WEBINAR 1: GLOBAL CHALLENGES - How Constitutionalism Withers: Explaining the Changing Discourse of Constitutionalism in Chinese Constitutional Scholarship since 1982

ZHAI Han & HUANG Chen

11 November 2020

Introduction

Although the recent constitutional decay at the governmental level in China is well known to the world, what the real condition of the constitutional discourse in the legal community is still hidden in shadows so far, and when the constitutional discourse in China exactly began to change profoundly and subtly still invites further investigation. Now the 2018 constitutional amendment is widely considered as the milestone of this change, and even the Chinese reception of Carl Schmitt's constitutional theory has brought out ongoing studies among our overseas colleagues, shall we blame the currently weakening Chinese constitutional law scholarship for these two over-simplified explanations? Of course not.

Witnessing the worldwide constitutional crisis and democracy decline in recent years, legal scholars, particularly comparative constitutional scholars, began to reflect on their methodology. New approaches are needed to understand what determines the implementation or destruction of laws in different countries. Innumerable factors are influencing the fate of constitutional discourse in a particular society. Political power shall be examined above all the other factors, especially in those countries which are in the process of constitution-building. At this point, the power-knowledge approach promoted by Michel Foucault shall be applied.

From this perspective, we can ask why the discourse of constitutionalism in China could develop during the first two decades of reform and how the changing strategies of the power finally result in the isolation and re-interpretation of constitutionalism. Notwithstanding the benefits of the power-knowledge approach, we do not mean to underestimate the conventional doctrinal approach in legal studies, but to point out: the more fragile a constitutional system is, the more significantly and even more directly the political power influences the fate of the specific legal discourse, then the more critical our approach would be.

The following parts of this paper will provide analysis along the chosen timeline, which stretches from 1982 to the present. Applying the power-knowledge approach, we will respectively analyze how political power disciplines legal scholarship, how legal scholarship produces constitutional discourses, and accordingly, how these produced discourses substantively fall from the original idea of constitutionalism.

 Unspoken Constitutionalism: 1982-1997

Invitation from the Power

The first stage stretches from 1982 to 1997. The year of 1982 marks the birth of the "Reforming" Constitution of China which calls for the requests for establishing constitutionalism. This stage does not end up with the well-known painful 1989, because the legal discourse, as well as crucial legislative legacies, does not experience a substantive shift until the 1990s.

The start of China's Reform and Opening-up is underpinned by the political structure of two factions, viewed as "reformers" and "conservatives" by scholars as well as citizens of that time. A general tendency throughout the 1980s was that reformers were relatively more powerful and they were able to exert a more enduring impact, because of the tremendous political influences of Deng Xiaoping. So legal scholars who participated in the reform would endeavor under the circumstances of detours and limitations from above.

Re-establishment of Constitutional Scholarship

The re-establishment of constitutional scholarship served the need for reform, stimulated by the utility of a workable legal system. This process was seemingly smooth; however, it was accomplished under the very circumstances of the double faceted discipline. The most apparent evidence was that the so-called "circle of the reform and repression" also existed in legal scholarship.

Along with the developments of the legal scholarship, the theoretical themes and self-reflections on Chinese constitutional scholarship became more and more common, aside from the grand policy of the Reform as the keynote theme. In the meantime, an increasingly significant tendency in the Chinese constitutional law community was the strengthening of its theoretical self-reflection. At the same time, law journals were also founded as an active institution to respond to the dynamic political circumstances during this period.

The Immature but Effective Discourse

During this chosen period, the scope of constitutional scholarship in China was significantly broader than the constitutional "law" scholarship. The significance and the need for constitutional reform in China became a consensus among almost all scholars. This particular intellectual situation provided great room for academic discussions on constitutionalism even from other areas such as political science, economics, and the history of the Chinese Communist Party (CCP). It is why the discipline and the discourse of constitutionalism by then were immature.

The aforementioned discourse remained unspoken in the name of constitutionalism. These fragmented conceptions not only presented the connotations of the original constitutionalism but also effectively led the trajectory of scholarly discussions falling into the fundamental solutions to core questions of China's constitutional reform. The constitutional discourse was so effective at both levels of the legal scholarship and the legislation in this period that even the 1989 repression could not end it.

Constitutionalism in Vain: 1997-2014

Manipulating the Intellectuals

Along with the passing away of the elders and the consolidation of Jiang Zemin's power, the reformers-conservatives structure turned single-centered. From the top, the new leadership group was constituted with "centrists". Deng's famous discussion on supporting the core leader became a kind of party discipline which has dominated China's high-level politics until the present. Then from the below, the government and party departments were composed of a new group of bureaucrats as well. The rational logic brought out by marketization and globalization had reshaped the political power since the end of the 20th century.

The new shape of power must have its different strategies governing the scholarship in a more elaborate and rational type of strategies. On the one hand, the new leadership generation who concentrated on market reform merely sought for marginal legal advice at the socioeconomic level, rather than constitutional proposals. On the other hand, more remunerative strategies were adopted to manipulate the expanding group of scholars, instead of direct control by ideological and coercive measures, including national funds and titles and a sophisticated assessment system.

Professionalization and Isolation of Constitution Law

The ongoing development of a market society did encourage the expansion and professionalization of constitutional scholarship. Meanwhile, this kind of professionalization had another unanticipated side: the intellectual isolation of the constitutional law. Constitutional scholars were effectively organized through Chinese Association of Constitutional Law (CACL) activities for the firm goal of "the self-awakening of Chinese constitutional law scholarship". Nevertheless, this very spiritual goal in professionalism came along with a narrowed horizon due to an over-emphasis on textual interpretation in research. In this way, constitutional scholarship isolated itself within the four corners of the written Constitution by emotionally rejecting empirical studies. As a result, the dominant interpretative method lost sight of the functions and problems of the very political structure of the party-state.

The expansive publication of textbooks and attitudes around teaching and learning constitutional law also similarly revealed the two-sided circumstances around constitutional law: constitutional law was written and taught in every Chinese law school, but it remained rootless in reality, which rendered constitutional law "useless" in legal education in contemporary China.

The Abundant but Illusionary Discourse

Constitutional discourse was much more prosperous at this stage. It embraced more fundamental conceptions such as constitutionalism itself, judicial independence and constitutional review. It also experienced significant debates in constitutional theory. The most important debate emerged between the normative-constitution school and the political-constitution school at the analytical level. At the same time, "socialist constitutionalism" emerged in the scholarship. Its supporters aim at proposing suggestions to the top.

It is evident that these seventeen years witnessed both abundant and professional constitutional discourse, which is usually considered as the first signs of realizing constitutionalism in China. The question is, why they are actually not. We can explain it with a number of key reasons. As for the position of constitutionalism, it neither influenced the political reform nor became the legal justification of the grassroots resistance. As for the connotation of constitutionalism, it was differentiated where the original constitutionalism is only part of the whole picture. In other words, the concept of constitutionalism is implicitly modified by power.

From Constitutionalism to Xian'zhi: 2014 up to Now

Back to Coercion

This phase runs into the generation of 1950-1960s, who became the top leaders of the Chinese government. In mindset, their political knowledge was gained during the typically radical days around the Cultural Revolution. In structure, the political faction further centralized in one and resulted in strongman politics. Consequently, more cadres were promoted according to their political loyalty rather than their socioeconomic performance. In consequence, more and more remunerative strategies were replaced by or combined with coercive ones.

Polarization of the Scholarship: to be Muted or to Cheerlead?

Under such circumstances, the scholarship only has two options in every pointed field: to continue constitutional law research without any implication from "constitutionalism", or to accept the existing mainstream ideology. With a rapidly shrunken academic sphere, constitutional scholarship is gambling with the power's discipline.

A Counterfeit Without Normativity

Both the muted constitutional scholars and the cheerleaders need a counterfeit out of the so-called western discourse "constitutionalism". Here comes the word Xian'zhi (宪制). The same group of constitutional scholars who have been cultivating constitutional law research already changed their word choice. There is no other evidence that could be stronger in revealing this intention behind the word Xian'zhi than translated works. More significantly, Xian'zhi is not accepted only by constitutional scholars, but also political scientists, political philosophers and so-called Neo-Confucians.

The discourse of Xian'zhi would intellectually endanger the scholarship by undermining normativity. As for the specific question, works titled with Xian'zhi inquire what the fundamental institutional structure of China actually is, instead of whether these institutions need reflections and constraints. In methodology, studying Xian'zhi usually examines Chinese history through the perspective of particularism, refusing to evaluate Chinese history according to universal constitutional principles. Logically, such studies deny any possibility in realizing constitutionalism except for maintaining the status quo in China.

Conclusions

In explaining China: The driving force behind both the rise and fall of constitutional discourse is neither global or local constitutional thought, nor any particular group of people. It is the gambling between the power and the intellectual. Additionally, there is usually a contradiction hidden between the directions of constitutional discourse and constitutional reform. Only focusing on the discourse produced by scholars would never bring about accurate understanding of the real workings of the legal system, and vice versa. 

In reconsidering constitution-building: Taking the global constitutional crisis and democracy decline into account, the perspective of this research also sheds light on how legal scholars defend constitutionalism in such an era. The scholarship ought not to be isolated under the mask of professionalization because the scholarship could not be isolated from reality. The realistic role of the legal profession is not merely the explorer of legal knowledge. In addition, they should protect legal knowledge for the society and sometimes under the authorities.

For future research: We hope our story could be a new start to apply the power-knowledge approach, to understand the driving forces behind the scene of legal knowledge and its internal dilemma as well. It is also the proper way, we believe, to recognize how we scholars shall practice our profession in this era.

Disclaimer: This text is part of our same-titled working paper, and it is only provided for the 2020 IACL Roundtable as the required blogpost. Readers should therefore be aware that this paper is not finalized by the authors yet, might contain errors, and is not peer-reviewed yet.

Han ZHAI, PhD (2017), Tilburg University, is an assistant professor in constitutional law at Wuhan University, China. She holds an LL.M of the Chinese University of Political Science and Law and an LL.B of Inner Mongolia University. The edited version of her PhD thesis, Constitutional Identity of Contemporary China: The Unitary System and Its Internal Logic, was published by BRILL in late 2019. She is also research fellow at the Israel Institute for Advanced Studies at the Hebrew University of Jerusalem, in the 2019-2020 Research Group "Constitutional Transplantation". Her current research fields include comparative constitutional law (secession and state of emergency), contemporary constitutional history of post-1978 China and political constitutional theories.

Chen HUANG is an assistant professor at Department of Politics, School of International Studies, Renmin (People's) University of China. He is also the secretary-general of the Center for Historical Political Science, editorial director of Chinese Political Science, member of IPSA and APSA. He received a PhD from RUC and joint PhD from Columbia University. His research interests include contemporary Chinese thoughts & culture (in a power-knowledge perspective), Political History (especially the state-building in ancient and modern China). His recent work was published in Dao: A Journal of Comparative Philosophy and Journal of Political Science.