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Constitutional Dissonance in China

Comparative Constitutional Theory (Gary Jacobsohn & Miguel Schor eds., Edward Elgar Publishing 2018), Forthcoming

Washington University in St. Louis Legal Studies Research Paper No. 17-03-03

University of Hong Kong Faculty of Law Research Paper No. 2017/008

45 Pages Posted: 2 Jun 2017 Last revised: 24 Sep 2017

Wen-Chen Chang

National Taiwan University College of Law

David S. Law

Washington University in St. Louis - School of Law; The University of Hong Kong - Faculty of Law; Washington University in St. Louis - Department of Political Science

Date Written: Sept 23, 2017

Abstract

Chinese law and comparative constitutional law are both thriving fields, but the comparative study of Chinese constitutional law remains rare. Part of the explanation may lie in skepticism on the part of comparative constitutional scholars as to whether China can be said either to possess a genuine constitution or to practice constitutionalism, due to its lack of judicial review and disregard for civil and political rights. This chapter seeks to explain why it is not only appropriate, but also highly beneficial for comparative constitutional scholars to study Chinese constitutionalism.

First, we argue that “Chinese constitutionalism” is not an oxymoron, and that definitional objections to the study of Chinese constitutionalism are therefore misplaced. We articulate a pluralistic framework for defining the terms “constitution” and “constitutionalism” that incorporates three types of criteria: regime goals, regime characteristics, and regime performance. The result is a rich matrix of definitional possibilities, many of which are capable of encompassing China and other authoritarian regimes without either implying approval of their practices or conflating them with liberal democracies.

Second, we explain why the study of Chinese constitutionalism would affirmatively benefit both the field of comparative constitutional law and the development of constitutionalism in China. Not only is scholarly engagement with China more likely to promote constitutional development than scholarly indifference, but it also provides an opportunity to broaden and enrich the discipline of comparative constitutional law by focusing our attention on important and recurring constitutional phenomena other than judicial review.

Prominent features of the Chinese constitutional experience that render China a valuable case study for comparative constitutional scholars include:

(1) the use of quasi-constitutional statutes that shape the powers of the administration and the courts;

(2) the articulation and enforcement of constitutional norms by political means, such as popular movements;

(3) the role of transnational law in supplementing constitutional law; and

(4) the phenomenon of dissonant constitutionalism, wherein a constitution is blatantly violated yet at the same time commands too much normative authority to be simply ignored. In such situations, the constitution may function as a constructive irritant: in the best-case scenario, the unresolved contradiction generates genuine constitutional discourse that in turn fuels the development of the constitutional order.

Keywords: constitutional law, comparative law, China, Taiwan, Hong Kong, Chinese, constitutional dissonance, dissonant constitutionalism, constructive irritant, quasi-constitutional, political, human rights, transnational, thick definition, thin definition

JEL Classification: K00, K39

Suggested Citation

Chang, Wen-Chen and Law, David S., Constitutional Dissonance in China (Sept 23, 2017). Comparative Constitutional Theory (Gary Jacobsohn & Miguel Schor eds., Edward Elgar Publishing 2018), Forthcoming; Washington University in St. Louis Legal Studies Research Paper No. 17-03-03; University of Hong Kong Faculty of Law Research Paper No. 2017/008. Available at SSRN: https://ssrn.com/abstract=2971724

Wen-Chen Chang

National Taiwan University College of Law ( email )

1 Sec. 4, Roosevelt Road,
Taipei 106, 106
Taiwan
886-2-3366-8948 (Phone)
886-2-2368-1874 (Fax)

David Law (Contact Author)

Washington University in St. Louis - School of Law ( email )

1 Brookings Drive
Campus Box 1120
St. Louis, MO 63130
United States
314-266-9698 (Phone)
314-935-5356 (Fax)

HOME PAGE: http://www.davidlaw.ca

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

HOME PAGE: http://www.davidlaw.ca

Washington University in St. Louis - Department of Political Science ( email )

One Brookings Drive
One Brookings Drive
St. Louis, MO 63130
United States

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