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Constitutional Text and Political Reality in China

Richard Albert, Boston College Law School

The New York Times recently published an interesting article on the Chinese Constitution. As the article reports, Chinese reformers are lobbying the government to live up to the commitments entrenched in the Constitution. These reformers see a disjuncture between the constitutional text and political reality in China, and they want to narrow the distance between them.

The article continues: “Now, in a drive to persuade the Communist Party’s new leaders to liberalize the authoritarian political system, prominent Chinese intellectuals and publications are urging the party simply to enforce the principles of their own Constitution.”

One of the intellectual leaders behind this movement is Zhang Qianfan, a constitutional law professor at Peking University. Professor Zhang wrote a paper on this very subject a couple of years ago entitled “A Constitution Without Constitutionalism? The Paths of Constitutional Development in China,” which appeared in the International Journal of Constitutional Law. In his paper, Professor Zhang argued that China’s constitutional text does not match up with its political reality:

China’s Constitution lacks any meaningful mechanism for implementation and is left unguarded against official violations; it declares a long list of good ideals without the capacity to fulfill any. One can easily find unfulfilled promises and positive violations of the stated constitutional norms in daily life. To use Giovanni Satori’s term, it is simply a “façade,” which seems to be useful, if at all, only for improving the government’s image.

More recently, David Law and Mila Versteeg have brought to bear some empirical analysis on the claim that China’s Constitution has failed to live up to the expectations the text itself has set. In their forthcoming paper entitled “Sham Constitutions,” Professors Law and Versteeg measure constitutional compliance along a number of dimensions.

With respect to China, the numbers are perhaps surprising. Professors Law and Versteeg find that China was once, in 1986, among the twenty-five worst sham constitutions. But by 2006, China was no longer on that list. China had instead migrated to another list by 2006: the twenty-five weakest constitutions, a ranking featuring constitutions that neither promise much nor deliver much.

Whether China’s Constitution is weak or a sham, it nevertheless remains important that Chinese political leaders narrow the gap between China’s constitutional text and its political reality.

Suggested Citation: Richard Albert, Constitutional Text and Political Reality in China, Int’l J. Const. L. Blog, February 6, 2013, available at: http://www.iconnectblog.com/2013/02/constitutional-text-and-political-reality-in-china.

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Published on February 6, 2013
Author:          Filed under: Analysis
 

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