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VERSIÓN EN ESPAÑOL AQUÍ
I am pleased to announce that my article, A Democratic Consultative Constitutionalism for Marxist-Leninist (Socialist) Political Systems—The Theory and Structure of “Whole Process People’s Democracy” (全过程人民民主 全过程人民民主), has been published at the American University International Law Review Vol. 41(2): 371-438.
Here is the abstract:
Abstract: The Chinese Socialist (Marxist-Leninist) constitutional order has recently fully elaborated a theory and practice of democracy, one that has been offered as an alternative model to liberal democratic theory and practice. In contemporary China, this evolution has taken concrete form as the form of 全过程人民民 主 (Whole Process People’s Democracy (WPPD)). This essay examines this emerging theory of Chinese democracy both within the structure of Chinese constitutionalism and as an expression of its Marxist-Leninist foundations. The essence of the distinction of this form of democratic theory with classical liberal democracy is the centrality of consultation rather than elections in this system; if liberal democracy is an essentially exogenous practice (elections as the primary expression of democratic practice), then Chinese WPPD takes an essentially endogenous form (built around well-organized systems of formal consultation). The essay first examines the structural and normative basis for WPPD. It then explores the pivotal role of structured and multilayered consultation in the construction of democratic institutions in China. Lastly, it puts these two lines of examination together to consider the system’s rationale, one that is meant to overcome the contradictions between mass line democracy and the foundational constitutional principle of people’s democratic dictatorship, while coordinating the roles of collective organizations under the leadership of the vanguard party. The consequences of this endogenous approach to the orientation of democratic theory are explored with comparisons to Cuban Marxist-Leninist practices and those of liberal democracy.
The article may be accessed here:
ILR Website: https://auilr.org/volume-41-issue-2/
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The Introduction and Table of Contents follow below in ENGLISH. ESPAÑOL AQUÍ.
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A Democratic Consultative Constitutionalism for Marxist-Leninist (Socialist) Political Systems—The Theory and Structure of “Whole Process People’s Democracy” (全过程人民民主 全过程人民民主), American University International Law Review Vol. 41(2): 371-438.
Larry Catá Backer
I. INTRODUCTION ............................................................372
II. POLITICAL PARTIES IN AND AS SOCIALIST
DEMOCRACY..................................................................385
A. CHNA'S NEW POLITICAL PARTY SYSTEM .....................391
B. 中国的民主 (CHINA: DEMOCRACY THAT WORKS) .......405
III. EXPORTING MODELS OF COORDINATED MULTI-
PARTY WHOLE PROCESS PEOPLE’S DEMOCRACY
SYSTEMS .........................................................................417
A. THE CRTIQUE AND ITS CONTEXT .................................419
B. A NEW "CITY UPON A HILL;" A NEW "BEACON OF DEMOCRACY"
...............................................................428
IV. CONCLUSION: 民主应该什么样？[WHAT SHOULD
DEMOCRACY BE?] ........................................................434
Abstract: The Chinese Socialist (Marxist-Leninist) constitutional order has
recently fully elaborated a theory and practice of democracy, one that
has been offered as an alternative model to liberal democratic theory
and practice. In contemporary China, this evolution has taken
concrete form as the form of 全过程人民民 主 (Whole Process
People’s Democracy (WPPD)). This essay examines this emerging
theory of Chinese democracy both within the structure of Chinese
constitutionalism and as an expression of its Marxist-Leninist
foundations. The essence of the distinction of this form of democratic
theory with classical liberal democracy is the centrality of
consultation rather than elections in this system; if liberal democracy
is an essentially exogenous practice (elections as the primary
expression of democratic practice), then Chinese WPPD takes an
essentially endogenous form (built around well-organized systems of
formal consultation). The essay first examines the structural and
normative basis for WPPD. It then explores the pivotal role of
structured and multilayered consultation in the construction of
democratic institutions in China. Lastly, it puts these two lines of
examination together to consider the system’s rationale, one that is
meant to overcome the contradictions between mass line democracy
and the foundational constitutional principle of people’s democratic
dictatorship, while coordinating the roles of collective organizations
under the leadership of the vanguard party. The consequences of this
endogenous approach to the orientation of democratic theory are
explored with comparisons to Cuban Marxist-Leninist practices and
those of liberal democracy.
A person who aims to enhance his power and capacity reaches afar to draw
talents close to him . . . As for those who cannot be captivated with
words . . . , invite them and encumber them with responsibilities. Or
encumber them with responsibilities first and then reveal their weaknesses;
or reveal their weaknesses first and then encumber them with
responsibilities.1
I. INTRODUCTION
Many scholars of constitutionalism, on one hand, appear to take for
granted an unbreakable connection between core principles of liberal
democracy, normative and process constitutionalism, and systemic
legitimacy.2 In liberal democratic states, this democratic turn is
essentially exogenous, in the sense that democratic elections are
detached from the business of democratic governance. The rituals of
elections significantly confine and embed the practice of democracy.
Applying this lens, the constitutional order is manifested, legitimated,
and reaffirmed with each election—effectively each is an act of
applied constitutionalism. This sort of exogenous democracy has a
deep constitutional connection. The centrality of elections is usually
built into constitutional text,3 supplemented by statutes, regulations,4
and an extensive jurisprudence.5 Within this system, courts serve a
policing role, offering both a remedy and an equity power to manage
abuses.6 Participation in government after elections is, like the market
in the private sector, subject to ordering rules,7 but otherwise is a
function of interest, influence, and positioning among private
individuals and organizations with the interest and capacity to
participate formally and informally in the actions and deliberations of
officials elected or appointed to exercise political authority. It is then
elaborated and debated within a lively jurisprudence advanced by
academic and political elites, which has generated a rich literature, that
sometimes bleeds into significant political controversy centering on
the validity of election results8 or the right of certain groups to
participate in elections.
On the other hand, every deviation from this model falls outside of
any possibility of democratic characterization. Academics like to label
these variations illiberal, authoritarian, and often, an illegitimate and
anti-democratic inversion of the liberal democratic constitutional
ideal.9 It is meant both as a judgment (this form of organization is
“bad”) and as a marker against which the authenticity and legitimate
practices of “good” democracy may be measured. Within liberal
democratic orders, the illiberal “turn” is depicted as feral, populist, in
error, and threatening to the liberal order.10 Certainly, one would be
hard-pressed to argue that non-democratic systems are, or ought to be,
valued in the face of a global consensus that presumes the political
legitimacy only of democratic systems. The issue arises where there
emerges a deviation in the characteristics of democracy that are
necessary to support claims to democratic legitimacy. The issue
becomes more complex still where there emerges an orthodox view
that posits a specific and inflexible set of core democratic
characteristics and practices its most triumphalist (and now perhaps
clichéd) expression of which emerged at the time of the collapse of the
Soviet Union.11 A system is democratic and constitutionalist if it
adheres to a specific set of first principles understood in a specific
way,12 otherwise it is anti- or un-democratic, or as it is labelled in
polite academic society—authoritarian.13
Nonetheless, it is worth considering whether this binary
classification and its judgments apply to efforts to develop democratic
practice that rejects the fundamental premises of liberal representative
democracy.14 That is, must a political system be liberal to be
democratic? To approach this question requires thinking beyond a
presupposition that beyond liberal democracy there is only
dictatorship, however prettily clothed;15 and beyond the touchstone of
liberal democracy as the sole measure of the democratic sentiment.16
The issue becomes more interesting considering the political
organization of post-Soviet Marxist-Leninist (Socialist) states. The
differences are not skin deep. They reflect fundamentally different
notions about the purpose of the State, the role of vanguard elements,
and the development of operating principles around which socialist
systems and their relation to the people have evolved, especially in the
21st century.17 Those distinctions tend to obscure the question of
combative discussion, in the sense that a political system’s
classification as “illiberal” tends to bring with it the conclusion that it
must be authoritarian, and on that basis cannot be understood to
produce practices that align with premises of a proper democratic
ordering18—constitutions without either constitutionalism or
democracy.19
The question becomes still more pointed where the essence of
democratic practice in those states tends toward endogenous
mechanics grounded in popular consultation, rather than on the
exogenous mechanics of full, free, and unconstrained elections of
power holders in a state apparatus. One can argue that some Marxist-
Leninist States have adopted forms of democratic consultation, but
that the mechanisms may themselves be inadequate even under
theories of endogenous democratic practice.20 But the possibility of
developing democratic theory—and the practices that manifest theory
in the life of the state—remains one worth considering. That, then, is
the primary focus of this article.
This essay then examines the theoretical and practical possibilities
of a Marxist-Leninist (Socialist) democratic consultative
constitutional order built on principles of consultation rather than
elections. For that purpose, China provides a quite useful starting
point. Only recently has China entered these debates.21 Internally, the
debates reflected the great conceptual battles between traditional
liberal democratic imaginaries and those of Chinese Marxist-Leninism
emerging after the start of the era of Reform and Opening Up.22 That
debate internalized the larger discussions about political organizations
within national systems—including the role of the Communist Party
as it transitioned from revolutionary vanguard to the party in power.23
At the same time, it sought to naturalize that larger global discussion
within the Chinese political-economic model—that is, to give the
discussion authentic Chinese characteristics.24 By the end of the era of
Reform and Opening Up around 2015, that undertaking had produced
a very large scope of theory within Chinese Leninism,25 much of
which has been written on. The theory of political parties, then, is
bound up intimately with the development of theories of Socialist
Democracy in China. Both are bound up, in turn, with the theorization
of legitimacy enhancing26 collective consultation through
representative mass organizations structured institutionally in
consultative organs under the leadership of the apex Communist Party
of China (CPC). These efforts to develop a theory of political parties
within a representative consultation-based theory of Socialist
Democracy vary substantially from other Marxist-Leninist
approaches.27
The goal of this article is to take a deep dive into the current
elaboration of the political theory of Chinese socialist constitutional
democracy, the role of political parties within it, and the connection
between both of those and the people. Certainly since the start of the
leadership of Xi Jinping, and accelerating after the commencement of
the Chinese Leninist New Era of historical development, the Chinese
vanguard party’s core leadership has sought to engage with and
elaborate a comprehensive and self-reflexive theory of endogenous
constitutional democracy with the vanguard party at its core and
political mass organizations playing a key role, rationalizing what is
now known as ‘whole process democracy’.28 At the core of these
efforts is the attempt to rationalize, within the framework of
democratic action through political parties, the direct link between the
people and state organs. More decisively, the elaboration seeks to
transform Maoist-Leninism from the revolutionary period and the
insights of the principles of the Reform and Opening Up period, and
refashion them in the language of democracy, popular participation,
and political parties as mediating-leadership organs as 全过程民主
(Whole Process People’s Democracy).
To those ends, the essay focuses on three key documents distributed
by the Chinese State Council at the end of 2021. Each contributes to
what is meant to be a coherent and comprehensive theory of Socialist
democracy particularly embedded within Chinese Marxist-Leninist
principles. Each provides a window into official thinking about the
nature of democracy and its connection to the organization of the
constitutional ordering of the State, as well as the connection between
the administrative apparatus of the State and the overarching political
apparatus of the CPC in a system grounded on the fundamental notion
that the “people are the masters of the country.”29 One, 《中国新型政
党制度》 (China’s New Political Party System),30 sketched out the
current structures of the Chinese system of multi-party cooperation
and political consultation under the leadership of the apex vanguard
(Communist) party. Another, 《中国的民主》(China: Democracy
That Works)31 elaborates a theory and discourse of “whole process
people’s democracy” [全过程人民民主]. The last, 美国民主情况
[The State of Democracy in the United States],32 “aims to expose the
deficiencies and abuse of democracy in the US as well as the harm of
its exporting such democracy.”33 Taken together, the three State
Council White Papers provide a comprehensive view of the emerging
theory of Socialist Democracy built around the core premises of
Chinese Marxist-Leninism in the New (post Reform and Opening Up)
Era. The first defines and situates notions of political parties within
contemporary Chinese Leninism; the second embeds these networked
and coordinated political collectives (under the leadership of the
vanguard) within a now more deeply theorized concept of Leninist
participatory democracy; the last then holds up the model of “whole
process people’s democracy” against the principles of (US) liberal
democracy and offers the system of Leninist (Socialist) democratic
organization as a better model for developing states.
Together they provide an elaboration of the generative ideological
core of democratic theory in Chinese Leninism, the essence of which
Xi Jinping succinctly captured in his remarks at the First Session of
the 14th National People’s Congress:
We must remain committed to putting the people first. The people are the
decisive force for building China into a great modern socialist country in
all respects. We must proactively develop whole-process people’s
democracy, uphold the unity between the Party leadership, the running of
the country by the people and law-based governance, improve the system
of institutions through which the people run the country, fulfill the people’s
will, protect their rights and interests and fully inspire their enthusiasm,
initiative and creativity.34
In his remarks, he identifies virtually all elements of Socialist
democracy elaborated within the concept of Whole Process People’s
Democracy. The foundation is a Leninist notion of popular
sovereignty, the deep relationship between development
(modernization) and the democratic project, the interlinkages between
the Communist Party (CPC) as the leading force, and the dialectics
between the people, the institutional rule structures of collective
activity, and the guiding role of the CPC. These dialectics represent
both an application and an elaboration of the Chinese “Mass Line.”35
As a critique, the connection between mass participation and
governance under the leadership of the CPC may produce
involvement, and management, but not democratic action in the liberal
democratic sense.36
The three White Papers also reflect an elaborate discourse widely
circulated under the authorship of Xi Jinping. Indeed, a recurring
theme in 2021 speeches of Xi Jinping was centered on approaching
answers to the question, “What should democracy be?”37 [ 民主应该
什么样？]. Xi criticized liberal democracy as formalistic and
episodic, suggesting alternatives better suited to developing and
socialist states are available, and urged that the theories of democratic
transformation as necessary or inevitable must be resisted.38 The
object was not merely to rationalize the political party system in
China, but also within an evolving framework of Chinese Marxist-
Leninist principles, and through them in the construction of a Socialist
democracy that might be offered as a contextually relevant alternative
political model to the world, principally through its Belt & Road
Initiative partners in developing states. The development of a theory
of political parties in China, then, suggests both internal and external
objectives. Internally, they provide the expression of democracy with
national characteristics; externally, they serve as a model for the
proper application of the principles of democratic organization (“8个
能否” [the eight cans]).39
Read through the lens of Xi’s now widely circulated speeches, the
State Council 2021 White Papers on democracy carefully intertwine
the three key themes—the nature of socialist constitutional
democracy, the linkage of democratic institutions to popular
participation, and the role of Leninist parties in ensuring that linkage
through systems of consultation, which ultimately connects the masses
with core leadership in Beijing.40 The study considers the hypothesis:
‘the emerging theory of Leninist political parties contributes to the
development of a coherent theory of endogenous socialist
constitutional democracy.’ Its subsidiary hypothesis is that, at least
conceptually, the transformation of the ‘mass line’ principle into
‘whole process democracy’ provides a basis within Leninist political
theory to link the people to their state institutions through the
structuring of a system of well-managed mass political organizations
under the leadership of the vanguard party. The object of this system
is to enhance consultation under a system in which the vanguard drives
the policy discussion, frames the implementation agenda, and controls
the development of the guiding ideology. That rationalized system of
全过程民主 (Whole Process People’s Democracy) can then be
stripped of liberal democratic values and practices to better align with
the principles of Chinese Marxist-Leninism in the New Era of
Marxist-Leninist theoretical development.41
The Part that follows considers the White Papers on political parties
and comprehensive people’s democracy in more detail for the way
each contributes a layer in the elaboration of this theory of political
parties within the larger framework of the development of Marxist-
Leninist principles and structures of Socialist Democracy, and
Socialist Democracy as Whole Process People’s Democracy. That
analysis is undertaken as a function of seven fundamental questions:
(1) What are the differences between exogenous and endogenous
democratic constitutional orders?; (2) What are the theoretical roles of
parties within each linking people to governing institutions?; (3) How
does a Leninist conception of party fit into this framework? What are
the differences and relations between a vanguard party and other
political mass organizations?; (4) How does a Leninist party system
fit within the conception of consultative democracy?; (5) The role of
elections in endogenous democratic systems and the utility of the
‘mass line’ principle in connecting people to political organs; (6)
Potential challenges for Leninist party frameworks and constitutional
consultative democracy frameworks in the operation of endogenous
democratic systems; and (7) Implications and value for other (Asian)
political systems, especially in developing states. These questions
serve roughly as the structure of the study. Part III then adds the
comparative layering, using the White Paper on US Democracy as the
focus of a brief consideration of the way that these fundamental
questions of conceiving, structuring, and operationalizing notions of
parties in politics may be relevant to the development of (especially
Asian) models of party democracy that might be neither wholly
socialist nor liberal democratic.
NOTES:
1. HUI WU, GUIGUZI, CHINA’S FIRST TREATISE ON RHETORIC: A CRITICAL
TRANSLATION AND COMMENTARY 56–58 (Hui Wu & C. Jan Swearingen eds., 2016,
300s B.C.).
2. See Aziz Huq & Tom Ginsburg, How to Lose a Constitutional Democracy,
65 UCLA L. REV. 78, 80–84 (2018) (asserting democracy loses legitimacy when its
institutional predicates, “competitive elections,” “rights of political speech and
association,” and the “administrative and adjudicative rule of law,” cease occurring
simultaneously); Simone Chambers, Democracy and Constitutional Reform:
Deliberative Versus Populist Constitutionalism, 45 PHIL. & SOC. CRITICISM 1116,
1123–24 (2019) (stating that erosion of democracy’s institutional predicates are
conjoined with populism’s restriction of participatory and deliberative constitutional
processes). But see Eoin Daly, Rousseau’s Illiberal Constitutionalism: Austerity,
Domination, and the Circumstances of Politics, 20 INT’L J. CONST. L. 563, 573–75
(2022) (arguing liberal constitutionalism fails to address deeper forms of social and
economic domination that undermines democratic legitimacy from within).
3. See, e.g., WALTER F. MURPHY, CONSTITUTIONAL DEMOCRACY: CREATING
AND MAINTAINING A JUST CONSTITUTIONAL ORDERN 185 (2007) (identifying
electoral processes incorporated in constitutional texts); Stephen Breyer, James
Madison Lecture, Our Democratic Constitution, 77 N.Y.U. L. REV. 245, 247–48,
265–66 (2002) (expanding on electoral provisions present within the United States
Constitution); Louis Henkin, Constitutionalism, Democracy and Foreign Affairs, 67
IND. L.J. 879, 884, 886 (1992) [hereinafter Henkin, Constitution & Foreign Affairs]
(showing the centrality of constitutionalism and democracy in the United States
Constitution even when the text is silent on a certain topic); see also Louis Henkin,
Constitutional Rights and Human Rights, 13 HARV. C.R.-C.L. L. REV. 593, 610
(1978) (comparing constitutionalism within the United States Constitution and other
international documents).
4. See, e.g., DAVID SCHULTZ, ELECTION LAW AND DEMOCRATIC THEORY 17
(2014) (arguing that election law, i.e., statutes, is the “writing that gives life or
meaning to a political system, such as a democracy,” and in America, “election law
is the law of democracy—it is the set of laws that make our political system actually
operate.”).
5. See, e.g., Larry Catá Backer, Using Law Against Itself: Bush v. Gore Applied
in the Courts, 55 RUTGERS L. REV. 1109, 1171 (2003) [hereinafter Backer, Using
Law Against Itself] (analyzing over 100 judicial opinions post-Bush v. Gore to
illustrate that it “now appears unremarkable” for courts to rival legislative bodies in
deciding fundamental political issues); cf. Richard L. Hasen & Matthew Queen,
What Judges Should Know About Election Law, 108 JUDICATURE 35, 36–38 (2024)
(urging judges to develop and apply clear rules before elections and focus on the
application of those rules, rather than acting as an outcome-determinative entity for
elections).
6. See Hasen & Queen, supra note 5, at 37 (discussing the need for courts to
work hand-in-hand with administrators and focus on small remedial adjustments that
enhance election fairness and administrability).
7. In this light, see, for example, the central role Administrative Procedure Act,
5 U.S.C. §§ 551–59, plays in governing the process by which administrative
agencies legislate (in the form of rulemaking authorized by the elective branches,
the legitimacy of which is then consigned to the courts).
8. See, e.g., Victor A. Hernández-Huerta, Disputed Elections in Presidential
Democracies: Contexts of Electoral “Blackmail”, 82 J. POL. 89, 90–91 (2020)
(noting that the two broad strands of comparative scholarship discussing election
disputes both fail to account for the short-term goals of party elites).
9. See, e.g., Gábor Halmai, Populism, Authoritarianism and Constitutionalism,
20 GERMAN L.J. 296, 302, 311 (2019) (arguing that where there are illiberal policies
or authoritarian populism, there cannot be liberal, democratic constitutionalism);
Mark Tushnet, Editorial, Varieties of Constitutionalism, 14 INT’L J. CONST. L. 1, 1,
3–4 (2016) (mapping the widely held scholarly view that “[L]iberal
constitutionalism simply is constitutionalism, and that all other varieties are
defective.”).
10. See, e.g., Tímea Drinóczi & Agnieszka Bień-Kacała, Illiberal
Constitutionalism: The Case of Hungary and Poland, 20 GERMAN L.J. 1140, 1140,
1150 (2019) (arguing Hungary and Poland’s turn to illiberalism is a “democratic
degermation of the system,” though it has not devolved as badly as Russia or
Turkey); Hugo Canihac, Is Constitutional Pluralism (Il)liberal? On the Political
Theory of European Legal Integration in Times of Crisis, 22 GERMAN L.J. 491, 495–
98 (2021) (discussing the widespread liberal critique of constitutional pluralism, in
the EU, including the claim that, as an inherently illiberal theory, it “fundamentally
endangers the very idea of the rule of law”); Paul Blokker, Populist Counter-
Constitutionalism, Conservatism, and Legal Fundamentalism, 15 EUR. CONST. L.
REV. 519, 520–23 (2019) (asserting the new populist constitutionalism in Hungary
and Poland is a destructive autocratic political design).
11. See FRANCIS FUKUYAMA, THE END OF HISTORY AND THE LAST MAN xi–xiv
(1992) (stating liberal democracy, as understood globally following World War II,
remains “the only coherent political aspiration”).
12. See ANDRÁS SAJÓ, CONSTITUTIONAL SENTIMENTS 5 (2011)
(“Constitutionalism and the administration of justice are often presented as
institutions that improve efficiency in human affairs by promising the eradication of
emotion from the constitutional public sphere.”); see also Henkin, Constitution &
Foreign Affairs, supra note 3, at 884–86 (framing constitutional democratic order as
a specific constellation of principles, namely limited power, democratic
participation, protection of individual rights, and judicial enforcement).
13. See, for example, Mark Tushnet, Authoritarian Constitutionalism, 100
CORNELL L. REV. 391, 421–22 (2015), for a discussion on authoritarian
constitutionalism and how academic literature in the West is littered with the
elaboration of this binary. See also Tom Ginsburg & Alberto Simpser, Introduction:
Constitutions in Authoritarian Regimes, in CONSTITUTIONS IN AUTHORITARIAN
REGIMES 1, 8–9 (Tom Ginsburg & Alberto Simpser eds., 2014) (describing
authoritarian regimes’ use of democratic practices as “window dressing”). Please
note the criticism here isn’t directed to the elaboration of constitutionalist theories
of liberal democracy—those efforts ought to be celebrated—it is directed toward the
premise that outside of these elaborated theories of liberal democratic
constitutionalism, democratic constitutionalism is theoretically impossible.
14. This is a question that has been raised, from time to time, within the
discussion about reform and development of liberal democracy by reference to the
gap between a democratic ideal and practice. For a broad discussion of democratic
pluralism and the role of independent organizations, see ROBERT A. DAHL,
DILEMMAS OF PLURALIST DEMOCRACY: AUTONOMY VS. CONTROL (1982).
15. See STEVEN LEVITSKY & LUCAN A. WAY, COMPETITIVE
AUTHORITARIANISM: HYBRID REGIMES AFTER THE COLD WAR 5–7 (2010) (arguing
for a definition of democracy that is “procedural but demanding,” and continually
examines whether a “reasonably level playing field between incumbents and
opposition” exists).
16. See, e.g., Andreas Schedler, The Logic of Electoral Authoritarianism, in
ELECTORAL AUTHORITARIANISM: THE DYNAMIC OF UNFREE COMPETITION 1, 4–5,
15–16 (Andreas Schedler ed., 2006) (characterizing electoral authoritarian regimes
as “creative institutions” with three traditional classes of actors, citizens, opposition,
and ruling parties, but that may facilitate gradual democratization).
17. See Larry Catá Backer, “The Flower of Democracy Blooms Brilliantly in
China [
国的民主之花绚丽绽放]”: The Chinese Communist Party and the Chinese
Constitutional Order, in ROUTLEDGE HANDBOOK OF CONSTITUTIONAL LAW IN
GREATER CHINA 67, 74 (Ngoc Son Bui, Stuart Hargreaves & Ryan Mitchell eds.,
2022) [hereinafter Backer, The Flower of Democracy] (“[I]t is . . . the expression
of the fundamental constitutional ordering in which law itself is meant to express
and rationalize the socialist system operating under the constraints of its principles
and guided by its vanguard.”).
18. See Kim Lane Scheppele, Commentary, The Rule of Law and the
Frankenstate: Why Governance Checklists Do Not Work, 26 GOVERNANCE 559, 562
(2013) (arguing that “what if?” questions would be rule-of-law indicators for the
ultimate analysis on how constitutional order works in practice, rather than a set
checklist); David Landau, Abusive Constitutionalism, 47 U.C. DAVIS L. REV. 189,
195–96, 235 (2013) (conceptualizing democracy on a spectrum with various kinds
of authoritarian regimes); see also Drinóczi & Bień-Kacała, supra note 10, at 1140–
41, 1141 n.3 (referencing Scheppele and Landau’s theories as applied to the EU,
specifically Poland and Hungary).
19. See, e.g., H. W. O. Okoth-Okendo, Constitutions Without Constitutionalism:
An African Political Paradox, in CONSTITUTIONALISM AND DEMOCRACY:
TRANSITIONS IN THE CONTEMPORARY WORLD 65, 66–79 (Douglas Greenberg et al.
eds., 1993) (analyzing African States’ constitutions that do not conform to traditional
constitutionalism theory and instead are used to demonstrate a state’s sovereignty
and “[entail] no element of sanctity”). But see Larry Catá Backer, From Constitution
to Constitutionalism: A Global Framework for Legitimate Public Power Systems,
113 DICK. L. REV. 671, 676 (2009) (arguing for an understanding of
constitutionalism as a systematization of thinking grounded in development of
supernational normative systems which legitimize constitutions).
20. See Larry Catá Backer & Flora Sapio, Popular Consultation and Referendum
in the Making of Contemporary Cuban Socialist Democracy Practice and
Constitutional Theory, 27 U. MIA. INT’L & COMP. L. REV. 37, 129 (2019) (“This
expression of the democratic turn is managed endogenously, through a mechanics
of managed consultation. It is also expressed exogenously, though a system of
carefully controlled referendums.”).
21. See id. at 43, 117–18 (noting that Leninist theory toward popular
participation in China has involved a development of core-collective binary,
mediated through the political theory of the “mass line,” meaning “from people to
people”).
22. See id. at 40–41 (highlighting the development of radical collectivity under
Mao Zedong, which lead to “technocratization and institutionalization of
consultation” and the development of China’s approach since the Reform and
Opening Up era of Deng Xiaoping).
23. See Victor C. Funnell, The Metamorphosis of the Chinese Communist Party,
4 STUD. COMP. COMMUNISM 3, 13–14 (1971) (stating that the balance between
“centralization of authority and local initiative” is the critical challenge for
Communist regimes that establish themselves the arbiter of policy and, as a result,
dominate all internal government administration).
24. See generally
中国新型政党制度 [China’s Political Party System:
Cooperation and Consultation], 中华人民共和国国务院新闻办公室 [THE STATE
COUNCIL INFO. OFF. OF CHINA] (June 25, 2021) [hereinafter SC–China Political
Party System],
http://www.scio.gov.cn/zfbps/ndhf/2021n_2242/202207/t20220704_130685.html
(on file with American University International Law Review) (emphasizing policy
reform’s role in “[pioneering] socialism with Chinese characteristics,” allowing the
nation to become stronger, gain status internationally, and for people to enjoy a
better life).
25. See Backer & Sapio, supra note 20, at 40–44 (discussing the development of
a transformed theory of the “collective” and the “core” as one of the most
remarkable changes in Marxist-Leninist theory).
26. On its history in that respect, see, for example, Henrike Rudolph, The
Preparations for the First Chinese People’s Political Consultative Conference and
the Quest for Legitimacy, in PLANTING PARLIAMENTS IN EURASIA, 1850–1950:
CONCEPTS, PRACTICES, AND MYTHOLOGIES 282, 283–87 (Ivan Sablin & Egas Moniz
Bandeira eds., 2021), which discusses changes in Chinese perception of the
relationship between the individual, the collective, and the state, eventually leading
to deviation from previous attempts to use consultative bodies to the expansion of
regime legitimacy.
27. In Cuba, for example, mass political organizations are not embedded into the
system and popular consultation is done directly through the vanguard party and its
associated mass organizations, with conformation of major policy legitimated
through popular referendums. See Larry Catá Backer, Flora Sapio & James Korman,
Popular Participation in the Constitution of the Illiberal State: An Empirical Study
of Popular Engagement and Constitutional Reform in Cuba and the Contours of
Cuban Socialist Democracy 2.0, 34 EMORY INT’L L. REV. 183, 194 (2019).
28. See 杨峻岭 [Yang Junling] & 杨东丽 [Yang Dongli],
论中国共产党坚持
人民当家作主的历史发展 [On the Historical Development of the Communist Party
of China’s Ensuring of the People’s Position as Masters of the Country], 58 教学与
研究 [TEACHING & RSCH.] 82, 89 (2024) (noting the Whole-Process People’s
Democracy as the result of both the CPC’s deepened understanding of laws
governing the democracy and the clarity gained in the practical experience of
promoting socialist democratic theory).
29. See id. at 89 (highlighting the century–long journey of the CPC’s building of
socialist democracy, which maintained “the people are the masters of the country”
as an advanced, genuine, and lofty pursuit of democratic value).
30. See SC–China Political Party System, supra note 24 (“In China, the CPC
and eight other political parties were founded for national salvation. Their shared
goals were the realization of national independence, the people’s liberation and
wellbeing, and the prosperity of the country.”).
31. See generally
中国的民主 [China: Democracy That Works], 中华人民共和
国国务院新闻办公室 [THE STATE COUNCIL INFO. OFF. OF CHINA] (Dec. 4, 2021)
[hereinafter SC–Democracy That Works],
http://www.scio.gov.cn/zfbps/ndhf/2021n_2242/202207/t20220704_130715.html
(on file with American University International Law Review) (describing the Whole
Process People’s Democracy as the people’s will and strenuous efforts, under the
CPC’s leadership, to obtain common prosperity, ensure the Chinese people’s active
and effective engagement, and improve China as a socialist democracy rooted in
Chinese history, culture, and traditions).
32. See generally Ministry of Foreign Aff. of China,
美国民主情况 [The State
of Democracy in the United States], 外交部 [MINISTRY OF FOREIGN AFF.] (Dec. 5,
2021, at 10:00 EST) [hereinafter MFA–State of U.S. Democracy],
https://www.mfa.gov.cn/web/ziliao_674904/zt_674979/ywzt_675099/2020/kjgzbd
fyyq_699171/202112/t20211205_10462534.shtml (on file with American
University International Law Review) (describing American-style democracy as a
dysfunctional, undemocratic system focused on “money politics” and political
polarization that “plunges” other countries into conflict and chaos).
33. Id.
34. Xi Jinping, Gen. Sec’y, China, Speech at the First Session of the 14th
National People’s Congress (Mar. 13, 2023),
http://english.scio.gov.cn/m/topnews/2023-03/15/content_85168965.htm (on file
with American University International Law Review).
35. See Jiayue Quan & Liqiong An, The Mass Line Is the Core Ideas and Values
of the Communist Party, 11 J. POL. & L. 37, 38–39 (2018) (describing the inevitable
requirements of the Chinese “mass line” as unity of truth and value theories, a high
degree of unity consciousness, and a firm hold to productivity standard and people’s
interest standards). For the historical foundations of the mass line, see Graham
Young, Comment, On the Mass Line, 6 MOD. CHINA 225, 226–27 (1980).
36. See, e.g., Samantha Hoffman, Grasping Power with Both Hands: Social
Credit, the Mass Line, and Party Control, JAMESTOWN (Oct. 10, 2018),
https://jamestown.org/grasping-power-with-both-hands-social-credit-the-mass-
line-and-party-control (on file with American University International Law Review)
(“Although the term ‘public participation’ might carry democratic connotations for
western ears, the process is not remotely democratic. ‘Public participation’ as the
Party understands it today is, by and large, an updated version of the Maoist
organizational concept of the ‘Mass Line.’”).
37. See 学而时习 [Continuous Learning],
民主应该什么样？习近平这样说
[What should Democracy Be? Here’s what Xi Jinping Says], 求是网 [QUISHI WEB]
(Oct. 13, 2021, at 08:09 EST) (China), https://www.qstheory.cn/zhuanqu/2021-
10/13/c_1127950586.htm (on file with American University Washington College of
Law) (providing a compilation of Xi Jinping’s speeches on what democracy should
be.)
38. See id. (“人民只有在投票时被唤醒、投票后就进入休眠期，这样的民
主是形式主义的。” [“The people are only awakened when they vote, and then go
into a dormant period after voting. Such democracy is formalistic.”]).
39. Id. (“评价一个国家政治制度是不是民主的、有效的，主要看国家领导
层能否依法有序更替，全体人民能否依法管理国家事务和社会事务、管理经
济和文化事业，人民群众能否畅通表达利益要求，社会各方面能否有效参与
国家政治生活，国家决策能否实现科学化、民主化，各方面人才能否通过公
平竞争进入国家领导和管理体系，执政党能否依照宪法法律规定实现对国家
事务的领导，权力运用能否得到有效制约和监督。” [“In evaluating whether a
country’s political institution is democratic and effective, we primarily looks to
whether the leadership of the country can transition in accordance to law, the people
as a whole can manage state and social affair in accordance of law, as well as
economic and social affairs, whether the public can freely express demands in their
interests, whether every aspects of society can effectively participate in state politics,
whether state decision-making can be scientific and democratic, whether talents
from all walks of life can enter state leading and managing system through fair
competition, whether the leading party can effectuate its leadership over state affairs
by their constitutions, and whether the use of power can be effectively
counterbalanced and monitored.”]; see also崔清新 [Cui Qingxi] & 陈非 [Chen Fei],
习近平用”8个能否” 评价制度是否民主有效 [Xi Jinping Uses “Eight Cans” to
Evaluate Whether an Institution is Democratic and Effective],” 人民网 [PEOPLE.CN]
(Sept. 9, 2014, at 8:06 EST), http://politics.people.com.cn/n/2014/0909/c1001-
25622836.html (on file with American University Washington College of Law)
(categorizing Xi’s remark as “eight cans”).
40. See SC–China Political Party System, supra note 24 (describing socialist
constitutional democracy as unique political structure born of China’s unique
foundations, other political parties’ as having wide scope to engage in state
governance, and CPC’s efforts to further institutionalize and standardize multiparty
cooperation); SC–Democracy That Works, supra note 31 (encouraging non-CPC
parties to engage in democratic oversight by criticizing and advising in political
consultation and overseeing the implementation of major policies which increases
solidarity between the CPPCC and the CPC).
41. See 习近平[Xi Jinping], Gen. Sec’y, China, 高举中国特色社会主义伟大
旗帜 为全面建设社会主义现代化国家而团结奋斗 ——在中国共产党第二十次
全国代表大会上的报告 [Hold High the Great Banner of Socialism with Chinese
Characteristics and Strive in Unity to Build a Modern Socialist Country in All
Respects: Report to the 20th National Congress of the Communist Party of China]
(Oct. 16, 2022) [hereinafter Xi, Report to the 20th CPC Congress] (China),
https://www.gov.cn/xinwen/2022-10/25/content_5721685.htm (on file with
American University International Law Review) (emphasizing the major theoretical
innovations Chinese Communists must continue to adopt, summarized in the
Thought on Socialism with Chinese Characteristics for a New Era, as putting people
first, maintaining self-confidence, upholding fundamentals while breaking new
ground, adopting problem oriented approaches, applying systems thinking, and
maintaining global vision); see also MICHAEL A. PETERS, THE CHINESE DREAM:
EDUCATING THE FUTURE ch. 3 (2019) (acknowledging inclusion of Xi Jinping’s
Thought on Socialism with Chinese Characteristics for a New Era in CPC’s
constitution, implications it has for China moving forward, and discussions
surrounding the ideology).
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