Constitutionalism Beyond Liberalism

The predominant geographic pattern of transnational constitutional diffusion explains why Western models have been treated as paradigmatic and liberal constitutionalism as a normative ideal. While the comparative literature has expanded to rigorous study of constitutional orders beyond the West, the earlier point of departure has left an imprint on the field. Despite the expansion in qualitative, empirical study of a range of cases, non-Western constitutionalism has not been centered as a site for generating new theories of constitutional design. This may also be because such a turn entails deriving new concepts and theories from non-liberal contexts. Yet, there is much to recommend a broader comparative approach to theorizing, not as a source of cautionary tales (which already abound in the West) but because innovative concepts emerging in understudied, non-Western settings hold lessons for imagining alternative institutional arrangements to manage pluralism and much else.

The role of constitutional courts -- and the power of judicial review -- is among the central features of liberal constitutionalism. Though historically, much writing has been devoted to the rise of courts and their powers, the role of courts has been relatively less explored in the rise of illiberal constitutionalism. This paper will consider forms of judicial resistance to populism, and explore how it is midlevel judicial actors in ordinary rule of law actions that have presented the strongest forms of resistance to democratic backsliding. In considering this, the paper will reflect on how the present and ongoing performance of judicial power might inform both classic debates relating to judicial review as well as contemporary accounts of how courts function. In doing so, the paper will argue for moving beyond a liberal constitutional model that is centered on constitutional courts.

Since Xi Jinping came to power, there has been renewed attention within and outside China to the relationship between the Communist Party and the legal system, with particular focus on both Party ideology and the courts. This paper examines debates within China about whether (and when) Party rules, regulations, and other documents should have the force of law and be applied in the courts. First, we discuss an emerging debate in China, initiated by prominent voices on the political left, arguing for increased study of Party regulations and for recognizing Party documents as law. Second, we look at when (and how often) Chinese courts cite Party documents in deciding cases. Our findings suggest a need to reconceptualize how and what norms become law in China, highlight how the concept of law is being destabilized even as it is debated, and that models that suggest of separation between routine/sensitive cases, and between public/private law, fail to capture the reality of adjudication.

One complaint made in the decolonial critique of comparative constitutionalism involves the lack of sympathetic attention given to non-liberal constitutionalism. In the modern equivalent of the terra nullius doctrine, the critique goes, Western scholars have failed to recognize as constitutionalist phenomena that, with a more pluralist lens, would appear obviously so. If the field is to progress, we must pluralize our research, not just descriptively, but also normatively, to encompass the full range of constitutionalisms out there. This paper considers how we might respond to this critique. One issue is whether liberal constitutionalism has not already been decolonised through its encounter with local traditions of political struggle in the Global South. Another is whether liberal constitutionalism is today properly characterized as an exclusively Western tradition. What we make of the ‘variety of constitutionalisms‘ point may depend on our understanding of liberal constitutionalism.