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This chapter describes the drafting of the 1997 Constitution and its impact on Thai democracy. It first provides some context of Thai political history. Next, it explains the forces which converged to produce the 1997 constitution-making process, the first to ever involve an elected drafting assembly. While the life of the constitution was tumultuous, culminating in its death at the age of nine in 2006, it has had a profound afterlife with significant effects on Thai democracy, and institutional legacies that have survived even in the authoritarian periods of 2006-2007 and 2014-2016. It thus shows how a democratic constitution-making process can have important institutional effects beyond its formal legal operation. At the same time, the transition to a new monarch in 2016 marks a major shift in the trajectory of the country, with negative implications for its democratic future.
The Meiji era (1868-1912) dramatically transformed Japan from a feudal nation into a great power in little more than three decades. This chapter analyzes the Meiji Constitution as an instance of authoritarian legality. It begins by describing the intellectual and historical origins of the Meiji Constitution, originating as a reaction to the threat of Western colonialism. It then goes on to explain the institutional choices that established the bureaucratic-authoritarianism that has come to dominate modern Japan. The formal rules of the Meiji Constitution, complemented by a set of informal rules that channeled the actual exercise of power, were critical underpinnings for modern Japanese political and economic development.
All constitutions involve a balance between preservation and transformation, that is, between retaining some elements of an old order and reaching toward a new one. It is in the first period of constitutional implementation that these tensions are worked out, and in which many constitutions fail. Drawing from the contracting literature, we identify two general sources of constitutional crisis or failure during the first period. We call these deficits of drafting and deficits of implementation: the first involves incomplete or imperfect text, and the second involves problems of political will and cooperation. Both reflect the immanent conflict between those factions and groups that benefit from transformation, and those that seek transformation.
Can a constitution born in dictatorship serve democracy, or is it inevitably tainted by the circumstances of its birth? This question is central in Chilean politics today, but Chile is not alone. Roughly 20 percent of constitutions in force today were drafted during undemocratic periods. Chile’s constitution, however, is part of a smaller set which we call transformational authoritarian constitutions. These constitutions (1) are explicitly framed as helping to structure a return to electoral democracy after a period of time; (2) reflect certain policy goals designed to be permanent; and (3) contain an enforcement mechanism to ensure that both these goals are met. The chapter then goes on to consider how constitutional reform should be achieved, drawing on comparative evidence.
From Parchment to Practice explores the set of problems that arise when a new constitution has been adopted. All new constitutions must manage a balance or tension between two forces: aspirations for social and political transformation on the one hand and demands for preservation of old interests and institutions on the other. The period following the initial adoption of a new constitution, is the conceptual, temporal, and institutional bridge between the past and future. It is the moment when the transformative and the preservative forces in constitutional design can come into the sharpest conflict. Through a series of case studies, this volume analyzes the variable nature of these type of conflicts - and the diverse means through which they are mediated, whether successfully or not.
International law, though formally neutral among regime types, has mainly been a product of liberal democracies since World War II. In light of recent challenges to the liberal international order, this Article asks, what would international law look like in an increasingly authoritarian world? As compared with democratic countries, authoritarians emphasize looser cooperation, negotiated settlements, and rules that reinforce regime survival. This raises the possibility of authoritarian international law, designed to extend authoritarian rule across time and space.
The constitutions of most liberal democracies contain provisions that constrain governmental action in relation to economic policy. Some provisions grant citizens rights: For example, Americans enjoy a right under the US constitution’s Contract Clause, prohibiting states from impairing the obligation of contracts. Most constitutions also provide individual rights protections against uncompensated and arbitrary taking of property. Structural provisions of constitutions also affect economic policy, sometimes by limiting government action directly, rather than through the claims of citizens. For example, balanced-budget rules constrain fiscal decision-making, as do legislative supermajorities required by some constitutions for financial decisions. Such structural provisions have spread in recent years, especially in response to the great recession of 2007 and 2008.