East Asian Foundations for Constitutionalism: Three Models Reconstructed

東亞憲政主義的基礎:三個模式的重建

大多數的東亞國家已因為憲政主義與法治的蓬勃發展,而轉型為自由民主國家。然而,東亞憲政主義的特定社會與政治脈絡卻很少受到關注。本文以人類學上民族誌的研究方法重新檢視日本、南韓與臺灣戰後制憲經驗。本文重新檢視與這些制憲經驗相關的社會與政治脈絡,從制憲與戰爭、制憲與制憲者的糾葛、制憲與後殖民、制憲與民族主義等四個面向分析這三個國家的制憲經驗。透過對這些戰後制憲經驗的重建,本文發現此三個東亞國家的制憲經驗反映了三種制憲模式,包括:促進民主的制憲、獨立建國的制憲、國族整合的制憲。本文結論認為,東亞憲政主義既非「西方憲政主義」的單純繼受,亦非對其完全的拒斥。相反地,戰後東亞制憲經驗已發展出獨特而可資比較的憲法模式,值得全球的法學者參考與學習。

The majority of countries in East Asia have become liberal democracies with vibrant developments of constitutionalism and rule of law. Scant attention, however, has been paid to particular social and political foundations for East Asian constitutionalism. This paper utilizes the approach of constitutional ethnography to re-examine postwar constitution-making in Japan, South Korea and Taiwan. It re-examines social and political circumstances surrounding these constitution-making experiences and analyzes them from four perspectives: constitution-making and war situations, questionable constitutional authorship, constitution-making and decolonization, and finally constitution-making and nationalism. By reconstructing these postwar constitution-making stories, this paper finds that the three constitution-making experiences are reflective of three constitution-making models including: constitution-making as promoting democracy, constitution-making as national independence, and constitution-making as national inclusion. It concludes that East Asia constitution making is neither of any mere borrowing from nor of any resistance against western constitutionalism." Rather, postwar constitution-making experiences in East Asia have been developed and re-developed into distinctive, yet comparable, models of constitutionalism for global constitutional lawyers to learn.