2 - A Dual Constitution with Illiberal Characteristics

Summary

This chapter considers the Constitution, the highest law in the legislative hierarchy, and (inescapably) its relationship with the Chinese Communist Party (CCP). Due to China’s economic development over recent decades, it has been difficult for traditional theories, either communist or liberal ones, to accurately reflect the constitutional reality in China. Concepts such as the “unwritten constitution” or “living constitution” in the Western context are unable to provide a holistic view of China’s Constitution, especially after 1978. China’s Constitution, centred on the CCP and the state, has been largely transformed since this time. This chapter goes beyond the liberal approach and argues that a dual constitution has developed in China, within which the Party’s Constitution attempts to keep pace with that of the state. More specifically, the Party has been endeavouring to integrate itself into the State through political conventions and “intraparty regulations” (dangnei fagui). This dual constitution is unique in the sense that it departs from the model articulated by Mao Zedong, deviates from that of the Soviet Union and does not follow the formalistic approach adopted by Western countries in defining the nature of a constitution.