia, I think it is important to avoid the tendency to overmystify culture and to use over-generalized cultural stereotypes. 55 Rather, it is important to identify what is symbolized by the political language and practices under discussion. 56 If we take heed of this suggestion, we may avoid the difficulties connected with the search for preconditions for democracy and human rights or those associated with static conceptions of community. We can then more properly focus the discussion of cultural values and change on discursive avenues actively connecting individuals and their culture to their institutional and political environment, as is developed in the discussion of constitutionalism in the latter part of this essay. A. CulturalPrerequisites In the background of the contemporary Asian values discourse, there is a decades-long debate about the role of political culture in democratic transitions. 57 The assumption is that democratization is either difficult or nearly impossible unless certain cultural prerequisites are present. Although the proponents of these arguments are not usually viewed as cultural relativists, the difficulty of satisfying these cultural criteria may produce an essentially relativistic result. In the absence of a whole range of social and political, as well as economic criteria, successful democratization becomes seemingly impossible or, at best, a distant dream.
54. As discussed below, the notion of "new institutionalism" refers to recent renewed interest
in the roles that institutions play in bringing about change and constraining individual choice.
See generally Peter A. Hall & Rosemary C.R. Taylor, Political Science and the Four New Institutionalisms (1994) (paper presented at American Political Science Association Annual Meeting,
New York) (on file with the HarvardHuman RightsJournal). 55. See, ag., CLIFFORD GEERTz, THE INTERPRETATION OF CULTURES: SELECTED ESSAYS 5 (1973).
56. In this regard, Clifford Geertz agrees with Max Weber, that "man is an animal suspended
in webs of significance he himself has spun." Id Geertz describes the process of cultural interpretation in non-mysterious terms as "guessing at meanings, assessing the guesses and drawing explanatory
conclusions from the better guesses." Id. at 20.

57. The term "political culture," though varied in meaning across the spectrum of this
literature, appears to refer to attitudes toward the objects of politics, including political institutions, other political actors, and individuals in the political system. See, e.g., GABRIUEL A. ALbIOND & SIDNEY VERBA, THE Crvic CULTURE, POLITICAL ATTITUDES AND DEMOCRACY IN FIvs NAnONs 12-13 (Sage Publications 1989) (1963). In the context of the debate over democracy and human rights in East Asia, it is noteworthy that the notion of "Asian values" appears to
overlap with the values or attitudinal component of political culture. Scholarship also varies among researchers and time periods concerning the use of the term "prerequisites" or merely
.requisites."
121
The cultural prerequisites argument is sometimes sensibly qualified. In the debate, however, a potent argument too often takes shape that stresses the futility of pursuing the democratic path for those not culturally blessed. This argument and its extension to East Asia in the Asian values debate is clearly misguided. In this section, I am not arguing that cultural values lack importance but, rather, that the cultural prerequisites argument is excessively deterministic, tautological and fails to appreciate the importance of human agency.58 Beginning in the 1950s, a generation of social scientists, encouraged by the potential use of data about political culture to evaluate democratic transitions, took up the task of identifying and measuring the characteristics of political culture that they believed were conducive to democratization. 59 Probably, the premier work in this regard is Gabriel Almond and Sidney Verba's 1963 book The Civic Culture, in which they studied political attitudes and democracy in the United States, Great Britain, Germany, Italy, and Mexico. From this study, they generated the idea of a civic culture6 and the testing criteria for the numerous studies that would follow. 6' Almond and Verba sought to identify and measure statistically, in terms of psychological orientation, what they thought should be present in a country before democratic institutions could take root. 62 While this is a hopeful project in its conception, by conceiving of the identified characteristics as essential prerequisites, it offers an obstacle to democracy for those societies lacking these attributes. Since the characteristics they identified were those largely associated with Western democracies, Almond and Verba's work raises the possibility that non-Western societies are unsuited for democracy and the related human rights.
58. Here, the notion of human agency refers to the actions ofautonomous human beings with free choice; this is in contrast to determinism. "In jurisprudence an agent is one who can perform a genuine intentional action, and who is thus morally responsible for what he/she does." ROBERT
M. MARTIN, THE PHILOSOPHER'S DICTIONARY 16 (2d ed. 1994). 59. Se ALMOND & VERBA, supra note 57; ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS (1989); ROBERT A. DAHL, POLYARCHY, PARTICIPATION AND OPPOSITION (1971); SAMUEL P. HUNTINGTON, POLITICAL ORDER IN CHANGING SOCIETIES (1968); SAMUEL P. HUNTINGTON, THE THIRD WAVE, DEMOCRATIZATION IN THE LATE TW'ENTIETH CENTURY (1991) [hereinafter
THE THIRD WAVE]; Gabriel A. Almond, ComparativePoliticalSystems, J. POLITICS, Aug. 1956, at 391; Samuel P. Huntington, Democracyfor the Long Haul, J. DEMOCRACY, Apr. 1996, at 3; Seymour Martin Lipset, Some Social Requisites of Democracy: Economic Development and PoliticalLegitimacy, 52 AM. POL. SC. REv. 69 (1958); Seymour Martin Lipser, The Social Requisites of Democracy Revisited, 59 Aas. Soc. REv. 1, 7 (1994).
60. Civic culture is defined as "a pluralistic culture based on communication and persuasion,
a culture of consensus and diversity, a culture that permitted change but moderated it." ALMOND & VERBA, supra note 57, at 5-6. 61. Id. Robert Dahl refined these characteristics in his concept of "polyarchy," or a modern
dynamic pluralist (MDP) society. DAHL, DEMOCRACY AND ITS CRITICS, supra note 59, at 223. See also DAHL, POLYARCHY, PARTICIPATION, AND OPPOSITION, supra note 59. 62. See ALMOND & VERBA, supra note 57, at 8, 13.
HarvardHuman RightsJournal / Vol. 11

Comparative political scientists who focus on Asian area studies have 63 also come under the influence of the cultural prerequisites debate. This risks the unintended consequence of fueling official excuses for failure to institute democratic reform. Because autocratic Chinese governments have not welcomed sociological scrutiny, scholars have been left to compile and analyze the meager comparative data on the presence of social and cultural requisites in ways that are often less than convincing.64 Does the presence or absence of any cultural characteristics really justify deferring reform? Those who argue that it does may be claiming that Asian societies must somehow achieve a democratic culture without instituting democracy-a questionable proposition at best. China's first historical attempt to promote democracy and human rights during the May Fourth Movement (1919) actually failed to work because its proponents sought to generate, intellectually, a democratic culture in the absence of real institutional reform. 65 A counter-example is evident in Taiwan's more recent democratization. Taiwan lacked many of the favorable attitudinal indicators at the time immediately prior to ending martial law and initiating its transition to democracy, though it very likely meets any such criteria less than a decade after institutional reform.66 There seems little likelihood of change in democratic values and attitudes without actual institution of democracy. The tautological character of the cultural prerequisites argument has not escaped academic attention. 67 Academics have discussed issues such as whether a society could develop the requisite cultural attitudes without democratic institutions in place; whether the "non-democratic cultures" would be subject to permanent authoritarian rule; and whether culture was an excuse for failing to institute democratic reform. 68 This discussion has brought about the realization that a robust democratic
63. See Siu-KAi LAU & HsIN-CHI KuAN, THE ETHos OF THE HONG KONG CHINESE (1988);
Andrew Nathan & Tianjian Shi, CulturalRequisites for Democracy in China: Findingsfrom a Surzy, DAEDALUS, Spring 1993, at 95. The institutionalist move has also been apparent here, as Andrew Nathan is among those who have shifted attention to institutional and constitutional studies. See NATHAN,CHINESE DEMOCRACY, supra note 42; Andrew J. Nathan, China's ConstitutionalistOption, J. DEmocR cy, Oct. 1996, at 43; Andrew J. Nathan & Kellee S. Tsai, Functionalism: A New Institutionalist Restatement, CHINA J., July 1995, at 157. 64. See Elizabeth Perry, Introduction: Chinese Political Culture Revisited, in POPULAR PROTEST & POLITICAL CULTURE IN CHINA 1, 2 (Elizabeth Perry & Jeffrey Wasserstrom eds., 1994). 65. See SVENSSON, supra note 36, at 193. It is interesting that 70 years later, students in liananmen Square this time were faulted for their lack of democratic spirit, again in the absence of real institutional reform. 66. See Yun-Han Chu, Taiwan's Unique Challenges, J. DEMOCRACY, July 1996, at 69; Wu,
supra note 17, at 161-67. 67. See, eg., Carol Pareman, The Civic Culture: A PhilosophicalCritique, in THE Civic CULTURE REVISITED 57, at 66-68 (Gabriel A. Almond & Sidney Verba eds., 1980). 68. See id. at 67-68; see generally ROBERT D. PUTNAM, MAKING DEMalOcRAcY WORK, CIWC R'ADITIONS IN MODERN ITALY (1993).
1998 / Constitutionalism and Asian Values culture is not likely to appear without functioning democratic institutions and that democracies arise in the absence of the expected cultural profile. 69 One has to search beyond the question of whether civic culture is present or not for the reasons that people advocate democracy or the overthrow of autocratic regimes. The subjective choice of democracy will likely stem from substantive factors such as class, religion, oppression, race, imperialism, events, and opportunities, but especially 70 from simple human agency and ideas. Academic recognition of the tautological nature of the cultural prerequisites argument has created a paradigmatic shift which has occurred in two directions. First, some scholars have focused more on the notion of "consolidation" of democracy; 71 second, academics have developed a renewed interest in institutions. A shift to consolidation implies a shift to post-requisites-that is identifying the factors that are necessary to sustain democracy. This move is presaged by the simple fact that, with or without cultural prerequisites, some democracies were then in place and were concerned with fostering the institutions and commitments important to sustaining democracy-a concern that implicates constitutionalism. Even scholars remaining within the cultural prerequisites paradigm have begun to recognize the importance of institutions and human agency. Searching for a supportive culture, scholars have stressed the presence of key institutions such as a free press, free speech, the free
69. See Wu and related discussion, supra note 17.
70. Among democratic theorists, Adam Przeworski, in particular, appears to emphasize the
role of self-interested spontaneous actions and human agency. ADAM PRZEWORSKI, DEMOCRACY AND THE MARKET: POLITIcAL AND ECONOMIC REFORMS IN EASTERN EUROPE AND LATIN AMERIcA 10-14 (1991). 71. Juan Linz and Alfred Stepan define consolidation as having three aspects:
Behaviorally, a democratic regime in a territory is consolidated when no significant

national, social, economic, political, or institutional actors spend significant resources attempting their objectives by creating a nondemocratic regime or turning to violence
or foreign intervention to secede from the state.

Arritudinally, a democratic regime is consolidated when a strong majority of public opinion holds the belief that democratic procedures and institutions are the most appropriate to govern collective life in a society such as theirs and when the support for antisysrem alternatives is quite small or more or less isolated from the pro-democratic forces. Constitutionally, a democratic regime is consolidated when governmental and nongovernmental forces alike, throughout the territory of the state, become subjected to, and
habituated to, the resolution of conflict within the specific laws, procedures, and
institutions sanctioned by the new democratic process. JUAN J. iuNz & ALFRED STEPAN, PROBLEMS OF DEMocRATIc TRANSITION AND CONSOLIDATION, SOUTHERN EUROPE, SOUTH AMERICA, AND POST-COMMUNIST EUROPE 6 (1996). See also HUNTINGTON, THE THIRD WAVE, supra note 59, at 208-79; JUAN J. LNz, THE BREAKDOWN OF DEMOCRATIC REGIMES, CRISIS, BREAKDOWN AND REEQUILIBRATION (1978); PRZEWORSKI, supra note 70, at 51-54.
HamardHuman Rights Journal / Vol. 11 practice of religion, the right to form opposition parties, the rule of law, human rights, and the like.7 2 Human agency, under the rubric of "crafting," has also been recognized as important, thus suggesting that societies are not mere victims of their cultural condition."3 Yet, an element of cultural determinism and, ultimately, support for authoritarianism has remained. Samuel Huntington's arguments about stereotypical Asian values and his refinements suggesting a "clash of civilizations" sustain the concern that certain societies can be judged as culturally unsuited for democracy and human rights.7 4 This assertion can be used by some authoritarian East Asian leaders as an excuse to defer democratic and human rights reform. This analysis highlights the ways in which arguments about civic 5 culture are used to withhold democracy and, ultimately, human rights." If we conclude that the type of political culture associated with democratic institutions is as much an outcome as a cause of democracy, then the need to proceed with democratic institutional reform is apparent. The types of culture studies discussed above may only reveal the convergence of the cultural characteristics associated with democracy in established democracies, not necessarily the conditions for new democracies. It is puzzling to argue that we should avoid democracy and human rights because of the alleged incongruency between the existing political culture and democratic structure and, rather, embrace 76 authoritarianism. B. Community A more purposeful cultural relativist tangent, directly challenging universalism, and thus liberal constitutionalism, stresses the impor72. See Lipset, The Social Requisites of Democracy Revisited, supra note 59, at 3 (citing Almond, ComparativePolitical Systems, supra note 59 and updating Lipset, Some Social Requsies of Dcmocracy. Economic Devdopment and Political Legitimacy, supra note 59). See also Huntington, Dcmocracy for tho Long Haul, supra note 59, at 12; LINZ & STEPAN, supra note 71, at 15.
73. Samuel Huntington notes the debate between those who argue that the movement toward democracy depends on the existence of particular cultural, economic and social preconditions and those who see democracy as primarily the product of "crafting," by which he means "the product
of political leaders who have the will and skill to bring it about." Huntington sees a role for both. See HUNTINGTON, POLITICAL. ORDER IN CHANGING SocIETIEs, supra note 59; Huntington, Democracy for the Long Haul,supra note 59, at 4. Human agency is understood in this context as synonymous with crafting. See supra note 57. 74. See HUNTINGTOiNr, POLITCAL ORDER IN CHANGING SOCIETIES, supra note 59; Huntington, Democracy for the Long Haul, supra note 59, at 4; Samuel P. Huntington, The Clash of Civilizations, FOREIGN AFF., Summer 1993, at 22; sapra text accompanying note 57. 75. See ALMOND & VERBA, supra note 57; Pateman supra note 67. 76. For example, in East Asian countries, where stability and order are said to be highly valued, it can be argued that authoritarian regimes are ultimately much less stable. This is especially true when one considers the multitude ofproblems such regimes encounter, from leadership transitions to failure to address the underlying causes of important social conflicts.

tance of community in constructing political values. Calls for participatory democracy often seek empowerment through community on the grounds that a more atomized liberal democracy may be communitydestroying and, ultimately, not democratic. 77 While the current Article promotes constitutionalism as a venue for political values discourse, 7 8 some advocates see community as the best venue for this purpose. Although I believe their cultural relativist arguments fail, these arguments correctly highlight the need to ground any constitutionalist project in the local community, what I refer to as constitutional indigenization. This section is broken into three levels of analysis: romanticism, civic engagement, and communitarianism. These three community-based claims share a common concern for promoting the social and political values of the group and a common worry about the potential community-destroying qualities of liberal individualism. The first community-based claim I consider is romanticism, or the idea that the traditional community harbors the salvation of civilization.79 Samuel Popkin describes the persistence of this romantic notion in the nineteenth century, quoting Le Thanh Khoi's description of the Vietnamese village and Baron Haxthausen's description of the Russian mir, respectively, as "anchored to the soil at the dawn of history... behind its bamboo hedge, the anonymous and unseizable retreat where the national spirit is concentrated"80 and as "the bulwark that would save Russia from the abhorrent changes being wrought in the West by individualism and industrialization." 81 If life was so liberating in traditional societies, one might question why enlightened thought held such attraction. While traditional villages and their cultures certainly harbor many values worth preserving, it is doubtful that they, in the present age, provide a sufficient alternative to the constitutional protection of individual rights.
77. See Pateman, suipra note 67. 78. In East Asia, Singapore and China have both adopted this argument. While Singapore promotes a neo-conservaive form of communitarianism favoring the group over the individual, China promotes a socialist theory of human rights to the same end. I use the term "neo-conservarive" here in relation to Singapore's claimed communitarianism to suggest an orientation that aims to preserve alleged existing values, but it is neither classic prudential conservarivism nor the more contemporary communitarianism of the West. See generally CHOA, supra note 32; HUMAN
RIGHTS IN CHINA, supra note 11. 79. See, ag., Samuel Popkin, The PoliticalEconomy of PeasantSociety, in RATONAL CHOICE 197,
203-04 (Jon Elster ed., 1986). 80. Id.

81. Id. Popkin goes on to describe the Spanish pueblo and the French village, respectively, as "the great repository of the virtues of the race, the source from which everything that was sane and healthy sprang" (quoting Gerald Brenan), "[securing] from the most remote times the enjoyment of liberty, equality and order, and as great a degree of happiness as is compatible with human destinies" (quoting Emile de Iavelye). Id.
HarvardHuman Rights Journal / VoL 11

The romanticization of village life overlooks a great deal. First, it fails to note that life in the traditional village was often both socially and economically oppressive and stifling-hardly the venue for liberation.82 Rather than threatening village life, the modern introduction 83 of capitalism and markets often represented opportunities for villages. Former serfs tied to the land were relieved of their lives of drudgery and afforded unimagined opportunities for social and economic mobility, as well as the political citizenship and rights required for new forms of governance. 84 However, in economic terms, the conflict with lord and master was often replaced with equally intractable conflicts with capitalist entrepreneurs. 8' But it appears that the industrial revolution and the scientific age inevitably would have destroyed the traditional village as a form of social and political organization and, along with it, the foris of cohesiveness and trust that village life could engender. Finally, this romanticization says very little about the real conditions of industrialization, urbanization, and mass communications that today's communities face or the value concerns that these conditions engender. A second community-based claim addresses republican notions of civic virtue and focuses on the way in which strong civic traditions contribute to the functioning of modern democracies. 86 Theories emphasizing some form of civic virtue are not new and can be found as 87 far back as Plato's The Republic. In the modern period, Tocqueville's ideas of civic engagement refer us back to the 1830s when the village was the backbone of American political culture.88 Robert Putnam argues that citizens in a community with a strong tradition of civic engagement are more comfortable in carrying out their democratic civic duties than more atomized members of communities that lack such tradition in modern contexts.8 9 In a landmark study comparing Northern and Southern Italy, he found the North achieved greater democratic success because it had a tradition of civic engagement.90
82. See DAHL, POLYARCHY, PARTICIPATION, AND OBsERvATIoN, supra note 59, at 219. 83. See Popkin, supra note 79, at 205-06. 84. See id. at 197-247.
85. Perhaps the classic statement of this condition is contained in The Communist Manifesto,
written by Karl Marx and Friedrich Engels, published in London in 1848. See generally KARL. MARX & FRIEDRICH ENGELS, THE Com UNSsT MAHIFESTO (A.J.P. Taylor ed., Penguin Books Inc. 1967).
86. See generally PuTAm, supra note 68; ALEXIS DE TOCQUEVILLE, DEmiOCRACY IN AMISICA
(Phillips Badley ed., Vintage Books 1990) (1835-1840). 87. See PLATO, THE REPUBLIC (Penguin Books 1955).
88. Tocqueville describes an America made up of small towns with various civic organizations
and town meetings engaging the citizens in the processes of American democracy. TocQUEVILL11, supra note 86. 89. See generally PUTNAM, supra note 68. 90. Putnam argues that citizens in a community with strong civic traditions--what he calls
127
Networks of civic engagement that cut across social cleavages, Putnam argues, nourish wider cooperation and lead to the accumulation of social capital, such as trust, norms, and networks. 91 The serious difficulty, however, with Putnam's analysis is its strong deterministic path-dependent strain, suggesting that these Italian communities are victims attempts to institute democracy and human rights of history, such that 92 would be futile. Others contend this idyllic vision of reliance on civic virtue is unrealistic. It is not the encouragement of virtue but the protection of rights and the representation of interests that is essential to modern democratic societies. James Madison's constitutionalist arguments sought to make democracy safe for the "unvirtuous" by securing interest representation through democracy, individual human rights, and the 93 enforcement mechanisms embodied in the rule of law. The current debate between Vaclav Havel and Vaclav Klaus in the Czech Republic over the basic character of their democratic system is instructive. 94 While Havel, the anti-communist idealist, emphasizes civic virtue, Klaus, the pragmatic post-communist politician, recognizes that, if reforms are to succeed, real interests must be represented. 95 From Asia, Aung San Suu Kyi cautions that the atomizationrelated problems of modern America should not be blamed on rights and liberty, but rather on modern materialism, for which constitutional democracy, with its demand for a degree of civic engagement, may be a partial cure. 96 In addition to modern materialism, I would add migration, globalization of labor markets and trade, and weapons proliferation as further sources of disorder. If constitutionalists are right, the values of civic virtue have to be constructed through the modern political debate. These are, in my view, values of participation,
(following Toqueville) "civic engagement"--are more comfortable experimenting with liberal policies than more atomized members of communities in transition. He found these conditions in the North of Italy but not in the South: "Some regions of Italy, we discover, are blessed with vibrant networks and norms of civic engagement, while others are cursed with vertically structured polities, a social life of fragmentation and isolation and a culture of distrust." PuTNAm, supra note 68, at 15, 163-85. A problem with this analysis may be its excessive reliance on civic virtue and it path-dependent quality, making communities slaves of hundreds of years of history, with little they can do about it. Their ability to succeed at democratization and rights protection depends on the path they have already traveled.
91. See id. at 67. 92. Traditions of civic engagement that had evolved in villages over centuries were judged determinative of success in employing modem democratic institutions. See id. at 179. 93. See id. at 87.
94. Aleksander Smolar, From Opposition to Atomization J. DEOCNPAcy, Jan. 1996, at 37.
95. Id. As a new democracy struggling with the contending problems of democratic reform
and economic development, the Czech Republic bears comparison with several new democracies in East Asia.
96. Aung San Suu Kyi, Transcending the Clash of Cultures, Freedom, Development, and Human Worth, J. DEiocRAcY, Apr. 1995, at 15.
HarvardHuman Rights Journal / VoL 11 tolerance, openness, equal opportunity, and legal and political accountability. The final community-based claim is found where Western communitarian ideals97 confront modern Asian communitarian reality. Western communitarians, who contend with the liberal values question implicit in the so-called liberal/communitarian debate, have come to some degree of resolution on this question by acknowledging the importance of the liberal values that sustain the discursive community.98 Meanwhile, in the East, communitarianism has taken a neo-conservative turn. 99 For example, in Singapore, communitarianism, aimed at some notion of common good or collective well-being, is used to justify state intervention in all spheres of social life and a legal regime that seriously violates individual rights and inhibits public discourse.100 The government gains legitimacy from its economic success and must work continuously to ensure uniformly shared values among its people. 101 Both community groups and the press are bound by a national 02 interest ideology. 1 With such severe restrictions, the adequacy of community discourse is called into question. In this political context, communitarianism may often mean authoritarianism.
97. There is no agreement on the meaning of communitarianism; but, in simple terms, it can be said to be characterized by an emphasis on the common good over individual rights and considerable emphasis on shared values of community and civic virtue. The debate between communitarians, who emphasize the community, and liberals, who emphasize individual interests or rights, has become a central debate in political philosophy. See C.E Delaney, Introduction to THE LIBERALISM-COMMUNTARANISM DEBATE i, vii-viii (C.F. Delaney ed., 1994). 98. Some communitarians value community as a venue for discourse about basic values but would reject hegemonic community values that would deny open discourse. In this regard, a degree of agreement has arisen among communitarians and liberals about the importance of some traditionally liberal commitments to human rights. At the same time, some liberals have appreciated the importance of community, producing a degree of resolution of the so-called liberal/communitarian debate. See Eliza Lee, Human Rights and Non-Western Values, in HUMAN RIGHTS AND CHINESE VALuEs, LEGAL, PHILOSOPHICAL, AND POLITICAL PERSPECTIVES 72 (Michael C. Davis, ed., 1995); Thomas Moody, Some ComparisonsBetween Liberalism and Eccentric Communitarianism,in THE LIEERALSM-COMMUNITAIANISM DEBATE 91 (C.E Delaney ed., 1994). 99. See CHUA, supra note 32; see also Daniel A. Bell, The East Asian Challenge to Human Rights:
Reflections on and East West Dialogue, 18 Hum. RTS.
Q. 641
(1996).
100. See CHuA, supra note 32, at 187. Institutional highlights of "communitarian democracy" in Singapore include: the National Press Act, subjecting the press to national interest requirements; a government-sponsored press monopoly; the Newspaper and Printing Press Act, subjecting the foreign press to sanctions if found to be engaging in domestic politics; one-party domination; society registration legislation which restricts organizations to their declared functions; policies of affirmative co-optation of organizations; and the Internal Security Act, which is excepted from judicial review and allows detention without trial. Nevertheless, the government allows universal suffrage and, to protect minority interest, delineates districts of three seats with two Chinese and one minority. The government is generally thought to be clean and effective. See id. at 107, 184-202. 101. See id. at 190. 102. See id. at 196.
1998 / Constitutionalism and Asian Values The neo-conservative Asian argument about community shows both a striking parallel with and a clear contradiction to the Western communitarian argument. They both argue on behalf of alleged community values but with opposite goals. Judging from practice, especially in Singapore, for the Asian neo-conservative communitarian, the traditional community is hierarchical and orderly, but not particularly 03 concerned with vibrant social discourse. 1 The Western communitarian expects the community to generate a non-hegemonic social discourse that will, to some extent, equalize and liberate members in community. 1 4 Since traditional communities are rarely either liberating or egalitarian, communitarians are faced with a dilemma that keeps them inspirationally linked to certain liberal values, such as freedom of expression, equality, and democracy and to the institutions needed 05 to secure these values. 1 The Asian neo-conservatives face a similar problem in that their communities are rarely completely traditional and are increasingly attracted to liberal values. C. Taking Institutions Seriously In recent years, there has been some dissatisfaction with the modernization and developmental paradigms, whether they are based on cultural or economic developmental prerequisites. This dissatisfaction has led to renewed interest in institutions. New institutionalists are less sanguine about what institutions can accomplish than the earlier 06 generation of institutionalists. 1 Political scientists define institutions as "the rules, procedures or norms closely associated with organizations' relations"; they may offer "institutional explanations" as an alternative 07 to "cultural explanations." 1 Historical institutionalism focuses on the historical evolution of institutions in interaction with each other and on the ways in which institutions serve as a constraint on individu08 als.'
103. See generally id. at 184-202. 104. See Delaney, supra note 97, at vii-viii. 105. The above noted attempts to institute allegedly communitarian policies in Singapore, these changes have not addressed the concerns of Western communitarianism, which has primarily been a critique of the failings of liberalism. Western communitarian concern with preserving a vibrant community of discourse has tended toward a resolution of the liberal-communitarian debate that preserves those basic tenants of liberalism that engender empowerment and discourse.
See generally Delaney, supra note 97. r

106. There is no agreement on how to delineate the various categories of new institutionalism but, for present purposes, it is sufficient to note that in addition to historical and rational choice institutionalism in political science, there is new institutionalism in economics. Hall & Taylor, supra note 54, at 8. 107. See id. at 12. 108. Se id. at 2-4.
HarvardHuman Rights Journal / Vol 11

My present purpose is not to embrace any particular theory of new institutionalism, but instead to highlight a shift in emphasis back to recognizing the importance of institutions. The move back to institutions was inspired, in part, by the belief that cultural determinacy arguments are often too good at explaining what is allegedly not 09 possible rather than what is possible for a society. 1 Of course, if institutions are to work at all, they must have some degree of pathdependence. Nevertheless, in taking human agency seriously, one must recognize that institutions represent both an opportunity for crafting political solutions and a constraint on what politics can accomplish. 10 Unfortunately, an overemphasis on the constraints imposed by institutions characterizes the literature in this field. Putnam's analysis of Italy is emblematic, offering the impression that Southern Italians, without a tradition of civic culture, are essentially slaves of their history and are doomed to fail in their attempts to develop modern democratic institutions."' Stephen Krasner offers a middle ground with his concept of "punctuated equilibrium," which recognizes periods of crisis during which human agency is active and subsequent long periods of 1 12 stasis when path-dependence is a way of life. In this respect, Krasner may underestimate institutional processes that contribute to change. Certainly, major economic changes like the industrial revolution or, even, the communications revolution create a high degree of path-dependence, but there are a myriad of important, even fundamental, decisions respecting social values and constitutional principles that are altered or reversed incrementally over time without a revolutionary break from the past. In America, the civil rights movement of the 1960s and 1970s may have produced such change; in East Asia, the campaigns against corruption and cronyism in the 1990s may produce fundamental changes in the governments of Japan and South Korea while leaving the political institutions intact or only
109. Kathleen Thelen & Sven Steinmo, Historical Institutionalism in Comparative Politics, in 14 (Sven Steinmo et al. eds., 1992). 110. See id. at 10-11, 14; Jon Elster, Forces and Mechanisms in the Consitution-Making Procas, 45 DUKE L.J. 364 (1995).
STRUCTURING POLITICS, HISTORICAL INSTITUTIONALISM IN COMPARATIVE ANALYSIS 1,
111. See PuTNAm, supra note 68, at 179. 112. Krasner's "punctuated equilibrium" offers the possibility of individual agency, as opposed to structural determinacy or path dependency, might actually work:
A basic analytic distinction must be made between periods of institution creation and periods of institutional stasis .... Once institutions are in place they can assume a life of their own, extracting societal resources, socializing individuals, and even altering
the basic nature of civil society itself .... Once a critical choice has been made it cannot be taken back .... Stephen D. Krasner, Approaches to the State, Alternative Conceptions and HistoricalDynamics, CoNp.
POL., January 1984, at 240. This argument fails to acknowledge the dynamic role of institutions
during normal politics, as is discussed in relation to constitutionalism below.
1998 / Constitutionalism and Asian Values slightly changed. 113 In both cases, institutions may be the vehicle for change. If the resurgent attention to institutions has given us renewed confidence in our ability to design and deploy institutions to shape our political culture and bring about political and economic development, our efforts certainly cannot be of the sanguine 1950s modernization variety. The intervening debates have highlighted the difficulties of the modernization project. Scholars and officials are now more aware of the dangers inherent in policies that emphasize excessive control and planning with respect to their objectives. 114 Can liberal constitutionalism, for countries whose current mass culture already cuts them off from traditional community alternatives, operate to achieve a degree of civic engagement and, ultimately, social capital in the form of trust in the institutions of government? The relevant search would be for formal institutional architecture that is appropriately responsive to a world characterized by industrialization, sophisticated mass communications, and urbanization-a world whose problems are little connected with the traditional past. As is developed below, constitutionalism embodies the search for such architecture. IV. CONSTITUTIONALISM In considering the debate over constitutional democracy, it is not enough to contest the claims that democracy does not fit Asian cultural values or Asia's development agenda. It is also important to consider what constitutionalism or liberal constitutional democracy does for a country seeking to address the types of political values issues noted above. The discussion that follows considers, respectively: (1) the empowering role of constitutionalism; (2) the constitutional process, both at founding and in practice; and (3) the indigenization of constitutional architecture in the Asian cultural and political developmental context. In a cross-disciplinary analysis, 115 both the role of established constitutions and constitutions in transition are considered. It is argued that,
113. Bruce Ackerman discusses the constitutional politics of the U.S. civil rights movement. BRUCE AcKERmAN, 1 WE ThE PEOPLE 108-10 (1991). For discussion of the corruption debate in East Asia, see text accompanying supra note 18. 114. See FRIEDRICH A. HAYEK, THE ROAD To SERFDOM (1944). 115. In considering constitutionalism in the developing world, and in Asia in particular, I find the academic division of labor problematic. Historically, legal constitutional theorists have been successful at offering rich description and exploring the theoretical underlay of constitutionalism in the West but have said very little about how to deploy the optimal institutional components successfully in the developmental context. Political scientists, on the other hand, have given considerable attention to the questions discussed above surrounding the implementation of reforms, especially markerization and democratization, but little attention to formal institutional concerns and the particulars of institutional dynamics.
HarvardHuman Rights Journal / Vol. 11 with respect to politics, liberal constitutionalism may ultimately provide the venue for the contemporary Asian values debate. A. Empowerment Empowerment, in a constitutional sense, requires taking a constitution's positive function seriously and actually putting it in place. The first of these concerns focuses on the enfranchising discursive element of constitutionalism. Constitutionalism is best understood as a dynamic forum for ongoing debate, exercise of choice and processes of meaning. This suggests a basis for the current claim that constitutional democracy can supply the venue for political and cultural discourse.11 6 As with institutionalism, however, the language of constitutionalism has too often emphasized its role as a constraint, employing words like 17 "checking, restraining or blocking." 1 This language evokes an image under self-imposed constraint. 1" of the people in democracies acting In new democracies with their weak constitutional commitments, despite this language of constraint, the feeling on the part of peoples' elected representatives that they have the mandate to "get the job done" often means that there are no actual constraints on power. 1 9 In East Asia, evidence of elected leaders using their mandate to pervert the constitutional order was especially apparent in the early South Korean experiments with democracy and in the Philipines under Marcos. 120 Constitutionalists often do not appreciate the enfranchising or enabling aspect of liberal constitutionalism as a venue constructive of
116. Constitutional theory is particularly attentive to the interactive role of political institutions in social and political value formation. See, eg., RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (1977); JOHN H. ELY, DEMOCRACY
AND DisTRuST: A THEORY OF JUDICIAL RavEiw (1980). Discursive and interpretive approaches to law and culture run the spectrum from realism to post-modernism. The present essay aims to be eclectic in this regard. 117. See Stephen Holmes, Precommitment and the Paradox of Democracy, in CONSTITUTIONAIwSM AND DEMOCRACY 195, 226 (Jon Elster & Rune Slagstad eds., 1988). 118. See LiNz & STEPAN, supra note 71, at 19; see generally Jon Elster, Ulysses Revisited, Precommirment and Constitutionalism (1996) (unpublished manuscript) (on file with the Harvard
Human Rights Journal).
119. Guillermo O'Donnell worries that elections without other horizontal institutions may
lead to
a ceasarsitic, plebiscitarian executive that once elected sees itself as empowered to govern the country as it deems fit .... [C]ongress, the judiciary, and various state agencies of control are seen as hindrances placed in the way of the proper discharge of the tasks that the voters have delegated to the executive .... This ... renders the
boundary between public and private even more tenuous, and creates enormous temptations for corruption.
Guillermo O'Donnell, Illusions About Consolidation,J. DEMOCRACY, Apr. 1996, at 44-45.

120. In the Philippines, Ferdinand Marcos rather freely used martial law as a tool of consti-
tutional override. It is a stunning development in the Philippines that post-Marcos leaders have
respected the courts' interpretation of the constitution. See Tate, The Courts and the Breakdou and
Re-creation of PhilippineDemocracy: Evidencefrom the Supreme Court'sAgenda, supra note 21; Tate, The
1998 / Constitutionalism and Asian Values basic political values. The institutions of constitutional government work to engage the public in a democratic conversation and foster the articulation of popular will and popular values. A commitment to constitutional processes is a commitment to the dynamics of popular empowerment. Successifilly initiating this commitment is a demanding challenge for constitutionalists. Constitutionalists have had a pressing need to consider, in the words 1 ' 21 of Giovanni Sartori, how well constitutional democracy "travels.' When it comes to getting the constitution in place, constitutionalists may seek to distinguish the rule of law 122 elements from the majoritarian elements of democracy. Sartori argues that demo-protection, which is "protection from tyranny" or "liberal constitutionalism," trav123 els better than demo-power, or "the implementation of popular rule."' 124 His point appears to be that the elements of constitutional constraint will easily meet with popular favor and could possibly be less disruptive than trying to institute democracy under unfavorable developmental or other historical conditions, where existing power or wealth holders are threatened. 125 The difficulty with this point is that authoritarian regimes rarely respect constitutional constraints. In light of the positive engendering force of constitutionalism, it is questionable whether constitutionalists will make progress if they detach the popular power component from the rule of law. A high degree of openness and participation ultimately may be essential to assuring demo-protection. Also, a "polyarchy" without a commitment to constitutional requirements may lead to particularism, clientelism 126 and what Guillermo O'Donnell calls a "caesaristic, plebiscitarian execuJudicializationof Politics in the Philippinesand Southeast Asia, supra note 17. For a discussion of the
South Korean example, see Youm, supra note 17.

121. See Giovanni Sartori, How FarCan Free Government Travel?, J. DEMOCRACY, July 1995,
at 101.
122. The rule of law in liberal theory encompasses notions of legality, requiring that government be conducted according to law and encompasses both the classic notion that everyone is equal before the law and the requirement that no one can be punished except for a distinct breach of the law established in the ordinary manner. See generally ROGERS M. SMITH, LIBERALISM AND AMRRICAN CONSTITUTIONAL LAW (1985). In a constitutional sense, this would include the notion that the constitution is the supreme law and is enforced through a reliable system of judicial
review.
123. See id. at 102. 124. Sartori notes that, because "nobody wants to be imprisoned, tortured or killed[,]" constitutional constraints that protect from such abuses would presumably be popular. See id. at 103.
125. See id. at 102-10.

126. In this context, clientelism would refer to excessive reliance on patron-client relationships in conducting public affairs, possibly leading to cronyism and corruption. In the East Asian context, the risk of this is great-for instance, China and Japan are noted for a tradition of reliance on particularistic relationships. See generally CHIE NAKANE, JAPANESE SocIETY 1-103 (1970); Ambrose Yeo-chi King, Kuan-hsi and Network Building: A Sociological Interpretation, DABDALUS, Spring 1991, at 63.

tive," 127which certainly are threats to continued democracy and development.
B. The ConstitutionalProcess
It is in its processes that the empowering components of constitutionalism come to life. Unfortunately, constitutionalism generally is presented as simply a guarantor of human rights and democratic government. 128 Meanwhile, the active role of constitutional institutions in the discursive processes of self-government is not sufficiently appreciated in democratic theory. At the same time, formal constitutional institutions are of little use as guarantors in a context in which leaders in power have little inclination to accept constitutional constraints. Rather than causing despair, this should encourage us to focus our efforts on the engendering or enabling side of the constitutional equation. At founding, interest in constitution-making is usually, though not always, highly related to the frequent concurrence of crises. If, on such occasion, constitutionalism is openly accepted and encouraged as the venue for political choice, rather than merely as a constraint, the ensuing dialogue within this venue may engender respect for its institutional constraints. The discussion that follows considers first, the dynamic processes of creation or founding and then, the processes of on-going constitutional practice. The processes of initiating or drafting a constitution have not been addressed frequently on a general level. Discussion here focuses on written liberal constitutions, setting aside the subjects of both topdown authoritarian constitutions and so-called unwritten constitutions, as in the United Kingdom. Democratic constitutions are usually drafted by a constitutional assembly, often an elected representative body. Jon Elster describes it as an arena of popular consensus-building and decision-making under constraint. 29 The constitutional assembly usually starts with a mandate and, ultimately, must satisfy an approving constituency, or what Elster calls respectively the "upstream" and "down127. O'Donnell uses the term "plebiscitarian" to refer to the fact that the leader is elected but emphasizes in this description the presence of elected leaders who use their mandate to ignore constitutional requirements. O'Donnell, supra note 119, at 44. The above noted examples from South Korea and the Philippines are illustrative of this. See supra text accompanying note 120. Some scholars have recently advocated what they call an illiberal democracy as more suitable to
East Asian societies. See DANIEL A. BELL ET AL., TOWARDS ILLIBERAL DnMocRACY IN PACIFIC
AsIA (1995). Fareed Zakaria recently criticized the emergence of such systems in various parts of
the world. Fareed Zakaria, The Rise of IlliberalDemocracy, FOREIGN AFF., Nov./Dec. 1997, at 22.
128. John Ely's theory of the U.S. Constitution especially emphasizes the judicial role in
guaranteeing majoritarian processes. See ELY, supra note 116, at 88, 102. Others would confine
the judicial interpreter's role as a guarantor even more closely to the original intent of the drafters.
See BERGER, supra note 116. 129. Elster, supra note 110.
1998 / Constitutionalismand Asian Values stream" constraints. 30 A common upstream constraint, sometimes ignored, is the protection of members of the former regime; downstream constraints generally look to ratification of the constitution by the public which it will serve. Elster suggests that we also consider motivations, as reflected in the interests, passion and reason of the drafters, especially how group interests are brought to play and the role of reason in the deliberative processes.' 31 In Asia, the post-war Japanese Constitution and the 1990 Hong Kong Basic Law are cases where external upstream constraints were nearly overwhelming-little being left to local choice. 132 In the process for drafting the 1987 Constitution in the Philippines, where the old regime had been deposed, though the upstream constraint of the vision of the revolutionaries was present, there was probably far more scope for downstream objectives. 133 Since constitutional foundings usually follow crises, they may offer periods of substantial civic engagement and public discourse concerning basic political commitments and values. In the post-World War II period, once a constitution is practically in place in a liberal system, the discursive architecture for addressing fundamental concerns has usually been grounded in the institution of constitutional judicial review.134 In the world of practice, the main dichotomy usually has been between civil law systems, which have a central constitutional court or committee deciding constitutional issues on referral from courts or other branches of government, and decentralized, usually common law, systems where review is by ordinary courts in actual cases. 135 While the legal systems of East Asia usually
130. See id at 374. 131. See ia at 377-86. 132. The upstream constraints were imposed by the outside powers as part of a political settlement, in one case in the Sino-British Joint Declaration returning Hong Kong to China, and in the other as part of surrender in World War I. In each instance a rather liberal regime was imposed, though in the Hong Kong case the continuing presence of China watered down democratic guarantees. See MICHAEL C. DAVIS, CONSTITUTIONAL CONFRONTATION IN HONG KONG, ISSUES AND IMPLICATIONS OF THE BASIC LAw (1989); Michael C. Davis, Human Rights and the Founding of the Hong Kong SpecialAdministrative Region: A Framework for Analysis, 34 COLUM. J. TRANSNAT'L L. 301 (1996); Christopher A. Ford, The Indigenization of Constitutionalism in the Japaneue Experience, 28 CASE W. RES.J. INT'L L. 3 (1996). 133. See Guingona, supra note 21. An indication of the downstream concern for the constitutional commitment not to repeat certain historical authoritarian behavior was evident a decade later when 600,000 demonstrators took to the streets to protest alleged plans by President Fidel Ramos to amend the constitution to permit himself to run for a second term-he eventually gave in to popular demands. Up to 600,000 Tell Ramos: Ve Won't StandforTyranny, S. CHINA MORNING POST, Sept. 22, 1997, at 10 (on file with the HarvardHuman RightsJournal). 134. See generally M'AURO CAPPELLETrI, JUDICIAL REVIEW IN THE CONTEMPORARY WORLD 1-100 (1971); Mauro Cappellerti, The "Mighty Problem" ofJudicial Review and the Contribution of ComparativeAnalysis, 53 S.CAL. L. REv. 401, 409-12 (1980); Burt Neuborne, JudicialReview and Separation of Powers in Franceand the United States, 57 N.YU. L. REv. 363 (1982). 135. See, ag., CAPPELLETTI, JUDIcIAL REVIEW IN THE CONTEMPORARY WORLD, supra note 134, at 46-84; DAvIS, CONSTITUTIONAL CONFRONTATION IN HONG KONG, ISSUES AND IMPLI-
HarvardHuman Rights Journal / Vol. 11 conform to the common law/civil law dichotomy, the systems of constitutional judicial review in East Asian democracies have spawned some hybrids: Japan has a decentralized system in a civil law jurisdiction and the Hong Kong Special Administrative Region employs, for some subject areas beyond local autonomy, an outside Basic Law Committee, which advises China's legislative body, in a common law jurisdiction. 136 It is the common mark of authoritarian regimes in the region that the institution of constitutional review is either absent or 1 37 dysfunctional, due to a lesser commitment to the rule of law. The inter-institutional discourse-engendering potential of constitutional judicial review is relevant to constitutional theory, which is especially concerned with the role of courts with respect to majoritarian processes. In this respect, some theories see courts as primarily concerned with unclogging the democratic process, 138 while others envision a minimalist role of interpreting the original intent of the constitutional drafters. 139 These theories essentially advocate a guardian or guarantor role for courts. To be more consistent with the positive engendering conceptualization advanced herein, a theory should recognize the discursive dynamics of constitutionalism. With respect to the court's role, one might envision a judicial dialogue with co-equal branches of government and with the people. 140 For example, Alexander Bickel envisions a court employing various avoidance doctrines he calls "passive virtues," 141 as a participant engaged in a complex diaCATIONS OF THE BASIC LAw, supra note 132, at 55-61; Cappelletti, The "Mighty Problem" of Judicial Review and the Contribution of Comparative Analysis, supra note 134, at 401. 136. See generally Ford supra note 132, at 3; Michael C. Davis, Adopting International Standards
of Human Rights in Hong Kong, in HumAN RIGHTS AND CHINESE VALUES, 168 (Michael C. Davis ed., 1995). The Hong Kong system of constitutional review employs the decentralized common
law system of judicial review for matters within the scope of local autonomy and the centralized system for matters respecting central authority and local/central relations. Id. 137. As discussed below, China has so-called legislative review, which in practical terms means
no review. XIANFA [Constitutibn] art. 67, (1982) (P.R.C.). See generally HUMAN RIGHTS IN
CONTENPORARY CHINA (R.Randle Edwards et al. eds., 1986). Malaysia's common law system of review has been rendered largely dysfunctional by threats to judicial independence and the
exclusion of some areas from review; while Indonesia lacks review. LAWYERS COMMIiTTEE FOR
HUh(AN RIGHTS, BROKEN LAWS BROKEN BODIES: TORTURE AND THE RIGHT TO REDRESS IN INDONESIA (1993); LAWYERS CoMmnTrEE FOR HUMAN RIGHTS, MALAYSIA: ASSAULT ON THE JUDICIARY (1989). Asia's likely most hardline regime, North Korea, substantially lack the elements of the rule of law. See eg., Myung-Bong Chang, Human Rights in North Korea Vi'cd Legally and Systematically, in UNDERSTANDING HuMAN RIGHTS IN NORTH KOREA 165, 165 (Sung-Chul Choi, ed., 1997). 138. See ELY, supra note 116. 139. See BERGER, supra note 116. 140. The people may act through a myriad of particularistic venues of political activity to articulate their interests and concerns.
141. For Bickel, a court confronted with claims of unconstitutionality has three options: it can
overturn the legislation in question; it can uphold and legitimate it; or it can do neither. It is in
the latter respect that "passive virtues" come into play. Passive virtues refer to various avoidance
doctrine such as mootuess, ripeness and standing or the avoidance doctrine regarding interpreta-
1998 / Constitutionalismand Asian Values logue with the elected branches and the polity at large.14 2 The court approves or disapproves legislative enactments, for example, a death penalty law, or sometimes avoids the challenge, while the elected branches respond with new laws. 143 In Bickel's conception, in carrying out the constitutional review role the courts are attentive to legislative concerns of principle and expediency in a complex normative conversation. 144 Nevertheless, constitutional judicial review does not appear to explain all on-going constitutional activity; it does not explain the flutter of constitutional activity during moments of crisis or intense change. At such times of "punctuated equilibrium," there is much wider public constitu4 5 tional engagement and reflection on important political value concerns. The response of Taiwan's leadership in the late 1980s to the crisis over the democratization movement is a case on point. After President Lee Tenghui's 1987 lifting of martial law, the Council of Grand Justices, Taiwan's constitutional court, using its formal power of judicial review, found the electoral system unconstitutional. 146 This set in motion a whole series of popular activities, including a National Affairs Conference, popular election of the National Assembly (the constitutional amendment body), and eventual fill democracy, which led to amend1 47 ment of the 1946 constitution and local popular elections. In the American context, Bruce Ackerman distinguishes constitutional politics from ordinary politics. In times of ordinary politics, the incrementalist vision of judicial checks and balances is sufficient, but at those constitutional moments when the people have mobilized for fundamental change, including wider engagement of the people with all three branches of government, fundamental constitutional change may occur. 148 Lawmaking on the higher plane involves a significant break with the past, and a seemingly elevated level of civic engagement, as the public focuses its attention on a crisis or concerns itself with important political values. 149 Understanding the interactive dy-
tion that allow the court to avoid either approving or disapproving the law in question, while
perhaps offering some indication of its views on the constitutional issue. All of these actions may
engender responses, under the influence of the voters, from the other branches of government through the enactment of new laws, allowing judicial review to serve as an instrument of inter-institutional dialogue. ALEXANDER M. BICKEL, THE LEAST DANGERous BRANCH, THE SUPREME COURT AT THE BAR OF POLiTICS 65-70, 117 (2d ed. 1986).
142. Id. 143. Id. at 22-23. 144. Bickel sees two levels of law-making, that of expediency and for the development of fundamental values; both may be at play in a constitutional decision. See id. at 65-69. 145. Krasner, supra note 112, at 240. 146. See Wu, supra note 66, at 125-37. 147. See id. 148. BRUCE AcKERIAN, 1 WE THE PEOPLE 17-24, 266-94 (1991). 149. Ackerman argues this process was completed successfully three times in America: at the founding, the Civil War and the New Deal-creating three American republics. See id. at 34-57.
HarvardHuman Rights Journal / Vol. 11 namics of constitutional change, both in ordinary times and times of crisis, is especially important in developing societies where order and stability are of grave concern. C. ConstitutionalIndigenization: The East Asian Context Aung San Suu Kyi argues that, as long as there are genuine commitments to modern democratic values, there is room for variation in local institutional embodiment. 15 This argument seems to acknowledge that if the constitutional fundamentals of democracy, human rights, and the rule of law are in place, then confidence in the system may ultimately depend on important institutions being embedded in the diverse local condition--or what I call constitutional indigenization. The concept of indigenization advanced in this Article seeks to focus attention on the processes of securing constitutional government at the local level. This aims to respond to the cultural relativist concern with the local cultural condition, as was discussed in the first part of this Article. Rather than employing authoritarian or illiberal practices, which I have argued above to be untenable under contemporary conditions, I urge in this subsection that the best venue for local cultural discourse is liberal constitutionalism. The concept of indigenization being offered in this section seeks to incorporate local cultural concerns in the contemporary constitutional process. The local constitutional discourse about the identity of a given community can embody and explicate these concerns. This recognizes that, in any society, constitutional success depends on a degree of connection to the local social condition. As discussed below, local institutional embodiment may include institutions concerned with both traditional cultural practices and more contemporary concerns, with issues ranging from development to corruption. It is at the level of the particulars that many of the communitarian substantive concerns noted above may be addressed, a conversation fostered by core constitutional fundamentals. In this conversation there is no need to embrace the romanticism of the traditional village mentality and no need to deny contemporary modern urban industrial and post-industrial reality. The aim is to have a realistic discourse about current values and conditions, whatever their source. Authoritarian regimes stifle this realistic conversation and then impose or "implant" alleged community values that are merely constructive of authoritarian power. With constitutional fundamentals in place, an effort should be made to understand the particular values or other claims that local culture
150. Aung San, supra note 96, at 13.
1998 / Constitutionalismand Asian Values and conditions make on the constitutional system and to engage those components that facilitate discourse and empowerment. Every constitutional democracy, including those in the West, must experience indigenization to be successful. In the absence of responsiveness to local concerns, constitutional government would be a mere shell, neglectful of its empowering mission, and would no doubt be unable to sustain popular support. Indigenization should involve sensitivity to the cultural and social conditions of a majority population, as well as that of minorities. As with the constitutional fundamentals, the concepts of representation and the rule of law afford useful categories for analysis. It is easy to see that locally sensitive representation implicates the health of the discursive process. This includes the usual geographic political architecture issues, such as those relating to federalism versus autonomy or the appropriate electoral model. 151 In addition, methods of representation may include unusual forms of symbolic recognition of distinct ethnic, religious, or linguistic communities-with traditional leaders or bodies exercising practical and/or ceremonial roles in governance and law. In Malaysia, for example, traditional leaders perform a formal role in the rotating monarchy and Islamic religious law enjoys formal recognition for some limited purposes; in Japan and Thailand a traditional Emperor and a King, respectively serve certain symbolic and functions in representing the state and the majority population, 152 well-being. popular the to attention paying informally perhaps In the multi-cultural or multi-national contexts of some East Asian countries, a system that combines special minority rights with individual rights may be least contentious. This may be realized by securing avenues for representation of minority interests that otherwise would be ignored by the dominant population. 153 As is true of the native people of the Americas, there are many regions of East Asia populated by traditional societies that are not part of the mainstream culture. 154 Again, this is not a unique Asian experience and considera151. Such issues may include, for example, the appropriateness and degree of autonomy for
local regions, the relative merits of a federal or confederal system in light of historical nationalist concerns, and the suitability of various electoral models to popular representation. On the latter issue, the ethnic make-up of the community could have a bearing on the desirability of various options such as proportional representation, multi-seat districts, or single seat districts. The key in all respects is to achieve genuine representation, rather than to devise models simply to sustain a ruling clique.
152. See eg., Abdulahi An-Na'im, Islam, Islamic Law and the Dilemma of CulturalLegitimacy for UniversalHuman Rights, in ASIAN PERSPECTIVES ON HuMAN RIGHTS 31 (Claude E. Welch, Jr. & Virginia A. Leary, eds., 1991); Yoichi Higuchi, The Constitution and the Emperor System: Is Revisionism Alive?, 53 Law & CONTEMP. PROBS. 51 (1990); CHARLES F. KEYES, THAILAND:
BUDDHIST KINGDOM AS A MODERN NATION STATE 208-11 (1987).
153. See LINz & STEPAN, supra note 71, at 26. 154. Issues of relations with insular ethnic groups exist throughout Asia on a substantial scale
HarvardHuman Rights Journal / Vol. 11 tion of experience elsewhere can be of use. In the European context, Arend Lijphart describes the deliberate joint effort by elites to overcome the destabilizing effects of cultural fragmentation in Europe as "consociational democracy."155 In the context of the modern open complex society, it is important to emphasize that an operative term in Lijphart's conceptualization is democracy, that is, securing a channel for constructing popular will.156 In a divided society, a bargain across cleavage lines that engages the highest strata without preserving rights, representation and democracy is merely authoritarian oligarchy. 157 Devices common in East Asia, though as of yet rarely embodying full democracy, include territorial autonomy for distinct national or geographic communities, or formal retention of traditional tribal, monarchical or religious institutions for limited or special purposes. 158 The employment of such devices with constitutional democracy may enin nearly every country. See generally AssocmrioN OF ASIAN STUDIES, INDIGENOUS PEOPLES OF AsIA (Robert H. Barnes et al. eds., 1995); Amy L. Chua, The Privatization-Nationalization Cycl: The Link Between Markets and Ethnicity in Developing Countries, 95 COLU. L. REv. 223, 244-56 (1995). 155. Lijphart sees the solution to the problems of sectoral or nationalistic division that he observed in continental European societies as a form of coalition building among elites, what he calls consociational democracy. This might involve mutual veto in fragmented sectors of society, proportionality in allocation of civil service jobs, geographic autonomy, various forms of proportional representation and federalism. Arend Lijphart, ConsociationalDemocracy, 21 WORLD POL. 207, 212-13 (1968). See also LINz & STEPAN, supra note 71, at 62-65. 156. In today's world, for this to be credible, it should not be a bargain among elite power holders; a degree of openness and popular participation is required of any successful device. 157. In this context, the concept of authoritarian oligarchy refers to non-democratic leadership by the elite sector of a group or the society. The consociational aspect may involve a bargain by elites across ethnic lines. In countries such as Indonesia, Singapore, or Malaysia, where democracy is not fully developed, coalitions in ruling parties across ethnic lines, especially involve relations between indigenous and ethnic Chinese groups. Without the security of full democracy this coult be characterized as an authoritarian oligarchy. 158. See generally ASSOcIATION OF ASIAN STUDIES, supra note 154. China is a good example of an East Asian country that has made a concerted effort to address the problems of its "national minorities." Autonomous regions are guaranteed in the Constitution of the People's Republic of China and the Chinese government dedicated a chapter of it 1997 White Paper on human rights to this topic. Humt.N RIGHTS IN CHINA, supra note 11, at 40. Nearly 10% of China's population is classified as national minorities and nearly two-thirds of its land territory (mostly drier, but resource-rich, areas in central Asia) is designated as minority autonomous areas. But the more than 200 laws enacted to protect minority rights in China, while reflecting some improvement, still fall short of full protection under the onslaught of the chauvinism of the majority Han Chinese. From a constitutional perspective, the most serious limitation on minority protection may be the weakness of the autonomy of minority autonomous regions; while there is a degree of autonomy on soft issues, ultimate authority seems to reside with the central government. Se generally Barry Sautman, Legal Reform and Minority Rights in China (1997) (paper presented to the 17th World Congress of the Inremational Political Science Association, Seoul Korea, August 18, 1997) (on file with the HarvardHuman RightsJournal).A future democratic China, nevertheless, would have to take the minority rights it now recognizes more seriously. One Chinese scholar in the West has recommended a federal China with confederal elements for some minority and other areas. Jia Qi Yan, From a "Centralized China" to a "Federal China" (1995) (paper presented
at the Conference on Constitutionalism in China, Columbia University, New York, Apr. 21, 1995)
(on file with the HarvardHuman Rights Journal).
1998 / Constitutionalismand Asian Values

gender more confidence in the system, encourage a higher degree of connectedness to the constitutional order and facilitate a genuine values discourse. On the rule of law front, a combination of familiar constitutional institutions and some local hybrids emerges in the Asian mosaic. Foundational guarantees may be provided in the constitution itself or in auxiliary legislation which, by convention, may come to be viewed as of fundamental importance.1 59 In addition to systems of judicial review, other avenues of public accountability are often rooted in the local condition. For example, in a society where government accountability has traditionally depended on direct petition of traditional officials, such a complaint and review process may be formalized by modern elected officials. Similar avenues of public access may pass through traditional or village leaders or employ tribal or religious legal systems. As long as fundamental principles of legality and oversight are followed, traditional institutions may open better channels of communication and public awareness, at the same time engendering local pride and confidence. Likewise, subjects that have for historical reasons been of intense public concern, such as human rights, elections, corruption, and ethnic conflict, may be addressed through the creation of new agencies, such as human rights tribunals, election commissions, corruption fighting bodies or various community boards. 160 There are no magical solutions here; the approach is to make sure that special local concerns are openly addressed through whichever channels the most and best information will flow. 161 If the fundamental institutions are producing a high degree of discourse, such conditions should engender the particularistic conversations about values and basic political and constitutional commitments that are implicated by the Asian values concerns. Token claims of indigenous or Asian values without a commitment to the fundamentals of the constitutional process are unlikely to engender a healthy discourse or contribute to long-term social capital in the form of public trust. In recent years, several governments in Asia, including China, have attempted to dichotomize their policies of economic and political reform.' 62 Rapid economic growth rates have been
159. See Elster, supra note 110, at 366-67. 160. See Anna Huhgyuk Wu, Why Hong Kong Should Have EqualOpportunities Legislation and a Human Rights Commission, in HumAN RIGHTS AND CHINESE VALUES, LEGAL, PHILOSOPHICAL, AND PoLiTICAL PERSPECrVES 185 (Michael C. Davis, ed., 1995). 161. Independent national banks or monetary authorities may also address issues of grave
public concern in economically developing societies and may acquire constitutional status. 162. China's "open policy" has attempted to institute substantial economic reform from a Marxist planned economy to a free market economy while avoiding fundamental political reform that could ensure democracy and the rule of law. See Michael C. Davis, ChinesePerspectives on Human
Rights, in HumAN RIGHTS AND CHINESE VALUES 3, 3 (Michael C. Davis ed., 1995). This tension
HarvardHuman Rights Journal / Vol 11 combined with harsh political policies to impose a governmental value system on the people. These harsh conditions may deprive such societies of orderly discursive opportunities to resolve important value questions raised by economic growth and displacement. D. Illustrative Examples: China andJapan Contemporary China and Japan offer contrasting examples of the effect of constitutionalism in the East Asian context. As a basis of comparison, China and Japan share a range of circumstances: they have a common history of Confucianism; they both seriously flirted with constitutionalism as far back as the turn of the twentieth century, with Japan adopting the Meiji Constitution in 1889, and China adopting the Principles of the Constitution in 1908; they both, however, continued traditions of harsh authoritarianism and sometimes, militarism up to World War II; they are two historical great powers in the region; they were both colonized only in treaty ports; and they both were exposed to Western legal systems and rights discourse, adopting their continental civil law systems from Germany. 163 Their current contrasting constitutional traditions date to the end of World War II when China turned toward a Marxist system, a supporting constitution and one-party rule, and Japan was launched under a liberal democratic constitution, though its one party-rule persisted until quite recently. 16 At present, their constitutional commitments stand in stark contrast. A look at their contemporary constitutional practices may help us to better understand the effects of the contrasting constitutional options they have chosen. Japan's experience affords a good case for evaluating transplantation of constitutional values into the East Asian context. Japan acquired its current constitution, largely ready-made in the United States' image, during the United States post-World War II occupation. 165 In spite of
between economic liberalism and democratic reform is part of the East Asian authoritarian model, evident historically in South Korea and Taiwan and still evident in Singapore. See generally ROERT
WADE, GOVERNING THE MARKET, EcoNoMIc THEORY AND THE ROLE OF GOVERNMENT IN EAST ASIAN INDUSTRIALZATION (1990); STEPHAN HAGGARD, PATHWAYS FROM THE PERIPHERY, THE POITICS OF GROWTH IN THE NEWLY INDUSTRIAIZING COUNTRIES (1990); Chua, supra note 154.
163. See Andrew Nathan, PoliticalRights in Chinese Constitutions, in HUMAN RIGHTS INCONTEMiPORARY CHINA 77, 77-124 (R. Randle Edwards et al. eds., 1986). See generally JOHN OWEN HALEY, AuTHoRTy WITHOUT POWER, LAW AND THE JAPANESE PARADOX (1991); RYosuKI
ISHI, A HISTORY OF POLITICAL INsTrUTIONS IN JAPAN (1980). 164. The 40-year hold of Japan's Liberal Democratic Party on power in Japan was finally broken, as a result of various corruption scandals in 1993. See MITcHELL, supra note 18, at
121-32. 165. See Charles L. Cades, The American Role in RevisingJapans Imperial Constitution, 104 POL. ScL Q. 215 (1989).

its origin, the Japanese experience does not evidence an extremely vigorous rights commitment of the American variety. 166 It does, however, reflect an attempt to take constituionalism seriously and an increasing level of human rights protection and refinement. 67 Japan's constitutional discourse reflects a body of theory and a substantial, though subdued, public conversation about constitutional and human rights values. The Japanese Supreme Court increasingly has circumscribed government limitations on civil liberties. Christopher Ford notes that "the case law of the Japanese Supreme Court represents a distinctly indigenous 'take' on American ideas of constitutional rights and judicial review;" Japan's constitutional judicial review doctrine is "characterized by the robust extension of continental civilian ideas of 'abuse of rights' into the realm of fundamental constitutionally guaranteed freedoms and by the development of a conciliatory approach to constitutional adjudication, modeled generally upon Japan's distinctive practices of 'administrative guidance." ' 168 This results in the importation into constitutional law of a doctrine of "constitutional guidance" where the courts favor legislative priority and often suggest, rather than order, compliance, a rather conservative posture. 169 Since laws are rarely invalidated, the Court appears to take its passive, avoidance role seriously, 170 while also providing a substantial amount of judicial prodding 171 or guidance. Nevertheless, the Japanese Supreme Court has increasingly circumscribed government limitations on public demonstrations, the right to strike, equality of electoral apportionment, and censorship.' 72 At the same time, major issues, such as corruption and national defense, have
166. See generally Ford, supra note 132. 167. Id. 168. Id. at 3. 169. See id. at 25-29, 42, 49-55; John Owen Haley, The Freedom to Choose an Occupation and the Constitutional Limits of Legislative Discretion, 8 L. JAP'AN 188, 189, 194 (1975); Michael K.
Young, Judicial Review of Administrative Guidance: Governmentally Encouraged Consensual Dispute Resolution in Japan, 84 COLUm. L. REV.923, 970-71 (1984). 170. See supra note text accompanying 141. 171. See Ford, supra note 132, at 49-55; John Owen Haley, Introduction: Legal vs. Social Controls, 17 L. JAPAN 1, 5 (1984); Young, supra note 169, at 935. 172. See Ford, supra note 132, at 29-36. In a recent noteworthy case, the Japanese Supreme Court ruled in favor of an elderly Japanese professor who had spent 32 years attempting to get a Supreme Court ruling that government censorship of textbook contents telling the truth about Japanese atrocities during World War II violated his rights as the author; the Supreme Court found unlawful interference and awarded moderate damages. Professor Wns War Censorship Suit, S. CHINA MORNING PoST, Aug. 30, 1997, at 11 (on file with the HarvardHuman RightsJournal). It is noteworthy that the courts had twice previously ruled in favor of the government in cases by this professor raising constitutional challenges filed in the 1960s; in the third case, the court
ruled in the professor's favor on claims of unlawful interference and abuse of administrative process
(sidestepping the constitutional issue).
HarvardHuman Rights Journal / Vol. 11 on occasion engaged the public and political institutions more broadly in constitutional politics. This was especially evident in the Lockheed and Recruit corruption scandals of the late 1980s and early 1990s; public prosecutions and convictions occurred and the ruling Liberal Democratic Party ultimately had to step down from power. 173 Overall, the Japanese discussion of basic political commitments and values 4 appears to be a public one that engages public institutions.11 At least in the past twenty years, this post-war Japanese system, for all its limitations, has come to fulfill the positive component of constitutionalism by engendering a discourse on important public issues. As described by Ford, "both administrative guidance and constitutional jurisprudence cultivate bargaining and negotiation between the parties as the principal device for allocating burdens."'1 5 With the occasional firm judicial hand to uphold the integrity of the system, especially in the corruption prosecutions, and elements of guidance and bargaining, and the public attention they engender, Japanese constitutionalism may ultimately achieve a constitutional discourse and a transformative quality not unfamiliar to Western constitutional theorists. This is a more passive, though seemingly uncorrupted, system of judicial review. This may simply reflect the indigenous quality of this seemingly successful constitutional system. By comparison, China, which has, over the past twenty years, reformed its economic system but not its constitutional and political system, may find little scope for vigorous and orderly discourse about moral or political order. Discourse about values occurs whenever the government opens up a degree of space, but such discourse is largely subject to the hegemonic domination of the leadership and the Chinese Communist Party.176 Dissenting voices on fundamental issues of freedom and democracy have generally been characterized as counter-revolutionary or, more recently, against national security.177 As a result,
173. See Mitchell, supra note 18, at 121-32. 174. Public engagement has recently been increased by the use of citizen ombudsmen at the
prefectural and municipal levels and the introduction of referendums. The recent rather stormy
referendum opposing US military presence in Okinawa is a good example of the latter. Ste Fukui & Fukai, supra note 17, at 28. 175. See Ford, supra note 132, at 55. 176. As Owen Fiss described it, this is a regime where public discourse is nor committed to truth seeking, or I might add, value development, but to disseminating the "truths" (or values) the leadership already possesses. Owen M. Fiss, Two Constitutions, 11 YALE J. INT'L L. 492, 501
(1986).
177. Whose Seutrity? "State Security" in ChinasNew Criminal Code, HUzmAr, RIGHTS IN CHNA/HumAN RIGHTS WATcH/ASIA REPORT, Apr. 1997, at 13-16, 27-35. The procedural process for
bringing such cases to trial is also problematic in relation to protecting the defendant's rights.
See Hualing Fu, The Right to a FairTrialin China: The New CriminalProdedureLaw,in THE RIGHT
TO A FAIR TRIAL IN INTERNATIONAL AND COMPARATIVE PERSPECTIVE 78, 78
(Andrew Byrnes
ed., 1997).
1998 / Constitutionalism and Asian Values public debate, when it occurs is not aided by formal constitutional institutions. China now offers a good example, as Japan did earlier, of the problems engendered in a free market system when democratic constitutional institutions are either not available or not functional. Andrew Nathan has traced the evolution of Chinese attempts at constitutionalization through at least twelve constitutional documents, beginning in the late Ching Dynasty in 1908.178 Unfortunately, due to a more limited modernization agenda that did not take the key constitutional institutions, such as democracy, human rights and judicial review, seriously, harsh authoritarian and totalitarian control has been the norm. 179 The 1946 Constitution of the Republic of China (ROC) was the only one which included a provision for constitutional judicial review, but this constitution, taken by the (ROC) government to Taiwan, was largely suspended under four decades of martial law, a condition that was rectified only in the late 1980s. 180 From a constitutionalism perspective, the most definitive characteristic of recent constitutions of the People's Republic of China (PRC) is the collectivist rights orientation that renders rights subject to the interest of the state. Under this theory, a dissident claiming an individual right to speak will be confronted with the claim that, under the constitution, his voice contradicts the collective interest and the state and that no such right therefore exist."" Furthermore, there is no system of constitutional judicial review for determining when the interests of the state are offended; under a system of legislative interpretation of the constitution the acts of the National People's Congress constitutionality, rendering the laws not (NPC) in passing laws certify 82 1 subject to judicial review. The collectivist notion of rights is evident in the language of constitutional restrictions clauses, language that has generally reflected practice, under both the 1946 ROC Constitution and the current 1982 PRC Constitution: The freedoms and rights enumerated in the preceding articles shall not be restricted by law, except in cases where such a restriction is necessary for preventing an obstruction of the mainfreedoms of other persons, averting an imminent crisis, 183 taining social order, or promoting the public interest.
178. Se Andrew Nathan, Political Rights in Chinese Constitutions, in HUMe.AN RIGHTS IN CONTEMPORARY CHINA 77, 77-124 (R. Randle Edwards et al. eds., 1986). 179. See id. at 77-124. 180. See iL at 93-96 181. See XIANFA [Constitution] art. 51, (1982) (P.R.C.). 182. Id. art. 67. See generally HUMAN RIGHTS IN CONTEMPORARY CHINA (R. Randle Edwards et al. eds., 1986). 183. XIANFA [Constitution] art. 23 (1946) (Republic of China) (now employed in Taiwan).
HarvardHuman Rights Journal / Vol. 11 The exercise by citizens of the People's Republic of China of their freedoms and rights may not infringe upon the interest of the state, of society and of the collective, or upon the lawful freedoms and rights of other citizens. 184 The 1930s drafters of the ROC Constitution were also influenced by legal positivist views then current in America. 185 In the 1930s and 194 0s, when many Chinese were influenced by the West, Western skepticism about the fruits of democracy also found fertile soil in a then troubled China.18 6 Based on this record, I would contend that the Chinese official rights orientation appears not traceable to Chinese culture, as was discussed in the first part of this essay, but rather to the structural imperatives of harsh authoritarian regimes both in the 1930s and now. This has not engendered China's ability to address the many modern social and values problems produced by its rapid economic growth. This inability has likely contributed to some very rough periods in China's political evolution and more recently, under the economic reform policies, to an upsurge in corruption. Traditional values do not appear to play any significant role in China's choice of its constitutional and human rights regime, and this system does not appear to contribute significantly to the health of China's discourse about basic political values. CONCLUSION Reformers and critics of authoritarian practices and policies in East Asia are confronted with an impassioned and often proactive defense of such practices in the form of the Asian values claims. Authoritarian officials and their supporters contend that liberal democracy is unsuited to East Asian society and that their authoritarian practices are rooted in East Asian soil. Academic claims about culture have often lent support to the more official Asian values argument. This Article questions the validity of these claims on behalf of authoritarianism and seeks to offer liberal constitutionalism as a venue for addressing East Asian value concerns. This argument emphasizes the need for constitutionalists to develop the institutions necessary to address indigenous concerns. Through indigenization, liberal constitutionalism may address the cultural relativist and other communitarian concerns impliThe language of this restriction clause is also quite common elsewhere in Asia. The importance of such language ultimately depends on actual practice. The language largely reflected the practice in the Republic of China at least until the lifting of martial law and recent reforms. 184. XuNFA [Constitution] art. 51 (1982) (P.R.C.). The PRC routinely practices what this article implies. 185. Se SVENSSON, supra note 36, at 250-51. 186. See id. at 254-56.
1998 / Constitutionalismand Asian Values cated by the Asian values argument. The theory of constitutionalism advanced in this Article draws attention to the empowering and engendering qualities of the liberal constitutional enterprise. Engendering a public discourse is a central feature of modern constitutionalism, both at the time of constitutional foundings and in on-going constitutional practices. The argument in this Article emphasizes several specific points: first, that the Asian values argument, as a challenge to the implementation of constitutional democracy, is exaggerated and fails to account for the richness of values discourse in the East Asian region-local values do not provide a justification for harsh authoritarian practices; second that the cultural prerequisites arguments fail because they ignore the discursive processes for value development and they are tautological, excessively deterministic and ignore the importance of human agencytherefore, it makes little sense to take an entry test for constitutional democracy; third, the difficulties of importing Western communitarian ideas into an East Asian authoritarian environment without adequate liberal constitutional safeguards; fourth, the positive role of constitutionalism in constructing empowering conversations in modern democratic development and as a venue for values discourse; fifth the importance, especially in a cross-cultural context, of indigenization of constitutionalism through local institutional embodiment; and finally, the value of extending research focused on the positive engendering or enabling function of constitutionalism to the developmental context in general and East Asia in particular.

11 Harv Hum Rts J109

Cargado por

Información del documento

Título original

Derechos de autor

Formatos disponibles

Compartir este documento

Compartir o incrustar documentos

Opciones para compartir

¿Le pareció útil este documento?

¿Este contenido es inapropiado?

Copyright:

Formatos disponibles

11 Harv Hum Rts J109

Cargado por

Copyright:

Formatos disponibles

+(,121/,1(

International Conference on Trends in Contemporary Constitutional Law held at the University

HeinOnline -- 11 Harv. Hum. Rts. J. 109 1998

HeinOnline -- 11 Harv. Hum. Rts. J. 110 1998

1998 / Constitutionalism and Asian Values

9. See Huntington, supra note 2, at 15.

Owing to tremendous differences in historical background, social system, cultural

HeinOnline -- 11 Harv. Hum. Rts. J. 111 1998

HeinOnline -- 11 Harv. Hum. Rts. J. 112 1998

HeinOnline -- 11 Harv. Hum. Rts. J. 113 1998

HeinOnline -- 11 Harv. Hum. Rts. J. 114 1998

HeinOnline -- 11 Harv. Hum. Rts. J. 115 1998

HarvardHuman Rights Journal / Vol. 11

32. BENG-HUAT CHUA, COMMUNrTARIAN IDEOLOGY AND DEMOcRACY IN SINGAPORE 147

HeinOnline -- 11 Harv. Hum. Rts. J. 116 1998

1998 / Constitutionalismand Asian Values

HeinOnline -- 11 Harv. Hum. Rts. J. 117 1998

HeinOnline -- 11 Harv. Hum. Rts. J. 118 1998

HeinOnline -- 11 Harv. Hum. Rts. J. 119 1998

HarvardHuman Rights Journal / Vol. 11

conclusions from the better guesses." Id. at 20.

HeinOnline -- 11 Harv. Hum. Rts. J. 120 1998

1998 / Constitutionalism and Asian Values

HeinOnline -- 11 Harv. Hum. Rts. J. 121 1998

HarvardHuman RightsJournal / Vol. 11

HeinOnline -- 11 Harv. Hum. Rts. J. 122 1998

69. See Wu and related discussion, supra note 17.

Behaviorally, a democratic regime in a territory is consolidated when no significant

or foreign intervention to secede from the state.

HeinOnline -- 11 Harv. Hum. Rts. J. 123 1998

HeinOnline -- 11 Harv. Hum. Rts. J. 124 1998

1998 / Constitutionalism and Asian Values

203-04 (Jon Elster ed., 1986). 80. Id.

HeinOnline -- 11 Harv. Hum. Rts. J. 125 1998

HarvardHuman Rights Journal / VoL 11

HeinOnline -- 11 Harv. Hum. Rts. J. 126 1998

1998 / Constitutionalism and Asian Values

HeinOnline -- 11 Harv. Hum. Rts. J. 127 1998

Reflections on and East West Dialogue, 18 Hum. RTS.

HeinOnline -- 11 Harv. Hum. Rts. J. 128 1998

See generally Delaney, supra note 97. r

HeinOnline -- 11 Harv. Hum. Rts. J. 129 1998

HarvardHuman Rights Journal / Vol 11

HeinOnline -- 11 Harv. Hum. Rts. J. 130 1998

HeinOnline -- 11 Harv. Hum. Rts. J. 131 1998

Guillermo O'Donnell, Illusions About Consolidation,J. DEMOCRACY, Apr. 1996, at 44-45.

HeinOnline -- 11 Harv. Hum. Rts. J. 132 1998

South Korean example, see Youm, supra note 17.

125. See id. at 102-10.

HeinOnline -- 11 Harv. Hum. Rts. J. 133 1998

HarvardHuman Rights Journal / Vol. 11

HeinOnline -- 11 Harv. Hum. Rts. J. 134 1998

HeinOnline -- 11 Harv. Hum. Rts. J. 135 1998

HeinOnline -- 11 Harv. Hum. Rts. J. 136 1998

HeinOnline -- 11 Harv. Hum. Rts. J. 137 1998

HeinOnline -- 11 Harv. Hum. Rts. J. 138 1998

HeinOnline -- 11 Harv. Hum. Rts. J. 139 1998

(on file with the HarvardHuman Rights Journal).

HeinOnline -- 11 Harv. Hum. Rts. J. 140 1998

1998 / Constitutionalismand Asian Values

HeinOnline -- 11 Harv. Hum. Rts. J. 141 1998

HeinOnline -- 11 Harv. Hum. Rts. J. 142 1998

1998 / Constitutionalism and Asian Values