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East Asian constitutionalism in comparative perspective
Tom Ginsburg*
Is there a distinctively East Asian constitutionalism? This question has come
to the fore in an era in which comparative constitutional law is a resurgent
discipline. The modern nation-states of East Asia (by which I mean the region
from Myanmar to North Korea, including the regions conventionally known as
Northeast and Southeast Asia) have usually been thought to have adopted public-
law models that are derivative of Western legal forms. After all, each country in
the region has a written constitution, many of which were imposed by colonial-
ism. Even those countries that were not colonized, such as Thailand and Meiji-
era Japan, tended to adopt Western legal forms prophylactically, as part of an
effort to retain independence. The result was a good deal of convergence with the
formal institutions of Western constitutions. Notwithstanding this convergence,
as well as the tremendous internal diversity that characterizes our region, this
chapter argues that therearecertain distinctive features of constitutionalism in
East Asia when compared with other regions. It utilizes an unusual method,
quantitative analysis, to support the argument. The most distinctive feature, it
shows, of Asian regions is the persistence of a vital tradition of Leninist
constitutions.
Let us begin by acknowledging that the operation of public law in Asia may
reflect, at least in its deep structure, the region’s long tradition of political thought.
After all, Asia is home to several different religious and legal traditions, each of
which embodies different ideas about the organization and restraint of public
power. These ideas naturally have some impact on the attitudes of legal actors,
though the extent to which they are still influential is a matter of scholarly
controversy. The stakes were apparent in the so-called “Asian Values” debate of
the 1990 s, in which some argued that Asia was fundamentally different with regard
* Thanks to James Melton.