The Making of China’s 1982 Constitution

Abstract

The current Constitution of the People’s Republic of China is a document whose political importance is equalled by the ambiguity of its legal status. While much scholarship on the 1982 Constitution, especially in English, focuses on its lack of judicial enforceability—a doctrine first challenged and then reaffirmed in the course of the handling of the famous Qi Yuling case —many other features of the Constitution and its relationship with the state order it undergirds are deserving of focused attention and comparative research. Recent work has begun to explore in detail, for example, the functionality of the Constitution as an integral, if still generally backgrounded, element in the legislative drafting process.

Pursuit of a holistic analysis of the 1982 Constitution and its wide range of impacts outside of the courtroom would do well to begin with the process of its drafting and adoption. While unique in many respects, the episode of constitution-making that generated China’s current constitutional order was in some ways typical of major moments of constitutional transition that occur outside of the context of state founding, revolution, or regime change. The 1982 Constitution’s example shows that, even in the setting of a continuous state order and system of government, vast political, ideological, social, and economic transformations can be negotiated and codified via constitutional norms embodying new consensus views. Given its close link with the termination of Cultural Revolution-era policies and formation of the policy platform framing China’s post-1978 “Reform Era,” the drafting of the 1982 Constitution, often called the “Reform Constitution,” has had major and lasting impacts.

Keywords: Chinese law, constitutional law, legal history, 1982 Constitution