I. Introduction
The year 2018 was the tenth year since political constitutionalism first emerged in Chinese constitutional debates; in the meantime, the 1982 Constitution has been amended for the fifth time. In a speech delivered by President Xi Jinping at the 19th National Congress of the Communist Party of China (CPC),Footnote 1 the ‘Chinese dream of national rejuvenation’ was repeatedly emphasized and further enacted into the 2018 Constitutional Amendment. It seems that China now has more confidence in proclaiming a ‘constitutionalism with Chinese characteristics’. This has not always been the case, however: the notion of a constitution as ‘the fundamental law superior to all others’ was introduced into China from Meiji Japan only after the 1840 Opium War. The encounter with the WestFootnote 2 propelled the last imperial dynasty to seek its urgent transformation into a modern nation-state, with the discovery of the invaluable concept of ‘constitutionalism’, which was treated by Late Qing intellectuals as a cure-all: for poverty, political backwardness and anxiety about military defeats.Footnote 3
Yet the attempt to establish a constitutional monarchy (1908–12) failed in the last dynasty and was followed by a series of wars and internal conflicts during the period from 1916 to 1927. The slow-down of the process of constitutionalization induced Sun Yat-sen, the founding father of the Republic of China and the leader of the Chinese Nationalist Party (Kuomintang, or KMT), to develop an original model for a three-stage constitutionalization, according to which the unification of the country through military victory was the first step. Following that, China could enter a preparatory phase of ‘political tutelage (xun zheng)’,Footnote 4 during which the KMT would play an essential role as political vanguard. For Sun, ‘Constitutional government (xian zheng)’ was not immediately realizable until the Chinese people were trained to responsibly exercise their sovereign rights and to exercise them over local governments first.Footnote 5 This Soviet model of the ‘vanguard party’ also inspired the CPC’s constitutional project. As Zhu Suli puts it, the Party played a core role in Chinese modernization, since in rural China there did not exist a bureaucratic class preceding the Party.Footnote 6 This background offers a unique combination of ‘nationalism’ and ‘communism’ themes closely related to the Chinese school of political constitutionalism. I will return to this later.
Since the founding of the People’s Republic of China (PRC) in 1949, there have been four constitutions and one interim constitution.Footnote 7 The constitution that is currently valid – the 1982 Constitution – was amended five times up to 2018. After abolishing the ‘Complete Literatures on Six Laws (liu fa quan shu)’ codified under the KMT government, the 1954 Constitution aimed to construct ‘Socialist Legality’ instead, and proceeded to collectivize three means of production during the 1950s: in agriculture, the handicraft industry, and capitalist commerce and industry. However, this project was interrupted by a series of political movements after 1956, including the Anti-Rightist movement (1957–58) (fan you yun dong), which culminated in China’s Cultural Revolution (1966–76). In its midst, the 1975 Constitution was promulgated with only 30 articles; this was expanded to 60 articles with the 1978 Constitution. It was only in 1982 that the legal structure of the 1954 Constitution was finally restored. Peng Zhen, who was then assigned leadership over the National People’s Congress (NPC), commented that:
The only way to guard against a return to such runaway political extremes … was to introduce into the entity of ‘the state’ other political structures – constitutional structures – that, because they were institutionally outside the party, could open up the state to a wider diversity of understandings and sensitivities than could be provided by the party alone.Footnote 8
Since then, the theme of building and stabilizing a constitutional government has dominated mainstream academic arguments.
Furthermore, since 1978 the ‘Reform and Opening-up (gai ge kai fang)’ policy implicitly changed Mao’s rejection of the ‘third way’ and opened the road to advanced capitalist arrangements. The right to use, among the bundle of property rights, is notably capable of formulating contractual relations without shaking the foundation of the socialist ownership system. Contractualization first occurred in the collectively owned land system in rural areas from the late 1970s, then it was extended to the labour system in state enterprises in the 1980s. The whole process was accelerated throughout the 1990s, and the scale of private property has clearly been expanded in subsequent constitutional amendments; it is now rearticulated as, and integrated into, the ‘socialist market economy’.Footnote 9
Along with these historical developments, constitutional thinking has also changed dramatically. In the founding period of the PRC, it was Soviet jurisprudence that dominated constitutional education and research, especially influenced by the Soviet jurist Andrey Vyshinsky.Footnote 10 However, legal education and research were interrupted when the construction of ‘socialist legality’ hit a crisis in the 1950s. It was only in 1977–78 that local universities ‘began to enrol students for undergraduate and graduate law programs. Courses in constitutional law were resurrected as part of the legal curriculum.’Footnote 11 By the end of the twentieth century, many well-known works by Western constitutional scholars had been translated into Chinese, and Friedrich Hayek’s notion of the ‘rule of law’, Ronald Dworkin’s ‘theory of rights as trumps’ and Alexis de Tocqueville’s idea of the ‘tyranny of majority’ had become particularly influential in China.Footnote 12 With the introduction of these key thinkers into Chinese constitutional discourse, as well as the obsession with the famous American case of Marbury v. Madison (1803) and ‘judicial activism’, there came a sea-change: a turn of ‘political’ into ‘judiciable’ matters. Since 1998, even in legal practice, one notes an explicit rise in constitutional awareness.Footnote 13 Both the Qi Yuling case (2001)Footnote 14 and the appeal to the Standing Committee of the National People’s Congress (NPCSC) for a constitutional review of the Custody and Repatriation Regulation following the Sun Zhigang incident (2003)Footnote 15 put the ‘juridification of constitution’ firmly in the spotlight.
As He Weifang asserts, ‘Viewed from a perspective of constructing rule of law, the court must be the leading organ of dispute resolution, and its judicial activities must have a strong impact upon a diversified society.’Footnote 16 The judiciary’s claiming of the power of constitutional interpretation, it is argued, redistributes and rebalances power between the Party, the People’s Congress and the judiciary in a way that engineers a wider social transition. Henceforth, two influential schools of ‘Legal Constitutionalism’ inscribe themselves on the constitutional map of China in this period: the schools of Constitutional Interpretation (xian fa jie shi xue) and Normative Constitutionalism (gui fan xian fa xue). Both advocate juridification of the Constitution but differ slightly with regard to whether a mechanism to interpret the constitutional text is immediately available in the Chinese judicial system or dependent upon further institutional building.Footnote 17 Another school of ‘neo-proceduralism’Footnote 18 emphasizes the autonomy of the legal professional community based on specific virtues of legal reasoning. As He expects, by subjecting political and social conflicts to judicial procedures, a forum for social interaction will be opened up.Footnote 19
Legal constitutionalism in China sees the courts as the chief agent for advancing constitutional reform, but they do so despite the significant lack of judicial autonomy in China. The question thus arises of what it would mean to pursue legal constitutionalism as an ideal or aspiration under these circumstances. The ‘IRI (Imperfect Realization of the Ideal)’ theorists,Footnote 20 who think China is on the way to a Western ideal rule of law model, reduce the constitutional dilemma in China to an issue of implementation. As Tong Zhiwei has remarked, Chinese constitutional textbooks are filled with American cases that misread the real constitutional mechanism in China. A ‘pan-Asian’ version of constitutionalism is in the process of emerging as well, but so far with no systematic theory regarding its content.Footnote 21 Zhu Suli’s thesis on the ‘indigenous resources for the rule of law (fa zhi de ben tu zi yuan)’ takes a social-scientific approach to explore Chinese characteristics incongruent with the West,Footnote 22 but only indirectly and incidentally touches upon the constitutional question.
Against such a background, we can understand why political constitutionalism initially arose in China as a critical approach. The school was first formed when Professor Chen Duanhong published an article titled ‘On the Constitution as the Fundamental Law and Higher Law of the State (lun xian fa zuo wei guo jia de gen ben fa yu gao ji fa)’ in 2008.Footnote 23 By reintroducing the notions of ‘sovereignty’ and ‘constituent power’,Footnote 24 Chen pushed ‘constitutionalism’ onto the field of politics. Opposing him, Professor Gao Quanxi, a renowned political theorist, also entered the constitutional discussion. They represent the left and the right wing, respectively, of the school of political constitutionalism in China.Footnote 25
After the positioning in the first round, the debate continued for several further rounds, delving into diverse, more urgent and controversial themes that have seldom been discussed before.Footnote 26 It is fair to say that, as a result, the constitutional map of China has been expanded and diversified by the interdisciplinary exploration of political constitutionalism. A liberal legal constitution is only one of many constitutions in China. Which ideal will prevail is likely to depend on complex social conditions and also on the methodologies deployed. Established as the centre of political constitutionalism, the School of Law at Beihang University, where Gao taught until 2016, set up an advanced research institute that aims to promote ‘liberal studies’ among undergraduates. Meanwhile, Chen’s research interests in exploring constituent power in China increasingly converge with indigenous studies and the sociology of law at the Law School of Peking University.
Ten years later, we would probably hesitate to state that political constitutionalism has remained merely of academic interest. Constitutional changes in China draw on and depend on theoretical positions and justifications. While political constitutionalists in China have rightly criticized normative constitutionalism as depoliticized, uncritically importing a Western constitutional ideal into the Chinese situation, they have not responded adequately to challenges about the aim and function of their own position. What is ‘the political’ developed for? Does contrasting the political with the normative mean that political constitutionalism should sideline the question of normativity and establish a different register for itself? If ‘the political’ aims at no more than sidestepping ‘the constitutional’, why does it deploy a mixed terminology? In what follows, by tracing and unpacking the implications of political constitutionalism in China, I hope to reveal what is (selectively) politicized and for what purpose. My argument will be that constitutional reflexivity requires contestability, but that the ‘political’ register of political constitutionalism in fact denies it.
This article is structured as follows. In the second part, I discuss the key representatives of political constitutionalism in China and their views. I then extract from their main arguments several generalized themes on the ‘constitutional moment’, ‘polity’ and ‘governance’ as exemplary of what has developed in China as the political registers of constitutionalism. The article aims to critically engage with these political concepts in order to expose the main lacuna in Chinese political constitutionalism, namely that it assumes loyalty to the polity, rather than political contestation, as its organizing principle.
II. A general review of political constitutionalism in China
Zhai: Constitutionalism and the superiority of the NPC
In 2009, Zhai Xiaobo, at that time a professor at Zhengzhou University, published his influential books On the Mechanisms to Implement Our Constitution (lun wo guo xian fa de shi shi zhi du) and Constitution of the People (ren min de xian fa). Zhai is a democrat who considers that the current empowerment of the People’s Congress is more urgent and prudent than putting limitations on it. The NPC is at the heart of his writings.
Compared with other discussions on constitutional implementation, what is valuable in Zhai’s writings is that he directly analyses the institutional mechanism of the Constitution against presumptions about what ‘ought to be’.Footnote 27 In accordance with the 1982 Constitution, the NPC legislates basic laws, such as General Rules of the Civil Law, Criminal Law, Organic Law of the People’s Courts and so on, while the NPCSC makes laws other than those enacted by the NPC. In addition, administrative regulations, local regulations, autonomous regulations and specific regulations are also valid legal sources created by the State Council and different levels of local people’s congresses that comprise the majority of the Chinese legal system. Wherever conflicts of these laws and regulations arise, the power to provide constitutional and legal interpretations belongs to the NPCSC (Article 67(1)), whose interpretations have general binding effects. Although the power to interpret law was entrusted to the judiciary in adjudicating individual cases in an NPCSC ‘Resolution’ in 1981,Footnote 28 there is no explicit empowerment of the judiciary to interpret the Constitution, nor does it allow for a review of the legality of law according to the Constitution by the judges, which the Supreme People’s Court (SPC) has explicitly rendered as inappropriate.Footnote 29 It could be said that in the Chinese constitutional arrangement, the NPC and the NPCSC act as the ‘defenders’ of the Constitution, while courts apply the Constitution only indirectly via enabling legislation. Footnote 30
Based on this, Zhai opposes an excessively abstract understanding of the ‘juridification of constitution’ thesis, which posits a need for constitutional review as relevant to every individual case. On the contrary, he argues that most cases only concern laws and regulations that could be subjected to a legal review process undertaken by the NPCSC as prescribed by China’s Law on Legislation.Footnote 31 Only where conflicts arise between basic laws made by the NPC and subsidiary laws made by the NPCSC will there be a need for a ‘constitutional review’. Specifying and confining the ‘constitutional’ question as such, Zhai then moves to Article 62(11) of the Constitution in particular, which empowers the NPC to alter or annul inappropriate decisions of the NPCSC. Nevertheless, ‘inappropriate’ is not a term referring to substantive contents of the Constitution,Footnote 32 and as the permanent committee of the NPC, the NPCSC’s decision could certainly be annulled, even without invoking the claim of ‘unconstitutionality’.Footnote 33 In this sense, the initiation of the constitutional review in China is in fact subject to the discretion of the NPC, which in Zhai’s opinion provides proof of the ‘superiority’ of the NPC in the Chinese constitutional structure. During the ‘Reform’ period of China, several laws enacted by the NPCSC arguably contradicted the orthodoxy of the socialist constitution while not being annulled or altered by the NPC. Towards this phenomenon, Zhai provides an explanation that this is because the NPC intended to endorse these changes according to its political programs.Footnote 34 As a result, he defines the substantive constitution in China as ‘Not superior to the NPC Political Guideline for Reform (bu gao yu quan guo ren da de zheng zhi xing gai ge gang ling)’.Footnote 35
While Article 62(11) does indeed provide that the NPC is superior to the NPCSC, could the NPC itself or the NPC-made laws not contravene the Constitution or the people’s will? Here again, Zhai dismisses this as a constitutional question by separating ‘the people’, who remain supreme in the political order, from the NPC, which is supreme in the legal order (zai fa zhi xu nei zhi shang).Footnote 36 Were the people to have to be present immediately – that is, without the mediation of the constitutional text – that would signify a moment of ‘exception’ and a crisis in the whole system (zheng ge guo jia cheng wen ti le), which is beyond the constitution-related questions he will address.Footnote 37 In other words, Zhai attempts to explore the question of ‘who decides’ from a normative perspective, rather than resort politically to the constitution-making power of the people. Thus distinguished both from the people and the judiciary, the NPC is the governing centre of the Chinese constitutional order.
Let us pause for a moment to make sense of Zhai’s argument. In brief, Zhai aims to discern an agency from the constitutional structure of China, which is the NPC, and compare it with the British ‘parliamentary sovereignty’. However, a careful jurisprudential examination needs to be conducted regarding the comparability between the two, especially since a written constitutional code exists in China that ought to have supreme validity. How, in Zhai’s argument, could this supremacy of the constitution be compatible with the supremacy of parliament or the NPC? Or, more accurately, how is ‘parliamentary sovereignty’ compatible with the ‘rule of law’? With regard to this question, it is worth bearing in mind what HLA Hart has acutely pointed out: there are two possible readings of ‘parliamentary sovereignty’, namely parliamentary decisions as the source of law or as the rule of recognition. Zhai’s view clearly falls within the first approach that Hart criticized, which equates ‘subordination’ to ‘derivation’,Footnote 38 while according to the second reading, the law owes its status not to ‘a “tacit” exercise of legislative power but to the acceptance of a rule of recognition which accords them this independent though subordinate place’.Footnote 39 It is the ultimate rule of recognition, while the supremacy of the parliament is part of the criterion. In this sense, Hart argues, the British Parliament is ‘supreme’ but not ‘unlimited’.Footnote 40
Certainly, the rule of recognition ‘is a matter of fact’Footnote 41 and an internal statement that is not immune from external observations and doubts, such as concerns about the efficacy of law or about whether there is a rule recognized as such. However, unless the internal statement embodies other criteria beyond the rule to identify law, such as questions of values, desirability, general acceptance or moral obligations, external statements are centred on different questions rather than on legal validity itself.Footnote 42 Taking our cue from Hart, we could argue with Zhai that Article 62(11) of the 1982 Constitution indeed refers to the supremacy of the NPC, but that it is supreme on the condition that the 1982 Constitution is valid. If the rule of recognition is found to have changed, the legal authority of the NPC will also immediately be placed in doubt and will have to draw on an alternative rule of recognition.
This alternative could be the great transformation that China is undergoing, as Zhai suggests. Nevertheless, this claim has to be supported by in-depth sociological studies of China’s social transitions, investigating the actual functions of the written constitution rather than merely citing an article from it. To justify this conversion of the rule of recognition, in fact Zhai has to prove the Constitution to be ineffective and non-binding compared with other social orders. Here we could see that Zhai’s play with the rule of recognition with a Schmittian flavour ends up being inconsistent. Just as the ‘state of exception’ and the ‘amendment’ clauses are still part of the constitution, Carl Schmitt makes it clear that decisions on them are only commissarial, not sovereign. Footnote 43 Decisions as such could neither overrule the rule of recognition of the Constitution nor substitute for the Constitution. In short, the NPC’s decisions cannot be superior to the Constitution.
It is hence clear why transplanting the theory of British ‘Parliamentary Sovereignty’ and the British model of political constitutionalism into the Chinese context is somewhat surprising and problematic. As Adam Tomkins has clarified, the ‘parliamentary constitution’ he advocates should not be read as competing with the ‘legal constitution’ for ‘exclusivity’.Footnote 44 The judicial review of the exercise of government power concerning its scope, procedure and evidential basis is undoubtedly one of a range of constitutional goods.Footnote 45 Only in cases where the issue of ‘proportionality’ rather than ‘legality’ is concerned should the parliament be prioritized as a better forum for public discussion than the judicial decision-making mechanism. However, since it was borrowed to justify the Chinese constitutional model, the idea of ‘parliamentary sovereignty’ has been radically transformed into an NPC-centred ‘guideline’ that even compromises the validity of the constitutional code itself. Here, we touch upon the true reasons for the adoption of the British model among political constitutionalists in China. While it originally constitutes a substitute for the judiciary-centred constitutionalism and re-couples law and politics, the features of ‘unwritten constitutionalism’ could also be used to justify that practices are more important than norms. Zhai thus opens the gate to deconstructing the binding effects of the written constitution. The thesis he holds – that the Constitution is not superior to the NPC’s political guideline for reform – situates an agency at the top of the constitutional structure and hierarchy in a way that is neither touched nor limited by law.
Chen: Coexistence of constituent power and constituted power
Chen Donghong’s work is focused more clearly on constitutional theory, and his direct engagement with Western theories enables us to observe the lines of confluence and difference with the Chinese situation. Albeit an essential pillar of classical constitutionalism, ‘constituent power’ was a stranger to most constitutional scholars in China, who had been struggling to discipline any extra-legal powers under the rule of law formula. Notably, Chen’s arguments on constituent power have undergone three steps, respectively drawing on Jean-Jacques Rousseau, Emmanuel Joseph Sieyès and the Chinese party-state; the three steps are reflected in three papers collected in his book Constituent Power and Fundamental Laws.
Chen first applies Rousseau’s theory to resolve the ‘representation’ question in modern democracy, which is suggested by the title of his article ‘The People Must Be Present’.Footnote 46 As Rousseau has put it, without constituent power, the people in a modern democracy would degenerate into the governed. However, while the presence of all the people to make a constitution is conceivable in theory, constituent power is always exerted by selected representatives. This, for Chen, entails a distinction between ordinary and extraordinary representatives and an insertion of the latter into the three-epoch constitution-making process that Sieyès originally depicted. This process involves, separately, activity of individual wills (that seeks to form a nation), action of a common will and, in the last epoch, government of proxy.Footnote 47 Although Sieyès had already acknowledged that the national will was usually entrusted to and exercised by some social members, Chen’s supplement made it more explicit that the entire process should be formulated as ‘individuals – national will – extraordinary representatives – (constitution) – ordinary representatives’. With such a sequential reading, the selected, extraordinary representatives turn out to be the actual presence of the constituent power, according to which, Chen converts his argument to one that thematizes ‘the people [as] neither present nor absent’.Footnote 48
In the final step, Chen can fully concentrate on the ‘extraordinary representatives’ in Chinese history, who are the CPC and justify the CPC’s role in the Chinese constitutional structure. This completes the third part of his theoretical body. It is nevertheless beneficial for us to observe how Chen starts with the universal truth of classical constitutionalism, such as theories of Rousseau and Sieyès, but reverts to constitutionalism with Chinese characteristics. By inserting the ‘extraordinary representatives’ between ‘constituent power’ and ‘constitutional law’, Chen’s core argument lies in providing justifications for the representative mechanism of the CPC, whose status could not be contained in the Constitution. For Chen, though, it is a virtue rather than a vice, and he suggests that the sui generis feature of Chinese Constitutionalism is precisely that the CPC could coexist with the parliamentary democracy of the NPC without losing the benefit of either constituent or constituted power.
As ‘extraordinary representatives’ are closely correlated to the constitution-founding moment, Chen returned to the enactment of the 1949 Common Program as the critical point when the foundation of the political community and the nation-state of China was laid down. In this case, the CPC apparently played the role of the extraordinary representatives in Chinese history in contrast with the promulgation of the first Constitution and the election of the first National People’s Congress that came afterwards in 1954. Nevertheless, such an argument about the real sequence of China’s constitution-making process outweighs the original and revolutionary idea of the exercise of constituent power as occurring over continuous time à la Rousseau. However, if this line of historical retrospection works, could Chen’s theory of constituent power make sense of discontinuities and ruptures, such as the 1975 and 1978 Constitutions?
By subjecting classical constitutionalism to plural equivalences found through history, such as a party-state constitution, Chen’s political constitutionalism also coincides with Larry Catá Backer’s typological analysis, which compares the Chinese constitutional model to ‘theocratic constitutionalism’ that is ‘grounded in the embrace of the rule of law principle of state construction, but implemented on the basis of and through the rule system of a single religion’.Footnote 49 In Becker’s view, classical constitutionalism in the Western tradition is only one variant that developed under specific historical conditions; however, its self-referential narrative has ‘burdened the scientific development of Chinese constitutionalism’.Footnote 50 As a critique, Becker creatively compares the division between the Party and state in the Chinese context to the political/administrative distinction as Tocqueville defined it: the CPC is an all-people party or ‘the Party as polity’, which could deliver the constitutional good of ‘knowledge’; on the other hand, the state is responsible for the administration and management of the government, and the citizens outside the Party participate through economic and social rights. In common with Chen, Backer combines the themes of ‘communism’ and ‘nationalism’ and emphasizes the Party’s role in the integration of the Chinese polity, a theme to which I will now turn.
Gao: ‘The corrupt people’ and the genesis of constitution
Professor Gao Quanxi claims to be on the right among political constitutionalists, at the opposite end to Chen. As a political theorist, his work is focused on constitutional law and political theory, namely the political sources that underpin public law. He situates Chinese constitutional development in a specific phase – an epoch equivalent to ‘early modernity’ in Western history.Footnote 51 Two implications derive from this: first, Gao’s political constitutionalism stresses a pattern of constitutionalization that is shared universally; and second, the universal should embrace the particular since China is in a transitional phase of modernization that distinguishes China from its counterparts in the West.Footnote 52
History is important for Gao, as history informs the particular against the unrealistic ideal of normative constitutionalism.Footnote 53 Moreover, history matters for Gao’s core arguments because he is searching for the ‘genesis’ of modern constitutionalism in China.Footnote 54 Gao argues that the schools of ‘normative constitutionalism’ and ‘constitutional interpretation’ impose ideas and concepts that are already maturely developed rather than allowing for their gradual evolution. Therefore, to enable a generative account, the perspectives and methodologies of constitutional studies must be reinvented. Gao calls this an ‘organic methodology’ or ‘life-structuralism (sheng ming jie gou zhu yi)’, which in order to give birth to a normative constitution, observes what structure, spirit, dynamic and kinds of constituent power are involved.Footnote 55 Gao insists that he does not aim to reject normative constitutionalism, but rather to draw a normative constitution out of political constitutionalism.Footnote 56
Similar to the thesis of Bruce Ackerman, for Gao political constitutionalism is a political moment for the people to represent. Yet ‘the people’ in the Chinese context could have multiple meanings, indicating a (formless) community, the sovereign, the representative forms – that is, the people’s assembly or the people’s congress – or ordinary citizens. Among these four uses, Gao focuses particularly on the distinction between ‘the people’ as ordinary citizens and ‘the people’ as the sovereign, which leads to his thesis of ‘the Corrupt People’.Footnote 57 Gao argues that China is at a critical and exceptional moment of constitution-founding that demands the presence of the people, yet in the meantime ‘the people’ are corrupt, as they live purely as private citizens who care for nothing but the pursuit of their own interests. The decline of the citizens’ civic virtue renders them too ‘corrupt’ to take on their social responsibilities and participate in the Chinese constitutional moment, which results in a dilemma in China’s constitutionalization. Against this context, Gao argues that, in contemporary China, a transformation of private citizens into public citizens is urgently needed.Footnote 58
However, Gao refuses to agree with Chen and resort to political decisionism to realize this. Instead, he proposes a kind of Hegelian dialectic where constitutionalization is a move from the ‘law of survival’ to the ‘law of freedom’, from a Hobbesian moment to a Lockean moment. If we only focus on the exceptional, we will neglect the other dimension of the political, namely legitimation. Gao insists that Chinese constitutionalization should follow a movement from revolution to ‘revolutionary counter-revolution (ge ming de fan ge ming)’; between the double revolutions, it should rely on the citizens’ ‘self-revolution’ to bridge the gaps.Footnote 59 It is no wonder that Gao prefers the Anglo-American constitutional paradigm to the French one, as in the former the people can always progressively restore the social order. While he mourns a sadly lost constitutional moment for a Chinese ‘Glorious Revolution’ during the Late Qing dynasty,Footnote 60 Gao sees great prospects for constitutional developments in the ‘Reform’ period of contemporary China. As he suggests, enacting private property into the Constitution would empower a civil society to grow and mature, enable a normalized social order to break with political decisionismFootnote 61 and strike a legal balance between the state and the individual.Footnote 62
However, what is still markedly lacking in Gao’s argument is how this individualized rights jurisprudence will be repoliticized. If Gao reads degeneration into the pursuit of interests by private citizens, how could these rights be reintroduced onto a public and political register? A temporary political moment of establishment is clearly not enough. Sadly, Gao stops at this point of ‘genesis’ rather than pursuing a genuine political engagement with Hayekian liberalism.
A close ally of Gao, Tian Feilong systematized Gao’s constitutional theory in his early writings and defended a republican constitutionalism against three theoretical streams that he demarcated as conservatism, neo-conservatism and liberal normativism. Chinese constitutional scholars who endorse conservatism take the orthodoxy of the socialist constitution seriously, and treat law as a reflection of the will of the ruling class. Neo-conservatism possesses a good awareness of Western constitutional theories but, in combination with contextual analysis, develops them to adapt to ‘Chinese characteristics’. The latter is what differentiates neo-conservatism from liberal normativism, which borrows from Western constitutional theories and transplants them directly into the Chinese situation, disregarding Chinese circumstances.Footnote 63
Instead of focusing on the juridification of individual constitutional rights, Tian contends, against liberal normativism, that there is a need to restore the collective meaning of citizenship. The formation and existence of the polity occupy a central place in Tian’s political constitutionalism compared with rights jurisprudence.Footnote 64 On the other hand, his republicanism embodies an implicit link to neo-conservatism if the ‘Chinese’ path is defined as distinct from a universally shared pattern of evolution. It is thus left to the last group of this school – the social-scientific approach – to contest what are genuinely ‘Chinese’ characteristics.
Jiang: ‘Jurisprudence of the legislator’ and ‘governance’ dynamics
As the representative of the last group, Jiang Shigong develops his theoretical body from a careful study of Carl Schmitt and Michel Foucault,Footnote 65 both of whom inspired his critical and socio-legal approach. Jiang’s criticism is that mainstream scholarly discourses in China are preoccupied with legal formalism to adapt to international standards, and that they reflect an ‘end-of-history-esque’ ideology.Footnote 66 What they elide is the lively reality. Therefore, against those grand phraseologies prevalent in political and legal philosophy, Jiang insists on ‘value relativism (jia zhi xiang dui zhu yi)’ as a deconstructive strategy.Footnote 67
With regard to the issue of constitutionalism, in a first, mild step, Jiang seeks to deconstruct the American ‘constitutional miracle’ itself. He argues that Chinese legal constitutionalists have largely misunderstood the complexities of the Western constitutional tradition. They accept the American model unconditionally and contrast it with the British unwritten one. However, the ‘written constitution’ is in fact part of the ‘unwritten constitution’.Footnote 68 As he puts it, ‘in all countries and not least in Britain, both legal and non-legal rules, written and unwritten, are blended together to form the system of government’.Footnote 69 By rendering written constitutions the exception rather than the norm, Jiang challenges the basis of normativism and suggests a reinvigoration of the jurisprudence of the legislator (li fa zhe de fa li xue) to substitute for the jurisprudence of the jurists and legal practitioners (fa lü ren de fa li xue) in the second step.Footnote 70 However, do not mistake this ‘legislator’ for the NPC or the British Parliament, Jiang asserts: the legislator is named after the term’s ancient meaning – the one who establishes the polis. Footnote 71 Accordingly, this rejuvenation is a ‘Cultural War’,Footnote 72 in which ‘Chinese’ should be neither an adjective title appended to universal descriptors nor a location but a term of subjectivity.Footnote 73
Henceforth, in the third step, Jiang systematically explores Chinese constitutional resources in real practices. This methodology is suggested by him ‘to examine “what the real constitution is in political life” or “what the effective constitution is” by adhering to a value-free stance in historical and empirical research’.Footnote 74 He has discerned four sources of China’s unwritten constitution: the Party constitution playing a substantive role with the NPC as the ‘Rubber Stamp’; constitutional conventions, such as the trinity system of the Party–State–Military unified in the president of the PRC; the constitutional doctrine of ‘initiatives from two sources’ that deals with the relationships between local and central governments; and the separate constitutional statutes, such as the Basic Law of Hong Kong Special Administrative Region (SAR) and the Basic Law of Macau SAR.Footnote 75
The written Constitution in this sense becomes marginal to constitutional discussions, compared with the rise of ‘governance’ thesis.Footnote 76 ‘Governance’ points to a general pattern and capacity to govern, relying on, but not limited to, law or the constitution. It can take into consideration informal rules, conventions, culture or whatever is identified as effective in terms of social control. Jiang endorses this change of perspective as a productive ‘genealogy of knowledge’.Footnote 77 For example, if we contrast the urban space as Modern China against Rural China, then ‘sending law to the countryside (song fa xia xiang)’Footnote 78 is certainly a story about modernization, with the developed and the under-developed already decided and divided. This fixed viewpoint misses much of the power dynamics played out in the authority-reconstruction process between the modern state and the rural society, and between law and tradition. Instead, Jiang proposes an ‘incident/relation (shi jian/guan xi)’ dialecticFootnote 79 that relates specific incidents to the broader context of power relations (e.g. between state and civil society) and their evolution. In this way, many themes will no longer be a unidirectional ‘ought’ but will be open-textured, capable of embracing those practices with Chinese characteristics, such as informal ‘mediation’ or ‘One Country, Two Systems’.
Compared with ‘constitutionalism’, ‘governance’ thinking has the capacity to subject anew societal practices to a public law perspective, Jiang proudly argues, which counts as a publicization of private law.Footnote 80 This is true concerning the breadth of constitutional changes from a social-scientific perspective beyond the traditional ‘field’ of public law; however, if with this Jiang is suggesting a repoliticization of the excluded social, I find the opposite in his arguments. With the turn to jurisprudence of the ‘legislator’ who founds the ‘polity’, everything is a domestic question inside the ‘polis’ – or, more accurately, inside the ‘family’.Footnote 81 If in ancient China the state was perceived as an enlarged ‘family’ and the emperor played the role of the ‘parent’ who took care of the whole society as a good father does with his children, this ‘jurisprudence of the legislator’ relies on a similar system of the distribution of proper roles to the social members, roles that cannot be contested politically. I will return to this in the next section.
Tracing Jiang’s ‘socio-critical’ approach, we can see how a critical start renders itself uncritical in the end. By means of ‘polity’, identity politics overrules a possible inquiry into the gaps between constitutional prescriptions and real practices. It is by contrasting the living law of the Chinese people with the universalized jurisprudence that Jiang could ignore the latter’s binding forces, which typically adopts the critical narrative of decolonization (of the legal science). In the Hong Kong Basic Law debates, for example, the conflicts are increasingly being framed as between the common law jurisprudence imposed since the colonial period and the Chinese legal tradition with which the Hong Kong people should have identified politically and culturally. Borrowing an observation made by Liu Sida, as for the sociological jurisprudence, ‘gap studies’ take a ‘cultural turn’.Footnote 82
III. Mapping the ‘political’ registers
The above review of Chinese political constitutionalism is not meant to decrease the credit due to this wide-ranging school. The theorists have imaginatively disturbed a largely pacified pattern and expanded the scope and depth of constitutional research in China. However, the key flaw of Chinese political constitutionalism lies in it stopping short of clarifying the meaning of its predicate, the ‘political’, or what it means to politicize the constitution.
As stated above, ‘constitutionalism’ is indeed a transplanted idea with which China was forced to familiarize itself when encountering the West. First, China confronted the issue of modern state-building involved in the constitutional project. The theme of socialism added another layer of conflict, irreconcilable as it was with liberal constitutionalism. With the post-1978 Reform, another element of marketization was brought into the picture. Against the collective notion of ‘class’, individual human rights are now legally formulated, and more private laws are promulgated to re-privatize communal and state property. Based on a surface-level comparison, China is even close to converging with a modern understanding of the rule of law. Due to this complexity, (re)politicizing the constitutional itinerary of China could in fact lead in any of a number of directions: decolonization, Marxism, pluralism or neoliberalism. However, how can we distinguish between these complex articulations of the ‘political’?
Instead of a direct comparison with the British tradition, I suggest that Chinese political constitutionalism should be understood within its own context. For one thing, this is necessary if we take into account the many ambiguities and ideological debates concerning the values and defects of parliamentary democracy. More than that, though, British political constitutionalism itself is a changing and evolving idea whose 40-year development has undergone, according to Marco Goldoni and Chris McCorkindale, three successive waves: the functionalist approach of John Griffith, the normative approach of Adam Tomkins, Graham Gee and Grégoire Webber, and the reflexive exercise over the conditions of the political in the works of Martin Loughlin. As a result, the theme of their arguments has changed from ‘political constitution’ to ‘political constitutionalism’, from a descriptive to a reflexive account of what ‘the political’ is.Footnote 83 The works of the last wave are especially prone to looking beyond formal institutional arrangements specific to the British model and outwards to the many varied and unpredictable spaces of political action, namely the study of the forms and practices of constituent power in a more general sense.Footnote 84 In my opinion, Chinese political constitutionalism was inspired by the third wave and this enriched language of public law, and it could benefit from them more at a conceptual level. Therefore, while an agreement about how and what to compare may never be achievable in comparative jurisprudence, we should at least discuss what ‘the political’ is understood to mean in Chinese political constitutionalism then discern the theoretical gaps accordingly. To this question, I propose three answers: the political can be understood as genesis, as polity and as governance. The three concepts will serve as registers of comparability and as conceptual markers to ground our debates.
‘The political’ as genesis
Under this heading, I identify a group of political constitutionalists who insist that the juridification of the Constitution of China should not be taken for granted. Human rights are endorsed and protected by means of a legislative mechanism and a political process. In addition to this general law-and-politics relationship, some of the constitutionalists also have concerns about the real constitutional mechanism in China and whether adjudicating the Constitution introduces a clash of political ideas and programs.Footnote 85
Zhai, Gao and Tian’s theories fall primarily into this group. They share the central idea of the genesis of a constitutional state through political events. Among them, Zhai offers a particular combination of realism and Schmittian decisionism that leads him to identify the NPC as the agency of politicization, while Gao and Tian have more of an interest in abstract theories of modern institutionalization and public law.
It is certainly correct to contrast a political genesis with the view of naturalism embodied in legal constitutionalism. Dieter Grimm, in criticizing the trend of ‘auto-constituent constitutionalism’, provides a checklist of five characteristics to define constitutionalism, among which the first is ‘a set of legal norms’ that owe their validity to ‘a political decision’.Footnote 86 To put it succinctly, what is law is never self-authorized; without a full sense of politicization, law-making would not be guided by the common will but would instead collapse into forum shopping according to actors’ self-interests.Footnote 87 In this sense, Grimm argues that constitutionalism is ‘a special and particularly ambitious form of legislation’.Footnote 88 Important decisions should not be delegated to non-political institutions. Parliaments rather than courts, non-domination rather than freedom, and so on are at the core of the constitutional thinking of this group of political constitutionalism.Footnote 89
Gao’s ‘genesis’ thesis shares much in common with Grimm’s. The self-presentation of the people as public citizens during the ‘constitutional moment’ reflects Ackerman’s as well as Jürgen Habermas’s theories. However, it is notable that Gao’s ‘revolutionary counter-revolution’ only allows a ‘relational’ approach of the kind of political constitutionalism that Loughlin takes, which involves adjusting the real experience of ‘the political’ to the form of law making. For Loughlin, the essential paradox of constitutionalism is centred on one question: should the foundational moment begin with ‘the constitution of a political unity through a legal order’ or with ‘the constitution of a legal order by a political unity’?Footnote 90 Neither legal constitutionalism which renders constituent power redundant nor Schmittian political constitutionalism that is attributable to a mysterious constituent subject has taken the question seriously. Instead, Loughlin suggests that there should be ‘a dialectical relation between “the nation” posited for the purpose of self-constitution and the constitutional form through which it can speak authoritatively’.Footnote 91 If the people are to express their will, they have to be formed first and hence differentiated from ‘the existential reality of a mass of particular people (the multitude)’.Footnote 92 Moving beyond an opposition between representation and presence, between the normative and the existential,Footnote 93 ‘the space of the political’ can be opened and reopened in successive interplays between governmental action and constitutional imagination. And here lie, what Loughlin finds to be the dynamics of political constitutionalism.
However, we find two paradoxically opposing conclusions here. First, if the moment of ‘genesis’ is nothing if it is not distinguished from other moments, as Ackerman famously describes, a republican dialectic about the constitutional moment must nevertheless refrain from separating itself entirely from the normal ordering if it is to maintain itself as a dialectic. To contain the dangerous and the exceptional is also to restrict the occurrence of a unique moment of ‘the political’, such as any radical, paradigmatic shift. As a result, a ‘tame’ republicanism would link up to constitutional patriotism and dialectics about public citizenship, rather than to any dynamics that might be generative of the new.
Moreover, without a sociological analysis supplementing how individual interests could be channelled into ‘common interests’, this republican pedagogy of ‘the political’ embodies, more than Gao is willing to admit, nothing but ‘a political decision’. Without an analysis of social factors, the pedagogy will be ‘to decide’ itself – a pure decision without virtue. What is lacking in this ‘public law and political theories’ group is an analysis of real social conflicts. These theorists are more inclined to embrace these conflicts as multiple reconcilable layers of political theories. As seen in Gao’s writings, he holds an ambiguous attitude towards the process of marketization in China, which undercuts the socialist order to replace it with a more liberal one, while encouraging the pursuit of purely private autonomy on the other hand. However, according to Gao’s suggestions, are we to think that the two sides truly complement each other in this layering? What in this market order can instigate citizens’ ‘self-revolution’? We can only properly envisage a new constitutional order in contrast to the gaps that we discern. If political genesis intends to reason with the exceptional constitutional moment, then a sociological translation of what the contest consists of is necessary.
‘The political’ as polity
While the ‘genesis’ thesis pivots on the question of ‘who decides’, the ‘polity’ thesis drives the question in the direction of ‘who decides who decides’.Footnote 94 In constitutional theories, ‘polity’ refers to the ‘prior affective bonds of community in representing itself and its various outputs as a common accomplishment’,Footnote 95 which endows ‘collectivities with a measure of identity, hierarchy and capacity to mobilize followers for political purposes’.Footnote 96 Although in history the achievement of the modern legal system is heavily dependent upon the modern state,Footnote 97 this ultimate reference becomes a point of questionability in contemporary constitutionalism. As Ulrich Preuss has put it, rather than limiting a pre-existing power, ‘by transforming a multitude into a collective or corporate entity’, constitution creates ‘the collective power of that multitude in the first place’.Footnote 98 To be more precise, ‘the turn from having power to being a power constitutes polity.’Footnote 99
As a ‘meta-democratic pedigree’, the polity thesis is posed as a ‘qualification of democracy’ or as ‘a democracy about democracy’.Footnote 100 As Neil Walker puts it:
By polity legitimation is meant the fundamental acceptance of the entity in question as a legitimate political community – as one possessing the authority to subject matters that significantly affect the life chance of the putative community’s member to collective decision making. At the same time, such legitimation must inspire, in a related fashion (since the authority of legal and political power is inseparable from its social acceptance), a sufficient sense of social identity or ‘we feeling’ as to induce compliance with and thus to render effective the collective decisions made on its behalf and in its name.Footnote 101
This communitarian theme is relevant for almost all political constitutionalists in China in their attempts to establish a constituent power of China’s own. In Walker’s argument, the ‘we feeling’ symbolizes a fundamental recognition of and compliance with constitutional authority, which is inspired by institutional performance but cannot be reduced to it. ‘Polity’ in this sense indicates a layer independent of juridical-political operations. In Chinese political constitutionalism, we find this feature particularly active. Instead of having recourse to the polity to qualify democracy with regard to who is included or excluded, ‘polity’ becomes a term that could not be qualified by democracy – an ‘otherness’ to the phraseology of modern democracy and a sign of an alternative way of being, such as a ‘theocratic’ constitutionalism, a worldview of Tianxia (all under the heaven – that is, the world), or an all-people’s party representing the ‘truth’.
Indeed, according to Claude Lefort, democracy is an ‘empty place’, not a completed form.Footnote 102 The adoption of a cultural perspective in understanding the motivations that underpin the formation of a nation by individuals could itself be a democratizing move transcending the thin conception of modern democracy. Nevertheless, this does not entail cultural embeddedness and reconfiguration to be a stopping rule immune from examination. For example, recently in China, the argument for ‘Correlating Three Traditions (tong san tong)’Footnote 103 has supported a unified reading of Chinese history, which worryingly distracts discussions from the ruptures, gaps and discontinuities of constitutional transitions in China. Consequently, the invocation of ‘polity’ as the centre of constitutionalization has no other function than to bind together and harmonize, which has been acutely criticized by Brian Tamanaha: ‘to target reform efforts at culture … is the same refusal to learn’.Footnote 104 To summarize, what I am contending here is not that ‘polity’ is not a constitutional issue, but that ‘polity’ is not an operational notion for constitutional theory. To put it precisely, is the separation of ‘polity’ from ‘democracy’ politically meaningful? Should we qualify or enhance participatory democracy with motivational elements of ‘we feeling’ other than the fact of inclusion into the political process? To ask the question otherwise, how could the ‘we feeling’ be posited less as a recognition and more as an operation? Privileging ‘polity’ to register political constitutionalism will too readily lead to a coalescence of consensus and an exclusion of those whose voices cannot be heard.
‘The political’ as governance
Compared with other political constitutionalists, Jiang and Zhu hold a distinct social-scientific understanding of constitutionalism as ‘governance’. This understanding is derived from the micropolitical and anatomical-political approach of Foucault that deviates from the explicitly political register. In the ‘governance’ literature, the power relation is more concrete, open-textured and strategic compared with political decisions and hierarchy.
‘Governance’ thinking advocates a deviation from the formal holism of law, which originated in the late eighteenth century when the notion of constituent power began to replace the multiple sources of law.Footnote 105 By imposing a heteronomous order on the people, constituent power has been conceptualized to a large extent as a ‘civilizing force’ that only facilitated the state ‘authority’ to rule the society.Footnote 106 However, in the context of globalization and contemporary developments of constitutionalism, the demand to break away from this holistic feature and to revive the ‘expressive’ functions of law by means of legal pluralism is increasingly high.Footnote 107 As Nico Krisch puts it, ‘Whether the contrast between the “vertical” and “horizontal” dimensions is ultimately useful may be doubted … More substantively, we may understand both vertical and horizontal conflicts as expressions of a competition among constituencies.’Footnote 108
According to Krisch’s conception, constituencies are not united hierarchically but contingently in a ‘feedback effects’ paradigm.Footnote 109 Actors who fail to protest against new authority claims may later find themselves entrapped in this initial acceptance so that they will watch for negative feedbacks. Furthermore, the weakness of polity ties and the deficiencies on the input side could be outweighed by substantive gains such as greater output – the effective provision of public goods.Footnote 110 This paradigm is very similar to Jiang’s ‘incident/relation’ model, and is quite productive for theorizing the process of constitutionalization in China, which is not happening in a vacuum of norms but in a relation of competition between two legal cultures: indigenous and transplanted, traditional and modern. Instead of imagining all the people convened together to make a new constitution, the governance paradigm casts new light on how modern state apparatuses incrementally permeated the Chinese society.
As convincing as these practicalities are, the governance thinking nevertheless has not put its political implications under a critical lens. This defect was discerned by Foucault, who genealogically examined how the ‘governance’ thinking has transformed the structure of government fundamentally. As he found, from the eighteenth century a new art of ‘frugal government’ that balanced between maximum and minimum state intervention gradually substituted for ‘the problem of constitution’ based on the natural rights of man. It transformed the focus of constitutional theory from seeking ‘emancipation’ from state power to studying the effects of state power. As Foucault puts it, those advocates of the new governmental rationality ‘arm its politics with a precise, continuous, clear and distinct knowledge of what is taking place in society, in the market, and in the economic circuits … [The government] is limited by evidence, not by the freedom of individuals.’Footnote 111
In this respect, governance brings a political economy of the knowledge about how to govern into the constitutional map and fundamentally changes the constitutional imaginations: by juxtaposing the good with the bad, the productive with the counter-productive models, it disciplines people to opt for the positive rather than to ‘hit the bottom’ of the power structure. As Krisch admits, power does not vanish in this process but becomes bracketed. In other words, the governance thesis does not necessarily clash head on with the polity thesis, but rather builds on the polity thesis with a completely different governmental reason. It becomes a mode of role-assignment internal to the government – or, in Foucault’s words, ‘it is the reason of the least state within and as organizing principle of raison d’etat itself’.Footnote 112
Likewise, underlying Jiang’s argument, it is important not to delegitimize the ‘government’, but to find the most efficient pattern of ‘governance’ within the ‘government’. It focuses less on the equal protection of human rights against state power than the enabling of a particular winner to excel in getting their interests realized in this power game. In this sense, it optimizes the effects of power at the expense of being contained by the power. In other words, treating the political as a governance model would reduce the power structure to performance, the social to the privileged, and assign only the ‘proper’ participation to the subjects. In contrast to what Jiang claims – now that all the private laws are public again – governance works privately. It assumes that all contestation is containable so long as we find an appropriate strategy to bracket the negative effects of power. However, this appropriateness may nevertheless be inappropriate for individual citizens claiming their fundamental rights or seeking a radical change in the foundation of the government.
IV. ‘The political’ as contestation
Chris Thornhill once argued that, ‘In society marked by a post-constituent constitution, law’s authority is left to repose on inner-juridical principles, and its final point of constituent regress vanishes.’Footnote 113 Contemporary constitutionalism and China, which is on the receiving end of classical constitutionalism without much knowledge about its functions, meets with the same crisis in seeking what is constituent power and who is the constituent subject. Nevertheless, it reminds us that, although political constitutionalism emerges with an intention to empower ‘the people’, there are also implicit risks inherent in substituting the highly contested meaning of ‘constituent power’ with various empirical and historical representations. In the final analysis, what is most difficult may lie in how we could conceptualize such an ultimate regress of constituent power rather than undercut it through various substitutes.
In the tradition of political constitutionalism, Schmitt famously argues that constituent power acts ab novo, a statement that has caused massive anxiety about such a horrific void and that has propelled us to fill in all the candidates that we could find: an agency that decides at the moment of exception, the polity that backs up the recognition of the constitutional authority or a consequentialist reading of common interests. However, all these are attributable to an idea of establishment and, once solidified, it will become immune to further politicization. For Schmitt, though, this ab novo nonetheless means that, ‘The constitution-making power is not bound by legal forms and procedures; it is “always in the state of nature”.’Footnote 114 How inconceivable that constituent power as one of the two essential elements of classical constitutionalism is unconstitutional as the characteristic content of ‘dictatorship’.Footnote 115 This paradox, sharply revealed by Schmitt, would be meaningless if we focused on discerning ‘who’ makes the constitution and accordingly decides the content of the constitution. I suggest, though, that we adopt an operational interpretation of this claim: the critical and political edge of constituent power resides in a contingent operation of contestation against the constituted.
Herein lies precisely the paradoxical gesture of classical constitutionalism. As Emilios Christodoulidis puts it, constitutionalism always embodies a democratic/political surplus which is a theoretical impasse as well, ‘the notion of a structure-defying event that somehow implausibly registers as “constitutional” despite the conditions of its individuation’.Footnote 116 Instead of filling in a predetermined framework, constituent power is reclaimed only through successive contesting actions that prevent it from being absorbed into the constituted. In this respect, constituent power cannot be explored through a chain of attribution or an infinite regress, but by contingent and uncompromising resistances against what has already been condensed into the constitutional orders. Henceforth I insist, against Chinese political constitutionalists, that ‘the political’ should be inseparable from ‘the contestable’. The combination of ‘the political’ with ‘the constitutional’ is not just to support and maintain the normal order, but also to find and redress normative gaps. For example, even though in Qi Yuling’s case the constitutional mechanism in China did not allow the constitutional ‘right to education’ to be adjudicated, it should not be reduced to a civil law case when the existent enabling legislation apparently disables an accessible remedy. This constitutes a gap in ‘constitutionality’, and calls forth a redress constitutionally, even in the absence of a ‘juridification-of-constitution’ mechanism. Why should we repress such a dissent over the sufficiency of rights protection in China and reduce it to civil law? Does political constitutionalism in China merely aim to generate another dogmatic understanding of what constitutes ‘the political’?
In his Ten Theses on Politics, Jacques Rancière provides invaluable insights into the political. He defines politics by two elements: subject and relation.Footnote 117 However, he also stresses that these two are inseparable by definition: ‘politics is the existence of a subject defined by its participation of its contrarieties’.Footnote 118 The traditional political theory tends to focus on the subject end and accordingly explores how human beings gather into a political community. It partitions the sensible ‘part-taking’ so as to guarantee the ‘fittingness of functions, places, and ways of being’.Footnote 119 Yet Rancière attaches the term ‘police’ to such a ‘pure form of politics’, in contrast to the essence of ‘politics’, which is precisely ‘to disturb this arrangement by supplementing it with a part of no-part identified with the community as a whole’.Footnote 120
Rancière’s arguments were particularly targeted at a ‘return of the political’ in France in the 1980s. The primary aim of political philosophy at that time was to establish the principles according to which the political community should be properly organized, hence the whole discipline was centred on the ‘archi-politics’ of Plato and the ‘para-politics’ of Arendt.Footnote 121 However, Rancière attributed them to the logic of the ‘police’, as in both theoretical streams the ‘polity’ thesis itself is exempted from examination. To the opposite, Rancière insists that political subjectivity should always be provisional and ‘on the shore of its own disappearance’.Footnote 122 It is a structural void that can neither be prescribed by any political philosophy nor generated in a single event. Only through an operation of rupture with the ordering function of ‘the police’ – no matter whether it is legal fetishism, political community, governance or republican virtue, the political subject (re)appears. Thus, as Rancière summarizes, ‘It is the political relationship that allows one to think the possibility of a political subjectivity, not the other way around.’Footnote 123
Likewise, between the ‘eclipse of the political’ and the ‘return of the political’, the void of constituent power in China has variously been filled to meet the concerns inherited by the legacy of Chinese constitutional history. They are important and valid concerns, but theorists are all too ready to condense and fix a proper modality of constitutionalization in a way that pre-empts or pacifies dissent. As a result, ‘the people’ did not return with the ‘political constitutionalism’ but are continually displaced by other immediate and historical representations. With the help of Rancière, we reclaim the life of constituent power as operational, as an act of negation or dis-identification. It is through a relation with the ‘enemy’ – a Schmittian term translated functionally and sociologically – that constituent power is defined anew. In this light, I insist that political constitutionalism in China should not be a ‘political but incontestable’ constitutionalism. To keep the nerve of political constitutionalism alive, constitutionalists should divert their attention from theorizing a consistent political dogma to those ruptures and discontinuities in the constitutional transitions of China that socially decoupled legalization in form from constitutionalization in substance.
Acknowledgments
I wish to thank Professor Emilios Christodoulidis for his careful reading of an earlier draft of this manuscript, for helping me correct it and for his invaluable support and mentorship throughout these years. I also want to express my gratitude to the two anonymous reviewers and the editors of Global Constitutionalism for their very helpful comments and suggestions, and to Ms Aygun Mammadzada for all her assistance during the publication process.
