Han Liu: "American Constitutional Law in China" (European Chinese Law Research Hub)

 

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The folks over at the European Chinese Law Research Hub (with thanks to Marianne von Blomberg, Editor ECLR Hub, Research Associate, Chair for Chinese Legal Culture, University of Cologne) have posted Han Liu's  (Associate Professor at Tsinghua University Law School and Deputy Director of Tsinghua Institute for Law and AI.) quite interesting essay that seeks to distill a critically important set of "lessons" of American constitutionalism as received and utilized by Chinese scholars and officials during the "golden age" of this reception of American constitutionalism in China before 2010.  This masterful article is worth a careful read for anyone interested in the history of a "golden age" of a school of Chinese elite jurisprudence whose time has come and gone.

Marianne von Bloomberg explains:

After decades of dire isolation, interest for American constitutionalism among Chinese officials and scholars surged- and fundamentally shifted in focus. Han Liu argues that throughout the decades of Chinese interaction with American constitutionalism, it was less and less embedded within the idea of separation of powers but came to be understood as a synonym for judicial review. Han Liu is Associate Professor and Assistant Dean at Tsinghua University's Law School (article, pre-publication free draft).

Enjoy the read and as always, we would love to hear your comments, criticism and ideas.

With the kind permission of the ECLRH I am cross posting the essay below along with my own brief comments. The original ECLRH post may be accessed HERE. And as a plug for the marvelous work at the European Chinese Law Research Hub: if you have observations, analyses or pieces of research that are not publishable as a paper but should get out there, or want to spread event information, calls for papers or job openings, or have a paper forthcoming- do not hesitate to contact Marianne von Bloomberg.

 

 Brief Comments:

1. The essay makes for a marvelous history, but at the same time it is a Proustian in its ambitions, "A la recherche du temps perdu" (In Search of a Lost Time).   In this sense it makes good history but also serves as an elegy for people, sensibilities, potentialities now irremediably lost. The great value of this recounting, of this search, is in its sometimes quite subtle revealing of both the strengths and and the weaknesses of that search. Most importantly it serves as a grand vision of movement that makes it far easier to understand why it failed, and failed so decisively after 2013.  It is in this sense that one perhaps ought to approach the article as not merely history, but also as a lamentation in its Western biblical sense. 

The roads to Zion mourn,
    for no one comes to her appointed festivals.
All her gateways are desolate,
    her priests groan,
her young women grieve,
    and she is in bitter anguish.

⁵ Her foes have become her masters;
    her enemies are at ease.
The Lord has brought her grief
    because of her many sins.
Her children have gone into exile,
    captive before the foe. (Lamentations 1:4-5)

2. The most interesting aspects of the essay are its focus both on the Americanization of the CHinese intellectual discourse, as well as on its curation by the Americans--both state and private institutions.  The role of the Ford Foundation, highlighted in the essay cannot be underestimated--though its effect (quite challenging) opens the door to further exploration elsewhere. I was struck by the way in which that great flowering of interest fueled by the Americans could perhaps be connected with the push back--the "black hand of foreign interference trope now quite prominent in Chinese official discourse. 

3. Even more interesting, especially for the study of the nature of the push back that intensifies under the leadership of Xi Jinping and is deeply embedded in  "New Era" theory, is the pivotal role of Hing KOng.  Here it is viewed as a point of entry and convergence of thinking about constitutionalism--especially with respect to the character of individual rights and its protection by courts. But it could also be viewed as the bacillus carrying infection (of a political and ideological sort) that could be viewed as a direct and fatal threat to the Chinese political-economic model. Here the work of Jiang Shigong, mentioned only in passing in the essay may be worry of deeper study. Still, quite valuable is the discussion from Text note 250 onward in that regard., though of course, that discussion was not the central element of the essay's focus. 

4. Because this is a study of the Americanization of Chinese intellectual and academic discourse on a specific aspect of American constitutionalism and its reception within Chinese elite academic circles it does not capture as well the extraordinary consequence of that capturing on discourse of Chinese constitutionalism and its several schools.  That the injection of American ideas was important is the great and quite critical insight of this essay.  That this injection produced an enormous flowering of indigenous and quite sophisticated conversation (one that was harder to curate by American Foundations and other institutions--along with their minders in the form of elite American educational institutions and the academics which served them)  also merits further study.  The scholarship of Tong Zhiwei plays a prominent role here though clearly not one connected as directly to the project of Americanization the history of which is the central object of the essay. The essay does a marvelous job of exposing in this way not just a history worth recounting of a time now lost, but at the same time of the great gaps of knowledge of intellectual history that are worth further pursuit. 

5. It is a pity that, like much that is written in English, the role of Chinese political ideology--its strengths, pretensions, robustness, and power--remains at the margins. Certainly it is offered here as an explanation for the push back and the ultimate decline of the sort of focus on judicialization that was at its peak until near the end of the leadership of Hu Jintao.  Yet that intersection of Marxist-Leninist ideology and its interaction with American constitutionalism is worthy of greater consideration. That consideration ought not to be limited to the use of contemporary political ideology as a block, but rather for a study of the way that even as the Americanization school was reaching its peak, so too was the Leninist school of constitutionalism also emerging.  More interesting still--and substantially unexplored--are the ways in which that Leninism also profited form exposure to American constitutionalism ideals.

6. Even though the essay is at its core an elegy, the movement that it chronicles has left a lingering mark on the state of Chinese socialist judicialization.  And it provided a valuable foundation for the construction of China's construction of the structures around which its outward relationships, especially along the Belt and Road, could be better managed in ways more compatible with the sensibilities of its partners.  The relationship of this epoch of Americanization on the development and operation of the role of the Guiding cases project also merits some consideration. (see HERE).  

7. Contemporary American and Chinese elites might be the most important audience for this study.  There are lots of lessons here for Americans respecting the conceits and  pretensions of its elites not just in the construction of its own jurisprudence (a challenge for elites everywhere but perhaps the nature of elite ideology), but also in the ways in which it served as a vehicle for ideological projections beyond its own borders.  The lessons, embedded in this historical study, then, might serve as a cation to contemporary factions with ambitions that seek to bend the world around them to forms more amenable to their ambitions. 

8. Lastly, there is  lesson here for academics with ambitions to project their knowledge onto the political and societal spheres by embracing roles as public intellectuals. the transformation of the academic enterprise from those focused on the production of knowledge to the construction of an industrialization of public intellectuals (e.g. Pierre Bourdieu, "The Corporatism of the Universal: The Role of Intellectuals in the Modern World," Telos 81:99-110 (1989)). The quite distinct approaches of American and Chinese intellectuals provide a quite interesting nuance to the quite extraordinary movement that is the subject of this study.

 

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American Constitutional Law in China

A new paper by Han Liu

American constitutional law has influenced various countries, but what about China? For conventional account, the answer is, little, given China’s socialist constitutional system and continental legal thinking. Diving into a relatively unexplored domain, Han Liu traces the reception of American constitutional law in post-Reform China, arguing that American constitutional law has greatly influenced Chinese constitutional thinking, sometimes even generating practical reform projects (article, free draft).

One influential Chinese text book on US-American Constitutional Law

To be sure, American constitutionalism had almost no influence in proto-socialist China (1949–1979). In 1979, as China and the United States established diplomatic relations, interest in American constitutional system began to surge. Translations, studies, and introductions about American constitutional law started to grow rapidly. This academic project also influenced practice, especially by providing an example of the separation of powers and judicial review.

Han Liu points out that there has been a great change in Chinese understandings of American constitutionalism, that is, from “regime-centered” to “court-centered”. These two exerted different practical influences. In the 1980s, American constitutionalism was generally tantamount to tripartite “separation of powers” to Chinese intellectuals, legal or otherwise, and even political leaders. Deng famously said that “I always criticize the American power holders for having three governments.” Despite Deng’s critique, others tried, without success, to learn from the American example, bringing checks and balances into the Chinese system.

But at the turn of the century, especially in the early 2000s, American constitutionalism shows a different face. For many legal scholars and lawyers, it was understood as synonomous with judicial review. They came to believe that a constitution remains a dead letter if not used in courts and litigations, as in the US. The US Supreme Court, with its power to enforce the Constitution, now took the center stage in the Chinese understandings. Its Chinese counterpart, from 2001 to 2008, even introduced an American model of judicial review into the Chinese judicial system.

Why has this happened? It was not simply a “response-impact” mechanism. Rather, China’s different receptive attitudes towards American constitutional law hinge upon China’s own frame of reference in the legal reform. As the authorities began to construct “the rule of law” in the 1990s, the Constitution had to be activated in practice. Then the American model became attractive.

In the space between theory and practice, the Chinese constitutional mind becomes receptive to American influence.

This logic also explains the decline of American influence in Chinese constitutional theory and practice in the last ten years. While the authorities declare the principle of “governing according to the constitution”, they at the same time stress China’s distinction from “Western” models, especially the US. In due course, American constitutionalism in China will perhaps no longer be the single idol to adore, let alone the best model to follow.

Looking back, American constitutionalism’s impacts on Chinese constitutional development depend upon the internal logic and dynamics of Chinese reform, which determines the optics in the reception of foreign law. The fundamental change in Chinese understandings of American constitutionalism reflects the great transformation in the deep structure of Chinese ideology and jurisprudence.

Han Liu is Associate Professor at Tsinghua University Law School and Deputy Director of Tsinghua Institute for Law and AI. He researches comparative constitutional law, cyber law and policies, and legal theory. His recent paper ‘Regime-Centered and Court-Centered Understandings: The Reception of American Constitutional Law in Contemporary China’ (free draft here) appears in American Journal of Comparative Law, selected as one of the top 10 comparative law articles in the Best of 2020 Law Journals from Oxford University Press. His book Think Big and Beyond Yourself: Law as a Way of Thinking (in Chinese) won “The 10 Best Books 2020 in Law” in China. His online course “Legal Thinking” has attracted more than 70, 000 subscribers. Reach out to him at liuhan[at]tsinghua.edu.cn.