The Rule of Law, The Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (The “Three Represents”), Socialist Rule of Law, and Modern Chinese Constitutionalism

Abstract

Since the middle of the last century, the ideal of constitutional legitimacy has been grounded on the foundation of the concept of the rule of law. The rule of law is usually understood in two senses: first, as embracing firm limits on an arbitrary use of power, that is, of the use of the state power when not grounded in law (process aspect); and second, as vesting the state with a critical role as guardian of a set of foundational communally embraced substantive norms that are to be protected and furthered through the use of state power grounded in law (substantive aspect). The Chinese Constitution of 1982 has, as a formal matter, embraced the idea of the rule of law in its process aspect. The Preamble declares that the Constitution is the fundamental law of the state and has supreme legal authority and Article 5 as amended in 1999 emphasizes the People's Republic of China practices ruling the country in accordance with the law and building a socialist country of law. However, it is more difficult to discern even a formal adoption of the rule of law in its substantive aspect. As a consequence, outsiders have questioned the fidelity of the Chinese state to the rule of law because of the control by the Chinese Communist Party (CCP) of the apparatus of law making in China. In one sense these arguments can be reduced to a criticism of Chinese constitutionalism as illegitimate because it lacks a basis in moral and ethical norms outside of the personal desires of the leaders of the CCP. This paper suggests that traditional criticism misperceives the fundamental nature of Chinese Constitutionalism as it attempts to fashion its own distinct socialist rule of law constitutionalism. Fundamental to this socialist rule of law is the core premise the connection between the apparatus of the state (its institutions) and that of the Chinese Communist Party (as the Party in power). The paper examines the way the normative basis of this socialist rule of law has been advanced through the use of increasingly sophisticated and complex specific ideological frameworks into the constitution. This may suggest a greater willingness to advance the implementation of ideology, and the substantive structure it represents, through state power grounded in law. However, because the norm structures of Chinese ideology articulated through the CCP remain either alien or antithetical to their usual Western counterparts, they remain opaque outside of China. To examine the parameters of this possible shift in Chinese constitutionalism, the paper will examine one element in this process of incorporation - the inclusion of sange daibiao (the 'Three Represents') into the governance structures of the CCP after 2000 and the Chinese Constitution after 2004. Like the earlier constitutional assimilation of Deng Xiaoping Theory, the adoption of sange daibiao may serve, at least as a formal matter, to further incorporate substantive rule of law elements into Chinese constitutionalism. Sange daibiao illustrates the way in which China is seeking to construct socialist rule of law through a commitment to an institutional structure of the state in which the CCP serves not as a mere Western style political party but as an integral organ of state power. The focus is on the reality of the CCP within the state. Sange Daibiao provides an ideological basis, a deep constitutional foundation, for the position of the CCP at the center of the constitutional apparatus of the Chinese state. But it does more than that - it also provides the basis through which the rule of law, as a framework for the proper relationship between state institutions (representing the collective) and the individual (as an instrument of that collective). As developed by the organs of the CCP, it is clear that Sange Daibiao can provide the principles through which the framework of commonly understood rule of law constitutionalism can be adopted with Chinese characteristics.