Comparative Constitutional Law and Policy. New York: Cambridge University Press, 2015. xii, 316 pp. US$110.00, cloth. ISBN 978-1-107-01882-2.
To what extent do an identifiable and sovereign People “establish and ordain” democratic constitutions? In Making We the People, Hahm and Kim debunk three common assumptions about popular sovereignty through a comparison of constitutional founding in Japan and South Korea. They advocate jettisoning the ideal of “an all-powerful and ever-living people” (58) who craft a constitution without being influenced by external forces or the past. Instead, they argue that the very identity of “We the People” is formed by constitution making, which is always a process situated in a particular time and place.
Japan and the Republic of Korea (ROK) are apt cases with which to develop this theory. Both countries’ constitutional founding in the 1940s involved external influences, fraught histories and institutions, and significant transformations of the people’s relationship to the state. Despite the well-known parallels and interconnections between these processes in Japan and Korea, they have not been subject to as systematic a comparison as this book offers. Herein lies the primary merit of this book. Things taken for granted in one context come into sharper relief through comparison. Although Making We the People recaps an article—which is not cited in the book—that Hahm and Kim published in the International Journal of Constitutional Law in 2010 (“To Make ‘We the People’: Constitutional Founding in Postwar Japan and South Korea,” 8, no. 4: 800–848), their extensive analysis is better suited to book-length treatment.
The book is logically structured and eloquent. In chapter 1, Hahm and Kim weave together prior scholars’ critiques of the ideal of popular sovereignty to elaborate a theory about the mutually constitutive relationship between a body politic and its constitution. Somewhat Western-centric, chapter 1 would have benefitted from the incorporation of Japanese and Korean scholarship on questions of popular sovereignty and self-determination. Although their theory is relevant outside East Asia, it also illuminates themes that reverberate through contemporary debates in Japan and Korea about constitutional revision, the separation of powers, freedom of expression, and the expansion of the electorate. The authors acknowledge this briefly (1–3, 280), but more explicit engagement with current debates would have widened the book’s appeal.
Making We the People joins landmark works like Richard Samuels’ Machiavelli’s Children (Cornell University Press, 2003) in using carefully paired comparisons to generate theoretical insights. More than just the institutional structures and rights enumerated in two constitutions, the processes of constitutional founding are Hahm and Kim’s focus as they scrutinize the origins and initial implementation of key provisions in the Japanese and Korean constitutions. Each empirical chapter highlights one of the three common assumptions about popular sovereignty, and the chapters build on each other.
Chapter 2 analyzes the extent to which external influences (i.e., US occupiers, nascent competition with the communists, international society) shaped the war-renouncing Article 9 in Japan’s constitution and the quasi-socialist economic provisions in the ROK constitution. It also shows how emerging Cold War exigencies twisted these portions of both constitutions. Yet their evidence for “Japanese people’s embrace of peace” (96) despite reinterpretation of Article 9 and Korean people’s embrace of socioeconomic equality as central to their constitutional identity is thin.
Chapter 3 examines how Japanese and Korean actors creatively used, embellished, or rejected aspects of the past to legitimate actions. It compares how Japan’s emperor was reinvented as a symbol and how the ROK invented a democratic republican pedigree while seeking to punish collaborators (Articles 1 and 101). In line with other scholars, they identify continuities across the 1945 line of defeat/liberation and agents’ bricolage with fragments of the past.
The third and final empirical chapter integrates their points about the importance of existing institutions, the recent past, and external forces in analyzing the mutual constitution of a body politic and its constitution. It traces multiple redefinitions of Japanese and Korean peoplehood through the lens of the household registries (a prewar institution that rendered people “legible” to the state) and election and nationality laws.
The empirical chapters are well researched and the narrative rich, but some weaknesses remain. First, the fascinating discussion of Japanese and US occupation authorities’ debates over jinmin vs. kokumin (232–239) suffers from the absence of an analogous analysis of Korean debates over what to call the people. In their 2010 article, Hahm and Kim proffer such an analysis (842–847), but not in the book. Condensing the book’s section on prewar household registries (199–223) would have given the authors space to unpack the implications of adopting the kokumin/kukmin term for the evolving boundaries of each country’s body politic and ongoing debates about, for example, multicultural families, foreigners’ voting rights, and (in Japan) married women’s surnames. Without such discussion, the authors risk leaving readers with the impression that each people’s identity was constituted in stone with these founding constitutions.
Moreover, Hahm and Kim don’t address the fact that the Korean constitution has been repeatedly amended or revised while Japan’s constitution is the oldest unamended one in the world. While this reality doesn’t invalidate the comparison, it certainly begs questions, especially since the authors warn against analyzing constitutions as frozen in time or apart from their context. The authors’ analysis of constitutional amendment in Korea and reinterpretation in Japan in the 1950s is strong, but they verge on equating amendment or revision with reinterpretation (57n122, or 285). Arguably, these processes’ differences signal distinctions in how each polity relates to its constitution that may help explain the phenomenon in Korean authoritarianism of “rule by law.” The authors could have effectively addressed these differences in the introduction rather than belatedly dismissing it as beyond the book’s scope (280–281). Considering current Japanese debates about revising Articles 9 and 96 and Korean debates about authoritarian creep, which are mentioned in opening anecdotes, this omission seems like a missed opportunity.
Nevertheless, Hahm and Kim persuasively argue that we can only discover who “We the People” named in a constitution are by adopting a broader spatial and temporal lens (61) that considers external influences, creative uses of the past, and shifting definitions of peoplehood. Making We the People thus contributes significantly to comparative constitutional studies, East Asian studies, and scholarship on nation building and democratic theory.
Celeste L. Arrington
The George Washington University, Washington, DC, USA
pp. 356-358