If, at the time of Carl Schmitt’s death in 1985, one had by some unknown premonition declared that the enfant terrible of twentieth-century German Staatsrechtslehre would soon become a major source of inspiration for twenty-first-century Chinese neo-conservatives’ theorisation of China’s party-state…well, then most people would have dismissed this prediction out of hand as a plainly ludicrous thought. Yet, strangely (and perhaps disconcertingly), this is precisely the role that was assigned to the erstwhile “crown jurist” of the Reich in the past two decades. That the “wisdom of this dead Nazi”, as Martti Koskenniemi put it unforgivingly, now serves as a conceptual (and, for some, quasi-metaphysical) guidance in the interpretation of China’s constitutional order is no longer a secret, as attested by a growing body of research. 

Lucas Brang’s new paper (free draft here) taps into this ongoing debate about Schmitt’s unexpected reemergence to global intellectual prominence. Shifting between intellectual history, conceptual analysis, and constitutional theory, Brang traces Schmitt’s influence on Chinese liberal, left-leaning, and neo-conservative legal theorists. Rather than postulating a straightforward bearing on Chinese theoretical debates, however, his article finds that Schmitt’s persona functions as a kind of Jungian shadow projection – intellectual nemesis for concerned liberals, spiritus rector for neo-authoritarians – and hence leads to a variety of ideological performances of mutual suspicion. Likewise, Schmitt’s oeuvre, rather than being studied or adopted in its entirety, serves as a conceptual toolbox that lends itself to different normative projects.

Focusing in particular on Schmitt’s impact of the school of “political constitutionalism”, Brang shows how different authors employ different “strategies of reception” to make sense of Schmitt’s anti-liberal “challenge” and use of his terminological arsenal. For instance, Chen Duanhong draws on Schmitt’s constitutional theory for a “decisionist” and “existentialist” reading of the preamble of the Chinese constitution, thus providing a theoretically sophisticated view of party-leadership as China’s “fundamental law” and core constitutional value. Jiang Shigong, on the other hand, seems to adopt the Schmittian approach of “thinking in concrete orders” in his sociological account of China’s “unwritten constitution”. Gao Quanxi, finally, in a throwback to Ernst-Wolfgang Böckenförde’s post-war inquiry into the political preconditions of a liberal polity, attempts what Brang describes as a “conceptual inversion” of the Schmittian paradigm of the exception.

On the whole, the paper suggests that the history of Chinese political constitutionalism and the Chinese reception of Carl Schmitt is essentially one of an intellectual co-evolution – which serves as a stark reminder of the often-unexpected paths of contemporary legal globalisation.

You can find the paper published in the latest issue of the Cambridge University Press Journal Global Constitutionalism here. A free draft PDF ist online here.

Calls for and attempts to rendering the Chinese Constitution meaningful in judicial adjudication have officially stopped in 2008, when the decision by the Supreme People’s Court based on the Constitutional Right to Education of Qi Yuling was withdrawn years after it had been made (find the somewhat odd story about a student who has stolen another’s identity to enter college and the ensuing case here). The move has made it clear that the authorities do not wish that the Chinese Constitution serve as a legal basis for judgments. However, judges continue to invoke the Constitution, if less as a direct legal basis, but more so in the reasoning part of their decisions. As judgments by courts from all over China were gradually being entered into an open-access database, Daniel Sprick seized the opportunity asked: If it is not permitted as legal basis, in what ways does the Constitution still play an authoritative role in adjudication?

The quest for today’s functions of the Constitution in the daily adjudication work of local judges appears even more significant when considering the growth of a net of legislation that offers judges alternative legal sources to choose from. A law laying down the Right to Education for example was not yet existent when the controversial Qi Yuling case was first decided on.

For this study, Sprick looked at case groups invoking the Constitution that concerned disputes over citizen’s duty to support elderly parents, land administration or the right to work. Cases, where the Constitution is being referred to due to a lack of lex specialis particularly emerge from disputes over land administration. However, in most cases Sprick found in the database, invoking the Constitution would indeed technically not have been necessary- other laws are the decisive base. Nevertheless, judges are “seeking a higher authority in order to frame a more compelling argument and exhibit an understanding of the constitution as a programmatic document that links the CCP’s policies with the state law.”

Apart from functioning as a link of law and CPC policy, he further finds the Constitution as useful tool for judges working on tort law cases. More precisely, the right to work is being referred to when interpreting relevant statutes, stressing the rights of seniors who were working even though they had reached the retiring age: “the use of the constitution demonstrates that the courts are here filling a legislative gap for the purpose of social justice.” Given the propaganda campaigns calling the general public for the “implementation” and “ardent study” of the Constitution in the aftermath of its amendment in 2018, Sprick’s research appears as relevant as ever.

Find the PDF here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3333958

There is a complex strategy behind the fierce measures the People’s Republic’s leaders applied to curb the spread of COVID-19, argues Felix Wemheuer, Professor for China Studies at Cologne University (in German). A lockdown is easily enforceable in gated communities, which make up the most part of cityscapes in China: If a citizen’s QR-Code does not show green, but yellow or even red, access is denied to parks, restaurants, public transit, residential areas and one’s workplace. Companies work hand in hand with the local administration, the Chinese army and the Communist Party, the latter of which already celebrates the victory over the pandemic as its own achievement.

The army also plays a key role: It constructed a hospital in Wuhan within ten days and provides crucial expertise in the area of virology gained from experience in fighting diseases abroad as well as their work on biological warfare. Further, blacklisting has in many localities become an additional punishment for concealing one’s health history, disregarding compulsory quarantine or trading medical supplies illegally.

While Chinese diplomats aggressively spread a success story to the world, Wemheuer says it is too early to make a final judgment about the effectiveness of the People’s Republic’s measures. “[…] in this global epidemic, the schematic comparison of authoritarian and democratic systems can do little to explain why countries are affected to varying degrees by the epidemic”, Wemheuer explains in an interview with DW (in German). “Freedom of information by itself is no guarantee that measures against an epidemic will be taken quickly, as the cases of the USA and the winter sports industry in Tyrol have demonstrated. The pursuit of profit can also be a reason for cover-up.”