however, these countries seem to fit in Chen’s model of classical constitutionalism,
at least to some degree.
Cases that are more clearly categorized as hybrids are countries that have the
form of liberal-democratic institutions without full political competition. These
include failed or new states in which international administration was a major
contributor to the constitution-making period, such as East Timor and Cambodia;
former common-law colonies Malaysia and Singapore, which Professor
Thio characterizes as “nonliberal constitutional democracies”;^13 and perhaps, the
new constitution of Myanmar, which seems to be in the throes of a cautious
liberalization after the adoption of the long-gestating 2010 constitution.
These two forms of liberal and hybrid constitutionalism are found in Asia, and
found in many other regions of the world as well. What makes the Asian region
distinctive is its somewhat vital tradition of Leninist constitutionalism. While
Chen’s scheme treats constitutions in socialist systems as essentially legitimating
devices, this issue raises the interesting question who exactly believes their prom-
ises. This question is a general one with regard to the account of constitutions in
authoritarian regimes. Indeed, we observe that Leninist countries (and other
dictatorships, like that of Myanmar) sometimes spend significant resources in
drafting and amending constitutions, even when they are, by their own terms,
not enforceable, which is a very different model of constitution than found in
liberal democracies.
Surely there are some socialist constitutions which are truly sham documents,
though even they too have their moments of accuracy.^14 North Korea’s constitution
remains a classic “sham” constitution, but might be said to be accurate in that it
describes itself as a dictatorship, and says that the state “shall conduct all activities
under the leadership of the Workers’ Party of Korea.”^15 Surely that is an honest
statement. Still, one cannot talk about any kind of real operation of the North
Korean Constitution.
I am of the view that China after 1979 and Vietnam under Doi Moi represent
something a bit different. In both cases, constitutional reform was part of a
broader process of trying to expand the role of law both as an instrumental tool
of governance and also as a mechanism for producing stability in government
affairs. It is sometimes argued that China’s great reformer, Deng Xiaoping, was
motivated toward the socialist rule of law to avoid the excesses of arbitrary rule
that he had personally experienced during the Cultural Revolution. Whereas the
(^13) Li-ann Thio, “Soft constitutional law in nonliberal Asian constitutional democracies”
( 2010 ) 8 ( 1 )International Journal of Constitutional Law 766.
(^14) On shams see David S. Law and Mila Versteeg (forthcoming),Sham Constitutions,
available athttp://papers.ssrn.com/sol 3 /papers.cfm?abstract_id= 1989979 ; Walter Murphy,
Constitutional Democracy: Creating and Maintaining a Just Political Order(Baltimore:
Johns Hopkins University Press, 2008 ).
(^15) Art. 11 ; Art. 12.