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Towards a Developmental Theory of Constitutionalism: The Chinese Case

Published online by Cambridge University Press:  28 March 2014

Extract

CONSTITUTIONS, CONSTITUTIONAL REFORM AND CONSTITUTIONAL conflict are once again commanding attention. The celebrations of the bicentennial of the American constitution, the implementation of constitutional reform in Canada, the Labour government's programme for constitutional change in the United Kingdom, the seemingly intractable conflict in Northern Ireland, and transfers of sovereignty to the European Union from its constituent states, testify to this. Equally, if not more challenging, have been the upheavals in Eastern Europe and the former Soviet Union and its reconstituted states, the ‘third’ wave of democratization across the developing world, the experiment in participatory constitutionalism in South Africa and the return of Hong Kong to China. Of the 179 countries that elect their governments out of a total of 192 countries in the world, 176 have codified constitutions. Constitutions, however, that are not fully mature or operative and are not based on the principles or drafted with the advice of those nations that have developed and entrenched their constitutions tend to be disregarded, or even dismissed. Moreover, writing a constitution is one exercise, implementing, and interpreting it is a far more complex and delicate undertaking. So how are social scientists to evaluate the process?

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Copyright © Government and Opposition Ltd 1998

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References

1 This is a revised version of a paper presented to the ‘Conference on Constitutional Transition: Hong Kong 1997 and Global Perspectives’, Hong Kong, 29 May–1 June 1997. I am grateful to the British Academy for its support. It is based on a research visit as part of the exchange programme between the British Academy/ESRC and the Chinese Academy of Social Sciences, March 1996 and participation in a conference on ‘The Legal System of Village Committees in China’, Department of Basic‐Level Governance, Ministry of Civil Affairs, July 1995. I wish to thank Rosemary Foot, Barbara Krug and the anonymous reader for their comments and encouragement.

2 See in particular Loveland, Ian, ‘Parliamentary Sovereignty and the European Union: The Unfinished Revolution?’, Parliamentary Affairs, 49:4 (10 1996) pp. 517–35CrossRefGoogle Scholar.

3 Bogdanor, Vernon, ‘The Warp and the Weft’, The Times Higher Education Supplement, 21 03 1997 Google Scholar. The three exceptions are Britain, Israel and New Zealand; see also Sartori, Giovanni, Comparative Constitutional Engineering: An Inquiry into Structures, Incentives and Outcomes, Basingstoke, Macmillan, 1994 Google Scholar.

4 Hart, Vivien and Stimpson, Shannon (eds), Writing a National Identity, Manchester, Manchester University Press, 1993 Google Scholar.

5 The extension of a constitutional system at the level of the local state appears particularly apt in view of the advocacy of local self‐government by China reformers and constitutionalists at the turn of the century. See Kuhn, Philip A., ‘Local Self‐Government under the Republic: Problems of Control, Autonomy, and Mobilization’, in Wakeman, Jr and Carolyn, Grant Frederic (eds), Conflict and Control in Late Imperial China, Berkeley and Los Angeles: University of California Press, 1975, pp. 257–98Google Scholar.

6 For attempts to deal with these difficulties comparatively see Greenberg, Douglas, Katz, Stanley N., Oliviero, Melanie Beth and Steven, C. Wheatley, (eds), Constitutionalism and Democracy, New York and Oxford, Oxford University Press, 1993 Google Scholar; Beer, Samuel H., To Make a Nation, Cambridge, Mass. and London, Harvard University Press, 1993 Google Scholar.

7 For a critique of biasing analysis see Donald, Stephanie, Public Secrets: Secret Places: Chinese Cinema and Civil Society in the post‐Maoist Era, forthcomingGoogle Scholar.

8 Dearlove, John, ‘Neo‐classical Politics: Public Choice and Political Understanding’, Review of Political Economy, 1 (1989) pp. 3737 CrossRefGoogle Scholar. Dearlove, also offers a satisfactory approach to constitutions, i.e. ‘Constitutions can be conceived of as systems of restraining and enabling rules’. ‘Putting Humpty Together Again. Homo Sociologicus, Homo Economicus and the Political Science of the British State’, European Journal of Political Research, 27 (1995) p. 496 CrossRefGoogle Scholar; for an attempt to reintroduce the political analysis of power into the study of markets, see White, Gordon, ‘Towards a Political Analysis of Markets’, IDS Bulletin, 24:3 (07 1993) pp. 411 CrossRefGoogle Scholar.

9 For the purposes of this paper we have to beg the question whether constitutions can be viewed as impeding as well as advancing development.

10 Hart, Vivien, ‘Constitutions’, Women’s Studies Encyclopedia, New York and London, Simon & Schuster, forthcomingGoogle Scholar See also Benewick, Robert and Donald, Stephanie (eds), Belief in China, Brighton, England, The Green Foundation, 1996, p. 29 Google Scholar.

11 For example, Putney commenting on the American constitution: ‘The Constitution was an intellectual construct intended by its authors as a working document; only in this century has it been enshrined as a national monument revered for its perfection’. Putney, Jeremy, ‘The Moral Vacuum and the American Constitution’, The Political Quarterly, 68:1 ( 05 01 1997 ) p. 68 Google Scholar.

12 For a recent analysis see Zheng, Shuping, Party as State in Post‐1949 China, Cambridge, Cambridge University Press, 1997 CrossRefGoogle Scholar.

13 Wade, E. C. S. and Bradley, A. W., Constitutional and Administrative Law, eleventh edition by Bradley, A. W. and Ewing, K. D., London, Longmans, 1993, p. 5 Google Scholar. Russell, Peter H. invests constitutions with three elements: institutional arrangements, the distribution of governmental power and a statement of fundamental rights. ‘Constitutions and Constitutionalism’, in and Kuper, J. (eds), Encyclopaedia of Social Sciences, London, Routledge & Kegan Paul, 1985, pp. 157–8Google Scholar.

14 The 1954 constitution established a government structure based on a modified Soviet model. The 1975 constitution significantly altered this in line with the Cultural Revolution. The 1978 and more fully the 1982 constitutions revert to the 1954 model. Political rights, however, draw more generally from abroad and from Chinese tradition. Nathan, Andrew, Chinese Democracy, London, I. B. Tauris, 1986, ch. 6.Google Scholar

15 Clarke, Donald C., ‘Justice and the Legal System in ChinaBenewick, Robert and Wingrove, Paul (eds), China in the 1990s, Basingstoke, Macmillan and Vancouver, University of British Columbia Press, 1995, pp. 8393 Google Scholar.

16 It may be argued that it is in keeping with a Chinese constitutional tradition for between 1908 and 1949 there were seven constitutions and constitutional drafts. Nathan, Chinese Democracy, pp. 108–9.

17 CCP Central Document 8, ‘Several Opinions of the Central Committee over Law Making Work, 1991’, as analysed by Tanner, Murray Scott, ‘The Erosion of Communist Party Control over Lawmaking in Chinay’, China Quarterly, 13 06 1994 ) pp. 397403 Google Scholar.

18 There have been three party constitutions: 1956, 1982, 1997. These provide authoritative statements of the ideological directions of the party‐state. For example the 1956 constitution reads ‘The Communist Party of China takes Marxism‐Leninism as its guide to action’. The 1982 document adds ‘Mao Zedong thought’, and ‘Deng Xiaoping theory’ joins the lexicon in 1997.

19 The 1975 Constitution asserts that the National People’s Congress is the highest order of state power under the leadership of the Communist Party. The 1978 constitution returns to the 1954 formula, deleting under the leadership of the Communist Party. At the same time the 1978 constitution carries over the article from 1975 that the Chairman of the Communist Party commands the People’s Liberation Army.

20 For example, the writing of big character posters guaranteed in article 45 of the 1978 constitution was abandoned following the trial of Wei Jingsheng in 1979.

21 Edward, J. Epstein, >Epstein, ‘Law and Legitimation in Post‐Mao China’, in Potter, Pitman B. (ed.), Domestic Law Reforms in Post‐Mao China, Armonk, NY and London, M. E. Sharpe, 1994, p. 36 Google Scholar. We take our own definition of the rule of law from Thompson, E. P., ‘the imposing of effective inhibitions on power’, Whigs and Hunters, London, Allen Lane, 1975, p. 266 Google Scholar.

22 For a recent statement of this emphasis see Jiang Zemin’s report to the 15th National Congress of the Communist Party of China on 12 September 1997. China Daily, ‘15th Party Congress Supplement’, 23 September 1997.

23 Summary of World Broadcasts Far East (hereafter SWB), 2568, 18 March 1996; SWB 2796 December 1996.

24 Goodman, David S. G. (ed.), China’s Provinces in Reform, London and New York, Routledge, 1997, p. 12 CrossRefGoogle Scholar.

25 Benewick, Robert, ‘Political Institutionalisation at the Basic Level of Government in China’, in White, Gordon (ed.), The Chinese State in the Era of Economic Reform, Basingstoke, Macmillan, 1991, pp. 243–64CrossRefGoogle Scholar.

26 Buyun, Li, ‘Constitutionalism and China’, Beijing, Chinese Academy of Social Sciences, unpublished manuscript, 1993, p. 20 Google Scholar.

27 Dowdle, Michael, ‘Constitutional Development and Operations of the National People’s Congress’, unpublished manuscript, 1997 Google Scholar>, O’Brien, Kevin J., Reform without Liberalization, New York and Cambridge, Cambridge University Press, 1990 CrossRefGoogle Scholar. Tanner, , ‘The Erosion of Communist Party Control over Lawmaking in China’; and ‘How a Bill Becomes Law in China: Stages and Processes in Lawmaking’, in Lubman, Stanley B. (ed.), China’s Legal Reforms, Oxford, Oxford University Press, 1996, pp. 3964 Google Scholar.

28 SWB 2796, December 1996.

29 See note 14. For a discussion of the relationship between Party policy and the law see Li Buyun, ‘Constitutionalism and China’, p. 22.

30 Dowdie, ‘Constitutional Development’, p. 6.

31 Ibid., p. 133; see also Tanner, Murray Scott, ‘Organizations and Politics in China’s Post‐Mao Law‐making System’, Potter, Domestic Law Reforms, pp. 5689 Google Scholar.

32 Benewick, Robert, ‘The Tiananmen Crackdown and its Legacy’, in Benewick, Robert and Wingrove, Paul (eds), China in the 1990s, Basingstoke, Macmillan, 1995, pp. 520 CrossRefGoogle Scholar. The passage of the Martial Law Act clarifies the role of the Standing Committee. SWB 2558, 12 March 1996 It also confirms my argument about the confusion of state responsibility. The immediate legislative consequence was the passage of the Demonstration Law in October 1989.

33 Dowdle, ‘Constitutional Development’, pp. 13–14. See also Tanner N., p. 64.

34 For a conceptualization of the local state at the county level in China see Blecher, Marc and Shu, Vivienne, Tethered Deer, Stanford, Stanford University Press, 1996 Google Scholar; While Jean C. Oi identifies the village, township and county‐level governments as the local corporate state. See The Role of the Local State in China’s Transitional Economy’ in Walder, Andrew G. (ed.), China’s Transitional Economy, Oxford, Oxford University Press, 1996, pp. 170–87Google Scholar.

35 For the decline of the Communist Party at the grassroots level see Pei, Minxin, ‘Racing Against Time: Institutional Decay and Renewal in China’, in Joseph, William A. (ed.), China Briefing: the Contradictions of Change, Armonk, NY and London, M. E. Sharpe, 1997, pp. 44–8Google Scholar. A recent Village Committee election in Hubei Province was declared invalid after a series of protests by villagers against the election of the party‐approved candidate, Far Eastern Economic Review, 160:22 (29 May 1997).

36 Saich, Tony, ‘Most Chinese Enjoy More Personal Freedom than Ever Before’, International Herald Tribune, 1–2 02 1997 Google Scholar.

37 State Statistical Bureau, China Statistical Yearbook 1996, Beijing, China Statistical Publishing House, 1996, Tables 11:6 and 11:31. The gross output value for town and village level enterprises was 4.17 billion yuan, Table 11:31. This Table does not appear in the China Statistical Yearbook 1997. However, the gross output value of agriculture for 1996 is given as 2.34 billion yuan, Table 11:6. It is also possible to compare the gross industrial output value which shows an increase from 2.38 billion yuan in 1995 to 2.76 billion yuan in 1996 Table 12:1.

38 Krug, Barbara, ‘The TVEs and China’s Economic Development’, China European International Business School, Discussion Paper, Shanghai, 1996, p. 3 Google Scholar.

39 China Rural Villagers Self‐Government Research Group, China Research Society of Basic‐Level Government, Study of the Election of Villagers Committees in Rural China, Beijing, Ministry of Civil Affairs, 1993, p. 12 Google Scholar.

40 See Kelliher, Daniel, ‘The Chinese Debate over Village Self‐Government’, The China Journal, 37 (01 1997) pp. 64–8Google Scholar.

41 Research Group on the System of Village Self‐Government in Rural China (China Research Society of Basic‐Level Government): Study on the Election of Villagers Committees in Rural China, 1993; Report on Villagers Representative Assemblies in China, 1994; Legal System of Village Committees in China (draft), 1995.

42 Research Group on the System of Village Self‐Government in Rural China (China Research Society of Basic‐Level Governance), Legal System of Village Committees in China (draft), 1995, p. 107.

43 Public security is a shared function between the township and the village. See White, Gordon and Benewick, Robert, Central‐Local Relations and Local Government Reform in China: Rural County‐Level Government, Brighton, Institute of Development Studies, China Research Report, 1995, p. 52 Google Scholar.

44 China News Digest, 24 October 1996.

45 SWB 275, 24 October 1996.

46 See also Krug, Barbara, ‘Why Provinces? Diversity, Institutional Change, and Decentralisation’, Provincial China, 4 (10 1997 Google Scholar) Goodman, David, ‘How Open is Chinese Society?’, in Goodman, David and Segal, Gerald (eds), China Rising, London, Routledge, 1997, pp. 2752 Google Scholar.

47 For a discussion of the prospects for democratic development in micro states, see Kelliher, , ‘The Chinese Debate over Village Self‐Government’, pp. 84–6Google Scholar.

48 For the value of a constitutions approach and constitutional theory, see Dearlove, , ‘Neo‐classical Politics’, p. 231 and ‘Putting Humpty Together Again’, passim Google Scholar.

49 See also Jahiel, Abigail R., ‘The Contradictory Impact of Reform on Environmental Protection in China’, in China Quarterly, 149 (03 1997) pp. 81101 CrossRefGoogle Scholar.

50 For an outstanding analysis see Ghai, Yash, Hong Kong’s New Constitutional Order, Hong Kong, Hong Kong University Press, 1997 Google Scholar.

51 Weber, Max described China as a ‘familistic state’ where the family is a miniature state and the state an enlarged family. Tait, H. C. (ed.), Confucianism and Economic Development, An Oriental Alternative?, Washington, DC, The Washington Institute Press, 1989, p. 15 Google Scholar, cited by Leung, Joe C. B., Family Support for the Elderly in China: Continuity and Change, Hong Kong, University of Hong Kong Monograph Series, Social Welfare in China, No. 5, 1996, p. 8 Google Scholar.

52 Dicks, Anthony R., ‘Compartmentalized Law and Judicial Restraint: An Inductive View of Some Jurisdictional Barriers to Reform’, in Lubman, (ed.), China’s Legal Reforms, pp. 82109 Google Scholar.

53 Jacques de Lisle and Kevin P. Lane have identified three paradigms of a rule of law for Hong Kong: the China Model, the Singapore Model and the Augmented Hong Kong Model. ‘Cooking the Rice without Cooking the Goose: the Rule of Law, the Battle over Business, and the Quest for Prosperity in Hong Kong after 1997’, in Cohen, Warren I. and Zhao, Li (eds), Hong Kong Under Chinese Rule, Cambridge and New York, Cambridge University Press, 1997, pp. 3170 CrossRefGoogle Scholar.

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