Blog of the International Journal of Constitutional Law

Conference Report–Global Constitutionalism from European and East Asian Perspectives

–Yota Negishi, Associate Professor, Seinan Gakuin Unviersity, Japan

This short contribution reports on two events held in Berlin and Leuven on the edited book Global Constitutionalism from European and East Asian Perspectives (Takao Suami, Anne Peters, Mattias Kumm and Dimitri Vanoverbeke, eds., Cambridge University Press 2018).

12 June 2019 WZB Berlin Social Science Center

Opening remarks by Matthias KUMM (WZB and Humboldt University Berlin, Germany) and Takao SUAMI (Waseda University)

Panel I: East Asian Attitudes Towards Global Constitutionalism?

Moderator: Anne PETERS (Max Planck Institute Heidelberg, Germany)

Commentators: Başak ÇALI (Hertie School of Governance, Berlin) and Philipp DANN (Humboldt University Berlin, Germany)

Professor Bin LI (Beijing Normal University, China), Beyond Constitutionalism, China’s Changing Perspective on Global Governance

Li assessed China’s strategies on the globalization trend in terms of both domestic and international law. At the domestic level, while the previous constitutional amendments were relatively inspired by liberalism such the market economy and human rights, the 2018 constitutional amendment reflects President Xi Jinping’s thought on socialism with Chinese characteristics for a new era. At the international level, China’s remarkable proposals on global governance were introduced including WTO reforms, Silk Road Economic Belt and 21st Century Maritime Silk Road, “Community of shared future for mankind/common destiny”.

Hyuck-Soo YOO (Kanagawa University, Japan),Is the Constitutionalism Globalized or Do Constitutionalisms Compete Each Other? With an Introduction of Korean Scholarship on Confucianism

Yoo posed an unsolvable theme of liberal trade-off: how much and how long can “for the people” justify to deny and delay “of and by the people”? He asserts that the expectation that if “for the people” were satisfied in a reasonable degree, the step of “of and by the people” will come eventually, has proved disappointing everywhere, except for very rare cases. Therefore, Yoo argues, the rights and welfare based on freedoms of individual are a starting point and final goal in the discourse of global constitutionalism. For that purpose, Confucian relational ontology (Interbeing) has an affinity to Levinas’ ethics of responsibility.

Kazuyori ITO (Hokkaido University), Freedom of the Order, and Freedom by the Other: Identifying the Goal of Global Constitutionalism

Ito’s paper scrutinized the discourse of constitutionalization in international economic law, which puts emphasis in the constraint on the exercise of sovereign power. He asserts that the constitutional legitimacy should be assessed in terms of the extent of how much the freedom is recognized to “the other”. In this process, mutual respect and equal footing of moral personality through communication with “the other” can cause a significant change in our recognition. For Ito, global constitutionalism’s goal is to protect people from various types of threats to their freedom in the global context, and consequently, every political unit should show equal concern and respect to all relevant views presented by the other.

Panel II: Sharing Common Attitudes Towards Global Constitutionalism?

Moderator: Kriszta KOVÁCS (WZB Berlin, Germany)

Commentator: Matthias KUMM

Yoon Jin SHIN (Seoul National University, South Korea), Cosmopolitanising Rights Practice: The Case of South Korea

Shin empirically studied the cosmopolitanising constitutional rights practices in Korea. First, for the “vertical” relationship between international and constitutional law, the Korean Constitutional Court proactively adopts international human rights law as a substantive standard of rights review while maintaining the format of constitutional review. Second, in the “horizontal” comparison with foreign constitutional law, the recent Korean judicial practices conduct the expansive, non-cherry-picking comparative inquiries. Third, in the “internal” encounter of tradition and culture with constitutional rights, the concept of “living tradition” and the proportionality test are taken in Korean constitutional law to balance local cultures and universal rights.

Kaoru OBATA (Nagoya University, Japan), Taking seriously the Chinese Approach to Global Constitutionalism

Against the preeminent position of China in the contemporary world, Obata addressed the Chinese approach to global constitutionalism in comparison with Japanese worldviews. His presentation started with Japanese historic errors in the project of “Greater East Asia Co-Prosperity Sphere” in the Pacific War. Such a historical lesson has deep implications for evaluating contemporary “version-upgrade” of the “Eastphalian” concept of sovereignty in Chinese and Japanese diplomatic and foreign policies. Indeed, China’s “Belt and Road initiative” and Japan’s “Free and Open Indo-Pacific Strategy” share the character of functional multilateralism and conservativism on State sovereignty. Obata thus concludes that East Asia realities still vindicate functionalism, mutual reliance in economics based on peaceful co-existence, promotion of functional, sometimes fragmented, norms embedding values.

Akiko EJIMA (Meiji University, Japan), Circulatory Nature of Human Rights Implementation beyond National Borders: Seeking for a Global Model of Human Rights Protection

Ejima’s presentation was a normative attempt to argue that there is an alternative model to describe the present situation of global constitutionalism. Her model is called the “circulatory” process based on pluralistic and non-hierarchical interactions of actors. In this process, domestic and international actors are continuingly and repeatedly interacted for “never forgetting human rights violations”. At the domestic sphere, not only national authorities (legislature, executive and judiciary) but also other actors including media, NGOs and companies mutually engage in the protection of human rights. At the international level, the decisions and recommendations of international organizations and treaty bodies trigger the dialogue with domestic actors.  

Panel III: Futures of Global Constitutionalism: Towards a Research Agenda

Moderator: Matthias Kumm

Commentators: Anne PETERS, Takao SUAMI and Matthias KUMM, and Dieter GRIMM (Humboldt University Berlin, Germany)

Yota NEGISHI (Seinan Gakuin University, Japan), Towards Phenomenology of Global Constitutionalism

Global constitutionalists presuppose that the constitutionalist trinity (i.e. the rule of law, human rights and democracy) exists (Thesis 1), that it can be known globally (Thesis 2), and that it can be communicated globally (Thesis 3). Negishi argued that the dialogue between European and East Asian scholars in the Edition rather reveals the remnant of Gorgias in global constitutionalism, the enigmas of “existence” (Anti-Thesis 1), “cognition” (Anti-Thesis 2) and “language” (Anti-Thesis 3). To overcome Gorgiasian radical relativism, Negishi proposed a phenomenological approach, which eventually seeks a certain form of universality on “existence” (Thesis 1) in the sense of inter-subjectivity through mutual re-“cognition” (Thesis 2) and “language” communication (Thesis 3).

Hajime YAMAMOTO (Keio University, Japan), Characteristics of Contemporary Japanese Constitutionalism: Its Distance from Chinese One

In his presentation, Yamamoto points out three aspects of Japanese constitutionalism in terms of global constitutionalism. The first observation is that even in the same region the difference in regime is essential in relation to what attitude global constitutionalism takes. The second important element relates to the functions of constitutionalism in different countries, that is a transformative function or a static one. The third important point is how traditional social aspects contribute or to hinder the establishment of constitutionalism deeply in society. Consequently, global constitutionalism discourse must take into consideration the diversity of constitutionalism in function in different countries in order to create good links of global constitutionalism and domestic constitutionalism in each country.

Keisuke KONDO (Kyoto University, Japan), Global Constitutionalism’s Two Battlefronts: Concerning the Problems of Its Normative and Effectiveness

Kondo examines how the prospective agendas (battlefronts) on global constitutionalism should be understood in terms of notions of effectiveness and normativity. In accordance with the Edition’s presupposition that global constitutionalism has a dual aspect, he categorizes effectiveness and normativity, which are in the trade-off relations. On the one hand, the broader global constitutionalism’s description is, the more effective global constitutionalism becomes. On the other hand, the thicker global constitutionalism’s prescription is, the more normative global constitutionalism becomes. Given such mutually-contradictory demands, global constitutionalists are required to keep the middle position by setting the limits on derogation.

Symposium on Global Constitutionalism: Current and Future Research Agendas

14 June 2019 College van Premonstreit – Naamsestraat 61 Leuven

Opening Remarks by Dimitri VANOVERBEKE (KU Leuven, Belgium) and Takao SUAMI

Panel I: Global Constitutionalism: Asian Perspectives

Chair: Dimitri VANOVERBEKE

Bin LI, Hyuck-Soo YOO, Kazuyori ITO, Yoon Jin SHIN (see above)

Panel II: The Future of Global Constitutionalism: Towards a Research Agenda

Chair: Axel MARX (Leuven Centre for Global Governance Studies, KU Leuven)

Yota NEGISHI, Keisuke KONDO, Akiko EJIMA (see above) and Takao SUAMI (Waseda University, Japan),Framing Note for Further Research on Global Constitutionalism

Suami insisted that there are not only negative aspects but also positive aspects to continue the discussions on global constitutionalism including (1) development of international organizations, (2) fragmentation of international law, (3) indispensability of international cooperation, (4) progress of individualization of international law, (5) emergence of illiberal democracy, (6) progress of constitutionalism in Asia. Towards the maturation of global constitutionalism, according to Suami, the following issues should be deeply discussed in the discourse of global constitutionalism: (1) substance of constitutionalism beyond the state, (2) (the radical aspect of) democracy and global constitutionalism, (3) expanding targets of global constitutionalism and (4) peace.

Discussion and closing remarks by Chair: Takao SUAMI and Dimitri VANOVERBEKE


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