Towards a Robust Theory of the Chinese Constitutional State: Between Formalism and Legitimacy in Jiang Shigong's Constitutionalism
Larry Catá Backer
Pennsylvania State University - Dickinson School of Law
May 8, 2013
Penn State Law Research Paper No. 25-2013
The state of constitutional theory is in flux. What was once the preserve of those who organized the state became the expression of mass democracy and the popular will, one that has been increasingly constrained by international consensus on the limits of political will within national borders. The stakes are high — constitutional legitimacy is fundamental to internal political stability and to international acceptance. Among the most contested forms of modern constitutional states are Party-State systems grounded in Marxist-Leninist theory. This essay considers Jiang Shigong’s development of a coherent and legitimating constitutionalist theory of China’s Party-State system. The essay considers Jiang’s argument that constitutionalism must start with values and structure and then consider the mechanics through which it is institutionalized — either in writing or through structuralist approaches. It also examines Jiang’s construction a formal-functional theory of Chinese constitutionalism that acknowledges the democratic basis of framework and the representative character of the Party within the Party-State system. Jiang’s theoretical developments point to the deepening of an understanding of the legitimacy of Chinese constitutionalism. Jiang Shigong is part of a small group of Chinese academics who are working along distinct paths to move beyond the “legitimacy” issue of Chinese constitutionalism and tackle the much harder but more important questions of the continued development of Chinese constitutionalism along the lines of its own logic. Critical to that project are notions of civic education and the consequences of the separation of powers at the heart of Chinese constitutionalism — one that distinguishes between the administrative power of the government, including the administration and rule of law, and the political power of the CCP, including the nation’s constitutional norms.
Number of Pages in PDF File: 33
Keywords: party-state system, single-party constitutional state, separation of powers between state and party, constitutionalism, formalism, China, separation of powers, civic education, legitimacy
JEL Classification: I28, K19, K33
Date posted: May 10, 2013 ; Last revised: July 11, 2013
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