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4 - Constitutions and Constitutionalism: China

from II - Concepts and Definitions

Published online by Cambridge University Press:  17 February 2022

David S. Law
Affiliation:
University of Virginia
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Summary

The ideas and practices of constitutions and constitutionalism were first imported into China in the late 19th century. There were three eras of constitution-making in modern Chinese history: the last decade of Qing imperial rule, the republican era, and the communist era. Dr Sun Yat-sen, founding father of the Republic of China (RoC), developed a three-stage theory of China’s political development in which the last stage was to be constitutionalism (xianzheng). Although this was realized in theory when the RoC Constitution of 1946 was enacted, the Constitution became largely suspended as the RoC regime moved to Taiwan and introduced martial law after its defeat by the Communists in the Chinese Civil War. The People’s Republic of China (PRC) was established in the Mainland, which witnessed a new era of constitution-making under the Soviet Union’s influence. However, even today, the discussion of “constitutionalism” (xianzheng) is still discouraged by the PRC regime, although the concepts of the (socialist) Rule of Law and human rights have been affirmed by constitutional amendments. This chapter will review and assess the history of constitution-making in modern China and the discourse of constitutional law scholarship in contemporary China, and it will explore how the case of China both illuminates and challenges conventional understandings of the meaning and significance of constitutions and constitutionalism in the contemporary world.

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Chapter
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Publisher: Cambridge University Press
Print publication year: 2022

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References

Primary Sources

Grimm, Dieter, Constitutionalism: Past, Present and Future (Oxford University Press, 2016), chs. 1, 2, 18.Google Scholar
Galligan, Denis J. and Versteeg, Mila (eds.), Social and Political Foundations of Constitutions (Oxford University Press, 2013), ch. 1.Google Scholar
Ginsburg, Tom and Simpser, Albert (eds.), Constitutions in Authoritarian Regimes (Cambridge University Press, 2014), chs. 1, 3, 11.Google Scholar

Secondary Sources

Balme, Stéphanie and Dowdle, Michael W. (eds.), Building Constitutionalism in China (Palgrave Macmillan, 2009), chs. 3, 5, 7, 13.Google Scholar
Quanxi, Gao, Zhang, Wei and Tian, Feilong, The Road to the Rule of Law in Modern China (Springer, 2015), chs. 3–6.Google Scholar
Zhang, Qianfan, The Constitution of China: A Contextual Analysis (Hart, 2012), chs. 4, 5, 7, 9.Google Scholar

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