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The Party as Polity, the Communist Party, and the Chinese Constitutional State: A Theory of State-Party Constitutionalism
Journal of Chinese and Comparative Law (2009)
  • Larry Cata Backer, Pennsylvania State University
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. There is a sense of illegitimacy, and a suggestion of the construction of sham constitutions, in regimes in which the ultimate state power is vested in an apparatus which itself is subject to the direction of an extra constitutional power, which in turn is meant to mask personal rule. With state under Party, and Party a system of leveraging personal power, the state-party system had come to be understood as a cover for tyranny and despotism, as a veil over the personal rule of an individual or a clique according to their whim and supported by the coercive power of military establishments and internal terror regimes. In this context, constitutionalism is incomprehensible. These judgments have formed the basis of analysis of Chinese constitutionalism as well, serving as the foundations for critique especially after the reforms of Deng Xiaping and his successors after 1989. But are these criticisms inevitably correct in general, and wholly applicable in the post 1989 Chinese context? This paper explores those questions, suggesting a basis for the articulation of a legitimizing constitutionalist theory for states organized on a state-party model along certain lines. Focusing on the evolution of state-party constitutionalism in China since 1989, the article first reviews the basic principles of current constitutionalism theory and its importance as a legitimating global ideology against which state organization, and the actions of state officials, are judged. 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 reception in China in the 1920s, and its modern transformation "under the guidance of Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory and the important thought of 'Three Represents'" (PRC Constitution 2004, Preamble). Drawing from the implications of the evolution of theories of state-party constitutionalism in China, the article suggests that it is possible to theorize a state-party model of state organization that remains true to the ideals of constitutionalism grounded in the core postulate of rule of law governance. The basis of Chinese state-party constitutionalism requires a reconception of an understanding of constitution - to include both the document constituting the state and that constituting the Party as equivalent components that together form the national constitution as understood in the West. It is also based on a different understanding of the character of the Communist Party - not as a political party or as a private actor but as an integral part of the institutional structure of government, and more importantly, as the holder of political citizenship. These insights produce substantial consequences for the ways in which Chinese constitutionalism are understood and evaluated under global constitutionalist standards, which are discussed in the last section of the paper. These include the reflection of the party-state construct (1) in a division of the character of citizenship between economic and social citizenship, claimed by all persons, and political citizenship, which can be exercised through the Party, (2) in an understanding of political organization in which the state power and its institutions are subordinate to political authority, (3) in an institutionalization of political authority within a collective that serves as the source and conduit of constitutional values to be applied by the holders of state authority, and (4) in a system in which Party elaboration of rule of law values is contingent on state and party self discipline. Chinese constitutionalism, understood as state and party constitutionalism can, together, serve as a basis for understanding the way in which rule of law governance is legitimately possible where the disciplinary focus of constitutional duty is focused, not primarily on the state apparatus, but instead centers on the Party apparatus. 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. But thus constructed, even state-party systems can claim a certain legitimacy as a constitutionalist system - though one whose substantive values are inconsistent with those of secular transnationalist constitutionalist states. This is constitutionalism with Chinese characteristics.
  • constitutional law,
  • jurisprudence,
  • China,
  • communist party,
  • rule fo law,
  • democracy,
  • separation of powers
Publication Date
Citation Information
Larry Cata Backer. "The Party as Polity, the Communist Party, and the Chinese Constitutional State: A Theory of State-Party Constitutionalism" Journal of Chinese and Comparative Law Vol. 16 Iss. 1 (2009)
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