The symposium has now been “pre-published online” in Modern China Online First, by which forthcoming articles are published online before they are scheduled to appear in print. The formal paper version in Modern China will be out early March 2014. This post includes links to all of the symposium papers (available now to those with access to Sage publications) and abstracts of the contributions.
Abstract: Chinese constitutionalism is usually analyzed and found wanting in the West. The deficiencies of Chinese constitutionalism stem in part from its differences from the forms and sensibilities of governmental organization common in the West. But constitutionalism ought not to be reversed engineered to support a particular approach to its operationalization. This article considers the extent to which Chinese constitutionalism is both true to emerging global principles of constitutionalism and how those principles might be applied in a distinctly Chinese way while remaining true to the objectives of transnational constitutionalist principles. The constitutionally significant distinction at the root of the Chinese way of constitutionalism lies in its separation of powers doctrine, one that divides power between political and administrative functions and which does not vest the whole of the power of state in a government. The examination is undertaken through a close engagement with Jiang Shigong’s study of the foundations of Chinese constitutionalism within the context of universalist principles of legitimate constitutional expression.
Jiang Shigong, Chinese-Style Constitutionalism: On Backer’s Chinese Party-State Constitutionalism Modern China 0097700413511313, first published on December 16, 2013 as doi:10.1177/0097700413511313
Abstract: Currently, besides traditional national constitutionalism, there are three general approaches to constitutionalism in the world: transnational constitutionalism, theocratic constitutionalism, and party-state constitutionalism. The focus of this article is on Larry Backer’s research concerning China’s party-state system. Party-state constitutionalism is rooted in Marxism-Leninism, and was initially put into practice by the former Soviet Union. The People’s Republic of China in its early years largely followed in the USSR’s footsteps and developed its constitutional system under the traditional Soviet framework. However, since 1982, the Chinese party-state constitutional system has undergone several major reforms, and China has been gradually transforming into a “single-party constitutional state.” Grounded in the separation of powers between the party and the state, this new constitutional model serves to further the rule of law, reaffirm the paramount authority of the constitution, and dynamically balance the Chinese Communist Party’s (CCP’s) leadership position with the rule of law. The CCP, being an articulator of social norms and values, provides the substantive norms and values that form the basis of the rule-of-law constitution. The constitution, in turn, serves to limit the behavior of the party, so that the CCP will be subject to the constraints of the constitution and the rule of law.
Abstract: The state of constitutional theory is in flux. What was once the preserve of those who organized the state became the expression of mass democracy and the popular will, one that has been increasingly constrained by international consensus on the limits of political will within national borders. The stakes are high—constitutional legitimacy is fundamental to internal political stability and to international acceptance. Among the most contested forms of modern constitutional states are party-state systems grounded in Marxist-Leninist theory. This article considers Jiang Shigong’s development of a coherent and legitimating constitutionalist theory of China’s party-state system. It considers Jiang’s argument that constitutionalism must start with values and structure and then considers the mechanics through which it is institutionalized—either in writing or through structuralist approaches. It also examines Jiang’s construction of a formal-functional theory of Chinese constitutionalism that acknowledges the democratic basis and the representative character of the Chinese Communist Party within the party-state system. Jiang’s theoretical developments point to the deepening of an understanding of the legitimacy of Chinese constitutionalism. Jiang Shigong is part of a small group of Chinese academics who are working along distinct paths to move beyond the “legitimacy” issue of Chinese constitutionalism and tackle the much harder but more important question of the continued development of Chinese constitutionalism along the lines of its own logic. Critical to that project are notions of civic education and the consequences of the separation of powers at the heart of Chinese constitutionalism—one that distinguishes between the administrative power of the government, including the administration and rule of law, and the political power of the Chinese Communist Party, including the nation’s constitutional norms.
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Jiang Shigong, How to Explore the Chinese Path to Constitutionalism? A Response to Larry Catá Backer Modern China 0097700413511314, first published on December 16, 2013 as doi:10.1177/0097700413511314
Abstract: Larry Catá Backer and the author share nearly the same thoughts on Chinese constitutionalism, even though they approach this topic from different backgrounds and perspectives. In this article, the author reflects on how his legal-sociological approach to Chinese constitutionalism and his positioning of the Chinese Communist Party as de facto sovereign in China were first formulated in response to the argument about “constitutional adjudication” in Chinese legal academic circles more than a decade ago. As a response to Backer’s review, the author discusses the points that concern Backer—such as the grand theoretical background of the European structuralist conception of power and Rousseau’s theory of sovereignty, the subtle relation between Chinese lawyers and Chinese constitutionalism—and clarifies his difference with Backer on the party. The author argues that, in order to explore the Chinese path to constitutionalism, we need to think about some fundamental theoretical questions: Are we on the way to the end of history? What lessons should we take from the experience of Western countries with constitutionalism? How can one “Sinicize” universal values and reinvigorate Chinese classical civilization as an organic part of Chinese constitutionalism?
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Abstract: This article analyzes the crisis of representativeness in contemporary China from three perspectives: first, the fracture of representativeness is a general political crisis in the world; second, the crisis of representativeness resulted from the crisis of the socialist system in China, the core of which is the decline of class politics; third, theoretical debates and the mass line in the modern Chinese revolution are not only historical prerequisites for representative politics in China but also contain elements that transcend its representative system. In the context of post-party politics, rethinking this political heritage will contribute to the exploration of the future of politics.