East Asian Foundations for Constitutionalism: Three Models Reconstructed

Abstract

The majority of countries in East Asia have become liberal democracies with vibrant developments of constitutionalism and rule of law. Scant attention, however, has been paid to particular social and political foundations for East Asian constitutionalism. This paper utilizes the approach of constitutional ethnography to re-examine postwar constitution-making in Japan, South Korea and Taiwan. It re-examines social and political circumstances surrounding these constitution-making experiences and analyzes them from four perspectives: constitution-making and war situations, questionable constitutional authorship, constitution-making and decolonization, and finally constitution-making and nationalism. By reconstructing these postwar constitution-making stories, this paper finds that the three constitution-making experiences are reflective of three constitution-making models including: constitution-making as promoting democracy, constitution-making as national independence, and constitution-making as national inclusion. It concludes that East Asia constitution making is neither of any mere borrowing from nor of any resistance against “western constitutionalism.” Rather, postwar constitution-making experiences in East Asia have been developed and re-developed into distinctive, yet comparable, models of constitutionalism for global constitutional lawyers to learn.

Keywords: Constitutionalism, East Asia, Constitution-Making, Colonialism, Constitutional Legitimacy

JEL Classification: K30