Chinese Constitutionalism Research Articles

Конституционный контроль в Китайской Народной Республике. Влияние конфуцианства и практическая реализация

The article examines the historical stages of the development of the constitutional control of the People’s Republic of China, beginning with the Republic of China and the confrontation between the two parties — the Kuomintang and the Communist Party of China. In this regard, it provides an overview of the legal status and competence of the Council of Great Judges of the Trial Chamber, as well as a description of the procedure of the body under Taiwan law. Some features of the structure and content of the Chinese constitutions in their dynamics are further revealed. In 2018, the Constitution of the People’s Republic of China (hereinafter — PRC) was amended, including the Preamble, which now proclaims the direction of socialist culture based on the dualism of moral and legal norms, and perfection of the mechanism of application of the Constitution is one of the vectors of development of the Chinese version of the «legal state». So now we can see how China’s legal world is changing. The article concludes that Chinese constitutional control in its modern form does not function effectively due to a number of institutional and cultural reasons.

Adaptation of International Law in the Chinese Constitution and Legal System: New Developments

Abstract The relationship between a national constitution and international law reflects a nation’s self-positioning in the international legal regime and its reception of international law in the local context. The adaptation of international law in the Chinese Constitution and legal system determines China’s engagement and participation in the international law regime and indicates the country’s treaty performance. This paper provides an overview of the position and status of international law, including both treaties and customary international law, in China’s current 1982 Constitution and domestic legal system. It also analyzes current practice of international law in China’s judicial practice. By reference to recent developments in the PRC Constitution and domestic laws, especially the 2018 Constitutional Amendment, this article attempts to provide a contextual analysis on the standing of international law in the Chinese Constitution and legal system, in the hope that the understanding of the interplay between international law and the Chinese constitutional and legal system will help scholars and policymakers to pursue opportunities for cultural communication and reconciliation to seek normative consensus in the formation of international law.

An Objective Diagnosis Model with Integrated Metabolic and Immunity Parameters for Phlegm-Dampness Constitution.

Background According to Chinese constitutional theory, people can be divided into nine constitutions, which represent distinctive vulnerability to different diseases such as metabolic syndrome, atherosclerosis, and immunity-related disease, and so forth in modern medicine, phlegm-dampness constitution (PDC) is one of the nine constitutions, which is susceptible to metabolic syndrome (MS) and atherosclerosis that associate with lipid metabolism and immunity dysregulation closely. Objectives In this study, we aimed to investigate the metabolic and immunity profiles of phlegm-damp constitution (PDC), including metabolites, lymphocytes distribution, and inflammatory cytokines. Methods A total of 74 patients with PDC and 66 individuals with gentle constitution (GC) were enrolled in this study. We utilized biochemical methods to detect metabolic parameters, flow cytometry to survey T/B/NK/NKT lymphocyte subgroups distribution, and ELISA to assay inflammatory cytokines. Results The subjects with PDC had higher GLU, AI TC, TG, and LDL-C and lower HDL-C levels. The immunity profile indicated that PDC subjects had higher percentage of WBCs, neutrophils, lymphocytes, B cells, and natural killer T cells compared with subjects with GC (P < 0.05). Serum levels of IL-10 decreased significantly in the subjects with phlegm-damp constitution, whereas IL-12 levels increased dramatically in the PDC group compared with the GC group (both P < 0.05). Additionally, logistic regression identified four independent variables (GLU, TG, LDL-C, and lymphocytes) that were highly correlated with PDC (P < 0.05). The area under the curve of the receiver operating characteristic curve was 0.878, which indicated the data were reliable to distinguish the subjects with PDC from the ones with GC. Conclusion Phlegm-damp constitution was prone to hyperglycemia and hyperlipidemia syndrome, promoting the occurrence and progression of metabolic-related diseases. Interestingly, proinflammatory cells and cytokines were activated in the PDC group as well. Our findings could offer a profile of early screening indicators to identify high-risk patients of metabolic- and immunity-related diseases from Chinese constitution.

Liang Qichao’s outlook into the republican revolution in Portugal

Having lived during the last years of the Qing dynasty and the subsequent and troubled Republic of China, Liang Qichao was, alongside his better well-known contemporary Sun Yat-sen, one of the most influential public intellectuals of his time. An insightful observer and defender of monarchical constitutionalism, Liang watched with concern the fall of the Braganzas monarchy in Portugal and the republican revolution of October 5, from which he sought to draw lessons for his own country. This article focuses on the essay Causes of the Portuguese Revolution and its Future (in chinese 葡萄牙革命之原因及其将来 Putaoya geming zhi yuanyin ji qi jianglai), written by Liang Qichao days after the Portuguese revolution, and attempts to analyze it in the light of the political thought of the Chinese intellectual. We also expect to contribute with a new perspective on the 1910 Revolution in Portugal by introducing this essay to Portuguese-speaking audiences. Keywords: Liang Qichao; first portuguese republic; Chinese constitutionalism

Heaven beyond the law: Chinese constitutionalism as a form of legal and cultural pluralism

Heaven beyond the law: Chinese constitutionalism as a form of legal and cultural pluralism

ВЕХИ СТАНОВЛЕНИЯ КОНСТИТУЦИОННОГО ЗАКОНОДАТЕЛЬСТВА КИТАЯ: ВЗГЛЯД ЧЕРЕЗ СТО ЛЕТ СО ДНЯ СОЗДАНИЯ КПК

This article highlights the chronology of the formation of Chinese constitutional legislation under the leadership of the Chinese Communist Party and on this basis analyzes the active role of the CCP in this process. The author studied the development of the Chinese Constitution and the related legislation. This process has gone through a thorny path: inception (1927-1949), formation (1949-1966), stagnation (1966-1978), further development (1978-2012), and finally improvement (2012 - present). The main research methods were formal-legal (used to study the texts of the laws of China from 1927 to the present). The author identified the advantages and disadvantages of rule-making activities in the field of public law in China. In the course of the study, the author found that the creation of the CPC was a landmark event in the history of both the country and the whole world in 1921. In 2021, the CPC celebrates its centennial anniversary. As this difficult century has shown, comprehensive governance of the state on a legal basis is a key guarantee, essential for the commitment to this path and for its development, an indispensable condition for the modernization of the system and the potential of state governance. It is established that, under the leadership of the CPC, China tirelessly sought new solutions and invested great efforts in creating a rich and strong state, reviving the Chinese nation, and improving the people's well-being. During the founding of the People's Republic of China, in the period of reform and openness that followed, and in the new era of socialism with Chinese characteristics, the party played a key, decisive role in fulfilling all the tasks associated with the formation of these laws. As a result of the analysis, the author concludes that the party leadership, the people as the rightful owner of their country and the government of the state on the basis of law are closely related to each other and constitute an organism characterized by internal unity. As the experience of creating constitutional legislation shows, China needs to adhere to the organic unity of these three elements in practice. It is necessary to improve the system of implementation, control and guarantee of legal governance, to protect the authority of constitutional legislation. It is necessary to maintain and improve the institutional framework of the National People's Congress, continuously modernize the technique of lawmaking and improve its quality, and continue to deepen and develop scientific and democratic legislative work, recognize the importance of China's own conditions and national specifics, and study the fruits and experience of creating foreign constitutional legislation.

Regime-Centered and Court-Centered Understandings: The Reception of American Constitutional Law in Contemporary China†

Abstract American constitutional law haunts the contemporary Chinese constitutional imagination. China’s reception of American constitutional law occurred in two major stages. In the first stage, which spanned from the 1980s to the early 1990s, Chinese intellectuals understood American constitutionalism as a particular political regime to be politically criticized or objectively appraised, with the tripartite separation of powers overwhelmingly highlighted as a core feature of the American constitutional-political system. In the second stage, which began in the late 1990s, a paradigmatic shift from a political, regime-centered perspective to a legalized, court-centered approach occurred in China’s introductions to and studies of American constitutionalism. The U.S. Supreme Court and the concept of judicial review now primarily preoccupy most Chinese constitutional minds; these features of the American system have formed the focal points of reference for Chinese constitutional reform. This shift from the first stage to the second reflects both ideological and social changes since the economic reform in China, as well as international impacts.

Chinese Political Constitutionalism and Carl Schmitt

Carl Schmitt’s influence in China goes far beyond the circle of political philosophers. Two prominent Chinese constitutional theorists, Gao Quanxi and Chen Duanhong, have used Schmitt’s theory to develop their theories of Chinese constitution. ftey identify their theories as Chinese political constitutionalism. Although Schmitt is not the sole theoretical source for Chinese political constitutionalism, his influence is significant. ftis article aims to explore this important but much neglected connection between Schmitt and Chinese political constitUtionalism.

The 2018 Constitutional Amendments

The 2018 constitutional amendments in China have attracted strong criticism both at home and abroad. This paper first uses contextual, historical, and empirical analysis to examine whether the three major amendments are as bad as widely perceived, and whether or not they will have a significant impact on actual constitutional practice in China. The paper then analyses how the constitutional amendments may challenge the two existing theories on Chinese constitutionalism. The paper argues that although none of the constitutional amendments will have any practical importance, they do send out a very negative signal, and that the trend of a constitutionalised fused system demands at least revision of the existing theories and possibly a new theory, for the purpose of not only justifying Chinese constitutional practice but also leading China towards at least a thin rule of law.

To Seek the Future in the Past: Thoughts on Xu Zhangrun: ‘Our Current Fears and Expectations’ (评许章润:我们当下的恐惧与期待)

In July 2018, Professor Xu Zhangrun (许章润) Professor of Jurisprudence and Constitutional Law at Tsinghua University, posted an essay, Our current fears and expectations (我们当下的恐惧与期待). The essay appeared on the website of the Unirule Institute of Economics (天则经济研究所), an independent think tank in Beijing. It was then translated into English by Geremie R. Barme, Editor, China Heritage on 1 August 2018 and posted to its website with an elegant and thoughtful introduction by the translator (Imminent Fears, Immediate Hopes — A Beijing Jeremiad). Xu very tightly packed within the few pages of its essay a set of complex and sophisticated theoretical arguments whose elaboration and interpretation critically affects key structures of Chinese politics, economics and societal objectives. Professor Xu focuses not merely on theoretical aspects of Chinese constitutionalism in the New Era, but also its necessary consequences for the political work of the vanguard in the context of the overarching policy of Reform and Opening Up, and with it, socialist modernization. The essay quickly became quite well known in China, and abroad. The essay is important and worthy of reflection, even for those inclined to reject its claims, in whole or part. In this contribution to that necessary discussion, Flora Sapio (UniNaples, Italy) and Larry Cata Backer (Penn State, USA) for the Coalition for Peace & Ethics have each produced reflections on the many important ideas, and provocations, in Professor Xu's essay. These reflections touch on core evolving concepts of Chinese constitutionalism — the mass line, democratic centralism, and the evolution of Leninism as theory and as method. They touch on the character of China's Go Out policy as well — especially in the form of its current Belt and Road Initiative. Lastly, the reflections, like Professor Xu’s essay, touch on the critical issue of the role of the intellectual classes in the process and operation of constitutionalism, an issue with important ramifications in the West as well as in China.

Constituição, constitucionalismo e efetividade na China: ilações entre cultura tradicional, práxis política e discurso constitucionalista no contexto chinês

O presente artigo constrói uma comparação entre o discurso nomológico oficial da Constituição chinesa vigente e as diferentes abordagens sobre o papel da Constituição e dos direitos humano-fundamentais desenvolvidas pelos constitucionalistas chineses. Parte, como principal estratégia metodológica, da configuração de uma amostragem de obras construídas na literatura jurídica chinesa sobre a Constituição e os direitos humano-fundamentais naquele país. Ademais, incrementa-se a análise a partir da reflexão sobre a influência das diferentes tradições políticas e culturais chinesas nas igualmente diferentes perspectivas do constitucionalismo chinês contemporâneo. Como principais resultados verifica-se não só a existência de posições conflitantes na cultura constitucional chinesa como a presença majoritária de uma abordagem pragmática e utilitarista do discurso dos direitos humano-fundamentais e de uma primazia tanto das dinâmicas políticas, como econômicas, sobre as balizas constitucionais, que ainda possuem na China pouca capacidade vinculativa ou dirigente.

Chinese Constitutionalism in the New Era: The Emerging Idea and Practice of Constitution in the 19th CPC Congress Report

The 19th Congress of the Chinese Communist Party concluded at the end of October 2017. It set the fundamental policy positions of China’s leadership for the next five years with particular emphasis on its approaches to constitutionalism, law, and the political theory of the state. These internal political changes will have substantial effects on China’s external relations and on the ways in which Western liberal democracies engage with China. In that context among the most important questions for law revolve around the extent and character of the evolution of CPC thinking, and the CPC Basic Line, with respect to Socialist Rule of Law and Socialist Constitutionalism. The question arose in the context of a key document of the Congress, the Work Report delivered by Xi Jinping reflected in the resulting final Resolution of the 19th Congress. To what extent did this report reflect an official downshifting of the importance of the state constitution and constitutionalism within the construction of Chinese notions of Constitutionalism, and if so, what variation on constitutionalism is likely to emerge? As interesting was a follow up question around the effects of any such downshift on the relation between the state and the political constitutions of China. To that end, it is worth considering whether principles of constitutionalism for the “New Era” may be extracted from Xi Jngping’s Report to the 19th Congress. And if they can, to try to extract a sense of the likely characteristics of emerging structures of Chinese constitutionalism. What follows, then is a preliminary report and assessment of Constitutionalism with Chinese Characteristics in the New Era from Out of the 19th CPC Report. It is organized in five sections, (1) a brief introduction to the issues and context of Chinese constitutionalism before the 19th Congress, (2) a consideration of the role of constitutionalism within the structures of the 19th CPC Congress Report, (3) a close reading of the specific references to constitutions in the Report (state, political and mixed), (4) a consideration of the connection between constitutionalism and the emerging characteristics of Chinese consultative democracy, and (5) brief concluding remarks.

WHAT THE (EXPLETIVE) IS A “CONSTITUTION”?! ORDINARY CADRES CONFRONT THE 1954 PRC DRAFT CONSTITUTION

AbstractFollowing the history of western constitutional history, studies of Chinese constitutionalism have tended to focus on its intellectual origins, or, more commonly these days, its failure to restrain official behavior. Drawing upon new archival materials, this article takes a different tack. I zero in on a critical period of constitutional gestation, when officials read the 1954 constitution in draft form, posed questions about its text and suggested revisions. How did officials react when told that citizens, many of whom were recently persecuted, now enjoy “freedom of assembly”? These materials allow us to see “the state” in real time: How did officials understand core legal concepts such as “right,” “constitution” and “citizen” as well as their role in the new polity? In many respects, the discussion surrounding the draft constitution turned out to be a venue for officials to talk about the meaning of the revolution they had just experienced.

Party Norms and Constitutional Conventions

This paper considers the role of constitutional conventions in the British and Chinese constitutional orders. It challenges a growing, recent body Chinese literature that describes the modern Chinese constitution using ideas developed in the late 19th Century to describe the British constitution. It highlights ways in which these ideas are used to describe very different phenomena, then identifies certain Chinese political rules that might be described in conventional terms. In doing so, it questions assumptions about the nature of conventions in the United Kingdom. It uses the Chinese and British material to question the orthodox, customary account of conventions, which focuses on social practice. Finally, it explains why a satisfying account of conventions needs to explain why Conventions are binding, and sets out the consequences of this conclusion for either constitutional order.

Lorenz Von Stein and Chinese Constitutional Movement: A Reexamination of Legal History

This article aims to explore the relationship between Lorenz von Stein and Chinese constitutional movement. It will undertake an historical comparison of events in order to interpret the development of the Chinese constitution during the late Qing and the early period of the Chinese Republic. It is well known that the Chinese constitution (1905-1916) was greatly influenced by the Meiji constitution, but it is often overlooked that the Meiji constitution was actually directly influenced by the German constitution, especially by Stein’s thoughts on political theory. It has always been acknowledged that Stein had an influence on Chinese constitution; however, the relationship was often associated with the connection between Germany, Japan, and China. In this article, we try to explore his influence on those who drafted the Meiji constitution to further understand Stein’s indirect influence on the Chinese constitution through those Japanese pioneers. In particular, we discover the dynamic law of historical change which presents in Stein’s writings, if we review the interactive law between state and society in the Chinese constitutional history.

Towards a Cosmopolitan Constitutionalism: On Universalism and Particularism in Chinese Constitutionalism

The article investigates whether there is a convergent or divergent trajectory in modern constitutionalism. In the first theoretical part, it examines the arguments favouring cosmopolitanism and contrasts it with those that endorse autochthony or exceptionalism as an essential aspect of sound constitutionalism. Having explored this theoretical dimension, the article turns to China as a revealing case study for examining evolving constitutionalism. It focuses on three aspects—constitutions, judiciary, and international law—to examine constitutional changes in China to see if there is evidence of these divergent or convergent trajectories in constitutionalism. It concludes by noting the powerful influence of cosmopolitanism in China, how this influence is more significant in economic, financial, and commercial areas, and notes the continuing authority of the state in resisting such changes.

Crafting a Theory of Socialist Democracy for China in the 21st Century: Considering Hu Angang's (((() Theory of Collective Presidency in the Context of the Emerging Chinese Constitutional State

In the West democratic constitutionalism is grounded on the premise that democracy occurs outside of the organs of state, through elections and discourse. Chinese constitutional theorists have begun to elaborate a distinct view — that democratic constitutionalism may also be grounded on the premise that democracy occurs within the organs of state and the political apparatus of the nation, through collective and representational decision making. Hu Angang has most recently expressed a theory of socialist democracy around the notion of a collective presidency. This essay considers Hu Angang’s theory and defense of the role of the CCP in China’s constitutional system, with particular focus on the evolution of the premises of collective action merged with democratic theory and applied to the operations of a party-state system. Its object is to theorize internal democratic structures of the CCP, and through them, of the government as a whole. Its focus is on the development of collective leadership. Part I first considers the theoretical underpinning of the theory of collective presidency — grounded in China’s history, context and its political ideology. The object is to better situate the history and utility of a collective presidency within the political structures and ideological premises of Chinese constitutionalism, and then to consider the connection between that construction and global principles of constitutional democracy. Part II then considers the arguments advanced for the efficiency and representation-reinforcing elements of the collective presidency — collective succession, collective labor division and cooperation, collective learning, collective research, and collective decision-making. Part III briefly considers the work that remains to be done as the CCP continues to scientifically develop the theory of democratic socialism and attends to the harder task, not of drawing theory form facts, but of living theory through practice. The essential insight of the Chinese move toward a distinct socialist democracy is not that that there can only be one best approach, but its opposite — that it is not which state is more democratic in accordance with a singular formula, but whether every state develops democratic structures effectively responsive to its own conditions. It is only in this context that comparison becomes useful.

Jiang Shigong 强世功 on “Written and Unwritten Constitutions” and Their Relevance to Chinese Constitutionalism

Chinese constitutionalism is usually analyzed and found wanting in the West. The deficiencies of Chinese constitutionalism stem in part from its differences from the forms and sensibilities of governmental organization common in the West. But constitutionalism ought not to be reversed engineered to support a particular approach to its operationalization. This article considers the extent to which Chinese constitutionalism is both true to emerging global principles of constitutionalism and how those principles might be applied in a distinctly Chinese way while remaining true to the objectives of transnational constitutionalist principles. The constitutionally significant distinction at the root of the Chinese way of constitutionalism lies in its separation of powers doctrine, one that divides power between political and administrative functions and which does not vest the whole of the power of state in a government. The examination is undertaken through a close engagement with Jiang Shigong’s study of the foundations of Chinese constitutionalism within the context of universalist principles of legitimate constitutional expression.

How to Explore the Chinese Path to Constitutionalism? A Response to Larry Catá Backer

Larry Catá Backer and the author share nearly the same thoughts on Chinese constitutionalism, even though they approach this topic from different backgrounds and perspectives. In this article, the author reflects on how his legal-sociological approach to Chinese constitutionalism and his positioning of the Chinese Communist Party as de facto sovereign in China were first formulated in response to the argument about “constitutional adjudication” in Chinese legal academic circles more than a decade ago. As a response to Backer’s review, the author discusses the points that concern Backer—such as the grand theoretical background of the European structuralist conception of power and Rousseau’s theory of sovereignty, the subtle relation between Chinese lawyers and Chinese constitutionalism—and clarifies his difference with Backer on the party. The author argues that, in order to explore the Chinese path to constitutionalism, we need to think about some fundamental theoretical questions: Are we on the way to the end of history? What lessons should we take from the experience of Western countries with constitutionalism? How can one “Sinicize” universal values and reinvigorate Chinese classical civilization as an organic part of Chinese constitutionalism?

Toward a Robust Theory of the Chinese Constitutional State

The state of constitutional theory is in flux. What was once the preserve of those who organized the state became the expression of mass democracy and the popular will, one that has been increasingly constrained by international consensus on the limits of political will within national borders. The stakes are high—constitutional legitimacy is fundamental to internal political stability and to international acceptance. Among the most contested forms of modern constitutional states are party-state systems grounded in Marxist-Leninist theory. This article considers Jiang Shigong’s development of a coherent and legitimating constitutionalist theory of China’s party-state system. It considers Jiang’s argument that constitutionalism must start with values and structure and then considers the mechanics through which it is institutionalized—either in writing or through structuralist approaches. It also examines Jiang’s construction of a formal-functional theory of Chinese constitutionalism that acknowledges the democratic basis and the representative character of the Chinese Communist Party within the party-state system. Jiang’s theoretical developments point to the deepening of an understanding of the legitimacy of Chinese constitutionalism. Jiang Shigong is part of a small group of Chinese academics who are working along distinct paths to move beyond the “legitimacy” issue of Chinese constitutionalism and tackle the much harder but more important question of the continued development of Chinese constitutionalism along the lines of its own logic. Critical to that project are notions of civic education and the consequences of the separation of powers at the heart of Chinese constitutionalism—one that distinguishes between the administrative power of the government, including the administration and rule of law, and the political power of the Chinese Communist Party, including the nation’s constitutional norms.