Soft constitutional law in nonliberal Asian constitutional democracies

Abstract

As constitutional texts are incomplete guides to actual practice, the 'complete' constitution will not be captured by a court-centric focus on texts and contested judicial interpretations. This article applies a positivist version of realism to interrogate the phenomena of 'soft constitutional law' (SCL), one aspect of the small 'c' constitution. SCL may be described as nonbinding, deliberately created constitutionally significant norms which have some legal effect in ordering constitutional relationships. It shapes generic constitutionalism in regulating public power, securing a polity's fundamental values and reinforcing its national identity. 'SCL' is not unique to Asian nonliberal democracies, as the role of declaratory conventions in the UK or of soft congressional resolutions in presidential systems attests. Nonetheless, it is argued that SCL plays a distinctive function in these contexts, driven by a strong state with a powerful executive branch and relatively weak constitutional review. Negatively, SCL may subvert liberal constitutionalism as a tool for consolidating state powers and curtailing political freedoms in service of the public interest. Positively, it may serve the good of cultivating social solidarity by promoting values in aid of 'constitutional patriotism' to cohere racially and religiously divided societies whose communities lack a shared history. This article examines how the analysis and category of SCL, created and interpreted primarily by nonjudicial actors, illumines the constitutional cultures of Asian nonliberal democracies, while raising questions of legitimacy and desirability that occupy normative constitutionalism. © The Author 2010. Oxford University Press and New York University School of Law. All rights reserved.