Wednesday, May 08, 2013

New Paper Posted -- Towards a Robust Theory of the Chinese Constitutional State: Between Formalism and Legitimacy in Jiang Shigong's Constitutionalism

I have been considering the development of modern Chinese constitutionalism.  In particular, I have been considering the unique structures of Chinese constitutionalism beyond the constitutional document and the related issue of its legitimacy within emerging norms of transnational constitutionalism.  As part of that consideration I have been posting the work of Tong Zhiwei, a formidable and innovative constitutional law scholars (Table of Contents for the Series Available Here).

 (Pix (c) Larry Catá Backer 2013)
Recently, Jiang Shigong (强世功) , another of the most innovative constitutional law scholars in China today and I have been engaging in a substantive dialogue on issues of Chinese constitutionalism.  Further to that engagement, I have just posted a new paper to the Social Science Research Network (SSRN) that considers an aspect of this issue: Towards a Robust Theory of the Chinese Constitutional State: Between Formalism and Legitimacy in Jiang Shigong's Constitutionalism.  The abstract follows. The manuscript may be ACCESSED HERE.

Professor Jiang's portion of this dialogue will be published as 强世功, 中国宪政模式——巴克尔对中国“一党宪政”体制的研究 (Chinese-Style Constitutionalism: On Backer’s Chinese Party-State Constitutionalism). The abstract also follows (in English and Chinese).
The state of constitutional theory is in flux. What was once the preserve of those who organized the state became the expression of mass democracy and the popular will, one that has been increasingly constrained by international consensus on the limits of political will within national borders. The stakes are high—constitutional legitimacy is fundamental to internal political stability and to international acceptance. Among the most contested forms of modern constitutional states are Party-State systems grounded in Marxist-Leninist theory. This essay considers Jiang Shigong’s development of a coherent and legitimating constitutionalist theory of China’s Party-State system. The essay considers Jiang’s argument that constitutionalism must start with values and structure and then consider the mechanics through which it is institutionalized—either in writing or through structuralist approaches. It also examines Jiang’s construction a formal-functional theory of Chinese constitutionalism that acknowledges the democratic basis of framework and the representative character of the Party within the Party-State system. Jiang’s theoretical developments point to the deepening of an understanding of the legitimacy of Chinese constitutionalism. Jiang Shigong is part of a small group of Chinese academics who are working along distinct paths to move beyond the “legitimacy” issue of Chinese constitutionalism and tackle the much harder but more important questions of the continued development of Chinese constitutionalism along the lines of its own logic. Critical to that project are notions of civic education and the consequences of the separation of powers at the heart of Chinese constitutionalism—one that distinguishes between the administrative power of the government, including the administration and rule of law, and the political power of the CCP, including the nation’s constitutional norms.
Chinese-Style of Constitutionalism: On Backer’s Chinese Party-State Constitutionalism

-->     摘要:目前世界上的宪政体制,大体分为三种模式:其一是超国家宪政,其二是神权宪政模式,其三是党国宪政模式。本文集中介绍了巴克尔对中国党国宪政体制的研究。党国宪政体制来源于马克思列宁主义和苏联的实践,新中国的成立后所确立的宪政模式也在这种传统之下。但是,这种党国宪政体制在1982年以来进行了一场根本性的改革,开始迈向一党宪政体制,是在党和国家分权的基础上,增加了法治的要素,确立了宪法最高地位,从而在党的领导与依法治国之间形成了一种动态的平衡。一方面党的作为社会价值规范的提供者为宪法和法治提供了规范价值基础,另一方面宪法和法治约束了党的行为方式,使其服从于宪法和法律。在此基础上,巴克尔提出了完善一党宪政体制的有关构想。

-->Abstract: Currently, the constitutional systems in the world can be generally divided into three frameworks: transnational constitutionalism, theocratic constitutionalism, and party-state constitutionalism. The focus of this essay is on Larry Backer’s research concerning China’s party-state system. Party-state constitutionalism is rooted in Marxism-Leninism and was initially put into practice by the former Soviet Union. During its incipient years, the People’s Republic of China followed in the USSR’s footsteps and developed its constitutional system under the traditional Soviet framework. However, since 1982, the Chinese party-state constitutional system underwent several major reforms and is transforming into a “single party constitutional state”. Grounded in the separation of power between the party and the state, this new constitutional model serves to further the rule of law elements into Chinese constitutionalism, reaffirms the paramount position of the constitution, and thus forms a dynamic balance between the CCP’s leadership and the rule of law. The CCP, being an articulator of social norms and values, provides the substantive norms and values that form the basis of the rule of law constitution. The constitution, in turn, serves to limit the behavior of the party, so that the CCP will be subject to the constraints of the constitution and the rule of law.

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