Contested constitutionalism: constitutionalization in contemporary China

HN Social history and conditions. Social problems. Social reform;JC Political theory;K Law (General)

Bian, Su ; Christodoulidis, Emilios

University:University of Glasgow

Department:School of Law

关键词: constitutionalism, China, social transformation, marketization;   

Others  :  http://theses.gla.ac.uk/6589/7/2015BianPhD.pdf

来源: University of Glasgow

【 摘 要 】

This thesis was written on the constitutional changes of contemporary China, with the 1982 Constitution as the object of researches. This constitution is the currently valid constitution in China, and is expected by constitutional scholars to be put in “juridification”. However, for thirty years since its birth, this task is yet to be realized. What is more, the claim of “judicialization of the constitution” as Chinese legal constitutionalists held especially during the 1990s, is now contested by emergent constitutional schools as one of many constitutions in China. They are arguing that China’s constitutional reality should not be colonized by the Western-originated constitutional science –classical constitutionalism.Having perceived the critical merits of China’s new constitutional schools, this thesis is wary of confirming unconditionally the other end of arguments, namely, applying critical theories to condense into “constitutionalism with Chinese characteristics”. The use of “constitutionalism” to describe the Chinese model, however, should be examined against whether it has indeed resolved the material problems in China’s constitutionalization, or is merely an inflationary application of the terminology. If China’s legal constitutionalism is seen as implanting formalism of Hayekian theory in service of global capitalism, in the second-generation constitutional discourse, have we opted out of this mentality and re-constituted ourselves?Constitutionalization in contemporary China hence is a complex issue covering the grounds of institutional, political as well as conceptual controversies, more than a practical issue of applicable mechanisms. The conceptual arguments on “what is constitutional” are especially challenging to classical constitutionalism, when combined with “identity politics” and “constitutional pluralism”. Between the material and conceptual level, I am insisting that the ‘democratic deficit’ caused by China’s 1990s economic reforms and the market mentality still needs a redress, before we could render its hybrid outcomes as “constitutionalism with Chinese characteristics”.