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  • Constitutionalism and Western Legal Traditions in Human Rights in Asian Legal Systems: With a Special Focus on Chinese Legal Systems

    Jean-Pierre Cabestan

    While there is an obvious plurality of constitutional and human rights traditions in the West, there is an even greater plurality of legal systems in Asia. At the same time, the very concepts of “constitution” and “human rights” have clearly been constructed by the West and find their roots not only in the Enlightenment move- ment but also in the Greek, Roman and Christian political traditions. Without pre- empting the conclusions of this chapter, this basic reality will directly constrain its content: how much have Asian legal systems been influenced by constitutionalism and Western legal traditions? Are there correspondences or even convergences between these traditions and the legal traditions of the different Asian countries?

    In this chapter, for the sake of clarity and simplification, I understand as consti- tutionalism and Western legal traditions in human rights the common constitutional and legal values shared by both European Romano-Germanic and common law systems. Similarly, I include in Asia the countries that are situated between Afghanistan and the Pacific Ocean but exclude the Middle East as well as Central Asia, an irony in itself since it was precisely these latter regions that were referred to as “Asianos” in Old Greek.

    To do real justice to the subject assigned to me, I would need on the one hand to underscore the complexity of the Western tradition, the important differences both between and within the Romano-Germanic and the common law systems. The very well known fact that the United Kingdom does not even have a written constitution is just one example among many of this diversity. Moreover, I would have to discuss the status of the now-defunct Soviet legal system and other European socialist legal systems in the European tradition.

    On the other hand, to fully address this topic, an encyclopaedic knowledge of all or at least the major Asian legal systems would be required, in particular the Pakistani, Indian, Thai, Malaysian, Singaporean, Indonesian, Chinese, Korean and Japanese systems to mention just a few. Although some comparatists, such as René

    J.C. Oliveira and P. Cardinal (eds.), One Country, Two Systems, Three Legal Orders - 715 Perspectives of Evolution, © Springer-Verlag Berlin Heidelberg 2009

    J.-P. Cabestan Senior Researcher, French National Centre for Scientific Research, University of Paris 1

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    David of France, have approached this ambitious objective, it is a tour de force that I have to admit is clearly beyond my own competence (David and Jauffret-Spinozi 2002; David and Brialey 1978). And to consider Asian legal systems as a whole, as if, by hypothesis, they shared more principles and processes among themselves than with other systems, would be dangerous and misleading. While the transfer of the concepts of European constitutionalism or human rights to non-Western socie- ties is a key issue, I would be ill-advised to revive the old debate on “Asian values”, a debate that is withering even in Singapore and that in China has been replaced by a more centred discussion on the compatibility of Confucianism and Western democracy. Some authors, such as Patrick Glenn, have tried to define “an” Asian legal tradition as opposed to “the” Asian legal tradition, which he admits to being non-existent. Excluding Talmudic, Islamic and Hindu traditions presented in separate chapters, Glenn actually identifies this Asian tradition as the Confucianist world centred around China, where, as could be expected, he observes the importance of rites and ethics as well as the limiting role played by law and religion. This approach forces Glenn to exclude Islamic Southeast Asia, to exaggerate the conver- gences between the Buddhist and Confucianist approaches to law and to confront this tradition with contradictory legal developments in China, Japan, Korea, Taiwan and Singapore.1 This is to say that, much more than Europe, Asia is a complex and somewhat “artificial” historical, religious, cultural and political entity.

    Nevertheless, it is worth reflecting on the crucial questions raised by this topic. How much have Asian countries been inspired by Western constitutionalism and human rights traditions? In what circumstances have they borrowed from the West? More importantly perhaps, to what extent have they adopted Western legal values? Do they see a contradiction between these legal values and their own domestic legal or social values? And finally, are we witnessing a convergence between the Western approach and the various Asian approaches to constitutionalism and human rights?

    For the reason mentioned above, while trying as much as possible to propound comparisons with other Asian legal systems, this paper will focus more on the various Chinese legal systems, with which I am more familiar.

    In a nutshell, it can be argued that constitutionalism and Western legal traditions in human rights have had a strong influence on Asian legal systems. The circum- stances in which this influence has been exerted have largely varied from one country to another. Colonisation, forced opening or Westernisation and the Cold War have had a direct impact on the nature and the strength of these processes of legal acculturation. While the end of the Cold War contributed to weakening the opposition between socialist and, to put it simply, “Westernised” legal systems, the political environment in which the legal modernisation is taking place continues to influence these processes directly. The end of the Cold War also favoured the re-emergence of what Samuel Huntington calls “the clash of civilisations”, in other

    1 Glenn (2000), and in particular Chap. 9: “An Asian legal tradition: make it new (with Marx?)”, pp. 279–314.

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  • Constitutionalism and Western Legal Traditions in Human Rights 717

    words, the contradictions or differences between various religious or cultural values in the world, differences that have a direct bearing on the legal values adhered to by the Asian countries under consideration here (Huntington 1998).

    Although economic globalisation has triggered negative reactions and also contributed to this clash of civilisations, it has at the same time facilitated the dissemination of Western legal and in particular human rights values. And in Asia, this globalisation has been accompanied and tempered by a powerful regionalisation that has forced most countries to narrow their differences, including to some extent in terms of their legal values and systems.

    The road ahead will remain bumpy because each nation resides on its own history, culture, religions and legal traditions. The influence in particular of Islam, Hinduism and Confucianism as well as the competition among these value systems will of course be perpetuated. But there are more convergences today than in the Cold War era or later, when Asian values were promoted by political leaders and elites who wished to resist domination by Western ideologies. Does that mean that the West will in future be influenced by Asia? The answer remains globally negative. However, a better mutual understanding of differences between and common values shared by each other can be achieved.

    1 Constitutionalism and Western Legal Traditions in Human Rights: A Global but Diversified Influence

    It is hard to deny that constitutionalism and Western legal traditions in human rights have exerted a strong influence on most Asian legal systems. However, this influence has been constrained or structured by many factors, with specific influences explaining the actual impact of Western legal traditions on the various Asian legal systems. In other words, each particular Asian legal system remains unique in many ways, the end result being a mixture or a “blend” of these numerous factors. Having said that, it is worth attempting to classify the major Asian legal systems in the light of these many conflicting influences.

    History, religion, culture and political regime constitute the major criteria that can be used to differentiate the various Asian legal systems and better measure the influ- ence exerted on them by constitutionalism and Western traditions of human rights.

    1.1 History

    The circumstances in which this influence has been exerted have varied largely from one country to another. Colonisation, forced opening or Westernisation and the Cold War have had a direct impact on the nature and the strength of these processes of legal acculturation.

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    Among these criteria, one of the most striking is the colonial factor. This has had a determining impact on the legal systems of many Asian countries or regions. While the British Indian Empire in South Asia (India, Pakistan, Bangladesh and Sri Lanka) is the most obvious example, British or Portuguese colonies such as Hong Kong, Singapore and Macau also constitute interesting, and rather successful, cases of legal acculturation. Colonisation has also exerted a strong influence on the legal systems of Malaysia, Burma (common law), Indonesia (Dutch law) and the Philippines (Spanish law and American common law).

    Forced opening to the West is another important fact