Monday, February 16, 2015

Part I (Theoretical Foundations)--On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory

(Pix (c) Larry Catá Backer 2015)

This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2015 this site introduces a new theme: On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory.

This Post includes Part I, Theoretical Foundations: The General Program in the Chinese Constitutional Complex

Table of Contents 

 Part I,  Theoretical Foundations: The General Program in the Chinese Constitutional Complex

 Since early in the history of the People's Republic of China, at a time just on the cusp of the Cultural Revolution, the problem of a theoretical foundations for the transformation of a revolutionary impulse guided by a 19th century theoretical vision into an institutional program true to that vision was acute. By the 1950s, the lessons of European Marxist Leninism, in its Stalinist reformulations, had been absorbed, and with it a structure and language for the elaboration of a theory with some connection to the realities of the political architecture than being framed (and almost immediately after re-framed)in the Great Proletarian Cultural Revolution that was not great, nor proletarian, nor cultural nor revolutionary. 

Within that formative period and drawing on their Soviet elder brothers,  as Arthur Steiner (writing in the late 1950s) reminded us, the great discursive tropes were forged within which the language of Chinese Marxism would be constrained and made to understand itself.  The language, like the language of any elite (lawyers in common law countries; priests everywhere), was both compressed (laden with terms of art), and tethered to its own history (seek truth from facts).  "Ideology" merged with and expressed theory; "politics" merged with and expressed practice.  An "ideological line" expressed a theoretical perspective tied to a specific context.  "Politics" was a way of expressing policy and the rule system through which it was implemented (and a reminder that the authority over politics remained not with the state but with the Chinese Communist Party (CCP)). The CCP's "line" was fashioned to serve as the operational device for instructing CCP cadres on the appropriate parameters of action within the sphere of their authority.  It also served as the means by which such exercise of authority was to be measured. . . and constrained.

Yet this vocabulary, the the system constructed from out of these organizing notions.  has proven to be a thick barrier to Westerners, especially, and adherents of other political traditions, generally. The principal barrier, of course, is that the words do not translate well from one set of political theory to another.  Ideology, political lines, party structure and organization, and politics have quite distinct meanings under non-Marxist Leninist systems theory than they do elsewhere.  And it is difficult to invest words with a common meaning in one theoretical system, with meanings largely inimical to that system's constructs in studying another.  But not impossible.  Perhaps in the American context, ideology can be understood as the theory of the American political order developed through the Declaration of Independence and related documents of the revolutionary period (through the Federalist Papers), and its politics elaborated in the early cases of the Marshall Court, particularly Marbury v. Madison 5 U.S. 137 (1803) and McColluch v. Maryland 17 U.S. 316 (1819). The American ideological line and its constraints was expressed through its founding documents, particularly its federal Constitution (and those founding documents central to constitutional modification), which served together as the structuring mechanism for politics, undertaken by factions united in their allegiance to the basic parameters of American ideology as expressed through its ideological line. 

Thus CCP "ideology" is an expression of the theoretical foundations of the political order.  The political order itself has, as its highest obligation, the burden of ensuring that its style of governance and its substantive policies conform to those theoretical foundations. That style of governance, the CCP's politics, then articulates substantive policy that is then implemented through the administrative structures of the state.  The aggregate articulation of that obligation, as standard and measure of fidelity to the political order, is expressed in the party "line." The political and governmental constitution of the Chinese nation then seamlessly follows from this structure.   The political order is exercised through the CCP.  The CCP exercises the delegated power of sovereignty from the people, for whose benefit, in accordance with the governing ideology, it is fundamentally obligated to act.  CCP membership is theoretically open to all people who embrace an allegiance to the CCP "ideology" and consent to the disciplining of that allegiance through the institutional mechanics of the CCP.  At its limit, the CCP might merge into and include all adult citizens with capacity. The CCP "ideology" constrains all political choice within the nation.  The specific choices made to express the concretization of the CCP's "ideology" together constitutes the CCP's line.  The CCP line expresses the political choices made within the constrains of the constraining ideology, which creates the framework within which governance may be implemented.  It acquires, in that sense, a constitutional character at the foundation of the political order of the nation. Both ideology and CCP line constitute the nation, and as written in the Constitution of the CCP, reflect the highest level of governance within the state. The CCP line, as reflected in its constitution, has direct effect on the people in whose name the line was developed.  There is thus a direct connection, constitutionally affirmed, between the CCP and the people (and one that is stil very much a work in progress). The constitution of the political order is then administered through, and implemented by, the government constituted for the administration of the state.  That administrative order also articulates and is constrained by the CCP line.  It is reflected in the state constitution.  The state apparatus does not engage in politics, nor does it have responsibility for the nation's political line.  Its role is far more constrained--to take the CCP line, within the further constraints of the state constitution, and implement it within the structures of government created therefor. That argument reflects the constitutional theory of Jiang Shigong and in my own prior work. 

To encounter the theoretical foundations of the Chinese political order, therefore, it is necessary to look first to the ideology of that political order.  The constitutional theory for China, and its constraining line--the framework within which Chinese politics, and the discretion of the Chinese Communist Party are constrained--the cage of politics (to paraphrase President Xi Jingpin's well known call to cage power within a cage of regulations)--is given, if it is given at all, from this ideology.  That ideology is embedded within the the General Program of the Chinese Communist Party.  The cage  of ideology restricts the political line of the CCP, and the state apparatus that administers that line.  It is to the precise details of the cage of theory that we turn next.  The objective is to discern whether the cage is illusory, or made of paper, or can robustly serve to bind the CCP to its purpose the way that the American ideological line has bound the factions of the American political party since the founding of that Republic. 



Larry Catá Backer, "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). 

Jiang Shigong, "Written and Unwritten Constitutions: A New Approach to the Study of Constitutional Government in China," Modern China 36(1):12-46 (2010).

----------, Fazhi yu Zhili: Guojia Zhuanxingzhong de Falv (Legal System and Governance: Law in the Transformed State) (Beijing: Zhongguo zhengfadaxue chubanshe, 2003).

H. Arthur Steiner, Annals of the American Academy of Political and Social Science, Vol. 321, Contemporary China and the Chinese (Jan., 1959), pp. 29-39.

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