Government Under Party, Party Under Constitution: On the Construction of Chinese State-Party Rule of Law Constitutionalism

Larry Cata Backer, Pennsylvania State University

Abstract

Since the establishment of the Soviet Union, constitutional theory has tended to look suspiciously at the constitutionalization of Marxist Leninist state apparatus under the control of a single party in power. These judgments have formed the basis of analysis of Chinese constitutionalism as well. But are these criticisms inevitably correct in general, and wholly applicable in the post 1989 Chinese context after the structural reforms of Deng Xiaoping and his successors? This paper explores those questions, developing a constitutional theory for states organized on a state-party model. The thesis of the article is this: Chinese constitutionalism presents a coherent and complex normative system memorialized in a written constitution that is compatible with the basic presumptions of conventional constitutionalism. That system divides the organization of the state into two parts, both operating under the normative framework of the constitution—a government apparatus charged with the lawful operation of the state, and a Party apparatus charged with the elaboration of the substantive principles of constitutionalism and its application for the state sector whose actions are also governed by its own constitution. The article first reviews the basic principles of current constitutional theory and its importance as a legitimating global ideology for the organization of government and the framework within which its powers are delimited. The article then looks to the evolution of the party-state model of governance from its origins in 19th century European Marxist-Leninist theory to its initial reception in China, and its modern formal transformation “under the guidance of Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory and the important thought of 'Three Represents'” (PRC Constitution 2004, Preamble). The article then suggests that it is possible to theorize a state-party model of state organization that remains true both to the ideals of constitutionalism grounded in the core postulate of rule of law governance and to the Marxist-Leninist principles under which the Chinese state is organized and through which it is governed. This argument is based on an understanding of the relationship between state and Party grounded in a division between economic and social citizenship and political citizenship. Rule of law constitutionalism in China, then, is better understood as state-party constitutionalism, with a necessary focus on party rather than state, grounded in separation of powers principles in which the administrative function is vested in the state and political authority over all is vested in the Party under law.