Monday, May 28, 2012

Announcing Publication of Article: "Party, People, Government And State: On Constitutional Values And The Legitimacy Of The Chinese State- Party Rule Of Law System"

I am happy to report that my article,  "Party, People, Government And State: On Constitutional Values And The Legitimacy Of The Chinese State- Party Rule Of Law System," Boston University International Law Journal 30:331-408 (2012).

(From Handbills From the Cultural Revolution 1966-1976 "Never Forget that the Chinese Communist Party
Emancipated Us! All Happiness Comes
From Chairman Mao!

My thanks to Kevin Kozlowski, 2011-2012 Editor-in-Chief at Boston University School of Law International Law Journal and the staff of the BU International Law Journal for an excellent job of seeing this article and an excellent volume through to publication.

 Kevin Edward Kozlowski

I have included here below the Table of Contents, the abstract and the introduction of "Party, People":

Larry Cata ́ Backer*
  1. INTRODUCTION ............................................ 332
  2. THE CONTOURS OF CONSTITUTIONALISM .................. 345
    TO HU JINTAO, AN EVOLVING IDEOLOGICAL CONSTRUCTION ............................. 364
    CONSTITUTIONALISM ...................................... 402
  7. CONCLUSION .............................................. 407 ABSTRACT
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 order- ing 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. 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, 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 is both unique and legitimately constitutionalist. 

 (Pix from

Scholars and policy makers have come to understand that the Chinese Communist Party (CCP) plays a role in the political life of the People’s Republic of China. Chinese scholars have sought to explain that role to Western audiences in political terms. Zhu Soli provides a good example: “In my own view, and in the view (explicit and implicit) of many Chinese and foreign scholars, the CCP’s influence and control is ubiquitous; it penetrates every aspect of society. . . .”2 But notions of penetration, control and influence do little to provide a useful understanding of either the institutional role of the CCP or the constitutional legitimacy of the resulting structure of government under emerging principles of constitutional theory. This article seeks to suggest a basis for theorizing a legitimate institutional role for the CCP within a Chinese constitutional system organized in conformity with global principles of National Constitutionalism.
China, like most other states, has adopted a written-constitution system.3 The Chinese Constitution (Constitution) is meant to reflect not only the most crucial values the nation4 and its people follow, it is also meant to serve as a fundamental law that legitimizes both the foundation of popular sovereignty and obligations exercised by state organs.5 The Constitution recognizes Marxism as the country’s leading ideology and the Communist Party as the leading party. At the same time, the Constitution recognizes all the powers of the nation belong to the people. This constitutional order — organized around Party, people, government, and state — has posed novel questions for western oriented constitutional thinking.6 This article considers whether it is 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 govern- ance7 and to the Marxist principles under which the Chinese state is organized and through which it is governed.8

Constitutionalism has, for the last century, sought to provide a basis in theory for legitimating certain forms of state organization within territorially based political communities.9 Constitutionalism has come to be understood as a complex systemic ideology of the construction of governance.10 At the most basic level, it can be understood as consisting of five elements: (1) a system of classification, (2) the object of which is to define the key characteristics of constitutions, (3) for the purpose of determining the legitimacy of a constitutional system as conceived or as implemented to provide a principled basis for outsiders (foreign states, entities, individuals) to judge the lawfulness of the constitutional order created and for insiders (citizens) to judge the distance between the ideals of their constitutional system and its reality (and to act thereon), (4) based on the fundamental postulate that the use of governmental power is subject to rule of law limits that are in turn (5) grounded on values derived from a source beyond the control of any individual.11

Since the establishment of the Soviet Union, constitutional theory has generally looked suspiciously at the constitutionalization of Marxist state apparatuses under the control of a single party.12 There exists a sense of illegitimacy and a suggestion of sham constitutions in regimes where ultimate state power is vested in an apparatus which itself is subject to the direction of an extra-constitutional power, which in turn is usually sus- pected of badly masking systems of personal rule. With state under Party, and Party serving as a system of leveraging personal power, the State-Party system is viewed as a cover for tyranny and despotism – as a veil over the personal rule of an individual or a clique according to their whim and supported by the coercive power of a military apparatus and internal terror regimes. In such a context, constitutionalism truly is incomprehensible.13 

 These judgments have formed the basis for analysis of Chinese constitutionalism.14 The pre-Deng Chinese state governance architecture could be dismissed as anti-constitutional,15 rather than criticized for failures to appropriately incorporate constitutional principles.16 Beginning in the late 1970s, the nature of the engagement with constitutionalism changed.17 But that change also served as the foundation for criticism of Chinese constitutionalism following the reforms of Deng Xiaping and his successors starting in 1989. 18 The intensity of the critique increased in parallel with the institutionalization of China’s campaign to separate the state from the Party apparatus and to introduce notions of law and rule of law within the state and Party apparatus.19 After Deng, China was judged from a constitutional perspective – and it was judged increasingly harshly,20 or simply dismissed as a capitalist but totalitarian state.21 “China and Russia represent a return of economically successful authoritarian capitalist powers, which have been absent since the defeat of Germany and Japan in 1945, but they are much larger than the latter two countries ever were.”22 Moreover, the move to a constitutional institutionalization of state power in China after 1979 refocused the object of analysis – from a personality driven State-Party dictatorship to the development of state institutions under the constitution.23 The CCP was deemed either increasingly irrelevant or an obstacle to democratization along Western lines.24 For example, as Stanley Lubman wrote, “although they have continued to emphasize the importance of the role of law, at the same time they also insist on maintaining the dominant role of the CCP in Chinese society, and cannot resolve the contradiction between these two policies.”25 The state apparatus was criticized as both unresponsive to the will of the people and unconnected to the usual vehicle for accountability (free and fair popular elections). Viewed strictly from the perspective of the National Constitution and the State governmental apparatus, China effort to project itself on the global stage as a constitutional state was viewed as a failure.26

Are these criticisms inevitably correct and applicable in the post-1989 Chinese context? This article explores the question, suggesting a basis for articulation of a legitimizing constitutional theory for states organized on a State-Party model. Focusing on the evolution of State-Party constitutionalism in China since the end of the Mao Zedong era, Part II reviews the basic principles of current constitutionalism theory and its importance as a legitimating global ideology27 against which state organization, and the actions of state officials, are judged. It starts from the premise that constitutionalism is itself an ideology with its own reference framework.28 That ideological framework is important, not only as a powerful tool of analysis, but as a basis for making political judgments about the quality of state governance among the community of nations and, increasingly, within political communities. Constitutionalism is best understood as a system of classification for the purpose of judging the legitimacy of state governance systems as conceived and as applied, grounded in the fundamental postulate of rule of law governance and based on a system of values beyond the control of any individual for the limitation and bureaucratization of governmental power.29 The basic premise of constitutionalism is to distinguish legitimate government from despotism or tyr- anny.30 The distinguishing characteristic of modern constitutionalism is the privileging of a values system that both limit state power and provide the basis for applying that power.31 The three important variations of constitutionalism are identified and explored in the Introduction.32 The interactions between these variations have played an important role in framing constitutionalist discourse since 1945. The oldest is nationalist constitutionalism, which no longer represents the only variation of constitutionalism. The government structures established by the American and French constitutions provide the best examples. They derive substantive value principally from within the polity. The second, transnational Constitutionalism, has emerged as a powerful force since 1945.33 Transnational Constitutionalism is grounded in a constitutional values system derived from the common constitutional tradition of a community of states evidenced either in shared practices and values, customary international law norms or memorialized international rules in the form of trea- ties and conventions.34 Since the 1970s, another powerful values system has emerged: theocratic constitutionalism. Theocratic constitutionalism is grounded in the embrace of the rule of law principle of state construction, but implemented on the basis of and through the rules system of a single religion.35

Post-Deng China may provide another variant of values systems within constitutionalism. To explore the issue it is necessary to examine the true context of Chinese constitutionalism – not as Westerners have come to understand its exposition but as the Chinese have attempted to construct it for themselves.36 For that purpose, Part III very briefly examines the evolution of the State-Party model of governance from its origins in nineteenth century European Marxist theory to its reception in China in the 1920s and its modern transformation “under the guidance of Marxism- Leninism, Mao Zedong Thought, Deng Xiaoping Theory and the important thought of ‘Three Represents.’”37 The objective is to provide con- text for the analysis of China’s constitutional framework to be tested against the normative groundings of nationalist or transnational Constitutionalism.

Part IV turns to the issue of the legitimacy of Chinese constitutional- ism. It suggests that it is possible to theorize a State—Party model of state organization that remains true to the ideals of constitutionalism grounded in the core postulate of rule of law governance.38 The basis of contemporary Chinese State-Party constitutionalism requires a different approach to defining the written constitution. It must include both the document constituting the state and the document constituting the Party as equivalent components that together form a document comparable to National Constitutions in the West. It is also based on a different under- standing of the character of the Communist Party – not as a political party or as a private actor but as an integral part of the institutional structure of government and, more importantly, as the holder of political citizenship.

Part V then sketches the contours of a constitutionalist State-Party. The basis of Chinese State-Party constitutionalism requires a preconception of constitutional understanding. Party and people frame the organization of the ‘political order, which occupies the paramount place within Chinese constitutionalism. Beneath it is the state and the apparatus of state organization – the government. People may participate in staffing the government, but the Party retains its role as the government of the political sphere. Chinese constitutionalism understood as state and party constitutionalism can serve as a basis for understanding the way in which rule of law governance is legitimately possible where the disciplinary focus of constitutional duty is focused not primarily on the state apparatus, but instead centers on the Party apparatus.

These insights produce substantial consequences for the way Chinese constitutionalism is understood and evaluated under global constitution- alist standards. The fundamental insight, one more readily recognized within China than outside of it, is the nature and structural effect of the “party in power” concept.39 Taking Chinese theory at face value40 it becomes clear that, at least since the time of Deng Xiaoping, the Chinese Communist Party has sought to attain a more refined institutionalization within the political order.41 With that institutionalization has come a reliance on those mechanisms that constrain assertions of personal power through rule of law concepts. Rule of law provides an expression of collective governance. That collective space, in turn, serves as the site for democratic citizenship. That site is the Party itself, as an autonomous community operating within the overall framework of the Constitution and its values system. That community itself serves as a representative and proxy for the nation in two respects: (1) it is the site where political values are elaborated and protected, and (2) it serves as the body of individuals charged with the task of such elaboration and protection within both the political order and in its state institutions. It is in this sense that one can better understand the modern meaning of that old Marxist notion of Party as vanguard, and the way it has evolved from old Soviet era notions42 – the Party itself is vanguard/guardian of fundamental substantive values of the political state.43 It is in this sense as well that one can understand Party membership as the functional equivalent of political citizenship. The holders of political citizenship, Party members, serve within the Party as forces for social cohesion and the deployment of values based rule of law substantive values and outside the Party in a fiduciary capacity to all people in the political community who are holders of social and economic rights, but who lack political rights.44 Political citizenship, then, though limited, is open to those who would adhere to and further the political and rule of law values of the Party within the governance structures of the state established for that purpose.45 Rule of law notions within the Party are then applied to make political citizenship available to all in exchange for adherence to the Party “line” (ie: the substantive political values on which the state was founded). This is in line with the ethos surrounding the Three Represents campaign.46 Rule of law, then, resides within the Party architecture. It is from the Party architecture that rule of law concepts move into the governmental, social and economic spheres.

The Party as the polity, then, becomes the foundational framework of Chinese constitutionalism. For those who adhere to the view that political citizenship equally and horizontally dispersed among the people is a prerequisite for a values-positive constitutional state, this notion is both radically offensive and evidence of the anti-constitutional stance of the Chinese model. The creation of a hierarchy of political citizenship, with Party cadres assuming a leading role, lies at the heart of what people seeking fidelity to advanced western political models would view as a crit- ical defect of the State-Party mechanism. These defects lie at the heart of a criticism of any argument suggesting that State-Party systems like that in China can ever attain constitutional legitimacy. The answer, of course, is not necessarily. Party as polity notions run counter to deeply held value systems at the heart of Western and transnationalist constitutional- ism. But they do not necessarily run counter to constitutional notions grounded in deep rule of law notions in which democratic governance principles are indirect rather than direct and where those vested with primary political citizenship are themselves bound to normative values that enhance, if indirectly, democratic participation and popular welfare. These values are incompatible with Western notions, to be sure, but not, for that reason alone, incompatible with constitutional notions.

State organization, then, assumes a consequentialist role. It devolves from, and reflects, Party organization and the values it represents as an institutionalized, rule governed collective of the state’s political citizens. State organization, represented by the National People’s Congress system, is a legitimate arena for the participation of the people, for example, through elections.47 Under the paramount leadership of the Party, government can be opened to popular participation, even as participation in the political sphere is limited to members of the Party and centered on Party organization. To understand Chinese constitutionalism, one has to recognize that the Chinese Constitution exists as a combination of polity and governing ideology on the one hand and state apparatus on the other. The Chinese Communist Party serves as the institutionalization of the polity and the source of its substantive values. The government established under the National Constitution serves as the institutionalization of state power, within which the people may more directly participate under the guidance of the Party. The Party is the repository of political power; the government the repository of administrative power. Together they represent the whole of the Chinese constitutional order.48
Chinese constitutional analysis, then, ought to be grounded on both the National Constitution and the CCP Constitution, and its application of rule of law ideals within its value system as part of the constitutional ordering that serves as the foundation for the elaboration of state power under the National Constitution. This structure of power relationship between political collective and governmental organizations meant to institutionalize state power (within that collective) have significant values effects on the way in which Party, state and individuals relate. These include the reflection of the State-Party construct (1) in a division of the character of citizenship between economic and social citizenship, claimed by all persons, and political citizenship, which can be exercised through the Party, (2) in an understanding of political organization in which state power and its institutions are subordinate to political authority, (3) in an institutionalization of political authority within a collective that serves as the source and conduit of constitutional values to be applied by the holders of state authority, and (4) in a system in which Party elaboration of rule of law values is contingent on state and party self-discipline. 

Chinese constitutionalism, when understood as a symbiosis of political and administrative power divided between state and party, can serve as a basis for understanding the way in which rule of law governance is legitimately possible where the disciplinary focus of constitutional duty is focused not primarily on the state apparatus but instead centers on the Party apparatus. Rule of law constitutionalism in China is better under- stood as State-Party constitutionalism, with a necessary focus on Party rather than State. But for all the focus on the party, it is a state that is being developed. This state is acquiring a governance apparatus true to the basic notions of constitutionalism – rule of law, accountability, and limited government. The unique features of the system lie in the role of the Party. That role remains constitutionalist to the extent that it, too, embraces both rule of law and institutionalization. But the Party does not serve merely as a supervisory overlay to the state system in a way that the religious establishment serves as an overlay in theocratic constitutionalist systems.49 Instead, the Party also serves as the manifestation of the polity, and it is in this sense especially that its connection with constitutionalism is most felt.50 With a transformation from a party of individuals to an institution representing the political citizenship of the nation, the Party retains its constitutionalist character, but only to the extent that it observes the same rule of law framework as that imposed externally on the state apparatus in its internal operations.
Constitutionalism in China enshrines the core value of popular power and accountability, as well as rule of law process principles, but in a way that separates political from administrative power under the umbrella of constitutional values. Popular sovereignty is expressed politically through the CCP and administratively through the government. The people hold the government directly accountable. The Party leadership holds the government indirectly accountable. The Party represents the people directly but may act only to further the fundamental substantive principles on which the state is founded. The people speak through the Party but act through the state. These are the fundamental ordering principle of Chinese constitutionalism. Organized in this way, it is possible to recognize structures in the organization of State-Party systems that are consonant with basic principles of constitutionalism even though the system’s substantive values may be incompatible with the forms of expression valued in secular states and commonly invoked as proper models of constitutional states. Legitimated within its organizational parameters, the real work of Chinese constitutionalism can be undertaken. Chinese constitutional organization, then, can be measured against its own substantive ideals and framework, which provide the normative standards to which the government of the state must be held. This is constitutionalism with Chinese characteristics.

1 Earlier versions of this article were presented at the conference Constitutionalism in China in the Past 100 Years and Its Future, City University of Hong Kong and at Pennsylvania State University. 

2 Zhu Soli, Political Parties in China’s Judiciary, 17 DUKE J. COMP & INT’L L.533, 535 (2007) (citing in part SUN ZHONGSHAN & SUN SHINGSHAN QUAN JI, COMPLETE WORKS OF SUN YAT-SEN, vol. 8, at 267-68, vol. 9, at 103-04 (1986)).
Despite the many political differences between the CCP and its former arch-rival, the Nationalist Party (known as the Guomindang or GMD) and despite the fact that the CCP never used the GMD’s often deployed concept ‘State-Party,’ in practice, the CCP inherited the political tradition, initiated by Sun Yat-Sen and pursued by the GMD, comprised of a ‘party construction of the state,’ ‘party rule of the state,’ and ‘party above the state.’

3 Writing a constitution has ideological significance in the context of emerging norms by which the legitimacy of state organization is judged. “Constitutionalism is commonly identified with a written constitution.” Louis Henkin, A New Birth of Constitutionalism: Genetic Influences and Genetic Defects, in CONSTITUTIONALISM, IDENTITY, DIFFERENCE AND LEGITIMACY: THEORETICAL PERSPECTIVES 39, 40 (Michel Rosenfeld ed., 1994); WALTER F. MURPHY, CONSTITUTIONAL DEMOCRACY: CREATING AND MAINTAINING A JUST POLITICAL ORDER (2007). Cf. Thomas Paine, The Rights of Man, in THE SELECTED WORK OF TOM PAINE 93, 209-28 (Howard Fast ed., 1945) (1792). But see, e.g., Thomas Grey, Do We Have an Unwritten Constitution?, 27 STAN. L. REV. 703 (1975).
4 The term nation is complicated and contentious. This article does not mean to add more to the debate. The term here is used loosely. James Wilford Garner comes to mind:
The term ‘nation’ as used today by most writers connotes a political organization; that is, a nation is not only an association of which the bonds of union are cultural and spiritual, but it is also a politically organized aggregation. In short, it is a state. Consequently the terms ‘state’ and ‘nation’ are frequently used as synonyms.
“The limits of the state may extend beyond the boundaries of the nation . . . and conversely the boundaries of the nation may be wider than those of the state.”
Id. at 114. But see John Hutchinson, Ethnicity and Modern Nations, 23(4) ETHNIC & RACIAL STUDIES 651-69 (2000) (considering “an alternative model of nation-forma- tion, one that conceives of the nation as a quasi-kinship group, only contingently related to the state, and that recognizes the power of states to regulate populations is limited and fluctuating”).
5 See, e.g., Ulrich K. Preuss, Patterns of Constitutional Evolution and Change in Eastern Europe, in CONSTITUTIONAL POLICY AND CHANGE IN EUROPE 95 (1995).
6 The novelty can be negative. See, e.g., RICHARD MCGREGOR, THE PARTY: THE SECRET WORLD OF CHINA’S COMMUNIST RULERS (2010). But see China’s Legal System: New Developments, New Challenges, THE CHINA QUARTERLY SPECIAL SERIES No. 8 (Cambridge University Press, 2008) (providing a more balanced analysis of China’s constitutional order).
 7 This is undertaken in the spirit of the works of others as well as my own earlier works. See, e.g., RANDALL PEEREMBOOM, CHINA’S LONG MARCH TOWARD RULE OF LAW (2002); STE ́PHANIE BALME, BUILDING CONSTITUTIONALISM IN CHINA (2009). See generally Michel Rosenfeld, The Rule of Law and the Legitimacy of Constitutional Democracy, 74 S. CALIF. L. REV. 1307 (2001).
8 This article is part of a larger U.S.-China constitutional law project called Theory and Implementation Issues and Examples on Harmonious Society, Rule of Law and Prospects for the Constitutional System of China. This project brings together prominent scholars of constitutional law in the U.S. and China for the purpose of bridging the research gap in Chinese constitutionalism, strengthening the comparative dimension of the study of constitutionalism with emphasis on U.S. and Chinese constitutional developments and bringing a more prominent focus to the issue of constitutional implementation in China, without the distraction and policy focus of constitutional legitimacy. See Miguel Schor, Forward: Symposium on Constitutional Review in China, 43 SUFFOLK U. L. REv. 589 (2010). See, e.g., Zhiwei Tong, A Comment on the Rise and Fall of the Supreme People’s Court’s Reply to Qi Yuling’s Case, 43 SUFFOLK U. L. REV. 669 (2010); Larry C. Backer, A Constitutional Court for China Within the Chinese Communist Party?: Scientific Development and a Reconsideration of the Institutional Role of the CCP, 43 SUFFOLK U. L. REV. 593 (2010) [hereinafter Backer, A Constitutional Court]. For a strong caution, see, e.g., STANLEY LUBMAN, BIRD IN A CAGE: LEGAL REFORM IN CHINA AFTER MAO (2002); PITTMAN B. PORTER, DOMESTIC LAW REFORMS IN POST-MAO CHINA (1994); Neil J. Diamont, Stanley B. Lubman & Kevin J. O’Brien, Law and Society in the People’s Republic of China, in 3 ENGAGING THE LAW IN CHINA: STATE, SOCIETY, AND POSSIBILITIES FOR JUSTICE (2005).
9 “To formulate a basic definition of constitutionalism presents no problem at all. This is so because the elements of the definition are self-evident. The elemental components of constitutionalism are simply: limited, non-arbitrary government, legally enforceable rights and the dominance of the law.” FRANC ̧OIS VENTER, CONSTITUTIONAL COMPARISON: JAPAN, GERMANY, CANADA AND SOUTH AFRICA AS CONSTITUTIONAL STATES 20 (2000). For a traditional understanding of national boundaries and the limits of domestic legal systems, see WESTEL W. WILLOUGHBY, THE FUNDAMENTAL CONCEPTS OF PUBLIC LAW 30 (1924). I have argued that the basic definition of constitutionalism is both more complex and flexible in embracing variation, but also suggested the requirement of a substantially well-structured system of substantive rules. For a discussion of the context in which I will use the notion, see, Larry C. Backer, From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems, 113 PENN ST. L. REV. 671 (2009) [hereinafter Backer, From Constitution to Constitutionalism]; Larry C. Backer, God(s) Over Constitutions: International and Religious TransNational Constitutionalism in the 21st Century, 27 MISS. C. L. REV. 11 (2008) [hereinafter Backer, God(s) Over Constitutions]. See generally Giovanni Sartori, Constitutionalism: A Preliminary Discussion, 56 AM. POL. SCI. REV. 853, 853-62 (1962). 
 0  See Backer, From Constitution to Constitutionalism, supra note 9, at 671 
11  Id. 
12  Events in 1939 and after 1945 have made clear that all totalitarian dictatorships have much in common. Unnoticed by many, Stalinism has emerged as the dictatorial reaction to revolutionary communism. Stalin, like Napoleon, used revolutionary slogans but killed those who took them seriously. Fascism and Nazism were similarly reactionary to revolutionary socialism of Central Europe. CARL J. FRIEDRICH, CONSTITUTIONAL GOVERNMENT AND DEMOCRACY: THEORY AND PRACTICE IN EUROPE AND AMERICA 455 (1950).
13 Concededly, the task before Russian Marxists could not have been accomplished according to the precepts of Western constitutionalism or democracy. Of the alternative methods available for political consolidation and economic reconstruction, the policy chosen at every step was one that would vest the most power in the dictator and his entourage.ADAM B. ULAM, THE UNFINISHED REVOLUTION: AN ESSAY ON THE SOURCES OF INFLUENCE OF MARXISM AND COMMUNISM 225 (1960). 
 14 See, e.g., Michael W. Dowdle, Of Parliaments, Pragmatism, and the Dynamics of Constitutional Development: The Curious Case of China, 35 N.Y.U. J. INT’L L. & POL. 1 (2002) (esp. Parts I-V); Randall Peerenboom, Let One Hundred Flowers Bloom, One Hundred Schools Contend: Debating Rule of Law in China, 23 MICH. J. INT L. 471, 474 (2002); Stanley Lubman, Bird in a Cage: Chinese Law Reform after Twenty Years, 20 NW. J. INT L. & BUS. 383, 402 (2000). See also Li Yahong, The Law-Making Law: A Solution to the Problems in the Chinese Legislative System?, 30 HONG KONG L.J. 120, 125-26 (2000); W. Theodore de Bary, The “Constitutional Tradition” in China, 9 J. CHINESE L. 7 (1995).
15 See, Jan F. Triska, Introduction, in CONSTITUTIONS OF THE COMMUNIST STATE- PARTYS. xi-xiii (Jan F. Triska ed., 1968). The Cultural Revolution added evidence to this assessment. “Structural conditions under Mao’s rule reflected the dominance of politicized organizations over social groups . . . . Mao acted as the charismatic leader – the socialist prophet, ideological educator, visionary poet, military commander, head of the CCP and moral architect of a transformed society.” CHARLES F. ANDRAIN, COMPARATIVE POLITICAL SYSTEMS: POLICY PERFORMANCE AND SOCIAL CHANGE 121 (1994).
17 “For the leadership it meant that the Party and government should be more responsive to public opinion, and that ‘the masses’ should be given institutionalised means by which they could supervise, criticize and, to a limited extent, choose their leaders.” JOHN GARDNER, CHINESE POLITICS AND THE SUCCESSION TO MAO 141 (1982). “But as good Leninists, China’s leaders intended that the Party should remain in full control, that the extension of freedoms should be gradual, and that there should be no decline into ‘anarchism.’” Id.
18 See, e.g., id. at 141-72. As Fewsmith observes:
Without a basic consensus on the territorial limits of the state or on who is a citizen and without an adequately functioning bureaucracy, it seems impossible to develop the other characteristics that Linz and Stepan identified as necessary for successful democratic transition: rule of law (a Rechtsstaat), a ‘free and lively’ civil society, an institutionalized economic society, and a ‘relatively autonomous’ political society.

JOSEPH FEWSMITH, CHINA SINCE TIANANMEN: THE POLITICS OF TRANSITION 6 (2001) (citing Juan J. Linz & Alfred Stepan, Toward Consolidated Democracies, in CONSOLI- DATING THE THIRD WAVE DEMOCRACIES: THEMES AND PERSPECTIVES, 14–33 (Larry Diamond et al. eds, 1997)).
19 However, one must be careful here. As in the West, the notion of rule of law can be a slippery concept, and quite malleable when invoked beyond its more general understanding. For example, the Chinese government (or the Party) can use the concept “rule of law” ( ) quite narrowly – in the sense of rule by law in its administrative applications, and only sparingly in the broad constitutional sense that I describe in Section II, infra. But that it is used, directly or indirectly, can be viewed as a significant advance, though one whose full development has yet to be realized.
20 “What Deng wanted most urgently was to remove the impediments for the pursuit of rational economic policies by changing from the Maoist legacy, deradicalizing the ideology, downplaying . . . class struggle and abandoning the “storming approach” of conducting political campaigns.” Deng also “[Drove] the remnants of the Gang of Four out of power.” HSI-SHENG CHI, POLITICS OF DISILLUSIONMENT: THE CHINESE COMMUNIST PARTY UNDER DENG XIAOPING, 1978- 1989 257 (1991). “All along, Deng never regarded the CCP as the cause of the turmoil in the Cultural Revolution but only as its victim. To Deng, the rejection of the Cultural Revolution approach would be sufficient to restore the party to its previous status of predominance in the Chinese polity.” Id. at 258. The judgments became harsher after 1989. See, e.g., PETER M. LICHTENSTEIN, CHINA AT THE BRINK: THE POLITICAL ECONOMY OF REFORM AND RETRENCHMENT IN THE POST-MAO ERA (1991).
22 Azar Gat, The Return of Authoritarian Great Powers, FOREIGN AFF., July – Aug. 2007, at 59, 66.
23 Michael Sullivan, The Ideology of the Chinese Communist Party Since the Third Plenum, in CHINESE MARXISM IN FLUX, 1978-84: ESSAYS ON EPISTEMOLOGY, IDEOLOGY, AND POLITICAL ECONOMY 67 (Bill Brugger ed., 1985).
24 Stanley Lubman, Dispute Resolution in China After Deng Xiaoping: “Mao and Mediation” Revisited, 11 COLUM. J. ASIAN L. 229 (1997). 
 25 Lubman, Bird in a Cage, supra note 14, at 399.
26 See Larry C. 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, 16 J. OF TRAN’L. L. & CONTEMP. PROBS 29 (2006) [hereinafter Backer, The Rule of Law].
27 See the discussion in supra, text and accompanying notes.
28 See Section II, infra.
29 Bureaucratization is to be distinguished from bureaucratism, or ”the high
handed attitude of cadres toward the masses.” FREDERICK C. TEIWES, POLITICS AND PURGES IN CHINA: RECTIFICATION AND THE DECLINE OF PARTY NORMS, 1950-1965 198 (1993).
30 See, e.g., Alan S. Rosenbaum, Introduction, in CONSTITUTIONALISM: THE PHILOSOPHICAL DIMENSION 1, 4-6 (Alan S. Rosenbaum, ed., 1988). “In general, governmental institutions and officials who are permitted to operate legitimately or officially ‘above the law,’ will inevitably pursue their own agenda . . . . A democratic and just constitutional ‘rule of law’ . . . is supposed to prevent precisely this tyranny.” Id. at 5.
31 See, e.g., Backer, From Constitution to Constitutionalism, supra note 9, at 113. 
 32 See the discussion in supra, notes 20-24 and accompanying text.
33 See, e.g., Backer, God(s) Over Constitutions, supra note 9, at 11.
34 These include respect for human rights, process rights and a commitment to
democratic rights of citizens. See Backer, From Constitution to Constitutionalism, supra note 9, at Part II.
35 See, e.g., NOAH FELDMAN, THE FALL AND RISE OF THE ISLAMIC STATE (2008); Larry C. Backer, Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering, 16 IND. J. GLOBAL LEGAL STUD. 85 (Winter 2009) [hereinafter Backer, Theocratic Constitutionalism].
36 See, e.g., RANDALL PEERENBOOM, CHINA’S LONG MARCH TOWARD RULE OF LAW (2002); Soli, supra note 2.
37 See XIANFA, pmbl. (1982) (China), available at constitution/constitution.html. 
 38 This represents a substantial development of the socialist law notions transposed from the Soviet Union and adopted by the CCP.
Taking an economic reductionist position, such [early Soviet] theorists argued that, since a commodity economy was the essential material condition for law, law would cease to exist as that commodity economy withered away. Since law was class-bound and conflict-ridden, Marxist theory precluded any idea of socialist (or proletarian) law. Meanwhile, law in the transition period, while a commodity economy still existed, was only a continuation of ‘bourgeois law.’
This changed with Stalin and the introduction of Socialist or class law, as opposed to capitalist or bourgeoisie law.

The new ‘socialist state’, proclaimed in the 1936 Constitution, was said to require a body of ‘socialist law’ totally different from (and allegedly superior to) bour- geois law: ‘Socialist law is not a further development of bourgeois law, but a new type of law that has grown out of the socialist revolution of the proletariat.’ Ele- ments of Marxist critical theory were bent to serve an ideological purpose. That was the frame of reference subsequently adopted by the Chinese Communist Party.
Id. at 5. 

39 The CCP is the party in power in China.
The CPC is a unified entity organized according to its program, constitution and the principle of democratic centralism. The Constitution of the Communist Party of China stipulates that any Chinese worker, farmer, member of the armed forces, intellectual and any advanced element of other social strata who has reached the age of 18 and who accepts the program and constitution of the CPC and is willing to join and work in one of the Party organizations, carry out the Party decisions and pay membership dues regularly may apply for membership in the CPC.

Structure of the State: The Party in Power, CHINA.ORG.CN, english/features/state_structure/64404.htm (last visited Jan. 10, 2012).
40 See Backer, The Rule of Law, supra note 26, at 29.
41FEWSMITH, supra note 18, at 164.
42 For example, in the old Czechoslovak Communist Party, the the “vanguard role
of the CPSU [was] usually claimed in similar terms; that is, greater political awareness uniquely qualifie[d] it to guide Communist construction in the interest of the people, even when contrary to their expressed desires.” Bernard A. Ramundo, Czechoslovakia and the Law of Peaceful Coexistence: Legal Characterization in the Soviet National Interest, 22 STAN. L. REV. 963, n.40 (1970).
43 See the discussion in Section III, infra.
[E]ven as he was making a bid for personal power, Jiang was conscious of both a demand and a need to stress democratization and institutionalization. Deng Xiaoping had sounded these themes in his justly famous 1980 speech ‘On the Reform of the Party and State Leadership System,’ but Deng’s own status as a revolutionary elder, the repeated conflicts over policy, and doubtless also Deng’s reflexive resort to personal decision making prevented implementation of his ideas.
 44 See the discussion in Section IV, infra.
45 This is not without difficulties in fact. See, e.g., Gilles Guiheux, The Political “Participation” of Entrepreneurs: Challenge or Opportunity for the Chinese Communist Party?, 73 SOC. RES. 219 (2006).
46 See Backer, The Rule of Law, supra note 26, at 29. 
48 That constitutional order, of course, significantly limits the political rights of all citizens, vesting direct political power in Party cadres and incidental representative selecting power in the general citizenry, who hold essentially social and economic citizenship rights. While these notions are highly problematic in the West, and rightly so within Western politico-cultural systems (See, e.g., Stijn Smismans, New Governance – The Solution for Active European Citizenship, or the End of Citizenship?, 13 COLUM. J. EUR. L. 595, 616 (2007)) that alone should not be a basis for judging the Chinese arrangement as illegitimate. For a more radical Western vision of citizenship and political participation, see, e.g., WILL KYMLICA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS (1995); CHARLES YOUNG ET AL., MULTICULTURALISM: EXAMINING THE POLITICS OF DIFFERENCE (1995); IRIS MARION YOUNG, JUSTICE AND THE POLITICS OF DIFFERENCE (1990). 
 49 See Backer, Theocratic Constitutionalism, supra note 35, at 85, and the discussion in Section IV, infra.
50 The intensity of that relationship is understood within China. “Therefore, distinguishing the status of Party and government officials is truly not that important.” Soli, supra note 1, at 535.

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