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Abstract
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.

AbstractThis special issue of Global Constitutionalism discusses how global constitutionalism influences Asia-Pacific jurisdictions and how they respond. This introductory article presents the theme and structure of this issue, explains the Asia-Pacific's unique contribution to global constitutionalism and offers a synthetic argument. It conceptualizes global constitutionalism as the global diffusion of common constitutional ideas, institutions and doctrines rooted in comparative constitutional law and public international law. On that base, it argues that constitutional design, adjudication and discourse in many Asia-Pacific jurisdictions are influenced by global constitutionalism. The influence results in not only convergence but also resistance to global constitutionalism in the regions. The regional experience presents critical challenges for global constitutionalism, and hence its effective operation significantly depends on its situation within the region's axiological, institutional and social contexts.

Early twenty first century Vietnam has witnessed the emergence of constitutional discourse in line with some ideas and institutions of western liberal constitutionalism. This movement has unfortunately led the constitutional discourse to underestimation of the relevance of the local culture. In Vietnam, Confucianism is an integral component of the national culture. It has a long tradition and has continued to influence on different aspects of the modern society in the nation. As constitutionalism must be ultimately underpinned by culture values and political tradition, the relations of Confucianism to the promotion of constitutionalism in Vietnam should be taken into account. This account adopts a balanced approach to the relationship between Confucianism and constitutionalism. It supports the integrationist approach, which attempts to marry the best elements of Confucianism with the best elements of western constitutionalism to produce a distinctive form of constitutionalism suitable to the local context. However, to carry out the integrationist project, it is important to determine what can be integrated, and to do this, the integrationist approach must be combined and balanced with the indigenist and critical approaches. On the side of Confucianism, it is necessary to identify constitutionalist elements, and this requires us to, from an indigenist perspective, discover constitutionalist values in the Confucian tradition. On the side of western constitutionalism, it is necessary to, from a critical view, identify its disadvantages and advantages so as to select the most suitable elements for the integrationist project. General speaking, this study defends the thesis of the positive relationship of Confucianism to constitutionalism with particular reference to the case of Vietnam. The study firstly systematically discovers classical philosophical foundations of Confucian constitutionalism. It then examines the practice of Confucian constitutionalism in imperial Vietnam. Subsequently, it demonstrates the antecedent projects of integration of Confucianism with Western constitutionalism in the modern history of Vietnam. Finally, the study contemplates the possibility of further integration of Confucianism and western constitutionalism in contemporary Vietnam by proposing the Constitutional Academy as a mixed model of constitutional enforcement. This inquiry is significant in several ways. Firstly, it contributes to our better understanding of the history and development of Confucianism, constitutionalism, and their relationship in Vietnam. Secondly, it can further enhance the scholarship of the intellectual foundations and experimentations of constitutionalism in pre-modern East Asia. Finally, the findings in this study can have implications for further reflection on the global expansion of western liberal constitutionalism in non-western contexts, and the prospects of constitutionalism in an East Asian Confucian context. ; published_or_final_version ; Law ; Doctoral ; Doctor of Philosophy

Intro -- Table of Contents -- List of Contributors -- Table of Cases -- Table of National Legislation -- Table of International Materials -- Introduction -- I. Overview of the Series -- II. Contributions of Volume I - Constitution-Making -- III. Methodology -- IV. Structure of the Volume -- 1. Japan's Post-War Constitution: 'Imposed' Constitution or Hybrid between Global and Local Stakeholders? -- I. Introduction -- II. Cause -- III. Process -- IV. Substance -- V. Implementation -- VI. Conclusion -- 2. Founding and/or Refounding: South Korea's 1948 Constitution -- I. Introduction -- II. Context and Causes for Making a Constitution -- III. Process and Features of Constitution-Making in 1948 -- IV. Substances and Principles of the 1948 Constitution -- V. Implementation and Legacy -- VI. Conclusion -- 3. The Longest Process: Making the 1946 Constitution of the Republic of China -- I. National Survival: Constitution-Making in a Failed State -- II. Towards a Revolutionary Constitution: A Long Process of Draft and Provisional Constitution-Making -- III. In Defence of a Five-Power Constitution -- IV. Guardian of the Constitution: The First Post-WWII Constitutional Court -- 4. The Making of China's 1982 Constitution -- I. The Decision to Revise the Constitution -- II. The Work of Revision -- III. Completion and Adoption -- IV. Conclusion -- 5. The Making of the Hong Kong Basic Law -- I. Introduction -- II. The BLDC and the BLCC: Organisation and Operation -- III. Major Issues and their Resolution -- IV. Concluding Reflections -- 6. North Korean Cultural Revolution: Reading Culture in the 1972 Constitution -- I. Constitution of 1948: The Mirror Stage of the Nascent-State -- II. The Discourse of the Three Revolutions -- III. North Korea's Cultural Revolution in 1972 -- IV. Conclusion -- 7. The Making of the 1992 Mongolian Constitution -- I. Background.

Cover -- Half Title -- Series Page -- Title Page -- Copyright Page -- Dedication -- Table of Contents -- List of Contributors -- Acknowledgments -- Introduction -- Chapter 1 Unconstitutional constitutional amendments as constitutional politics -- Part I Discursive model -- Chapter 2 The politics of unconstitutional constitutional amendments in Japan: The case of the pacifist Article 9 -- Chapter 3 "State form" in the theory and practice of constitutional change in modern China -- Chapter 4 Unconstitutional constitution in Vietnamese discourse -- Part II Denotive model -- Chapter 5 The law and politics of unconstitutional constitutional amendments in Malaysia -- Chapter 6 Amending constitutional standards of parliamentary piety in Pakistan?: Political and judicial debates -- Chapter 7 Limiting constituent power?: Unconstitutional constitutional amendments and time-bound constitution making in Nepal -- Part III Decisive model -- Chapter 8 Beyond unconstitutionality: The public oversight of constitutional revision in Taiwan -- Chapter 9 Thailand's unamendability: Politics of two democracies -- Chapter 10 Constitutional politics over (un)constitutional amendments: The Indian experience -- Chapter 11 The politics of unconstitutional amendments in Bangladesh -- Part IV Commentaries -- Chapter 12 The power of judicial nullification in Asia and the world -- Chapter 13 Is the "basic structure doctrine" a basic structure doctrine? -- Chapter 14 Eternity clauses as tools for exclusionary constitutional projects -- Chapter 15 Why there?: Explanatory theories and institutional features behind unconstitutional constitutional amendments in Asia -- Index.