The Ideal and Practice of Chinese Comprehensive Constitutionalism in the 'New Era'

39 Pages Posted: 2 Feb 2018 Last revised: 11 Apr 2018

See all articles by Larry Catá Backer

Larry Catá Backer

Pennsylvania State University, Penn State Law

Date Written: January 25, 2018

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 now bound up in the adoption of “Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era.” The question is central to a consideration of the Work Report delivered by Xi Jinping reflected in the resulting final Resolution of the 19th Congress to amend the Constitution of the Chinese Communist Party and thereafter in 2018 to amend the State Constitution to reflect the advances in political principle and the CPC political framework embedded in the CPC Constitution. A key element of that question involves constitutional trajectory: 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? If so, what are 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 Jinping’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. After this short introduction to the issues and context of Chinese constitutionalism before the 19th Congress, Section II provides a contextual framework for situating the constitutional work of the 19th CPC Congress within contemporary Chinese currents of constitutional theory. Section III then explores the references to notions of constitution in earlier CPC Congress Reports. Section IV then turns to the consideration of the constitution project for China in the “New Era.” It first considers in more detail the understanding of constitution and its role in politics and governance within the 19th CPC Congress Report itself. It then explores the role of constitutionalism within the structures of the 19th CPC Congress Report through a close reading of the specific references to constitutions in the Report (state, political and mixed). Lastly, it provides a concise consideration of the connection between constitutionalism and the emerging characteristics of Chinese consultative democracy.

Keywords: China, Constitutionalism, Communist Party, Constitutional theory, legitimacy

JEL Classification: K39, K49, P21, Z18

Suggested Citation

Backer, Larry Catá, The Ideal and Practice of Chinese Comprehensive Constitutionalism in the 'New Era' (January 25, 2018). Connecticut Journal of International Law, Vol. 33, No. 2, 2018; Penn State Law Research Paper No. 2-2018. Available at SSRN: https://ssrn.com/abstract=3109775

Larry Catá Backer (Contact Author)

Pennsylvania State University, Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

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