New Book edited by Professor David Law: Constitutionalism in Context (Cambridge University Press)

Constitutionalism in Context
Edited by David Law, Honorary Professor
Cambridge University Press

Published in February 2022

Description: With its emphasis on emerging and cutting-edge debates in the study of comparative constitutional law and politics, its suitability for both research and teaching use, and its distinguished and diverse cast of contributors, this handbook is a must-have for scholars and instructors alike. This versatile volume combines the depth and rigor of a scholarly reference work with features for teaching in law and social science courses. Its interdisciplinary case-study approach provides political and historical as well as legal context: each modular chapter offers an overview of a topic and a jurisdiction, followed by a case study that simultaneously contextualizes both. Its forward-looking and highly diverse selection of topics and jurisdictions fills gaps in the literature on the Global South as well as the West. A timely section on challenges to liberal constitutional democracy addresses pressing concerns about democratic backsliding and illiberal and/or authoritarian regimes.

David Law Featured on The Pulse on the US Presidential Election 2020 (RTHK TV)

"US Election Special III: Election results update, Chinese Americans' voters & discussion"

The Pulse: RTHK

6 November 2020

Sir YK Pao Professor, David Law, and City University's Sean Kenji Starrs, joined host, Stephen Vines, to discuss the US elections on The Pulse (RTHK) on Friday, 6 November 2020.  The panel discussed the preliminary results from the election count, the design of the US electoral system, the thinking of the electorate, the implications of a Biden presidency for international relations, and lessons for Hong Kong and Mainland China.  Click here to watch the episode.

HKU Law Faculty Perspectives on Separation of Powers in Hong Kong

"Explainer: Understanding Hong Kong’s debate around the separation of powers and an executive-led system"
Rhoda Kwan

Hong Kong Free Press 
26 September 2020

Chief Executive Carrie Lam and her administration insist that Hong Kong has an “executive-led” system of government, with no formal separation of powers between the executive, the judiciary and the legislature. This seems directly to contradict statements by successive chief justices about guarantees of judicial independence under the doctrine of separate powers.

     The issue at the crux of the debate is whether Hong Kong’s system is founded on a common law principle which provides safeguards against the abuse of power. Given the uncertainties surrounding the national security law, there are concerns that Lam’s administration is weakening the checks and balances that guarantee judicial independence and the rule of law...

What legal scholars say

Albert Chen, a professor of constitutional law, told HKFP that the debate was merely an issue of interpretation and description, deferring to the statements from Beijing as the appropriate description of the Hong Kong system.

“Hong Kong and Chinese government officials reject the [Chinese term for the separation of powers] mainly because it is considered to be inconsistent with the [Chinese term for an executive-led system], which they believe to be the accurate description of the nature of the HKSAR political system.”

     However, he said there is no inconsistency between the separation of powers and an executive-led system, and he does not think the government’s comments “will change the way in which courts apply the doctrine of separation of powers in the future.“

     Another constitutional law expert, Professor Johannes Chan, told HKFP it goes deeper than a matter of description:

“It is true that there is a different understanding between Hong Kong and the Mainland on separation of powers, but this is more than a matter of interpretation. The understanding will affect how one sees the development of the system.“

      He also raised concerns that the government interprets “executive-led” to mean that it can override the courts. “It begs the question of what is executive-led… if it means that the executive prevails over the judiciary or that the Chief Executive is above the law, that is something to be worried [about].” 

     Chan also said that the separation of powers does not touch on the question of sovereignty. “No one says that [the separation of powers] would allow Hong Kong to usurp power that is beyond its autonomy. For powers that are within its autonomy, there is nothing wrong about separation of powers among the three branches, in that each has its own constitutional role and there are checks and balances.“

“This has nothing to do with the sovereign power. Nor is it inconsistent with the power coming from the sovereign. But if the objection is that the sovereign has power over the judiciary and the judiciary is expected to be a compliant judiciary, that is of course not our understanding and contrary to what the Basic Law has provided for."

"What really is separation of powers?"

David Law

Citizen News 

Published in September 2020

(Editor's note: The following is an excerpt of written response by Professor David Law on recent remark by Chief Executive Carrie Lam, who rejected the notion of separation of powers...)

It does sound like Carrie Lam is deeply confused or deeply mistaken. The allocation of power between national and subnational governments is *not* the same as “separation of powers”. 

     "Separation of powers” traditionally refers to the separation of powers among the legislative, executive, and/or judicial branches. In this sense, the concept dates back to Montesquieu. A parliamentary system has only a bipartite (two-part) separation of powers, between the legislative and executive (which are combined together, because the Prime Minister and Cabinet are executive but also sit in the legislature) and the judiciary, which is separate.

    In other words, separation of powers is a horizontal relationship, among equal institutions that perform different functions.

    But the relationship between Beijing and HKSAR is a vertical relationship, between a government that rules over broader territory, and a government that rules over narrower territory.

   That is about dividing power on the basis of geography (national vs subnational) and subject matter (e.g. education, environmental protection, immigration), not on the basis of functions (executive, legislative, judicial). So we do not call it “separation of powers”. Click here to read the full text. 

"Separation of Powers"

By Danny Gittings (PhD candidate)

It is one of the most often cited passages from Sir Anthony’s Mason’s extensive extra-judicial writings during his 18 years as a non-permanent judge on the Court of Final Appeal. An extract from a 2007 Hong Kong Law Journal article in which Mason cautioned that, while the Hong Kong Basic Law clearly “incorporates a separation of powers”, this is one of a number of areas where comparative law needs to be treated with great care[1]—since the exact form in which separation of powers applies will inevitably vary from one jurisdiction to another—was, for a decade after it was written, regularly cited in Hong Kong court judgments relating to the doctrine.[2]

     Last week that same passage, which had been previously cited by Ms Teresa Cheng in 2011 while sitting as a deputy High Court,[3] was used once again by the now Secretary for Justice in the very different context of a strongly worded newspaper article which argued that the “doctrine has no place in the political structure of Hong Kong” and used language such as “desperate” and “pathetic” to disparage those who disagree with her.[4] Mason’s specific caution, which only ever mentioned avoiding the direct incorporation of foreign case law in this area and never suggested such judgments could not be more selectively cited (as Cheng, in fact, did in her 2011 judgment)[5], was twisted into a much more general warning that the doctrine as a whole “must be treated with great care in its application in Hong Kong”, wording which seemed to imply that both Mason and the judges who cited this extract had doubts about whether the doctrine applies under the Hong Kong Basic Law at all.

     Since this extract from Mason’s 2007 article has been interpreted so greatly out of context, it might be helpful briefly to revisit the context in which it was originally written. Separation of powers is not, and has never been, since at least the 18th century, the pure system set out in the leading textbook definition by MJC Vile that Cheng’s newspaper article cited to buttress her argument that Hong Kong does not have any version of the doctrine at all. From reading that text, the Secretary would know that Vile only offered this pure definition as a “benchmark” against which to judge the less extreme versions of separation of powers practiced, in various forms, in most jurisdictions around the world.[6] That point was somewhat overlooked in a handful of early court judgments on separation of powers under the Hong Kong Basic Law, which came rather too close to adopting a pure version of the doctrine,[7] in one case citing from a formalist Australian precedent which Mason himself had previously criticised.[8]  Mason’s cautions on this point, which began a few months after one of these formalist judgments,[9] are best understood as friendly advice from someone experienced in ruling on separation of powers issues on the need for the SAR to carve out its own distinctive version of separation of powers, just as other jurisdictions the world over have done.

     That advice was heeded in subsequent judgments, and it must be open to doubt if Mason would feel any need to repeat the same caution today. During the second decade of the SAR, the courts carved out what Cheung J (as he then was) described as a “flexible and realistic, as opposed to an idealistic approach to the doctrine of separation of powers”[10], which recognises that the precise manner in which separation of powers is applied must be adapted to suit Hong Kong’s specific circumstances, just as it is in almost every jurisdiction in the world.[11] That means a court's application of a localised version of the doctrine is a far cry from the wholesale adoption of a western political system that appears to have been the real target of Deng Xiaoping’s 1987 warning which, although he only briefly mentioned separation of powers in passing (and inaccurately referred to the existence of an “American parliamentary system”) continues to be resurrected every time there is a fresh debate over the existence of separation of powers under the Hong Kong Basic Law.[12]

     Had the Secretary confined herself simply to pointing out Hong Kong’s system is far from a “pure” system of separation of powers—as one mainland scholar did last week[13]—she could have provided a useful contribution to the current debate over the issue. But an article that uses language like “desperate” and “pathetic” to disparage those who disagree with her hardly falls into that category.

Danny Gittings is completing a PhD on separation of powers at the Faculty of Law.

---

[1] Sir Anthony Mason, “The Place of Comparative Law in the Developing Jurisprudence on the Rule of Law and Human Rights in Hong Kong” (2007) 37 HKLJ 299, 305.

[2] Luk Ka Cheung v Market Misconduct Tribunal [2009] 1 HKLRD 114, 130, Re Easy Concepts International Holdings Ltd [2011] 6 HKC 391, 407, Koon Wing Yee v Financial Secretary [2013] 1 HKLRD 76, 93 and Chief Executive of the HKSAR v President of the Legislative Council [2016] 6 HKC 417, 434.

[3] Re Easy Concepts at 407.

[4] Teresa Cheng, “Why separation of powers has no place in Hong Kong’s political structure”, South China Morning Post, 9 Sept. 2020.

[5] Deputy High Court Judge Cheng’s judgment made reference to four Australian, and one US, decisions on the meaning of judicial power.

[6] MJC Vile, Constitutionalism and the Separation of Powers (Indianapolis: Liberty Fund, 2nd ed., 1998) at page 14.

[7] See Danny Gittings, “Separation of Powers in Hong Kong: Inching Towards a More Flexible Judicial Interpretation” (2019) 49(1) HKLJ  1, 11-13.

[8] Lau Kwok Fai v Secretary for Justice (unrep., HCAL 177 and 180/2002, [2003] HKEC 711) at para. 19, citing from R v Kirby, ex p Boilermaker’s Society of Australia (1956) 94 CLR 254, an Australian judgment which has been widely criticized, including in Sir Anthony Mason, “A New Perspective on Separation of Powers” (1996) 82 Canberra Bulletin of Public Administration 1, 5.

[9] In the inaugural lecture of the Common Law Lecture Series on 18 March 2005, three months after a highly formalist judgment in Re Chu Wai Ha [2005] 2 HKC 36. See Gittings (n7) at 14.

[10] Luk Ka Cheung at 134.

[11] Gittings (see n7) at 14-17

[12] Deng Xiaoping, “Speech at a Meeting with the Members of the Committee for Drafting the Basic Law of the Hong Kong Special Administrative Region”, 16 April 1987 in Deng Xiaoping on the Question of Hong Kong (Beijing: Foreign Languages Press, 1993) at page 55

[13] Zhu Zheng, “Separation of powers in Hong Kong: Yes or no?”, CGTN, 10 Sept. 2020.

New Issues - HKU Law's SSRN Legal Studies Research Paper Series (May - June 2020)

UNIVERSITY OF HONG KONG FACULTY OF LAW LEGAL STUDIES RESEARCH PAPER SERIES

Vol. 10, No. 7: June 1, 2020

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

'Deep ESG': A Holistic Validation Methodology for Asian Private Equity

Frederick J. Long, Olympus Capital Asia, Hong Kong

Syren Johnstone, Faculty of Law, University of Hong Kong, Asian Institute of International Financial Law

Yash Ghai and the Constitutional Experiment of 'One Country, Two Systems' in HongKong

Cora Chan, The University of Hong Kong - Faculty of Law

Albert H. Y. Chen, The University of Hong Kong - Faculty of Law

The Chinese Tradition of Administrative Law

Albert H. Y. Chen, The University of Hong Kong - Faculty of Law

Reflections on the Key Ingredients for Successful Reform of International CommercialArbitration in the Asia Pacific

Weixia Gu, University of Hong Kong - Faculty of Law

比較的レンズをとおした仲裁の考察：一般的原則と具体的争点 (Looking at Arbitration through A Comparative Lens: General Principles and Specific Issues)

Weixia Gu, University of Hong Kong - Faculty of Law

The European Union as Promoter of Equality in Asia: Beyond Economic Tools ofInfluence

Holning Lau, University of North Carolina School of Law

Kelley Loper, The University of Hong Kong - Faculty of Law, University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

UNIVERSITY OF HONG KONG FACULTY OF LAW LEGAL STUDIES RESEARCH PAPER SERIES

Vol. 10, No. 6: May 1 , 2020

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

Table of Contents

Constitutional Amendment Versus Constitutional Replacement: An Empirical Comparison

David S. Law, The University of Hong Kong - Faculty of Law, University of California, Irvine School of Law

Ryan Whalen, The University of Hong Kong - Faculty of Law

Digital Finance & The COVID-19 Crisis

Douglas W. Arner, The University of Hong Kong - Faculty of Law

Janos Nathan Barberis, The University of Hong Kong - Faculty of Law, CFTE - Centre for Finance Technology & Entrepreneurship

Julia Walker, Thomson Reuters - Refinitiv (formally Thomson Reuters)

Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law

Andrew M. Dahdal, Qatar University - College of Law

Dirk A. Zetzsche, Universite du Luxembourg - Faculty of Law, Economics and Finance, Heinrich Heine University Dusseldorf - Center for Business & Corporate Law (CBC)

Commercial Law Intersections

Giuliano G. Castellano, The University of Hong Kong, Faculty of Law

Andrea Tosato, University of Nottingham, School of Law, University of Pennsylvania Law School

David Law on 'One Country, One Systems' (Verfassungsblog Podcast)

Podcast: "Corona Constitutional #30: One Country, One System"

David Law

Verfassungsblog: On Matters Constitutional

27 May 2020

Description: For a quarter of a century, Hong Kong has been a liberal, constitutional island in an authoritarian state. The Chinese government is now planning a new security law that may not leave much of liberalism and fundamental rights protection. In a podcast interview with Max Steinbeis, DAVID LAW from the University of Hong Kong examines the constitutional background of this potentially oppressive development and addresses the urgent question: What options and responsibilities do scholars have when the going gets tough in the struggle for freedom?

David Law Participates in "Do We Need the Constitution?" Forum (Harper's Magazine)

Forum: "Constitution in Crisis: Has America’s founding document become the nation’s undoing?"

By Donna Edwards, Mary Anne Franks, David Law, Lawrence Lessig, Louis Michael Seidman

Harper's Magazine,
2019, October Issue

America’s Constitution was once celebrated as a radical and successful blueprint for democratic governance, a model for fledgling republics across the world. But decades of political gridlock, electoral corruption, and dysfunction in our system of government have forced scholars, activists, and citizens to question the document’s ability to address the thorniest issues of modern ­political life.Does the path out of our current era of stalemate, minority rule, and executive abuse require amending the Constitution? Do we need a new constitutional convention to rewrite the document and update it for the twenty-­first century? Should we abolish it entirely? This spring, Harper’s Magazine invited five lawmakers and scholars to New York University’s law school to consider the constitutional crisis of the twenty-­first century. The event was moderated by Rosa Brooks, a law professor at Georgetown and the author of How Everything Became War and the Military Became Everything: Tales from the Pentagon.

Participants

• Donna Edwards is a former member of the U.S. House of Representatives from Maryland and cosponsored a constitutional amendment to overturn Citizens United v. Federal Election Commission.
• Mary Anne Franks is a professor at the University of Miami School of Law, president of the Cyber Civil Rights Initiative, and the author of The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech.
• David Law is the Sir Y. K. Pao Chair in Public Law at the University of Hong Kong and the editor of the forthcoming Constitutionalism in Context.
• Lawrence Lessig is a professor at Harvard Law School and the author of America, Compromised and Republic, Lost: How Money Corrupts Congress—­and a Plan to Stop It
• Louis Michael Seidman is the Carmack Waterhouse Professor of Constitutional Law at the Georgetown University Law Center and the author of On Constitutional Disobedience.

Click here to read the full article.

David Law Interviewed on US-HK Relations (HKEJ)

Professor David Law, Sir YK Pao Professor of Public Law, was recently interviewed by the Hong Kong Economic Journal on United States-Hong Kong relations. The interview focused on the Hong Kong Policy Act, whether and how it might be amended, and more generally how Congress can influence US policy/treatment towards Hong Kong. In the interview, Law drew an analogy to the Taiwan Relations Act and discussed how the separation of powers system in the US gives Congress various options for influencing government policy short of amending legislation (e.g., influencing the State Department through the budget process).  To read the interview in Chinese, click here.

David Law Interviewed on Huawei’s Lawsuit Against the US Government (VoA)

"China's Huawei Sues US Government Over Ban"
Bill Ide & Joyce Huang
Voice of America
7 March 2019

Chinese tech giant Huawei has sued the U.S. government, arguing that legislation Congress passed last year restricting its business in the United States is "unconstitutional."

     The case, which analysts see more as a public relations move, is the latest in an intensifying effort by the telecommunications company to fight U.S. security concerns that Huawei argues are unfair and unfounded.

     In its lawsuit, Huawei argues that Section 889 of the National Defense Authorization Act violates the constitutional principles of separation of powers and due process. By singling out the company and punishing it without a trial, the company also argues that the law violates the Constitution's the bill of attainder clause...

     Legal analysts said it is unlikely the case will even go to trial. "As a PR matter, this is brilliant, the fact that we are just talking about this now, tells you this is a great PR move, as a legal matter, this is a reach, to put it charitably," said law professor David Law of Washington University in St. Louis and the University of Hong Kong. "I just can't see how a federal district judge in Texas is going to let this go to trial much less hand Huawei a win."...

New Issue: SSRN Legal Studies Research Paper Series (HKU)

UNIVERSITY OF HONG KONG FACULTY OF LAW LEGAL STUDIES RESEARCH PAPER SERIES

Vol. 9, No. 1: Feb 22, 2019

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

Table of Contents

1. Fintech for Financial Inclusion: A Framework for Digital Financial Transformation

Douglas W. Arner, The University of Hong Kong - Faculty of Law

Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law

Dirk A. Zetzsche, Universite du Luxembourg - Faculty of Law, Economics and Finance, Heinrich Heine University Dusseldorf - Center for Business & Corporate Law (CBC)

2. Imposed Constitutions and Romantic Constitutions

David S. Law, Washington University in St. Louis - School of Law, The University of Hong Kong - Faculty of Law, Washington University in St. Louis - Department of Political Science

3. Constitutional Dialects: The Language of Transnational Legal Orders

David S. Law, Washington University in St. Louis - School of Law, The University of Hong Kong - Faculty of Law, Washington University in St. Louis - Department of Political Science

David Law Interviewed on the Huawei Extradition Case and Canada-China Relations (CGTN, Arirang TV)

Sir YK Pao Professor

"The Point: Politics behind Canadian sentenced to death in China?"

The Point
CGTN
16 January 2019

Description: Tensions between Beijing and Ottawa escalated sharply on Monday after Canadian officials harshly criticized a ruling by a Chinese court, which sentenced Canadian Robert Lloyd Schellenberg to death for smuggling drugs and participating in organized international drug trafficking. Is Schellenberg’s case an arbitrary application of the death penalty? Professor David Law, Sir Y.K. Pao Chair in Public Law at the University of Hong Kong, Jiang Wenran, senior fellow from the School of Public Policy & Global Affairs at the University of British Columbia, Canada, and Xu Qinduo, senior fellow from Pangoal Institution, joined The Point.      

     David Law: 'China has a right as a sovereign nation to impose harsh sentences for drug trafficking. There is a global trend toward abolition of the death penalty but having said that, it's not alone, and having the death sentence for drug trafficking, and as you pointed out, there is a lot of drugs, this is not someone who accidentally forgot a marijuana cigarette in his pocket across the border...'

* * *

"Huawei's Role In Diplomatic Dispute Between China And Canada"

The Point: World Affairs, Ep 34
ARIRANG TV 

27 January 2019

David Law: 'Yes, so the death penalty for drug trafficking... is quite common in China the problem is we don't know exactly how common it is... but it's also known for not being transparent at all how many executions there are so if we look at just the death penalty decisions that are reported publicly there have been about 800 or so over the last five years and about a hundred and thirty of them involve drug trafficking so that's around one sixth of all executions in China are for the death penalty...'

* * *

"China takes coercive measures against 2 Canadians & Iran's perspective on Huawei arrest"
The Point
CGTN 

14 December 2018
Description: The controversial arrest of Huawei's CFO in Canada, her release on bail of C$10 million, not one but two Canadians being submitted to "coercive measures" in China, and fresh developments in the exhausting China-U.S. trade frictions – all the ingredients for a brewing diplomatic storm. The dynamics this week has elevated the complexity of the Huawei case. How do all these developments add up? Are these cases political or legal, and can the two be separated? And what does it all mean for Iran – the country wrapped up in the accusations against Huawei? Guests joining the debate are Professor Rick Dunham, co-director of the Global Business Journalism Program at Tsinghua University; from Hong Kong, Professor David Law, Sir Y.K. Pao Chair in Public Law at the University of Hong Kong; and from Tehran, Professor Mohammad Marandi from University of Tehran. 

    David Law: 'Well, what it means to breach Chinese security law is somewhat malleable and certainly the Chinese authorities have a lot of discretion, the penalties for that could be quite severe.  I would say the legal side is much clearer with respect to what Canadian and U.S. law is but there's a lot of discretion on the Chinese authorities here ...'

          

New Book: Constituciones Aparentes (David Law & Mila Versteeg)

Spanish monograph “Constituciones Aparentes”
(with Mila Versteeg) 

Congratulations to our Sir YK Pao Chair in Public Law Professor David Law who recently published his new Spanish monograph Constituciones Aparentes (with Mila Versteeg) by Universidad Externado de Colombia as part of their paperback public law series.

      Invited to deliver a lecture at the Constitutional Court of Colombia, Professor Law presented a keynote speech on 17 October 2018. After the lecture, a book launch was held, in which he happily found that the book sold out its initial print run on the day of the launch!

    The book was favourably reviewed by a Colombian newspaper, Asuntos Legales.  To benefit more students, Professor Pedro Pablo Vanegas led a reading group where the book was read and discussed.

     In support of the book launch, a podcast interview was conducted by Gonzalo Ramirez-Cleves, Deputy Justice of the Colombian Constitutional Court and adjunct professor at Universidad Externado.  To listen to the podcast, click here (Spanish with Prof Law in English).

David Law on The Global Language of Human Rights (Law & Ethics of Human Rights)

"The Global Language of Human Rights: A Computational Linguistic Analysis"

David Law

Law & Ethics of Human Rights
2018, Vol. 12, Issue 1

Abstract: Human rights discourse has been likened to a global lingua franca, and in more ways than one, the analogy seems apt. Human rights discourse is a language that is used by all yet belongs uniquely to no particular place. It crosses not only the borders between nation-states, but also the divide between national law and international law: it appears in national constitutions and international treaties alike. But is it possible to conceive of human rights as a global language or lingua franca not just in a figurative or metaphorical sense, but in a literal or linguistic sense as a legal dialect defined by distinctive patterns of word choice and usage? Does there exist a global language of human rights that transcends not only national borders, but also the divide between domestic and international law?

     Empirical analysis suggests that the answer is yes, but this global language comes in at least two variants or dialects. New techniques for performing automated content analysis enable us to analyze the bulk of all national constitutions over the last two centuries, together with the world’s leading regional and international human rights instruments, for patterns of linguistic similarity and to evaluate how much language, if any, they share in common. Specifically, we employ a technique known as topic modeling that disassembles texts into recurring verbal patterns. 

     The results highlight the existence of two species or dialects of rights talk — the universalist dialect and the positive-rights dialect — both of which are global in reach and rising in popularity. The universalist dialect is generic in content and draws heavily on the type of language found in international and regional human rights instruments. It appears in particularly large doses in the constitutions of transitional states, developing states, and states that have been heavily exposed to the influence of the international community. 

     The positive-rights dialect, by contrast, is characterized by its substantive emphasis on positive rights of a social or economic variety, and by its prevalence in lengthier constitutions and constitutions from outside the common law world, especially those of the Spanish-speaking world. Both dialects of rights talk are truly transnational, in the sense that they appear simultaneously in national, regional, and international legal instruments and transcend the distinction between domestic and international law. Their existence attests to the blurring of the boundary between constitutional law and international law.  Click here to download the paper.

David Law and Tom Ginsburg on Constitutional Drafting in Latin America (new book chapter)

"Constitutional drafting in Latin America: a quantitative perspective"
David Law and Tom Ginsburg
in Colin Crawford and Daniel Bonilla Maldonado (ed.),  Constitutionalism in 
the Americas, (Edward Elgar, 2018), pp. 217-239

Introduction: Generalizations about the practice of constitutional drafting within a region as diverse as Latin America are bound to be inherently imprecise. A single region can be home to considerable constitutional heterogeneity.1 It is also clear, however, that there exist geographical and regional patterns in the adoption of formal legal rules.2 Distinctive regional characteristics can endure in the face of globalization for a multitude of reasons. In the case of Latin America, for example, they may be borne of historical, religious, linguistic, and geographical ties, or they may reflect the 

existence of shared concerns and experiences, such as American hegemony or a legacy of strongman rule.

     This chapter offers an empirical overview of constitutional drafting patterns and trends in Latin America over the last 60 years. We use various quantitative measures and indices of constitutional content to contrast Latin America with other regions and shed light on whether and in what ways constitutional drafters in Latin America have responded to frequent concerns such as excessive American influence, overconcentration of executive power, and human rights abuses.
     Section II examines the extent to which Latin American countries continue to use the U.S. Constitution as a model for their own constitutions. In both scope and substance, Latin American constitutions are becoming increasingly dissimilar to the U.S. Constitution over time. Indeed, not only has Latin America become increasingly divergent from the model of the U.S. Constitution, but it has become more divergent than the rest of the world.

     Section III compares constitutions in Latin America with those of other regions along a number of substantive dimensions. Relative to other regions, constitutional drafting in Latin America is characterized by a stingy approach to executive power and a generous approach to the protection of rights. Latin America’s combination of extensive de jure rights, on the one hand, and a long history of autocratic leaders and human rights abuses, on the other, is a reminder that governments do not always deliver in practice what they promise on paper. Prior work suggests that levels of actual respect for rights have improved over the last two decades, with the result that the gap between the promise and the reality of Latin American constitutionalism may be narrowing.3 As interesting as that line of research happens to be, however, this chapter focuses exclusively on how constitutions are drafted, rather than how they are interpreted or implemented. Accordingly, we deliberately limit our analysis to the text of the constitutions themselves. Our findings suggest that constitutional drafting is characterized to some degree by variation along regional lines, and that there is at least some substance to the notion of a Latin American approach to constitutional drafting...

New Issues: SSRN Legal Studies Research Paper Series (HKU)

UNIVERSITY OF HONG KONG FACULTY OF LAW LEGAL STUDIES RESEARCH PAPER SERIES

Vol. 8, No. 3: Mar 14, 2018
Vol. 8, No. 4: Arp 20, 2018

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

Vol. 8 No. 3: Mar 14, 2018

1. Legalizing Politics: An Evaluation of Hong Kong's Recent Attempt at Democratization

Cora Chan, The University of Hong Kong - Faculty of Law

2. Problems with Wednesbury Unreasonableness in Contract Law: Lessons from Public Law

Ernest Lim, National University of Singapore (NUS) - Faculty of Law

Cora Chan, The University of Hong Kong - Faculty of Law

3. Priority Queuing on the Docket: Universality of Judicial Dispute Resolution Timing

Satyam Mukherjee, Northwestern University

Ryan Whalen, The University of Hong Kong - Faculty of Law

4. A Consumer Behavioral Approach to Resale Price Maintenance

Thomas K. Cheng, The University of Hong Kong - Faculty of Law

5. Rights-Weakening Federalism

Shitong Qiao, The University of Hong Kong - Faculty of Law

6. Strategic Comity

Angela Huyue Zhang, The University of Hong Kong - Faculty of Law, King's College London

Vol. 8 No. 3: Apr 20, 2018

1. Competing Visions of the Western International Economic Order and the Chinese Belt and Road Initiative: Challenges and Opportunities

Uzma Ashraf Barton, AIIFL, Faculty of Law, The University of Hong Kong, Georgetown University Law Center, Law & Economics Center, George Mason University

2. Constitutional Inertia and Regime Pluralism in Asia

David S. Law, Washington University in St. Louis - School of Law, The University of Hong Kong - Faculty of Law, Washington University in St. Louis - Department of Political Science

Chien-Chih Lin, Institutum Iurisprudentiae, Academia Sinica, Institutum Iurisprudentiae, Academia Sinica

3. Is Distributed Ledger Technology Built for Personal Data?

Henry Chang, The University of Hong Kong - Law and Technology Centre

4. The Meaning of Restriction of Competition Under the Monopolistic Agreements Provisions of the PRC Anti-Monopoly Law: Convergence to International Mainstream or a Chinese Approach?

Thomas K. Cheng, The University of Hong Kong - Faculty of Law

5. Announcing the Death of Colgate: The Form and Substance of Vertical Price Fixing Agreements

Thomas K. Cheng, The University of Hong Kong - Faculty of Law

David Law Interviewed on the New Chinese Supervisory Commission (CGTN TV)

Professor David Law, Sir YK Pao Chair in Public Law, was interviewed on the television programme, The Point, on 13 March 2018.  He spoke to China Global Television Network (CGTN)'s Ms Liu Xin on China's New National Supervisory Commission and its constitutional and political implications.  Dr Xu Qinduo, Senior Researcher in Pangoal Institution, also joined the interview. Click here to view the programme. 

New Issues: SSRN Legal Studies Research Paper Series (HKU)

UNIVERSITY OF HONG KONG FACULTY OF LAW LEGAL STUDIES RESEARCH PAPER SERIES

Vol. 8, No. 1: Feb 8, 2018
Vol. 8, No. 2: Feb 14, 2018

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

Vol. 8 No. 1: Feb 8, 2018

1. International Judges on Constitutional Courts
    Alex Schwartz, The University of Hong Kong - Faculty of Law

2. Misconceptions of Interest Benchmark Misconduct
   Paul Lejot, The University of Hong Kong - Faculty of Law
   
3. Strategic Public Shaming: Evidence from Chinese Antitrust
   Angela Huyue Zhang, The University of Hong Kong - Faculty of Law, King's College London
   
4. Alternatives to Liberal Constitutional Democrac
   David S. Law, Washington University in St. Louis - School of Law, The University of Hong      Kong - Faculty of Law, Washington University in St. Louis - Department of Political Science

Vol. 8 No. 2: Feb 14, 2018

1. The Biographical Core of Law: Privacy, Personhood, and the Bounds of Obligation
   Marcelo Thompson, The University of Hong Kong - Faculty of Law

2. What Do the Panama Papers Teach Us About the Administrative Law of Corporate Governance Reform in Hong Kong?
   Bryane Michael, University of Oxford
   Say Hak Goo, The University of Hong Kong - Faculty of Law

3. Hard Corporate Governance Law in a Soft Law Jurisdiction
   Bryane Michael, University of Oxford
   Say Hak Goo, The University of Hong Kong - Faculty of Law

4. The Value of the Corporate Governance Canon on Chinese Companies
   Bryane Michael, University of Oxford
   Say Hak Goo, The University of Hong Kong - Faculty of Law

David Law Discusses President Trump's Stance on Gun Legislation (AM870; FM105.3)

"There is a Middle Ground Here"
Host: Newell Normand

Radio wwl.com (AM870; FM105.3)

President Trump calls for a comprehensive gun bill, taking a more liberal stance on possible gun legislation. David Law, Professor of Law and Political Science at Washington University in St. Louis and University of Hong Kong, joins Newell to discuss the President's stance and what we may see coming out of Congress soon.  Listen to the interview here (duration: 20 minutes).

David Law on Alternatives to Liberal Constitutional Democracy (Maryland Law Review)

"Alternatives to Liberal Constitutional Democracy"

David Law

Maryland Law Review

December 2017, Volume 77, Issue 1, pp 223-243

Abstract: The global appeal of liberal constitutional democracy—defined as a competitive multiparty system combined with governance within constitutional limits—cannot be taken for granted due to the existence of competing forms of government that appear successful along a number of practical dimensions and consequently enjoy high levels of public acceptance. Proponents of liberal constitutional democracy must be prepared to proactively explain and defend its capacity to satisfy first-order political needs. A system of government is unlikely to command popular acceptance unless it can plausibly claim to address the problems of oppression, tribalism, and physical and economic security.

     Along these dimensions, the advantages of liberal constitutional democracy over the alternatives of social democracy of the type seen in Scandinavia, and bureaucratic authoritarianism of the type seen in parts of Asia, are not self-evident. Within Asia alone, seemingly functional alternatives to liberal constitutional democracy run the gamut from illiberal nondemocracy in China, to liberal one-party rule in Japan, to illiberal constitutional democracy in Singapore, to liberal constitutional nondemocracy in Hong Kong, to hereditary monarchy in Bhutan.  Click here to download the full article.

Sir YK Pao Chair David Law Awarded Distinguished Paper Award for co-authored paper, "Constitutional Dissonance in China"

Congratulations to our Sir YK Pao Chair in Public Law, Professor David Law, and his co-author who will receive a Distinguished Paper Award from the East Asian Law and Society Section of The Association of American Law Schools (AALS) at the AALS Annual Meeting in January 2018.
     The award is for a piece entitled “Constitutional Dissonance in China” which Professor Law co-authored with Professor Wen-Chen Chang of National Taiwan University. The work explains why it is "highly beneficial for comparative constitutional scholars to study Chinese constitutionalism." The piece will be published as a book chapter in the forthcoming edited collection, Comparative Constitutional Theory (Edward Elgar 2018), edited by Gary Jacobsohn & Miguel Schor.  It can be downloaded from SSRN by clicking here.

     This year the AALS Section on East Asian Law and Society selected four papers to be honoured in the annual Call for Papers on Asian scholarship on law and society. The papers and awards will be presented at the AALS meeting in San Diego from 5-6 January 2018.  All papers receive offers of publication in the Asian Law Review (U Penn).  The selection committee members were Eric Feldman (Penn), Chulwoo Lee (Yonsei), Robert B Leflar (Arkansas, chair), Craig Martin (Washburn), and Teemu Ruskola (Emory).