The Decoupling of the Nation and the State: Constitutionalizing Transnational Nationhood, Cross-Border Connectivity, Diaspora, and “National” Identity-Affiliation in Asia and Beyond
摘要：Since the first Asian Law and Society Conference (ALSA) was held at the National University of Singapore (NUS) in 2016, a number of special sessions have been organized to focus on the deconstruction of the Westphalian transnational order based on the concept of the “nation-state.” This dominant hegemony was predicated on the congruence of the geo-territorial boundaries of both the state and the nation, as well as the “assumed integration” of state-defined “citizenship” and another distinctly layered “membership” based on culture, ethnic, religious, and indigenous affiliations. The “nation-state” ideology has thus masked a history of tensions and conflicts, often manifested in the form of oppression, persecution, and genocide directed at the nation and its peoples by the state and its predatory institutions. Our studies have shown that such conflicts between the nation and the state have been observed in multiple regions in Asia, including Kashmir in India; Moro and Islamic communities of Mindanao in the Philippines; Karen, Kachin, and other autonomous nations in Myanmar; West Papua, Aceh, Kalimantan, South Moluccas, Minahasa, and Riau in Indonesia; Kurds in multiple state systems of Iraq, Syria, Turkey, and Iran; and Palestine in Israel, among many other culturally autonomous nucleated communities in Asia and across the world. The phrase “the nation and the state” was specifically chosen to distinguish and highlight the unique conflictual histories of two geo-political entities and to provide a fundamentally differing interpretation of history, geography, the role of law, and global affairs from the perspectives of nation peoples, rather than from that of the state or international organizations, as traditional analyses do. The Westphalian “nation-state” hegemony led to the inviolability of the state’s sovereign control over the nation and peoples within a state-delimited territory. The state then began to engage in another predatory project: to strengthen and extend its international influence over other states and, thus, the nations within these states, by adopting new constitutional provisions to offer cross-border “citizenship” to diasporic “ethnic-nationals” and descendants of “ex-migrants” who now inhabit foreign states. The nations have similarly capitalized on constitutional activism by erecting their own Constitutions to explore collaboration with other nations, as well as diasporic populations of their own, in order to carve out a path toward the nations’ independence within, and even beyond, the respective state systems. The “constitutional” activism sought by the state and the nation has become an important political vehicle with which to engage in possible collaboration with diasporic “ethno-nationals” and ex-migrant communities, in order to further assert political influence and strengthen trans-border politics of the state and the nation. Three articles included in this issue investigate such constitutional activism of cross-border politics and transnational collaborations in Asia, the Americas, Europe, and other regions across the globe.
Nation v. State: Constitutionalizing Transnational Nationhood, Creating Ethnizens, and Engaging with Kin-Foreigners in Europe and Asia
摘要：In the interstices of international law, quite a number of states have developed strategies to reach out to and engage with their diasporic populations or ethnonational kin outside of their borders who are not their citizens but citizens of the state in which they habitually reside. Some states even provide for that kind of policy in their Constitutions. Some states grant preferential treatment and special rights to “kin-foreigners,” thereby creating “ethnizens.” This article canvasses provisions in national Constitutions in Europe and Asia that provide grounds for engaging with the members of the nation outside of the state, analyzes the modes of engagement—mainly ethnizenship practices and various ways to strengthen links with diasporas—and examines the rules of engagement. It shows that the international norm has not provided effective guidelines regarding the strategies of transnational nation-building beyond the personal boundaries of the state and concludes that the decoupling the nation from the state registered by the transnational nationhood strategies falls short of constituting a departure from the logic of the Westphalian nation-state.
The State Constitution v. the National Constitution: Original Nations’ “Sovereignty-Building” Projects in Asia, North America, and Beyond
摘要：Historical tensions and conflicts have existed between the nation and the state across the globe for centuries. These antithetical geo-political entities have also erected Constitutions of their own to assert their sovereignty and independence. The paper then explores the constitutional activism by the nation to attain its sovereignty and the right to self-determination from the state supervision. The paper specifically interrogates recent efforts by the Nation of Lakota in North America, and its constitutional activism and the attempts to secede from the US jurisdiction in order to declare the nation’s independence. The paper provides the critical investigation of an array of both domestic and international laws used by the Nation of Lakota in order to complete the withdrawal of its political ties and legal obligation from the US territory. The paper concludes by discussing the ongoing constitutional activism by multiple nations in Asia and other regions of the world in an effort to attain their sovereignty and independence within, and even beyond, the respective state systems.
Constitutionalizing Trans-Border Nationhood: From Latin American Perspectives
作者：Hee Moon JO，韩国外国语大学教授
摘要：The relationship between state and absent citizens is becoming more important since the globalization of the 1990s. Countries usually try to increase the number of their citizens through two methods. The first is by increasing the number of nationals living abroad using a dual-nationality system. The second is by expanding national power through dual culturalism. These methods increase the international capacity of the home state through the expansion of the de facto state territory from the perspective of network-power theory. Latin American countries have been relatively passive in this diaspora-engagement policy, but recently they have begun to show an active attitude by revising their migration policy— amendments to the Constitution and migration law, dual nationality, dual culturalism, voting rights abroad, and upgrading the status of diaspora agencies, etc. However, it is still unclear how the multinational and multi-ethnic Latin American countries conceptualize diaspora. This paper analyzes the diaspora-engagement policy of Latin American countries from the standpoint of network-power theory and tries to find out what its theoretical framework is. This paper concludes that the theorization work on diaspora should continue to track and analyze these policy changes, since it is difficult to understand what the diaspora concept is and what policy objectives the state is pursuing under the current diaspora-engagement policy.
Mapping the Power Struggles of the National Green Tribunal of India: The Rise and Fall?
作者：Gitanjali Nain GILL，英国诺桑比亚大学教授
摘要：This article documents the life-cycle of the National Green Tribunal of India (NGT). The NGT is officially described as a “specialised body equipped with necessary expertise to handle environmental disputes involving multi-disciplinary issues”—a forum offering greater plurality for environmental justice. Its international and national recognition promotes it as an exemplar for developing nations. The change management theory underpinning the paper is drawn from the work of Kurt Lewin and Edgar Schein, thereby allowing the analysis of competing internal and external forces affecting the NGT. There is a transmigration of theory and its application from one discipline to another social science: business psychology and management to law. The article identifies and addresses the crisis, and analyses the reasons and actions of the principal actors or forces interested in supporting the NGT and, on the other hand, those who are concerned, challenged, and affected by its growth, activities, and popularity.
本文记录了印度国家绿色法庭（NGT）的生命周期。NGT被正式描述为“具有处理涉及多学科问题的环境纠纷的必要专业知识的专门机构”。这是一个为环境正义提供更多解决方案的平台。它的国际和国内认可度使它成为发展中国家的典范。本文基于Kurt Lewin和Edgar Schein的“变更管理理论”（change management theory），分析影响NGT的内部和外部竞争因素。这一理论原本产生于商业心理学，本文将其迁移并适用于另一门社会学科，即法学。本文识别并探讨了围绕NGT而产生的争议：一方面，分析了支持NGT的主要参与者或力量的原因和行动；另一方面，也分析了那些因NGT的发展、活动和热度而受到影响和挑战的人们的原因和行动。
Do Birds of a Feather Flock Together? Rights Protection (Weiquan) Lawyering in China
作者：Kege LI （李可歌），香港城市大学法学博士候选人
摘要：As the idiom goes, birds of a feather flock together. This ancient proverb is frequently used to portray the phenomenon of people associating with those with have similar characteristics and tastes. However, in the name of weiquan lawyers, myriad lawyers flock together with different beliefs and diverse values. Within this pool of lawyers, in addition to those lawyers who are driven by public interest, some lawyers who have eagerly labelled themselves as weiquan lawyers are profit-oriented in nature. This paper aims to provide a new typology to present a better understanding of the role of weiquan lawyers, by jointly taking into consideration the lawyers’ motivations and adaptive strategies. In this regard, weiquan lawyers in China can be categorized into four ideal types: routine practitioners, rational activists, progressive reformers, and cynical criticizers.
Lay Participation in Japanese Criminal Justice: Prosecution Review Commissions, the Lay-Judge System, and Penal Institution Visiting Committees
作者：Stacey STEELE，墨尔本大学副教授、亚洲法律中心副主任；Carol LAWSON，新南威尔士大学法律、市场和监管中心副讲师、澳大利亚国立大学法学院博士生；Mari HIRAYAMA，白鸥大学法学教授；David T. JOHNSON，夏威夷大学马诺阿分校社会学教授
摘要：This article highlights reliance on lay participation as a mechanism for solving perceived problems in Japanese criminal justice by examining three reforms aimed at increasing lay participation in Japanese criminal justice: the mandatory prosecution power given to Prosecution Review Commissions, the saiban’in seido (lay-judge system), and Penal Institution Visiting Committees. The article argues that lay participation plays an important role in legitimizing aspects of the current system. Despite the Nagoya Prison Scandal in 2002–03, Japan’s extraordinary achievements in order inside prisons have been maintained and citizens are comforted that the system has oversight by Visiting Committees. Although PRCs and saiban’in seido represent a more open approach to eligibility and selection than Visiting Committees, they too help to legitimize existing structures. The article concludes by considering challenges to the continued reliance on lay participation in Japan including reform fatigue, the demographic crisis, the impact of geography, and technological developments.
本文通过研究三项旨在提高日本刑事司法当中民众参与程度的改革措施——检察院（Prosecution Review Commissions検察審査会）的强制起诉权、素人法官制度（lay-judge system）和刑事机构视察委员会（Penal Institution Visiting Committees刑事施設視察委員会）——来说明大众参与被当成解决日本刑事司法中已暴露问题的机制。本文认为，民众参与对于将现行制度的各方面予以合法化产生了重要作用。尽管2002至2003年间发生了名古屋监狱丑闻，但是日本在维护监狱内部秩序方面取得了非凡成就，公民们也因为该制度受刑事机构视察委员会的监督而感到欣慰。虽然与刑事机构视察委员会相比，检察院检察审查会和素人法官制度在资格和甄选方面更为开放，但是它们也有助于现有结构的合法化。本文最后介绍了日本继续依赖大众参与面临的挑战，包括改革疲劳、人口危机、地理位置影响和技术发展等。