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Constitutional Interpretation in Law-Making: China's Invisible Constitutional Enforcement Mechanism

22 Pages Posted: 24 Dec 2014  

Tom Ginsburg

University of Chicago Law School

Date Written: January 1, 2015

Abstract

It is conventional wisdom that China’s Constitution is unenforceable, and plays little role in China’s legal system, other than as a symbolic document. This view rests on the fact that the Supreme Court has no power to interpret the Constitution. The formal body with interpretive power, the Standing Committee of the National People’s Congress, has never issued an official interpretation. Despite this apparent lack of enforcement, we argue that China’s Constitution indeed plays an increasingly important role within the party-state. It does so not through the courts but through the legislative process, in which formal requirements of constitutional review have helped the legislature to resolve complex disputes about the relationship among different government organs, the economic system, and even rights claims. Understanding this hidden mechanism contributes to our knowledge of the internal constitutional workings of authoritarian systems, which differ from those of liberal democracies. But it is also consistent with broader literatures on the constitution outside the courts, in which internal legislative processes have received relatively little scrutiny.

Keywords: China, Constitutional Law, Law, International Law, Enforcement

Suggested Citation

Ginsburg, Tom, Constitutional Interpretation in Law-Making: China's Invisible Constitutional Enforcement Mechanism (January 1, 2015). American Journal of Comparative Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2541852

Tom Ginsburg (Contact Author)

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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