Party, People, Government, and State: On Constitutional Values and the Legitimacy of the Chinese State-Party Rule of Law System

91 Pages Posted: 13 Jan 2012

See all articles by Larry Catá Backer

Larry Catá Backer

The Pennsylvania State University (University Park) – Penn State Law

Date Written: January 12, 2012

Abstract

The Chinese constitutional order is grounded in the distribution of popular sovereign power between the Chinese Communist Party and the administrative apparatus of the government of the state, privileging the political authority assigned to the Party over the administrative authority vested in the government. For those who embrace the ordering framework of western style constitutionalism, this organizational model poses novel questions about the legitimacy of the system itself. This article addresses those questions and attempts to articulate a basis for a legitimizing constitutionalist theory for states, like China, organized on a state-party model thus conceived. Since the establishment of the Soviet Union, constitutional theory has tended to look suspiciously at the constitutionalization of Marxist governments under the control of a single party in power. Such arrangements, even when clothed in the formal language of written constitutions, are generally considered illegitimate, especially in regimes in which the state’s power is vested in a government that is itself subject to the direction of an extra-constitutional power. In this context, constitutionalism is incomprehensible. These judgments have formed the basis of analysis of Chinese constitutionalism and its critique over the last thirty years. This article suggests that these criticisms are unwarranted with respect to the Chinese constitutional system as formally constructed. The article examines the Chinese constitutional system within the parameters of its own assumptions and then assesses that system against the normative metrics of transnational constitutionalism. China has moved toward a legitimately constitutionalist governance system in which power is divided between a vanguard party, which serves as the repository of political power, and the administrative organs of government. The CCP serves an institutional role within Chinese constitutionalism and also represents the political power of the Chinese polity directly in the political ordering of the government. The CCP, in turn, is constrained by the normative basis on which Chinese constitutionalism is ordered -- Marxist Leninism and Mao Zedong Thought, Deng Xiaoping Theory and the important Thought of Three Represents. Thus framed the Chinese constitutional system can be understood as both unique and legitimately constitutionalist.

Keywords: china, constitutionalism, communist party, legitimacy, rule of law, China, rule of law

Suggested Citation

Backer, Larry Catá, Party, People, Government, and State: On Constitutional Values and the Legitimacy of the Chinese State-Party Rule of Law System (January 12, 2012). Boston University International Law Journal, Vol. 30, 2012. Available at SSRN: https://ssrn.com/abstract=1977551

Larry Catá Backer (Contact Author)

The Pennsylvania State University (University Park) – Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

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