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Sometimes it is important to take a step back and reconsider the basics. This becomes more important in times of tension,l especially when two or more opposing systems seek advantage in their contests for re-adjusting the nature of the relationship between them. These contests have a tendency--at least since the shift of the construction of structures and principles of belief in the fundamental structure of the world and humanity's place in it from religious to political systems --tend to involve not merely political advantage, but also contests over the normative superiority (its fundamental truth) of opposing systems. The political becomes religious in this sense that systems do not merely reflect collective customs, habits, traditions, or desires, but now represent the epistemology of truth that converts political fights to contests over the souls of national collectives and their people.
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In both cases, each of these systems focuses on the elaboration of their own world view their own imaginaries, of truth, enhancing its legitimacy. That legitimacy, in turn, is anchored to great exogenous conditions, being, or manifestations of authority that is the incarnation of the truth of each. At the same time, it follows from this truth that competing systems are false, are heresy, apostasy, or threatening to the truth offered by the living faith in the political system embraced. Political religions--and especially the political religions of contemporary constitutionalism--are quite good at knowing themselves, but equally incapable of seeing anything else except through the truth premises, outlooks, and values producing assumptions of their own faith system. Those two reflexes--to enhance, protect, and proselytize one's own system and to paint competing systems not merely as incompatible but as threatening to the core values that define one's own--are quite difficult to resist. The membrane of core values that serve to distinguish systems makes it more difficult to see in the other anything but their failures for refusing or resisting the truth of the values of one's own systems. And it is around this that the modalities of politics have been framed for the last several centuries. What is dangerous is not necessarily these reflexes (though they are dangerous enough when taken to their limits). More dangerous still the failure to recognize that these reflexes exist--to be conscious of them when engaging with the other (other than in the context of the strategic competition among them for the souls of potential converts) that produces conditions of error in the very strategies necessary to preserve and perhaps advance each system within its collective of adherents and aligned sympathizers.
This provides the context for the draft recently posted--"The Party as Polity: The Party-State and the Chinese Constitutional Order." Its object is simple--to revisit, to the extent it is possible, not the way that the Chinese constitutional system, and especially the place of the Communist Party of China within it, is understood as a function of the premises of the liberal democratic constitutional faith community, but rather to try to see it just a little more clearly in its own terms. That means not just to shear it from the encrustations of generations of liberal democratic "analysis" and critique, but also to detach it from the forest of internal "interpretation"--formal and informal-- that has grown up around its core. Like the core of leadership within Chinese Leninism, the core of tenets of the Marxist Leninist faith community may offer a purer path to understanding. Note that understanding does not require either agreement or allegiance; it merely requires a faith in the ability to better see things detached from the perspective of the self protective meaning making of either political faith traditions. That, anyway, is the object, clarity from a more detached starting point. But that exercise can be important in the overcharged environment in which these political faith communities are each more aggressively reaching out (their internationalism) to convert communities and protect their adherents from corruption.
The Abstract and Introduction follow. The Draft may be accessed HERE.
The Party as Polity: The Party-State and the Chinese Constitutional Order
Larry Catá Backer[1]
Abstract: Chinese Marxist Leninist constitutional theory has produced a constitutional order that is quite distinct from that common to the West and its baseline liberal democratic constitutional orders. Where the later starts from the premise that all sovereign power is vested in a government whose authority is ordered and constrained by a constitutional document, Chinese constitutional theory starts from the premise of the delegation of sovereign authority from the people to its leading forces constituted as a vanguard party. Administrative authority is then vested in the organs of state which accept the leadership of the Party and its guidance in the governance of the nation. This contribution examines the Chinese constitutional system within the parameters of its own political assumptions. China has moved toward a legitimately constitutionalist governance system in which power is divided between a vanguard party, which serves as the repository of political power, and the administrative organs of government. The CPC serves an institutional role within Chinese constitutionalism and also represents the political power of the Chinese polity directly in the political ordering of the government. The CPC, in turn, is constrained by the normative basis on which Chinese constitutionalism is ordered -- Marxist Leninism and Mao Zedong Thought, Deng Xiaoping Theory, the important Thought of Three Represents, the Scientific Outlook on Development, and Xi Jinping Thought on Socialism with Chinese Characteristics in the New Era Theory. These serve as the ideological basis for the Chinese political model and a constraint on the exercise of authority within both Party and state organs. Thus framed the Chinese constitutional system can be understood as both distinctly and legitimately constitutionalist. The contribution embeds the substantive political theory of Leninist constitutionalism on which the political order is organized with its expression in the organization of the state. It starts with a consideration of the Chinese state constitution. It then turns to a consideration of the constitution of the political order institutionalized within the Constitution of the Communist Party of China. In that context it examines the anti-arbitrary assertion of power principle of constitutionalism in the relationship between the administrative organs of state and the organs of CPC governance. Lastly, it situates both constitutions within the hierarchies of Chinese constitutional authority, one in which the state constitution provides the cage of regulation that embodies the Chinese Communist Party core Basic Line,. This last contributes to the accountability mechanisms built into the system of Chinese constitutionalism grounded on the operating premise that the CPC is at the center, the navigator and helmsman of the nation.
1. Introduction
Chinese Marxist Leninist constitutional theory, modernity’s nightmare,[2] has produced a constitutional order that is quite distinct from that common to the West and its baseline liberal democratic constitutional orders. It is “the other” of constitutional theory[3]--adjudged only as a function of the ideal[4]--which for the greater portion of the established constitutional jurisprudence elite is, by their definition, some variation of late 20th century classical liberal democratic constitutionalism.[5] At best, and grudgingly, given space within the constitutional discourse as “authoritarian” constitutionalism--the (pejorative) is meant to convey a quite precise meaning making centered on its deviation (negative) from that cluster of principles and values that are expressed in concrete form as liberal constitutionalism[6] with its ancient seat in Western European and North American states after 1798. It is also the yardstick against which liberal democratic constitutional theorists in the West judge what for them are fundamentally illegitimate deviations within their own constitutional orders.[7]
The constitutionalism of liberal democratic orders start from the premise that all sovereign power is vested in a government whose authority is ordered and constrained by a constitutional document,[8] and vested in a government suitable for the times but loyal to its core premises.[9] Beyond that, and certainly in the United States, the operationalization of this core set of premises is open ended and marked by enormous disagreement, even from the start of the Republic,[10] and substantial changes over time in the popular taste for government and the self-reflexive understanding of the sovereign societal order it is meant to manifest.[11] It is from these premises, and these sometimes great contests among key political elements, that the concept of constitutionalism has been given form, and the limits of legitimate expression of the constitutionalism principle, within (or without) a written constitution is embedded in the social consciousness and then into the law and norms of international bodies.[12]
This long introductory exposition is made necessary because its power to affect global judgments about distinctions between legitimate and illegitimate constitutional orders, and even to identify a system as legitimately constitutionalist, has been a central element in Western liberal democratic approaches to the study and classification of the constitutional system of China.[13] Abd it has become an important element of Chinese constitutional discourse through the beginning of China’s constitutional “New Era.”[14] More importantly, perhaps, it has been instrumental in the way in which the study of such systems are prejudged as not merely a constitutional deviation, but a deviation for inconsistent with the core political principles of liberal democracy that such systems might not be understood as legitimately constitutional.[15] The object of Chinese constitutional theory, then, is sometimes reduced to a project of alignment with what is perceived to be the core expectations drawn from liberal democratic orders,[16] or as described at the start of this contribution, as its re-construction as something that mimics but cannot be constitutional, taking as its starting point the3 core tenets of liberal democratic constitutionalism.[17]
Chinese constitutional theory starts from a very different place, though it shares many of the values of liberal democratic constitutionalism investing them with a meaning derived in large measure from its own theoretical starting points.[18] At its core is the premise of the delegation of sovereign authority from the people to its leading forces constituted as a vanguard party. Administrative authority is then vested in the organs of state which accept the leadership of the Party and its guidance in the governance of the nation. While Chinese constitutional discourse before the New Era debated the relationship between the constitution of the vanguard, and the constitutionalization of the state apparatus, the role of the vanguard itself as a decisive and representative element within the Chinese constitutional order could not be avoided.[19] That left two significant terrains for debate. The first was one that looked to the nature of the scope and exercise of political authority by the CPC, the other looked to the forms that discretionary exercises of authority were either organized or constrained by the CPC’s own rules, political line or by the fundamental strictures of its objectives as a communist vanguard.
This contribution examines the Chinese constitutional system within the parameters of its own political assumptions. China has moved toward a legitimately constitutionalist governance system in which power is divided between a vanguard party, which serves as the repository of political power, and the administrative organs of government. But in the process it has embraced a set of core political and human values quite distinct from that at the core of liberal democratic constitutional theory, starting with the delegation of sovereign authority from the masses to its vanguard, to the constitution of state power in ways that reject liberal democratic principles of separation of powers and (judicial) review. In Chinese Leninist constitutionalism, the CPC stands at the center of the political order. The CPC serves an institutional role within Chinese constitutionalism and also represents the political power of the Chinese polity directly in the political ordering of the government. The CPC, in turn, is constrained by the normative basis on which Chinese constitutionalism is ordered -- Marxist Leninism and Mao Zedong Thought, Deng Xiaoping Theory, the important Thought of Three Represents, the Scientific Outlook on Development, and Xi Jinping Thought on Socialism with Chinese Characteristics in the New Era Theory.[20] And that, precisely is both the essence of Chinese Marxist-Leninist Constitutionalism, and its reconstruction of political power within the Leninist vanguard and through them to the apparatus of the state built to operationalize its political “line” (its policies and objective). As Stanley Lubman wrote, “although they have continued to emphasize the importance of the role of law, at the same time they also insist on maintaining the dominant role of the CCP in Chinese society, and cannot resolve the contradiction between these two policies.”[21] And yet, the essential problem of constitutionalism remains the same--the protection of systems of authority and government “against arbitrary will.”[22]
These premises serve as the ideological basis for the Chinese political model and a constraint on the exercise of authority within both the Leninist vanguard Communist Party of China (CPC) and state organs constituted under law for the purpose of exercising the popular will under the leadership of the CPC.[23] Thus framed, the Chinese constitutional system can be understood as both distinctly and legitimately constitutionalist.[24]
The contribution embeds the substantive political theory of Leninist constitutionalism on which the political order is organized with its expression in the organization of the state. It starts with a consideration of the Chinese state constitution. It then turns to a consideration of the constitution of the political order institutionalized within the Constitution of the Communist Party of China. It then it examines the relationship between the administrative organs of state and the organs of CPC governance. Lastly, it situates both constitutions within the hierarchies of Chinese constitutional authority, one in which the state constitution provides the cage of regulation that embodies the Chinese Communist Party core Basic Line.[25] This last contributes to the accountability mechanisms built into the system of Chinese constitutionalism grounded on the operating premise that the CPC is at the center, the navigator and helmsman of the nation one that is consonant with the core anti-arbitrary assertion of power principle at the center of constitutionalism.[26] A caveat: the discussion that follows is focused on the formal constitution of the Chinese political order manifested in its core institutions; to that end the analysis will focus on the documents authoritatively constituting both the state apparatus and the nation’s political vanguard.[27]
NOTES:
[1] W. Richard and Mary Eshelman Faculty Scholar Professor of Law and International Affairs, Pennsylvania State University | 239 Lewis Katz Building, University Park, PA 16802; lcb11[AT] psu.edu. The published version of this contribution is submitted for inclusion in Ngoc Son Bui, Stuart Hargreaves, and Ryan Mitchel (eds.) Handbook of Constitutional Law in Greater China (Routledge, forthcoming 2022).
[2] Günter Frankenberg, “Authoritarian constitutionalism: coming to terms with modernity’s nightmare,” in Helena Alviar Garcia and Günter Frankenberg (eds.), Authoritarian Constitutionalism: Comparative Analysis and Critique (Edward Elgar 2019).
[3] Baogang He & Mark E. Warren, “Authoritarian Deliberation: The Deliberative Turn in Chinese Political Development,” (2011) Perspectives on Politics 9:269.
[4] Robert A. Dahl, On Democracy (Yale University Press 1998), pp. 35-83.
[5] Mark V. Tushnet, “Authoritarian Constitutionalism,” (2015) Cornell L. Rev. 100:391.
[6] Roberto Niembro, “Conceptualizing authoritarian constitutionalism. A Latin American view,“ Völkerrechtsblog, 17 July 2017, doi: 10.17176/20170717-082012 (“it is a concept that refers to a very sophisticated way in which ruling elites with an authoritarian mentality exercise power in not fully democratic states. . . the regime’s liberal democratic constitution, instead of limiting the power of the state and empowering those who would otherwise be powerless, is used for practical and authoritarian ideological functions.”)
[7] Alexander Somek, “Authoritarian Constitutionalism: Austrian Constitutional Doctrine 1933 to 1938 and Its Legacy,” in Christian Joerges & Navraj Singh Ghaleigh eds., Darker legacies of law in Europe: the shadow of national socialism and fascism over Europe and its legal Traditions (2003)
[8] See, Edward S. Corwin The ‘Higher Law’ Background of American Constitutional Law Cornell University Press 1955).
[9] For a variation developed during the crisis of government between 1919 and 1945, see Arthur N. Holcombe, Government in a Planned Democracy (WW Norton, 1935) (looking to a rationalized system that was applied eventually only for a short time as democratic socialism in European and other liberal democratic states and that served to support the legitimation of a form of liberal democratic administrative-bureaucratic constitutionalism).
[10] See, e.g., Thomas Paine, “The Rights of Man”, in (Howard Fast (ed.) The selected work of Tom Paine, pp. 93-279; John C. Calhoun, “A Discourse on the Constitution and Government of the United States,” in (Ross WE. Lence (ed) Union and Liberty: The Political Philosophy of John C. Calhoun (first published 1850, Liberty Fund 1992); James Fenimore Cooper, The American Democrat (first published 1838, Liberty Fund reprint of 1931 edition)
[11] Both key early modern thinkers essential to the development of western constitutionalism tended to tie the political premises of the organization of human collectives in its ideal form to the nature and character of the humans it is meant to incarnate and serve. See, e.g., Thomas Hobbs, Leviathan: Or the Matter, Forme and Power of a Commonwealth, Ecclesiasticall and Civil (First published 1651, Project Gutenberg eBook #3207 edition 2002); John Locke, Two Treatises on Government (first printed 1690, reprinted from The Works of John Locke (ten volumes) London: Thomas Tegg 1823).
[12] Larry Catá Backer, “From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems,” (2009) Penn State Law Review 113(3):671. See generally Giovanni Sartori, “Constitutionalism: A Preliminary Discussion (1962), American Political Science Review 56:853, 853-62 .
[13] See, e.g., Ding Xiaodong, “Law According to the Chinese Communist Party: Constitutionalism and Socialist Rule of
Law,” (2017) Modern China 43(3):322-352; Qin Qianhong and Ye Haibo, Socialist Constitutionalism (City University of Hong Kong Press, 2017); Fu Hauling and Zhai Xiaobo, “What Makes the Chinese Constitution Socialist? (2018) I-CON 16:655-663 (distinguishing between normative constitutionalists and political constitutionalists; ibid., 656-659).
[14] Xi Jinping, Secure a Decisive Victory in Building a Moderately Prosperous Society in All Respects and Strive for the Great Success of Socialism with Chinese Characteristics for a New Era, Speech delivered at the 19th National Congress of the Communist Party of China (October 18, 2017) <http://www.xinhuanet.com/english/download/Xi_Jinping's_report_at_19th_CPC_National_Congress.pdf> accessed 31 October 2921.
[15] For this type of effort, see, e.g., Tom Ginsburg and Alberto Simpser (eds) Constitutions in Authoritarian regimes (CUP 2014).
[16] See, e.g., Yan Lin and Tom Ginsberg, “Constitutional Interpretation in Lawmaking: China’s Invisible Constitutional Enforcement Mechanism,” (2015) The American Journal of Comparative Law 63(2):467-492).
[17] Larry Catá Backer, “Party, People, Government and State: On Constitutional Values and the Legitimacy of the Chinese State-Party Rule of Law System (2012) Boston University International Law Journal 30:331.
[18] Jiang Shigong, “Written and Unwritten Constitutions: A New Approach to the Study of Constitutional Government in China (2010) 36(1):12. Larry Catá Backer, “Party, People, Government and State, supra, pp. 336-337 (“These judgments have formed the basis for analysis of Chinese constitutionalism. The pre-Deng Chinese state governance architecture could be dismissed as anti-constitutional, rather than criticized for failures to appropriately incorporate constitutional principles. . . After Deng, China was judged from a constitutional perspective – and it was judged increasingly harshly, or simply dismissed as a capitalist but totalitarian state.”).
[19] For what at one time was a position more sympathetic to liberal democratic constitutionalist sensibilities, see Albert Chen, “The Discourse of political constitutionalism in contemporary China: Gao Quanxi’s studies on China’s political constitution (2014) China Review 14(2):183.
[20] Constitution of the Communist Party of China <> accessed 31 October 2021.
[21] Stanley Lubman, Bird in a Cage: Chinese Law Reform after Twenty Years, (2000) Northwestern Journal of International Law and Business 20: 383 (2000) p. 399. See also John Gardner, Chinese Politics and the Succession to Mao
(Palgrave 1982) (“But as good Leninists, China’s leaders intended that the Party should remain in full control, that the extension of freedoms should be gradual, and that there should be no decline into ‘anarchism.’ ” Ibid., 141).
[22] Charles Howard McIlwain, Constitutionalism Ancient and Modern (Cornell University Press 1947), p. 140. See also Larry Catá Backer, “Reifying Law--Government, Law and the Rule of Law in Governance Systems (2007) Penn State International Law Review 26:521.
[23] Cf., Jiang Shigong, “Chinese style constitutionalism: On Backer’s Chinese Party-State Constitutionalism” (2013) Modern China 40(2):133-167.
[24] Andrew Peng, “Sinicized Marxist Constitutionalism: Its Emergence, Contents, and Implications,” (2011) Global Discourse 2:83-107; see also Terrell Carver, “Varieties of Constitutionalism: A Response to ‘Sinicized Marxist Constitutionalism’ by Chengyi (Andrew) Peng (2011) Global Discourse 2(1):109-114.
[25] Xingzhong Yu, "Legal Pragmatism in the People's Republic of China" (1989) Journal of Chinese Law 3:29. Yu speaks of such cages of regulation in Peng Zhen’s explanation of the legitimacy of law as a function of shiji (actualities) as determined by the CPC Ibid., p. 42-43. The concept extend to the content of the state constitution--as a memorialization of the actualities of the current era of historical development of China under the guidance of the CPC and reflecting its line (ibid., pp. 44-45).
[26] See, Larry Catá Backer, “From Constitution to Constitutionalism,” supra (describing the essential characteristics of trans systemic constitutionalism as a system for the implementation of core political principle that avoids abuses of power.
[27]Discussion of the success or failures of the constitutional system to live up to its theory or to work toward its idealized form is beyond the scope of this contribution. Cf., Zheng Shiping, Party vs. State in Post 1949 China (New York: Cambridge University Press, 1997).
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