Sinicized Marxist Constitutionalism by Chengyi Peng with Reply by Terrell Carver

Sinicized Marxist Constitutionalism: Its Emergence, Contents, and Implications

By Andrew Peng

Abstract

After three decades of economic reform and opening up to the outside world, China’s ideological realm has been significantly transformed and complicated. This is well manifested in the constitutional discourses concerning the future of China. One notable example is the wide acceptance of the liberal constitutional paradigm among Chinese intellectuals. This liberal perspective historically viewed the constitution of a Marxist-Leninist state as a ‘sham,’ or a ‘useless’ document to rein in the government. Consequently scholars influenced by this paradigm look contemptuously at the current Chinese constitution, which for them needs to be abolished, significantly revised, or judicialized. However, in recent years, in light of the significant progress of the constitutional framework of China, including its values and practices regarding the rule of law and human rights, this dominant liberal perspective has been challenged. For example, Stephanie Balme and Michael Dowdle’s (2009) edited book Building Constitutionalism in China is devoted to exploring the empirical impacts of the emerging constitutionalism on many aspects of Chinese society. Several other scholars, such as Larry C. Backer, Jiang Shigong, Chu Jianguo, and Randall Peerenboom, etc, have also sought to establish a party-state model to grant legitimacy to China’s current constitutional development in the international community. In light of these developments, we can see that a new paradigm of Sinicized Marxist Constitutionalism (SMC) is emerging. Why is the SMC emerging? What are its contents and implications? These are the questions this paper seeks to explore. As we will see, the emergence of the SMC has deep historical roots; the paradigm is quite rich in content and carries some profound implications.

Introduction

After three decades of economic reform and opening up to the outside world, China’s ideological realm has been significantly transformed and complicated. To borrow Clifford Geertz’s (1977) words, ‘Things do not merely seem jumbled – they are jumbled, and it will take more than theory to unjumble them’ (p. 228). This is well manifested in the constitutional discourses concerning the future of China. One notable example is the wide acceptance of the liberal constitutional paradigm among Chinese intellectuals, as shown in the issuing and impacts of the Charter 08 two years ago by some liberal dissidents, such as Liu Xiaobo (刘晓波) who was sentenced to eleven years’ prison by the Chinese government but just awarded the Nobel Peace Prize of 2010 for largely the same activities. This perspective historically viewed the constitution of a Marxist-Leninist state as a ‘sham’ that serves as ‘an artifice of propaganda designed to impress and mislead foreigners’ (Cohen, as cited in Wong, 2006, p. 1), or a ‘useless’ document to rein in the government (Possony, as cited in Wong, 2006, p. 1). Consequently scholars influenced by this paradigm look contemptuously at the current Chinese constitution, which for them needs to be abolished, significantly revised, or judicialized (Jiang, 2009, p. 12). However, in recent years, in light of the significant progress of the constitutional framework of China, including its values and practices regarding the rule of law, this dominant liberal perspective has been challenged. Stephanie Balme and Michael Dowdle (2009), for example, have devoted their latest book Building Constitutionalism in China to exploring the empirical impacts of the emerging constitutionalism on many aspects of Chinese society, including its juridical, political, and social realms. A U.S. constitutional scholar, Larry C. Backer, has also sought to establish a party-state model to grant legitimacy to China’s current constitutional development in the international community. This effort has been echoed by the separate articulations of Jiang Shigong, Lin Feng, Chu Jianguo, and Randall Peerenboom, etc. as well. The mainstream legal scholars in China have made similar efforts and just convened a conference on ‘Socialist Constitutionalism with Chinese Characteristics’ this past May in Changsha City of Hunan Province.

In light of these developments, we can see that a new paradigm of Sinicized Marxist Constitutionalism (SMC)[1] is emerging. Why is the SMC emerging? What are its contents and its implications? These are the questions this paper seeks to explore. The paper is divided into three sections. The first introduces the emerging context of the SMC. The second reviews the main approaches towards the SMC as well as their contents. The final section summarizes the paper and draws some implications concerning the emergence of the SMC. As we will see, the emergence of the SMC has deep historical roots; the paradigm is quite rich in content and carries some profound implications.

Sinicized Marxist Constitutionalism (SMC)

Emerging context of SMC and its historical roots

There are three main sources motivating the emergence of SMC. First, there is the significant progress of the values and practices regarding the rule of law in China over the past three decades. From a virtual legal vacuum at the end of the Cultural Revolution, China has established a comprehensive and well-codified legal system, which has been put into effective practice. The fact of legal progress has been widely noticed and acknowledged by scholars both in and outside China. In China, these achievements are well summarized and reflected in the government white paper The Building Up of China’s Rule of Law (《中国的法制建设》) (2008), as well as in various survey books published in the past two years, such as Thirty Years of China’s Rule of Law (《中国法治30年, 1978-2008》) (2008), China’s Thirty Year March toward Rule of Law (《中国走向法治30年, 1978-2008》) (2008)[2], etc., to name just a few. In Western academia, China’s legal progress is well acknowledged and discussed in books such as Randall Peerenboom’s (2002) monograph China’s Long March toward Rule of Law, Donald C. Clarke’s (2008) edited book China’s Legal System: New Developments, New Challenges, etc.

Because the rule of law is widely taken as the core and defining element of constitutionalism, the achievements in the legal realm provide a foundation for surging interest in constitutional development in China as well as the emergence of the SMC. In fact, the constitutional framework of China has also undergone profound changes. During the Reform and Opening Up period, Deng Xiaoping repeatedly emphasized the importance of the institutionalization and legalization of democracy in China. Near the end of the 20th century, the CPC also called for the ‘the rule of law and building up a socialist rule of law state’ during the Fifteenth Congress of the CPC in 1997 and later entrenched this goal into the Chinese Constitution during the Ninth National Congress in 1999.

Nevertheless, despite the remarkable progress of legal reform in China, most scholars’ attention seems to have been preoccupied with the gap between the Chinese constitutional reality and the ideal liberal constitutionalism developed in the course of Western constitutional experiences. I call the liberal constitutionalism advocated in China an ‘ideal’ because it is nowhere to find in practice, nor do those advocates realize the varieties of constitutional tradition in the West. In fact, as most of them are preoccupied with judicial independence, including the ‘judicialization of Constitution’ (xianfasifahua宪法司法化) as practiced in the U.S., they seem to have only the U.S. ‘ideal’ in mind without realizing other legitimate alternatives, such as the French or British variants.[3] I will elaborate the problems of this approach more later but it is worth suggesting that the parochial and ideological nature of this appraoch is perhaps largely due to the dominance of liberal constitutional paradigm in Western academia as well as its deep penetration into the Chinese intellectual realm. For example, some foreign-based China scholars distinguish rule by law from the rule of law and attribute the former to current Chinese reality while emphasizing the significant barriers for China to attain authentic rule of law as practiced in the West. For them, ‘the concept of rule of law belongs to the West and connotes a pluralistic law reflecting a delicate balance of social forces, acting as a shield to protect various socioeconomic classes and strata against the arbitrary tutelage of government,’ while ‘the rule by law in China means ‘statist instrumentalism and invokes both the doctrines of traditional Chinese legalism’ and the ‘bureaucratic ethos of Soviet socialist legality’ (Baum, as cited in Zheng, 2004, p. 50). Accordingly, ‘rule by law has become a major goal of Chinese political development’ because the government realizes that law is not only an institutional necessity to promote socioeconomic development, but also ‘an effective means of coping with social, economic, and political problems resulting from rapid social and economic changes,’ as well as an important instrument to reduce arbitrariness on the part of officials while strengthening the state’s legitimacy (Zheng, 2004, pp. 63, 69).[4] Zheng (2004) further summarizes three main types of barriers for China to attain rule of law, namely cultural, organizational, and structural (p. 63). Culturally, both the large tradition of Confucianism and Legalism, and the small tradition of communism are quite remote from the ideal of the rule of law; organizationally, the entrenchment of the supremacy of the CPC as well as its unwillingness to concede its leading power still poses a significant obstacle to China’s march towards the rule of law; structurally, China is still a developing country, so the Chinese state is not merely a coordinator of different interests, but also a provider of political order and a facilitator of socioeconomic development (Zheng, 2004, pp. 63-6). Similarly, Jean-Pierre Cabestan (2005) analyzes in detail the political and practical obstacles, such as the lack of financial and human resources, rampant corruption, and local protectionism, etc. for China to reform its judiciary and establish a rule of law state.

The deep influence of the Western liberal constitutional paradigm is also well manifested in the constitutional scholarship in China. With the steady progress of legal reform in China, especially the official advocacy of ‘rule of law’ by the CPC leadership in 1997 and the entrenchment of this ideal into the constitution in 1999, the constitutional consciousness in China has increased dramatically; at the same time, scholarship on constitutional law and constitutionalism in China has proliferated. Although constitutionalism is largely a Western idea, it has nevertheless transcended its parochial origin and become a universal norm of the world (Jiang, 2009, p. 11); its influence on Chinese constitutional thinking is also remarkable. As shown in his article ‘Western Constitutional Ideas and Constitutional Discourse in China, 1978-2005,’ the impact of western constitutional ideals and discourses in China is so significant that Yu Xingzhong (2009) acknowledges ‘it is no exaggeration to say that Chinese constitutional discourse has been significantly ‘Westernized’’ (p. 114). It is in this regard that Pan Wei, a well-known coiner and advocate of the notion of ‘Chinese Model’ (zhongguo moshi中国模式), regards the realm of legal study as the ‘hardest hit area’ of Chinese academia by what he regards as Western ideological imperialism (personal communication, June 10, 2010). The impact is also manifested in the sensibilities as well as sense of what problems are most important (wenti yishi问题意识) of the majority of Chinese constitutional scholars. While not daring to openly call the Chinese constitution a ‘sham’ or ‘useless’ as some Western critics did, they nevertheless take the divergence between the constitutional expression and practice as a tacit truism (Jiang, 2009, p. 11). The problems they are most concerned about and preoccupied with are consequently how to revise the current Chinese constitution to meet Western standards, and particularly how to implement the constitution in juridical practice in order to avoid its irrelevance in daily life (Jiang, 2009, p. 12).[5]

Meanwhile, the deep penetration and influence of the Western liberal constitutional paradigm in China has induced two remarkable reactions. The first is the ‘constitutionalism abolition thesis’ (xianzheng quxiaolun宪政取消论), and the second is the advocating of constitutional proposals based on and loyal to China’s indigenous traditions by some cultural conservatives in mainland China. The first reaction is mainly shown among scholars of political studies. If the realm of legal studies is indeed the ‘hardest hit area’ of Chinese academia by Western ideological imperialism, the situation in the realm of political studies is relatively better, perhaps due to greater caution of the part of supervising political authority in China as well as the distinctive natures of the two subjects. The difference is reflected in their distinct stances towards the issue of constitutionalism. Constitutionalism is by no means a hot topic among political scholars in China; in fact, some prominent figures among this group have openly criticized the concept as well as the ideology behind it.[6] Their views seem to have been accepted by the political authorities, which is perhaps why some books written on constitutionalism face some implicit barriers for publication (personal communication, anonymous, May 22, 2010). The appeal of the ‘constitutionalism abolition thesis’ to current political leaders is not hard to understand as soon as one questions where the Four Cardinal Principles (sixiang jibenyuanze四项基本原则)[7] that serve as the foundation for China’s reform and development are placed in the new constitutional discourse, which usually centers on the three core elements of ‘democracy, rule of law, and human rights.’ This is actually one of the primary motivations for the recent conference on ‘Socialist Constitutionalism with Chinese Characteristics’ in Changsha this past May by legal scholars in China; most of the participants had the hidden agenda of using the title of this meeting to rectify the name and restore the leading status of constitutionalism in directing China’s political reform in future. This may well be shown in the speech of the convener Li Buyun, who confesses his strategic concerns for holding the conference. While the conference was attended by many important figures within the field of legal studies, including several current presidents of the University of Politics and Law (zhengfa daxue 政法大学), and some representatives of major medias in China, such as the People’s Daily, etc. as well as an important former state leader, Luo Haocai (罗豪才), the conference received little media coverage and consequently had little impact on the public. The struggle over the issue of constitutionalism has thus not undergone significant changes.

Another reaction to the penetration of the Western liberal constitutional paradigm in China is the emergence of Confucian constitutionalism discourse advocated by some so-called ‘mainland New Confucians,’ represented by Jiang Qing (Jiangqing蒋庆), Kang Xiaoguang (Kangxiaoguang康晓光), Sheng Hong (Shenghong盛洪), and Chen Ming (Chenming陈明), etc. (Fang, 2006, p. 6). While having not reached a consensus among themselves for a specific constitutional blueprint, this school is united in bemoaning the fact that the liberal constitutional proposals of the past century, including the amendments of the current Chinese constitution all lack native features. In other words, contemporary Chinese politics is still diverging from its native tradition and getting more ‘Westernized.’ As a result, they have been seeking to develop constitutional blueprints that are based on and also loyal to China’s cultural tradition. One notable proposal is Jiang Qing’s ‘Religious Confucian Constitutionalism’ (rujiao xianzheng 儒教宪政), which is supported by his theory of ‘political Confucianism,’ and consists of a series of concrete proposals for realizing the blueprint. An international conference entitled ‘Religious Confucian Constitutionalism and China’s Future’ has just been convened this past May in Hong Kong as well.

If the constitutional achievements of China in the past three decades provide the foundation, while the deep penetration of the WLC paradigm in China serves as a kind of catalyst for the emergence of SMC, interest in exploring and theorizing the so-called ‘Chinese Model’ (zhongguo moshi 中国模式) within current Chinese academia and the prevailing trend of shaking off the yoke of dominant paradigms in the Western academia may have provided a supporting environment for its emergence. Tacitly endorsed by Chinese government, whose intellectuals have sought to bridge the notion of ‘Chinese Model’ with the official line of ‘The Path and Theoretical System of Socialism with Chinese Characteristics’ (中国特色社会主义道路和理论体系), the exploration and theorization of the ‘Chinese Model’ based on China’s successful modernization path has proliferated in Chinese academia in the past few years, especially in the past two years since the unfolding of the financial crisis in the West. This is well reflected in the change of the number of core social science journal articles published on the theme, as shown in the table below. In the period of 2009-2010, there are 91 articles containing the phrase ‘Chinese Model’ in their titles, and 167 articles with ‘Chinese Model’ as the keyword; this is nearly three times the number published during the period of 2001-2008, which has a record of 29 and 57 respectively. There have also been various conferences, research projects, as well as books devoted to the theme in China recently.[8] While it is hard to give a specific definition to the term ‘Chinese Model,’ some key characteristics could be identified, such as its objection to the prevailing doctrinaire adoption of Western ideas and theories, as well as its emphasis on the theorization of indigenous experiences of the past sixty years.

1980 – 2000 2001-2008 2009- 2010
‘Chinese Model’ in Title 6 29 91
‘Chinese Model’ as Keyword 15 57 167

Table 1: Number of Core Social Science Journal Articles on ‘Chinese Model’ (statistics from China Academic Journals Full-text Database)

 

The current popularity of the ‘Chinese Model’ does not seem to have spread far from the Chinese border, but nevertheless, in Western academia, there is a trend of rethinking the dominant paradigms as well as reengaging alternative discourses that were previously ignored or suppressed. This trend is particularly well manifested in the area of China studies, since the bare facts of China’s rapid economic growth as well as the regime’s continuing resilience have betrayed the limitation of the existing frameworks and led some to explore new categories and perspectives to better capture China’s realities. This seems to be well shown in Backer, Perenboom, Balme and Dowdle’s endeavors. The easier access of information from China as well as increased interactions with Chinese realties due to technological advances and the rising tide of globalization certainly have contributed to this change.

To sum up, we have reviewed three factors in the background that have contributed to the emergence of SMC. As we have seen, the progress of the rule of law and constitutional framework in China surely play a foundational role, as without these transformations, the Chinese variant of constitutionalism may not have attracted much attention at all. However, the prevailing acceptance of the liberal constitutional paradigm in China has induced some reactions from various quarters, and consequently has served as a catalyst for the emergence of SMC. Finally, interest in exploring the ‘Chinese model’ within current Chinese academia and dissatisfaction with the dominant paradigms in the West have provided an amiable environment for SMC to emerge. Surely behind all of the three major factors mentioned above is the common denominator of China’s continuing rapid economic growth. This may echo Marx’s thesis about the dialectical relationship between economic base structure and ideational superstructures. Below, let’s have a look at the contents of the SMC.

  1. A.           The Contents of the SMC

As shown in Table 2 above, we could identify five main approaches toward constitutionalism in China.[9] The first approach is surely the prevailing WLC approach mentioned earlier, which focuses on the gap between China’s current constitutional reality and certain Western ideals. Due to the scope and purpose of this chapter, I will not go into details here, but it is worth pointing out two major problems of this approach. First of all, the approach is particularly prevalent among legal scholars, who often associate (and even conflate) constitutionalism with the judiciary’s power and its effectiveness in enforcing constitutional rules (Balme and Dowdle, 2009, p. 2). These scholars largely view a constitution in the concrete sense as the document of the supreme law of the state, so their logic follows as a general syllogism: ‘constitutions are phenomena that are comprised of laws and laws are phenomena that are enforceable by courts; therefore, constitutions are phenomena that are enforced by courts; and therefore, constitutionalism is principally a product of judicial power’ (Balme and Dowdle, 2009, p. 2). They hence emphasize rule of law and judicial independence. However, as Balme and Dowdle (2009) contend, ‘this court-led model of constitutional development is actually incomplete’ for studying China’s transitional constitutionalism, because it presumes a relatively mature constitutional system with the notion of rule of law firmly embedded in a stable constitutional culture that gives ‘special and deontological status to both ‘the law’ and the courts’ particular and unilateral explications of that law’ (p. 2).[10] For this reason, Balme and Dowdle point out two important caveats for understanding the relationship between constitutionalism and the judicial power. First of all, the definition of constitution certainly should go beyond its concrete sense, since in even the most effective constitutional systems in the world, significant aspects of the constitutional structure are largely nonjusticiable, with the UK’s ‘unwritten constitution’ as a paradigmatic example (Balme and Dowdle, 2009, p. 2).[11] Second, the notion of judicial independence is also not only problematic but also misleading, since ‘the metaphor of ‘independence’ cloaks the cooperative dynamics upon which a Constitution vitally depends for its effectiveness’ (Balme and Dowdle, 2009, p. 4). In fact, without the voluntary cooperation of other constitutional actors or the society as a whole, it is unclear how the inherent status of the judiciary as the constitution’s least dangerous branch could render it possible to enforce the constitutional norms against other non-cooperative constitutional actors (Balme and Dowdle, 2009, p. 4).[12]

Besides the preoccupation of judicial independence, another major problem of this approach is the conflation of constitutionalism with democracy among some Chinese constitutional scholars.[13] As Balme and Dowdle (2009) point out, the Anglo-American constitutionalists tend to view constitutionalism as an alternative or necessary supplement to democracy, in the face of the possible danger and harm of the ‘tyranny of the majority,’ latent in the actual working of purely democratic mechanisms, and ‘it is in this tension between constitutionalism and democracy in which the distinctive relevance and importance of the courts and their judicial power to constitutionalism lies’ (p. 6). [14] In other words, ‘one of the defining constitutional roles of the courts lay in their distinctive ability to protect ‘discrete and insular minorities’ from majoritarian tyranny,’ due to their ‘insulation from majoritarian, populist and democratic politics’ (Balme and Dowdle, 2009, p. 6). Nevertheless, for emerging democracies, a crucial theoretical question is then why an inherently undemocratic institution like the judiciary should have the final say over the most authoritative matters of the state (Balme and Dowdle, 2009, p. 5), which is certainly not easy to answer.

The second approach is a little more moderate as it acknowledges and focuses on the legal and constitutional progress seen in China over recent decades, and I call it an ‘empirical transitional approach.’ This is represented by the works in S. Balme and M. W. Dowdle’s edited book Building Constitutionalism in China (2009), which are largely empirical in nature and mainly explores the impacts of this emerging constitutionalism in a variety of areas, including not only the juridical realm such as legal practice, judicial decision-making, and legal scholarship and education, etc., but also the political and social realms, such as political consciousness, social resistance, mobilization, and citizen empowerment, etc. While marking an advance over the first approach, the ‘transitional constitutionalism’ approach is still operating within the paradigm of WLC, hence suffering the same problems as the first approach. As a result, I will not go over it in detail here. Most relevant to the theme of this chapter are the third to fifth approaches, because they all capture some core elements of Chinese constitutionalism, namely the party-state constitutional order, as well as the importance of ideology in the constitutional framework. Nevertheless, they differ in the gravity center among the ideological values, with the third approach pivoted on the rule of law value, the fourth approach on the orthodox ideology of regime, and the fifth approach on an organic eclectic of previous approaches. Below I will provide a review and analysis of each of the SMC approach respectively.

Marxist party-state approach pillared on the rule of law

The third approach is well represented by Larry C. Backer’s party-state model of Chinese constitutionalism. According to Backer (2009), to understand this model with Chinese characteristics, one needs to first understand that ‘the Chinese constitution exists as a combination of polity and governing ideology, on the one hand, and the state apparatus, on the other hand’ (p. 110). A key component in this constitutional arrangement is the Communist Party, not as a political party or private actor in the Western sense, but as the institutionalization of the polity and the source of its substantive values. In other words, the Communist party as an autonomous community serves as the gatekeeper of political citizenship and the provider of the value framework for the state. As a result, Backer (2009) concludes four major features of the party-state model of the Chinese constitutionalism: 1), the division of citizenship between social and economic citizenship held by all, and political citizenship exercised through the CPC;[15] 2), the subordination of state power and institutions to political authority; 3), institutionalization of political authority within a collective space (the CPC) beyond the control of any individuals, that serves as the source and conduit of constitutional values to be implemented by the state apparatus;[16] 4), reliance on state and party self discipline for the elaboration of rule of law values (p. 102).

While this approach is quite distinctive from previous approaches in that it brings the CPC as well as its ideologies into the constitutional structure, it is located near the center of the spectrum because it still emphasizes rule of law as the defining feature of constitutionalism. As a result, Backer (2009) argues that the CPC ‘retains its constitutionalist character to the extent that in its internal operations it observes the same rule of law framework as that imposed externally on the state apparatus’ (p. 6).[17] It is Backer’s (2009) emphasis on rule of law as the defining feature of constitutionalism that leads him to regard pre-Deng Chinese state governance architecture as anti-constitutionalist, a kind of truism shared with previous approaches (p. 2). While Backer (2009) is right in claiming that ‘the basic premise of constitutionalism is to distinguish it from despotism or tyranny’ (p. 3), it seems that further support is needed to argue that the absence of the rule of law necessarily leads to despotism and tyranny.[18]

This approach, represented by Backer’s model, is also shared by some famous scholars, such as Jiang Shigong and Chu Jianguo in China, and Randall Peerenboom at UCLA. Responding to the prevailing sensibilities and problem awareness of the majority of legal scholars in China, especially their exclusive focus on the written constitution, Jiang Shigong (2009) advocates an ‘unwritten constitution’ perspective to study China’s constitutionalism. With some compelling arguments, the author contends that the actual operation of constitutionalism in all countries relies on an unwritten constitution, and he demonstrates that China’s constitutional order actually has four sources, namely the party constitution, constitutional conventions, constitutional doctrine, and constitutional statutes. The most remarkable characteristics of the Chinese constitutional order, according to Jiang, is the compound interactional structure between the political and the legal, represented by the party and the state respectively.[19] Historically, the PRC is founded politically under the leadership of the CPC with alliances of other political parties. This is well shown in The Common Program of the Chinese People’s Political Consultative Conference proclaimed in 1949, the first constitutional document of the PRC. According to Jiang, the diverse background of the first political consultative conference attendees as well as their representativeness could well provide the legitimacy needed to politically establish the PRC; however, as a ‘political’ foundation lacks certain formal elements, it needs a legal foundation to entrench and stabilize the polity, which is the reason for the proclamation of the formal Constitution in 1954.[20] Consequently, Jiang (2009) argues that the sovereignty of China is represented in two ways, the first is through the CPC-led multi-party cooperation system, which consists of representatives based on their political ideas, historical missions, and class interests; the second is the People’s Congress, which consists in representatives elected through certain legal and formal electoral procedures from the citizenry (p. 22). This echoes Backer’s insights about the two main divisions of citizenship above as well. While emphasizing the unique Chinese constitutional party-state structure, Jiang seems to share the power-constraining dimension of Backer’s view. For Jiang (2009), while state sovereignty represented by the People’s Congress is indeed a kind of ‘rubber stamp’ in a neutral sense, since political wills of CPC and NPC are themselves supposed to be identical, legitimization of the party will through the NPC assumes the additional function of ‘taming the emperor’ (p. 23). Jiang did not elaborate the reasons but points out the differences through a comparison with that of the Cultural Revolution period where the CPC ruled directly without any resort to legal legitimatization. Conceivably, the need to go through the NPC in order for CPC’s will to be elevated to state level may serve to slow the deliberative process hence making the proposals more cautious as well as representative (remember that the approval rate by the votes in the NPC still indicates something). In fact, this is supported by Robert Benewick’s (1998) observation of the dualistic feature of Chinese constitution as ‘the Communist Party contending and proposing and the state amending and disposing’ (p. 447). To Jiang (2009), this is similar to the difference between ‘absolute monarchy’ and ‘constitutional monarchy’ as manifested and aspired to in recent Chinese history (p. 23).[21] Another scholar Chu Jianguo (2009) shares this view and further elaborates the advantages as well as necessity of what he calls ‘One Party Constitutionalism’ (yidang lixian一党立宪) in a web-based article. Nevertheless, it is hard to know whether Chu truly endorses the leadership of the party or is just expressing a realistic compromise, since he thinks that the purpose of the ‘One Party Constitutionalism’ is to bring all political power, including the CPC, under effective constraints while not alternating the leadership role of the current ruling party (p. 10).

Marxist party-state approach pillared on orthodox ideology

Ifthe above approaches are largely preoccupied with constraining governmental power through the rule of law mainly due to the deep influence of the liberal constitutional paradigm, the fourth approach then, as an alternative, concentrates its attention on the constitutional order of Chinese politics as it is, and takes its ideological dimension as the distinctive feature of Chinese constitutionalism.[22] First of all, this approach sees a consistent constitutional developmental trajectory in China, and has been well explored in books such as Han Damei’s (2005) A Study of the Constitutionalism of New Democracy (《新民主主义宪政研究》), Qing Qianhong and Ye Haibo’s  (2008) book A Study of Socialist Constitutionalism (《社会主义宪政研究》), and Han Dayuan’s (2008) The 1954 Constitution and Chinese Constitutionalism (《1954年宪法与中国宪政》), etc.[23] Here I will review Ren Xirong’s synoptic account as a representative. In her presentation at the ‘Socialist Constitutionalism with Chinese Characteristics’ conference, Ren Xirong (2010) from Jilin University reviews the developmental trajectory of socialist constitutionalism from Mao’s time to later leaderships. According to her, Mao Zedong and his contemporary Marxist theorists are the founders of the Chinese Socialist Constitutionalism theory and system. This is so not only because the core of Mao Zedong’s constitutional thought, namely ‘constitutionalism is the politics of democracy,’ has deeply influenced the way Chinese people today understand constitutionalism,[24] but also because during Maoist times, the fundamental categorical system of the Chinese socialist constitutionalism,[25] including constituents such as the Constitution, the National Polity (guoti国体), the state/government(zhengti政体), the people, citizenship, democratic centralism, people’s congress system, the fundamental rights and obligations, legislative power, judicial power, administrative power, chief of state, autonomous governance, etc., and the actual working mechanisms of the constitutional order were formed. The constitutional structure and thought was further developed by Deng and Jiang. During Deng’s time, he not only establishes the ‘Four Cardinal Principles’ for China’s reform and opening up and set up the goal of institutionalizing and legalizing the peoples’ democracy, but also developed the ideology of ‘Socialist Theory with Chinese Characteristics’ (zhongguotese shehuizhuyililun中国特色社会主义理论).[26]This constitutional trajectory is further developed by later leaderships, as shown in the incorporation of ‘the rule of law,’ ‘human rights’ and ‘Three Represents’ clauses into the Constitution.

Second, this fourth approach is distinct for its emphasis on the orthodox ideology. For example, tracing the constitutional development of China from the Common Program of 1949 to the current 1982 Constitution, Kam Wong (2006) points out that the Chinese ‘constitutions were not there to limit the government’s power but to promote the ideology of the state and advance the cause of the Communist Party, i.e. to contribute to building a Communist State under Mao (the 1954 PRC Constitution) or to facilitate the social and economic reforms under Deng (the 1982 PRC Constitution)’ (p. 37). In other words, Wong (2006) further explains, ‘Traditional ‘constitutionalism’ in the West is built upon an individualistic foundation, adversarial processes and a zero-sum gain calculus,’ but Chinese ‘constitutionalism’ is ‘premised more upon a collective mentality, centred more on a cooperative spirit and on a mutually beneficial understanding [that] Power need not be held in check but must be guided and directed to achieve collective goods’ (p. 37). It is also in this sense that Ren (2010) regards the ‘Four Cardinal Principles’ as the cornerstone of Chinese constitutionalism, and the fundamental feature distinguishing it from its western counterparts (p. 2). While in his article Wong (2006) points out that the 1982 Constitution of the PRC marks a breakthrough from previous ones by incorporating the ideas of ‘rule of law, individual rights, limitation of state powers’ for the first time (p. 3), he does not elaborate much on them, nor regard them as essential for Chinese constitutionalism. In fact, Wong acknowledges that the Chinese authorities drafting the 1982 Constitution did not subscribe to a liberal understanding of these core values, and suggests further research on the impacts of the reform and opening up on the Party’s thinking as well as the people’s understanding of constitutionalism in the past three decades.[27]

Given this approach’s reliance on the orthodox ideology of the CPC as well as its canopy of the Cultural Revolution period, a third feature not hard to conceive is the legacy of Marxist and socialist legal philosophy. Just as the third ‘rule of law’ approach does not exclude the ideological dimension of SMC, this fourth ideological approach does not exclude the ‘rule of law’ either, though it presents it in terms of a very different Marxist or socialist understanding. In Western academia, there is very little written on Marxist or socialist legality, let alone their philosophy. This is understandable, since classical Marxism is well-known for dismissing law as a class instrument and capitalist institution, which will ‘wither away’ with the state after the revolution (Wong, 2006, pp. 4-5). Nevertheless, Marxist legal theory, advocated and endorsed by state authority, has been hotly explored and discussed in Chinese academia, especially its adaption to the current context. I will leave a review of this aspect till later; what I want to suggest here is a plausible defense of the fourth approach’s inclusion of the Cultural Revolution period, which was widely perceived as a lawless era. This reading is taken from Brian Hipkin, who suggests that a key difference between the legal realms of Mao’s period and Deng’s period is not whether the period has laws or not, but whether the rules of justice are codified or informal. For Hipkin (1984), during the Mao’s period, ‘rules were created and maintained at the level of interpersonal relationships and it was possible for them to both generate a sense of solidarity and to give the masses a chance to control their situations’; after the transformation, however, ‘codification, the intervention of formal state legal organizations, control by higher courts and notions of precedent’ emerge and these measures lead to rules that ‘stand outside of the interpersonal recognition of solidarity and socialist equality’ (p. 126). Consequently, it has led to the alienation of the ordinary people, particularly the rural peasants and the urban proletariat from legal practices, and partly resulted in future inequality (Hipkin, 1984, p. 126). Hipkin (1984) attributes much of this ‘mass-line’ style of socialist legality to China’s immense cultural heritage, which had contributed to the longevity and efficiency of China’s informal justice system as shown in the history of managing such a big country with little more than 5,000 lawyers (p. 125).

It is beyond the scope of my current project to go into details about the change (bian变) and continuity (tong通) between traditional Chinese jurisprudence and sinicized Marxist jurisprudence, but to help the reader better understand this perspective, I will mention two key theses. The first is the discovery by Yu Ronggen (俞荣根) (1998), a widely recognized authoritative scholar on Confucian legal thought, that the distinctive core as well as spirit of Chinese jurisprudence is the trinity of Natural Law or Universal principles (tianli天理), state laws (guofa国法), and commonsensical sentiments or the actual condition of the people (renqing人情). In this framework, the common people are not alienated from the legal realm mainly because they occupy one pole of the trinity, and they can utilize common sense as a weapon against doctrinaire or deviant interpretations of state laws, which is supposed to be consistent with Natural Law which in turn is also based on the sentiments and actual condition of the people (Yu, 1998, p. 14). This is in fact supported by a second thesis advocated by Jin Guantao (金观涛) and Liu Qingfeng (刘青峰), two well-known scholars of Chinese intellectual history. Drawing discoveries from a large quantitative database for the study of modern Chinese intellectual history which they developed, Jin and Liu argue that the Chinese concept of Li (理) as the criteria for judgments of propriety and legitimacy is radically different from the counterpart of rationality in the West (Jin and Liu, 2009). For Jin and Liu (2009), one could read the Chinese concept of Li as ‘commonsense rationality’ (changshilixing常识理性), which is meticulously entrenched in ‘common sense (常识)’ and ‘natural sentiments or facts (renzhichangqing人之常情)’ (p. 26).

Hipkin’s reading of socialist legality clearly renders support for the fourth approach towards SMC.[28] Bearing the two theses mentioned above in mind, we could then also better understand Mao Zedong’s statement that ‘The peasants are clear sighted. Who is bad and who is not quite vicious, who deserves severe punishment and who deserves to be let off lightly – the peasants keep clear accounts and very seldom has the punishment exceeded the crime’ (as cited in Wong, 2006, p. 7), as well as Mao’s later shying away from codified laws for governing the people. This perhaps could also help us to understand the current Chinese judiciary’s strategic turn towards populism, its re-emphasis on mediation of disputes (Peerenboom, 2010, p. 21),[29] as well as the hot debate in China over the advantages of substantive justice (shitizhengyi实体正义) over procedural justice (chengxuzhengyi程序正义), and established legal scholars’ surging interest in ‘soft law’ (ruanfa软法).[30]

Marxist party-state approach supported by a new organic eclectic ideology 

The fifth approach towards SMC marks the latest turn in constitutional thought among the leadership as well as some leading established intellectuals in China. First of all, it is worth pointing out that given the dense liberal flavor of the notion of ‘constitutionalism’ in the Chinese context, which has induced the ‘constitutionalism abolition thesis’ mentioned earlier, the terminology is rarely used by party leaders and established intellectuals, with the exception of some legal scholars mainly in the legal community. Party leaders have used the notion of the ‘rule of Constitution’ (yixianzhiguo依宪治国), but the most common counterparts of ‘constitutionalism’ in the Chinese discourse have been ‘socialist democratic politics’ (社会主义民主政治), ‘Chinese style democracy’ (中国式民主), and ‘socialist political civilization’ (社会主义政治文明), etc. Since the political authority’s public pronouncement and advocacy of these notions with Chinese characteristics, the literature devoted to these themes has proliferated. Though these different notions emerged in different contexts and differ to some extent in terms of their respective intensions and extensions, they all share an essential core in the Chinese case, which is the organic unity of ‘the leadership of the Party, the position of the people as masters of the country, and the rule of law’ (党的领导,人民当家做主,依法治国). This constitutional trinity was included in the reports of both the 16th and the 17th CPC National Congresses. Since then, an enormous literature has been devoted to this constitutional trinity as well. Below I will just take Wang Jinyuan’s explication of the organic relationships among the trinity as representative.[31]

The three parts are held to be organically united since the leadership of the party is the guarantee of the latter two, while the people as masters is the essential requirement of socialist democratic politics and rule of law is the fundamental strategy of the CPC to lead the people to govern state affairs (Wang, 2003, p. 30). According to these authors, the leadership of the CPC has been proven by both history and reality to be indispensable for the setting up of the socialist system and the continuing march towards socialist democracy in China.[32] In fact, from the very moment of the birth of the CPC, it has embraced the realization and development of people’s democracy as its main task, so there is no divergence between the leadership of the CPC and the people as masters. Accordingly, all Chinese leaders have repeatedly emphasized the crucial leading role of the CPC for the socialist causes and endeavors China is aiming at (Wang, 2003, pp. 30-1). As for the people as masters, that is surely a necessary requirement of socialist democracy, which itself is the inherent nature and requirement of socialism (Wang, 2003, p. 32). The people as masters means that all endeavors should serve the interests of the people, who have the inherent rights to participate in governing state affairs and supervise the operation of state apparatuses. At the same time, rule of law as an important mark of modern civilization has been accepted as the necessary requirement of socialist democratic politics and also the guarantor of the realization of the latter, and consequently the goal of people as the master. Rule of law is also the bridge as well as nexus between the CPC and the people as masters.

From this brief introduction, we can see that the fifth approach combines certain core ideas from both liberal constitutionalism and Marxist constitutionalism as reviewed earlier. In this regard, it is similar to the effort of the third approach, but it transcends the third approach by developing an organic outlook on the three core elements rather than tilting towards the rule of law value. As we can see from the spectrum of Table 2, this latest development of constitutional thought also could be regarded as the result of the interactions and dialogues between liberal constitutionalism and Marxist constitutionalism. Marxist constitutionalism, as shown in the fourth approach, takes the orthodox ideology as the defining element of constitutionalism, and to some extent adopts a kind of consequentialist philosophy which enables the government to use ends to justify means as practiced during the pre-Deng eras. However, due to increasing western influences as well as China’s own development, the importance of the rule of law and individual rights has been widely accepted by both the authority and the public and consequently integrated into this latest constitutionalism discourse. This eclectic reading is also supported by He Baogang (2010), who argues for a constitutionalism that is able to transcend both the left and the right ideologies and maintain a dynamic coordinating balance among them with a comprehensive outlook.

The eclectic nature of the fifth approach is also well illustrated in the new discursive terminologies of the current ideology. Shying away from the slogans of the Maoist period yet without embracing Western values in a whole-sale manner, party leaders and established intellectuals have sought to develop a ‘theoretical system of Socialism with Chinese Characteristics’ (中国特色社会主义理论体系) that incorporates those newly coined ideas such as the ‘Three Represents,’ ‘Scientific Outlook on Development,’ ‘People-centeredness,’ ‘Harmonious Society,’ ‘Socialist Political Civilization,’ and ‘Socialist Legal Ideas,’ etc. This discursive turn of Chinese ideology has been well captured by China scholars in Western academia as well. For example, through the application of discourse theory to an analysis of the newly emerging ideology of ‘Socialism with Chinese Characteristics’ and ‘Scientific Outlook on Development,’ Guoxin Xing (2009) argues that the Chinese party leaders and established intellectuals have ‘boiled socialism down to abstract values, independent of and autonomous from the economic base, marking a retreat from class and class struggle’ (p. 213). Nicholas Dynon’s article ‘‘Four Civilizations’ and the Evolution of Post-Mao Chinese Socialist Ideology’ also offers an in-depth analysis of the emergence of ‘civilization discourse’ in China’s current ideology. What is remarkable about this collection of terminology is that both the left and the right could interpret and utilize them in ways consistent with their respective core tenets, while the ‘Party rhetoric defines the opportunity structures for debate’ (Gilley and Holbig, 2009, p. 342). For example, employing a similar attempt to take ‘people centeredness’ as the foundational norm of Chinese constitutionalism, liberals try to associate it with the protection of human rights and dignity (Liu and Yang, 2004; Li and Zhu, 2005; Yuan, 2010), while Marxists tend to emphasize the superiority of the Marxist understanding on the issue over that of Western liberal alternatives (Xu and Xie, 2005; Chen and Jin, 2009).

A related issue worth pointing out is the emergence of corresponding legal theory in the name of ‘Socialist Legal Ideas’ (社会主义法治理念) for SMC. It is a summation and theorization of China’s legal reforms both in its practical and theoretical dimensions over the past three decades; it is also an inherent part of the theory of ‘Socialism with Chinese Characteristics’ and deals with juridical aspects of the grand theoretical system (Zhu, 2008). It is a direct result of the adaptation and innovation of Marxist jurisprudence in the contemporary Chinese context. As mentioned earlier, while Marxist jurisprudence is not so popular in mainstream Western academia, it is nevertheless a hot topic in Chinese legal studies. This is well shown in the number of articles written on this theme, especially its sinicization. For example, the core social science journal articles that have ‘Marxist jurisprudence’ (马克思主义法学) in their title have increased from 5 in 2000 to 31 today.[33] The focus of this literature has also shifted from mainly an introduction to the original legal theory of Marxism to an exploration of its sinicization for application in contemporary China; the recent high-level conference devoted to this theme this past summer at Renmin University is a good illustration of the ascendance of this topic.[34] A more telling statistics perhaps is the number of articles written on ‘Socialist Legal Ideas’ (社会主义法治理念), explicitly claiming to be a result of the process of the Sinicization of Marxist jurisprudence in China. Since the term was first coined in 2006, there have been a total of 43 articles in the core journals containing this idea in their title.[35] State authorities have tried to advocate it in society with promotional campaigns, such as knowledge and oratorical competitions, etc. The Politics and Law Committee of the CPC has also published a Socialist Legal Ideas Educational Reader in 2008 and have included ‘Socialist Legal Ideas’ in China’s Judicial Test (sifakaoshi 司法考试) as a separate section with heavy weight of score, starting in 2009. There is no need to go into further details about the contents as well as justifications for  these ideas; it is enough to point out that the core essence of ‘Socialist Legal Ideas,’ as the official expression puts it, is the constitutional trinity explicated earlier. Consequently, ‘Socialist Legal Ideas’ has eclectically combined values such as ‘managing state affairs in accordance with law’ (yifazhiguo依法治国), ‘implementing law for the people’ (zhifaweimin执法为民), ‘equity and justice’ (gongpingzhengyi公平正义), ‘serving the overall interests’ (fuwudaju服务大局), and ‘leadership of the CPC’ (dangdelingdao党的领导), ‘respect and protection of human rights,’ ‘maintenance of the authority of law,’ ‘supervision and checks’ (jianduzhiyue监督制约), and ‘liberty and equality’ (ziyoupingdeng自由平等).

Conclusion and Implications

To sum up, in this paper we first described the emerging context of the newly developed SMC. The progress of the rule of law in both its theoretical and practical dimensions over the past thirty years in China surely plays the foundational role for the surging interests among scholars on the issue of constitutionalism in China. Meanwhile, the deep penetration and domination of Western liberal constitutionalism have induced two reactions from scholars outside of the legal realm, namely the articulation of the ‘constitutionalism abolition thesis’ as well as some cultural conservatives’ proposal of developing constitutionalism that is based on and also loyal to China’s indigenous tradition. Within the legal realm, it has pushed some to rethink the preconceptions of the Western liberal constitutional paradigm both in and outside China, and catalyzed their articulation of the SMC paradigm. The fad of advocating the ‘Chinese Model’ within Chinese academia and popular trend of shaking off the yoke of current dominant paradigms in the West, especially since the Western financial crisis, may have offered an amiable and supporting environment for the emergence of SMC as well.

We then reviewed the three main approaches towards Chinese constitutionalism that are under the canopy of SMC. The first one is represented by Larry Backer’s model, which takes into consideration the CPC as well as its ideologies, but still emphasizes rule of law the defining feature of constitutionalism. This approach does not elaborate much on their understanding of the rule of law, but it seems that they share that of the liberal paradigm. The second also takes the party-state structure into the constitutionalism, but emphasizes more on the orthodox ideology. Its understanding of rule of law is also significantly different from that of the liberal paradigm, and is more akin to jurisprudence such as Critical Legal Theory, etc. that are largely marginalized in the contemporary western legal realm. The third is the one currently developed and promoted by the political authority as well as the established scholars in China. It combines certain core ideas from the previous two approaches and emphasizes on the organic trinity of party leadership, democracy and rule of law. This approach has also developed corresponding legal theories such as the ‘Socialist Legal Ideas’ to match it.

The implications of SMC could be profound. First of all, the emergence of a lively heterogeneous constitutionalism certainly poses a challenge to dominant WLC, and consequently contributes to the pluralistic orientation of current constitutional discourses both in China and around the world.[36] It will perhaps force some liberal scholars to rethink their preconceptions of constitutionalism and generate more dialogues between different constitutional communities. Second, it may remind us of the relevance of Marxism in contemporary China as well as within the global society. After a thirty years’ embrace of a market economy and the penetration of external forces, is Marxism-Leninism still relevant in China as the official line proclaims? Are the top CPC leaders who call for cadres at all levels to ‘truly study, truly understand, truly believe and truly apply’ (真学真懂真信真用) ‘the stand, viewpoint, and methodologies of Marxism,’ or what they call the ‘living soul of Marxism’ merely hypocrites or are they doing something imprudent or deluded? We did not tackle this problem directly in this paper, but the answer may be quite obvious. The constitutional structure of China has remained largely the same throughout the past six decades and the current ideology of the regime is eclectic and vague enough to retain flexibility for both left and right turns. To a clairvoyant observer, the current Chinese ideology is very much taking Marxist values as the Ti (体) and liberal values as the Yong (用), though with both adapted and contextualized to the current reality and time.[37] In fact, there is sufficient evidence to support such a reading, such as the current leadership’s heavy investment in the Marxism Theory Research and Construction Project, which aspires to lead the whole humanities and social science world in China, and its firm stance towards reforms in the area of civil and political rights that lie at the core of the liberal paradigm. The third implication is then the impacts of such a ‘communist’ China on the world order. While the ideology has successfully shied away from traditional class politics and incorporated a market economy as well as private property, it still subscribes to the ‘stand, viewpoint, and methodology’ of Marxism, hence it is perhaps unacceptable to hard-core liberals. This certainly necessitates more careful research and reflection for anyone who is concerned about the future of the world order and peace.

References

Backer, L.C. (2009) ‘The Party as Polity, the Communist Party, and the Chinese Constitutional

State: A Theory of State-Party Constitutionalism’, Journal of Chinese and Comparative

Law, 16: 1.

Balme, S. and Dowdle, M. W. (eds) (2009) Building Constitutionalism in China. New York:

Palgrave Macmillan.

Benewick, R. (1998) ‘Towards a Developmental Theory of Constitutionalism: The Chinese

Case’, Government and Opposition, 33: 4, 442-461.

Brady, J. P. (1982) Justice and Politics in People’s China: Legal Order or Continuing

Revolution, London: Academic Press.

Cai, D. and Wang, C., (eds) (2010) China‘s Journey toward the Rule of Law: Legal Reform,

1978-2008, Leiden ; Boston, Mass.: Brill.

Chen, C. and Han, B. (2010) ‘The CPC’s Constitutional Exploration of the Vicissitudes

Periodicity’ (中国共产党对’盛衰周期率’的宪政探索)’, Journal of Southwest University

(Social Sciences Edition), 36: 1.

Chen, H. (2004) ‘Some Reflections on the Problem of Constitutionalism

(关于宪政问题若干思考)’, Political Studies, 3, 1-11.

Chen, X. and Jin, Y. (2009) ‘People-centered: Centered on what kinds of people and what of a

person (以人为本: 以’什么样的人’和’人的什么’为本?)’, Marxist Philosophy, 8, 15-21.

Chu, J. (2006-last update) One Party Constitutionalism: The New Path of Chinese

Constitutionalism (一党立宪:中国宪政新路). Available at:

http://chinaelections.net/newsinfo.asp?newsid=99982 [Nov. / 10, 2010].

Clarke, D. C. (2008) China‘s Legal System: New Developments, New Challenges, Cambridge,

UK: Cambridge University Press.

Dynon, N. (2008) “‘Four Civilizations” and the Evolution of Post-Mao Chinese Socialist

Ideology’, The China Journal, 60, 83-109.

Fang Ke-Li (方克立) (2006) ‘The Three Letters about the Current Problem of Neo-

Confucianism on the Mainland (关于当前大陆新儒学问题的三封信)’, Academic

Exploration (术探索), (02).

Fang, K. (2010) ‘Marxist Soul, Chinese Ti and Western Yong: A Realistic Path of China’s

Cultural Development (‘馬魂、中體、西用’:中國文化發展的現實道路)’, Beijing

University Journal (Philosophy and Social Science), 4.

Gao, J. and Tong, D. (eds) (2010) China-Style Democracy (中国式民主), Tianjing: Tianjing

People’s Press.

Geertz, C. (1977) The Interpretation of Cultures, New York: Basic Books.

Gilley, B. and Holbig, H. (2009) ‘The Debate on Party Legitimacy in China: a mixed

quantitative/qualitative analysis’, Journal of Contemporary China, 18: 59, 339-358.

Han, D. (2005) A Study of the Constitutionalism of New Democracy (新民主主义宪政研究),

Beijing: People’s Press.

Han, D. (2008) The 1954 Constitution and Chinese Constitutionalism

(《1954宪法与中国宪政》), Wuhan: Wuhan University Press.

He, B. (2010) ‘Constitutionalism and Trascending the Competition of the Left and the Right

(宪政和超越左右之争)’, Jinyang Journal, 4, 21-24.

He, X. (2009) ‘Administrative Law as a Mechanism for Political Control in Contemporary

China’, in S. Balme and M. W. Dowdle (eds), Building Constitutionalism in China, New

York: Palgrave Macmillan, pp. 143-161.

Hipkin, B. (1984) ‘Book review of Justice and Politics in People’s China: Legal Order or

Continuing Revolution by James P. Brandy’, Journal of Law and Society, 11: 1, 124-127.

Ji, W. (2009) “‘To Take the Law as the Public”: The Diversification of Society and Legal

Discourse in Contemporary China’, in S. Balme and M. W. Dowdle (eds), Building

Constitutionalism in China, New York: Palgrave Macmillan, pp. 125-140.

Jiang, S. (2009) ‘The Unwritten Constitution of Chinese Constitution — A New Perspective to

Understand Chinese Constitution (中国宪法中的不成文宪法 –

理解中国宪法的新视角). 开放时代,’, 12, 10-39.

Jin, G. and Liu, Q. (2010) A study of conceptual history: the formation of the important political

concepts of modern China (观念史研究:中国现代重要政治术语的形成》),

Beijing: Law Press.

Legal Studies Institute of Chinese Social Science Academy (2008) Thirty Years of China’s Rule

of Law (《中国法治30年, 1978-2008》), Beijing: Social Science Academic Press.

Li, B. (2006) Constitutionalism and China, Beijing, Law Press.

Li, H. (2001) ‘The Political Stalinization of China: The Establishment of One-Part

Constitutionalism, 1948-1954’, Journal of Cold War Studies, 3: 2, 28-47.

Li, L. and Zhu, K. (2005) ‘The Transcendental Dimension of Constitutionalism and the

constitutional meaning of “people-centredness”(宪政的超越之维———

兼论’以人为本’的宪政意义)’, The Journal of Henan Politics and Law Cadre Management School, 1.

Lin, F. (2009) ‘Constitutionalism under the Leadership of the CPC: Is It Possible?’,

Constitutionalism in China in the past 100 years and its future.

Lin, F. (2000) Constitutional Law in China, Hong Kong: Sweet & Maxwell Asia.

Liu, J. and Yang, Z. (2004) ‘People-centredness’ and Constitutional Civilization

(以人为本与宪政文明), Jiangxi Social Science, 5.

Lo, W. C. (1997) ‘Socialist Legal Theory in Deng Xiaoping’s China’, Columbia Journal of Asian

Law, 11, 469-486.

Lubman, S. (2000) Bird in a Cage: Legal Reform in China after Mao, Stanford, California:

Stanford University Press.

Ni, D. (2009) A Study of Sinicization of Marxism (马克思主义中国化研究), Beijing: Central

Documents Publishing House.

Pan, W., (ed) (2009) China Model – Understand the 60 Years of PRC, Beijing: Central

Translation and Compilation Press.

Peerenboom, R. (2010) Social Foundations of China’s Living Constitution.

Peerenboom, R. (ed) (2009) Judicial Independence in China: Lessons for Global Rule of Law

Promotion, Cambridge, UK: Cambridge University Press.

Peerenboom, R. (2002) China’s Long March toward Rule of Law Cambridge, UK: Cambridge

University Press.

Qi, S. (2010) On the Chinese Model (《中国模式论》), Beijing: Zhongguo Fangzheng Press.

Qing, Q. and Ye, H. (2008) A Study of Socialist Constitutionalism (《社会主义宪政研究》),

Jinan: Shandong People’s Press.

Ren, X. (2010) ‘The Developmental Prospects of Socialist Constitutionalism with Chinese

Characteristics – From Mao, Deng to Jiang’, The Theory and Practice of Socialist

Constitutionalism with Chinese Characteristics, May 21-23.

Sayers, S. (2007) ‘The Concept of Labor: Marx and His Critics’, Science & Society, 71: 4, pp.

431-454.

Su, L. (Pseudonym of Zhu, S.) (2000) Sending the Law to the Countryside: A Study of Grass-

root Level Judiciary System (送法下乡:中国基层司法制度研究), Beijing: China

University of Political Science and Law Press.

The Politics and Law Committee of CPC Central (2009) Socialist Legal Ideas Reader

(社会主义法治理念读本), Beijing: China Chang’an Press.

Tong, D. (2010) ‘Introduction’, in J. Gao and D. Tong (eds), Chinese Democracy, Tianjin:

Tianjin People’s Press, .

Tong, Z. (2009) ‘China’s Constitutional Research and Teaching: A State of the Art’, in S. Balme and M. W. Dowdle (eds), Building Constitutionalism in China. New York: Palgrave Macmillan.

Wang, J. (2003) ‘The Relationship between Political Civilization and Constitutionalism

(政治文明与宪政的关系)’, Chinese Legal Studies, 6, 33-40.

Wang, Y. and Chen, H. (2004) ‘The Opinions and Reasons for Not Using the Notion of

Constitutionalism (关于不可采用’宪政’提法的意见和理由), The Trend of Theoretical

Studies (《理论研究动态》), .

Wartenberg, T. E. (1982) ‘“Species-Being” and “Human Nature” in Marx’, Human Studies, 5: 2,

77-95.

Wong, K. C. (2006) ‘Human Rights and Limitation of State Power: The Discovery of

Constitutionalism in the People’s Republic of China’, Asia-Pacific Journal on Human

Rights & the Law, 7: 1, 1-37.

Xi, W. (ed) (2007) A Study of Socialist Political Civilization with Chinese Characteristics

(中国特色社会主义政治文明研究), Beijing: The CPC Party History Press.

Xie, P. (2006-last update) The Basic Contents of the ‘Socialist Legal Ideas’

(社会主义法治理念的基本内容). Available at:

http://theory.people.com.cn/GB/49150/49153/4149328.html [01/03, 2011].

Xie, Y. (2004) ‘Could Constitutionalism Be Used as a Fundamental Political Concept of China

(能不能把’宪政’作为我国的基本政治概念)’, Political Studies, 3.

Xu, X. and Xie, L. (2005) ‘以人为本’的社会主义宪政理念实现的制度条件 –

从宪政的视角看马克思人的全面发展学说’, Philosophy Study, 7.

Yu, R. (1998) ‘The Conflicts and Integration of Natural Law, State laws, and Commonsensical

Sentiments the People: The Inner Core of Confucian Law and Traditional Resources of

Modern Legality

(天理、國法、人情的沖突與整合──儒家之法的內在精神及現代法治的傳統資源)’,

Chinese Cultural Forum, 4.

Yu, X. (2009) ‘Western Constitutional Ideas and Constitutional Discourse in China, 1978 –

2005’, in S. Balme and M. W. Dowdle (eds), Building Constitutionalism in China, New

York: Palgrave Macmillan, pp. 111-124.

Yuan, J. (2010) ‘“People-centredness” and Constitutionalism (以人为本与宪政)’, Theoretical

Investigation, 6.

Zhang, X. and Jiang, Z. (2002) ‘The Three-Represents Thought: The Foundation of China’s

Constitutional Thoughts (‘三个代表’思想:中国宪政创新之基础)’, Wuhan University

Journal, 55: 6, 641-647.

Zhao, Q., Naisbitt, J. and Naisbitt, D. (2010) A Dialogue between East and West: The China

Model, Beijing: New World Press.

Zhao, S. (1996) Power by Design: Constitution-making in Nationalist China, Honolulu, HI,

USA: University of Hawaii Press.

Zheng, Y. (2010) The Chinese Communist Party as Organizational Emperor: Culture,

reproduction, and transformation, London, UK: Routledge.

Zheng, Y. (2010) The Chinese Model: Experience and Dilemma (《中国模式的经验与困局》),

Hangzhou: Zhejiang People’s Press.

Zheng, Y. (2004) Will China Become Democratic? Elite, Class, and Regime Transition,

Singapore, London and New York: Eastern Universities Press.

Zhu, S. (2009) ‘“Judicial Politics” as State-building’, in S. Balme and M. W. Dowdle, eds,

Building Constitutionalism in China, New York: Palgrave Macmillan, pp. 23-35.


[1] The reason I prefer the title of ‘Sinicized Marxist Constitutionalism’ over other titles such as ‘Party-State Constitutionalism’ or ‘Socialist Constitutionalism with Chinese Characteristics’ has to do with its semantic range as well as preciseness, which will be clearer later.

[2] The latter is also recently translated and published in English. See Cai and Wang (Ed.), 2010, China’s Journey toward the Rule of Law : Legal Reform, 1978-2008.

[3] In fact, there are ‘indigenous’ elements built into Western constitutional ‘understandings,’ such that no explication of a particular constitution could be undertaken without the local, historical and cultural contextualisations (I thank an anonymous reviewer for pointing this out). For example, from the perspective of perceiving constitutionalism as the envisioning of the state, the French people regard the state more as a ‘reified political will’ than something to be feared and limited, and consequently rely more on grassroots political mobilization than judicial power to resolve some major problems (Balme and Dowdle, 2009, p. 10).

[4] The latter reading of the political controlling function of law is supported by He Xin’s (2009) in-depth study of administrative litigation in China as shown in his article ‘Administrative Law as a Mechanism for Political Control in Contemporary China.’ This idea is vividly captured by the title of Stanley Lubman’s (2000) book Bird in a Cage: Legal Reform in China after Mao.

[5] It is worth noting that after the People’s Supreme Court’s first invocation of constitutional provisions in its judicial interpretation to the ‘Qi Yuling case’ in 2001, the problem of ‘the judicialization of the constitution’ (xianfa sifahua宪法司法化) has been hotly debated and discussed; nevertheless, in response to the significant impact it generated, the Supreme Court annulled the interpretation together with a number of other interpretations in 2008.

[6] For example, see Chen Hongtai’s (2004) ‘Some Reflections on the Problem of Constitutionalism’ (‘关于宪政问题

若干思考’), Wang Yicheng and Chen Hongtai’s (2004) ‘The Opinions and Reasons for Not Using the Notion of

Constitutionalism’ (‘关于不可采用’宪政’提法的意见和理由’), as well as Xie Yi’s (2004) ‘Could Constitutionalism Be Used as a Fundamental Political Concept of China’ (‘能不能把’宪政’作为我国的基本政治概念’).

[7] The ‘Four Cardinal Principles’ includes the ‘leadership of the Communist Party, guidance of Marxism-Leninism and Mao Zedong Thought, people’s democratic dictatorship, and adherence to socialism.’ It was advocated by Deng Xiaoping in 1979 as the foundational or baseline principles for China’s reform and opening up. It was explicitly written into the Charter of the CPC, and implicitly included in the Preamble of the Constitution. For the latter, see ‘Ch. 2 The Fundamental Principles of Chinese Constitutional Law’ of Lin Feng’s (2004) book Constitutional Law in China.

[8] Taking the books for example, in 2010 alone, there are already books such as The Chinese Model: Experience and Dilemma, Dialogue: The Chinese Model, On the Chinese Model, Sixty Years’ People’s Republic and the Chinese Model, etc. 

[9] The boundaries among the five approaches may not be clearly delineated, nor are the categorization of the scholars to the approaches absolute; the preliminary categorizations are for general organizational as well as illustrative purposes.

[10] One should remember that the process of constitutional maturation is often lengthy, uneven, unpredictable and, ultimately, bloody. This is apparent in the half million casualties of the U.S. Civil War, and the many different constitutions of post-revolutionary France. (I thank the anonymous reviewer for pointing this out.)

[11] Balme and Dowdle (2009) further points out Dutch, Sweden, Italy, Japan and India as examples in which there is either no judicial review, little application of the power or little effect even after using the power (p. 3); furthermore, in emergent constitutional systems, the intervention of judicial review by the courts have often led to constitutional crises rather than positive progresses, as shown in the cases of South Africa in the 50s, India and Korea in the 70s, Russia and Peru in the 90s, and Philippines and Thailand in the recent decade (p. 3).

[12] A good anecdote for this is President Andrew Jackson’s purported statement in 1832 that ‘Mr. [Chief Justice John] Marshall has made his decision, now let him enforce it’ (qtd. in Balme and Dowdle, 2009, p. 4).

[13] In China, democracy is widely regarded as one of the three pillars of constitutionalism, with the other two being human rights and rule of law (Li, 2006).

[14] The continental tradition differs a little on this as the courts of continental Europe seem to play a lesser role in constitutionalism due to the ‘more pronounced preference for a political (as opposed to juridical) form of dispute resolution’ (Balme and Dowdle, 2009, p. 6).

[15] On this issue, as we shall see below, Jiang Shigong differs slightly, as he includes other political parties as holding some political citizenship as well.

[16] For Backer, Jiang Zeming’s ‘Three Represents,’ and Hu Jintao’s policy of ‘scientific development and harmonious society,’ which incorporate sustainable development, social welfare, a person-centered society, and increased democracy, etc., are such value frameworks derived from the vanguard Party.

[17] To be fair, it is worth pointing out that Backer does regard the ideology of the CPC, such as the ‘Three Represents,’ as a distinctive feature of the SMC, but I think he still emphasizes the rule of law values. This attitude is shared by Lin Feng (2009) in his article ‘Constitutionalism under the Leadership of the CPC: Is It Possible?’ in which the author contends that ‘it is possible for China to move towards constitutionalism provided that the CPC would genuinely pursue various reforms it has started in its various official polity reports,’ such as the rule of law values (p. 2).

[18] The assumed dichotomy of either the rule of law or despotism seems to have been taken for granted by the liberal paradigm; nevertheless, we should be aware that this preconception has excluded some plausible alternatives. For example, as I have shown and elaborated in another paper, the core of Confucian constitutionalism is to design a subtle cultural mechanism to contain the potential abuses of government power without excessive reliance on legal means; for some, the socialist legal system as practiced in China during Mao’s period is founded on a ‘radicalized version of Confucianism,’ and also representing a socialist alternative to the liberal paradigm (Hip, 1984, p. 125).

[19] For a more detailed discussion of the compound feature of China’s political reform as well as the overall Reform and Open Up movements of the late 1970s, see Tong Dezhi, 2010, ‘Introduction,’ pp. 8-23, where he argues that the compound feature is manifested not only in the overall strategy, institution system, and end goals of China’s reform, but also shown in the relationships between state and civil society, intra-party democracy and people’s democracy, democracy and rule of law, democracy and economics, and democracy and culture, etc.

[20] For a discussion of Stalin’s influence on this, see Hua-yu Li, 2001, ‘The Political Stalinization of China: The Establishment of One-Part Constitutionalism, 1948-1954.’

[21] On the similarities and differences between the CPC and the Emperor in the Chinese history, see Zheng Yongnian (2010), The Chinese Communist Party as Organizational Emperor: Culture, reproduction, and transformation.

[22] For a pioneer research on constitutionalism in authoritarian settings, see Suisheng Zhao (1996), Power by Design: Constitution-Making in Nationalist China.

[23] This is a major reason for my preference for using the title ‘Sinicized Marxist Constitutionalism,’ because only it precisely and comprehensively covers the whole period; other titles, such as ‘Party-state Constitutionalism’ and ‘Socialist Constitutionalism with Chinese Characteristics’ tend to be either not indicative of its philosophical foundation as the former, or not comprehensive enough as the latter which tends to be associated with Deng’s reform period in the Chinese context. For a more detailed elaboration on the evolution and continuity of Marxism in China, see Ni Degang’s (2009) book A Study of the Sinicization of Marxism.

[24] This core, according to Ren (2010), is not a sign of Mao’s pragmatic attitude towards constitutionalism as some liberal scholars criticize, but actually denotes a Marxist attitude and perspective on constitutionalism: first, constitutional movement should have different tasks at different period of time; second, there is close connections between democracy and constitutionalism; and third, it is a more comprehensive understanding of the intensions of constitutionalism over the liberal perspective (p. 1).

[25] This categorical system includes the Constitution, the National Polity (guoti国体), the state / government (zhengti政体), People, Citizen, democratic centrism, people’s congress system, rights, legislative power, judicial power, administrative power, chief of state, autonomous governance, etc.

[26] According to Chinese scholars, this theory system was developed during Deng’s time, but theorized afterwards.

[27] In this regard, the title of Wong’s article ‘Human Rights and Limitation of State Power: the Discovery of Constitutionalism in the People’s Republic of China’ is more a kind of stunt than an informative window to the content.

[28] For a similar but more moderate account, see the critical legal theorist James P. Brady’s (1982) Justice and Politics in People’s China: Legal Order or Continuing Revolution. Conceivably, as the critical legal theory is quite akin to Marxism than its liberal alternative, it could perhaps render much support to the fourth approach reviewed here.

[29] For an in-depth and sophisticated analysis of the actual working mechanisms of legal realm in the grass-root level, see Zhu Suli, 2000, Sending the Law to the Countryside: A Study of Grass-root Level Judiciary System.

[30] This is well shown in the growing number of articles containing ‘soft law’ in the title: before 2005, there is only five articles, and now the number has increased to 29 in total (statistics from China Academic Journals Full-text Database).

[31] I only provide a brief account of the organic relationship here, for a discussion of what each pole entails, see Zhang and Jiang, 2002, ‘The Three-Represents Thought: The Foundation of China’s Constitutional Thoughts,’ pp. 646-7. For a more detailed study of these general themes, see Xi, 2007, A Study of Socialist Political Civilization with Chinese Characteristics; Gao and Tong, 2010, Chinese Democracy, etc.  

[32] The victory of China in overcoming the so-called ‘Three Mountains,’ namely imperialism, feudalism, and bureaucratic capitalism, as well as the deviation of the Soviet Union from socialism caused by its abandonment of the Communist Party’s leadership all shows the indispensability of the leading role of the CPC in China (Wang, 2003, pp. 30-1).

[33] Statistics is from China Academic Journals Full-text Database.

[34] The conference is attended by over 120 leading legal scholars and practitioners in China, with some important political figures present in the opening ceremony, such as the Vice-president of the Central Party School, the former Director of the Central Military Committee Office, etc.

[35] Statistics is from China Academic Journals Full-text Database.

[36] For the latter, see Larry Backer’s ‘From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems,’ and ‘Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering.’

[37] The prominent Marxist Confucian scholar Fang Keli recently have advocated the thesis of ‘Marxism as the soul, Nationalist studies as the Ti (体), and Western studies as the Yong (用),’ which seems to be shared by a number of established scholars. See Fang, 2010, ‘Marxist Soul, Chinese Ti and Western Yong: A Realistic Path of China’s Cultural Development.’

Varieties of Constitutionalism: A Response to ‘Sinicized Marxist Constitutionalism’ by Chengyi (Andrew) Peng

By Terrell Carver

Chengyi Peng’s article ‘Sinicized Marxist Constitutionalism’ provides a very welcome window on recent and continuing political developments in China. As Peng explains, the whole idea of such an area of interest has been almost unthinkable within Western scholarship, and is only recently opening up in the last couple of years. This was because – from most Western perspectives – Marxism and constitutionalism did not go together in the first place, so one never really needed to look for it at all. There was no ‘it’ to look ‘at’ in any serious way.

It took quite a long time for serious study of the Soviet state bureaucracy, for instance, to emerge, as opposed to minutely detailed interest in the Communist Party there and its hierarchies, purges, intrigues, secret speeches and the like, all of which was taken to sum up the political realm. Only with perestroika and its various devolutions did Soviet studies begin to embrace a genuinely pluralist (as opposed to merely factional) model for Soviet politics, but the applicable time period was all too brief.

China is of course a double puzzle in this regard. Western access to the documents, elites and publics involved was even more limited by linguistic and cultural considerations than was the case with the Soviet Union, not to mention distance, lack of informants and state restrictions (which persist). And it was also limited by the persistence of the pervasive Western view about constitutions that ‘if it’s Marxist, then it’s sham’. Since the 1990s Westerners have had a further double puzzle. Given radical changes in economic policies and successive waves of ideological vacuity, in what sense is China still credibly Marxist? And if it is no longer Marxist, how then are we (in the Anglophone West) to understand its politics?

Perhaps we are unhappier than are the Chinese with our rather out-of-date selection of models – one-party state? devolved and competing bureaucracies? authoritarian capitalism? developing country? emerging economy? etc. The Western press focuses overwhelmingly on human rights protesters and government responses, because we understand that at once. It fits into our civil rights/civil disobedience discourse, and particularly after the Tiananmen Square protests and massacre of 1989 – now an iconic world-historical sequence of events – we are on the case 24/7. We were there beforehand in terms of demonstrations, protests and martyrdoms, as we built and developed constitutional regimes, and we are still there, having more or less regularised the balance – so we might think – between citizens’ rights (as derived from popular sovereignty) and legal obligations (as required for social order).

Or so we might have thought till the 9/11 securitisation and Global War on Terror brought home such practices as incarceration without trial (or credible trial of the usual sort), secret rendition and torture, remission of American citizens into military prisons, pervasive surveillance and ‘profiling’ for lists, etc. Whether and to what extent this represents some ‘re-balancing’ of the rule of law and constitutional rights, on the one hand, with public order considerations of security, on the other, is still a hotly debated question. And of course some of these issues unfold directly and indirectly in other constitutional states, e.g. Canada and in Western Europe. This is to say that even where the Western press likes to draw a line between ‘us’ and ‘them’, to some readers, anyway, the idea that the West exemplifies rule of law derived from stable constitutional structures, whereas China does not, seems more than somewhat debateable. The Chinese leadership, understandably, has not been slow to play this card, but I am not convinced that their comments are always reported to us in full, or indeed at all.

Peng’s article informs us about ‘Sinicized Marxist Constitutionalism’ as a Western-derived and therefore possibly common – or at least translatable – paradigm applicable to the developing political situation in China. It is thus offered as a way of summarising and understanding the history and trajectory of political practice in terms that supplant the Party-only model, or even the Party-State model, through which communist states were formerly and exclusively viewed. Crucially this paradigm focuses on rule of – or by – law within a constitutional framework that is said to have credibility, or is at least gaining credibility.

How much credibility and for whom are of course the operative questions. Peng argues that credibility seems to be growing in terms of the way that citizens and lawyers in China use legal processes which have a regularity and consistency that we recognise. Ultimately, within the paradigm, this must come from the judiciary interpreting the law and the state then respecting the judiciary’s interpretations, rather than power and influence flowing the other way. Thus we are looking at a practice of constitutionalism, not just the letter of any current one, and we might indeed be looking towards revisions, which are of course a normal part of constitutionalism. The paradigm itself does not have to fit current realities exactly; rather it characterises those realities one way, rather than another, and thus guides us into a predictive mode, where we think it likely that we will see more of the same – barring unpredictable and countervailing events, of course.

My response here is not to argue that this is or is not a good way to interpret Chinese politics at the moment, but rather to suggest that one aspect of opening this kind of window on China is that it should make us usefully question our own understandings of constitutionalism more closely, and in that way expose ourselves to things that we may already know as matters of detailed variation, but in this geopolitical context, are really matters of definitional significance. Put bluntly, I am saying that we have a considerable variety of significant constitutional variation already in the West, and that this derives both from formal differences in terms of texts and legal systems, and from circumstantial differences in terms of local or cultural practices and presumptions.

My starting point is to note that Peng explains that over the last 30 years a significant number of Chinese intellectuals have accepted the ‘liberal constitutional paradigm’, and are thus committing themselves to understanding and developing political practices in China in those terms (and on occasion to suffering notable consequences for this). The article lucidly details the ways that this ideal is interpreted and pursued in contemporary China. My task here is to reflect further on this ideal so that we guard against idealising ourselves and losing our critical sense of just where and why our own practices should come up for scrutiny. Taking a critical position about policies and practices elsewhere is fine, but we should use that opportunity to watch our backs even more closely, and thus to resist the temptation to glory in the way that others idealise what we say we stand for. Is our ideal really as consistent as that? Are our practices really exemplars of the varied and often conflicting ideals that we espouse?

Taking the constitutional route, criticism of China – even from within China, as Peng explains – focuses on the lack of judicial independence, compared to the West and particularly to the United States. But this discussion in China, as explained by Peng, seems to me to reflect an over-emphasis on the role of the US Supreme Court in reviewing and striking down both Federal and state legislation. These are not powers granted to the Court by the US Constitution at all, but were rather arrogated to the Court itself by early justices and their decisions – a process not uncontroversial at the time. Moreover both the stability and steady progress of democracy in America are highly questionable presumptions. The US Civil War was specifically constitutional in character (approximately 1/2 million casualties and untold internecine suffering), and for almost 100 years the Supreme Court consistently upheld racial segregation and prejudice (whereas the slave system had been controversial from its introduction in the 17th century). A quick review of French, German, Italian and Eastern European history reveals that Western democracy is highly fragile, and its course of development has been far from smooth. Commonplace judgments of stability require not just the long view, but an active process of erasure and forgetting.

While it is true that the UK is only just now establishing a supreme court independent of the legislative branch (which of course is famously not separated from the executive anyway), it is rather a mistake to see judicial independence as peculiarly American. It is in fact the foundational argument of John Locke’s (1988) Two Treatises of Government, first published in 1689, and widely reproduced and translated since that time. The ‘Second Treatise’ on ‘Civil Government’ is probably the most successful political tract in history, and is unquestionably the most massive stone in the foundations of liberalism. It argues that people form a civil society and then derogate their individual executive powers to a government, precisely so that this executive can protect their persons and property by enforcing the decisions of ‘known and indifferent’ judges (II§§124, 125).

Most commentators on democracy focus on the representative institutions through which laws are made, and on the party political processes through which governments come to hold the power to execute the law. Judicial processes and judicial independence thus tend to disappear, especially if formal review of legislation against constitutional provisions and rights is not part of the process, or is – as is usual – exercised with great restraint. Even worse, courts are sometimes dismissed as undemocratic (though many state judges in the US are directly elected), whereas they are in fact crucial to liberalism, conceived as a constitutional system that guarantees the rights of citizens against unwarranted government action. As Locke says, governments have but a ‘fiduciary power’ from the people to act only for the ‘publick good’ (II§§131, 149).

Arguing that courts are inherently ‘undemocratic’ is thus a mistake. Locke was rightly worried that governments would be tempted into the ‘absolute and arbitrary’ power (II§23 and passim.) that is the ‘evil other’ of his theory, and it is the independence of the judiciary – and the popularly enforced requirement that governments respect this – that generates the whole enterprise of liberal democracy (though Locke used neither word to describe his theoretical edifice). This of course may be off the point as to what either Chinese intellectuals or Western commentators think is going on. But then my point is that Peng’s article should be provoking us into thinking again, and thinking carefully.

Somewhat the same process is evidently going on in China. Political studies are more popular there than constitutional studies, because the authorities are not keen on documents and practices that ‘interfere’ with what they want to do. Constitutional and legal studies are indeed flourishing in the US, but then to what extent are they already informed with local and cultural content that has become normalised as ‘just part of the ideal’? In fact the British parliamentary system has been copied more often as a model of democratic practice throughout the world – even in post-war zones of sole or hegemonic American occupation such as Japan and Germany – than the US model, which has full separation of powers, a directly elected chief executive, judicial review at the highest level, and a highly devolved federal system. Peng rightly points this out. I would not enter into any debate about what local content is or is not helpful or appropriate (or even universally Chinese, supposedly) as argued through in current debates in China. But it is certainly the case that liberal democracy has recognisable French characteristics, as well as British and American ones, not to mention the intriguing constitutional issues raised by Aboriginal and Maori politics in Australia and New Zealand (obviously the cases can be multiplied considerably from here). From China it may all look ‘Western’, and the West in that view may well be exemplified in the US Constitution as amended. But trust me, it plays in Peoria, and not in Paris or Pisa or Poznań.

Ah, but what about the one-party state? I would not dream of defending this, but any discussion on this point should note that some Western democracies have had very long periods of quite uncompetitive one-party rule (e.g. Sweden, Japan), and that the supposedly crucial constituent of democracy –classically formulated by Joseph Schumpeter (2010, chapters 21-22) as a party-competitive system of elections – is rarely if ever embodied in constitutions themselves. How much difference there may in fact be between competing parties, how broad a choice voters actually have, how honest and accountable party leaderships are (not to mention how open their candidate selection procedures are), and numerous other debates about political parties are characteristic areas where the ‘Western liberal paradigm’ has simply not settled, or if it has, a lot of us are unhappy about it, wherever we are.

The founding theorists of liberalism were – to a man – hostile to faction and party. In a notable essay, Carole Pateman crisply remarked that, ‘For feminists, democracy has never existed; women have never been and still are not admitted as full and equal members and citizens in any country known as a “democracy”’ (Pateman 1983, 204). Her target was largely the party political presumptions and procedures that formed the basis from which governments were constructed and through which courts – however independent or not – construed legality. Given our own confusions and erasures regarding the party political process, we lack a sound basis for dismissing out of hand any of the current Chinese discussions on the party-state configuration.

Indeed the liberalism/Marxism boundary is itself more porous than many (inside China or within Western countries) might think. Marx was an economically-oriented left-democrat, committing himself to middle-class groups working for constitutional reform (and indeed for constitutions in the first place, over and against non-constitutional, highly authoritarian monarchies).[1] While Marx then – and Marxists along the line – have looked over and beyond liberal politics and its presumed free-market deficiencies and ideological smokescreens, it is not the case that the overall vision is illiberal as such. Rather there is overwhelming evidence that its socialist character was specifically intended as an advance – in theory anyway, whereas practice often works out otherwise, of course. The problem for Marxists was that liberal democracies preserved economic inequalities (which are now more extreme in many places than was the case in post-war times) at the expense of class-rooted exclusion and misery, not just ‘fair competition’.

Discussions along these lines may or may not be taking place in China, and may or may not be very genuine in all cases, but given a convergence of economic systems (or at least comparable levels of economic growth and social stratification), then there is more common ground here – as Peng argues – than many might assume. I put this kind of question personally to a Chinese interlocutor at a conference on contemporary capitalism taking place in China in 2006. My way of conceptualising this was to ask about concepts of social democracy such as ‘the left’ (outside the US, usually) rather takes for granted, even if the onward march of neo-liberalism (not to mention neo-conservatism) has made many ‘leftists’ feel beleaguered. ‘Ah’, my Chinese friend replied, ‘we’ve got over Lenin, but we’re not yet allowed Bernstein’ (see Bernstein 2009).

My conclusions here are that liberal democracy is necessarily a broad church, with considerable local content; that it rests on judicial independence at all levels as a bulwark against governmental usurpations; that Marxist jurisprudence is not necessarily a wilder shore than the more familiar systems of common law and Roman law; and that Peng’s article opens a window on varieties of constitutionalism tout court as a matter of common global interest.

References

Bernstein, E. (2009) [1911] Evolutionary Socialism: A Criticism and Affirmation, Whitefish,

MT: Kessinger Publishing.

Carver, T. (1998) The Postmodern Marx, Manchester: Manchester University Press.

Locke, J. (1988) Two Treatises of Government, ed. Peter Laslett, Cambridge: Cambridge

University Press.

Pateman, C. (1983) ‘Feminism and Democracy’, in Graeme Duncan (ed.), Democratic

Theory and Practice, Cambridge: Cambridge University Press.

Schumpeter, J. A. (2010) [1942] Capitalism, Socialism and Democracy, Milton Park:

Routledge.


[1] For an exposition of this view, see Carver (1998, chapter 6).

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