Constitutions, Constitutionalism and the Case of Modern China

Abstract

The ideas and practices of written constitutions and constitutionalism that originated in the West in the 18th century 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 (1901-11), the republican era (1911-1949), and the communist era (1949-). The establishment of the People’s Republic of China (PRC) in the Mainland in 1949 inaugurated 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 in 1999 and 2004 respectively.

This paper will first review the historical evolution of constitutions and constitutionalism in the modern world (part I), and consider possible typologies of constitutions and constitutionalism in the contemporary world (part II). It then introduces the historical and ideological contexts of constitutional developments in modern China, and describes the operation of the Chinese constitutional system (part III). Finally, it considers whether or to what extent, or what type (if any) of, constitutionalism is practised in contemporary China (part IV).