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Global Summer Programme: LAW 470

This guide contains print and electronic resources for courses offered in the SMU Global Summer Programme 2016

LAW470: Comparative Constitutional Law by Professor Howard Hunter

Three Nations, Three Continents, Three Cultures: An Examination of the Constitutions of France, Japan, and the United States

Successful democratic societies adhere to the concept of the “rule of law”, and each one has a comprehensive “law” that forms the backbone of the legal and political structure of the society. The various constitutions of successful democracies share many similarities, but, often, the differences are as striking as the similarities. From among the 190 or so countries that are members of the United Nations, one could choose any number of constitutional documents to analyse and compare. In a short course, choices must be made in order to allow time for some in-depth analysis and comparisons. Why these three – France, Japan and the United States - instead of others?

In all honesty, one could choose other examples, but with the US, Japan, and France, we have representative constitutions from three continents and three different cultures, each of which is a multi-party democracy. Since the end of WW II the three countries have been, by most measures, successful democracies. There have been obvious ups and downs, but each country has a strong economy and a functioning, reasonably transparent, political system. They provide useful case studies for what works and what does not work in a modern democracy, and studying them can help in developing a sharp critical eye for the study of other constitutional systems.

The nations of the world are roughly divided into two major private law families: the civil law countries and the common law countries. Japan and France are two of the most influential and respected civil law nations, and their respective constitutions were designed against the backdrop of a civil law tradition. The United States is the largest common law economy, a result of its British colonial past. Within South and East Asia, the common law countries are those with some history of British colonial involvement, e.g., India, Pakistan, Bangladesh, Sri Lanka, Myanmar, Malaysia, Singapore, Brunei, and Hong Kong SAR. On the outskirts are two more: Australia and New Zealand. The remaining countries of Asia are in the civil law family, e.g., China (except Hong Kong), Korea, Japan, Vietnam, Laos, Cambodia, Indonesia, Philippines.

The United States Constitution is the oldest written constitution in effect in a democracy. It was drafted to bind together thirteen states (recent colonies) which had strikingly different histories, cultures and economies. One of the main purposes was to create a common market among the states, similar to that developed in Europe after World War II. But the constitution has come to be much more than an economic document, and it has survived a terrible civil war and dramatic social and cultural changes since it was drafted in the summer of 1787.

France was an absolute monarchy with close ties to the Roman Catholic Church until the revolution of 1789 although French philosophers and political writers had laid the jurisprudential foundations for a rationalist republic. Indeed, many of the French enlightenment ideas influenced the drafters of the American constitution. After the monarchy was overthrown in 1789, France re-created itself as a secular republic, but the new republic went through a period of considerable turmoil. When Napoleon came to power, a form of monarchy returned (military dictatorship might be a more accurate description) but Napoleon’s regime also put into effect the Napoleonic Civil Code which became one of the most successful attempts in history to implement a fair, predictable, accessible legal system. That Code is the foundation for much of what we refer to today as the “modern civil law”. However, France went through many decades of political turmoil with periods of republicanism and periods of monarchy (albeit something less than the absolutism of, e.g., Louis XIV). From the last quarter of the 19th century until now France has had several different constitutions and governments – the Third Republic, the Fourth Republic, the Vichy Government (during WW II), a Provisional Government just after WW II, and the Fifth Republic since 1958. The French model is one with a strong central government, clearly articulated rights and responsibilities, and a commitment to secularism.

Prior to 1945 Japan was, in theory, an absolute monarchy. In fact, the Emperor, under the Meiji Constitution, depended upon various advisers and councillors to run the government. After the Japanese surrendered to the Allies in 1945 a new constitution was drafted to create a modern, democratic nation. Japan continued to have an Emperor, but the role of the Emperor became largely symbolic. Power resides in the Diet (Parliament) and the Prime Minister’s office (along with the PM’s Cabinet). The post war constitution has been in effect for 70 years, and, until recently, remained unchanged. One of the key provisions of the constitution made Japan officially a pacifist state, although it allowed for a purely defensive military. Recent changes – quite controversial ones – allow greater flexibility in terms of the military. Interestingly, the current constitution was, for the most part, drafted by Americans on the staff of General Douglas Macarthur, who was in command of Japan for a period of time immediately after the end of the war. They had assistance from Japanese legal scholars, but most of the work was done by Americans. However, the constitution is very different from the US constitution. Not only does it adopt a Westminster type government, it also adheres to the civil law tradition – not the common law tradition inherited from the British by the Americans.

These three constitutions provide good case studies for the operation of electoral democracy and for the balancing of individual rights against the interests of the society as a whole. The goals may be similar – encouraging broad electoral participation and protecting individuals from oppression by the state – but the approaches are different among the three nations. The three societies also have striking differences. For example, Japan is largely homogeneous. France has citizens from a wider variety of backgrounds thanks, in part, to French colonial activities in Africa and Asia, but there is a common concept of what it means to be “French” regardless of race, religion or ethnicity. The United States is a vast melting pot of people from many different ethnic, racial, and religious backgrounds with varying ideas about what it means to be an “American” (with apologies to other “Americans” from Canada south to Argentina and Chile). How do the various constitutions reflect these differences and how do they work in terms of managing potential conflicts among different racial, ethnic and religious groups?

By the end of this course you should have:

    a. Basic understanding of the constitutional structures of France, Japan, and the United States
    b. Ability to compare and to analyse strengths and weaknesses in terms of preservation of the rule of law, stability of the polity, protection of democratic principles, responsiveness to changing cultural, social and political norms, efficiency, and similar issues
    c. Better understanding of the tensions between individuals and the community within democratic societies
    d. Lessons learned that may be useful to apply in other societies.

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Other readings will be suggested closer to the date of the classes and will include scholarly and popular press articles, decisions of courts, and useful background books and chapters.

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