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Political but incontestable: A review of ‘political constitutionalism’ in China
Published online by Cambridge University Press: 19 October 2020
Abstract
Although all constitutional issues are political in essence, ‘political constitutionalism’ as a school is specifically critical of court-centred understandings. Such a school of political constitutionalism has emerged in Chinese constitutional debates since 2008. Its rapid development has both enriched and challenged Chinese constitutional studies, but it has also left certain impacts on the political reality of China. Is this school comparable to the Western political constitutionalism tradition and how is ‘the political’ defined? By discerning three political registers from the school’s main arguments as the ‘constitutional moment’, ‘polity’ and ‘governance’, this article aims to critically examine the aims and functions of political constitutionalism in China and to argue that while constitutional reflexivity requires contestability, the political registers of this wide-ranging school in fact deny it.
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- © The Author(s), 2020. Published by Cambridge University Press
References
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13 Ibid 114.
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30 Tong (n 10) 106.
31 Li Fa Fa (2015 Xiu Zheng) [Law on Legislation of the People’s Republic of China (2015 Amendment)], arts 98 and 99, adopted by the National People’s Congress, 15 March 2015.
32 Zhai (n 27) 60.
33 Ibid 60–61.
34 Ibid 62–63.
35 Ibid 17 (author’s translation).
36 Ibid 64 and 67 (author’s translation).
37 Ibid 64 and 66 (author’s translation).
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40 Ibid 106.
41 Ibid 110.
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45 Ibid 2285.
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50 Larry Cata Backer, ‘Toward a Robust Theory of the Chinese Constitutional State: Between Formalism and Legitimacy in Jiang Shigong’s Constitutionalism’ (2014) 40(2) Modern China (Special Issue) 168 at 171.
51 Gao (n 25) 29.
52 Quanxi Gao, ‘Lüe Lun Dang Dai Zhong Guo Fa Li Xue De Ji Ge Ji Ben Wen Ti’ [‘A Brief Discussion on Several Basic Questions of Contemporary Chinese Jurisprudence’] (2010) 6 Huan Qiu Fa Lü Ping Lun [Global Law Review] 5 at 9.
53 Gao (n 25) 10.
54 Ibid 218 (author’s translation).
55 Ibid 4 (author’s translation).
56 Ibid 28 (author’s translation).
57 Ibid 144.
58 Ibid 154. See also Gao, Quanxi, ‘Lun “Gong Min”: Ji Yu Zheng Zhi Xian Fa Xue De Shi Ye’ [‘On “Citizenship”: In a Perspective of Political Constitutionalism’] (2014) 5 Fa Xue Ping Lun [Law Review] 25Google Scholar at 29.
59 Gao (n 25) 157 (author’s translation).
60 Quanxi Gao, Li Xian Shi Ke: Lun Qing Di Xun Wei Zhao Shu [Constitutional Moment: On the Abdication of the Qing Emperor] (Guangxi Normal University Press, Guilin, 2011) 148.
61 Quanxi Gao, ‘Ge Ming, Gai Ge Yu Xian Zhi: “Ba Er Xian Fa” Ji Qi Yan Jin Luo Ji – Yi Zhong Zheng Zhi Xian Fa Xue De Jie Du’ [‘Revolution, Reform and Constitutionalism: “The 1982 Constitution” and Its Logic of Evolution Interpreted in a Perspective of Political Constitutionalism’] (2012) 5 Zhong Wai Fa Xue [Peking University Law Journal] 907 at 907.
62 Gao (n 25) 190.
63 Feilong Tian, ‘Zhong Guo Xian Fa Xue Li Lun Liu Pai De Xing Cheng’ [‘The Formation of Chinese Constitution Theory School’] (2009) 0 Shandong Da Xue Fa Lü Ping Lun [Shandong University Legal Review] 54 at 61–71.
64 Feilong Tian, ‘Zhu Quan, Zhi Xian Quan Yu Zhong Guo Xian Fa De Gen Ben Fa Jie Gou – Dui Chen Duanhong Zheng Zhi Xian Fa Xue Si Xiang De Yi Ge Jie Du’ [‘Sovereignty, Constituent Power and Fundamental Laws in Chinese Constitutional Structure: An Interpretation of Chen Duanhong’s Political Constitutionalism’] (2014) 4 Zhong Guo Fa Lü Ping Lun [China Law Review] 178 at 186.
65 Backer (n 50) 174.
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68 Jiang (n 19) 19.
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70 Jiang (n 67) 109 (author’s translation).
71 Ibid 118 (author’s translation).
72 Ibid 120 (author’s translation).
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77 Ibid 153.
78 Ibid 156.
79 Ibid 153 (author’s translation).
80 Ibid 156 (author’s translation).
81 In November 2017, Professor Zhu Suli published his book titled Da Guo Xian Zhi: Li Shi Zhong Guo De Zhi Du Gou Cheng [Constitution of the Great Powers: Institutional Configurations of China in History]. This book views ‘family’ instead of individual citizens as the basic unit for organizing the Chinese-styled ‘governance’ model, which is taken as equivalent to the Western-styled ‘constitutionalism’. The publication of this book also indicates that the constitutional question gradually shifted from the periphery to the centre of Zhu’s research.
82 See Sida Liu, ‘Mei Guo “Fa Lü Yu She Hui Yun Dong” De Xing Qi Yu Pi Pan: Jian Yi Zhong Guo She Ke Fa Xue De Wei Lai Zou Xiang’ [‘The Rise and Critique of the “Law and Society Movement” in the United States: On the Future Directions of Law and Social Sciences in China’] (2016) 1 Jiao Da Fa Xue [SJTU Law Review] 20.
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85 As Zhai puts it, claims of ‘juridification-of-constitution’ are closely related to a conception of democracy as ‘aggregated wills (Jia Zong Shi Min Zhu)’, which is an ideology typical of the capitalist consumer society. See Zhai (n 27) 105–06 (author’s translation).
86 Dieter Grimm, ‘The Achievement of Constitutionalism and its Prospects in a Changed World’ in Petra Dobner and Martin Loughlin (eds), The Twilight of Constitutionalism? (Oxford University Press, Oxford, 2010) 9 (emphasis added).
87 Ibid 20.
88 Ibid 9.
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90 Martin Loughlin, ‘The Concept of Constituent Power’ (2014) 13 European Journal of Political Theory 218 at 230.
91 Ibid 229.
92 Ibid 228.
93 Ibid 228.
94 Miguel Poiares Maduro, ‘Europe and the Constitution: What if This Is as Good as It Gets?’ in JHH Weiler and M Wind (eds), European Constitutionalism beyond the State (Cambridge University Press, Cambridge, 2003) 95.
95 Neil Walker, Cormac Mac Amhlaigh and Claudio Michelon, ‘Law, Polity and the Legality of Statehood: An Introduction’ (2018) 16 International Journal of Constitutional Law 1148 at 1150.
96 Ibid 1148–49, quoting YH Ferguson and RW Mansbach, Remapping Global Politics: History’s Revenge and Future Shock (Cambridge University Press, Cambridge, 2004) 24.
97 Kaarlo Tuori, ‘Whose Voluntas, What Ratio? Law in the State Tradition’ (2018) 16 International Journal of Constitutional Law 1164 at 1168.
98 Ulrich K Preuss, ‘Disconnecting Constitutions from Statehood: Is Global Constitutionalism a Viable Concept?’ in Dobner and Loughlin (eds), The Twilight of Constitutionalism?, 33.
99 Ibid 34.
100 Neil Walker, ‘Constitutionalism and the Incompleteness of Democracy: An Iterative Relationship’ (2010) 39 Rechtsfilosofie & Rechtstheorie 206 at 229.
101 Neil Walker, ‘Europe’s Constitutional Momentum and the Search for Polity Legitimacy’ (2005) 3 International Journal of Constitutional Law 211 at 212.
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105 Nico Krisch, ‘Law and Polity: Contingency, Fiction, Loss’ (2018) 16 International Journal of Constitutional Law 1223 at 1226.
106 Ibid 1227–28.
107 Ibid 1231.
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109 Ibid 230.
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114 Schmitt (n 43) 128.
115 Ibid 110.
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118 Ibid Thesis 2.
119 Ibid Thesis 7.
120 Ibid Thesis 7.
121 Archi-politics refers to ‘a form of communitarian rule that subordinates politics by assigning agents to their proper part within the whole’, while para-politics is ‘the attempt to reduce political antagonism to mere competition, negotiation, exercise of an agonic procedure’. See Andrew Schaap, ‘Hannah Arendt and the Philosophical Repression of Politics’ in Jacques Rancière and the Contemporary Scene: The Philosophy of Radical Equality, edited by Jean-Philippe Deranty and Alison Ross (Continuum, London, 2012) 151–59.
122 Rancière (n 117) Thesis 8 (emphasis added).
123 Ibid Thesis 1 (emphasis added).