With the advent of globalisation and the ubiquity of modern technology, the world has become increasingly interdependent, and a seamless transnational flow of commodities and capital is gradually erasing national boundaries. Constitutional ideas too are not immune from this globalizing force. Mark Tushnet has projected that constitutional systems all over the world will ‘inevitably’ converge ‘in their structures and in their protections of fundamental human rights’. There are multiple pathways to such constitutional convergence. The changes can arise exogenously, for example when new constitutions are imposed by foreign powers on domestic states, or when countries are coerced into accepting constitutional change in exchange for economic or military aid. Other constitutional changes can occur endogenously, for example the domestic legislature relies on foreign materials to amend its constitution, or domestic judges incorporate comparative legal materials when interpreting their local constitutions. This chapter focuses on Asian developments. Specially, it seeks to explain why Taiwan and South Korea – two liberal democracies – are converging with the West on constitutional jurisprudence, while authoritarian states like China and Singapore – deeply suspicious of Western values – remain outliers and have diverged from this cosmopolitan constitutional project.

This chapter introduces the aims and scope of this handbook. In this handbook, we seek to showcase the diverse perspectives offered by contributors from all over the world concerning topics of comparative law. We begin by outlining the proposition that one’s culture and identity shape what we do and how we think, but we also suggest that understanding law in a global context requires us to transcend a radical scepticism about the comparative law enterprise and also avoid exclusionary ‘identity politics’. We proceed by explaining the structure of the handbook and summarising the key contents of each chapter in the handbook.

Courts are political institutions. And judges do not operate in an institutional or ideological vacuum, as they are shaped by the social, political, and economic struggles that take place within their political systems. Where the strategic environment confers discretion on the courts, the judges can construct a constitutional identity for their jurisdiction distinct from their government’s vision and redefine the polity’s place in the world. And this constitutional convergence in East Asia will endure so long as the political system in each jurisdiction remains fragmented, the courts continue to be independent and judges choose to align their local jurisprudence with Western human rights law.

Taiwan, South Korea, and Hong Kong are exceptional insofar as their courts are the only ones in Asia that have converged on the use of Structured Proportionality (SP) to invalidate legislation routinely. Their judges reason through the four-stage SP sequentially and harness SP to overturn state action regularly. In East Asia, SP has been used to invalidate laws that limit free speech, freedom of assembly, criminal due process, prisoners’ rights, the right to work, sexual autonomy and the right to property.

There are limits to this constitutional convergence in East Asia. The three courts in Taiwan, South Korea and Hong Kong will not converge on electoral reform and matters impacting national security. While Taiwan and South Korea are dynamic democracies where competing political parties take turn in office, Hong Kong is a sub-unit of communist China. Therefore, the pursuit of major electoral systemic changes, personnel changes adverse to China’s core interests or challenges that are perceived to undermine national security or sovereignty are simply off-limits to the Hong Kong judiciary.