Constitutional Law – European Chinese Law Research Hub

China’s Constitutions: Past and Present

6. November 2022

A paper by Leigha Crout

The 1954 Constitution was drafted under the leadership of Mao Zedong in this house near the West Lake in Hangzhou. Today it hosts China’s first Constitution-themed museum and is a popular “red tourism” destination. ^{Photo by Siyuwj, licensed under CC BY-SA 4.0}

The Constitution in the People’s Republic of China (the PRC or China) has experienced a modern revival under the Xi administration. Both the Communist Party of China (the CCP or the Party) and state leaders have called upon the nation to rely upon the guiding force of the Constitution and its laws in recent years and to adopt Xi Jinping Thought on the Rule of Law (习近平法治思想) in enforcing legal mandates. However, it is also clear that this new emphasis on constitutional law – and by extension, constitutionalism – excludes some of the ideas traditionally associated with a constitutionalist state.

Core facets of constitutionalism, including judicial independence and the separation of powers, are notably absent in its new and contextualised version in China. This is best represented in the adoption of the 2018 Constitutional amendments, which eliminated term limits for the state’s highest offices (one of few procedural limitations consistently enforced by China’s leadership), equated the ‘leadership of the Communist Party of China’ with the founding ideology of the nation, and further blurred the boundaries between Party and state governance. Now, it seems China’s leadership has embraced a political-style constitutionalism that relies on the leadership of the Party as the real or ‘living constitution’ of the nation.

Adopting a historical perspective, this paper analyses the development and progressive implementation of China’s four constitutions, using three interrelated frames – ideology, text, and judicial implementation – as a metric for determining how the theoretical footholds of this new ‘constitutionalism’ within China developed over time.

This work begins with an overview of the competing legal philosophies that influenced dynastic China and preceded the development of the state’s first constitution. Two polarised conceptions of law predominated – Confucianism, which emphasizes social rules and the maintenance of harmony, and Legalism, an ideology that presupposes humankind to be cruel and generally unlawful. Whereas Confucianism would eschew formal institutions for the resolution of conflict as disruptive to social order, Legalists preferred a strong administration, detailed edicts and harsh penalties for violations of the law. Both philosophies, though seemingly contrary, continue to exert great influence on governance in modern China; for example, Xi Jinping is well known to cite the Confucian classics in his speeches, while encouraging the development of a ‘legalistic’ administration.

The form and content of most of these documents traced the historical political trajectory of the state. The 1954 Constitution, for instance, was a product of the Communist Party’s victory in the Chinese civil war and the nation’s then-strong alliance with the USSR. The text supported the supremacy of the vanguard party and included a stronger program for collective entitlements and responsibilities of citizens. In terms of judicial enforcement, this text was explicitly excluded from the courtroom in a communication from the nation’s highest court (the Supreme People’s Court) to a lower court, in confirming that the Constitution could not be cited in criminal matters.

The short-lived 1975 Constitution reflected a turn within the Mao Zedong era – the Cultural Revolution, a national movement which endeavoured to ‘cleanse’ the nation of its traditionalist past and Western influence to form a new Communist revolution for its people. Alongside many of the nation’s historical relics, the legal system was fundamentally hollowed out during this time as lawyers and judges were detained, disappeared and sent to labour camps or re-education facilities. Judges held court on limited matters, primarily on divorces or important criminal cases. In many ways, China is still recovering from this generational loss of its legal profession. In its text, the Constitution reserved absolute authority for the CCP. While different branches of the government were maintained, all were required to express deference to the Party. Rights were also condensed to merely four articles, leaving little room for enforcement. Fundamentally, the 1975 Constitution represented a legitimation of the power already subsumed by the Communist Party and proved to be an unsustainable model that was reformed upon Mao’s descent from power.

The 1978 Constitution was also transitional – taking the state out of the Cultural Revolution and paving a path for the modern era. This text was an amalgamation of elements originating from the 1954 draft and its immediate predecessor; it once more expanded the number of constitutional rights, while also maintaining the structure of deference to the Party. Ultimately, reformists within the state resistance were successful in calling for a new text in 1982 that reflected the contemporary era of constitution building and economic globalisation. This current Constitution in many ways mirrors the common programs of democratic nations. It includes traditional principles of a constitutionalist state, like judicial independence and provisions for the separation of powers. It also adopts a robust commitment to rights, improved by the 2004 amendments’ addition of an explicit state obligation to respect human rights.

Since its adoption, the Constitution has been amended five times, and most subsequent modifications brought China closer to constitutionalism in its organic sense. In 2001, the Constitution was judicialized for the first time when the nation’s highest court relied on the text to vindicate a plaintiff’s constitutional right to education (though this ruling was later vacated).

However, the 2018 amendments brought the state’s Constitution reformation period to an abrupt halt, introducing a ‘New Era’ of constitutionalism with old roots. As a result, this historical perspective is particularly relevant and instructive in today’s China. Human rights and traditional constitutionalist principles within China’s Constitutional text now seem to rival the revived citizen obligations and commitment to Party leadership of the Mao period. These developments are not incidental but represent an intentional reversion to specific historical mandates.

With precepts found in the dynastic and Communist states, this constitutionalism appeals to several key elements of China’s constitutional past. Intentional efforts from the Party to create law ‘suitable for China’ tend to focus on constitutional language from the Mao era, which laid precedent in situating the Party at the helm of the Constitution. Constitutional concepts such as Mao’s People’s Democratic Dictatorship, or the idea that China is a democracy for its friends and a dictatorship for its enemies, have generated fresh debates within state media and domestic literature. Moreover, the state’s efforts towards administrative centralization have echoed within China’s legalist traditions. Taken together, it is clear that the PRC’s legal history plays a newly significant role in the present.

While China’s constitutional future remains unclear, the modern revival of these elements and others signifies a departure from its era of reform. However, many protest a return to the past. While suppression of dissent has become commonplace, activists nevertheless persist in advocating to vitalize their constitutional rights. As resistance efforts continue, it may be that this New Era of constitutionalism has the same transitional nature as its predecessors.

The paper The Evolution of Constitutionalism in the People’s Republic of China: Past and Present was published with the Indiana International and Comparative Law Review. Leigha Cout is a William H. Hastie Fellow at the University of Wisconsin Law School, a PhD Candidate in Law at King’s College London and a Research Associate with the China, Law and Development Research Project at Oxford University. Her current research focuses on constitutional law and change in the People’s Republic of China.

On Global Constitutionalism and the Community of Common Destiny for Mankind

29. July 2021

A new paper by Björn Ahl

Ministry of Foreign Affairs, Beijing Wikimedia Commons

China is stepping up its ambitions to become a norm-making power and its capability to achieve this has become a key question in the debate over the international order. In the realm of international law, the government of the People’s Republic has put forward the concept of a ‘community of common destiny for mankind’ which stresses some long-standing norms of global constitutionalism, neglects others and further introduces new ones to the field.

In order to better delineate China’s plans for international law and to identify the values and structures of the future international legal order envisaged by China, Björn Ahl in his latest paper observed both Chinese legal scholarly debates and government statements revolving around the community of common destiny for mankind as well as global constitutionalism and its substantive ingredients: jus cogens, human rights, democracy and the rule of law. Whereas the public debate by no means embodies the full picture of the direction where the PRC’s take on international law is heading towards, it does reveal which elements are accepted and which are rejected.

Although part of that scholarship affirms in general terms the value of the rule of law, human rights and democracy, those who discuss the substantive elements of global constitutionalism in more detail often give them distinctly different interpretations or even refute them.

The Chinese debate on global constitutionalism began with China’s accession to the WTO in 2000. While generally supporting the interpretation of international law in constitutionalist terms, many scholars also point out the dominance of Western viewpoints and call to better align international law with Chinese interests. For instance, peremptory norms of international law (jus cogens), are regarded as one constitutive element of global constitutionalism, however official statements show a very narrow reading of it that is not in line with the scholarly understanding that jus cogens norms have universal binding force and a higher status than ordinary norms of international law.[1] Ahl explains that jus cogens norms as norms imposed on states without their consent empower non-state actors, domestic courts and international tribunals, and are thus not conducive to furthering the interests of authoritarian states like the PRC which seek effective control over the judiciary and civil society.

The rule of law was first officially introduced to the PRC Constitution in 1999 with a significant twist: ‘Socialist rule of law’ emphasizes the supremacy of the party over the law and denies full legal autonomy, features that make it difficult to apply it to the realm of international law. The official debate around the rule of law in China defends the instrumentalist ‘socialist rule of law’ as a legitimate local variation of the international rule of law.

Socialist rule of law is an ideological rather than legal concept, the meaning of which is not determined and/or fleshed out by legislation and the courts but by party documents. […] The concept is a variation of the principle of socialist legality, where stability and flexibility are combined within a dialectical relationship.

A general trend towards democratisation in international law has been widely acknowledged by Chinese authors in the sense of a power shift away from US dominance. They have also claimed that the dominant notion of democracy as well human rights is limited and advocates Western ideology. One strand of arguments projects the Chinese development model onto the global arena, holding that top-down considerations can better serve developmental goals than antagonistic and individualistic rights-based approaches. Through stating that it “offers Chinese wisdom and solutions for global governance of human rights”[2], the government makes it clear that it works towards disseminating its own official human rights approach in order to bring international human rights standards in line with domestic practices.

The concept of the community of common destiny for mankind is in the scholarly discourse at hand regarded as a precondition for recognising a hierarchy of norms in international law. Scholars argue that the community of common destiny concept contains a set of binding principles of international law. Ahl’s paper dives into official and scholarly takes on these principles: for instance is the very prerequisite for the principle ‘durable peace’ found to be sovereign equality including a free choice of political system and development path. The principle ‘universal security’ is regarded to also cover the political risks to authoritarian systems.

The community of common destiny is seen as a new source of legitimacy for international law that is based on the shared interests of the community of states.

He concludes that the reinforcement of the existing order and fundamental change to that order are both components of the community of common destiny concept. Whereas formal aspects of global constitutionalism overall are viewed favourably, it is also criticized as turning a blind eye to US dominance.

Find Björn Ahl‘s full paper ‘Chinese Positions on Global Constitutionalism, Community of Common Destiny for Mankind and the Future of International Law’, forthcoming in the Chinese Journal of Comparative Law, on SSRN here.

Björn Ahl is Professor and Chair of Cologne University’s Chinese Legal Culture. Before joining the University of Cologne in 2012, he was Visiting Professor of Chinese Law, Comparative Public Law and International Law in the China EU School of Law at the Chinese University of Political Science and Law in Beijing. Prior to that he held a position as Assistant Professor of Law in the City University of Hong Kong. He has also worked as Associate Director and Lecturer in the Sino German Institute of Legal Studies of Nanjing University and as a Researcher at the Max Planck Institute of Comparative Public Law and International Law in Heidelberg. Find him on LinkedIn.

[1] Permanent Mission of the PRC to the UN, ‘Statement by Mr. XU Hong, Director General of the Department of Treaty and Law, Ministry of Foreign Affairs, People’s Republic of China at the 71st Session of the UN General Assembly on Agenda Item 78, Report of the International Law Commission on the work of its sixty-eighth session (Part II: Chapters 7, 8, 9, 10, 11, 12)’ (chnun.chinamission.org, 27 October 2016) last accessed 18 July 2021

[2] State Council Information Office, ‘Seeking Happiness for People: 70 Years of Progress on Human Rights in China’ (gov.cn 22 September 2019 last accessed 18 July 2021.

American Constitutional Law in China

22. March 2021

A new paper by Han Liu

American constitutional law has influenced various countries, but what about China? For conventional account, the answer is, little, given China’s socialist constitutional system and continental legal thinking. Diving into a relatively unexplored domain, Han Liu traces the reception of American constitutional law in post-Reform China, arguing that American constitutional law has greatly influenced Chinese constitutional thinking, sometimes even generating practical reform projects (article, free draft).

One influential Chinese text book on US-American Constitutional Law

To be sure, American constitutionalism had almost no influence in proto-socialist China (1949–1979). In 1979, as China and the United States established diplomatic relations, interest in American constitutional system began to surge. Translations, studies, and introductions about American constitutional law started to grow rapidly. This academic project also influenced practice, especially by providing an example of the separation of powers and judicial review.

Han Liu points out that there has been a great change in Chinese understandings of American constitutionalism, that is, from “regime-centered” to “court-centered”. These two exerted different practical influences. In the 1980s, American constitutionalism was generally tantamount to tripartite “separation of powers” to Chinese intellectuals, legal or otherwise, and even political leaders. Deng famously said that “I always criticize the American power holders for having three governments.” Despite Deng’s critique, others tried, without success, to learn from the American example, bringing checks and balances into the Chinese system.

But at the turn of the century, especially in the early 2000s, American constitutionalism shows a different face. For many legal scholars and lawyers, it was understood as synonomous with judicial review. They came to believe that a constitution remains a dead letter if not used in courts and litigations, as in the US. The US Supreme Court, with its power to enforce the Constitution, now took the center stage in the Chinese understandings. Its Chinese counterpart, from 2001 to 2008, even introduced an American model of judicial review into the Chinese judicial system.

Why has this happened? It was not simply a “response-impact” mechanism. Rather, China’s different receptive attitudes towards American constitutional law hinge upon China’s own frame of reference in the legal reform. As the authorities began to construct “the rule of law” in the 1990s, the Constitution had to be activated in practice. Then the American model became attractive.

In the space between theory and practice, the Chinese constitutional mind becomes receptive to American influence.

This logic also explains the decline of American influence in Chinese constitutional theory and practice in the last ten years. While the authorities declare the principle of “governing according to the constitution”, they at the same time stress China’s distinction from “Western” models, especially the US. In due course, American constitutionalism in China will perhaps no longer be the single idol to adore, let alone the best model to follow.

Looking back, American constitutionalism’s impacts on Chinese constitutional development depend upon the internal logic and dynamics of Chinese reform, which determines the optics in the reception of foreign law. The fundamental change in Chinese understandings of American constitutionalism reflects the great transformation in the deep structure of Chinese ideology and jurisprudence.

Han Liu is Associate Professor at Tsinghua University Law School and Deputy Director of Tsinghua Institute for Law and AI. He researches comparative constitutional law, cyber law and policies, and legal theory. His recent paper ‘Regime-Centered and Court-Centered Understandings: The Reception of American Constitutional Law in Contemporary China’ (free draft here) appears in American Journal of Comparative Law, selected as one of the top 10 comparative law articles in the Best of 2020 Law Journals from Oxford University Press. His book Think Big and Beyond Yourself: Law as a Way of Thinking (in Chinese) won “The 10 Best Books 2020 in Law” in China. His online course “Legal Thinking” has attracted more than 70, 000 subscribers. Reach out to him at liuhan[at]tsinghua.edu.cn.

Carl Schmitt, Chinese Neo-Conservatism, and the Dark Sides of Constitutional Borrowing

25. May 2020

Cover of the Chinese edition of “Political Theology”, *Shanghai Renmin Chubanshe,* 2015. The text at the bottom introduces Schmitt as “the most controversial political thinker of the twentieth century” and “Europe’s last public lawyer”. “No matter whether one is a political thinker on the left, the right, or in between”, the text claims in an ominous tone, “it will be equally difficult to avoid his thoroughly paradoxical and dangerous intellectual spectre”.

If, at the time of Carl Schmitt’s death in 1985, one had predicted that the former Nazi jurist 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 disconcertingly, this is precisely the role that was assigned to the erstwhile “crown jurist” of the Reich in the past two decades. That Schmitt’s thought 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 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, after an initial controversy, Schmittian conceptual binaries gradually sunk into the deeper layers of the Sinophone legal discourse. Likewise, Schmitt’s oeuvre, rather than being 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 apology for party-leadership as China’s “fundamental law” and core constitutional value. Jiang Shigong, on the other hand, seems to adopt Schmittian notion 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.

China’s Constitution in action

19. May 2020

A paper by Daniel Sprick

“What is the Constitution?” A billboard advertising “National Constitution Day” to local residents in Yangqiao village, Zhejiang Province

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

Daniel Sprick is a Research Associate at the Chair of Chinese Legal Culture at the University of Cologne, where he teaches a variety of courses on Chinese legal history and Chinese economic and commercial law. He was awarded the Hanenburg-Yntema Prize for the best European thesis on Chinese law in 2008. He received his PhD from the East Asian Institute at UoC on the limits of self-defense in Chinese criminal law. His research has focused on Chinese criminal law, competition law, law and society, legal theory and judicial reforms in China.

European Chinese Law Research Hub

Tag: Constitutional Law

A paper by Leigha Crout

A new paper by Björn Ahl

A new paper by Han Liu

A paper by Daniel Sprick