23 - Convergence and Divergence in Public Law

Summary

With the advent of globalisation and the ubiquity of modern technology, the world has become increasingly interdependent, and a seamless transnational flow of commodities and capital is gradually erasing national boundaries. Constitutional ideas too are not immune from this globalizing force. Mark Tushnet has projected that constitutional systems all over the world will ‘inevitably’ converge ‘in their structures and in their protections of fundamental human rights’. There are multiple pathways to such constitutional convergence. The changes can arise exogenously, for example when new constitutions are imposed by foreign powers on domestic states, or when countries are coerced into accepting constitutional change in exchange for economic or military aid. Other constitutional changes can occur endogenously, for example the domestic legislature relies on foreign materials to amend its constitution, or domestic judges incorporate comparative legal materials when interpreting their local constitutions. This chapter focuses on Asian developments. Specially, it seeks to explain why Taiwan and South Korea – two liberal democracies – are converging with the West on constitutional jurisprudence, while authoritarian states like China and Singapore – deeply suspicious of Western values – remain outliers and have diverged from this cosmopolitan constitutional project.