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7 - The Constitution of China

from Part II - Historical Experiences

Published online by Cambridge University Press:  30 September 2019

Roger Masterman
Affiliation:
University of Durham
Robert Schütze
Affiliation:
University of Durham
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Summary

Does China have a constitution? That depends on the way in which the word ‘constitution’ is understood. It is commonly thought that China did not have a written constitution until 1908, when the last dynasty enacted the Outline of Imperial Constitution (qinding xianfa dagang), but this does not mean that traditional China was not governed by basic rules and norms. As I argued previously, the Confucian cultural tradition that dominated China for over 2,000 years was centred on the fundamental moral precepts of humanity (ren) and righteousness (yi), around which an elaborate body of rules on rites, ceremonies, etiquette, and other aspects of human behaviour was developed.1 Taken together, they formed a vast normative system of ‘propriety’ (li, sometimes translated as ‘rites’),2 which stood for a set of customs, conventions and procedures to be practiced in daily life for the purposes of cultivating moral virtue, directing and containing human passions, and preserving a well-ordered society. Indeed, these rules were collected in a dense Book of Rites (Li Ji) and enforced by generations of the Confucian gentry, to various degrees of efficacy. To that extent, the traditional China did have a constitution – even a written constitution, if ‘constitution’ is meant to be a set of fundamental rules that govern society.

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Publisher: Cambridge University Press
Print publication year: 2019

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References

Cai, D., ‘The Development of Constitutionalism in the Transition of Chinese Society’ (2005) 19 Columbia Journal of Asian Law 1.Google Scholar
Chen, H. (Albert), An Introduction to Legal System of the People’s Republic of China, 4th ed. (LexisNexis Butterworths, 2011).Google Scholar
Cho, Y.N., Local People’s Congresses in China: Development and Transition (Cambridge University Press, 2010).Google Scholar
He, H., ‘The Dawn of the Due Process Principle in China’ (2008) 22 Columbia Journal of Asian Law 57.Google Scholar
Lieberthal, K., Governing China: From Revolution Through Reform, 2nd ed. (W.W. Norton & Co, 2003).Google Scholar
Liebman, B.L., ‘China’s Courts: Restricted Reform’ (2007) 21 Columbia Journal of Asian Law 1.Google Scholar
O’Brien, K.J., Reform without Liberalization: China’s National People’s Congress and the Politics of Institutional Change (Cambridge University Press, 2008).Google Scholar
Zhang, Q., The Constitution of China: A Contextual Analysis (Hart Publishing, 2012).Google Scholar

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