Wednesday, April 02, 2014

Conference Announcement: "China-Constitution-Politics" to be Held at Pennsylvania State University April 9, 2014

Pennsylvania State University is hosting the conference, "China-Constitution-Politics" to be held at the Penn State School of International Affairs April 9, 2014. The Conference focuses on issues of Chinese constitutionalism and politics.  The conference seeks to avoid the usual perspective, which often posits some need to move China from its current system to one more compatible with Western models.  Instead it engages Chinese constitutionalism, even i comparative perspective  on its own terms.

Featured speakers include Zhiwei Tong (whose work has been translated into English on this blog site--see HERE), me, and a host of other scholars. This post includes the Conference Announcement and Program Statement and abstracts of the two major conference papers.

Conference Announcement

The Pennsylvania State University School of International Affairs is pleased to announce the Conference, “China-Constitution-Politics” to be held at the Penn State Law School, University Park, April 9, 2014. The conference is co sponsored by the Coalition for Peace & Ethics and Penn State’s Center for Global Studies, Center for Democratic Deliberation, Rock Ethics Institute, School of International Affairs.

Despite increasing economic ties between world's two largest economies, the United States' strategic and diplomatic engagement with China is implicated by the ideological presupposition that the Chinese political system is intrinsically "undemocratic" and lacks legitimacy. This of course would in turn invite Beijing to interpret Washington's actions with a fixed suspicious lens. Therefore, it is crucial to promote substantive legal dialogue and further mutual understandings of the each other's legal and political systems in order to maintain the long the term constructive relationship between the two nations.

China has adopted a written-constitution system. The Chinese Constitution not only reflects the most crucial values that are followed by the nation and its people, it is also a fundamental law with which people who actually rule the nation are determined to comply. Since the “Reform and Open up to the Outside World,” China has modified its Constitution four times since the establishment of the People's Republic and shifted from a planned economy to a Socialist Market Economy from 1993. China's constitution has also added protection of human rights, and rule of law governance. Though the Constitution does not specify the power or organization of the Chinese Communist Party, the CCP has consistently been the primary engine that calls for modifications and implementation of the Constitution.

In other words, Chinese constitutionalism presents a coherent but complex normative system memorialized in a simple written constitution, which happens to be compatible with the basic presumptions of conventional constitutionalism in its form while may depart from it in essence. That system divides the organization of the state into two parts, both operating under the normative framework of the constitution—a government apparatus charged with the lawful operation of the state, and a Party apparatus charged with the elaboration of the substantive principles of constitutionalism and its application. However, since the establishment of the Soviet Union, Western constitutional theory has tended to look suspiciously at the constitutionalization of Marxist Leninist government under the leadership of a single party in power. These judgments have formed the basis of analysis of Chinese constitutionalism as well, serving as the foundations for critique especially after the structural reforms of Deng Xiaoping and his successors after 1989.

But are these criticisms inevitably correct in general and wholly applicable in the post 1989 Chinese context? Put another way, is it possible to theorize a state-party model of state organization that remains true both to the ideals of constitutionalism grounded in the core postulate of rule of law governance and to the Marxist principles under which the Chinese state is organized and through which it is governed? Chinese constitutional scholars, on the other hand, have been building on emerging global notions of constitutionalism to both embed their constitutional experiment within these larger currents and to theorize the distinctions between the Chinese and other models. If the development of such a model is possible, what does that mean for purposes of implementing a rule of law society in China and how does that translate into the relationship among the people, the Party and the state?

These questions suggest both the potential and difficulties of a global conversation about Chinese Constitutionalism as theory and as applied, on its own terms and in terms of the global constitutionalist discourse. Moreover, it suggests a useful point of engagement with the Chinese constitutional project that would also reflect on issues common across constitutional systems, especially that of the United States. Principally this focuses on the “implementation gap” between the ideals expressed in constitutional language and the realities of actual state practice. The United States has wrestled with these issues for a long time, and much of its constitutional jurisprudence reflects this drive toward constitutional harmony between theory and practice. Like the majority of states, the legitimacy of the Chinese government and governmental actions is assumed to be judged by their conformity to the constitution. However, even if one considers the Chinese constitution itself legitimate, it does not mean that China adheres to the rule of law as defined by its constitution. There is a major gap between “text” and “reality” when it comes to implementation of China’s constitutional principles, meaning that the political and administrative practices by state and party authorities often fail to adhere to Chinese constitutional requirements.

The questions, and the dialogue they produce reminds us that great states, like the United State and China, share a common tradition of always seeking to review and improve their constitutional systems, though the roads taken by these two great powers to that end do not always coincide. China's political system is founded on the unique role of the Chinese Communist Party, not a party in the traditional sense, but the group of individuals who are vested with the political direction of the state. China is beginning to develop a quite distinct approach to democracy and democratic institutions--Chinese democratic socialism--that reflects a quite distinctive approach to the issues of popular engagement with politics, and that is grounded on this distinctive role of the CCP. Its political and constitutional choices, however compatible they may be with those of Western democracies, will likely have greater influence globally as China assumes a larger role in international affairs.

This conference brings together prominent scholars of constitutional law in the U.S. and China for the purpose of (1) bridging the research gap in Chinese constitutionalism, (2) exploring the ethical implications concerning the development and application of constitutional principles in China, (3) strengthening the comparative dimension of the study of constitutionalism with emphasis on U.S. and Chinese constitutional developments, and (4) bring a more prominent focus on the issue of constitutional implementation in China. For these purposes, an initial set of collaborative lectures will be delivered at Pennsylvania State University, to be led by Professor Zhiwei Tong from East China University of Political Science and Law and Larry Catá Backer from Pennsylvania State University. These lectures will frame the issues of Chinese constitutionalism that will be elaborated. These will serve as the basis of discussion by participating scholars. Professor Tong is an internationally renowned constitutional scholar of constitutional law. More importantly, he is one of the great public intellectuals in China and a key opinion leader. He plays an important role in the current debates about the direction and shape of Chinese law and politics. Professor Backer is a scholar of comparative constitutional law who has been developing theories of state-party constitutionalism that fall within emerging principles of transnational constitutionalism.


9:00 AM
Opening remarks James Houck, Dean of Penn State Law School
9:30-10:30 AM
Professor Zhiwei Tong presents his paper on Chinese constitutionalism.
10:30-10:45 AM

10:45-12:00 AM
Comments and Panel Discussion
Participating Scholars provide comments on the paper presented in the morning and form a panel discussion on the topic of the paper. Professor Zhiwei Tong and other scholars also address questions that the audience may have.
12:00-1:30 PM
Lunch Break
Lunch will be provided.
1:30-2:30 PM
Professor Backer presents his paper on Chinese constitutionalism.
2:30-2:45 PM

2:45-4:00 PM
Comments and Panel Discussion
Participating Scholars provide comments on the paper presented in the afternoon and form a panel discussion on the topic of the paper. Professor Backer and other scholars also address questions that the audience may have.
4:00-4:15 PM
Concluding Remarks


"The Emerging Structures of Socialist Constitutionalism With Chinese Characteristics: Extra-Judicial Detention (Laojiao and Shuanggui) and the Chinese Constitutional Order"
Larry Catá Backer
Keren Wang
Pacific Rim Law and Policy Journal (University of Washington)23:--(forthcoming 2014).

Abstract:  This paper considers the development of constitutional rule of law theory with Chinese characteristics by considering its application in two related but distinct legal contexts – laojiao (the system of administrative detentions, re-education through labor, or “劳动教养”) and shuanggui (the system of intra-Chinese Communist Party (CCP) discipline of its cadres 双规). China is developing its own distinctive path towards socialist constitutionalism and rule of law. Socialist constitutionalism with Chinese characteristics reflects China's history and its unique circumstances, but also conforms to the general principles of transnational constitutionalism. The Chinese constitutional order is grounded on a principal of separation of powers that distinguishes between an administrative power assigned to the government and a political authority assigned to the CCP. Administrative constitutional power is organized within the State Constitution; the authority of the CCPis acknowledged in the Constitution but framed by the ideological premises on which the political order is founded — under the guidance of Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory the important thought of 'Three Represents' and the concept of scientific development. The paper will first briefly review the emerging framework of the Chinese constitutional order, represented by the respective roles of the state apparatus and the CCP. The paper then will review the laojiao and shuanggui systems, the former applicable to all individuals and the later applicable only to CCP members. It will suggest why laojiao is constitutionally problematic but shuanggui is constitutionally sound under the current Chinese constitutional framework. Shuanggui deals with political, rather than administrative breaches that touch on the integrity of the role of the CCP as Party in Power. It is in this sense beyond the competence of the administrative authorities represented by the government apparatus and relates to the constitution of the CCP rather than the constitution of the state and its administrative authority over the people. As a consequence, the shuanggui system is not subject to the same constitutional difficulties as laojiao. The paper ends with a suggestion of the ways in which shuanggui might benefit from scientific development under China’s rule of law constitutional system in the way it is administered, that is the ways in which shuanggui might be reformed to better conform with CCP constitutional principles.

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