"Chinese Constitutionalism as Socialist Modernization" [中国宪政作为社会主义现代化] Remarks Prepared for the 10th Asian Constitutional Law Forum University of Hong Kong 10 December 2024

 

I was delighted to have been invited to participate in the  10th Asian Constitutional Law Forum University of Hong Kong 10 December 2024. My thanks to the Management Committee—Albert Chan, Cora Chan , and Stefano Osella, as well as to the University of Hong Kong Faculty of Law, its Centre for Comparative and Public Law, and  to the Association for Asian Constitutional Studies.

I was equally delighted with my task, to speak about Socialist constitutionalism in China.  To those ends I thought it might be useful to approach constitutionalism generally, and Chinese constitutionalism specifically, from outside of the confines to which jurisprudence may have inadvertently put it, if only because it fit nicely within its own self-conceptions and cognition rationalization systems.  That is, rather than focusing on constitutional issues starting from within the text of some document(s) labeled "constitution" within a document or otherwise discernible through whatever practice is used for that purpose, one might glean different and perhaps useful insights by considering constitutional cognition beyond or above whatever text is proffered as the signified object within which, and only within which the arts of constitutionalism might be practiced within the lifeworlds of jurisprudence. 

So rather than start from text, I started from the signification of text to work my way back to text, and thus to the sort f textual interpretation exercises that give jurisprudence comfort. To those ends I posited a framing signification from out of which it might be possible to understand the underlying principles within which Chinese (in this case) constitutions could be rationalized within its own normative constitutionalism. For that purpose I suggest that modernization--once imperial, then republican, eventually Socialist, and now Chinese style--might represent the apex rationalization, the foundation, of political authority grounded in a quite specific task toward the realization of which text, like other productive forces . were to be ordered and utilized.  And off I went.

 The remarks are quite short and the ideas still in a very preliminary state. But the idea of an inductive and iterative approach to constitutionalism, and thus to its expression and rationalization as constitutional text, may provide a rich source of insight into not just the meaning of text (the stuff from out of which the careers of lawyers, bureaucrats, judges and politicians are made) but also into generative normative spaces from out of which constitutional text is derived. In that respect these remarks build on a recently circulated earlier work on the way in which constitutions are meant to embed the performance of revolutionary impulses that gave rise to the constitutional order within its text and through its iterative mechanisms (both normative objectives and methodological systems).  For that see HERE (abstract, paper, remarks and PPT).

 I have uploaded both to my website (the remarks in both English and a crude Chinese translation) for those who might find accessing that way easier.

ACCESS REMARKS HERE: Remarks1.1_ACLF_Backer_12-2024; 

ACCESS PPT HERE Backer_Remarks_ConstitutionModernization-12-2024

Comments and engagement always welcome here or offline. 

庄 杰, 让基层干部轻装上阵 [Zhuang Jie, 'Let grassroots cadres go into battle lightly']; From Qiushi Journal 2024:23

 

Pix credit George Tooker (The Government Bureau, 1956)

 

Operational level governance has always been an issue.  It merely presents itself differently depending on the organization, its functional orientation, and the political-economic system from which operational level responsibility can be rationalized, and so rationalized, disciplined.  All of that is well and good--and indeed managers at higher levels have developed the skill of describing the challenge to an art form.  

 That art form itself is founded on and remains deeply attached to qualitative measures. Qualitative measures have the value of being tautologically self-referencing.  It transforms the noun form of governance (effectively the object or state to which action is directed) into a verb of itself (the action to be undertaken). That is, that governance, in its operational form, remains effectively stuck between an endless interplay between itself and the reflection of itself in action.  One undertakes the objective by effectively becoming the objective. The space between objective and becoming itself remains fundamentally undefined. 

This is not madness.  It is, in its own way, a sound modality of governance within multi-level objectives-based governance hierarchies. The reason is simple at its most general level of operational consciousness. Complex objectives-based systems are necessarily grounded in discretionary-based administration--rather than rules-based administration. In simple terms, these are systems in which administrators, up and down the hierarchy, are not tasked with meeting objectives but instead are expected to enforce rules (which may themselves be the embodiment of objective). That rules-enforcement-as-core-objective system is eventually a solid basis for governance  where the ultimate objective is the rule itself. Its danger is that it can becomes decrepit in the sense of reducing itself to dependence of rules application increasingly detached from the objects of rule application, ultimately transforming itself into  a mindless and eventually self-destructive approach where rules themselves are not capable of modification as iterative application suggests instability. That is the great challenge of rule of law based techno-bureaucratic liberal democratic systems--with the European states in the vanguard and the Americans not far behind.  

Instead, in systems like that of Chinese Marxist-Leninism, with strongly developed political-institutional hierarchies the legitimacy of which is dependent in large part on its ability to correctly articulate and fulfill progressive objectives along the socialist path, the opposite is true. In simple terms, these are systems in which administrators, up and down the hierarchy, are tasked with meeting objectives for which purpose rules and other instruments may provide instruction, guides or tools. Power is caged in regulation, but the reason for that is to manage discretion toward the fulfillment of objectives, which requires the overcoming of the contradictions that stand in the way of fulfillment. The construction, management, control, and alignment of discretionary authority, within cages of regulation, and undertaken primarily for the fulfillment of hierarchy-level appropriate objectives based tasks, remains the great challenge of Marxist-Leninist systems. It is one that the Soviet Union and its imperial dependencies failed in the 20th century; but one which is the underlying governance contradiction for vanguards of leading forces in the 21st century. 

As a result, the most logical approach to the measure of the work of operational level administrators and cadres must at least start with the identity of task and objective. In that construct, one measures the value of the work of administrators and cadres at the operational level as a function of result, and one develops disciplinary systems that reflect this self-referencing circularity. The result, often enough, then leaves operational level staff with little guidance about pathways toward objectives and little basis for determining even the way that objectives attainment will be measured--and their performance judged. As a consequence, there may be a tendency for operational level staff either to shift their focus to those tasks which can be easily measured (micro-objectives based work) or developing cultures of conservative approaches to decision making that effectively shuts down innovation (and thus reduces significantly the risk to operational level staff). Therein lies the great challenge for discretionary decision based objectives driven systems--that as constituted, it produces cultures of risk aversion that may stifle innovation because the risk of failure is too great. In extreme form one begins to approach the decrepitude of the Soviet Union, in milder forms, the paralysis of the Cuban Communist Party.

It might then follow that there my need to be a stronger focus not merely on the qualitative drivers in objectives-based discretionary decision making systems, but also to develop an aligned set of quantitative measures. Not just that, but also to develop qualitative analytics that may effectively tie upper level objectives and goal formation both to reality (that is the capacity of operational level cadres) and to effective planning for objectives formation an timelines. And, of course, those measures can be used to nudge innovation where innovation or new or high quality production (新质生产力), becomes a central objective itself. Interestingly enough, the principles apply as well to rules-enforcing systems as it does to objectives-meeting systems, both of which appear to be reluctant to develop robust quantitative measures in the service of either objectives.based or rule-enforcement-based systems. That, certainly has become a critical element of Chinese objectives with respect to the cultivation of productive forces, now well articulated since the 3rd Plenum of the 20th Party Congress in July 2024 (see, here and ere), and which are also well represented in the articles published in Qiushi 2024:23.

The problem is an old one, and the operational level objectives have been highlighted since the time of the leadership of Deng Xiaoping and well before that (eg here). That longevity of a challenge not yet overcome suggests both its complexity and its importance. A good example of the challenges, from the perspective of Marxist-Leninist operational level challenges within an objectives-based hierarchically arranged discretionary decision making systems, were nicely illustrated in a quite fascinating essay published in volume 2024:23 of Qiushi Journal. The article, in the form of a letter from Zhuang Jie [庄 杰] (General Office of the CPC Guizhou Provincial Committee), 让基层干部轻装上阵 ['Let grassroots cadres go into battle lightly'] highlight both the challenges of developing (or at least articulating qualitative measures) and perhaps as well, highlighting the spaces where quantitative measures might prove useful, at last at the operational level.Indeed, each of the three qualitative challenge points identified--(1) 强化源头治理 [strengthen governance at the source]; (2) 突出问题导向 [Focus on problem solving orientation]; and (3) 统筹好减负与赋能 [Coordinate burden reduction and empowerment]-- might all lend themselves to appropriate qualitative measures,  That, however, would require innovation, and new quality production of administration up from the grassroots.

The essay follows below in both the original Chinese and in a Crude English translation.