Saturday, January 14, 2012

New Paper Posted: "Party, People, Government, and State: On Constitutional Values and the Legitimacy of the Chinese State-Party Rule of Law System"

 (Photo (c) Larry Catá Backer 2012).

Over the last several years I have been wrestling with the issue of constitutionalism.  (Larry Catá Backer, From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems (September 22, 2008). Penn State Law Review, Vol. 113, No. 3, 2009).  I have been especially interested in the consequences, for theory at least, of un-mooring the frameworks of constitutional theory from the Western European and North American constitution-making projects of the last two centuries.  (Larry Catá Backer, Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering (July 28, 2008). Indiana Journal of Global Legal Studies, Vol. 16, No. 1, 2008).

In an age of mass democracy and popular sovereignty, the construction of theories (or perhaps better put, of ideologies) of legitimacy in the construction of authentic and legitimate constitutional states carries with it potent law and social norm consequences.   (Larry Catá Backer, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century. Mississippi Law Review, Vol. 27, 2008). Constitutionalism, in this sense, suggests both the foundational power of substantive norm systems in the construction of legitimate public order, and the inability of constitutionalism itself to point to one or another substantive values systems as inherently superior to others. 

  (Photo (c) Larry Catá Backer 2012).

These issues have particular resonance outside the orbit of the traditional cluster of states through which constitutionalism as ideology is refined. One of the more interesting aspects of constitutionalism arises in connection with the possibility of theorizing the constitutional legitimacy of Party-State systems, and particularly that of the People's Republic of China. (Larry Catá Backer, The Rule of Law, the Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the 'Three Represents'), Socialist Rule of Law, and Modern Chinese Constitutionalism. Journal of Transnational Law and Contemporary Problems, Vol. 16, No. 1, 2006)

One ought to be able to test the idea that Western democracies describe the entire universe of acceptable models for the construction of authentic and legitimate constitutional states under principles of constitutionalism by examining states that adopted different constitutional models under the principles of constitutionalism. The object is not to suggest approval or disapproval, but to explore the parameters and limits of constitutionalist principles.
  (Photo (c) Larry Catá Backer 2012).
To that end I have posted to the Social Science Research Network a paper that explores the possibility of conceptualizing a framework for a Party-State that can be understood as legitimate under constitutionalist principles.  
(a final version of this paper is expected to be published soon in the Boston University International Law Journal).


The Chinese constitutional order is grounded in the distribution of popular sovereign power between the Chinese Communist Party and the administrative apparatus of the government of the state, privileging the political authority assigned to the Party over the administrative authority vested in the government. For those who embrace the ordering framework of western style constitutionalism, this organizational model poses novel questions about the legitimacy of the system itself. This article addresses those questions and attempts to articulate a basis for a legitimizing constitutionalist theory for states, like China, organized on a state-party model thus conceived. Since the establishment of the Soviet Union, constitutional theory has tended to look suspiciously at the constitutionalization of Marxist governments under the control of a single party in power. Such arrangements, even when clothed in the formal language of written constitutions, are generally considered illegitimate, especially in regimes in which the state’s power is vested in a government that is itself subject to the direction of an extra-constitutional power. In this context, constitutionalism is incomprehensible. These judgments have formed the basis of analysis of Chinese constitutionalism as well, serving as the foundations for critique of the reforms of Deng Xiaoping and his successors since the 1980s. This article examines whether these criticisms are inevitably correct in general, and wholly applicable in the current Chinese constitutional context. The relationship of constitutionalism to the Chinese constitutional system is examined. The article asserts that in order to understand Chinese constitutionalism, it is not sufficient to equate the constitutional system with the written constitution alone. Instead, China has moved toward a legitimately constitutionalist governance system in which power is divided between a vanguard party, which serves as the repository of political power, and the administrative organs of government. Thus understood, the Chinese constitutional system can be understood as both unique and legitimately constitutionalist.
I welcome comments.

1 comment:

Anonymous said...

Such a small think. ;-) But such a great idea