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Chinese Constitutionalism in the New Era: The Emerging Idea and Practice of Constitution in the 19th CPC Congress Report

Working Papers Coalition for Peace & Ethics, No. 11/1 (November 2017)

11 Pages Posted: 9 Nov 2017  

Larry Catá Backer

Pennsylvania State University, Penn State Law

Date Written: November 7, 2017

Abstract

The 19th Congress of the Chinese Communist Party concluded at the end of October 2017. It set the fundamental policy positions of China’s leadership for the next five years with particular emphasis on its approaches to constitutionalism, law, and the political theory of the state. These internal political changes will have substantial effects on China’s external relations and on the ways in which Western liberal democracies engage with China. In that context among the most important questions for law revolve around the extent and character of the evolution of CPC thinking, and the CPC Basic Line, with respect to Socialist Rule of Law and Socialist Constitutionalism. The question arose in the context of a key document of the Congress, the Work Report delivered by Xi Jinping reflected in the resulting final Resolution of the 19th Congress. To what extent did this report reflect an official downshifting of the importance of the state constitution and constitutionalism within the construction of Chinese notions of Constitutionalism, and if so, what variation on constitutionalism is likely to emerge? As interesting was a follow up question around the effects of any such downshift on the relation between the state and the political constitutions of China. To that end, it is worth considering whether principles of constitutionalism for the “New Era” may be extracted from Xi Jngping’s Report to the 19th Congress. And if they can, to try to extract a sense of the likely characteristics of emerging structures of Chinese constitutionalism. What follows, then is a preliminary report and assessment of Constitutionalism with Chinese Characteristics in the New Era from Out of the 19th CPC Report. It is organized in five sections, (1) a brief introduction to the issues and context of Chinese constitutionalism before the 19th Congress, (2) a consideration of the role of constitutionalism within the structures of the 19th CPC Congress Report, (3) a close reading of the specific references to constitutions in the Report (state, political and mixed), (4) a consideration of the connection between constitutionalism and the emerging characteristics of Chinese consultative democracy, and (5) brief concluding remarks.

Keywords: constitutional law, communist party, china, leninism, comparative law, constitutionalism, 19th Chinese Communist Party COngress

JEL Classification: k39, P26, P37, Z18

Suggested Citation

Backer, Larry Catá, Chinese Constitutionalism in the New Era: The Emerging Idea and Practice of Constitution in the 19th CPC Congress Report (November 7, 2017). Working Papers Coalition for Peace & Ethics, No. 11/1 (November 2017). Available at SSRN: https://ssrn.com/abstract=3066974

Larry Backer (Contact Author)

Pennsylvania State University, Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

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