I. The Marriage between Constitutions and Happiness

Happiness has been extolled by some, including Aristotle, as the end goal of political life. According to James Wilson, one of the founding fathers of the United States of America, the ends of political authority was “to ensure and to increase the happiness of the governed above what they could enjoy in an independent and unconnected state of nature” for “the happiness of the society is the first law of every government.”^{Footnote 14} Thomas Paine, whose work held immense sway among American revolutionaries, captured the same idea in the following words: “[w]hatever the form or Constitution of Government may be, it ought to have no other object than the general happiness.”^{Footnote 15} In continental Europe, Christian Wolff wrote that a state must, “through active intervention . . . secure for its subjects the conditions for such thriving and thus to promote happiness.”Footnote ¹⁶ The state which Wolff envisioned was “an interventionist tutelary regime, an enlightened absolutism whose objective is to guarantee material and moral advance.”^{Footnote 17} Likewise, Jeremy Bentham famously posited that the aim of law and government is to secure the greatest amount of happiness for the greatest number of people.^{Footnote 18}

These time-honored statements find ample modern resonance, especially after World War II. The preamble of the American Declaration of the Rights and Duties of Man adopted in 1948, otherwise known as the Bogota Declaration, settled that “[the American people’s] national constitutions recognize that juridical and political institutions, which regulate life in human society, have as their principal aim the protection of the essential rights of man and the creation of circumstances that will permit him to achieve spiritual and material progress and attain happiness.”Footnote ¹⁹ More recently, as rehearsed in the introduction, the United Nations General Assembly declared happiness to be the universal goal of human lives in 2012.

Modern written constitutions are the “foundational instruments [that] publicly articulate a polity’s political identity and normative architecture, its values and structural distribution of power.”^{Footnote 20} They are the “ubiquitous” hallmarks of modern nation-states.^{Footnote 21} In particular for fundamental values, principles and ideals, many of which are often not directly justiciable in courts of law, their inclusion usually reflects a conscious choice to entrench and preserve them so as to withstand the passage of time. Elevating happiness to a position of prominence in codified constitutions reinforces its capacity to exert an enduring influence.

Happiness made its debut on the constitutional plane in 1791. Article VII of the Constitution of 3 May 1791 of the Polish-Lithuanian Commonwealth announced that “no government, be it the most perfect, can stand without strong executive authority. The happiness of peoples depends upon just laws, the effect of the laws—upon their execution.”Footnote ²² Two years later, the French Constitution of 24 June 1793 declared in Article 1 that “the aim of the society is general happiness (Le but de la société est le bonheur commun).”Footnote ²³ These documents were adopted after the founding fathers of modern America opted against incorporating the right to pursuit of happiness, present in the Declaration of Independence, into the United States Constitution of 1789. One of the first post-war constitutions that features a happiness provision is the Constitution of Japan of 1947. Article 13 states that “[a]ll of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.”Footnote ²⁴

The explicit enshrinement of happiness in modern constitutions, nonetheless, gives rise to a number of lingering questions. What functions does happiness play in modern constitutions? What does happiness mean in a particular constitutional context? Does incorporating happiness into a constitution increase the level of happiness of the citizens as an empirical matter? Why do drafters incorporate happiness into constitutions in the first place? This article is primarily concerned with the first two questions, and also touches slightly on the fourth question, analyzed using the conceptual frame of “constitutionalization of happiness,” to which I now turn.

II. The Constitutionalization of Happiness

As of 2022, the terms “happiness” and “well-being” feature in the constitutional lexicon of more than 20 and 110 states respectively. For example, under the Constitution of Angola of 2010, the state is enjoined to “promote the well-being, social solidarity and improved quality of life for the people of Angola, specifically amongst the most deprived groups of the population.”Footnote ²⁵ The preamble to the Namibian Constitution of 1990 affirms that the “right of the individual to life, liberty and the pursuit of happiness” are the “inalienable rights of all members of the human family [that] is indispensable for freedom, justice and peace.”Footnote ²⁶

The proliferation of happiness provisions mirrors and manifests the confluence of two contemporary trends in law and politics—the revived emphasis on happiness as a policy objective, and the globalization of the practice of adopting a written constitution.^{Footnote 27} These happiness provisions epitomize the phenomenon of the “constitutionalization of happiness,” which denotes the process of elevating happiness to the constitutional echelon, thereby bearing discernible legal and political implications. This phenomenon is animated by the three categories of or functions that happiness provisions play, and highlights that, despite its inherent conceptual vagueness, happiness can be a consequential legal concept. The aim of this article is to unpack these functional and semantic nuances and, moving beyond the “philosophical” and “psychological” accounts of happiness,^{Footnote 28} put forward a “constitutional” account of happiness.

All constitutional provisions in force as of 2022 that contain either or both of the terms “happiness” and “well-being” are collated for the purpose of this study.^{Footnote 29} As a matter of empirical strategy, provisions that contain the term “well-being” are also included for two reasons. First, happiness is often used interchangeably with well-being in common parlance, despite objections and arguments to the contrary.^{Footnote 30} Second, this strategy accommodates variations in translation, for it is not always the case that ostensibly similar ideas and concepts from different cultures can be precisely translated into or captured by the English term “happiness.” One further point on the scope of this article should be noted. The happiness provisions collated and analyzed pertain only to happiness of the people or citizens of the state. Constitutions sometimes purport to protect the well-being of non-human subjects, such as the economy, but provisions to that effect are excluded from the purview of this study.

An audit of all happiness provisions reveals that they boil down to three categories—happiness as a national objective, happiness as a policy paradigm, and the pursuit of happiness as a human right. Of course, the sectional assignment, language, as well as semantic and structural configuration of a happiness provision are often determinative of its category. For example, the Bulgarian Constitution of 1991 announces, in the section enumerating fundamental principles, that “[t]he foreign policy of the Republic of Bulgaria shall have as its highest objective the national security and independence of the country, the well-being and the fundamental rights and freedoms of the Bulgarian citizens, and the promotion of a just international order.”Footnote ³¹ This unequivocally establishes that the promotion of citizens’ well-being is a national objective of Bulgaria, at least in the context of foreign policy. These three categories do not occupy separate watertight compartments. Happiness provisions frequently fulfill more than one function, traversing the boundaries of these fluid categories.

The meaning and jurisprudential landscape of happiness provisions within one specific constitutional framework is furthermore molded by, on top of the semantic and structural configuration, a dynamic interplay among three factors, which include the indigenous and socio-cultural conception of happiness of that state, interpretations put forward by judges and other constitutional actors, and transnational influences such as the migration of constitutional ideas and jurisprudence. These factors do not operate in a vacuum or a mutually exclusive manner. Indeed, they often collide with or complement one another, thereby furnishing a distinct constitutional meaning of happiness within particular settings. These factors will now be examined in turn.

First, the meaning of happiness within a particular constitutional context is heavily influenced by the indigenous or socio-cultural conception of that state and society. Just as the “particular manifestations and descriptions of happiness are culturally informed and contextualized,”^{Footnote 32} the constitutional meaning of happiness bespeaks the polity’s unique socio-cultural and historical character so long as the text does not prescribe a meaning that is fundamentally at odds.

Second, judges and other constitutional actors are often enlisted in the enterprise of interpreting and fleshing out the content of happiness provisions. Constitutional language is often general and vague.^{Footnote 33} Happiness provisions provide no exception, for intrinsic ambiguity renders difficult any attempt to concretize the concept. Such ambiguity opens up broad discursive space, effectively extending an invitation to interpreters to partake in the exercise of filling the definitional void. Governmental or executive institutions do so through policy-making or executive interpretation, the legislature through parliamentary law-making, judges through judicial decision-making, and scholars through academic debates. Viewed thus, happiness provisions are just one branch of the bigger ‘living tree’, the interpretation of which is capable of evolution over time.

Certainly, the prospect of disagreements among interpreters remains well and alive. The resolution of such interpretive differences is entwined with and contingent upon the power dynamics and aptitudes of the institutions involved,^{Footnote 34} a realm of inquiry beyond the scope of this article. Suffice to note that such interpretive contestations themselves constitute an important impetus propelling the expansion of the discursive space, and ultimately contributing to a better and more nuanced understanding of the constitutional meaning of happiness.

Third, transnational and foreign influences, including the migration of constitutional ideas and jurisprudence, shape how happiness is understood within a domestic constitutional setting. There is now a sophisticated body of literature documenting how constitutional ideas, designs, and provisions “migrate” from one jurisdiction to another through multiple mechanisms,^{Footnote 35} discrediting the previously held notion of a monolithic “We the People” wielding the pouvoir constituant.^{Footnote 36} These mechanisms encompass the conscious copying of constitutional text and language, the imposition of constitutional arrangements from one state onto another, and the judicial borrowing of and citation to foreign constitutional ideas and jurisprudence.^{Footnote 37} Through these avenues, the constitutional meaning of happiness breaches state and jurisdictional boundaries, and intertwines with pre-existing indigenous and socio-cultural conceptions of happiness.

These three factors do not operate in a mutually exclusive manner or in isolation. Indeed, it is more often than not the case that multiple factors are concurrently at play. In these instances, these factors may either complement or contradict one another. These forces are likewise not static either, allowing for evolution or alteration of the meaning of constitutionalized happiness across time and space.

I. Bhutan: Gross National Happiness

Bhutan, a Buddhist kingdom nestled in the Himalayas, has garnered worldwide recognition for its unique developmental paradigm centered on the idea of Gross National Happiness (GNH). GNH was first conceived by the fourth King of Bhutan, Jigme Singye Wangchuck, back in 1972,^{Footnote 77} when he famously declared that “Gross National Happiness is more important than Gross Domestic Product.”^{Footnote 78} Over the years, GNH has blossomed into a rich and vibrant philosophy undergirded by a quintet of core elements. They include holisticness, which denotes the recognition of all aspects of the people’s needs including spiritual, material, physical, and social; balance, which emphasizes a balanced progress between the different features of GNH; collectiveness, which recognizes happiness as an all-encompassing collective phenomenon; sustainability, which calls for pursuit of the well-being of both the current and future generations; and equitableness, which focuses on realizing a reasonable and equitable level of well-being.^{Footnote 79} These five core elements are in turn operationalized by four pillars, namely sustainable and equitable socio-economic development, environmental conservation, preservation and promotion of culture, and good governance. Bringing down to policymaking praxis, these four pillars are further unfolded into a kaleidoscope of nine domains which “map more specifically the key areas of GNH.”Footnote ⁸⁰ They include “psychological wellbeing, health, education, cultural diversity and resilience, time use, good governance, community vitality, living standard, and ecological diversity, and resilience.”^{Footnote 81}

The ethos of happiness in GNH diverges sharply from the purely subjective and hedonistic conception of well-being. As Jigmi Y. Thinley, the first democratically elected Prime Minister of Bhutan, said:

GNH finds its genesis in Buddhist culture. The former Prime Minister further explained:

According to the incumbent King Jigme Khesar Namgyel Wangchuck:

After four decades of steady evolution in theory and practice, GNH was formally incorporated into the new Constitution of 2008 as a guiding policy for the nation and attained the zenith of significance. Article 9(2) proclaimed that “[t]he State shall strive to promote those conditions that will enable the pursuit of Gross National Happiness.”Footnote ⁸⁵ Article 20(1) commits the Royal Government to “protect and strengthen the sovereignty of the Kingdom, provide good governance, and ensure peace, security, well-being and happiness of the people.”Footnote ⁸⁶

Having affirmed the role of GNH as the guiding national policy, the Bhutanese Constitution then proceeds to systematically translate the four pillars of GNH into actionable directives across a broad spectrum of policy domains. For culture, Article 4(1) charges the state to “preserve, protect and promote the cultural heritage of the country, including monuments, places and objects of artistic or historic interest, Dzongs, Lhakhangs, Goendeys, Ten-sum, Nyes, language, literature, music, visual arts and religion to enrich society and the cultural life of the citizens.”Footnote ⁸⁷ As for environmental sustainability, Article 5(1) regards every Bhutanese as “a trustee of the Kingdom’s natural resources and environment for the benefit of the present and future generations,” and stipulates that every citizen must “contribute to the protection of the natural environment.”Footnote ⁸⁸ Article 5(3) follows up by requiring the Royal Government to ensure “a minimum of sixty percent of Bhutan’s total land shall be maintained under forest cover for all time.”Footnote ⁸⁹ The inclusion of a quantitative rather than qualitative standard of forest protection has been hailed as a “remarkable development within the field of global environmental constitutionalism.” ^{Footnote 90} In the domain of equitable economic development, Article 5(2) commands the Royal Government to “secure ecologically balanced sustainable development while promoting justifiable economic and social development.”Footnote ⁹¹ Finally, in the sphere of good governance, Article 9(3) obligates the state to “create a civil society free of oppression, discrimination and violence, based on the rule of law, protection of human rights and dignity, and to ensure the fundamental rights and freedoms of the people.”Footnote ⁹²

As chronicled by Givel, in the wake of the 2008 Constitution, the National Assembly of Bhutan embarked upon a legislative odyssey, enacting a plethora of legislation that delineate in even more concrete terms GNH-informed policy directives in specific areas of concern.^{Footnote 93} Consider healthcare legislation. Under the Tobacco Control Act of 2010, it is declared that “the physical health and wellbeing of the people of Bhutan . . . are important elements of the development principle of Gross National Happiness.”Footnote ⁹⁴ The University of Medical Sciences Act of 2012 states that “the people must have access to the high quality, wholesome health care services through holistic, patient centred, evidence-based and culturally appropriate approaches in harmony with the development paradigm of Gross National Happiness.”Footnote ⁹⁵ Consider also legislation on environmental protection. The preamble to the Water Act of 2011 puts beyond doubt its intention “to protect the environment and human health through integrated water resources management in pursuit of Gross National Happiness and the age-old tradition of living in harmony with nature.”Footnote ⁹⁶

Bhutan offers a paradigmatic example in which a pre-existing socio-cultural conception of happiness ascended to constitutional stature, informing and underpinning the language and design of the rest of the text. At the same time, the expansive nature of GNH as a developmental philosophy provides the foundation for and catalyzes its evolution and adaptation under the tutelage of constitution-makers who translate overarching precepts into actionable constitutional directives. This effort extends to parliamentarians who, in turn, concretize these constitutional directives through statutory enactments across diverse policy domains. In this process, both constitution-makers and parliamentarians are endowed with the opportunity to proffer their own interpretations of GNH, beyond its crude contours.

As a final note, it is worth pointing out that GNH has by-and-large remained untouched by the winds of transnational influence. Vigilant against potential engulfment by its formidable neighbors, Bhutan has strategically embraced a policy characterized by “[i]solation, caution toward outsiders, and cultivation of national identity.”^{Footnote 97} This approach enabled Bhutan to not only safeguard the original essence and purity of GNH, but also position itself as a net exporter of cultural influence to the world through GNH, now widely celebrated across the globe.

II. Ecuador and Bolivia: Buen Vivir

The term buen vivir, when translated from Spanish, approximately conveys the notion of “living well” or “good living.”^{Footnote 98} It is a “traditional philosophy of indigenous native American tribes of the Amazon and Andean Highland areas.”^{Footnote 99} In recent decades, this social philosophy has undergone rapid resurgence, stemming from the “widespread disenchantment”^{Footnote 100} with neoliberal reforms. The renewed interest has catalyzed buen vivir’s metamorphosis into a more expansive political and developmental paradigm.^{Footnote 101} At its core, buen vivir envisions a “balanced relationship between people and their community and natural surroundings” and calls for the “[enjoyment of] human rights responsibly while respecting common goods within the context of a harmonious coexistence.”^{Footnote 102} Scholars have, for the most part, coalesced around the consensus that the essential core of buen vivir encapsulates harmony with nature, respect for values and principles of the indigenous peoples, satisfaction of basic needs, democratic governance, and the state’s responsibility to ensure social justice and equality.^{Footnote 103}

In a trajectory parallel to that of GNH, buen vivir achieved constitutional rank in the two Latin American nations of Ecuador and Bolivia, the populations of which continue to profess fidelity to their cultural traditions,^{Footnote 104} around a similar time. Constitutionalization momentum was picked up against the backdrop of consecutive elections that brought left-wing politicians to power. This enabled the “expression of indigenous knowledge and traditions that were oppressed, minimized or subordinated over centuries”^{Footnote 105} via new constitutions adopted in 2008 (Ecuador) and 2009 (Bolivia) respectively. These new constitutions openly flouted the frequently-voiced criticism that the incorporation of buen vivir represented mere rhetoric,^{Footnote 106} and that the philosophy “falls short of its promise when brought down to political, economic, and social praxis.”^{Footnote 107}

Even though buen vivir has for all practical purposes assumed the role of a “central reference”Footnote ¹⁰⁸ in both new constitutions, the two Latin American nations have opted for divergent pathways in achieving that outcome.^{Footnote 109} In the Bolivian Constitution, buen vivir (or suma qamaña) is defined upfront as an ethical and moral principle. Article 8(I), under the chapter of “Principles, Values and Purposes of the State,” proclaims that “[t]he State adopts and promotes the following as ethical, moral principles of the plural society: ama qhilla, ama llulla, ama suwa [do not be lazy, do not be a liar or a thief], suma qamaña [live well], ñandereko [live harmoniously], teko kavi [good life], ivi maraei [land without evil] and qhapaj ñan [noble path or life].”Footnote ¹¹⁰ Structurally, buen vivir plays a “transversal role”^{Footnote 111} in the text, governing how the rest of the instrument is to be comprehended, interpreted, implemented and enforced.

In particular, suma qamaña underlies the idea of a “plural economy,” constitutionally recognized as the principal form of economic organization in Bolivia.^{Footnote 112} Article 306 maps out the gist of this economic model. Article 306(II) envisions that the plural economy comprises “different forms of economic organization based on the principles of complementariness, reciprocity, solidarity, redistribution, equality, legal security, sustainability, equilibrium, justice and transparency,” and obligates the state to place “the highest value on human beings and assures development through the equitable redistribution of economic surplus in the social policies of health, education, culture, and the re-investment in productive economic development.”Footnote ¹¹³

In contrast, Ecuador embraces a hybrid of approaches to the constitutionalization of buen vivir, or sumak kawsay. First, in its inaugural appearance in the preamble, buen vivir is presented as a national objective. The preamble calls for the need of “[a] new form of public coexistence, in diversity and in harmony with nature, to achieve the good way of living, the sumak kawsay.” Footnote ¹¹⁴ Second, buen vivir informs and blueprints, as a policy paradigm, an array of operative provisions across diverse governance domains, similar to the role GNH plays in the Bhutanese Constitution of 2008. Article 3(5) declares at the outset that “[p]lanning national development, eliminating poverty, and promoting sustainable development and the equitable redistribution of resources and wealth to enable access to the good way of living”Footnote ¹¹⁵ is one of the state’s “prime duties.”Footnote ¹¹⁶ In contradistinction to the Bolivian Constitution, buen vivir has and is fortified by “its own regime,”^{Footnote 117} located in Chapter II of Title II “Derechos del Buen vivir” [Rights of Good Way of Living] and Title VII “Régimen del Buen vivir” [Good Way of Living System]. These chapters house a torrent of provisions that are exclusively dedicated to giving buen vivir concrete legal expression across specific policy domains, including science, health, education, and environmental protection etc.^{Footnote 118}

Third, the Ecuadorian Constitution espouses a rights-based approach, under which sumak kawsay is recast into a sophisticated framework of justiciable rights.^{Footnote 119} The most groundbreaking and widely-recognized buen vivir rights are the “rights of nature (Pacha mama),” enshrined in Chapter VII of Title II. Article 71 states that “[n]ature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.”Footnote ¹²⁰ Article 72 continues: “[n]ature has the right to be restored. This restoration shall be apart from the obligation of the State and natural persons or legal entities to compensate individuals and communities that depend on affected natural systems.”Footnote ¹²¹ These provisions have earned acclaim for being pioneering, for they mark the first instance in which a national constitution explicitly recognizes nature as a right-holder.^{Footnote 122}

Although the rights of nature may seem initially as being concerned exclusively with the well-being of the nature and environment rather than the Ecuadorians, the Constitutional Court of Ecuador has taken pains to dismantle this simplistic view and foreground the inherent interdependence between the well-being of nature and well-being of human beings. In a landmark decision delivered in November 2021, the Constitutional Court nullified the issuance of mining permits to Ecuador’s national mining company, Enami EP, for breaching the rights of nature granted to Los Cedros, a protected cloud forest in northwestern Ecuador.^{Footnote 123} The Constitutional Court rejected the view that the rights of nature were “mere ideals or rhetorical statements.”^{Footnote 124} Instead, “[t]he rights of nature protect ecosystems and natural processes for their intrinsic value, thus complementing the human right to a healthy and ecologically balanced environment. The rights of nature, like all constitutional rights, are fully justiciable and, consequently, judges are obligated to guarantee them.”^{Footnote 125}

The Constitutional Court then proceeded to flesh out the substratum of the rights of nature. Recognizing that the “intrinsic valorization of nature is difficult to understand from a rigidly anthropocentric perspective, which conceives of human beings as the most valuable species,”^{Footnote 126} the rights of nature should be conceptualized in the following way: “the human being should not be the only subject of rights, nor the center of environmental protection. On the contrary, while recognizing specificities and differences, a complementarity is proposed between human beings, other species, and natural systems, given that, they integrate common life systems.”^{Footnote 127}

The experience of Ecuador and Bolivia mirrors that of Bhutan. In all three cases, a pre-existing indigenous or socio-cultural conception of happiness or well-being is given constitutional expression. The very breadth and adaptability of these local expressions of well-being functioned as the impetus catalyzing their very enrichment through constitution-making and parliamentary law-making. Transnational influence can also be observed in the aftermath of the adoption of the Bolivian and Ecuadorian Constitutions. While the Bolivian Constitution is silent on the issue of whether the nature itself enjoys rights, the Bolivian National Assembly in 2010 passed the Law of Rights of Mother Earth,^{Footnote 128} and in 2012 the Framework Law of Mother Earth and Integral Development for Living Well,^{Footnote 129} recognizing in no uncertain terms the rights of mother earth, which include inter alia the right to life, diversity of life, water, clean air, balance, restoration, and pollution-free living.

I. The Right to Pursuit of Happiness in the Japanese Constitution of 1947

Article 13 of the Japanese Constitution of 1947 provides that:

The genesis of this provision can be succinctly stated. The text was drafted largely under the direction of General Douglas MacArthur and the Supreme Commander of the Allied Powers (SCAP) staff after the end of World War II.^{Footnote 140} Indeed, American influence over the text and the drafting of the text was simply all-encompassing so much so that one commentator found it “difficult to conceive of any other single action of the Allied Occupation of Japan comparable in external or internal importance to the formulation of the new constitution.”^{Footnote 141} This sheds light on the recurrent debate on whether the Japanese Constitution is an “imposed constitution.”^{Footnote 142} The rights to life, liberty and the pursuit of happiness, a defining trinity of the United States Declaration of Independence, were written into the Japanese Constitution against such historical backdrop, as a product of pervasive American involvement.^{Footnote 143}

While the right to pursuit of happiness itself is of foreign pedigree, two competing theories have emerged, both vying to illuminate its nature and contours. The first school of thought is the “general right to freedom of action theory,” rooted in German constitutional jurisprudence.^{Footnote 144} Article 2(1) of the German Basic Law stipulates that “Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.” Article 2(1) should be, as the German Federal Constitutional Court held in the Elfes case, “understood as freedom of action in the broadest sense.”^{Footnote 145} Borrowing the German line of reasoning, some argue that the protection afforded by the right to pursuit of happiness should encompass almost all human activities, regardless of their value, importance, and essentiality to the development of one’s personality.

The second and prevailing school of thought is the “personal interest theory.” According to Nobuyoshi Ashibe, a towering figure in Japanese constitutional law, the right to pursuit of happiness does not protect all spheres of human activity. Instead, it only safeguards those that are essential and necessary to the development of one’s personality.^{Footnote 146} This theory presupposes that “people as personal entities [have] character and morality,”^{Footnote 147} and accordingly only those activities that are deemed valuable to the development of one’s character are worthy of protection. This constitutes an intrinsic limit on the scope of protection available under Article 13.

In a decision delivered in August 2022, the Takamatsu District Court upheld the constitutionality of a piece of Kagawa prefectural law which imposes restrictions on the time that minors are allowed to play online games.Footnote ¹⁴⁸ Among the constitutional arguments raised by the claimants is the assertion that the law infringes upon the right to pursue happiness, particularly the derivative right to self-determination. The Court showed no sympathy toward this argument, opining that playing online games was not a pursuit essential to one’s personality and therefore did not warrant protection under Article 13.^{Footnote 149}

The right to pursuit of happiness is frequently invoked as the doctrinal bedrock under which what is termed “new human rights”—rights that are not explicitly enumerated in the Constitution but are deemed worthy of legal protection—are derived.^{Footnote 150} Within this doctrinal rubric, new human rights proffered thus far include for example the right to a healthy environment, right to privacy, right to sunshine, right to tranquility, right to beach, right to information, right not to smoke, right to health, and right to self-determination.^{Footnote 151} As far as the derivative right to self-determination is concerned, there are suggestions to the effect that it ought to encompass, further down the line, the rights to decide whether to marry, whether to have children, one’s appearance and outfit, and to refuse medical treatment.^{Footnote 152}

Japanese courts, counting the Supreme Court of Japan (SCJ), have exhibited a noticeable hesitation to imbue the right to pursuit of happiness with strong legal bite. As one commentator said, the courts “largely agree that such right is just a little more than a mere declaration of intent, with no prescriptive value in itself, but only in combination of the rest of the article.”^{Footnote 153} Likewise, whilst a number of “new human rights” have been posited under Article 13, not all of them have garnered authoritative acknowledgment from the courts, with the right to portrait, viewed as a facet of the right to privacy, standing out as an exception. In the Student Union of Kyoto Prefecture Case dated 24 December 1969, the SCJ was asked to consider the constitutionality of a police officer photographing a citizen during a demonstration. The SCJ ruled, invoking Article 13, that the citizens’ freedom in private life should be protected against the intrusion of state power, including police power. As part and parcel of the freedom in private life, citizens also had the right not to have his or her face or appearance photographed without consent or good reason.^{Footnote 154} In the Fingerprint Case, the SCJ concluded that the freedom in private life under Article 13 included the freedom not to be compelled to undergo compulsory fingerprinting in the absence of due cause.^{Footnote 155}

Perhaps one of the most contentious Article 13 decisions rendered by the SCJ is the 2015 Surname Case. There, Article 750 of the Japanese Civil Code came under constitutional fire. The provision reads “[a] husband and wife shall adopt the surname of the husband or wife in accordance with that which is decided at the time of marriage.”^{Footnote 156} Dismissing the challenge, the SCJ held that, whilst “a person’s name should be held to form part of personal rights,” the “freedom from being forced to change one’s surname at the time of marriage cannot be regarded as part of personal rights that are guaranteed as constitutional rights.”^{Footnote 157} The identical issue was re-litigated before the SCJ again in 2021. The claimants cited to changes in social circumstances, including increased female employment, as evidence in support of their bid to overturn the earlier decision. Despite their strenuous efforts, the SCJ remained unmoved.^{Footnote 158}

Manifest judicial reluctance toward robust enforcement notwithstanding, the right has not been confined entirely to obscurity. Other constitutional actors have proactively engaged with and elicited assistance from the right in separate endeavors. Consider how the right has been marshaled to substantiate the reinterpretation of Article 9 of the Japanese Constitution, commonly known as the “pacifist clause.”^{Footnote 159} Under Article 9, the Japanese people unequivocally “renounce war as a sovereign right of the nation,” and the “threat or use of force as means of settling international disputes” was outlawed conclusively.Footnote ¹⁶⁰ The provision has been subject to multiple rounds of reinterpretation by the executive. In one earlier executive interpretation, Article 9 was construed to render permissible for Japan to undertake self-defense measures under specified conditions, including where self-defense measures are “inevitable for dealing with imminent unlawful situations where the people’s right to life, liberty and the pursuit of happiness is fundamentally overturned due to an armed attack by a foreign country.”^{Footnote 161} A 2014 executive decision stretched the above interpretation further in order to broaden the range of circumstances under which Japan may lawfully resort to the use of force, once again invoking the right to pursuit of happiness. According to the decision, self-defense measures can be taken in the event of an attack on a foreign country in a close relationship with Japan which poses similarly clear danger to the Japanese peoples’ right to life, liberty and pursuit of happiness.^{Footnote 162} This decision paved way for the eventual passage of the Peace and Security Legislation authorizing the Japanese Self-Defence Force to engage in overseas collective self-defense in 2015.^{Footnote 163}

Japan furnishes an example under which the hitherto alien legal notion of the right to pursuit of happiness made an abrupt entry into the Japanese legal landscape. American pedigree notwithstanding, sophisticated jurisprudential theories on the nature and limits of the right soon ushered in, injecting a splash of complexity to the constitutional narrative. Such jurisprudential and interpretive evolution is propelled, galvanized and animated by the distinct yet concerted efforts of courts, governmental institutions and the academia, and these efforts helped breathe life into and preserve the contemporary relevance of an otherwise aspirational statements.

II. The Right to Pursuit of Happiness in the South Korean Constitution of 1987

Like its East Asian neighbor, the South Korean Constitution also inscribes a right to pursuit of happiness. Article 10 provides that:

The right did not secure a berth in the original 1948 version of the Constitution, adopted in the same year that South Korea was established. Its incorporation only came about as a result of the eighth revision of the 1948 Constitution in 1980, orchestrated by military dictator Chun Doo-hwan. According to Lim, the move was a purposeful mimicry of the parallel provision in the Japanese Constitution, aimed at bolstering the country’s frail democratic credentials and legitimizing the military regime.^{Footnote 165} This resembles a kind of constitutional borrowing in service of superficial embellishment and window dressing. Hahm, on the other hand, suggested that the right, which was appended to the preceding dignity clause, served in part to “respond to the complaint that the provision on human dignity by itself was too vague and abstract.”^{Footnote 166}

Very much like their Japanese counterparts, Korean scholars have produced dense and sophisticated discourse unpacking the nuances of the right to pursuit of happiness. Some scholars dismiss the right as nothing more than “a mere ethical proclamation”^{Footnote 167} devoid of substantive legal significance. Others posit that the right safeguards the “German-inspired” notion of “general freedom of action,” a viewpoint waning in popularity in Japan.^{Footnote 168} These academic debates have infiltrated and are canvassed in the jurisprudence of the Constitutional Court of Korea (CCK). In fact, the CCK has wasted little time constructing a rich corpus of decisions on the right, driven in part by the high frequency of its invocation in pleadings. Indeed, much like the dignity clause, the happiness clause was treated as “a fallback, a catch-all provision by almost everyone claiming violation of his or her constitutional rights.”^{Footnote 169}

The dismissive position taken by some scholars that the right is a non-justiciable declaration of intent has largely fallen out of favor.^{Footnote 170} Scholars and judges now agree that the right to pursuit of happiness, alongside the right to human dignity, is a comprehensive meta-right that guides the interpretation of and underpins various other individual rights and freedoms. In the Discrimination of Second-Generation Patients of Defoliant Exposure Case, the CCK, embracing the language of the “general freedom of action” theory, declared in no uncertain terms that:

The right has two interrelated dimensions: the right to general freedom of action, and the right to free development of personality.^{Footnote 172} Consider first the right to general freedom of action. The CCK has held that the right to general freedom of action safeguards not only those actions that are valuable or essential to the development of one’s personality, in contradistinction to the Japanese position, but also covers matters of one’s lifestyle and hobbies, and protects even the right to live a risky lifestyle.^{Footnote 173} This can be illustrated through a CCK case that is analogous to the Takamatsu District Court case on the temporal limitation on access to online games. In the Case on Prohibition of Nighttime Access to Online Games by Juveniles,^{Footnote 174} the complainants challenged the constitutionality of the relevant provisions in the Juvenile Protection Act banning juveniles from accessing online games between midnight and 6 a.m., otherwise known as the “shutdown law.” The majority opined that the right to pursuit of happiness encompasses, “in specific terms, the right to general freedom of action and free development of personality, and the protection of general freedom of action also involves the protection of one’s lifestyle and hobbies.”Footnote ¹⁷⁵ Restriction on night-time access to online games therefore prima facie infringed upon the juveniles’ right to general freedom of action. Despite this finding, the majority proceeded to dismiss the complaint. In contrast to the Takamatsu District Court, which based its conclusion on the premise that playing online games was not a protected interest such that the right to pursuit of happiness was not engaged in the first place, the shutdown law survived constitutional muster because it satisfied the proportionality test. The majority concluded that the law struck a reasonable balance between the relatively modest burden imposed on juveniles and the societal benefits yielded from reduced social costs linked to internet gaming addiction. The shutdown law would eventually be scrapped in 2021.^{Footnote 176}

The right to “general freedom of action” comprises both a “positive” right to act and a “negative” right not to act in order to achieve “happiness”.^{Footnote 177} In the Seatbelt Case, the Court held that the right to general freedom of action was rooted in the idea that a free and rational individual was capable of deciding whether or not to engage in an act, for he or she could take care of his or her own affairs. That is why the right to general freedom of action also encompassed the right to live in a dangerous way, under which the right not to wear seatbelts fell. That said, the impugned mandatory seatbelt law would eventually be upheld as proportionate and constitutional.^{Footnote 178}

In the Constitutionality of the Police Action Blocking Passage to Seoul Plaza Case,^{Footnote 179} the CCK wrestled with the issue of whether the blockade amounted to an unconstitutional restriction on the complainant’s positive right to act. The majority sided with the complainant, ruling that a limitation on the use of a property earmarked for public passage, recreational, and cultural purposes, coupled with the obligation to seek user permission, constituted an undue encroachment on the right to general freedom of action. The general freedom of action likewise undergirds the freedom to contract,^{Footnote 180} and the workers’ freedom not to organize and not to be forced to join a labor union.^{Footnote 181} In the Family Ritual Standards Act Case, the CCK invalidated a statute prohibiting the service of alcohol and food to wedding guests on the same ground.^{Footnote 182}

All being said, skepticism toward the right’s breadth remains well and alive within the Court. That is why the CCK has formulated constraints in order to prevent its otherwise unchecked expansion. The Court has repeatedly emphasized that the right to pursuit of happiness will only be relied upon directly in the absence of more specific individual rights, such as the right to freedom of expression, which might be relevant and pleaded at bar.^{Footnote 183} In other words, “the right to pursue happiness is the supplementary basic right for other specified basic rights.”^{Footnote 184}

Some Justices have sounded a note of caution against the view that the right to general freedom of action ought to protect all spheres of human activity. In the Case on the Act on the Punishment of Commercial Sex Acts, where the criminalization of sex trafficking was challenged, Justices Lee Jung-Mi and Ahn Chang-Ho wrote in their concurring opinion that:

They concluded that:

In the Adultery Case of 2015, where the CCK ruled effectively to decriminalize adultery,^{Footnote 187} Justices Lee Jung-Mi and Ahn Chang-Ho penned a dissent echoing their concurring opinion above:

Consider next the second dimension of the right to pursuit of happiness, the derivative right to free development of personality, which operates to safeguard the basic conditions for personal identity and autonomy.^{Footnote 189} The right to pursuit of happiness, together with the adjacent right to dignity, furnish the doctrinal substratum on which the German-style “general right to personality” was recognized and anchored.^{Footnote 190} In the Case on Placing Limitation on Number of Transfer of Workplace by Foreign Workers, the CCK stated that the right to pursuit of happiness, “when concretely expressed, includes the general freedom of action and the right to free development of personality.”^{Footnote 191} In the Adultery Case, the CCK further declared that the right to free development of personality encapsulated the right to self-determination, and that the latter “connotes the right to sexual self-determination that is the freedom to choose sexual activities and partners.”Footnote ¹⁹² In the Case on Public Announcement of List of Successful Candidates for National Bar Examination, the CCK affirmed that it is possible to deduce the right to self-determination in relation to one’s personal information from Article 10, which encompasses “the right that the information holder can determine on his/her own as to when, to whom, and to what extent his/her personal information can be disclosed and used.”^{Footnote 193}

Much like a functional equivalent of Article 13 of the Japanese Constitution, the right to pursuit of happiness in the Korean Constitution supplies “an independent source of justiciable rights, for example, of rights not enumerated in the already fairly extensive bill of rights part of the Constitution.”^{Footnote 194} It operates as the standard for determining what are the rights that can legitimately be recognized via Article 37(1), which confirms that “[f]reedoms and rights of citizens shall not be neglected on the grounds that they are not enumerated in the Constitution.”Footnote ¹⁹⁵ The CCK has demonstrated a notable willingness to recognize unenumerated rights. For instance, in the Case of the Date of the First Phase of the Judicial Examination, the decision to schedule judicial examinations on a Sunday was challenged on the basis that it violated, among others, the right to rest, which lacks explicit textual support in the Korean Constitution. Whilst the claimant did not emerge victorious, the CCK did affirm that the right to rest could be derived from the right to pursuit of happiness via Article 37(1).^{Footnote 196} Other unenumerated rights proffered include the right to life, sleep, sunshine, and sports etc.^{Footnote 197}

Examining how Japan and Korea approach constitutionalizing the pursuit of happiness in parallel, a host of similarities become immediately apparent. First, constitutionalization unfolded against the backdrop of transnational influence, albeit to varying extents. Article 13 of the Japanese Constitution is a product of direct American involvement in the making of the text, whilst deliberate domestic replication gave birth to the right in Article 10 of the Korean Constitution. Second, German constitutional jurisprudence—in particular, the general right to freedom of action—offered a doctrinal lens that structured the jurisprudential debates on the parameters of the right. Third, the right functions as the source of unenumerated rights and the right to self-determination. It resembles what former President of the Israeli Supreme Court Aharon Barak called a “framework right” or “mother right”—a right at a higher level of generality that supplies a “common roof” below which “daughter rights” of a lower level of generality can be derived.^{Footnote 198}

In conclusion, the trajectory of the right to pursuit of happiness in the Japanese and Korean constitutional landscape illustrates how a foreign legal concept or constitutional provision can be migrated and domesticated. Whilst the American pedigree continues to loom large in the background, it eventually yielded to more complex jurisprudential theories developed by and actively contested among courts, governmental institutions, and academics. This demonstrates that the meaning of constitutionalized happiness is and has not been fixated in time, let alone space. Rather, its malleability and adaptability endow it with the capacity to evolve over time so as to accommodate changing social and political landscapes. The Korean example also exemplifies how a window-dressing provision could be repurposed and transformed by judges into a robust tool to identify and rectify constitutional illegality.