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Constitutionalism and Political Culture:The Debate over Human Rights andAsian Values

Michael C. Davis*

Human rights ideals in the present age face many challenges, themost persistent of which is the "Asian values" claim being promotedby some authoritarian East Asian leaders. In taking the initiative tochallenge the present liberal human rights and democratic trends,1authoritarian East Asian political leaders have argued against the wholesaleimportation of Western democracy and human rights. The humanrights practices of the West are said to be unsuited to Asian soil andto the particular cultural and historical conditions of the East. EastAsian leaders point to the Western origin of liberal democracy and thehigh levels of crime and social problems in the West and question themerits of principles they claim are contrary to "Asian values"-a termin which they seem to include authoritarianism, cooperation, harmony,and order as the predominant values of Asian culture.2 This claim hassome academic currency among cultural theorists who argue fo r anexception to democratic ideals for societies that lack certain culturalprerequisites.

* Professor of Law, Chinese University of Hong Kong ([email protected]). Special thanksfor opportunities to present earlier versions of this argument and receive comments to theInternational Conference on Trends in Contemporary Constitutional Law held at the Universityof Hong Kong in December 1996, the 1997 Asian Law Forum Speaker Series at Yale Law School,and the 1997 Clason Endowed Lecture Series at the Western New England College of Law. Afurther personal thanks to Victoria Hui, Thomas Eldert, and Sophie Courtemanch for theircomments on and assistance with various drafts.

1. The present analysis treats democratic rights as a constituent element of human rights.Democratic rights are usually categorized under civil and political rights. See, eg., InternationalCovenant on Civil and Political Rights, adoptedDecember 16, 1966, arts. 18, 19, 21, 22 and 25,999 U.N.T.S. 171, 178-79, rqrinted n 6 I.L.M. 368 (1967).2. Se,? amuel P. Huntington, Democracy's Third Wave, in THE GLOBAL. RESURGENCE OFDEmOCRACY 3, 15 (Larry Diamond & Marc E Platner eds., 1993). Th e present essay will focuslargely on the Confucian component of the Asian values debate and more directly on thosesocieties in East Asia that are historically characterized as Confucian. In this regard, it isimportant to note that several of the democracies in Asia (e.g., Japan, South Korea, Taiwan, andHong Kong, the last three now in transition) are societies that were traditionally Confucian.

HeinOnline -- 11 Harv. Hum. Rts. J. 109 1998


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HarvardHuman RightsJournal / Vol. 11The present Article offers both a critique of the Asian values and

broader cultural claims and a positive constitutionalist agenda foraddressing the issues implicated in this crucial debate. The critique istwofold: (1) that the proponents of the Asian values argument, inadvancing an agenda for authoritarian rule, fail to appreciate the richvalues discourse of the East Asian region; and (2) that the culturalrelativist theories of the academy are tautological and overly determi-nistic because they fail to appreciate the roles of both human agencyand institutions in the transformative processes of cultural discourse.

Following the critique of Asian values and broader cultural claims,the second half of this Article addresses its main concern: the cross-cultural implications of the globalization of liberal constitutional prac-tices. 3 The primary mission here is to encourage renewed appreciationof the positive role of constitutionalism in the construction of socialand political values. 4 I will emphasize the positive role of constitution-alism as a venue both to secure the legitimate autonomy of the politi-cally developmental state and to make the state responsive to currentpublic values.5 While theorists often discuss constitutionalism andhuman rights in terms of the constraints they impose on the state, 6 Iwill emphasize their positive discourse-engendering role.

In this regard, I argue that liberal constitutional democracy shouldadvance a twofold mission: first, the implementation of the liberalconstitutional fundamentals of democracy, human rights and the rule

3. Globalization here is generally understood to refer to the emergence of social, political andeconomic phenomena that extends beyond the control of individual states. See, e.g., John G.Ruggie, Territorialityand Beyond: ProblematizingModernity in InternationalRelations, INT'L ORG.,Winter 1993, at 139. In the present context, the application of this term to constitutionalismsuggests the emergence of liberal constitutional practices and expectations that are consideredfundamental across various stare systems. The globalization of constitutional human rights valuesthrough a global discursive process also offers an alternative to metaphysical arguments in supportof the universality of human rights.4. There are several complex issues which need to be addressed in considering economicdevelopment and its relationship to constitutional government. The economic developmentargument is set aside here and is the subject of a separate essay. See Michael C. Davis, The PriceofRights: ConstitutionalismandEast Asian Economic Development, 20 Hum. R'rs. Q. 303, (forthcoming1998). The present Article will focus, instead, on the claims made about Asian values and relatethese issues to constitutionalism.5. For purposes of the present discussion, I will adopt a positive, empowering notion of liberalconstitutionalism with three core components: (1) democratic elections with multi-party contest-ation; (2) security of human rights, especially freedom of expression; and (3) the rule of law withfirm adherence to principles of legality. In this essay, the term "constitutionalism" will be usedinterchangeably with the term "liberal constitutionalism" to signify attention to these elements.I will argue below that these core components ideally take on local institutional embodimentthrough a process I characterize as constitutional indigenization.6. Constitutional discourse often emphasizes the way in which constitutional processes serveto check or block governmental actions. See Stephan Holmes, Prccommitment and the ParadoxofDemocray, in CONSrTUMONAUSM AND DEImocRAcy 195, 226 (Jon Elster & Rune Slagstad eds.,1988).



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1998 / ConstitutionalismandAsian Valuesof law, which creates a venue fo r an open-ended conversation aboutvalues; second, within this venue, the use of the particular practices ofeach country to embed this conversation in the local community-aprocess I characterize as indigenization. 7 In the modern context, thisengendering conversation offers the most realistic avenue to culturaland community reconstruction.

I. THE ASIAN VALUES POLITICAL DEBATEOfficial and academic claims concerning Asian values exaggerate the

constraints imposed by these values and fail to account fo r the richnessof the values discourse in East Asia. Setting aside the economic devel-opment argument,8 there are essentially two contentions. First, themore extreme form of the Asian values claim generalizes that Asiancultures, particularly Confucian cultures, are undemocratic or posi-tively anti-democratic, and that authoritarian forms of governance aremore suitable to Asian soil.9 With respect to historically Confuciansocieties, this alleged hostility is reflected in the stereotypes that char-acterize them as advancing the group over the individual, authorityover liberty, and responsibility over rights, and as promoting suchvalues as harmony, cooperation, order and respect fo r hierarchy.10 Sec-ond, a less extreme contention focuses on the historical stage of devel-opment of the society and argues that while human rights may ulti-mately have universal application, they are, at most, a distant dreamfo r societies in the early stages of development." This argument, ineffect, affords justification fo r harsh or authoritarian measures in thepresent.Such claims to exception, not new in human rights history, arerehearsed almost daily in East Asian political discourse. 12 A succinct

7. In this essay, I use the terms "indigenization" and "constitutional indigenization" inter-changeably.8. Sce Davis supra note 4.9. See Huntington, supra note 2, at 15.10. Id.11. The Chinese government emphasized historical condition, cultural relativism and national

sovereignty in the preface of its 1991 White Paper on human rights, a report prepared andpublished in five languages largely as a proactive response to international human rights criticism:Owing to tremendous differences in historical background, social system, cultural

tradition and economic development, countries differ in their understanding and prac-tice of human rights. From their different situations, they have taken different attitudestowards the relevant U.N. conventions. Despite its international aspect, the issue ofhuman rights falls by and large within the sovereignty of each country. Therefore, acountry's human rights situation should not be judged in total disregard of its historyand national conditions, nor can it be evaluated according to a preconceived model ofthe conditions of another country or region.

HuMAN RIGHTS IN CHINA II (Information Office of the State Council ed., 1991).12. See, eg., Bilahari Kausikan, Governance That Works, J. DEMOCRACY, Apr. 1997, at 24,



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HarvardHuman RightsJournal / Vol. 11official statement in this regard was offered by the Chinese Ambassa-dor, later Deputy Foreign Minister, Liu Huaqiu at the 1993 ViennaWorld Conference on Human Rights:

The concept of human rights is a product of historical devel-opment. It is closely associated with specific social, politicaland economic conditions and the specific history, culture andvalues of a particular country. Different historical develop-ment stages have different human rights requirements ...Thus, one should not and cannot think the human rightsstandard and model of certain countries as the only properones and demand all other countries to comply with them ...For the vast number of developing countries, to respect andprotect human rights is first and foremost to ensure the fullrealization of the rights to subsistence and development. .... 13

These views were expressed collectively in the 1993 Bangkok Decla-ration, the declaration of the official Asian Regional Meeting of theWorld Conference on Human Rights.' 4 While accepting some degreeof universality, the Bangkok Declaration emphasized cultural excep-tion, recognizing that "while human rights are universal in nature, theymust be considered in the context of a dynamic and evolving processof international norm setting, bearing in mind the significance ofnational and regional particularities and various historical, cultural andreligious backgrounds." 15

24-34; Yahya Sadowski, The New Orientalism and the Democracy Debate, MIDDLE EAST REP.,July-Aug. 1993, at 14; BeijingAttacks 'Imposed Values', S. CHINA MORNING POST, Sept. 27, 1996,at 11 (on file with the HarvardHuman RightsJournal); Peace Not A Sign Of Weakness, Says Li, S.CHINA MORNING POST, Sept. 20, 1996, at 12 (on file with the HarvardHuman RightsJournal);Sustain Miracle, EntreatsFounder,S. CHINA MORNING POST, June 9, 1996, at 7 (on file with theHarvardHuman Rights Journal); Those DeferentialAsians, ECONOMIST, Dec. 9, 1995, at 12. In arecent interview prior to his first Washington summit, Chinese President Jiang Zemin emphasizedthe relative quality of human rights: "it]he theory of relativity can also be applied to the politicalfield .... Both democracy and human rights are relative concepts and not absolute."JiangDefendsRights Record, S. CHINA MORNING POST, Oct. 20, 1997, at 7 (on file with the HarvardHumanRightsJournal).13. Liu Huaqui, Head of Chinese Delegation at the World Conference on Human Rights,Remarks at the Meeting of the World Conference on Human Rights 2-3 (June 15, 1993) (onfile with the HarvardHuman RightsJournal).14. Declaration of the Ministers and Representatives of Asian States, March 29-April 2, 1993,in OUR VOIcE, BANGKOK NGO DEcLARATIoN ON HUMAN RIGHTS (Asian Cultural Forum onCultural Development ed., 1993) [hereinafter BANGKOK DECLARATION].

15. See id., art. 8. While this language is not objectionable on its face, the accompanyingemphasis on "national sovereignty and territorial integrity as well as non-interference in theinternal affairs of States, and the non-use of human rights as an instrument of political pressure"(Article 5), as well as the emphasis on the use of domestic institutions (Articles 9 and 24), leadto skepticism about the seriousness of this official East Asian commitment. Id. art. 5, 9, 24. Thegreater emphasis placed on certain economic, cultural, and social rights (Articles 10 , 17, 18, 19)tend to further align this declaration in opposition to serious protection of civil and political



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1998 / ConstitutionalismandAsian ValuesEven more striking in Asia than these official polemics is the rich

diversity of voices in varied degrees of opposition to the Asian valuesargument. The fact that four leading governments, those of Japan,Taiwan, South Korea and the Philippines, have openly adopted multi-party democratic political systems with substantial constitutional com-mitments indicates the strength of this opposition.' 6 Though thesenewly reforming countries have not completely forsaken their historicalauthoritarian practices, there is considerable evidence of an emergingcommitment to constitutional requirements: periodic elections occurand opposition governments take power at both the local and nationallevels; human rights and freedom of press and association are evidentin a vigorous press and in high levels of civic action and associationalactivities; and courts are increasingly exercising the power to reviewgovernment action.17 The seriousness of these endeavors is furtherdemonstrated by recent efforts, in defense of democratic reforms, tomake former authoritarian corrupt officials accountable fo r their abusesof power.'8

rights. This drew fire from the regional NGO meeting that took place simultaneously inBangkok. See generallyOUR VOICE, BANGKOK NGO DECLARATION ON HUMAN RIGHTS (AsianCultural Forum on Cultural Development ed., 1993).

16. The role of democracy in securing human rights and vice versa will become apparent inthe analysis of the constitutionalist project discussed in the second part of this Article.

17 . The processes of transition have been well documented in the secondary literature of thepast decade. See, ag., JAUSHIEH JOSEPH Wu, TAIwAN's DEMOCRATIZATION, FORCES BEHIND THENEw MOMENTUM (1995); Lawrence W. Beer, Freeom of Expression: The Continuing Revolution,LAw & CONTEMP. PROBS., Spring 1990, at 39; Tun-jen Cheng, Taiwan in 1996: From Euphoriato Melodrama, ASIAN SURVEY, Jan. 1997, at 43; Haruhiro Fukui & Shigeko N. Fukai,Japan in1996: Between Hopeand Uncertainty,ASIAN SURVEY, Jan. 1997, at 20; H. Itoh,JudicialReview and

JudicialActivism in Japan,LAw AND CONTEMP. PROBS., Winter 1990, at 169; B.C. Koh, SouthKorea in 1996: Internal Stains andExternal Challenges, ASIAN SURVEY, Jan. 1997, at 1; J.A. Lent,Human Rights andFreedom of Expression in Asia and the Philippines,17 ASIAN PROFILE 137 (1989);L.S.L. Liu,JudicialReview andEmergingConstitutionalism:The Uneasy Case or the Republicof Chinaon Taiwan, 39 AM. J. COMP. L. 509 (1991); C. Neal Tate, The Judicializationof Politics in thePhilippinesand Southeast Asia, 15 INT'L POL. SCL REV. 187 (1994); J.W. West & Ej. Baker, The1987 ConstitutionalReforms in South Korea:EleetoralProcessesand udicial ndependence, 1 HARv. HUM.RTs. YB. 135 (1988); H.K. Youm, CurrentDevelopment: South Korea, Press Laws in Transition, 22COL. HUM. RTs. L. REv. 401 (1991); Kim the Peacemaker, ECONOMIST, Jan. 31, 1998, at 41;Strictly Ballroom, ECONOMIST, Sept. 13, 1997, at 39 (discussing how President Ramos cancelledplans to amend the constitution to allow for a second term due to public protests).

18 . Corruption has too often been the dark underside of the East Asian economic miracle. Therelationship between corruption and economic development is better addressed in a separate essay.See Davis, supra note 4. It is important to note here, however, that the moral baseness reflectedin the extreme corruption ofprevious authoritarian governments in South Korea and the so-calledsoft authoritarian government under the previous one-party dominant system in Japan, whileomnipresent in traditional societies, would hardly be held out as an ideal conception of Asianvalues. South Korean officials and business leaders were recently convicted of receiving or payingover U.S. $300 million in illegal bribes. The Mighty Fall in South Korea, ECONOMIST, Aug. 31,1996, at 31; The Quality of Korean Mercy, ECONOMIST, Aug. 31, 1996, at 16. The seriousnesswith which people view this corruption was again demonstrated by the conviction of former SouthKorean President Kim Young-Sam's son.



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HarvardHuman RightsJournal / Vol. 11Though less secure than in the previously mentioned countries, somedegree of democratization in Thailand and Hong Kong stands asfurther testimony to East Asia's attraction to democracy,' 9 as do the

current struggles over democracy in Cambodia and Burma.20 Most ofthese developments have been encouraged by substantial mass move-ments, a phenomenon also sometimes evident in China and Indone-sia.21 Even the official polemic reflected in the Bangkok Declarationdid not go unchallenged; at a concurrent meeting, numerous Asiannongovernmental organizations (NGOs) published an opposing decla-ration. 22

The numerous Japanese corruption scandals and prosecutions are testimony to that country'sdisgust with the back-room politics of soft authoritarianism (a perennial problem of ImperialJapan, as well). Beginning in the mid-1970s, when Japanese Prime Minister Kakuei Tanaka wasindicted (August 16, 1976, with conviction in 1983) in the Lockheed scandal, the fate of theruling Liberal Democratic Party (LDP) spiraled downhill until the LDP was no longer able tosustain power in 1993, thus ending 40 years of LDP rule. In 1989, the party put forth ToshikiKaifu, a reformist leader of a minor faction, as Prime Minister because they had great difficultyfinding untainted politicians to take up the post-this time due to the Recruit scandal, wherestock was sold to numerous politicians at favorable terms prior to public listing. The Japaneseelectorate now appears to take a very dim view of corrupt officials and this remains a politicalissue. See generallyRICHARD H. MITCHELL, POLITICAL BRIBERY IN JAPAN 121-32 (1996); KARILvAN WOLFEREN, TH E ENIGMA OF JAPANESE POWER 132-38 (1989).

19. See e.g., Michael C. Davis, Human Rights and the Founding of the Hong Kong SpcialAdmin-istrativeRegion, 34 COL. J. 'TRANSNAT'L L. 301, 321 (1996); Thailand, Reachingfor the Moon,ECONOMIST, Sept. 20, 1997, at 45.

20. On August 26, 1988, a half million people defied the Burmese regime to hear Aung SanSuu Kyi speak. These same people supported her party, the National League for Democracy, inthe 1990 election for the National Assembly, giving it 392 out of 485 available seats, a resultthat was harshly overturned by the military regime. See, eg., AUNG SAN Suu Kvz, FREEDOMFROM FEAR 192, 227 (1995); Cambodia'sMany-HeadedMonster, ECONOMIST, Nov. 1, 1997, at 41;Bertil Lintner, Reward for Resistance, FAR E. ECON. REV., Commemorative Edition, July 1997, at120.

21. The prototypical mass democracy movement was the 1986 "people power" demonstrationsled by Corozan Aquino in the Philippines, resulting in the overthrow of the Marcos regime andthe institution of what may be the most liberal constitution in East Asia. See S. Guingona, TheConstitution of the Philippines: An Overview, NE W ZEALAND LJ., December 1989, at 419; GuySacerdoti & Rodney Tasker, Power From the People, FAR E. ECON. REv., Commemorative Edition,July 1997, at 106; Tate, The Judicializationof Politics in the Philippinesand Southast Asia, supranote 17; C. Neal Tate, The Courts and the Breakdown and Re-creation of Philippine Democracy:Evidence from the Supreme Court's Agenda 6 (1997) (paper presented at the 17th WorldCongress of the International Political Science Association, Seoul, South Korea, Aug. 21, 1997)(on file with the Harvard Human Rights Journal). This was followed in 1989 by the faileddemocracy movement centered in Tiananmen in China. See generallyTHE AFTER ATH OF THE1989 CRIsIs IN MAINLAND CHINA (Bj. Lin ed., 1992). Similar demonstrations took place inTaipei in 1990, resulting in the national constitutional conference and the institution of demo-cratic reforms. See Wu supra note 17 at 36-70, 123-37. Similar demonstrations in 1987 broughtthe South Korean military regime to an end in 1988. See Tun-jen Cheng & Eun Mee Kim, MakingDemocracy: Generalizingthe South Korean Case, in TH E POLITICS OF DEMOCRATIZATION: GENER-AulZING EAST ASIAN EXPERIENCFS 125, 135-39 (Edward Friedman ed., 1994). Mass demonstra-tions have failed to produce real change in Burma and Indonesia. See Aung San, supra note 20,at 192, 227; R. William Liddle & Rizal Mallarangeng, Indonesia in 1996: Pressures rom AsoVe andBelow, ASIAN SURvEY, Feb. 1997, at 167.

22. These NGOs challenged the official claims that universal standards of human rights did



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1998 / ConstitutionalismandAsian ValuesII. THE SCHOLARLY DEBATE OVER THE CONTENT OF

ASIAN VALUESScholars of the Chinese classics and political theorists have chal-

lenged the official claims made on behalf of Confucianism. They ques-tion current official Asian practice of attributing authoritarianism toAsian values. Alternative explanations can account for these officialpractices more accurately than the Asian values claims raised by po-litical leaders. On a factual level, North Korea, China, and Vietnam,which are among the most extreme examples of regimes with authori-tarian or sometimes totalitarian practices, each have an alternativeMarxist state ideology that would alone explain much of their politicalbehavior. Confucianism would not.23

Leading classics scholar Wejen Chang argues, "If we take authori-tarianism to mean a general submission of the people to the govern-ment and the exercise of power by the authorities with little or norespect for the public opinion or basic rights of the individual, we findthat classical Confucians advocated just the opposite." 24 Chang notesthat the two golden rules of classical Confucianism elevate highermoral principles, such as compassion and mutual respect: "do no timpose on others what you do not desire," and "help others to achievetheir goals as you wish to achieve your own.' ' 25 Under such norms, thegovernment is there to serve the people and to provide order.26 There-fore, as under human rights principles, the government is not com-pletely unencumbered by higher principles in the execution of power.In this light, Confucianism certainly does not appear to be hostile tohuman rights.

In arguing against the authoritarian Confucian thesis, Chang furthercites an important admonition from Mencius, the second great thinkerof Confucianism, concerning the exercise of the ruler's power:

not apply to Asia. See supra text accompanying note 15. They questioned the claim that speciallocal circumstances justified the abuse of basic rights. See OU R VOICE, BANGKOK NGO DEcLA-RATION ON HUasAN RIGHTS, supra note 15.

23. See Wejen Chang, The Individual and the Authorities in Traditional Chinese Legal Thought1 (1995), (paper presented for the Constitutionalism and China Workshop, Columbia University,Feb. 24, 1995) (on file with the HarvardHuman RightsJournal); ee generallyGangjian Du & GangSong, RelatingHuman Rights to Chinese Culture:The FourPaths of the ConficianAnaleasand he FourPrinciples of a New Theory of Benevolence, in HuMAN RIGHTS AND CHINESE VALUES, LEGAL,PHILOSOPHICAL, AND POUTICAL PERSPECTIVES 35 (Michael C. Davis ed., 1995).

24. Chang, supra note 23, at 1. See also Du & Song, supra note 23. This argument, based onphilosophical content, merely contests the alleged antagonism between tradition and humanrights, and does not argue for the existence of an established Asian tradition of rights. Ta Va nTai has taken that extra step, arguing that both notions of the rule of law and human rights wereestablished in traditional pre-Confucian Vietnamese society. See generallyTa Van Tai, THE VIET-NAMESE TRADITION OF HUMAN RIGHTS (1988).

25. Chang, supra note 23, at 1.26. Id. at 1-2.



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HarvardHuman RightsJournal / Vol. 11The people . . . are of the greatest importance, the statecomes next, and the ruler last. . . . [f the ruler treats hissubjects as his hands and feet, they will treat him as the heart;if he treats them as dogs and horses, they will treat him as amere fellow countryman; if he treats them as dirt and grass,they will treat him as an enemy 27

Chang concludes that when a ruler becomes "autocratic and violatesthe basic principles of benevolence and righteousness" he is "a despot"and can be rightfully deposed.28

Chang attributes the evolution of harsh authoritarian rule in theChinese dynastic cycle to Chinese legalism and the habits of dynasticrulership-a potent combination that some academics call "neo-Con-fucianism. ''29 It was in the later dynastic cycle that the rudiments ofauthoritarianism were imported into Confucian ideals.30 In this impor-tation, the moral relationships of Confucianism were stripped of theprinciples of compassion and mutual respect that early Confuciansemphasized. 31

The contemporary intellectual foundation of the current Asian val-ues political argument has also come under attack. Asian scholars andothers have condemned the persistent patterns of "orientalism" in bothWestern and Asian scholarship and political polemics. 32 Beng-HuatChua, citing earlier work by Edward Said, highlights how, in recentyears, some Asian intellectuals and policymakers have embraced theWestern discourse of "orientalism" as a self-defining discourse. 33 Thisleads to the paradoxical result that an originally Western discourseaimed largely at defining Asians as part of the "other," or outside ofthe West-centered world,34 has been taken on board by its putativeobjects: the Asians themselves. The consequence is the perpetuation ofpolitically authoritarian regimes. 3'

27. Id at 2.28. Id29. Id. at 8-14.30. Id. at 10-14.31. Id at 10.32. BENG-HUAT CHUA, COMMUNrTARIAN IDEOLOGY AND DEMOcRACY IN SINGAPORE 147(1995). The term "orientalism" refers to the tendency of Western intellectuals, pursuing "oriental"studies, to ratify and mystify Asian societies, treating them as exceptions to Western ideas andpractices. Edward Said points ou t that this orientalist tradition is exclusionary, treating Asians asthe "other," perhaps incapable of meeting Western standards. EDWARD SAID, ORIENTALISM 22

(1978). Se e also Haocheng Yu, On Human Rights and Their Guaranteeby Law, in HUMN RIGHTSAND CHINESE VALUES, LEGAL, PHILOSOPHICAL, AND POLITICAL PERSPECTIVES 93 (Michael C.Davis ed., 1995).33. CHUA, supra note 32, at 147.34. Said feels that this claim was made to rationalize Western domination over the East. SM

SAID, supra note 32, at 22.35. CHUA, supra note 32, at 147. Positivist social scientists have seemingly no t been the only



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1998 / Constitutionalismand Asian Values 117Although "orientalist" logic would have us believe that the intellec-

tual ideas and practices of human rights were misunderstood when firstencountered in East Asia, the record concerning the initial receptionof these rights indicates that they were not misunderstood. The evi-dence from the endless debates in early modern Chinese magazines andnewspapers demonstrates a high level of sophistication in early Chineseunderstanding of enlightened thought and its basic human rightsconcepts. 36 There were many Chinese advocates of natural rights.37These early Chinese writers, reflecting a utilitarian bent, did acknow-ledge the need to limit rights in the national interest, but, in a trueConfucian spirit,38 did not view the national interest as identical to theinterest of the regime in power.39 The anti-Confucian and, later, cul-tural relativist components of Chinese rights discourse did not reallysurface until the May Fourth Movement of 1919 and beyond.40 TheMay Fourth Movement was a multi-faceted student and intellectualmovement that attacked tradition, promoted science and democracy,and expressed anti-imperialist nationalist sentiments. 41 This wave ofnationalism opened a window for cultural relativist elements to slipinto Chinese rights discourse.

It has been argued that Chinese have favored social and economicrights over political rights, as part of their minben tradition of govern-ance, which emphasizes the people as a basis. 42 Some might concludefrom this minben tradition that civil and political rights would beones guilty of orientalism. William Afford levels a similar accusation at Roberto Unger, a criticallegal theorist normally considered an advocate of a more textured approach. See William Alford,The InscrutableOcidental? ImplicationsofRoberto Unger's Uses and Abuses of the Chinese Past 64 TEx.L. REV. 915 (1986).36. See iARINA SVENSSON, THE CHINESE CONCEPTION OF HuiAN RIGHTS: THE DEBATE

ON Hus.&RIGHTS IN CHINA, 1898-1949 (1996).37. See id. at 106-12.38. See Chang, supra note 23; Du & Song, supra note 23.39. See SVENSSON, supra note 36, at 119-26, 129-38. See also Chang, supra note 23; Du &

Song, supra note 23.40. See SVENSSON, supra note 36, at 156-204.41. The May Fourth M1dovement was triggered by the decision of the Versailles Conference atthe end of World War I, on May 4, 1919, that the German concessions in Shandong were to betransferred to Japan. As a result of such imperialist actions, many Chinese intellectuals becamedisillusioned with the Western powers and, to some extent, with Western liberal ideas. Id. at156-66. Some of those who were disillusioned turned to socialism and started C hinas communistmovement; while some of those who remained more oriented toward Western liberal democracy

became attached to the nationalist movement, eventually giving rise to the Nationalist govern-ment now in power in Taiwan. Se e Wu, supra note 17, at 13 .42. The ancient Chinese minben tradition asserts that good government should be benevolentand concerned with the people's welfare. This could be distinguished from the liberal notion ofdemocracy which emphasizes the people's control over government. If early modern Chinese

thinkers had interpreted democracy in minben terms, they might have emphasized social welfareconcerns, which would have advanced the power of the state and thus emphasized social andeconomic rights over civil and political rights. See ANDREW J. NATHAN, CHINESE DEMOCRACY127-28 (1985). If civil and political rights were in fact emphasized by early Chinese rights



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HarvardHuman RightsJournal / Vol. 11willingly sacrificed for the sake of benevolent rulership and socialwelfare. But this alleged connection between Chinese concern withbenevolence and a willingness to sacrifice civil and political rights isquestionable. Most of the earlier Chinese writings on the modernnotion of human rights focused on civil and political rights.43 Chinesewriters, influenced by John Stuart Mill, especially focused on theimportance of freedom of thought, speech, and publication.44 Accord-ingly, if we look beyond traditional Chinese thought to consider theactual facts of Chinese reception of Western thought, we again findlittle hostility to liberal rights notions. We should, therefore, not onlyquestion the claim that human rights are incompatible with Chinesetradition but also observe that early modern Chinese were, in fact,attracted to liberal rights notions.Finally, it is important to ask whether claims about the modernpractice of Confucian politics are legitimate. If, contrary to WejenChang's view, one accepts that the so-called neo-Confucianism evidentin China's last dynasty is genuine, does this form of government nowexist? While there is general agreement that levels of Confucian familyand personal morality exist in East Asian societies, this does no tnecessarily translate into an affinity for the authoritarian political val-ues said to be associated with Confucianism or establish the practiceof Confucian-style authoritarianism. 4'Francis Fukuyama argues that the kind of political Confucianismcharacterized by Huntington 46 -involving commitments to authori-tarianism; advancement of the group over the individual, authorityover liberty, responsibility over rights; and promotion of values suchas harmony, cooperation, order and respect for hierarchy-was charac-teristic of pre-democratic Japan and is now largely discredited.47 Be-yond Japan, it is noteworthy that Singapore actually had to importeight Confucian scholars to "implant" the rudiments of this so-calledpolitical Confucianism. 48 Of course, the idea of implanting a state valuesystem or perverting an existing one to national purposes is not new.49

thinkers then this slightly relativist logic is to some extent undermined. SVENSSON, supra note36, at 114-21.43. SVENSSON, supra note 36 , at 106-21.44. Se e id. at 114.45. See, e.g., Chang, supranote 23; CHUA, supra note 32; Francis Fukuyama, Confucianism andDemocracy, J. DEmocRAcy, Apr. 1995, at 20, 20 .46 . Huntington, supra note 2 at 15.47. Fukuyama, supra note 45, at 20.48 . See id.t 30; CHUA, supra note 32, at 159.49. Looking at other East Asian examples, one might conclude that in China, "socialism withChinese characteristics" becomes essentially capitalism without freedom; in Indonesia, the stateideology of "pancasila" becomes authoritarianism; in North Korea, extreme "self-reliance" be-comes a recipe for economic collapse. Se e Bruce Cumings, The ContemporaryState in North Korea,in STATE AND SocIETY IN CONTE PoRARy KOREA 197, 213-16 (Hagen Koo ed., 1993); JuNE



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1998 / Constitutionalism andAsian ValuesHowever, if the allegedly Confucian political values of authoritarianismare just an implant, it is difficult to argue that deeply held Asian valuescompel such authoritarianism. For Singapore, Chua feels the implantwas largely rejected, claiming that in the recent elections of 1984,1988, and 1991, many Singaporeans made effective use of whateverpolitical space they were allowed in order to register their dissent.50

It is difficult to defend the proposition that the recent extrememanifestations of "great-leaderism" found in North Korea, Chinaand Vietnam is Confucianism. 51 While some Asian leaders mayclaim that the Confucian component in East Asian governments,especially in the rapidly developing countries, is government byconsensus, this must also be questioned. 52 Democratic governmentsalso require consensus. Consensus should not be confused with col-lusion or back-room dealing, as the recent corruption trials in SouthKorea and Japan demonstrate. Much of what passes as consensusgovernance in these traditionally Confucian societies is neither Con-fucian nor desirable in East Asia.53

III. THE BROADER ACADEMIC DEBATE ABOUT CULTUREIn arguments about cultural prerequisites fo r democratization, schol-

ars who may not even be sympathetic to the Asian values argumenthave also introduced an element of relativism into studies of democracyand human rights. Others have contested democracy and human rightsas an affront to traditional notions of community. My analysis of thesebroader academic culture arguments advances a threefold critique: first,an examination of the support for an Asian values-type argument oftenengendered in academic claims about cultural prerequisites fo r democ-ratization; second, an analysis of claims made about community as abasis for resisting liberal constitutional democracy; and, third, an evalu-

TEUFEL DREYER, CHINA'S POLITICAL SYSTEM: MODERNIZATION AND TRADITION 149, 430(1993); JOSEPH FEwsMITH, DIEMMs OF REFORI IN CHINA: POLITICAL CONFLICT AND Eco-NOMIC DEBATE 249 (1994); DOUGLAS E. RAMAGE, POLITICS IN INDONESIA: DEMOCRACY, ISLAM,AND THE IDEOLOGY OF TOLERANCE 10-44 (1995).

50. CHUA, supranote 32, at 166.5 1. "Great leaderism" here refers to a style of leadership based on a personality cult that wa s

evident in China under Mao Zedong, in North Korea under Kim Il-Sung and in Vietnam underHo Chi-min. While Confucianism certainly includes the elements of father figure leaders, suchas the emperor in pre-war Japan, it does not include the mass party and totalitarian characteristicsof these recent cases. Bruce Cumings has characterized the North Korean form of governance asa kind of socialist corporatism with a charismatic father figure as leader-this leader is called byvarious terms of endearment such as "great leader." See Cunings, supra note 49, at 197, 199,206-30.

52. Here the suggestion is that, rather than public confrontation and debate, political actorswill favor a system of quiet, behind-the-scenes consensus building, a style of politics not essentiallyconcerned with the protection of liberal political rights.

53. See supra text accompanying note 18.



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HarvardHuman RightsJournal/ Vol. 11ation of new institutionalism 54 both as a challenge to the culturalprerequisites argument and as a foundation for the constitutionalistproject.

As a preliminary matter, in considering culture and political changein East Asia, I think it is important to avoid the tendency to over-mystify culture and to use over-generalized cultural stereotypes.55 Rather,it is important to identify what is symbolized by the political languageand practices under discussion. 56 If we take heed of this suggestion, wemay avoid the difficulties connected with the search for preconditionsfor democracy and human rights or those associated with static con-ceptions of community. We can then more properly focus the discus-sion of cultural values and change on discursive avenues actively con-necting individuals and their culture to their institutional and politicalenvironment, as is developed in the discussion of constitutionalism inthe latter part of this essay.

A. CulturalPrerequisitesIn the background of the contemporary Asian values discourse, thereis a decades-long debate about the role of political culture in demo-

cratic transitions. 57 The assumption is that democratization is eitherdifficult or nearly impossible unless certain cultural prerequisites arepresent. Although the proponents of these arguments are not usuallyviewed as cultural relativists, the difficulty of satisfying these culturalcriteria may produce an essentially relativistic result. In the absence ofa whole range of social and political, as well as economic criteria,successful democratization becomes seemingly impossible or, at best, adistant dream.

54. As discussed below, the notion of "new institutionalism" refers to recent renewed interestin the roles that institutions play in bringing about change and constraining individual choice.Se e generally Peter A. Hall & Rosemary C.R. Taylor, Political Science and the Four New Institu-tionalisms (1994) (paper presented at American Political Science Association Annual Meeting,New York) (on file with the HarvardHuman RightsJournal).

55. See, ag., CLIFFORD GEERTz, TH E INTERPRETATION OF CULTURES: SELECTED ESSAYS 5(1973).56. In this regard, Clifford Geertz agrees with Max Weber, that "man is an animal suspendedin webs of significance he himselfhas spun." Id Geertz describes the process ofcultural interpretationin non-mysterious terms as "guessing at meanings, assessing the guesses and drawing explanatoryconclusions from the better guesses." Id. at 20.

57. The term "political culture," though varied in meaning across the spectrum of thisliterature, appears to refer to attitudes toward the objects of politics, including political institu-tions, other political actors, and individuals in the political system. See, e.g., GABRIUEL A. ALbIOND& SIDNEY VERBA, THE Crvic CULTURE, POLITICAL ATTITUDES AND DEMOCRACY IN FIvsNAnONs 12-13 (Sage Publications 1989) (1963). In the context of the debate over democracyand human rights in East Asia, it is noteworthy that the notion of "Asian values" appears tooverlap with the values or attitudinal component of political culture. Scholarship also variesamong researchers and time periods concerning the use of the term "prerequisites" or merely.requisites."



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1998 / ConstitutionalismandAsian Values 121The cultural prerequisites argument is sometimes sensibly qualified.

In the debate, however, a potent argument too often takes shape thatstresses the futility of pursuing the democratic path for those no tculturally blessed. This argument and its extension to East Asia in theAsian values debate is clearly misguided. In this section, I am no targuing that cultural values lack importance but, rather, that thecultural prerequisites argument is excessively deterministic, tautologi-cal and fails to appreciate the importance of human agency.58

Beginning in the 1950s, a generation of social scientists, encouragedby the potential use of data about political culture to evaluate demo-cratic transitions, took up the task of identifying and measuring thecharacteristics of political culture that they believed were conducive todemocratization. 59 Probably, the premier work in this regard is GabrielAlmond and Sidney Verba's 1963 book The CivicCulture,in which theystudied political attitudes and democracy in the United States, GreatBritain, Germany, Italy, and Mexico. From this study, they generatedthe idea of a civic culture6 and the testing criteria for the numerousstudies that would follow.6' Almond and Verba sought to identify andmeasure statistically, in terms of psychological orientation, what theythought should be present in a country before democratic institutionscould take root. 62 While this is a hopeful project in its conception, byconceiving of the identified characteristics as essential prerequisites, itoffers an obstacle to democracy for those societies lacking these attrib-utes. Since the characteristics they identified were those largely associ-ated with Western democracies, Almond and Verba's work raises thepossibility that non-Western societies are unsuited for democracy andthe related human rights.

58. Here, the notion of human agency refers to the actions ofautonomous human beings withfree choice; this is in contrast to determinism. "In jurisprudence an agent is one who can performa genuine intentional action, and who is thus morally responsible for what he/she does." ROBERTM. MARTIN, TH E PHILOSOPHER'S DICTIONARY 16 (2d ed. 1994).

59. Se ALMOND & VERBA, supranote 57; ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS(1989); ROBERT A. DAHL, POLYARCHY, PARTICIPATION AND OPPOSITION (1971); SAMUEL P.HUNTINGTON, POLITICAL ORDER IN CHANGING SOCIETIES (1968); SAMUEL P. HUNTINGTON,TH E THIRD WAVE, DEMOCRATIZATION IN THE LATE TW'ENTIETH CENTURY (1991) [hereinafterTHE THIRD WAVE]; Gabriel A. Almond, ComparativePoliticalSystems, J. POLITICS, Aug. 1956, at391; Samuel P. Huntington, Democracy or the Long Haul,J. DEMOCRACY, Apr. 1996, at 3; SeymourMartin Lipset, Some Social Requisites of Democracy: Economic Development and PoliticalLegitimacy, 52AM . POL. SC. REv. 69 (1958); Seymour Martin Lipser, The Social Requisites ofDemocracyRevisited,59 Aas. Soc. REv. 1, 7 (1994).

60. Civic culture is defined as "a pluralistic culture based on communication and persuasion,a culture of consensus and diversity, a culture that permitted change but moderated it." ALMOND& VERBA, supra note 57, at 5-6.61. Id. Robert Dahl refined these characteristics in his concept of "polyarchy," or a moderndynamic pluralist (MDP) society. DAHL, DEMOCRACY AND ITS CRITICS, supra note 59, at 223.See also DAHL, POLYARCHY, PARTICIPATION, AND OPPOSITION, supra note 59.

62. See ALMOND &VERBA, supra note 57, at 8, 13 .



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HarvardHuman RightsJournal / Vol. 11Comparative political scientists who focus on Asian area studies havealso come under the influence of the cultural prerequisites debate. 63

This risks the unintended consequence of fueling official excuses forfailure to institute democratic reform. Because autocratic Chinese gov-ernments have not welcomed sociological scrutiny, scholars have beenleft to compile and analyze the meager comparative data on the pres-ence of social and cultural requisites in ways that are often less thanconvincing.64Does the presence or absence of any cultural characteristics reallyjustify deferring reform? Those who argue that it does may be claimingthat Asian societies must somehow achieve a democratic culture with-out instituting democracy-a questionable proposition at best. China'sfirst historical attempt to promote democracy and human rights duringthe May Fourth Movement (1919) actually failed to work because itsproponents sought to generate, intellectually, a democratic culture inthe absence of real institutional reform. 65 A counter-example is evidentin Taiwan's more recent democratization. Taiwan lacked many of thefavorable attitudinal indicators at the time immediately prior to endingmartial law and initiating its transition to democracy, though it verylikely meets any such criteria less than a decade after institutionalreform.66 There seems little likelihood of change in democratic valuesand attitudes without actual institution of democracy.The tautological character of the cultural prerequisites argument hasnot escaped academic attention. 67 Academics have discussed issues suchas whether a society could develop the requisite cultural attitudeswithout democratic institutions in place; whether the "non-democraticcultures" would be subject to permanent authoritarian rule; and whetherculture was an excuse for failing to institute democratic reform. 68 Thisdiscussion has brought about the realization that a robust democratic

63. See Siu-KAiAU & HsIN-CHI KuAN, HE ETHos OF TH E HONG KONG CHINESE (1988);Andrew Nathan & Tianjian Shi, CulturalRequisitesfor Democracy in China: Findings rom a Surzy,DAEDALUS, Spring 1993, at 95. The institutionalist move has also been apparent here, as AndrewNathan is among those who have shifted attention to institutional and constitutional studies. SeeNATHAN, HINESE DEMOCRACY, supra note 42 ; Andrew J. Nathan, China's ConstitutionalistOption,J. DEmocR cy, Oct. 1996, at 43; Andrew J. Nathan & Kellee S. Tsai, Functionalism: A NewInstitutionalistRestatement, CHINA J., July 1995, at 157.64. Se e Elizabeth Perry, Introduction: Chinese Political Culture Revisited, in POPULAR PROTEST &

POLITICAL CULTURE IN CHINA 1, 2 (Elizabeth Perry & Jeffrey Wasserstrom eds., 1994).65. Se e SVENSSON, supra note 36, at 193. It is interesting that 70 years later, students inliananmen Square this time were faulted for their lack of democratic spirit, again in the absenceof real institutional reform.66. Se e Yun-Han Chu, Taiwan's Unique Challenges, J. DEMOCRACY, July 1996, at 69; Wu,supra note 17, at 161-67.

67. See, eg., Carol Pareman, The Civic Culture: A PhilosophicalCritique,in TH E Civic CULTUREREVISITED 57, at 66-68 (Gabriel A. Almond & Sidney Verba eds., 1980).

68. See id. at 67-68; see generallyROBERT D. PUTNAM, MAKING DEMalOcRAcY WORK, CIWCR'ADITIONS IN MODERN ITALY (1993).



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1998 / Constitutionalism andAsian Valuesculture is not likely to appear without functioning democratic institu-tions and that democracies arise in the absence of the expected culturalprofile. 69 One has to search beyond the question of whether civicculture is present or not fo r the reasons that people advocate democracyor the overthrow of autocratic regimes. The subjective choice of de-mocracy will likely stem from substantive factors such as class, religion,oppression, race, imperialism, events, and opportunities, but especiallyfrom simple human agency and ideas.70Academic recognition of the tautological nature of the culturalprerequisites argument has created a paradigmatic shift which hasoccurred in two directions. First, some scholars have focused more onthe notion of "consolidation" of democracy; 71 second, academics havedeveloped a renewed interest in institutions. A shift to consolidationimplies a shift to post-requisites-that is identifying the factors thatare necessary to sustain democracy. This move is presaged by the simplefact that, with or without cultural prerequisites, some democracieswere then in place and were concerned with fostering the institutionsand commitments important to sustaining democracy-a concern thatimplicates constitutionalism.Even scholars remaining within the cultural prerequisites paradigmhave begun to recognize the importance of institutions and humanagency. Searching for a supportive culture, scholars have stressed thepresence of key institutions such as a free press, free speech, the free

69. See Wu and related discussion, supranote 17.70. Among democratic theorists, Adam Przeworski, in particular, appears to emphasize therole of self-interested spontaneous actions and human agency. ADAM PRZEWORSKI, DEMOCRACYAND THE MARKET: POLITIcAL AND ECONOMIC REFORMS IN EASTERN EUROPE AND LATINAMERIcA 10-14 (1991).

71. Juan Linz and Alfred Stepan define consolidation as having three aspects:Behaviorally, a democratic regime in a territory is consolidated when no significantnational, social, economic, political, or institutional actors spend significant resourcesattempting their objectives by creating a nondemocratic regime or turning to violenceor foreign intervention to secede from the state.Arritudinally, a democratic regime is consolidated when a strong majority of publicopinion holds the belief that democratic procedures and institutions are the mostappropriate to govern collective life in a society such as theirs and when the supportfor antisysrem alternatives is quite small or more or less isolated from the pro-demo-cratic forces.Constitutionally, a democratic regime is consolidated when governmental and nongov-ernmental forces alike, throughout the territory of the state, become subjected to, andhabituated to, the resolution of conflict within the specific laws, procedures, andinstitutions sanctioned by the new democratic process.

JUAN J. iuNz &ALFRED STEPAN, PROBLEMS OF DEMocRATIc TRANSITION AND CONSOLIDATION,SOUTHERN EUROPE, SOUTH AMERICA, AND POST-COMMUNIST EUROPE 6 (1996). See also HUNT-INGTON, THE THIRD WAVE, supra note 59, at 208-79; JUAN J. LNz, TH E BREAKDOWN OFDEMOCRATIC REGIMES, CRISIS, BREAKDOWN AND REEQUILIBRATION (1978); PRZEWORSKI, supranote 70, at 51-54.



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HamardHuman RightsJournal / Vol. 11practice of religion, the right to form opposition parties, the rule oflaw, human rights, and the like.7 2 Human agency, under the rubric of"crafting," has also been recognized as important, thus suggesting thatsocieties are not mere victims of their cultural condition."3 Yet, anelement of cultural determinism and, ultimately, support for authori-tarianism has remained. Samuel Huntington's arguments about stereo-typical Asian values and his refinements suggesting a "clash of civili-zations" sustain the concern that certain societies can be judged asculturally unsuited for democracy and human rights.7 4 This assertioncan be used by some authoritarian East Asian leaders as an excuse todefer democratic and human rights reform.

This analysis highlights the ways in which arguments about civicculture are used to withhold democracy and, ultimately, human rights."5If we conclude that the type of political culture associated with demo-cratic institutions is as much an outcome as a cause of democracy, thenthe need to proceed with democratic institutional reform is apparent.The types of culture studies discussed above may only reveal theconvergence of the cultural characteristics associated with democracyin established democracies, not necessarily the conditions for newdemocracies. It is puzzling to argue that we should avoid democracyand human rights because of the alleged incongruency between theexisting political culture and democratic structure and, rather, embraceauthoritarianism.7 6

B. CommunityA more purposeful cultural relativist tangent, directly challenging

universalism, and thus liberal constitutionalism, stresses the impor-

72. See Lipset, The Social Requisites of Democracy Revisited, supra note 59, at 3 (citing Almond,ComparativePoliticalSystems, supra note 59 and updating Lipset, Some SocialRequsies ofDcmocracy.EconomicDevdopment andPoliticalLegitimacy, supra note 59). See also Huntington, Dcmocracyfor thoLong Haul,supra note 59, at 12; LINZ & STEPAN, upra note 71, at 15.73. Samuel Huntington notes the debate between those who argue that the movement towarddemocracy depends on the existence of particular cultural, economic and social preconditions andthose who see democracy as primarily the product of "crafting," by which he means "the productof political leaders who have the will and skill to bring it about." Huntington sees a role forboth. See HUNTINGTON, POLITICAL. ORDER IN CHANGING SocIETIEs, supra note 59; Huntington,Democracy for the Long Haul,supra note 59, at 4. Human agency is understood in this context assynonymous with crafting. See supra note 57.

74. See HUNTINGTOiNr, POLITCAL ORDER IN CHANGING SOCIETIES, supra note 59; Hunt-ington, Democracy for the Long Haul, supra note 59, at 4; Samuel P. Huntington, The Clash ofCivilizations, FOREIGN AFF.,Summer 1993, at 22; sapra text accompanying note 57.

75. See ALMOND &VERBA, supra note 57; Pateman supra note 67.76. For example, in East Asian countries, where stability and order areaid to be highly valued,

it can be argued that authoritarian regimes are ultimately much less stable. This is especially truewhen one considers the multitude ofproblems such regimes encounter, from leadership transitionsto failure to address the underlying causes of important social conflicts.



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1998 / ConstitutionalismandAsian Valuestance of community in constructing political values. Calls for partici-patory democracy often seek empowerment through community on thegrounds that a more atomized liberal democracy may be community-destroying and, ultimately, not democratic. 77 While the current Articlepromotes constitutionalism as a venue fo r political values discourse,some advocates see community as the best venue for this purpose. 78Although I believe their cultural relativist arguments fail, these argu-ments correctly highlight the need to ground any constitutionalistproject in the local community, what I refer to as constitutional indi-genization. This section is broken into three levels of analysis: roman-ticism, civic engagement, and communitarianism. These three commu-nity-based claims share a common concern for promoting the socialand political values of the group and a common worry about thepotential community-destroying qualities of liberal individualism.

The first community-based claim I consider is romanticism, or theidea that the traditional community harbors the salvation of civiliza-tion.79 Samuel Popkin describes the persistence of this romantic notionin the nineteenth century, quoting Le Thanh Khoi's description of theVietnamese village and Baron Haxthausen's description of the Russianmir, respectively, as "anchored to the soil at the dawn of history...behind its bamboo hedge, the anonymous and unseizable retreat wherethe national spirit is concentrated"80 and as "the bulwark that wouldsave Russia from the abhorrent changes being wrought in the West byindividualism and industrialization." 81 If life was so liberating in tra-ditional societies, one might question why enlightened thought heldsuch attraction. While traditional villages and their cultures certainlyharbor many values worth preserving, it is doubtful that they, in thepresent age, provide a sufficient alternative to the constitutional pro-tection of individual rights.

77. Se e Pateman, suipranote 67.78. In East Asia, Singapore and China have both adopted this argument. While Singaporepromotes a neo-conservaive form of communitarianism favoring the group over the individual,China promotes a socialist theory of human rights to the same end. I use the term "neo-conser-varive" here in relation to Singapore's claimed communitarianism to suggest an orientation thataims to preserve alleged existing values, but it is neither classic prudential conservarivism northe more contemporary communitarianism of the West. See generally CHOA, supra note 32; HUMANRIGHTS IN CHINA, supra note 11.

79. See, ag., Samuel Popkin, The PoliticalEconomy ofPeasantSociety, in RATONAL CHOICE 197,203-04 (Jon Elster ed., 1986).80. Id .81. Id. Popkin goes on to describe the Spanish pueblo and the French village, respectively, as"the great repository of the virtues of the race, the source from which everything that was sane

and healthy sprang" (quoting Gerald Brenan), "[securing] from the most remote times theenjoyment of liberty, equality and order, and as great a degree of happiness as is compatible withhuman destinies" (quoting Emile de Iavelye). Id.



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HarvardHuman RightsJournal/ VoL 11The romanticization of village life overlooks a great deal. First, itfails to note that life in the traditional village was often both socially

and economically oppressive and stifling-hardly the venue for libera-tion.82 Rather than threatening village life, the modern introductionof capitalism and markets often represented opportunities for villages. 83Former serfs tied to the land were relieved of their lives of drudgeryand afforded unimagined opportunities for social and economic mobil-ity, as well as the political citizenship and rights required for new formsof governance. 84 However, in economic terms, the conflict with lordand master was often replaced with equally intractable conflicts withcapitalist entrepreneurs. 8' But it appears that the industrial revolutionand the scientific age inevitably would have destroyed the traditionalvillage as a form of social and political organization and, along withit, the foris of cohesiveness and trust that village life could engender.Finally, this romanticization says very little about the real conditionsof industrialization, urbanization, and mass communications that to-day's communities face or the value concerns that these conditionsengender.

A second community-based claim addresses republican notions ofcivic virtue and focuses on the way in which strong civic traditionscontribute to the functioning of modern democracies. 86 Theories em-phasizing some form of civic virtue are not new and can be found asfar back as Plato's The Republic.87 In the modern period, Tocqueville'sideas of civic engagement refer us back to the 1830s when the villagewas the backbone of American political culture.88 Robert Putnamargues that citizens in a community with a strong tradition of civicengagement are more comfortable in carrying out their democraticcivic duties than more atomized members of communities that lacksuch tradition in modern contexts.8 9 In a landmark study comparingNorthern and Southern Italy, he found the North achieved greaterdemocratic success because it had a tradition of civic engagement.90

82. See DAHL, POLYARCHY, PARTICIPATION, AND OBsERvATIoN, supra note 59, at 219.83. See Popkin, supra note 79, at 205-06.84. See id. at 197-247.85. Perhaps the classic statement of this condition is contained in The Communist Manifesto,

written by Karl Marx and Friedrich Engels, published in London in 1848. See generally KARL.MARX & FRIEDRICH ENGELS, TH E Com UNSsT MAHIFESTO (A.J.P. Taylor ed., Penguin BooksInc. 1967).

86 . See generallyPuTAm, supra note 68; ALEXIS DE TOCQUEVILLE, DEmiOCRACY INAMISICA(Phillips Badley ed., Vintage Books 1990) (1835-1840).87. See PLATO, TH E REPUBLIC (Penguin Books 1955).88. Tocqueville describes an America made up of small towns with various civic organizations

and town meetings engaging the citizens in the processes of American democracy. TocQUEVILL11,supra note 86.

89. See generally PUTNAM, supra note 68.90. Putnam argues that citizens in a community with strong civic traditions--what he calls



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1998 / ConstitutionalismandAsian Values 127Networks of civic engagement that cut across social cleavages, Putnamargues, nourish wider cooperation and lead to the accumulation ofsocial capital, such as trust, norms, and networks. 91The serious difficulty,however, with Putnam's analysis is its strong deterministic path-de-pendent strain, suggesting that these Italian communities are victimsof history, such that attempts to institute democracy and human rightswould be futile.92

Others contend this idyllic vision of reliance on civic virtue isunrealistic. It is not the encouragement of virtue but the protection ofrights and the representation of interests that is essential to moderndemocratic societies. James Madison's constitutionalist arguments soughtto make democracy safe for the "unvirtuous" by securing interestrepresentation through democracy, individual human rights, and theenforcement mechanisms embodied in the rule of law.93

The current debate between Vaclav Havel and Vaclav Klaus in theCzech Republic over the basic character of their democratic system isinstructive.94 While Havel, the anti-communist idealist, emphasizescivic virtue, Klaus, the pragmatic post-communist politician, recog-nizes that, if reforms are to succeed, real interests must be repre-sented.95 From Asia, Aung San Suu Kyi cautions that the atomization-related problems of modern America should not be blamed on rightsand liberty, but rather on modern materialism, for which constitutionaldemocracy, with its demand for a degree of civic engagement, may bea partial cure. 96 In addition to modern materialism, I would addmigration, globalization of labor markets and trade, and weaponsproliferation as further sources of disorder. If constitutionalists areright, the values of civic virtue have to be constructed through themodern political debate. These are, in my view, values of participation,

(following Toqueville) "civic engagement"--are more comfortable experimenting with liberalpolicies than more atomized members of communities in transition. He found these conditionsin the North of Italy but no t in the South: "Some regions of Italy, we discover, are blessed withvibrant networks and norms of civic engagement, while others are cursed with vertically struc-tured polities, a social life of fragmentation and isolation and a culture of distrust." PuTNAm,supra note 68, at 15, 163-85. A problem with this analysis may be its excessive reliance on civicvirtue and it path-dependent quality, making communities slaves of hundreds of years of history,with little they can do about it. Their ability to succeed at democratization and rights protectiondepends on the path they have already traveled.

91. See id. at 67.92. Traditions of civic engagement that had evolved in villages over centuries were judged

determinative of success in employing modem democratic institutions. See id. at 179.93. See id. at 87.94. Aleksander Smolar, From Opposition to Atomization J. DEOCNPAcy, Jan. 1996, at 37.95. Id. As a new democracy struggling with the contending problems of democratic reformand economic development, the Czech Republic bears comparison with several new democraciesin East Asia.96. Aung San Suu Kyi, Transcending the Clash of Cultures, Freedom, Development, and Human

Worth, J. DEiocRAcY, Apr. 1995, at 15 .



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HarvardHuman RightsJournal / VoL 11tolerance, openness, equal opportunity, and legal and political account-ability.

The final community-based claim is found where Western commu-nitarian ideals97 confront modern Asian communitarian reality. West-ern communitarians, who contend with the liberal values questionimplicit in the so-called liberal/communitarian debate, have come tosome degree of resolution on this question by acknowledging theimportance of the liberal values that sustain the discursive commu-nity.98 Meanwhile, in the East, communitarianism has taken a neo-con-servative turn.99 For example, in Singapore, communitarianism, aimedat some notion of common good or collective well-being, is used tojustify state intervention in all spheres of social life and a legal regimethat seriously violates individual rights and inhibits public discourse.100The government gains legitimacy from its economic success and mustwork continuously to ensure uniformly shared values among its peo-ple.101 Both community groups and the press are bound by a nationalinterest ideology.10 2 With such severe restrictions, the adequacy ofcommunity discourse is called into question. In this political context,communitarianism may often mean authoritarianism.

97. There is no agreement on the meaning of communitarianism; but, in simple terms, it canbe said to be characterized by an emphasis on the common good over individual rights andconsiderable emphasis on shared values of community and civic virtue. The debate betweencommunitarians, who emphasize the community, and liberals, who emphasize individual interestsor rights, has become a central debate in political philosophy. See C.E Delaney, Introductionto THELIBERALISM-COMMUNTARANISM DEBATE i, vii-viii (C.F. Delaney ed., 1994).

98. Some communitarians value community as a venue for discourse about basic values butwould reject hegemonic community values that would deny open discourse. In this regard, adegree of agreement has arisen among communitarians and liberals about the importance of sometraditionally liberal commitments to human rights. At the same time, some liberals have appreciatedthe importance of community, producing a degree of resolution of the so-called liberal/commu-nitarian debate. See Eliza Lee, Human Rights and Non-Western Values, in HUMAN RIGHTS ANDCHINESE VALuEs, LEGAL, PHILOSOPHICAL, AND POLITICAL PERSPECTIVES 72 (Michael C. Davis,ed., 1995); Thomas Moody, Some ComparisonsBetween Liberalism and EccentricCommunitarianism, nTHE LIEERALSM-COMMUNITAIANISM DEBATE 91 (C.E Delaney ed., 1994).

99. See CHUA, supranote 32; see also Daniel A. Bell, The East Asian Challenge to HumanRights:Reflections on and East West Dialogue, 18 Hum. RTS. Q. 641 (1996).100. See CHuA, supranote 32, at 187. Institutional highlights of "communitarian democracy"

in Singapore include: the National Press Act, subjecting the press to national interest require-ments; a government-sponsored press monopoly; the Newspaper and Printing Press Act, subject-ing the foreign press to sanctions if found to be engaging in domestic politics; one-partydomination; society registration legislation which restricts organizations to their declared func-tions; policies of affirmative co-optation of organizations; and the Internal Security Act, which isexcepted from judicial review and allows detention without trial. Nevertheless, the governmentallows universal suffrage and, to protect minority interest, delineates districts of three seats withtwo Chinese and one minority. The government is generally thought to be clean and effective.See id. at 107, 184-202.

101. See id. at 190.102. See id. at 196.



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1998 / ConstitutionalismandAsian ValuesThe neo-conservative Asian argument about community shows botha striking parallel with and a clear contradiction to the Western

communitarian argument. They both argue on behalf of alleged com-munity values but with opposite goals. Judging from practice, espe-cially in Singapore, fo r the Asian neo-conservative communitarian, thetraditional community is hierarchical and orderly, but not particularlyconcerned with vibrant social discourse. 10 3 The Western communi-tarian expects the community to generate a non-hegemonic socialdiscourse that will, to some extent, equalize and liberate members incommunity.14 Since traditional communities are rarely either liberat-ing or egalitarian, communitarians are faced with a dilemma that keepsthem inspirationally linked to certain liberal values, such as freedomof expression, equality, and democracy and to the institutions neededto secure these values. 10 5 The Asian neo-conservatives face a similarproblem in that their communities are rarely completely traditionaland are increasingly attracted to liberal values.

C. Taking Institutions SeriouslyIn recent years, there has been some dissatisfaction with the mod-

ernization and developmental paradigms, whether they are based oncultural or economic developmental prerequisites. This dissatisfactionhas led to renewed interest in institutions. New institutionalists areless sanguine about what institutions can accomplish than the earliergeneration of institutionalists. 10 6 Political scientists define institutionsas "the rules, procedures or norms closely associated with organizations'relations"; they may offer "institutional explanations" as an alternativeto "cultural explanations." 10 7 Historical institutionalism focuses on thehistorical evolution of institutions in interaction with each other andon the ways in which institutions serve as a constraint on individu-als.' 08

103. See generally id. at 184-202.104. See Delaney, supranote 97, at vii-viii.105. The above noted attempts to institute allegedly communitarian policies in Singapore,

these changes have not addressed the concerns ofWestern communitarianism, which has primarilybeen a critique of the failings of liberalism. Western communitarian concern with preserving avibrant community of discourse has tended toward a resolution of the liberal-communitariandebate that preserves those basic tenants of liberalism that engender empowerment and discourse.Se e generally Delaney, supra note 97. r

106. There is no agreement on how to delineate the various categories of new institutionalismbut, for present purposes, it is sufficient to note that in addition to historical and rational choiceinstitutionalism in political science, there is new institutionalism in economics. Hall & Taylor,supra note 54, at 8.

107. See id. at 12.108. Se id. at 2-4.



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HarvardHuman RightsJournal / Vol 11My present purpose is not to embrace any particular theory of new

institutionalism, but instead to highlight a shift in emphasis back torecognizing the importance of institutions. The move back to institu-tions was inspired, in part, by the belief that cultural determinacyarguments are often too good at explaining what is allegedly notpossible rather than what is possible for a society. 10 9 Of course, ifinstitutions are to work at all, they must have some degree of path-dependence. Nevertheless, in taking human agency seriously, one mustrecognize that institutions represent both an opportunity for craftingpolitical solutions and a constraint on what politics can accomplish. 10

Unfortunately, an overemphasis on the constraints imposed by insti-tutions characterizes the literature in this field. Putnam's analysis ofItaly is emblematic, offering the impression that Southern Italians,without a tradition of civic culture, are essentially slaves of their historyand are doomed to fail in their attempts to develop modern democraticinstitutions."' Stephen Krasner offers a middle ground with his con-cept of "punctuated equilibrium," which recognizes periods of crisisduring which human agency is active and subsequent long periods ofstasis when path-dependence is a way of life.1 12

In this respect, Krasner may underestimate institutional processesthat contribute to change. Certainly, major economic changes like theindustrial revolution or, even, the communications revolution create ahigh degree of path-dependence, but there are a myriad of important,even fundamental, decisions respecting social values and constitutionalprinciples that are altered or reversed incrementally over time withouta revolutionary break from the past. In America, the civil rightsmovement of the 1960s and 1970s may have produced such change;in East Asia, the campaigns against corruption and cronyism in the1990s may produce fundamental changes in the governments of Japanand South Korea while leaving the political institutions intact or only

109. Kathleen Thelen & Sven Steinmo, Historical Institutionalism in Comparative Politics, inSTRUCTURING POLITICS, HISTORICAL INSTITUTIONALISM IN COMPARATIVE ANALYSIS 1, 14 (SvenSteinmo et al. eds., 1992).110. Se e id. at 10-11, 14; Jon Elster, Forces and Mechanisms in the Consitution-Making Procas,45 DUKE L.J. 364 (1995).

111. See PuTNAm, supra note 68, at 179.112. Krasner's "punctuated equilibrium" offers the possibility of individual agency, as opposed

to structural determinacy or path dependency, might actually work:A basic analytic distinction must be made between periods of institution creation andperiods of institutional stasis .... Once institutions are in place they can assume alife of their own, extracting societal resources, socializing individuals, and even alteringthe basic nature of civil society itself .... Once a critical choice has been made itcannot be taken back ....

Stephen D. Krasner, Approaches to the State, Alternative Conceptions and HistoricalDynamics, CoNp.POL., January 1984, at 240. This argument fails to acknowledge the dynamic role of institutionsduring normal politics, as is discussed in relation to constitutionalism below.



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1998 / Constitutionalism andAsian Valuesslightly changed. 113 In both cases, institutions may be the vehicle forchange.

If the resurgent attention to institutions has given us renewedconfidence in our ability to design and deploy institutions to shape ourpolitical culture and bring about political and economic development,our efforts certainly cannot be of the sanguine 1950s modernizationvariety. The intervening debates have highlighted the difficulties of themodernization project. Scholars and officials are now more aware of thedangers inherent in policies that emphasize excessive control and plan-ning with respect to their objectives. 114 Can liberal constitutionalism,for countries whose current mass culture already cuts them off fromtraditional community alternatives, operate to achieve a degree of civicengagement and, ultimately, social capital in the form of trust in theinstitutions of government? The relevant search would be for formalinstitutional architecture that is appropriately responsive to a worldcharacterized by industrialization, sophisticated mass communications,and urbanization-a world whose problems are little connected withthe traditional past. As is developed below, constitutionalism embodiesthe search for such architecture.

IV. CONSTITUTIONALISMIn considering the debate over constitutional democracy, it is not

enough to contest the claims that democracy does not fit Asian culturalvalues or Asia's development agenda. It is also important to considerwhat constitutionalism or liberal constitutional democracy does fo r acountry seeking to address the types of political values issues notedabove. The discussion that follows considers, respectively: (1) the em-powering role of constitutionalism; (2) the constitutional process, bothat founding and in practice; and (3) the indigenization of constitutionalarchitecture in the Asian cultural and political developmental context.In a cross-disciplinary analysis, 115 both the role of established consti-tutions and constitutions in transition are considered. It is argued that,

113. Bruce Ackerman discusses the constitutional politics of the U.S. civil rights movement.BRUCE AcKERmAN, 1 WE ThE PEOPLE 108-10 (1991). For discussion of the corruption debatein East Asia, see text accompanying supranote 18.

114. See FRIEDRICH A. HAYEK, THE ROAD To SERFDOM (1944).115. In considering constitutionalism in the developing world, and in Asia in particular, I

find the academic division of labor problematic. Historically, legal constitutional theorists havebeen successful at offering rich description and exploring the theoretical underlay of constitution-alism in the West but have said very little about how to deploy the optimal institutionalcomponents successfully in the developmental context. Political scientists, on the other hand,have given considerable attention to the questions discussed above surrounding the implementa-tion of reforms, especially markerization and democratization, but little attention to formalinstitutional concerns and the particulars of institutional dynamics.



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HarvardHuman Rights Journal / Vol. 11with respect to politics, liberal constitutionalism may ultimately pro-vide the venue fo r the contemporary Asian values debate.

A. EmpowermentEmpowerment, in a constitutional sense, requires taking a constitu-

tion's positive function seriously and actually putting it in place. Thefirst of these concerns focuses on the enfranchising discursive elementof constitutionalism. Constitutionalism is best understood as a dynamicforum for ongoing debate, exercise of choice and processes of meaning.This suggests a basis fo r the current claim that constitutional democ-racy can supply the venue fo r political and cultural discourse.11 6 Aswith institutionalism, however, the language of constitutionalism hastoo often emphasized its role as a constraint, employing words like"checking, restraining or blocking." 117 This language evokes an imageof the people in democracies acting under self-imposed constraint. 1"

In new democracies with their weak constitutional commitments,despite this language of constraint, the feeling on the part of peoples'elected representatives that they have the mandate to "get the jobdone" often means that there are no actual constraints on power. 19 InEast Asia, evidence of elected leaders using their mandate to pervertthe constitutional order was especially apparent in the early SouthKorean experiments with democracy and in the Philipines under Mar-cos. 120 Constitutionalists often do not appreciate the enfranchising orenabling aspect of liberal constitutionalism as a venue constructive of

116. Constitutional theory is particularly attentive to the interactive role of political institu-tions in social and political value formation. See, eg., RAOUL BERGER, GOVERNMENT BY JUDICI-ARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (1977); JOHN H. ELY, DEMOCRACYAND DisTRuST: A THEORY OF JUDICIAL RavEiw (1980). Discursive and interpretive approachesto law and culture run the spectrum from realism to post-modernism. The present essay aims tobe eclectic in this regard.117. See Stephen Holmes, Precommitmentand the Paradox ofDemocracy, in CONSTITUTIONAIwSMAND DEMOCRACY 195, 226 (Jon Elster & Rune Slagstad eds., 1988).

118. Se e LiNz & STEPAN, supra note 71, at 19; see generally Jon Elster, Ulysses Revisited,Precommirment and Constitutionalism (1996) (unpublished manuscript) (on file with the HarvardHuman Rights Journal).

119. Guillermo O'Donnell worries that elections without other horizontal institutions maylead toa ceasarsitic, plebiscitarian executive that once elected sees itself as empowered togovern the country as it deems fit... C]ongress, the judiciary, and various stateagencies of control are seen as hindrances placed in the way of the proper discharge of

the tasks that the voters have delegated to the executive .... This ... renders theboundary between public and private even more tenuous, and creates enormous temp-tations for corruption.

Guillermo O'Donnell, IllusionsAbout Consolidation,J. DEMOCRACY, Apr. 1996, at 44-45.120. In the Philippines, Ferdinand Marcos rather freely used martial law as a tool of consti-tutional override. It is a stunning development in the Philippines that post-Marcos leaders have

respected the courts' interpretation of the constitution. See Tate, The Courts and he Breakdou andRe-creation ofPhilippineDemocracy: Evidence rom the Supreme Court'sAgenda, supra note 21; Tate, The



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1998 / ConstitutionalismandAsian Valuesbasic political values. The institutions of constitutional governmentwork to engage the public in a democratic conversation and foster thearticulation of popular will and popular values. A commitment toconstitutional processes is a commitment to the dynamics of popularempowerment. Successifilly initiating this commitment is a demand-ing challenge fo r constitutionalists.

Constitutionalists have had a pressing need to consider, in the wordsof Giovanni Sartori, how well constitutional democracy "travels.' '1 21When it comes to getting the constitution in place, constitutionalistsmay seek to distinguish the rule of law 122 elements from the majori-tarian elements of democracy. Sartori argues that demo-protection,which is "protection from tyranny" or "liberal constitutionalism," trav-els better than demo-power, or "the implementation of popular rule."'123His point appears to be that the elements of constitutional constraint 124will easily meet with popular favor and could possibly be less disrup-tive than trying to institute democracy under unfavorable developmen-tal or other historical conditions, where existing power or wealthholders are threatened. 125 The difficulty with this point is that authori-tarian regimes rarely respect constitutional constraints.

In light of the positive engendering force of constitutionalism, it isquestionable whether constitutionalists will make progress if they de-tach the popular power component from the rule of law. A high degreeof openness and participation ultimately may be essential to assuringdemo-protection. Also, a "polyarchy" without a commitment to con-stitutional requirements may lead to particularism, clientelism 126 andwhat Guillermo O'Donnell calls a "caesaristic, plebiscitarian execu-Judicializationof Politicsin the Philippinesand SoutheastAsia, supra note 17. For a discussion of theSouth Korean example, see Youm, supra note 17.

121. See Giovanni Sartori, How FarCan Free Government Travel?, J. DEMOCRACY, July 1995,at 101.122. The rule of law in liberal theory encompasses notions of legality, requiring that govern-ment be conducted according to law and encompasses both the classic notion that everyone isequal before the law and the requirement that no one can be punished except for a distinct breachof the law established in the ordinary manner. See generally ROGERS M. SMITH, LIBERALISM ANDAMRRICAN CONSTITUTIONAL LAW (1985). In a constitutional sense, this would include the notionthat the constitution is the supreme law and is enforced through a reliable system of judicialreview.

123. See id. at 102.124. Sartori notes that, because "nobody wants to be imprisoned, tortured or killed[,]"

constitutional constraints that protect from such abuses would presumably be popular. See id. at103.125. Se e id. at 102-10.126. In this context, clientelism would refer to excessive reliance on patron-client relationships

in conducting public affairs, possibly leading to cronyism and corruption. In the East Asiancontext, the risk of this is great-for instance, China and Japan are noted for a tradition of relianceon particularistic relationships. See generallyCHIE NAKANE, JAPANESE SocIETY 1-103 (1970);Ambrose Yeo-chi King, Kuan-hsi and Network Building: A Sociological Interpretation, DABDALUS,Spring 1991, at 63.



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HarvardHuman RightsJournal/ Vol. 11tive," 127which certainly are threats to continued democracy and devel-opment.

B. The ConstitutionalProcessIt is in its processes that the empowering components of constitu-tionalism come to life. Unfortunately, constitutionalism generally ispresented as simply a guarantor of human rights and democratic gov-ernment.128 Meanwhile, the active role of constitutional institutions inthe discursive processes of self-government is not sufficiently appreci-ated in democratic theory. At the same time, formal constitutionalinstitutions are of little use as guarantors in a context in which leadersin power have little inclination to accept constitutional constraints.Rather than causing despair, this should encourage us to focus ourefforts on the engendering or enabling side of the constitutional equa-tion. At founding, interest in constitution-making is usually, thoughnot always, highly related to the frequent concurrence of crises. If, onsuch occasion, constitutionalism is openly accepted and encouraged asthe venue for political choice, rather than merely as a constraint, theensuing dialogue within this venue may engender respect for its insti-tutional constraints. The discussion that follows considers first, thedynamic processes of creation or founding and then, the processes ofon-going constitutional practice.The processes of initiating or drafting a constitution have not beenaddressed frequently on a general level. Discussion here focuses onwritten liberal constitutions, setting aside the subjects of both top-down authoritarian constitutions and so-called unwritten constitutions,as in the United Kingdom. Democratic constitutions are usually draftedby a constitutional assembly, often an elected representative body. JonElster describes it as an arena of popular consensus-building and deci-sion-making under constraint. 29 The constitutional assembly usuallystarts with a mandate and, ultimately, must satisfy an approving con-stituency, or what Elster calls respectively the "upstream" and "down-

127. O'Donnell uses the term "plebiscitarian" to refer to the fact that the leader is elected butemphasizes in this description the presence of elected leaders who use their mandate to ignoreconstitutional requirements. O'Donnell, supra note 119, at 44. The above noted examples fromSouth Korea and the Philippines are illustrative of this. See supra text accompanying note 120.Some scholars have recently advocated what they call an illiberal democracy as more suitable toEast Asian societies. See DANIEL A.

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