Chinese Constitutionalism in a Global Context

Peng Chengyi

• Publisher: Routledge
• Year: 2018
• Print ISBN:
  9781409454106
• eBook ISBN:
  9781317167075
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

Over the course of the last four decades as China's ideological realm has been transformed, it has become significantly more complicated. This is well illustrated in the current discourse concerning China's constitutional future. Among Chinese intellectuals the liberal constitutionalism paradigm is widely accepted. However, more recently, this perspective has been challenged by mainland New Confucians and Sinicized Marxists alike. The former advocate a constitutionalism that is based upon and loyal to the Confucian tradition; while the latter has sought to theorize the current Chinese constitutional order and reclaim its legitimacy. This book presents a discussion of these three approaches, analyzing their respective strengths and weaknesses, and looking to the likely outcome. The study provides a clear picture of the current ideological debates in China, while developing a platform for the three schools and their respective constituencies to engage in dialogue, pluralize the conceptions of constitutionalism in academia, and shed light on the political path of China in the 21st Century. The consequences of this Chinese contribution to the global constitutionalism debate are significant. Notions of the meaning of democratic organization, of the nature of the division of authority between administrative and political organs, of the nature and role of political citizenship, of the construction of rights are all implicated. It is argued that China's constitutional system, when fully theorized and embedded within the global discourse might serve, as the German Basic Law did in its time, as a model for states seeking an alternative approach to the legitimate construction of state, political structures and institutions.

1
Introduction

Background

With nearly four decades of rapid economic growth, China has emerged as a great power on the world stage with rising impact throughout the world. Meanwhile, China also faces enormous challenges domestically due to its sheer size and rapid development amid drastic societal and economic transitions. Can the current political structure cope with those challenges? What would be a socialist China’s impact on the West-dominated liberal world order? These million-dollar questions have attracted the attention of many outsiders and insiders alike. For some, the answers to these questions hinge on the political path the Chinese leadership would steer China towards. Perhaps few would disagree that the Chinese leadership has no realistic choice other than constitutionalism. But which constitutionalism, since in China there is more than one constitutionalism discourse, such as liberal constitutionalism, Confucian constitutionalism, and socialist constitutionalism? This book thus will seek to examine China’s constitutionalism choice and its implications for the world.

Indeed, a prominent event in China’s ideological realm has been a heated debate on constitutionalism after the new leadership taking office in 2012. Not long after the new political leadership of China was elected in the 18th National Congress of the Chinese Communist Party in November 2012, the 2013 Southern Weekly incident occurred. The incident led to the threat of strikes by the newsroom staff of the Southern Weekly,¹ as well as actual demonstrations outside the newspaper’s headquarter in Guangzhou, China. On the surface, it was about press freedom, a conflict between the Propaganda Department of Guangdong Province and the Southern Weekly, in which the original New Year’s special editorial was changed under the pressure from the propaganda officers. On a deeper level, however, it is an ideological competition related to constitutionalism, since the special New Year’s editorial tried to graft the hot notion of “Chinese Dream” made popular by the new General Secretary Xi Jinping with the heavily value-laden Western political terminology of constitutionalism. As a result, the title of the editorial changed from “Chinese Dream, Constitutionalism Dream” to “We are Closer to the Dream than Any Other Times.”

The reason for the incident to emerge is the liberals’ partly wishful and partly strategic optimism about the prospects of Xi’s political reform as inspired from his open-minded remarks in a speech delivered on the 30th anniversary of the 1982 Constitution in December 2012. Xi’s remarks that “No organisation or individual has the privilege to overstep the Constitution and the law, and any violation of the Constitution and the law must be investigated” and that “the life of the Constitution lies in its implementation” excited the liberal reformists who read the speech as a sign of his determination to undertake a liberal overhaul of the political system. This triggered an open letter of constitutional reform demands signed by 72 liberal intellectuals,² as well as the Southern Weekly incident mentioned earlier. They urged the Chinese Communist Party (CCP) to uphold constitutional government, ensure the rights enshrined in the Chinese Constitution, and set up checks and balances on the power of the party-state. In response, a loose coalition of conservatives, including party ideologues and leftist intellectuals, responded by unleashing a spate of ferocious counterattacks in a number of key party publications. Adopting an ideological stance, they argued that constitutional government was a by-product of Western capitalism, incompatible with China’s own practice of socialism, and that China’s political system must reflect the country’s social and cultural conditions. They argued that the campaign for constitutional government was part of a malicious Western plot to subvert the CCP, just as Gorbachev’s constitutional reform brought about the dissolution of the Soviet Union.

Even as China has entered the New Era with the successful completion of the 19th congress of the CCP in the autumn of 2017, the debate is still going on with neither side convincing the other side, which is a well reflection of the ideological nature of the debate. There is almost no systematic or theoretic engagement among the arguments of the different constituencies. This is particularly the contribution the current work seeks to make. In terms of the background of the debate, if we locate it within the larger ideological context of China since the reform and opening-up, as well as its recent history, we can see that the debate is by no chance accidental and in fact has deep historical reasons.

As we all know, after nearly four decades of economic reform and opening-up to the outside world, it is clear that China’s ideological realm has been significantly transformed and complicated. This is well manifested in the wide acceptance of the liberal constitutional paradigm among Chinese intellectuals, which is so deep and profound that it is fair to say the notion of “constitutionalism” has become a pronoun for Western Liberal Constitutionalism in mainland China. This has induced some established³ political scholars in China to call for a banning of “constitutionalism” as a basic political terminology in China and for state leaders to shy away from the notion as early as the turn of the new millennium. This is also why contents related to “constitutionalism” face stricter scrutiny in the mainland press.

As a matter of fact, the aspiration of constitutionalism as an ideology dates back to about a hundred years ago, when Chinese intellectuals were aspiring and trying to help China recover from the chaos inflicted by colonialism, imperialism, and civil war and transform it into a stable and strong state. Nevertheless, while China has doubtlessly succeeded in finding a way for rejuvenating its national strength, the aspirations for constitutionalism has persisted among the liberals, who seek to build a constitutional government based on Western models. Some of them have issued Charter 08 (lingba xianzhang 零八 宪章) in 2008 in China and generated some significant impact both domestically and overseas. For example, Liu Xiaobo, one of the main drafters, received the Nobel Peace Prize in 2010 for largely the same acts that led him to an 11-year prison sentence in China. To some, the latest proposals of the liberal camp in the recent heated debate of constitutionalism has not gone beyond the tenets of the Charter (Tong, 2015).

The dominance of Western Liberal Constitutionalism in China, however, has been challenged from two unexpected quarters. One is from the cultural conservatives. Historically it is widely thought that Confucianism and constitutionalism are incompatible, even antithetical, since Confucianism is usually associated with authoritarianism, rule of man instead of rule of law, collectivism, hierarchical role-based order, over-emphasis on obligation, and so on, while constitutionalism is founded on the rule of law, individual rights, equality, and so on. This view is indeed a prominent feature of Chinese thought from the New Cultural Movement of the early 20th century to the “Asian Values” debates of recent decades. Even today it still holds some currency among many intellectuals both in and outside China. For example, those subscribing to the view of the overseas New Confucians do not question whether liberal democracy, as practiced in the West, should be the form and direction of China’s political future, but rather focus on the compatibility between the two traditions and the liberal democratic roots found within the Chinese tradition, centered on Confucianism.⁴ This view was first well expressed in the Manifesto to the World on Behalf of Chinese Culture issued in 1958 by the four great New Confucian philosophers, and since then, many works have been devoted to this endeavor, for example, Joseph Chen, Li Minghui, Lee Seung-hwan, Cheng Chung-ying, Yu Kam-por, Heiner Roetz, and Huang Chun-chieh all have written on some aspects of this theme. However, in recent years, some intellectuals are breaking the yoke of this dominant view by exploring the constitutional resources within Confucianism and challenging previous conceptual frameworks. And we can identify three main approaches on the issue of Confucian Constitutionalism in contemporary academia, namely the institutional approach, the ritualistic approach, and the religious approach. These various approaches all make valid discoveries and have unearthed excellent constitutional resources within the Confucian tradition; however, each approach seems to have its respective limitations, and only a combination of them could render a full picture of Traditional Confucian Constitutionalism, which would have some significant implications.

The second challenge to the dominance of Western Liberal Constitutionalism in China comes from the established orthodox school of Sinicized Marxism. Because both the liberal and tradition-based schools display a certain level of hostility toward Marxism, they implicitly deny the legitimacy of the current constitutional framework of China and consequently ignore its achievements particularly in the past four decades, such as the progress in regard to the rule of law. However, in recent years, in light of the signifi-cant progress of the constitutional framework of China, including its values and practices regarding the rule of law, this dominant liberal perspective has been challenged. Stephanie Balme and Michael Dowdle (2009), for example, have devoted their book Building Constitutionalism in China to exploring the empirical impacts of the emerging constitutionalism on many aspects of Chinese society, including its juridical, political, and social realms. A US constitutional scholar, Larry C. Backer, has also sought to establish a party-state model to grant legitimacy to China’s current constitutional development in the international community. This effort has been echoed by the separate articulations of Jiang Shigong, Lin Feng, Chu Jianguo, Randall Peerenboom, and so on as well. Mainstream legal scholars in China have made similar efforts and convened a conference on “Socialist Constitutionalism with Chinese Characteristics” in May 2010 in Changsha City of Hunan Province, although many scholars attending the conference are still thinking within the liberal constitutional paradigm. As a result, we can see that a new Sinicized Marxist constitutional paradigm is emerging.

While not utilizing the notion of “constitutionalism” to the same degree, the notions of Western Liberal Constitutionalism, Traditional Confucian Constitutionalism, and Sinicized Marxist Constitutionalism indeed represent well three “flags” in the ideological realm of contemporary China that have each attracted its own large constituencies. It is in this sense that I compare the three constitutional discourses to three “kingdoms,” the competition of which to some extent resembles the Romance of the Three Kingdoms (Sanguo yanyi 三国演 义) actually occurred in the Chinese history.⁵ In this research project, my task has thus been seeking to sort the three “constitutional kingdoms” out and help the audience to have a clearer picture of them as well as attain a more informed forecast of the result of the grand game.

The importance of this research project is quite obvious. It has the potential to make contributions in regard to five primary issues. First, since China’s current regime is perceived to lack legitimacy by some critics both in the West and within China, especially those hard-core advocates of Western Liberal Constitutionalism and Traditional Confucian Constitutionalism, a clarification of the criteria used for making such a judgment could shed light on the issue of legitimacy. Second, facing perhaps a new wave of democratization ushered in by recent Middle East and North Africa uprisings, Chinese politics seems to have come to a crossroads once again, and a report of the state of play among the three constitutional discourses certainly would shed light on the political path that China will undertake in the future. Third, through a careful sorting out of the contents of each school’s constitutional discourse, as well as a cautious evaluation of their respective strengths and weaknesses, this research seeks to construct a platform for engendering genuine dialogues among the schools that currently remain in a polemic and largely unproductive atmosphere. Fourth, given that the three constitutional blueprints introduced earlier, namely liberal, religious, and Marxist, can also be found at the global level (Backer, 2009a), this research can serve as an in-depth case study for the latter. Finally, given China’s sheer size and development speed, the choice of China’s political path in the 21st century certainly would have profound implications for the world, especially the Western world that holds a different ideology amid a possible turning point in history with the rise of populism. This would also impact the relationships between China and the rest of the world.

Methodology

The methods for conducting this research mainly include literature review, post-modern critical analysis, and comparative perspective. For the first method, the literature mainly consists of those that are directly related to the notion of constitutionalism. In the few cases where the notion is not directly used, the criteria for inclusion depend on its relevance to the idea of constitutionalism as well as the themes of the respective chapters. The second method is used because it is crucial to have a critical stance, especially in examining each perspective’s unconscious pre-conceptions, for examining their arguments objectively and engaging in a genuine dialogue. In fact, according to Tian (2005) and Jung (2002), post-modern thought is the most critical of modernity’s dominance and, hence, has some potential to bridge the gap between Western and Chinese views, which is why they have painstakingly called for the construction of such a bridge. Third, a comparative perspective is justified not only because it is crucial to move beyond the monologue of the dominant Western paradigm (Dallmayr, 2010; Jung, 2002), but also because by “mirroring” each other we can understand better each side’s hidden prejudices and consequently the barriers for a genuine dialogue.

The insights of hermeneutics and the wisdom of ancient Chinese epistemology are also utilized to guide the application of the three methods. According to the advocates of hermeneutics, “all understanding inevitably involves some prejudice,” where “prejudice” does not have the negative connotation familiar to us since the Enlightenment, but refers to our fore-having, fore-sight, fore-conception, or “a judgment that is rendered before all the elements that determine a situation have been finally examined” (Gadamer, 2004, pp. 272–273). It is thus very important to develop “a hermeneutically trained consciousness,” which requires us “to be aware of one’s own bias, so that the text can present itself in all its otherness and thus assert its own truth against one’s own fore-meanings” (Gadamer, 2004, pp. 271–272). Accordingly I have tried to keep at bay all my previous conceptions on the subject as well as the three schools unless each of the conceptions had been independently examined and secured.

Another closely related insight from hermeneutics is the notion of the “hermeneutic circle.” Following Schleiermacher’s original usage of the term, it refers to the relation of the whole and the parts in interpretation, more specifically the necessary mutual reference between the whole and the parts in the process of understanding (“Hermeneutic circle,” 2004). The notion is further developed by Heidegger and Gadamer. Heidegger uses it to denote his fundamental ontology, which relies on the “back-and-forth movement between a pre-understanding of Being and the uncovering of the structural features of Dasein,” while Gadamer emphasized the interplay between the movements of tradition and interpreter in the process of understanding (“Hermeneutic circle,” 2004). For my current research, it means that I have sought to understand the ideas and arguments of each work within the broader traditions behind them and to access their meanings with mutual reference between the whole and its parts. In fact, as we will see, these insights are echoed in the wisdom of ancient Chinese epistemology as well.

Ancient Chinese epistemology is certainly very broad and profound, but what is most relevant to the research here is its insights about partial views or half-truths (bi 蔽). Ancient Chinese sages not only described the prevalence of the problem, its root causes, harms, and dangers, but also prescribed solutions to the problem. As Zhuangzi points out, the problem with the myriad schools is not so much that they are invalid but that they are partial, just as the faculties of ears, eyes, noses, and mouths, all of which provide certain valid insights and have their individual merits, but cannot communicate with each other (天 下 多 得 一察 焉 以 自 好 。 譬 如 耳 目 鼻 口 ， 皆 有 所 明 ， 不 能 相 通) (“All Under Heaven” of Zhuangzi 《庄子 - 天下篇》). Xunzi also devotes a whole chapter “Resolving Partiality” (Jiebi 《解蔽》) analyzing the causes and the dangers of the problem of “partiality” and offering the solutions.⁶ Th...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• List of figures and tables
• Preface
• 1 Introduction
• 2 Conceptual frameworks towards constitutionalism in China
• 3 Western Liberal Constitutionalism in China: its history, core claims, and challenges
• 4 Traditional Confucian Constitutionalism: current explorations and its prospects
• 5 Sinicized Marxist Constitutionalism: its emergence, contents, and implications
• 6 The romance of “three constitutional kingdoms”: who will unify the world?
• 7 Implications for the world
• Appendix: Zhuangzi’s view of non-action as the panacea of peace
• References
• Index