Chinese Constitutionalism, Text and Meta-Text: Part 5

Today was spent at the East China University of Political Science and Law in a workshop for graduate constitutional law students.

 (From  ECUPL)

The workshop was organized around the following theme: Theory and Implementation Issues and Examples on Harmonious Society, Rule of Law and Prospects for the Constitutional System of China. The purpose of this project is to develop the field of comparative constitutionalism, in its theoretical and applied dimensions, by engaging dialog, research and practice among faculty and students in both the United States and China and to explore the potential of China’s rule of law governance, without challenging the existing Marxist principles under which the state is organized.

China has adopted a written-constitution system. The Chinese Constitution not only reflects the most crucial values that are followed by the nation and its people, it is also a fundamental law with which people who actually rule the nation are determined to comply. The Constitution recognizes Marxism as the country’s leading ideology and the Communist Party the leading party. The Constitution, at the same time, recognizes that all the powers of the nation belong to the people. It also provides protection of rights and the principle of democratic centralism. Since the “Reform and Open up to the Outside World,” China has modified its Constitution many times and added implementation of planned economy, protection of human rights, and rule of law governance. Though the Constitution does not specify the power or organization of the Communist Party, the Party has consistently been the primary engine that calls for modifications and implementation of the Constitution.

(From New China promulgated the first constitution (1954), My Blog, Sept. 15, 2010)

In other words, Chinese constitutionalism presents a coherent but complex normative system memorialized in or through a simple written constitution, which happens to be compatible with the basic presumptions of conventional constitutionalism in its form while departing from convention in its essence. The Chinese constitutional system starts with separation of powers and checks and balances at its foundation. But unlike the West, where those foundational concepts are translated into the construction of government divided along functional lines (executive, legislative and judicial), the Chinese constitutional system divides the organization of the state into two parts, both operating under the normative framework of the constitution. On part is organized as a government apparatus charged with the lawful operation of the state. The other is organized as a Party apparatus charged with the elaboration of the substantive principles of constitutionalism and its application.


For Western elites, this organizational choice raises issues of legitimacy. Since the establishment of the Soviet Union, Western constitutional theory has tended to look suspiciously at the constitutionalization of Marxist Leninist government under the leadership of a single party in power. These judgments have formed the basis of analysis of Chinese constitutionalism as well, serving as the foundations for critique especially after the structural reforms of Deng Xiaoping and his successors after 1989. But are these criticisms inevitably correct in general and wholly applicable in the post 1989 Chinese context? Put another way, is it possible to theorize a state-party model of state organization that remains true both to the ideals of constitutionalism grounded in the core postulate of rule of law governance and to the Marxist principles under which the Chinese state is organized and through which it is governed? Chinese constitutional scholars, on the other hand, have been building on emerging global notions of constitutionalism to both embed their constitutional experiment within these larger currents and to theorize the distinctions between the Chinese and other models. If the development of such a model is possible, what does that mean for purposes of implementing a rule of law society in China and how does that translate into the relationship among the people, the Party and the state?

(From Foreign Language Press)

These questions suggest both the potential and difficulties of a global conversation about Chinese Constitutionalism as theory and as applied, on its own terms and in terms of the global constitutionalist discourse. This project is meant to bring together prominent scholars of constitutional law in the U.S. and China for the purpose of (1) bridging the research gap in Chinese constitutionalism, (2) strengthening the comparative dimension of the study of constitutionalism with emphasis on U.S. and Chinese constitutional developments, (3) and bring a more prominent focus on the issue of constitutional implementation in China. For these purposes, an initial set of workshops are proposed, to be led by Professor Zhiwei Tong in China and Larry Catá Backer in the United States. These workshops will frame the issues of Chinese constitutionalism that will be elaborated. The workshops will present the recent development of constitutional law research in both countries through the presentation of papers that will serve as the organizing framework for the workshops and set its future research agenda.

For a summary Chinese version:

和谐社会的理论与实践


暨


中国宪法体制的法治前景



本项目旨在促进中美两国的学者与学生开展比较宪法学的研究与讨论。同时，本项目将在不质疑马克思主义基本原则的前提下，探索中国依法治国的潜力。


中国是一个实行成文宪法制度的国家。中国宪法是一部既记载着中国奉行的最重要价值，也记载着执政者决心奉行的最重要社会规范的根本法。一方面，中国宪法确认了马克思主义作为国家指导思想的地位和共产党的领导地位，另一方面，这部宪法也承认国家一切权力属于人民、保障比较广泛的基本权利、并对国家机关的职权按民主集中制原则进行了划分。改革开放以来，中国宪法被多次修改，增加了实行计划经济、尊重和保障人权，以及实行法治的内容。这部宪法没有具体规定共产党的组织和权力，但共产党按惯例一直是组织修改和实施这部宪法的发动机。


换而言之，中国的宪政呈现的是一个清晰却复杂的价值规范体系，这个体系具象于一部成文宪法——这与传统宪法学的基本假设形式上吻合，实质上却可能背离。这个体系将国家机器的运作分割成两个部分——政府机构运用法律赋予的职权来管理国家，而政党组织的职能则是谋划宪政的具体原则及其适用。自前苏联成立以来，宪政理论始终试图以怀疑的目光审视一党执政之下的马克思主义国家的宪政。这些评判形成了分析中国宪政的基础。特别是在看待邓小平和他1989年以后的继任者们的改革方面，这些评判已作为批评中国宪政的基础理论。然而，这些批评成立、并且普遍适用于1989年之后的中国社会现实吗？换句话说，想建立一个同时合乎西方宪政观念，也合乎中国基本情况的宪政模式，这可能吗？另一方面，中国的宪法学者们一直致力于在全球新兴的宪政观念的基础上构建一个新的理论模式。这一理论模式旨在将中国的宪政实践融汇到全球的大环境中，并将中西方模式的差别理论化。如果这些模式是成立的，那么，这将会对在中国建设法治社会产生怎样的影响？这又会对国家、政党和人民之间的关系产生怎样的影响？


这些问题说明了关于中国宪政的讨论，不论是在理论还是在实践层面，不论是单纯就中国宪法展开讨论还是将其放置于全球化背景下，必将是困难和希望并存。此项目志在聚集中美两国卓越的宪法学者，以（1）为中美两国宪法学研究构建桥梁，（2）加强中美比较宪法学的研究，（3）进一步关注中国宪政的进展。出于这些目的，初步计划由来自中国的童之伟教授和来自美国的Larry Catá Backer教授来主讲一系列的关于中美宪法学的讲座。这些讲座将介绍两国宪法学研究的最新进展，讲座使用的论文将为本项目的下一步发展提供框架。讲座将以面向国际事务学院的部分学生和华东政法大学的师生的研讨课程的形式开始。这些讲座同时也将面向宾州大学的师生们开放。宰丝雨（宾州大学法学院2011届）将担任本项目的协调人员。此外，项目组织者将很愿意就他们的研究工作和讲座的目的向相关人员作出陈述。

For my presentation I focused on the issue of the internationalization of constitutional law and its effect on Chinese constitutionalism. For that purpose I used as an example, the effect of recent soft law efforts, efforts that China has formally approved, touching on issues of state obligations under international principles of business and human rights.


More interesting still was the conversation after the workshop.