Academic journal article Suffolk Transnational Law Review

Pluralism Anxiety and Globalization: Development of Constitutional Law in the New Framework

Academic journal article Suffolk Transnational Law Review

Pluralism Anxiety and Globalization: Development of Constitutional Law in the New Framework

Article excerpt

ABSTRACT

Globalization permeates every pore of society, and the globalization of the legal profession is no exception. This Article provides the comprehensive analysis of the relationship between globalization of the legal profession and the development of constitutional rights in China and South Korea. The issue's significance is best illustrated by the theory of benefits from legal pluralism and analysis of legal globalization's positive influence on the promotion of constitutional rights, as well as on the idea of the evolution of global constitutionalism. This Article details the current hurdles in the development of constitutional rights in China. The solution needs to harmonize with China's unique political circumstance. While preparing this Article, I found the dysfunctional side of the role of Chinese human rights lawyers. Therefore, it is important to provide role models and success stories of human rights lawyers who have resisted inappropriate power, developed constitutional rights, and acquired peoples' respect. Chinese legal educators need to make an effort to find educational role models worldwide (global role models). In addition, this Article examines whether an opening in the area of domestic legal practice to Chinese lawyers in foreign-based global law firms in China could promote a flow of more diverse perspectives regarding fundamental rights to the courts. As of September 2013, Korea has partially opened its legal market, and it is scheduled to open its legal market completely in 2017. Unlike Korea, according to the law regulating foreign law firms in China, Chinese lawyers employed at foreign law firms in China may not become involved in Chinese legal affairs. My suggestion is to amend Articles 15 and 17 of the regulation and allow these PRC licensed lawyers of global law firms to practice Chinese domestic law. China could benefit from the promotion of creative interpretation of the Chinese Constitution by diversified legal professionals in global law firms in China.

I. INTRODUCTION

"There is no war between the Constitution and common sense." (1)

--Justice Tom Clark

Globalization (2) permeates every pore of society, and the globalization of the legal profession (3) is no exception. The United States and the United Kingdom have been key countries in the globalization of the legal profession. The purpose of this Article is to examine the relationship between globalization of the legal profession and the development of constitutional rights. (4) Although there is no clear definition of the term "global constitutional law," (5) I categorize global constitutional law as the constitutional principles which should apply to the human being irrespective of cultural and legal differences between countries. This Article investigates how the globalization of the legal profession could be a useful tool for maximizing the recently well recognized notion of global constitutionalism in China and South Korea. The process of globalizing the legal profession includes denationalizing the legal markets. China--a country with a large number of global lawyers that also operates under a distinctive political system--provides a somewhat unique opportunity for examining the impact of global lawyers in terms of the public and private interests of the country where they practice. Demand for foreign legal services by multinationals in China has increased since China instituted their Open Door Policy in 1978. (6) The first American law firm to gain footing in China was Coudert Brothers in 1979. (7) As of December 31, 2011, 30 years after the establishment of the Chinese representative office of Coudert Brothers, the Ministry of Justice of China allowed 208 registered foreign law offices from several foreign countries, including the United States, the United Kingdom, France, and Germany. (8) In March 2009, the Korean National Assembly finally passed a bill authorizing a partial opening of the domestic legal services market. …

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