Jiang Shigong (强世功), Professor and Deputy Director, Peking University Office of Educational Administration at Peking University. He is well known in China for his work, Fazhi yu Zhili: Guojia Zhuanxingzhong de Falv (Legal System and Governance: Law in the Transformed State) (Beijing: Zhongguo zhengfadaxue chubanshe, 2003) and and Lifazhe de Falixue (Legislator's Jurisprudence) (Beijing: Sanlian shudian, 2007).
He recently published an article on Chinese constitutionalism that deserves careful study. Jiang Shigong, "Written and Unwritten Constitutions: A New Approach to the Study of Constitutional Government in China," Modern China 36(1):12-46 (2010). Here is the abstract:
Criticizing the formalism in China’s constitutional studies over the past 30 years and following an empirical-historical perspective to deal with the dilemma of representation and practice, the author argues that both a written constitution and an unwritten constitution are basic features of any constitutional system, and China’s constitutional order can only be understood if China’s unwritten constitution is taken into account. Selecting four important constitutional issues (the relationship between the Chinese Communist Party and the National People’s Congress; the position of state chairman and the trinity system of rule; the relationship between the center and localities; and the constitutional structure of “one country two systems”), the author explores four sources of China’s unwritten constitution—the party’s constitution, constitutional conventions, constitutional doctrine, and constitutional statutes—and calls for taking into account China’s unique political tradition and reality to enrich current constitutional scholarship.
This post reviews and considers the insights developed in that article. My thanks to my research assistant Yuanyuan Li for her excellent work.
(Pix from Constitutions Matter... We Hear, Exit 133, July 30, 2007)
Professor Jiang starts by positing a formal distinction among constitutions. One category of constitutions are "written" in the sense that all premises of a constitutional or supra-legal nature are codified within a single document. The United States constitution is supposed to be an exemplar of this type. The other category consists of “unwritten constitutions like the one in the British tradition in which a number of distinct sources together comprise the constitutional order of the state. Professor Jiang places China in the "written constitution" camp, at least as a formal matter. Ever since the Constitution of the People’s Republic of China was enacted in 1954, the Chinese constitution has, kept in written form, experienced three revising, in 1975, 1978, and 1982. But Professor Jiang recognizes that there is a gap between the functional and formal constitutions and constitutional practice in China. This distinction has served as the fuel that feeds Western criticism of the legitimacy of the Chinese constitutional order. These insights provides the matrix within which Professor Jiang proposes to re-consider Chinese constitutionalism: using a historical and empirical approach, he would seek to find the "real" constitution of China beyond the formalist approach and its discursive representations.
Professor Jiang starts by positing a formal distinction among constitutions. One category of constitutions are "written" in the sense that all premises of a constitutional or supra-legal nature are codified within a single document. The United States constitution is supposed to be an exemplar of this type. The other category consists of “unwritten constitutions like the one in the British tradition in which a number of distinct sources together comprise the constitutional order of the state. Professor Jiang places China in the "written constitution" camp, at least as a formal matter. Ever since the Constitution of the People’s Republic of China was enacted in 1954, the Chinese constitution has, kept in written form, experienced three revising, in 1975, 1978, and 1982. But Professor Jiang recognizes that there is a gap between the functional and formal constitutions and constitutional practice in China. This distinction has served as the fuel that feeds Western criticism of the legitimacy of the Chinese constitutional order. These insights provides the matrix within which Professor Jiang proposes to re-consider Chinese constitutionalism: using a historical and empirical approach, he would seek to find the "real" constitution of China beyond the formalist approach and its discursive representations.
For that purpose Professor Jiang first interrogates the Western affinity for formalism in constitutionalism, that is, he would confront what constitutions mean to nation-building and state-making in the modern world, and why the formalist perspective is so popular in international political discourses as well as in Chinese constitutional scholarship.” (Jiang, 13). To his great credit, Professor Jiang implies that Soviet universalist constitutionalism suffered similar characteristics as its Anglo-European competitors. (JNiang 15). With respect to either, he starts with the observation that formalism is built into modern constitutionalism as a matter of internal and external necessity. Internally, a written constitution is necessary for legitimacy. It is also necessary to gauge its fidelity to minimum standards or expectations of organizational and substantive rights. I have explored this as well (Backer, Larry Catá, From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems (September 22,
2008). Penn State Law Review, Vol. 113, No. 3, 2009). Professor Jiang argues further that under the influence of this framework of constitutionalism, developing countries have been compelled to enact written constitutions in line with these essentially Anglo-European standards to legitimate their process of nation-building; otherwise they would not be recognized by the Western-led international community and succeed at their nation-building. Constitutionalism, in this sense has become a matter of international politics (Jiang, 14; see also Backer, Larry Catá, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century.
Mississippi Law Review, Vol. 27, 2008). As a consequence, a number of non-Western countries felt forced to deviate from their national cultural traditions and duplicate the Western “constitutional norms,” producing both formal compliance and instability.
Professor Jiang would extend the point--arguing that the Western construction of legitimate constitutionalism also permitted the West to to deploy constitutionalism to further its Cold War aims (Jiang, 15). But most interestingly Professor Jiang notes that this deployment had a curious effect--to denigrate unwritten constitutions as less legitimate as a consequence of its ideological campaigns to deem as illegitimate constitutional orders whose functional operations did not align with its written form. To some extent Professor Jiang raises a very interesting point. I suspect that he may be right to suggest that one of the great casualties of the Cold War was the rise of a rigid ideology of written constitutionalism and the implication that unless it was within the four corners of a written instrument with a particular form, a constitution could not be deemed wholly legitimate. But his suggestion that this extended to de-legitimate totalitarian constitutions might take the argument too far. The reason for that is that beyond its written form, constitutionalism, especially after 1945 became grounded in the protection of a group of substantive rights in individuals. While totalitarianism was to some extent used for political aims, it is also true that many of the regimes described as totalitarian could not, either by its written or unwritten constitutions have complied with the base notions of substantive constitutionalism. That was certainly the case with respect to the "Big Man" regimes of post liberation Africa, and the cult of personality driven COMINTERN regimes. (e.g., Booth, David; Cammack, Diana; Harrigan, Jane; Kanyongolo, Edge; Mataure, Mike and Ngwira, Naomi, Drivers of Change and Development in Malawi. Working Paper No. 261. London : Overseas Development Institute, January 2006).
Professor Jiang, though, makes the valid point that this internationalization of constitutionalism--as a set of principles for legitimate organization of states, has had profound effects on Post-Revolutionary Chinese constitutionalism. (Jiang 15). Since 1949, the Chinese constitution has been under constant revision which to some extent was motivated by the need to respond to international ideological standards, including those set both by the Soviet Union and the Western world. Professor Jiang also identifies three principal schools of constitutional scholarship that rose to consider these changes and respond to the inherent criticism of Chinese constitutionalism by the variants of Western universalist constitutionalism. These include what he identifies as a school of constitutional revolution, a school based on “constitutional adjudication”, and a “revisionist” school. The first would enact a new constitution that better conforms to universal constitutionalist standards; the second seeks to fuse constitutional form and function through some variation of judicial review; the third also focuses on the use of constitutional interpretation to merge form and function, but the focus here is on civil rights protections. All three schools are criticized for their dogmatic formalism--all three start from the premise that the constitution is restricted to the text of the constitutional document, neglecting, Professor Jiang argues, the living and unwritten constitution of China (Jiang 16). Moreover, he rejects influential criticisms of Cai Dinjian and Zhang Qianfan that China has a constitution without constitutionalism (Jiang 17) a point with which I agree (e.g., Backer, Larry Catá, 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). But this criticism also forms the start of Professor Jiang's project--if he means to avoid formalism in constitutional theory and what he describes as western centrism and ideological bias, then what is required to harmonize form and practice within a coherent constitutional theory is a search for the real constitution of China, a search that ought to be uninhibited by the fact of a written constitution.
Professor Jiang starts with the construction of foundational premises. At the core of these is the argument that the distinction between written and unwritten constitution, as refined int he second half of the 20th century is a false distinction. Professor Jiang reviews the two concepts of written and unwritten constitution in modern politics, and argues that they form the two parts of a constitutional whole. No modern constitution can exist without both a formal and an unwritten part. (Jiang 18-20). Drawing largely on Kenneth C. Wheare's generative text (Modern Constitutions Oxford University Press, 1951), Professor Jiang favors notions of flexible constitutions to those of rigid constitution; he considers it unreasonable to assume that a written constitution can contain the realities of constitutional function. Every state, even those constricted by a written constitution, find ways of incorporating unwritten premises and structures within their systems. From this he makes his great conceptual leap--a written constitution is but part of a greater unwritten constitution, an isolated island in a great sea of non-legal but constitutional rules.
It follows, for Professor Jiang, that the British and not the U.S. constitutional form is -- or ought to be -- the norm. To drive the point home, Professor Jiang outlines his vision of the unwritten constitution of the United States within which the written constitution operates, and is operated on. (Jiang, 22-26). Jiang pieces together a number of pieces to the U.S., constitutional puzzle to make his case. He draws on the extra-constitutional authority of germinal documents, the century long struggle to implement the unrealized provisions of the Reconstruction Amendments, the American debate about the constitutional character of judicial review and the functional realities of the political settlements among the branches of the federal government that were built into the structure of the Constitution but remain beyond its reach despite the elaborate jurisprudence of separation of powers. The mos interesting aspect of this discussion for Americans should be the way U.S. constitutional discourse looks outside the self referential hothouse of U.S. constitutional discourse. To a large extent the analysis is refreshing, and refreshingly insightful. But it remains an outsider analysis, precisely because it fails to adhere to the U.S, academic party line, its presumptions and expectations. But that, itself, is both ironic and perverse, given the pretensions and self conceptions of academic constitutionalism in the United States, especially among its inner circle (c.f. Delgado, Richard, The Imperial Scholar: Reflections on a Review of Civil Rights Literature (1984). University of Pennsylvania Law Review, Vol. 132, 1984; Robert S. Chang, 20th Anniversary Crt Essay: Richard Delgado and the Politics of Citation, 11 Berkeley J. Afr.-Am. L. & Pol'y 28 (2009).
Professor Jiang then attempts a similar but more detailed analysis of the unwritten Chinese constitution, one that envelopes its written one. For that purpose he focuses on a study of the actual political institutions and their operation from a constitutional perspective, focusing on four of its more important sources: the Communist Party Constitution, constitutional conventions, constitutional doctrine, and constitutional statutes.
Professor Jiang would extend the point--arguing that the Western construction of legitimate constitutionalism also permitted the West to to deploy constitutionalism to further its Cold War aims (Jiang, 15). But most interestingly Professor Jiang notes that this deployment had a curious effect--to denigrate unwritten constitutions as less legitimate as a consequence of its ideological campaigns to deem as illegitimate constitutional orders whose functional operations did not align with its written form. To some extent Professor Jiang raises a very interesting point. I suspect that he may be right to suggest that one of the great casualties of the Cold War was the rise of a rigid ideology of written constitutionalism and the implication that unless it was within the four corners of a written instrument with a particular form, a constitution could not be deemed wholly legitimate. But his suggestion that this extended to de-legitimate totalitarian constitutions might take the argument too far. The reason for that is that beyond its written form, constitutionalism, especially after 1945 became grounded in the protection of a group of substantive rights in individuals. While totalitarianism was to some extent used for political aims, it is also true that many of the regimes described as totalitarian could not, either by its written or unwritten constitutions have complied with the base notions of substantive constitutionalism. That was certainly the case with respect to the "Big Man" regimes of post liberation Africa, and the cult of personality driven COMINTERN regimes. (e.g., Booth, David; Cammack, Diana; Harrigan, Jane; Kanyongolo, Edge; Mataure, Mike and Ngwira, Naomi, Drivers of Change and Development in Malawi. Working Paper No. 261. London : Overseas Development Institute, January 2006).
Professor Jiang, though, makes the valid point that this internationalization of constitutionalism--as a set of principles for legitimate organization of states, has had profound effects on Post-Revolutionary Chinese constitutionalism. (Jiang 15). Since 1949, the Chinese constitution has been under constant revision which to some extent was motivated by the need to respond to international ideological standards, including those set both by the Soviet Union and the Western world. Professor Jiang also identifies three principal schools of constitutional scholarship that rose to consider these changes and respond to the inherent criticism of Chinese constitutionalism by the variants of Western universalist constitutionalism. These include what he identifies as a school of constitutional revolution, a school based on “constitutional adjudication”, and a “revisionist” school. The first would enact a new constitution that better conforms to universal constitutionalist standards; the second seeks to fuse constitutional form and function through some variation of judicial review; the third also focuses on the use of constitutional interpretation to merge form and function, but the focus here is on civil rights protections. All three schools are criticized for their dogmatic formalism--all three start from the premise that the constitution is restricted to the text of the constitutional document, neglecting, Professor Jiang argues, the living and unwritten constitution of China (Jiang 16). Moreover, he rejects influential criticisms of Cai Dinjian and Zhang Qianfan that China has a constitution without constitutionalism (Jiang 17) a point with which I agree (e.g., Backer, Larry Catá, 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). But this criticism also forms the start of Professor Jiang's project--if he means to avoid formalism in constitutional theory and what he describes as western centrism and ideological bias, then what is required to harmonize form and practice within a coherent constitutional theory is a search for the real constitution of China, a search that ought to be uninhibited by the fact of a written constitution.
Professor Jiang starts with the construction of foundational premises. At the core of these is the argument that the distinction between written and unwritten constitution, as refined int he second half of the 20th century is a false distinction. Professor Jiang reviews the two concepts of written and unwritten constitution in modern politics, and argues that they form the two parts of a constitutional whole. No modern constitution can exist without both a formal and an unwritten part. (Jiang 18-20). Drawing largely on Kenneth C. Wheare's generative text (Modern Constitutions Oxford University Press, 1951), Professor Jiang favors notions of flexible constitutions to those of rigid constitution; he considers it unreasonable to assume that a written constitution can contain the realities of constitutional function. Every state, even those constricted by a written constitution, find ways of incorporating unwritten premises and structures within their systems. From this he makes his great conceptual leap--a written constitution is but part of a greater unwritten constitution, an isolated island in a great sea of non-legal but constitutional rules.
It follows, for Professor Jiang, that the British and not the U.S. constitutional form is -- or ought to be -- the norm. To drive the point home, Professor Jiang outlines his vision of the unwritten constitution of the United States within which the written constitution operates, and is operated on. (Jiang, 22-26). Jiang pieces together a number of pieces to the U.S., constitutional puzzle to make his case. He draws on the extra-constitutional authority of germinal documents, the century long struggle to implement the unrealized provisions of the Reconstruction Amendments, the American debate about the constitutional character of judicial review and the functional realities of the political settlements among the branches of the federal government that were built into the structure of the Constitution but remain beyond its reach despite the elaborate jurisprudence of separation of powers. The mos interesting aspect of this discussion for Americans should be the way U.S. constitutional discourse looks outside the self referential hothouse of U.S. constitutional discourse. To a large extent the analysis is refreshing, and refreshingly insightful. But it remains an outsider analysis, precisely because it fails to adhere to the U.S, academic party line, its presumptions and expectations. But that, itself, is both ironic and perverse, given the pretensions and self conceptions of academic constitutionalism in the United States, especially among its inner circle (c.f. Delgado, Richard, The Imperial Scholar: Reflections on a Review of Civil Rights Literature (1984). University of Pennsylvania Law Review, Vol. 132, 1984; Robert S. Chang, 20th Anniversary Crt Essay: Richard Delgado and the Politics of Citation, 11 Berkeley J. Afr.-Am. L. & Pol'y 28 (2009).
Professor Jiang then attempts a similar but more detailed analysis of the unwritten Chinese constitution, one that envelopes its written one. For that purpose he focuses on a study of the actual political institutions and their operation from a constitutional perspective, focusing on four of its more important sources: the Communist Party Constitution, constitutional conventions, constitutional doctrine, and constitutional statutes.
Mystery of the “Rubber Stamp”: The Party’s Constitution (Jiang 28).
The Party’s Constitution is described as a mystery of the “rubber stamp”. The Constitution of the People’s Republic of China clearly stipulates the National People’s Congress (NPC) and its Standing Committee possess a wide range of powers and the highest political authority. However, in their actual operation, the role of the NPC and its Standing Committee are often dismissed as a “rubber stamp.” That can only be explained, Mr. Jiang says, by taking an overly formalistic view of the Chinese constitutional system focused solely on its written constitution. To understand its unwritten constitution, Professor Jiang argues, one has to understand how the New China came to be.
Professor Jiang argues that the character of a constitution is in part determined by the manner in which the state, and its governmental apparatus was created. In the United States, that occurred years after the American Revolution when the leaders of the American states came together to negotiate the formation of a new government, the terms of which were memorialized in a written constitution. In China, the government in the aftermath of the triumph of a revolution led by the Chinese Communist Party. That revolution was not merely a contest for power but also embodied substantial ideological elements that included specific understandings of the nature of political power and state administration. The government of the People's Republic of China was a multi-party system led by the Chinese Communist Party (Jiang 29) and bounded by a very specific political ideology that determined the social, economic and political character of the state (Backer, Larry Catá, Party, People, Government, and State: On Constitutional Values and the Legitimacy of the Chinese State-Party Rule of Law System (January 12, 2012). Boston University International Law Journal, Vol. 30, 2012). This core system pre-dated the first written Chinese constitution of 1954, and survived that constitutional enactment.
But then, why the constitution, and why the construction of an administrative apparatus int he form of the National People's Congress system? Professor Jiang's answer is partially satisfying: he suggests that while the Chinese Communist Party's political leadership role represented popular sovereignty, there was still a need to institutionalize that sovereignty, grounded in concepts of the people's democratic dictatorship (人民民主专政), and embed it in a conventional government. That government, in turn, was constructed using conventional forms--in this case a written constitution. As a consequence, popular sovereignty is divided in China between two bodies -- the NCP system under the written constitution and the CCP system under an unwritten constitution (Jiang 19-20). This explanation is insightful. But to my taste that answer is still too formalistic. It suggests an equality of power between the administrative apparatus of the government and the political apparatus of the Communist Party. Yet by the logic of Professor Jiang's argument, the opposite might be true: all of the political authority of the state remains vested in the Chinese Communist Party, which is itself obligated to operate under the four cardinal principles (四项基本原则). The 1954 Constitution and its revisions, through the current Constitution, reflected the Communist party line. A fundamental objective of the Party line was to establish an administrative apparatus for the operation of the state and the fulfillment of the obligation of state and Party to the people. As a consequence, the Chinese constitution could be understood as establishing an administrative apparatus under the leadership of the CCP and its multi-party coalition. (e.g., Larry Catá Backer, Thoughts on Emerging Trends in Chinese Constitutional Thought on the Eve of the 18th Party Congress, Law at the End of the Day, November 6, 2012).
Under ether approach, Professor Jiang suggests the core problem of Chinese constitutionalism--how to properly handle the relationship between the two systems and keep them interacting and cooperating with each other as checking and balancing each other. He proposes one basis: that the CCP exercises the power of substantive political decision-making by deliberation under political consultation with other democratic parties, while the NPC and its Standing Committee review and endorse the decision, thereby granting them legality as required in the written constitution. Again, the division suggests one grounded in the distinct character of each body, one political and the other administrative. Because the NCP system is administrative in character and managed by the political leadership of the CCP, it may be open to a broader participation by the people directly; the CCP as the incarnation of political power must necessarily limit participation to its cadres. (Backer, Larry Catá, Party, People, Government, and State: On Constitutional Values and the Legitimacy of the Chinese State-Party Rule of Law System (January 12, 2012). Boston University International Law Journal, Vol. 30, 2012). Moreover, he believers that this may also brings the multi-party cooperation system under the Party’s leadership within the scope of the written constitution. Thus, the NCP's rubber stamp role assumes a distinct character--the role is meant to legitimate the leadership role of the CCP within the administrative apparatus of the state. (Jiang, 22). For Professor Jiang this suggests a dynamic process, one that would eventually transform the CCP form a revolutionary to a constitutional party and thus bring the unwritten constitution of the CCP within the principles of the written constitution. (Ibid). I am less convinced that this dynamic element is necessary, or that it might be the optimal way to complete the transformation of the CCP from revolutionary to constitutional party. I am not sure if such a dynamic element is necessarily inevitable within the Chinese constitutional framework. It is possible that the current division and power hierarchy is stable, and for the moment necessary and a reflection of the political development of the state, one in which democratic dictatorship suggests the continued role of the CCP in its leadership role. But it is possible to suggest, instead, that the dynamic element observed by Professor Jiang is occurring not within the state apparatus, but instead within the Party apparatus. It might be possible, for example to suggest this dynamic element as a consequence of the premise of sangue daibiao ( 三个代表), and its move to reduce class enemies and expand the pool of people who could become cadres and thus assume some measure of political engagement. (e.g., Backer, Larry Catá, 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). Professor Jiang points in this direction as well, noting the CCP's constitution's provision for political integration and administrative deference. "This indicates that the people must exercise sovereignty under the Party's leadership; that the Party's leadership must be in line with the written constitution; and that since the written constitution establishes the people's congress system, the Party's political sovereignty (zhengzhi zhuquan) must be legally recognized by the NCP before it becomes state sovereignty (guojia zhuquan)." (Jiang 24). I might have suggested a variation-- that the CCP's political sovereignty must be legally embedded within the administrative apparatus of the state through the constitution before it can become operational within the state.
(From http://www.hermitage-journal.org/2011/07/on-situation-of-orthodox-church-in.html)
The Trinity System of Rule: Formation of Constitutional Convention
If the NCP and CCP share sovereignty, Professor Jiang suggests that they interact through the unique institution of the head of state or chairman of the People's Republic (guojia zhuxi). Since the 1990s, the President of China has also been the General Secretary of the Communist Party. The President is sometimes, but not always, elected as the head of the Central Military Commission(CMC), which controls the People's Liberation Army. This arrangement has the authority of convention but is not memorialized in the constitution. Mao Zedong set up a chairmanship through a series of institutional reforms and arrangements. Chairman Mao came to hold state power, military power, and party power all at the same time, which constitutes the basic form of the trinity system. This trinity system is not legally established in any written constitutional documents but developed under the tremendous influence of Mao as a charismatic leader and his tremendous contribution to the founding of the CCP, the army, and post revolutionary China. According to Professor Jiang, the 1982 Constitution distributed those three powers among different branches of the government in order to avoid the excessive concentration of power that had made possible a disaster like the Cultural Revolution. However, in 1990 Deng Xiaoping still transferred the chairmanship of the Central military Commission to Jiang Zemin, general secretary of the Party. Then in 1993, Jiang was elected state chairman, thereby once again combining party power, state power, and military power in one person. Mr. Jiang claims that compared with the written constitution and the Party Constitution, the binding force of constitutional conventions depends more upon consensus among the political elites.Professor Jiang makes a good point here--the formal separation of power may be effectively fused through conventions for the election of the same person to distinct positions. Yet, he also points out a tension inherent in the division of administrative and political power within China: that this stage in the development of China it is necessary to develop the formal division of authority among the political and administrative apparatus, but it is still functionally necessary to ensure that, to preserve stability at least at the highest levels, formally distinct offices are held by the same people. But that also requires great discipline within the CCP to ensure that the necessity of stability does not produce cults of personality that detract from the democratic centralism at the core of the CCP's operations.
Professor Jiang then considers two additional expressions of the unwritten constitution around the written constitution of China. Each is important but will be considered in more summary form here.
“Initiatives from Two Sources”: Constitutional Doctrine
Democratic centralism plays an important role in the organization of the state as well. (Jiang 30). While the administrative apparatus appears to be organized in a way that permits localities some measure of autonomy, in reality, China has maintained a unitary system and can even be described as a highly centralized state. The rationale for such a system lies in the Party Constitution, and is, to this extent both extra-constitutional and part of the fundamentals of the unwritten constitution (or rather the political constitution of the CCP). The CCP is organized in accordance with the principle of democratic centralism. That system is carried over to the functional relationship between the central government and the localities. In addition there is an effective fusion of roles as local party leaders assume positions of local administrative power. (Jiang 33). Yet there also exist centrifugal forces in the central-local relationship. Among the more important is the doctrine of “initiatives from two sources”, proposed by Mao Zedong, is an example that contains a set of constitutional thoughts on dealing with the central-local relationship.(Jiang 34-39). The initiatives from two sources posits the possibility of initiatives from both center and locality, though the actual mechanics remains ambiguous. Professor Jiang suggests that this doctrine is both an example of unwritten constitutional modification but also a political interpretation of the written constitution. (Jiang 35).
He offers four constitutional perspectives. First, central-local relations are bound up in political work, that is CCP work, in realizing socialist modernization. But that requires strengthening the center through attention to the localities. (Jiang 34) As political work, the CCP must be expected to play a central and mediating role. Second, the initiatives from two sources suggests an interpretation of the written constitution rather than an ignoring of that document. From Mao Zedong, Professor Jiang advances the constitutional doctrine that what is not forbidden is permitted. There is irony here; other Marxist Leninist states have taken the opposite interpretative tack--that is not specified is forbidden. (E.g., Cuba's 6th Party Congress and the Lineamientos (Guidelines) For Structural Change In Cuba, May 17, 2011). The result is flexibility in the division of authority between center and locality that must be adjusted to meet the needs of both--something that is also identified as political work. Third, Professor Jiang suggested that differences between center and locality are subject to the democratic principle of consultation (shanliang banshi). He draws on the distinction between democratic centralism in the development of political line and bureaucratic engagement which is the province of the state apparatus. The organization of the state under the constitution follows the bureaucratic principle. That principle has a great danger of distancing the government from the masses, a fear that for Chinese scholars, was realized disastrously in the construction of the Soviet nomenklatura. The necessary antidote lays in the political work of the CCP, which is bound to follow the mass line (qunzhong luxian) if it is to retain its leadership role. (Jiang 36-37). The principle of consulting to settle the matter is presented as the way to extend the extra-constitutional principle of democratic centralism to the state apparatus and its bureaucracy. (Ibid.). Fourth, thus extended, the principle of consulting to settle the matter becomes a constitutional principle that defines the relations between higher and lower levels of government. This principle, absent in the 1954 Constitution, found its way into the fabric of the 1982 Constitution yet it remains for the most part practiced and not incorporated into the text.
Hong Kong Basic Law: Constitutional Statute
The Hong Kong Special Administrative Region (HKSAR) was established in accordance with 1982 Constitution, and the Basic Law of HKSAR was enacted to ensure the implementation of “one country, two systems”. Professor Jiang suggests that whether the 1982 Constitution should apply to Hong Kong is a puzzling question. (Jiang 40). The HKSAR government is organized by separation of powers and an executive-led system, which is not accordance with the China’s written constitution. Professor Jiang argues in order to understand and solve these constitutional difficulties, people must break away from legal formalism, and understand the special nature of the Basic Law and its contribution to the Chinese constitutional system, as well as the revolutionary change embodies in the principle of “one country, two systems.” In this sense, Professor Jiang concludes that HKSAR Basic Law is the precommitment for the recognition of the validity of Chinese Constitution in Hong Kong. That is, "it serves as a potential social contract between the mainland and Hong Kong, by which Hong Kong residents receive a high degree of autonomy in return for the recognition of Chinese sovereignty. (Jiang 42) The Basic Law can be seen as a constitutional statute and part of China’s unwritten constitution, following a Chinese pattern of British style indirect rule, traditionally used for border regions like Tibet. (Jiang 42-44).
Professor Jiang concludes that to understand China’s constitution, it is necessary to understand not just the written constitution, but also the unwritten constitution that has arisen from different sources. He uses two phases to describe the development of constitutional jurisprudence in China in the past three decades. The first was an ideological stage during which general Marxist concepts were used to discuss the basic concepts of constitution and to understand China’s own constitution. The second was marked by efforts to understand China's constitution from a judicial perspective, reflecting the influence of Western constitutionalism especially the American tradition. Professor Jiang criticizes both phases as ideologically grounded--the first by the blinders of Marxist ideology, the second by the blinders of American ideology. (Jiang 45). (See, also Backer, Larry Catá, A Constitutional Court for China within the Chinese Communist Party: Scientific Development and the Institutional Role of the CCP, 43(3) Suffolk Law Review 593-624 (2010). ) Professor Jiang would adopt a critical but non-ideological approach, grounded in the desire to solve real problems. It follows that Professor Jiang thinks the Chinese constitutional system cannot simply replicate the West, but should try to contribute to the international discourse of constitutionalism from its own reality. For Professor Jiang, China must develop its own unique model structured on the interaction between its written and unwritten constitution, between the political and administrative apparatus that together constitute China.
I agree with Professor Jiang that the written constitution of China is not the whole of the Chinese constitution. Professor Jiang correctly understands the constitutional role of the CCP and the constitutional status of key practices of the Chinese state that in the aggregate provide a more complete picture of the Chinese constitution. I also agree that the totality of the Chinese constitution is both rational and coherent. But I am less certain I would refer to these constitutional elements as part of an unwritten constitution. I understand why Professor Jiang took that position--it is a necessary consequence of his view that the normal state of legitimate constitutionalism must account for both formal construction and functional practices with constitutional effects, and that it must follow that an unwritten constitution must envelop the formal written instrument that Western theory has increasingly and incorrectly taken to constitute the totality of the constitutional element of a state. But I might be tempted to look at this phenomenon differently. To call the elements that Professor Joiang identifies as part of an unwritten constitution tends to privilege the written element of constitutionalism to an extent that might be inappropriate in state like China. Thus, it might be more useful, for example, to consider that the foundational constitutional element of China is the Chinese Communist Party. The institution of the CCP--whose members are the holders of political authority subject to a strict mandate to follow the mass line within the framework of Marxist Leninist thought as refined in China through the present time--then necessarily is obligated to structure a government for the people, which has been accomplished through the promulgation of a written constitution. That constitution necessarily must be understood as an important element of the Parry Line, binding on it and the people through the leadership role of the CCP in Chinese political life. It is through the manifestation of this Party Line in a constitution that the state apparatus is created, and its substantive elements developed. The fundamental constitutional law of the state, then, the supreme law and constitutional premises through which all national life must be understood and with which it must conform, are identified in the Constitution but is not the Constitution itself. The people may exercise state power through the National People's Congress system (Constitution Art. 2), but the people's democratic dictatorship (Constitution Art. 1) is exercised through the CCP by whose power the constitution itself was established under the guidance of Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory, and the important thought of the "Three Represents." (Constitution Preamble revised 2004). Professor Jiang is correct to suggest that the Chinese constitution is not available in one document; what is available that way is the document established the apparatus of administrative power in the state. But political authority, and the preservation of the ideological basis of state organization must necessarily lie outside the contours of the framework within which the government itself is created. It must, because that power is superior to, and a constituting element of, the government itself. Understood in that way, Professor Jiang's analysis is an important and welcome step forward in Chinese constitutional analysis.
CHINESE VERSION:
强世功，北京大学社会科学部副部长，法学院教授。他是中国当代著名法学家，主要著作有《法制与治理：国家转型的法律》(Beijing:
Zhongguo zhengfadaxue chubanshe, 2003)，《立法者的法理学》等 (Beijing:
Sanlian shudian, 2007。强世功教授最近发表了一篇关于中国宪政体制的文章，《Written and Unwritten Constitutions: A New Approach to the Study
of Constitutional Government in China （中国宪法中的不成文宪法——理解中国宪法的新视角）》，Modern China 36(1):12-46
(2010). 以下是这篇文章的摘要
（批评过去30年以来中国宪政研究的形式主义局限性，本文从中国宪法文本与宪政实践之间的背离问题入手，提出了从实践历史角度来理解中国宪政秩序的新思路。笔者认为，成文宪法和不成文都是任何宪政体制所具有的基本特征。因此，理解中国的宪政秩序必须要充分考虑到中国的不成文宪法。本文选择中国宪法中关于国家建构中四个关键性问题，着重探讨中国不成文宪法的四个主要渊源，即成文宪章、宪法惯例、宪法学说及宪法性法律，并呼吁宪法学应当从中国现实的宪政生活中提炼具有普遍意义的宪政原理和制度。）
我认为强世功所提出的“中国宪法中的不成文宪法”值得认真研究。文本将对上述文章进行评论与探讨。我要感谢我的研究助理Yuanyuan Li的出色工作。
强世功教授首先正式定位了两种宪法模式之间的区别。一类宪法为“成文宪法”，即宪章内容全部被编入一个单一的书面文件内。美国宪法可以视为成文宪法的的一个典型的例子。另外一类宪法是类似于英国宪政模式的“不成文宪法”，即国家宪法秩序来取于多种来源，而并非以一个整体的书面文件形式存在。至少从正规的形式上来讲，江教授把中国放在“成文宪法”的阵营中。自1954年制定了《中华人民共和国宪法》以来，中国的书面宪法在1975年、1978年和1982年分别经过了三次修改。虽然中国宪法是成文的，但是强世功指出了中国宪法文本与宪政实践之间的区别。这种“书面”与“实践”之间的分歧导致了西方学术界对中国宪政体制合法性的批评。强世功建议用的历史和实证的方法去重新考虑中国的宪政，用超越形式主义与文本主义的眼光去寻找“真正的”中国宪法。
为了这个目的，强世功首先探讨了宪法对现代国家建设的意义，并向学术界对宪政形式主义的亲和感提出了质问。(Jiang, 13) 宪政形式主义并不是西方国家独有的问题，前苏联的世界宪政理念同样受到了形式主义的影响 (Jiang 15) 。 无论是哪一个宪法模式，现代宪政体系的形式化的作用是为了维护体制内外的政法秩序，而形式主义在保持组织与个人的最低要求以及维护它们的各项实质性权利上是不可缺少的。我之前也对宪政体制的形式主义进行过类似的讨论
(Backer, Larry Catá, From
Constitution to Constitutionalism: A Global Framework for Legitimate Public
Power Systems, September 22, 2008.
Penn State Law Review, Vol. 113, No. 3, 2009) 。强世功认为在形式主义与文本主义的影响下，很多发展中国家被迫制定符合西方宪政意识形态的成文宪法，否则他们将无法被由西方为首的国际社会所认同，并在自己的国家建设中取得成功。所以说，现代的宪政制度不在局限于主权国家内政的范围内，而“成文宪法”问题也同样变成了一个全球性的政治问题
(Jiang, 14; see also Backer, Larry
Catá, God(s)
Over Constitutions: International and Religious Transnational Constitutionalism
in the 21st Century. Mississippi Law Review,
Vol. 27, 2008) 。因此，一些非西方国家被迫背离它们本国的历史文化传统去复制西方的“宪法规范”，从而产生了形式上的规范性和实践上的不稳定性。
强世功教授进一步述了这种西方宪政理念构筑允许西方国家们战略性地部署它们的宪法合法性主张，从而达到冷战背景下的政治目的(Jiang, 15)。我认为强世功正确地指出了冷战的重要产物——僵化的宪法文本主义与形式主义。在冷战结束后，美国模式的成文宪法了凝固成了一种国际宪政意识形态。强世功由此认为冷战后不成文宪法受到理念上的排挤而被排挤为一个与成文宪法水火不相容的政法模式。虽然宪法不应该完全局限于文本范围之内，单我并不完全认同强世功关于成文宪法理念扭曲了"专制"与"极权"政体合法性的观点。事实上，自1945年以来，宪政体制从很多方面上来讲已经超越了正规书面的范围，并开始利用习惯法来保护群体以及维护个人实质性权利的功能之上。虽然有些专制政体试图利用宪法理念去达到其政治目的，很遗憾的是，往往那些被称贴上极权标签的政权们既不肯依从成文宪章，亦不愿遵守不成文的习惯法。这个现象可以从那些非洲后解放时代的“强人政权”与充满个人崇拜色彩的第三国际政体中看到 (e.g., Booth, David; Cammack, Diana; Harrigan, Jane; Kanyongolo,
Edge; Mataure, Mike and Ngwira, Naomi, Drivers of Change and Development in Malawi. Working Paper No. 261. London : Overseas Development
Institute, January 2006) 。
无论强宪法文本主义从多大程度上导致了集权政权的不合法化，强世功教授所提出的宪政国际化现象以及其深远的影响是难以否认的。就像他所说的，后革命中国的宪法发展过程也同样与全球宪政意识的兴起有密切的联系 (Jiang 15) 。自1949年以来，中国的宪法经历过了多次修改，而这些工作从一定程度反应了中国在不同时期与苏维埃和西方国际政治思想标准接轨的希望。在此背景下，中国的政法学术界也产生了各种不同的宪法理论观点去考虑国内外的政治环境变化并回应各种对中国政法体制的批评。
强世功在他的文章中将中国宪法学术界分类为三个主要流派：提倡符合美式成文宪法规范的"修宪派"，注重司法审查与宪法规范相结合的"司法化派",以及主张宪法学研究应以注释宪法规范为目标"注释派"。虽然这些学派所关注的焦点不同，强世功认为它们都局限于过分依赖文本的教条形式主义，并忽略了"不成文宪法"在中国的重要角色 (Jiang 16) 。此外，强世功反驳了蔡定剑与张千帆所提出的“中国有宪法而无宪政”的观点 (Jiang 17)，在这一点上我与他的看法是一致的(e.g.,
Backer, Larry Catá, 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) 。强世功对宪法形式主义的批判也标示了他对中国宪政体制研究项目的起点—即脱离西方意识形态的偏见，避免拘泥于形式主义，将书面与惯例向结合，从实践中去寻一个超越文本的真实中国宪法。
强世功教授从宪"不成文宪法"的法理学基础前提出发，提出在20世纪下半叶精制而成文月不成文宪法的区分是一种虚假的区别。相反地，强世功强调我们应该讲成文与非成文宪法都视为当代政治体系中重要的概念，而宪政体制则是着两种宪法模式的合成体。强世功认为，任何现代宪政体制都还有成文的规范性与不成文的习惯性因素 (Jiang 18-20)。借鉴Kenneth C. Wheare的 《现代宪法
（Modern Constitutions）》，强世功主张用更加灵活的思路去看待宪政问题，因为单一的书面宪法并不足以体现宪法的现实功能。即使是那些受制于所谓成文宪法的国家，它们的宪政体制内也融入了一些不成文的结构。由此而言，强世功尝试了一个重要的理念跨越——他把成文宪法定位为更广范围的不成文宪政的一个部分——一个在习惯性宪法秩序海洋中的小岛。
虽然相较于英国的习惯性宪法美国的宪政是成文的，但是强世功强调，其实作为成文宪法的典范，美国的书面宪章任然是在不成文的惯例框架之内运作的。(Jiang, 22-26) 。在他的文章中，强世功试图用美国宪政发展历史实例碎片拼接出一个更加真实的美国“实效宪法”。美国内战后的重建修正案(Reconstruction Amendments) 虽然是成文的，但是这些重建修正案的实际实施却用了将近一个实际才完成。另一方面, 美国的司法审查制度虽然不是由美国成文宪法所明文规定的，但是自马自1803判决的伯里案（Marbury
v. Madison）以来，年约翰·马歇尔最先阐述司法审查原则逐渐发展成为美国宪政体制中的一个重要的元素。由此而言，强世功认为美国的违宪审查制度可以视为一种实践中形成的"宪法惯例"。对于美国读者而言，强世功教授的文章提供了一个不属于美国宪政自我指涉论述温室之内的“他人观点”。强世功的分析从某种角度上来讲令人耳目一新，但他的论述仍然是一个局外人观点---因为他没有遵循美国“学术党”的路线与期望。具有讽刺意味的是，这种“他人观点”或许映射了对美国宪政学术内圈的傲慢与偏见 (c.f. Delgado, Richard, The
Imperial Scholar: Reflections on a Review of Civil Rights Literature (1984). University of Pennsylvania Law Review, Vol.
132, 1984; Robert S. Chang, 20th Anniversary Crt Essay: Richard Delgado and the Politics
of Citation, 11 Berkeley J.
Afr.-Am. L. & Pol'y 28 (2009)。
在这个超越形式主义的新视角下，强世功教授同样也对中国的不成文宪法作出了详细的论述。从对中国政制体制的实际运行入手，他勾画了一个将中国成文宪法包含在内的“中国特色”不成文宪法。强世功将中国的不成文宪法构成进一步分解为四种重要来源：中国共产党的党章、宪法惯例、宪法学说和宪法性法律（Jiang 22-23）
强世功教授首先用共产党的党章的宪法规范性去解释中国国家制度中的“橡皮图章”之谜。《中华人民共和国宪法》授予了全国人民代表大会以及其常务委员会广泛的政治权力和最高的政治权威。从书面上来讲，中国全国人民代表大会和人大常务委员会是最高国家权力机关，但是中国宪法文本表达的人民代表大会制度与人大实际运作状况存在着很大很大的差距。这种“规范”与“实际”的背离导致很多人指控中国的人民代表大会没有真正发挥其宪法职能，而是一个摆设性的"橡皮图章议会" (Jiang 28)。
一个国家的宪政性质一部分上取决于那个国家政府机构的创建背景。美利坚合众国与中华人民共和国都是虽然都是革命的产物，但是两国的开国政权是在不同的政治历史背景下产生的。
美国的联邦政府是在独立战争结束后很短的时间内，由前殖民地的的领袖们通过谈判而形成的，而那些美国开国元勋们谈判议定的条款则以《美利坚合众国宪法》的形式被书面记录了下来。相比之下，中国在共产主义革命后的新政府并不是通过制定宪法而产生的。早在制定新中国第一部成文宪法多年之前，一个基于中国共产党领导下的多党合作体制的政府就已经存在了。强世功认为这个以共产党为首的多党合作政治秩序是中国宪政体制的基础，而后来制定的成文宪法则是在已有的宪政基础上运行的，因此之后的成文宪法并没有推翻之间的权利秩序。 (Jiang 29， see also, Backer, Larry Catá, Party, People, Government, and State: On Constitutional
Values and the Legitimacy of the Chinese State-Party Rule of Law System January 12, 2012)。
但是令人费解的是，既然新中国政府在文本宪法前就已经形成，那么1954年所制定的文本宪法的意义何在？如果共产党领导下的多党合作与政治协商制度是中国宪政体制的基础的话，之后的文本宪法为何又建立一个以全国人民代表大会为首的宪政秩序？强世功教授认为中国共产党所领导的协商机制虽然代表了人民主权，但是依赖人民民主专政的主权仍然需要进一步制度化，原有的基本政治秩序需要通过文本宪法的制定而形式化、常规化，行政化。因此，人民主权被重新分配到两个载体内---一个是以人民代表大会为首的成文宪法制度，另一个是在共产党领导的不成文宪政基础秩序（Jiang
19-20) 。强世功的解释虽颇有见地，但我认为他在这里的分析仍显得太形式化。他所描述的两种人民主权机制暗示了政府管理机构与共产党政治机构 之间的权利对等，但是从他之前所阐述的论点上来看中国所有的国家政治权利始终都是授予中国共产党的，而共产党本身则负有遵守四项基本原则的义务。1954制定年的宪法以及后来修订的各版本都直接反映了中国共产党的路线，而中国共产党的路线的基本目标之一即是建立一套管理机构用于完成党与国家对人民的责任。所以说，中国宪法可以理解为为在共产党为领导的多党合作框架之下建立的行政管理体制（e.g., Larry Catá
Backer, Thoughts on Emerging Trends in Chinese
Constitutional Thought on the Eve of the 18th Party Congress, Law at the End of the Day, November 6, 2012）。
我们可以看到，如何处理成文与不成文宪法系统之间的关系是中国宪政的一个核心问题。强世功教授将共产党党领导的及多党合作体制视为实质性的政治决策的基础，与此同时全国人大及其常委会负责审查和批准这些决定，从而给予政治决策成文宪法所要求的合法性。不过，这种区分指示了植根于党与政府机构的独有特征---即一个政治性另一个行政性。由于全国人大体制是一个受共产党管理的行政性系统，它可以进一步向广大群众开放，让人民能够更加直接地参与人大体制。中国共产党作为政治权力的化身，其参与权需要限制在党员范围内（Backer, Larry Catá, Party, People, Government, and State: On Constitutional Values and the Legitimacy of the Chinese State-Party Rule of Law System January 12, 2012. Boston University International Law Journal, Vol. 30, 2012）。此外，强世功认为共产党领导的多党合作体制包含在了中国成文宪法之内，所以，全国人大的“橡皮图章”功能是在国家行政框架内将共产党的领导地位正当化（Jiang, 22）。
对于强世功教授而言，中国不成文宪法与成文宪法之间的有效互动会逐渐使中国共产党从“革命党”转变成一个“立宪政党”，并将规范性的党章整合进成文宪法的原则内（Ibid）。我不认为这种互动关系是中国共产党完成向立宪政党转化的必要条件，我也不确信这个互动因素是否是中国宪政体制所不可避免的。目前中国的宪政划分与权利分配可能是稳定的。也就是说，如果民主集中制目前反应了中国自身政治体制的发展，那么中国共产党也许可以持续履行其先锋党的作用。最少我们可以想象，强世功所描述的互动过程可能发生与共产党机构内，而不是在国家机器上。比如说，这个互动成分可能是由“三个代表”所带来的一种结果，通过让更广泛的民主加入共产党而推进党代表全体人民利益的特征，从而巩固党的宪政合法性。（e.g., Backer, Larry Catá, 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）。强世功在他的文章中在这个方向作出了讨论，并指出中共的党章中所提供的政治一体化和行政的依从：“这表明人民主权必须在党的党的领导下行使；党的领导必须遵循成文宪法；而成文宪法则建立了全国人大制度。党的政治主权在法律上必须得到全国人大的承认才可以成为国家主权（This indicates that the
people must exercise sovereignty under the Party's leadership; that the Party's
leadership must be in line with the written constitution; and that since the
written constitution establishes the people's congress system, the Party's
political sovereignty (zhengzhi zhuquan) must be legally recognized by the NCP
before it becomes state sovereignty (guojia zhuquan)”
(Jiang 24) 。 我可能会建议一种不同的模式---中国共产党的政治主权在国家内行使之前必须通过宪法将其从法律上嵌入国家的行政管理机构中。
如果NCP和CCP分担主权的话，强世功教授认为这两个权利的相互结合需要通过“国家主席”这个特殊的领导制度来实现。自1990年代以来，一种结合党权，政权，与军权为一体的中国最高领导人体制在逐渐形成---即中国的国家主席同时也是中共中央总书记和中央军委主席。这种“三位一体”的领导体制不是成文宪法的一部分，而是一个源于毛泽东时代的惯例。强世功以为“三位一体”的国家主席领导体制雏形在新中国建国初级就已形成---党、军、政权三权都曾集中于毛泽东一身。文化大革命过后，出于对权力过度集中的担忧，1982年邓小平主导修订的宪法将原先高度集中的三项权力重新分配到不同的的政府机构内。强世功认为1982年的“分权宪法”导致了各权利机构的互斗，逐渐加深政利益集团间的矛盾，最后酿成了1989年的悲剧。为了避免内部政治斗争，原先的“三位一体”领导制度又重新在江泽民的任期中恢复。之后这种党权、军权和政权统一的的国家最高领导人惯例在江泽民与胡锦涛换届的过程中得到进一步的巩固与规范化，形成不成文的宪法惯例。相较于成文宪法，强世功认为宪法惯例的约束力更加需要政治精英之间形成的共识。
“一人多职”的选举惯例一方面可以将形式上分立的权力整合起来，有缓和权力冲突，但另一方面这种惯例同时又突出了形式分权与实际行权之间的背离。虽然在中国目前发展阶段国家政治权利最高层需要通过“三位一体”制度保持稳定，然而权利过度集中本身也可能成为一种影响稳定的因素。为了避免“集权” 变质为充满个人崇拜色彩的“极权”，基于民主集中制的党内民主建设是必不可少的。在我看来，中国制度的成败取决于政治意识形态建设并且确保有效地规范管理党员和国家官员的行为。因此，当务之急，中国共产党应确保其政治意识形态下规章制度的公平施行，维持规章制度的一致性、规范性、明确性。也就是说，必须规范党内组织制度和领导制度，依照党章确保党员的平等，通过党章保证党员的各项民主权利，并严格依据党章去监督处罚任何违章行为。我们可以看到，这种体制充分反映了宪政制度的原理。
强世功教授在他的文章中也提到民主集中制在中国宪政制度建设中的重要地位(Jiang
30)。虽然中国的成文宪法赋予了地方政府相当广泛的自治权，中国的实际政治秩序仍然可视为高度集中的中央集权制。这种制度的基础可以从不成文宪法（或更确切地说是中国共产党党章）里找到。中国共产党是根据民主集中制原则组织起来的---该体制结转到中央政府和地方之间的功能关系上，使中共中央通过各级政府的党代表大会机制完成中央于与地方的高度统一（Jiang 33）。在中央和地方之间权力分配的问题上，强世功引用了毛泽东所提出的“两个积极性”来解释中国共产党在处理中央与地方关系上的路线---即同时发挥中央和地方的积极性（Jiang 34-39）。强世功同样将“两个积极性”归为中国的不成文宪法，因为新中国历届领导人“都把‘两个积极性’当作中央地方关系的宪政原则或宪法学说来理解”（Jiang 35）。
强世功教授从"两个积极性"学说出发，提供了四个宪法观点。第一，处理中央地方关系是一项政治工作---政治工作即为中国共产党的工作，其目的为了实现社会主义现代化。而由CCP为核心的国家现代化建设工作又需要通过充分发挥地方的积极性来更好地实现（Jiang 34）。第二，强世功认为“两个积极性”体现了一种对成文宪法解释的原则---即不被明文禁止的就是允许的。这种宪法原则意味着中央与地方之间的权利划分有一定的灵活性，地方可以再不破坏统一的情况下根据自身的特殊情况来办事。具有讽刺意味的是，其他马克思列宁主义国家恰恰运用了相反的法律解释策略---即不被明文允许的就是禁止的。(E.g., Cuba's 6th Party Congress and the Lineamientos (Guidelines) For Structural Change In Cuba, May 17, 2011). 第三，强世功提出用基于民主集中原则的“商量办事”方式去解决中央与地方之间的分歧。他强调了在CCP的民主集中制在展政治路线上与官僚行政制度的区别，前者为CCP的权限，而后者则属于国家机器管辖范围。通过苏联及一些东欧社会主义国家曾实行的特权名单制度（nomenklatura），我们可以看到单独依赖成文宪法所提供的政府官僚体制可能会导致政府脱离群众。强世功认为“商量办事”的不成文宪政原则很好地结合了CCP的群众路线与官僚行政体制，使“两个积极性”得到跟好的发挥（Jiang 36-37）。当然，这也意味着中国共产党本身不能脱离群众或封闭化。第四，即“两个积极性”原则在中国宪政框架下有普遍的适用性。也就是说以上所阐述的中央-地方原则同样适用于各级政府之间的关系。强世功进一步指出源于1950年代的“两个积极性”宪政学说虽然在1982年宪法修订过程中被部分吸收到成文宪法中，但是宪政学说的“成文化”并不意味着宪政原则的石化。固定的宪法章条在不同的时代背景下回有不同的解释与实施，而这种成文宪法的流动性也同样体现在“两个积极性”的历史实践上。
香港特别行政区（HKSAR）是根据1982年修订的中国宪法而成立的，特别行政区“一国两制” 的自治原则通过香港基本法而得到履行。“一国两制”意味着中国的社会主义制度不适用于香港，因此，中国宪法对于香港的适用性也成为了一个颇具争议的问题。强世功教授认为，在解决“一国两制”宪法上的困难上，我们必须脱离法律形式主义去理解基本法与中国宪法之间的特殊关系。强世功将香港基本法本身即是位于中国宪政框架下的一种宪法性法律，其实际功能视为“香港与中国大陆之间的一个社会契约，其中香港居民在承认中国主权的前提下得到一个高度自治的方针”（Jiang 42）。 由此而言，基本法可以被理解为中国不成文宪法的一部分，其运行方式跟随了英国曾经对西藏使用的间接统治模式（Jiang 42-44）。
强世功教授的结论是，要理解中国的宪政我们不能单一关注成文宪法，更重要的是充分考虑来自不同来源的不成文宪法。他使用了两个阶段来描述在过去的三十年中中国宪法学的发展。首先是思想的阶段，在此期间，泛马克思主义的概念被用来讨论宪法的基本概念，并了解中国自己的宪法。第二阶段的特点是努力从司法角度了解中国的宪法，反映了西方宪政意识的影响，尤其是美国的宪法传统。强世功批评这两个阶段都收到了特殊意识形态的限制---前者被马克思主义思想束缚，后者则被美国化思想蒙蔽（Jiang 45）。(See, also Backer, Larry Catá, A Constitutional Court for China within the Chinese Communist Party: Scientific Development and the Institutional Role of the CCP -->43(3) Suffolk Law Review 593-624 (2010). ) 立足于解决实际问题的愿望，强世功试图采取一种批判性的但非意识形态性的方式去论述中国的宪政问题。中国的宪政体制虽然不能简单地复制西方，但中国应从自身实际出发，努力作出对的国际宪法讨论的贡献，以曾强中国在国际宪政思想中的话语权。对于强世功而言，中国必须发展自己的独特的宪政模式。这种模式是建立在成文和不成文宪法相互作用之上，将政治机构与行政管理机器有效地连接起来，它们共同构成了中国的实际宪法秩序。
我认同强世功教授所提出的中国成文宪法不是整个中国宪法的观点，我也认为强世功对CCP宪政地位的理解是相当全面周到的。 在中国宪法制度的合理性与合法性上，我也同样与强世功教授意见一致。不过，我不太确定强世功文中所提到的那些在《中华人民共和国宪法》中没有明确表明的成分应该视为“不成文”宪法的一部分。强世功所主张的成文-不成文二分法必须遵循一个不成文的宪法必须包围着正式的书面宪法，而这两种宪法模式的总和构建了一个合法的正常国家秩序。不过，我可能会尝试用不同的角度理解这中国宪政的基础。我们可以想象，中国宪政体系基本构成要素并不是成文或不成文宪法，而是中国共产党本身。中国的成文宪法丛书面上阐述了宪法原则，并构建了人民政府，但是从根本上来讲《中华人民共和国宪法》这个文件本身并不是宪法权利的赋予者。中国共产党作为一个宪政体制，其成员为政治权力的持有者，同时党员们也受到了坚持走群众路线的严格委任。因此，中国共产党被限制在走群众路线宪政规范内，这个规范是建立在马克思列宁主义、毛泽东思想、邓小平理论和三个代表等思想谱系之上。随着时代变迁，这个体制也在不断地根据实践自我完善，这就是具有中国特色的宪政体制。群众路线的宪法原则则意味着CCP必须构建一个为人民的政府（government for the people），而这个以人民为本的政府需要通过颁布成文宪法来完成。广大人民可以通过全国人民代表大会制度（“宪法”第2条）行使国家权力，但CCP则通过宪法第一条行使人民民主专政。强世功教授正确地指出了中国的宪法是不是可以在一个文档中的，但是基本政治权利与维护国家组织的思想基础必须超越政府自身所创建的机构。宪政制度是一种超越政府的意识形态体现，而中国共产党即为中国政治意识形态的核心。CCP作为国家制度与政治思想的阐述者与维护者，中国的宪法秩序即是中国共产党思想路线的表达方式。群众路线即是党的政治路线，党的政治路线即是中国的宪法原则，而国家机构则是宪法原则的实质体现。因此，中国的成文宪法必须理解为中国共产党政治路线的 一个重要部分，将人民与中国共产党的领导作用联系起来。
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