Monday, September 12, 2016

Part 31 (The Constitutional Character of the General Program)--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 31, On the Constitutional Character of the General Program.  Looking back on the analysis of the constituent parts of the General Program, it considers the systemic and self-reflexive qualities of the General Program and its role within the Chinese constitutional order.
Table of Contents 

The General Program presents, form the Western perspective, a rather odd product.  As one read the more detailed consideration of each of its parts, one might be right to ask oneself at least three questions: 1. Where does the CCP Statute come from? 2. How was it made? 3. How does it change over time? These are likely the most important questions necessary to provide a basis for the fundamental question one ought to ask--why should anyone pay any attention to a "General Program" of a Communist Party in the face of the existence of a self described state constitution and the establishment of a constitutional order that looks, to western eyes, just like theirs (having borrowed at least its forms)?  One might answer these profound questions simply: the CCP  statute, its General Program, it is self constituting, it was made by those representing the legitimate forces of authority at the time it was made and it changes over time in relation to the fundamental objective for which it was created--socialist modernization leading toward the establishment of a communist society in China. The first two are the same answer one expects for the self constitution of any states, the third makes China now somewhat distinct.

Yet, a deeper consideration of  each of its parts now permits a broader analysis of it in aggregate form. That analysis suggests that the General Program, to be properly understood within the constellation of writings that comprise the fundamental expressions of the ordering of the Chinese political sphere, presents (1) a tightly integrated set of core principles, (2) those core principles structure the forms of the self constitution of the Chinese political organismus, (3) that self constitution is complete in itself and requires no outside or superior set of principles or acts to give it form, (4)  subsidiary principles, approaches and applications can be derived by reference to it, (5) it specifies a hierarchy of norms within which appears the state constitution of China,  and (6) it points to the ordering of politics and government substantially distinct from that which has become common in the West. I discuss each briefly in turn, and then suggests some consequences for Western engagement with this system.

First, the General Program is not merely a collection of unrelated paragraphs, or points.  It is a tightly integrated  set of core principles. But not just core principles without political effect.  Quite the contrary, these are framing principles that serve as the constraining ideology that constitutes the mandatory framework within which the vanguard Party must fulfill its leadership role.  But more than that, they also serve as the basic principles through which all law--including the highest administrative law of the state constitution, must be read and applied. That is a construct that is quite distinct from the West where the constitutional constraining ideology is inherent in the document itself.  In China, and under Chinese Marxist Leninism, constitutional ideology must be directed to those political elements who have been assigned political authority--the Communist Party, acting collectively through its members (e.g., discussed here). That is necessary because the "higher principles" of the CCP basic line is binding both on the political class--the vanguard party--and serves as the interpretive framework within which the "higher law" of the constitution is understood and applied. 

It is in this sense, that one can understand the General Program, and its construction of the Basic Line, as inherently self constitutive. The need to liberate Chinese constitutional theory from certain dominant strains of Western liberal thinking is a necessary project, and one that also reflects substantial changes in Western liberal thinking as well. At the same time it is important to remember that this discourse, though contextually distinct, also forms part of a larger global conversation which itself produces convergence in thinking about concepts and approaches to common issues--however they are implemented within a national context (discussed here). 

That said the constitutional role of the General Program raises the most interesting and fundamental issues in current Chinese constitutional thinking: What does it mean to be a Leninist Party? What distinguishes a Communist Party from any other sort of vanguard party? How does this relate to the construction of a state apparatus and an administrative apparatus? To some extent, the arguments you make have a long pedigree, though now evolved into a more sophisticated modern form. It echoes arguments that have appeared recently in some Chinese theoretical journals. Many of these arguments, born of the remnants of the leftist turn in Chinese constitutional thinking from the 1957-78 era, view any effort to institutionalize the governance apparatus of the CCP as a challenge to its authority. And the use of the architecture of law is viewed with suspicion the insertion of Western devices that will carry with it Western liberal ideologies. These fears are both exaggerated and work against the basic thrust f the fundamental theory of the vanguard that is itself constitutionally significant. But they do go to the correct identification of the great challenge of Leninist constitutionalism--the construction of a robust Leninist theory of the role of a vanguard party in a Communist state in the 21st century. Yet it is precisely both the elements of Marxism and Leninism that are routinely not centered in analysis of the constitutional structures of China.

The issue, then, is the relationship between the ideology of law and the legitimacy of a Leninist vanguard whose legitimacy is tied to its fundamental obligation to lead the masses toward the creation of a communist society in China. There is little that Western liberal theory can offer here. Yet Western liberalism has been a powerful tool in the construction of modern states and that is worth something. So what is it about law that might prove useful? The answer is as simple as it is limited--a use of law to memorialize political decisions-- a political law. It is important, in that context, to distinguish between administrative law (statutes and regulation) higher or constitutional norms. The former represents an important advance in thinking about the character of law in the administrative apparatus of the Chinese state, and this includes the "law" of the 1982 State Constitution. But in thinking about constitutional norms--the rules that bind even a Leninist vanguard party, it may be necessary to move away from a Western liberal construct and back into the heart of Leninist theory.

Here it is important to consider that Leninism did not develop a mechanics of rule that was meant to solve the problem of mere representation for representation's sake. Rather, the Leninist construction was inherently political--but its politics also provided a substantial constraint on the legitimacy of its actions. For a Leninist vanguard to be legitimate it must also be communist in its objectives. It is this connection between the constitutive constrains of Leninism and the role of the Leninist vanguard as a representative of the people that produces the very very specific representational relationship that is nicely summarized in the mass line. This is not merely representation but representation with a purpose. It is in those relationships that the political system is constituted around the vanguard, bounded by the severe ideological constraints of its Basic Line, which serves as the "higher law" whose critical connection with the people is expressed through the state constitution that creates a government and organizes public power through the state under the leadership of the holders of political power.
Second, it follows that the General Program is, as well, hierarchically constitutional. By that it is meant that there is a relationship between the General Program and the State Constitution.  And that this relationship is vertically ordered.  The State Constitution derives from and must be interpreted in line with the General Program.  The State Constitution is the embodiment of Socialist Law; it is, in a sense, the expression of the institutional structures through which the General Program is given effect.  It is the embodiment of the effectiveness of the General Program now expressed in law--as the cage of rules that both define and constrain the exercise of political leadership by the Party and the discretion of public officials in its implementation.  It is at the same time the concrete manifestation of the abstract obligations of the vanguard in two respects. First the State constitution serves as the vehicle through which the mass line may be exercised, that is as the mandatory vehicle for connection with the people in a two way communication to ensure collective participation towards the ultimate goal of the vanguard. Second, its serves as the structure through which society may be guided int he process of Socialist modernization toward the goal to which state and Party are dedicated--the establishment of a communist society through the development of productive forces to its maximum extent. The State constitution is thus a cage of rules--but a cage that is itself caged within the principles of the General Program and its ideological foundations.  At the same time the State Constitution expresses the administrative and operational framework of the General Program itself.

Third, as its own self-constitution, the General Program is complete in itself.  In the West it is common to speak of constitutions as the memorialization of the structures that manifest the self conscious autonomy of a political system.  They are complete in themselves in the sense that they embody the entirety of political authority and set out its manifestation through the structures of government created, guided by the ruling ideology embedded in the  or ex tractable from an interpretation of the document itself.  The same can be said of the General Program and State Constitution.  Yet it is important o understand that the language of self constitution, of the emergence of the political order, and the structuring of its expression as an administrative organismus, is set out in the General Program. It requires nothing else to give expression to itself as a complete expression of political authority.

Fourth, it follows that it is from the General Program that all structures of organization derive.  But it means more than that, it also suggests that the General Program is sufficient, in itself, to derive the rules and rule systems necessary to exercise political power.  That is, the General Program is sufficient complete that reference to it is sufficient to produce the structures of rules necessary to manifest its abstract principles in concrete form.  Conversely, it is complete in itself sufficiently that reference to it is sufficient to interpret and assess the operation of the rules derived therefrom. Able to derive subsidiary norms and rules by reference only to itself.  The notion expresses Leninism in a distinct way. Here Leninism is not understood as embodied in the organismus of the Party, but rathjer that the Party, as a vanguard, is an instrument of the structuring principles of collective objective that is the General Program.  The vanguard does not create the General Program--the vanguard is created from out of the General Program itself.  And that act, that originating production of Leninist organization, is the generative manifestation of the General Program itself.  Only after this stage is it possible to think about a constitution of the administrative apparatus of state--that is of the relation between structuring principles, vanguard, state and people. 

Fifth, it follows that both the vanguard Party and the State (and its apparatus) are manifestations of--derive from--and are subordinate to, the structuring principles of the General Program (from which the basic line of the vanguard serves as an operational element). It serves as the source, as the apex of a hierarchy of norms beyond the state constitution and in which the state constitution is understood as a reflection of it. Taken together this reflects a complete manifestation of political power legitimately distinct from the arbitrary will of any individual or group.  The vanguard party is not an oligarchic dictatorship, and its leaders are not dictators--within a legitimately expressed Leninist model.  And indeed to the extent that this was a reality in the Soviet Union and in the generative period of the Chinese Marxist State, it suggests not the failure of theory but of leadership.  But all legitimate constitutional systems has known the lapses that are the products of the failuers of individuals rather than the deficiencies of systems and principles. (except to the extent that that structural forms of the system were insufficient to prevent its perversion). It is here that one sees in the General Program its most innovative development of Leninism--it de-centerd the vanguard party and the administrative apparatus of the state (and its constitution) by centering the structuring principles of political organization at the apex of the constitutional hierarchy. It is neither Communist Party nor State Constitution that express constitutional legitimacy--it is the General Program itself.

Sixth, the consequence of this wholly complete but distinct organization of legitimate political power is accounts for the difference itself. Most traditional constitutional systems are grounded in the preservation of custom and tradition--however a polity seeks to frame it.  In the West from the time of Aristotle, at the least, it has been a commonplace to understand that the constitutions of peoples are inherently tied to the preservation of their sense of themselves through their customs, habits and traditions.  This now manifests itself in democratic theory, in mass democracy and the like.  The idea is all generally the same, that political power is organized to preserve customs and traditions and to provide the means for their evolution and change in accordance with the tastes of those governed.  There is no higher purpose other than that.  There is no commitment to any objective other than popular self expression within and from out of the constraint of customs and tradition--including the ordering principles of the state itself (also a manifestation of those customs and traditions). These are systems with purpose but not direction. Marxist Leninist systems, in contrast has purpose and direction. The entire political organismus is directed toward a very specific goal--the establishment of a communist society.  That difference is both small and profound. That direction then shapes the political ideology, its expression in a vanguard party (to lead towards the objective) and the relationship between the political body and the masses. Those raised and embedded within systems with purpose and no direction tend to project that orienting perspective outward to other systems, and to judge them by reference to the markers of systems with purpose but no direction.  Yet systems with direction as well as purpose necessarily embrace a distinct perspective which is manifested in a distinct approach to political organization and to the role of law and administration.  It is that direction that requires the vanguard party, and it is that direction that constrains the vanguard. It is that direction from which the structuring ideology of politics and administration emerges. And it is that direction that gives the General Program its form and its authority.

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