Volume 21 Issue 2
Table of Contents
Letters to the Editors
Urška Šadl, Citation dice are loaded
Editorial
ChatGPT and law exams; In this issue
Editorial Reflection
Anna Śledzińska-Simon, Constitutional framings of the right to abortion: A global view
Articles
Rosalind Dixon and Mila Versteeg, Unsexing citation: Closing the gender gap in global public law
Alec Stone Sweet and Trevor T. W. Wan, Global constitutionalism and the People’s Republic of China: Dignity as the “fundamental basis” of the legal system?
Shiling Xiao, State-centric proportionality analysis in Chinese administrative litigation
Xin He, From hierarchical to panoptic control: The Chinese solution in monitoring judges
Critical Review of Governance
Ming-Sung Kuo, The path towards sovereign territory: Reading China’s (anti)federal idea against its modern territorial constitutional imaginary
I•CON: Debate!
Zhaoxin Jiang, The untold leader of judicial review: China’s Constitutional Court (1948-71) and innovative constitutionalism
Chien-Chih Lin, A constitutional contingency: A Reply to Zhaoxin Jiang
Symposium: Trans Identity and the Law
Daniela Alaattinoğlu, Alice Margaria and Stefano Osella, Introduction: Trans Identities and the Law
Stefano Osella and Ruth Rubio-Marín, Gender recognition at the crossroads: Four models and the compass of comparative law
Daniela Alaattinoğlu and Alice Margaria, Trans parents and the gendered law: Critical reflections on the Swedish regulation
Anniken Sørlie, Trans reproduction: Continuity, cis-normativity, and trans inequality in law
Federica Coppola, Gender identity in the era of mass incarceration: The cruel and unusual segregation of trans people in the United States
Marco Wan, Law, Film, and trans identity in Hong Kong
Book Review Symposium: Women and the Judiciary in the Asia-Pacific
Chien-Chih Lin, Book review symposium: Introduction
Susan Glazebrook, Achieving holistic feminisation: A review of Women and the Judiciary in the Asia-Pacific
Ayesha Malik, Fair representation and the gender perspective
Wen-Chen Chang, Social and political dynamics in the feminization of judiciary
Surbhi Karwa, Beyond “Usual Suspects”: Women judges, feminist adjudication and Asia Pacific
Book Reviews
Khemthong Tonsakulrungruang. Review of Eugenie Merieau. Constitutional Bricolage: Thailand’s Sacred Monarchy vs. The Rule of Law
Erin Daly. Review of Jimmy Chia-Shin Hsu (ed.). Human Dignity in Asia: Dialogue Between Law and Culture
ABSTRACTS
Anna Śledzińska-Simon, Constitutional framings of the right to abortion: A global view
At the present time, no national constitution expressly guarantees access to abortion as a human right. Yet, despite the absence of explicit constitutional provisions, a growing body of case law from countries’ highest courts recognizes abortion as a fundamental, natural right. Judicial interpretations of the right to abortion are evolving, with courts considering it a derivative of the constitutional guarantees of liberty, equality, dignity, or, more recently, the protection of health. Conversely, some courts, notably in the United States and Poland, have ruled out the possibility of such a right having constitutional status. This Reflection outlines current constitutional approaches to the right to abortion. It highlights an important paradigm shift in constitutional law toward framing abortion as part of the right to reproductive health, as already affirmed in international human rights law. Reproductive rights are now defined in relation to the state’s obligation, on the one hand, not to interfere with reproductive choices and, on the other hand, to provide women and girls with conditions ensuring freedom of choice, but also to determine the limits of their choices.
Rosalind Dixon and Mila Versteeg, Unsexing citation: Closing the gender gap in global public law
Gender equality matters in the global public law academy for at least three reasons: the production of diverse scholarship, and substantive equality of opportunity for, and the equal exercise of social power by, female-identifying scholars. And while the global public law academy is in many ways becoming more diverse and inclusive, a great deal of work remains to be done to achieve true gender equality, especially after COVID-19, given its impact on geographic and gender (in)equality. In this article, we examine one important dimension to gender equality in the global public law academy: the degree to which articles by female-identifying scholars are cited at rates comparable to those authored by male-identifying scholars. To do so, we construct a unique database of articles published and cited within I•CON itself and use a variety of empirical techniques to analyze this data. Doing so, we find a clear pattern of gendered citation in global public law: while 37% of I•CON articles are authored by at least one female, only 25% of citations include at least one female author. We explore a variety of gendered and non-gendered explanations for the pattern. Perhaps our most striking finding is that male-author teams cite female authors at lower rates than author teams that have at least one female author, an effect that persists even when we account for self-citation, time trends, and the reputation of the cited authors. Notably, female authors cite female scholars at about the same rate as which they are published; the gender citation gap appears to be driven by the citation practices of male scholars alone. This finding suggests that implicit bias in citation, especially by male authors, cannot be ruled out. We therefore explore potential gender-conscious responses to the phenomenon.
Alec Stone Sweet and Trevor T. W. Wan, Global constitutionalism and the People’s Republic of China: Dignity as the “fundamental basis” of the legal system?
The People’s Republic of China has declared dignity to be a foundational norm of its legal system, as institutionalized through a suite of constitutional and legislative reforms. Indeed, the 2017–21 period saw the adoption of some of the most far-reaching statutes in the history of the PRC, the centerpiece of which is the new Civil Code (2021). In both structure and content, provisions of the Civil Code comprise a quasi-constitutional charter of rights. Indeed, many Chinese scholars do treat the Civil Code as such, developing sophisticated constitutional theory along the way. At the core of these claims is dignity, which occupies a prominent position within the Civil Code, and from which a host of additional rights, including unenumerated rights, can be derived. After situating these developments in light of global constitutional practice, we examine the emergence of dignity as an officially sanctioned commitment device, and analyze the pertinent scholarly discourse, structure, and content of the new Civil Code, and the various roles that the Communist Party of China, the National People’s Congress, and the Supreme People’s Court are expected to perform in supervising the work of the judiciary in operationalizing the Civil Code. We conclude that while the PRC has not fully embraced the dignity norm in the way other constitutional systems have, it has nonetheless permitted significant discursive debates that deserve to be analyzed comparatively.
Shiling Xiao, State-centric proportionality analysis in Chinese administrative litigation
This article examines the application of proportionality in Chinese administrative litigation over the last two decades and argues that courts in administrative litigation that serve the party-state and tend to uphold state/collective interest have altered proportionality to be state-centric. It finds that the courts invoked proportionality in a negligible portion of all administrative litigation judgments and had inadequate emphases on protecting individual rights. Proportionality has not appreciably assisted the courts in enhancing their oversight of governmental power and protection of individual rights. This article suggests that this is attributable to the restricted function of administrative litigation in China’s party-state governance structure and owing to the country’s long-held belief that public interest takes precedence over individual rights. Administrative litigation, which China’s ruling party employs to resolve principal–agent issues, is seriously constrained. The courts are expected to review the formal legality of executive actions, but not their substance. Informed by the Chinese human rights belief, which favors collectivism over individualism, the courts are skewed toward public interest in the balancing analysis when applying proportionality.
Xin He, From hierarchical to panoptic control: The Chinese solution in monitoring judges
In the wake of the 2014 judicial reforms, are Chinese judges in most circumstances free in their decision-making? Based primarily on interviews with judges, this article argues that although a truncated hierarchy has led to increased judicial autonomy, the state maintains its tight grip over judges. In its new form, the state’s control is more indirect, external, ex post, diffused, and ideological. It allows the state to closely monitor judges’ entire handling of cases (hence the designation “panoptic”). It has some similarities with, yet fundamentally differs from, existing patterns in authoritarian states. While judges’ accountability continues to be largely a bureaucratic matter, this Chinese form of control has nonetheless been effective at a time of soaring caseloads, a slimmed-down judiciary, and increasing insistence on legitimacy. This article seeks to deepen understanding of developments in Chinese courts and, more widely, judicial politics in authoritarian states.
Ming-Sung Kuo, The path towards sovereign territory: Reading China’s (anti)federal idea against its modern territorial constitutional imaginary
This article aims to shed light on how China has (re)imagined the geographical distribution of authority on its path towards modern statehood by unpacking the debate surrounding the constitutional status of Hong Kong in China’s territorial constitution. Challenging the conventional wisdom that China is constitutionally impervious to the federal idea, it makes a threefold argument. First, elements of federalism do exist in China, as intimated in its territorial constitution regarding Hong Kong, but have become nearly invisible as the relationship between mainland China and Hong Kong is traveling in the opposite direction. Second, the opposite development is attributable to the antifederal idea embedded in China’s modern constitutional imaginary, which has been shaped by its multifaceted experience with federalism in history. Under the antifederal idea, intimations of federalism in China’s territorial constitution are far from the bridge to a full-fledged Chinese federation, but only meant to be instrumental and transitional. Third, the antifederal idea reflects China’s modern territorial constitutional imaginary under which variegated imperial frontiers are reimagined as homogenized state territory. In conclusion, China’s encounter with Western legal concepts is formative of the Chinese modern constitutional imaginary and thus further influences its attitude towards federalism in framing the territorial constitution.
Zhaoxin Jiang, The untold leader of judicial review: China’s Constitutional Court (1948-71) and innovative constitutionalism
Based on newly opened Chinese diaries of Chiang Kai-shek and presidents of the Judicial Yuan, this article explores China’s Constitutional Court from a socio-historical perspective and contextualizes China’s constitutional development from the mainland to Taiwan by 1971, when the United Nations delegitimized the Chiang Kai-shek regime as a lawful representative of China. This article argues that China’s insistence on legal exceptionalism and the fact that China became a victor state after the two world wars facilitated the institutionalization of the Constitutional Court. Due to the judicial leadership and their effective interactions with the political leader, China’s Constitutional Court survived and led a second wave of global expansion of judicial power around the mid-twentieth century. The survival of China’s Constitutional Court gave life to the oldest constitutional court that endured an authoritarian regime longer than the entire post-1989 era. It therefore provides a unique case for the survival of post-democratization constitutional courts in the twenty-first century. However, China’s Constitutional Court has never been properly accredited, not to mention as a leader of the second wave of judicial review. This article fills the gap and posits the survival of the Constitutional Court as a new thesis in comparative constitutional law. Among others, factors including peaceful constitutional revolution, victor-state’s legal exceptionalism, guardian of the Constitutional Court, strong meritocratic judicial leadership and the judicial personal interactions with charismatic political leadership combine to produce a series of constitutional innovations that have safeguarded the survival of China’s Constitutional Court, and thus contributed to creating an exceptional paradigm of judicial review and global constitutional improvement.
Chien-Chih Lin, A constitutional contingency: A Reply to Zhaoxin Jiang
The thesis of the article by Zhaoxin Jiang, “The Untold Leader of Judicial Review: China’s Constitutional Court (1948–71) and the Innovative Constitutionalism,” is highly innovative, and the materials it uses are invaluable to understanding the Council of Grand Justices. Nonetheless, several key contentions of the article are not fully supported by—or indeed are contradicted by—the existing evidence. This Reply provides some competing analyses and interpretations of the three topics in the article: (i) the characterization of the Council at its founding; (ii) the interactions between Chiang Kai-shek and judicial elites; and (iii) the performance of the Council in Taiwan.
Daniela Alaattinoğlu, Alice Margaria and Stefano Osella, Introduction: Trans Identities and the Law
This Symposium offers a critical exploration of how the identities of trans people are translated, recognized, and considered in the law. In so doing, it sheds light on the often-difficult coexistence between the lived experiences of trans people and their legal regulation. The main argument that the Symposium advances is that multiple structural—legal, social, and cultural—factors influence the evolution of rights pertaining to gender identity. Identity recognition—the articles show—is also key to accessing multiple other rights and benefits in society. The Symposium includes five articles, all addressing the recognition of diversity and the construction of gender in law, focusing on a variety of jurisdictions and drawing on different disciplinary perspectives. Showing a multifaceted approach to one of the most topical public law challenges, this Symposium discusses the limits and the possibilities of law in advancing the rights of trans people.
Stefano Osella and Ruth Rubio-Marín, Gender recognition at the crossroads: Four models and the compass of comparative law
The article explores the different constitutional developments of the right to gender recognition and discusses their potential to protect trans and nonbinary people. Focusing on a few selected jurisdictions, each incarnating a specific kind of recognition system, it also proposes a conceptual map to understand and identify the different shapes of such a right. The article argues that four types of gender recognition can be identified, each with their own characteristics, advantages, peculiarities, and set of challenges for trans and nonbinary people and for the system of gender categorization itself. In clarifying this area of law, the article contends that the very process of creation and policing of gender identities and categories represents a critical aspect of contemporary gender constitutionalism.
Daniela Alaattinoğlu and Alice Margaria, Trans parents and the gendered law: Critical reflections on the Swedish regulation
Sweden has attracted international attention for its 2018 legislative provisions which recognize trans parenthood in line with legal gender. This legislation provides that a trans man who gives birth is registered as his child’s father in Sweden, unlike in most countries of the world. This article offers an original engagement with the genesis, peculiarities, and future of the revised Swedish Children and Parents Code, and the criticism it attracts, as an illustrative example of the inherent challenges present in regulating trans parenthood in a gendered, cis- and hetero-normative legal system. The critical analysis of the Swedish provisions investigates two alternative legal models for regulating trans parenthood from a comparative perspective: degendering legal parenthood and misalignment of legal gender and parental status. Looking towards the future, the article normatively embraces a substantive conceptualization of degendering legal parenthood, rather than merely a nominal one, highlighting the need to rethink and redistribute childcare.
Anniken Sørlie, Trans reproduction: Continuity, cis-normativity, and trans inequality in law
In recent years, increasing numbers of jurisdictions are abolishing sterilization requirements for legal gender recognition and are introducing self-declared change of legal gender. The abolition of this requirement leads to a change in the reproductive capacities of legal men and legal women, enabling legal men to become pregnant and to give birth, and legal women to beget children. The change in the reproductive capacities of the legal genders leads to biopolitical questions about how states do and should govern trans reproduction after decades of state-regulated sterilization. This article uses the situation in Norway to explore the regulation of trans reproduction and aims to explain why trans people’s reproductive rights are lesser than those of cis people. It first investigates the Norwegian regulation of medically assisted reproduction and how it applies to people who have changed their legal gender. It shows that trans people are excluded from accessing medically assisted reproduction because their legal gender does not fit the conceptions of reproduction and gender under the Norwegian Biotechnology Act. Second, the article explores why trans people’s reproductive rights are limited, and argues that the law is based on cis-normative assumptions about reproduction, pregnancy, and the desire to become pregnant. Such assumptions, it is argued, permeate the law and lead to discrimination against trans people. The Norwegian legislature has not given any reasons as to why trans people’s reproductive rights are limited. The article demonstrates that although the sterilization requirement for legal gender recognition is abolished, the law continues to concentrate on cis realities and to restrict trans people’s ability to form a family with children.
Federica Coppola, Gender identity in the era of mass incarceration: The cruel and unusual segregation of trans people in the United States
The scarce legal recognition of the gender identity of trans people is a contributing factor to the phenomenon of mass incarceration in the United States. The disproportionately higher rates of incarceration of trans people—especially trans people of color—are driven by discrimination-based barriers to housing, employment, education, and trans-specific healthcare. The denial of trans identity in prison results in the ill-treatment of trans persons, including a heightened exposure to assault and violence. Concerningly, incarcerated trans people are commonly confronted with harsh conditions of confinement such as solitary confinement, which are generally enacted to (presumably) protect their own safety. Against this backdrop, this article advances Eighth Amendment-based arguments for (indirectly) affording a more consistent constitutional protection to gender self-determination in prison settings. First, the article argues that a more robust dignity-based interpretation of the Eighth Amendment regarding the conditions of confinement can lead to recognizing (self-determined) gender-affirming placement as a basic human need, the deprivation of which causes constitutionally relevant harm. The second argument relies upon penal theory to illustrate that the denial of gender self-determination in prison settings, with all the negative corollaries it implies, contradicts the fundamental pillars of each major justification for punishment. Thus, such a denial does not serve any constitutionally justified penological need.
Marco Wan, Law, Film, and trans identity in Hong Kong
This article examines the construction of trans identity in Hong Kong law and cinema. By juxtaposing the key Hong Kong court cases on trans rights and some recent feature films on trans experience, it argues that film can reproduce and reinforce the understanding of identity in the court cases, and that they can unwittingly perpetuate the dynamic of exclusion enacted in those cases. Law and popular film may seem to be distinct discursive domains, but their constructions of trans identity are in fact intertwined. The article contends that to break out of these limiting identity formulations, we need to move beyond the dominant imaginaries of law and popular culture. It offers one way of doing so by turning to independent queer filmmaking as a forum for articulating and recognizing alternative trans subjectivities.
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