The Socialist World in Comparative Constitutional Law
The collapse of the Soviet bloc in the late twentieth century, which precipitated a massive transition from communism into constitutional democracy in Europe, is one of the most important catalysts of the revival of comparative constitutional law. Scant attention among constitutional comparatists, however, has been given to the constitutional system of the five countries that survived the domino fall of communism, namely China, Cuba, Laos, North Korea, and Vietnam. Although these five countries did not transition into constitutional democracies, constitutional change immediately occurred in these socialist countries in response to the dissolution of the Soviet Union in December 1991. China, North Korea, and Cuba amended their constitutions, Vietnam replaced the Soviet-era constitution with a new one in 1992, while Laos eventually adopted the first socialist constitution in 1991. In addition, in response to local and global impetuses, Vietnam, Laos, and Cuba recently adopted new constitutions (in 2013, 2015, and 2019 respectively), while China and North Korea have significantly amended their Soviet-era constitutions in several episodes. In my recent book Constitutional Change in the Contemporary Socialist World, I explain how and why constitutional change has occurred in five current socialist countries in the last three decades.
This book is a comparative enterprise. I follows the “most similar cases” principle in small-N comparative constitutional studies. The five socialist countries share many common features. They all have a communist history, survived the fall of the communist-bloc, have a socialist legal system, and operate a Leninist constitutional system ruled by a communist party, and have an economic system controlled by state-owned enterprises. During the post-Soviet era, the five socialist countries have all adapted their constitutional systems. However, the degree, mechanisms, and influential factors of constitutional change in these countries are not identical but display considerable variations, which warrants further scrutiny in this comparative project.
Interdisciplinary and Qualitative Methodology
This book offers inference-oriented qualitative research which aims to advance comparative constitutional knowledge. This mode of research aims to explain why constitutional change happens in the contemporary socialist world and why it happens in certain ways. This explanatory comparative inquiry necessarily makes this enterprise an interdisciplinary project. The understanding of socialist constitutional change is situated within the broader milieu of intellectual, political, social, and economic changes. To do this, I integrate constitutional theory with social science theories (political theory, sociological theory, and economic theory) to understand the functions, driving forces, and process of constitutional change.
This book relies on primary and secondary sources. The primary sources include materials available in local languages and empirical data gained through fieldwork. The primary resources include constitutions, statutes, regulations, reports and testimonies available in the local language. This book is supported by fieldwork in socialist countries (except for North Korea) to collect primary materials and to interview local people. I have conducted field trips in China, Vietnam, Laos, and Cuba, and collected primary resources and interviewed local constitution-makers, legislators, lawyers, legal scholars, and members of civil society. In the case of North Korea, I travelled to South Korea and, thanks to my colleagues there, was able to collect primary materials related to North Korea. Vietnamese is my native language, and therefore I enjoy direct access to the primary materials available in Vietnamese. My native language also allows me to gain access to materials on the constitution, and political system in Laos, available in Vietnamese, produced by Laotian scholars, officials, and students who have studied at Vietnamese universities. The primary materials regarding China, Laos, North Korea, and Cuba can be accessed through translation. The book also relies on secondary sources: English national and comparative constitutional writings and interdisciplinary materials.
Socialist Constitutions and Progressivism
I argue that socialist constitutional change is progressive. The function of this constitutional change is to facilitate the active role of the party-state (the socialist state under the leadership of a communist party) in improving the material well-being of residents, in terms of their living conditions. This function is epistemologically shaped by progressive convictions in Marxist philosophy. Constitutional reforms have been achieved by institutional improvement of the socialist constitutional system while retaining the dictatorship of the working ruling class presented by the communist party. Therefore, while socialist constitutional identity remains (the instrumental nature of the constitution, the single leadership of the communist party, centralized power, rights and the economy regulated by the state), constitutional change softens and modifies the authoritarian arrangement and introduces new elements which facilitate the improvement of the socialist constitutional system (the dynamic constitution, institutionalization of the party, horizon and vertical distribution of power, universalization of human rights, and marketization of the economy).
This socialist, progressive constitutional change is variously driven by both top-down and bottom-up dynamics of political economy, including: leadership change; the reformist programs for social and economic development; constitutional and economic globalization, and social demands and domestic social and economic transition. The legal form for constitutional change is varied, including: de facto replacement through amendment (Vietnam), de jure replacement through amendment, ordinary replacement (Cuba), and ordinary amendment (China and North Korea).
Five Models of Socialist Constitutional Change
Based on the prominent appearance of the influential factors that drive and legitimize the substantive and procedural constitutional change, I identify five models or variations of socialist constitutional change. First, in the universal model of Vietnam, the global factors and universal norms play a prominent role in shaping and legitimatizing socialist constitutional change. Second, in the integration model of Laos, ethnic unity prominently shapes the process and substance of socialist constitutional change. Third, in the reservation model of Cuba, the reservation of the historical achievement prominently features the process and substance of constitution-making. Fourth, in the exceptional model of China, the aspiration and attitude to a distinctive development model prominently shapes constitutional change. Fifth, in the personal model of North Korea, a particular leader’s power and ideology prominently shape the constitutional change.
The history or progress of the five socialist states indicates the trend to incremental adaption of core socialist constitutional institutions. In some case, socialist constitutional change leads to partial adoption of some institutions of liberal democracy and market economy (e.g. liberal rights, private ownership, private property rights, and private enterprises). But, the resistance to institutions of liberal constitutional democracy is also vehement in several cases, especially in China and Cuba. In addition, resistance to market economy is also evident, particularly in North Korea. In addition to adoption and resistance, the divergence between socialist and liberal political and economic institutions are increasingly sharp. This institutional divergence is mainly due to socialist and local constitutional innovation. The divergence is manifested in grand innovative projects such as the “socialist rule of law state” (China, Vietnam, and Cuba) and the “socialist market economy” (China, Vietnam, and Laos), which are resulted from the creative marriage of liberal institutions with socialist institutions and local experiential practices. The divergence is also evident in some specific institutions, such as China’s supervisory institutions and legislative constitutional review body; Cuba’s controlling institutions; North Korea’s the Responsible Management System for Socialist Corporations. The partial adaption, resistance, and local innovation suggest that socialist constitutional change has not converged with “end of history.”
The “end” or objective of socialist constitutional evolution is informed by socialist ideals. The major concern shared among the five socialist countries is to facilitate the role of the state in improving the material wellbeing of living condition, not to limit the state power to protect liberal rights. This does not mean that the socialist countries do not have concerns about liberal rights and limited powers: consider the supervisory and controlling institutions. But, the prevailing “end” of socialist constitutional change is to improve the living condition of residents ensured by economic development and enabling institutions rather than to protect liberal rights by constitutional constraints.
I hope this book can methodologically contribute to the ways we think about constitutions globally by offering a particular way of thinking about socialist constitutions. This comparative constitutional inquiry goes beyond judicial questions and doctrinal study of constitutional rules and texts, and looks at systematic questions, such as: how the constitutions are produced, how they interact with the socioeconomic context, what ideas and ideology underpin the constitutions, what the political and social forces that drive the constitutional development are, and how the constitutional law is produced and enforced by the complex interplay of different institutional and non-institutional actors.
Posted by Bui Ngoc Son, Associate Professor of Asian Law, Faculty of Law, University of Oxford.