Volume 16, Issue 2 - Mixed Constitutions and Human Rights; Co-edited by Cora Chan, Francisca Pou Giménez, and Gila Stopler

This article argues that constitutional mixture should be regarded as an inherent, inevitable feature of constitutions, and to some degree all constitutions are mixed. Thus, “mixed constitutions” should not be regarded as a distinct category of constitutions. Instead of asking whether a constitution is mixed, it might therefore be more useful to ask in which characteristics and to what extent a constitution is mixed. To demonstrate this, the article provides a preliminary typology of constitutional mixture considering the form or system of government; the nature or character of government; the religious or secular identity; the flexibility or rigidity of the constitution; and its model of judicial enforcement—judicial or parliamentary supremacy. Examining these constitutional features, allows to shed light on the three different dimensions of “constitutional mixture”: First, the various features of the constitutional order do not function in a binary yes-or-no manner but appear and move along a spectrum. Second, the various features of the constitution change with time. Third, the various features of the constitutional text may be in tension with the features of the society.

This article explores the development of ideas in constitutional design. The point of departure is a perspective of constitutions-as-products , and thus, an examination of the invention, innovation, and an uptake of these products. The article conceptualizes constitutional innovation and distinguishes its manifestations with respect to constitutional products , the process of constitution-making, and in supporting institutions. The last two elements, in line with Schumpeter’s approach to innovation, would seem especially important to constitutional development. The article provides several examples from the area of human rights and argues that innovations tend to be found in situations in which there is strong aversion to a prior order. It also shows that innovations tend to come from the periphery rather than the global core of the field. One of the sources of “mixed” constitutions is precisely such innovations, which then form raw material for further mixing.

This article focuses on Latin American constitutionalism with two goals in mind. The first goal is to identify narratives of constitutional mixity or hybridity that have been influential in Latin America, something that habilitates a comparative analysis with references to mixed or hybrid constitutionalism in other scenarios. One narrative underlines the combination of U.S.-inspired constitutionalism with background civil law systems. Another narrative highlights the way classic regional constitutional designs feature a liberal-conservative hybridation that, some claim, continue to influence constitutional dynamics up to this day. And the third narrative is associated with the establishment in regional countries of hybrid or mixed systems of judicial review. The second goal of the article, more methodological in kind, is to explore what do Latin American narratives on mixity teach in the way to clarifying the nature and implications of exercises constitutional taxonomy. As it emerges, constitutional taxonomy is a way of organizing and generating knowledge which is useful to describe, but most meaningful when addressed to provide an explanation, which is often just an antechamber to normative evaluation. Whether a particular exercise of constitutional taxonomy makes sense in a particular scenario, however, is a different matter, and the article suggests that describing, explaining and evaluating Latin American constitutions as hybrid is illuminating but also problematic in a number of ways.

The study of illiberal constitutions has recently generated enormous scholarly interests. Few, however, have focused on whether democracies may still embrace constitutionalism mixed with illiberal elements. This article explores mixed constitutions of South Korea and Taiwan, the two democracies with vibrant civil societies in East Asia. Three distinctive features in both constitutions have demonstrated illiberal elements, including duty clauses imposed upon citizens, directives requiring the State to enact laws to fulfill the goals of governance, and constitutional cultures that exhibit high deference to political elites based on the Confucian tradition. This article further examines the impacts of such mixed constitutions on three challenging issues: managing pandemic crisis, applying artificial intelligence, and combating fake news. This article finds mixed features of illiberal and democratic constitutions in the two countries by giving their governments more space in managing urgent crises, showing higher deference to experts who are generally trusted by the public, and making compromises to individual rights for greater public good. However, this does not imply that the government is not made democratically accountable, or rights and freedoms are not asserted or valued by individuals. To the contrary, nongovernmental organizations and courts in the two countries continue to act as a counterbalancing force, challenging the government’s policies and decisions if not reasonably balanced, weakening the tendency of power concentration that has been seen in other countries where democratic backsliding or authoritarian governance is gradually revived.

This article develops a discursive explanation of mixed constitution: mixed constitutional ideas and discourse generate mixed constitutional design and practice. On that base, it explores the nature, factors, and functions of the mixed constitution in Vietnam. The emergence of competing constitutional ideas (Confucian, socialist, liberal, universal) animates a constitutional discourse in which different actors adhere to different ideas. Consequently, the 2013 Constitution of Vietnam embodies a mixture of the ideas in its provisions on political institutions, economy, and especially human rights. The enforcement of the constitution induces competing claims to constitutional meanings. The mixed constitution is shaped by path dependency and global diffusion of constitutional ideas. It functions as the base to constrain ideational monopoly and widen the public discourse on constitutional development.

The article explores the long-term consequences of permissive constitutional arrangements, drawing on a comparative study of Israel, India and Sri Lanka. In all three countries, constitutional drafters at the foundational stage adopted permissive arrangements that avoided controversial decisions on conflicted identity-related issues. In all three cases, three to six decades after independence, the permissive constitutional approach was replaced by more decisive formal constitutional principles. Such unpermissive constitution making was meant to limit the range of options available for future legislation or constitutional interpretation by courts, and preferred nationalist, religious and ethnocentric identity. This article seeks to investigate why such developments occurred in the three countries, and what can be learned from them about the durability and normative advantages of permissive constitutional arrangements. Empirical analysis of the long-term consequences of permissive arrangements illustrates the limited durability that appeared to characterize some of these arrangements. The present assessment also reveals how in some cases, the main ideational conflict at the heart of the constitutional debates has shifted over the years. Nevertheless, the central argument put forth by this article is that, despite ongoing challenges, permissive constitutional arrangements should still be regarded as a valuable constitutional tool for advancing political compromise and facilitating stable democratic institutions. The analysis demonstrates the crucial role permissive constitutions may have as a political tool designed to circumvent violent conflicts and as an analytical tool, thereby offering insight into current constitutional conflicts over ideational issues.