China's Comparative Constitution.

• Author: Son, Bui Ngoc

TABLE OF CONTENTS I. INTRODUCTION 2 II. CHINA'S CONSTITUTION COMPARED 5 A. Country-Studies 5 1. Overview 5 2. Constitution Making, Constitutionalism, and Identity 6 3. Comparative Implications 8 B. Concept Formation 12 C. Causal Inference 15 D. Large-N Studies 20 III. EXPLAINING COMPARATIVE ENGAGEMENTS 21 A. Conditions 21 1. The Dynamics of China's Constitution 21 2. The Dynamics of Comparative Constitutional Law 26 B. Factors: Knowledge, Necessities, and Political Views 28 IV. CONCLUSION 29 I. INTRODUCTION

In his seminal book Comparative Matters, published in 2014, Ran Hirschl lamented that mainstream comparative constitutional law has focused on "a handful of 'usual suspect' settings that are mainly of the western, liberal-democratic breed." (1) China has been marginalized in the field for this reason. Wen-Chen Chang and David Law observe that: "Perusal of the English-language comparative constitutional law literature leaves the vague impression that there has been as much written on Singapore--an independent city-state with roughly the population of greater Miami--as on China, home to one-fifth of the world's population and a growing economy to match." (2)

Recent years, however, have witnessed comparative constitutional law's greater engagements with China. Chinese constitutional experience has been discussed by leading constitutional comparatists, published in major law reviews and journals, (3) and included in important collections. (4)

In addition to comparative literature, a growing body of English language country studies provides detailed treatments on China's constitutional issues. (5) These national accounts have comparative implications.

This Article seeks to explain how and why comparative constitutional law scholarship has had greater engagement with China's constitution than the previous periods. It also discusses the comparative implications of the national accounts of China's constitution. This Article focuses on the relevant English language scholarship in the last five years. (6) It adopts a functional definition of "constitution" to denote "a larger set of constitutional elements," including the written text, theories, traditions, aspirations, and interpretations. (7) In this sense, the term "Constitution" with the large-C refers to China's constitutional text, while the term "constitution" with the small-c refers to China's larger constitutional order.

This study is drawn on Hirschl's formulation of modes and factors of comparative constitutional inquiry. The modes include single-country studies, concept formation, inference-oriented small-N studies (with the most similar, most different, most difficult, prototypical, and outlier cases principles), and large-N studies. (8) According to Hirschl, comparative constitutional engagement is driven by three analytically distinct but possibly intersecting factors, namely: necessity or the need for political and legal development; inquisitiveness or intellectual curiosity and quest to explore and explain the unknown; and politics or comparative engagement as the instrument to promote certain political agenda, worldview, ideology, or conceptions of good society. (9) In addition to modes and factors, this study contends that it is important to explore the conditions for comparative engagements with China's constitution. These conditions involve the changing context of China's constitution and the changing state of comparative constitutional law.

On that epistemological and methodological base, this Article argues that the comparative engagements with China's constitution are due to the increasing sociopolitical significance of the country's constitutional text and the institutional trend of its living constitutional order, and the recent jurisdictional, substantive, and epistemological expansion of comparative constitutional law. The comparative engagements are principally animated by the constitutional intellectuals' curiosity to explore the unknown regarding China's constitutional dynamics. But the engagements are also partially driven by the need of China's constitutional development and particular outlooks on constitutional justice.

The remainder of this Article is structured as follows: Part II explores national and comparative accounts of China's constitution, Part III explains the conditions and factors of comparative constitutional law's engagement with China's constitution, and Part IV concludes.

2. CHINA'S CONSTITUTION COMPARED

   This Part reviews some recent national accounts of China's constitution and discusses their comparative implications. It then explores, in a critical way, various modes of comparative inquiry into China's constitution.

   1. Country-Studies

      1. Overview

         A rich body of English language country studies canvasses a range of Chinese constitutional issues. Numerous papers on Chinese constitutional law have appeared in national, regional, and comparative outlets, such as the Chinese Journal of Comparative Law, the Hong Kong Law Journal, and the Tsinghua China Law Review, among others. Several nonlegal periodicals focusing on China, such as the Modern China, The China Journal, and the China Review, have also published scholarship on Chinese constitutional issues and their relations to the broader social and political milieu. Last but not least, Chinese constitutional issues have been discussed in recent collections dealing with Chinese law reform (10) generally or on constitutional development (11) particularly.

         Such country studies provide readers a deep understanding of China's constitutional system, different aspects of its constitutional history. (12) Such inquiries also explore China's contemporary, specific constitutional institutions, practices, dynamics, such as the 2013 constitutionalism debate, (13) the 2018 constitutional amendments, (14) constitutional legitimacy, (15) judicialization of the constitution, (16) constitutional enforcement, (17) and constitutional education. (18) These country studies contain some comparative elements and resonate with recent debate in comparative constitutional law. From a functional perspective, it can be said that that the constitutional problems (e.g., design, constitutionalism, and identity) confronting China may be the common constitutional problems. To illustrate, consider the three books below.

      2. Constitution Making, Constitutionalism, and Identity

         The book Chinese Legal Culture and Constitutional Order, written by Chinese-American political scientist Shiping Hua, provides a comprehensive treatment of constitution making in China. (19) It divides China's constitution making and reform into six periods: late Qing (e.g., the Imperial Constitutional Outline); Republican (e.g., the 1946 constitution of the Republic of China or ROC); early People's Republic of China or PRC (e.g., 1954 Constitution); Maoist (e.g., 1975 Constitution); the Dengist (e.g., the current 1982 Constitution); and the four constitutional amendments in 1988, 1993, 1999, and 2004. (20) Hua argues that constitutional reforms in China are shaped by Chinese legal culture's four common elements, namely, pragmatism, statism, instrumentalism, and favoritism. He contends that legal and constitutional reforms were based on political elites' practical consideration and used as the tool to strengthen the state and to grant or withdraw rights to citizens depending on circumstances. (21) The book offers useful contextual knowledge on the cultural, social, political, and economic conditions of Chinese constitutional change. Although it is primarily a country study, it includes some horizontal comparisons (with Meiji, US, and Soviet constitutions) and vertical comparisons (e.g., the 1982 and 1954 constitutions). (22)

         Another important book, Chinese Constitutionalism in a Global Context by Peng Chengyi, a Chinese political science scholar in Beijing, is a comprehensive exploration of Chinese contemporary debate on constitutionalism. (23) The debate has a long history in China but reached wider popular platforms (newspapers and the internet) in 2013, triggered by President Xi Jinping's statement on the implementation of the Constitution. (24) Chengyi identifies three approaches in Chinese constitutionalism debate: Western liberal, Confucian, and Marxist. He documents two waves in the spread of Western liberal constitutionalism in China: the first wave during late Qing and early republic periods and the second or contemporary wave starting from the reform era. (25) Driven by the concern of political freedom, advocates of Western liberal constitutionalism called for free elections, institutional checks and balances, the rule of law, human rights protection, and constitutional supremacy. (26)

         The liberal constitutional discourse generated a traditionalist reaction--the Confucian approach. The advocates of Confucian constitutionalism believe that the liberal constitutional proposals "all lack native features." (27) Consequently, some descriptive accounts explored constitutional ideas and institutions (e.g., institutional checks on royal power through remonstrance and censorship, li, or propriety as a system of fundamental rules and norms) in Chinese Confucian tradition, while other normative accounts proposed a model of constitutionalism for future China, rooted in Confucian philosophy. (28) Particularly, Jiang Qing submitted a normative model of Confucian constitutional order characterized by, among others, a bicameral legislature (Confucian, national, and common houses) as the institutional embodiment of triple sources of constitutional legitimacy (Heaven, national culture, and the people). (29) Like the liberal approach, the Confucian approach implicitly or explicitly denies the legitimacy of the existing socialist constitutional system in China.

         Another critical reaction to the liberal model is the so-called "Sinicized Marxist Constitutionalism." (30) China's legal reforms and socioeconomic development in the last...