courts neither began nor ended with that important case.Instead,the roots of the movement can be found in a handful of scholarly writings from the mid-1990s which emphasized the need for a judicial role in constitutional development.Perhaps responding in part to these scholarly writings,a small handful of courts began to cautiously,and sometimes only implicitly,make use of constitutional norms in deciding cases.By the early 2000s,one scholar was able to collect more than thirty cases in which courts across China had cited constitutional rights provisions in the text of their decisions The Qi Yuling case,in which the Supreme People's Court issued a legally thorny document that seemed to indicate that the constitution could be directly applied to civil cases,was undoubtedly a watershed:the case led to an explosion of academic and popular commentary on the issue,with many legal scholars calling for the creation of some sort of constitutional review mechanism.Strong political pressure from the central government meant that the SPC itself had to abandon its attempts to push forward on constitutional development,but litigants have continued,even in the face of government pressure in some cases,to advance constitutional claims in the judicial system,and to argue that the cases that they bring are having a transformative institutional effect.In essence,while the government is slowly groping its way toward a theory of constitutionalism and a mechanism for constitutional enforcement that it can live with. litigants are racing ahead,attempting to push the legal system to respond to increasingly complex and increasingly well-articulated constitutional rights claims. In this paper I argue that,rather than being viewed as a static and primarily political document,the Chinese constitution should be seen as a legal-political document whose status is very much in flux.I argue that,as the Marxist legal theory on which the constitution was based has declined,an opportunity for re-interpretation of the constitution and its potential multiple meanings has emerged,and that scholars and lawyers are both exploiting this opportunity in an attempt to argue in favor of constitutional analyses that allow for a greater judicial role in rights protection.Several scholars and lawyers have chosen to bring cases on the basis of these alternative readings, attempting to push the courts to respond directly to constitutional arguments that,under a more formal reading of the constitutional document,they are not empowered to judge. This paper is organized as follows:in the first section,I lay out some of the theoretical concerns raised by the decline of Marxist legal theory,what I refer to as the "orthodox theory"of Chinese constitutionalism.In the second section,I describe the generally accepted view-the "orthodox view"-of the allocation of authority under the Constitution.In section three,I describe and analyze some of the critiques that have been offered of the orthodox view,and dissect some of the alternative analytical reads that some Chinese scholars have offered of the Chinese constitution.Because these alternative scholarly analyses often rely heavily on the constitutional text and generally ignore the theoretical foundations on which the text was based,I refer to these alternative approaches as "technocratic textualism."I also give a brief account of some of the constitutional litigation that this alternative view has spurred,focusing in particular on hepatitis B anti-discrimination litigation.In conclusion I offer a few brief thoughts on 5
5 courts neither began nor ended with that important case. Instead, the roots of the movement can be found in a handful of scholarly writings from the mid-1990s which emphasized the need for a judicial role in constitutional development. Perhaps responding in part to these scholarly writings, a small handful of courts began to cautiously, and sometimes only implicitly, make use of constitutional norms in deciding cases. By the early 2000s, one scholar was able to collect more than thirty cases in which courts across China had cited constitutional rights provisions in the text of their decisions. The Qi Yuling case, in which the Supreme People’s Court issued a legally thorny document that seemed to indicate that the constitution could be directly applied to civil cases, was undoubtedly a watershed: the case led to an explosion of academic and popular commentary on the issue, with many legal scholars calling for the creation of some sort of constitutional review mechanism. Strong political pressure from the central government meant that the SPC itself had to abandon its attempts to push forward on constitutional development, but litigants have continued, even in the face of government pressure in some cases, to advance constitutional claims in the judicial system, and to argue that the cases that they bring are having a transformative institutional effect. In essence, while the government is slowly groping its way toward a theory of constitutionalism and a mechanism for constitutional enforcement that it can live with, litigants are racing ahead, attempting to push the legal system to respond to increasingly complex and increasingly well-articulated constitutional rights claims. In this paper I argue that, rather than being viewed as a static and primarily political document, the Chinese constitution should be seen as a legal-political document whose status is very much in flux. I argue that, as the Marxist legal theory on which the constitution was based has declined, an opportunity for re-interpretation of the constitution and its potential multiple meanings has emerged, and that scholars and lawyers are both exploiting this opportunity in an attempt to argue in favor of constitutional analyses that allow for a greater judicial role in rights protection. Several scholars and lawyers have chosen to bring cases on the basis of these alternative readings, attempting to push the courts to respond directly to constitutional arguments that, under a more formal reading of the constitutional document, they are not empowered to judge. This paper is organized as follows: in the first section, I lay out some of the theoretical concerns raised by the decline of Marxist legal theory, what I refer to as the “orthodox theory” of Chinese constitutionalism. In the second section, I describe the generally accepted view – the “orthodox view” – of the allocation of authority under the Constitution. In section three, I describe and analyze some of the critiques that have been offered of the orthodox view, and dissect some of the alternative analytical reads that some Chinese scholars have offered of the Chinese constitution. Because these alternative scholarly analyses often rely heavily on the constitutional text and generally ignore the theoretical foundations on which the text was based, I refer to these alternative approaches as “technocratic textualism.” I also give a brief account of some of the constitutional litigation that this alternative view has spurred, focusing in particular on hepatitis B anti-discrimination litigation. In conclusion I offer a few brief thoughts on
what this approach-which some are beginning to refer to as a nascent social movement -might accomplish,and what its most significant barriers to success are. I Section One:Theoretical Concerns The orthodox theory in retreat Both the Chinese constitution,and the state system created by it,are in many key ways products of Soviet legal theory,yet many key Western analyses of Chinese law fail to engage in any significant way with the nature of Soviet law and the ways in which Soviet legal theory has shaped the legal,institutional,and constitutional choices made by the Chinese government.This absence of discussion of Soviet legal theory is especially notable given that virtually all of the products of those key choices are still in place today.2 This section seeks to elucidate the key concepts of Soviet legal theory as relates to the unification of state power,the role of the constitution,and the protection of individual rights within the soviet system. According to Soviet legal theory,law exists not to order relationships between private individuals,or between private individuals and the state,but instead to maintain the dictatorship of the proletariat.3 Indeed,once a communist government has been installed, assuming that the State has successfully compelled the transition from a private economy to one that is organized and run by the state,the entire distinction between public and private law begins to drop away. Just as Soviet legal theory rejects the distinction between public and private in Western law,it emphatically rejects the notion,generally associated with Montesquieu,of 2Over the past two decades,a vast literature has sprung up,much of it around the debate over so-called "Asian values,"seeking to explain,at least in part,the lack of rights protections in Chinese law as a manifestation of Chinese culture.According to this argument,Chinese citizens have a more communal view of society,and place less emphasis on the individual rights.Yet one could argue that the current lack of individual rights protections within the current legal framework has much more to do with the importation of the Soviet law model than with any cultural preferences or differences between China and the West.In fact,when the Communists came to power,they took great strides to eliminate certain cultural practices,such as discriminatory treatment of women,that they saw as inimical to the creation of a modern socialist society. Crucial to this view is the notion that,in capitalist society,law is a weapon to protect the property interests of the bourgeois against the masses.Because the bourgeois is able to shape the law to suit its interests,law is a key tool in the exploitation of the proletariat and the preservation of class hierarchy.As a leading Soviet legal scholar put it: The state was always,and still is,an apparatus of constraint-of violence-with whose aid the dominant classes ensured the obedience of their"subjects.""The state is a machine to sustain the domination of one class over another." Under capitalism,as under feudalism and in ancient society,the state protects private property as the basis of exploitation and the interests of those who as exploiters hold private property.It serves to preserve and confirm the class interests of exploiters,dominant in that society.This is the part it plays,irrespective of forms of political organization.(citations omitted) Andrei Y.Vyshinsky,ed.,The Law of the Soviet State,Hugh W.Babb,trans.,MacMillan Co.,New York, 1948,p.11. 6
6 what this approach – which some are beginning to refer to as a nascent social movement – might accomplish, and what its most significant barriers to success are. I. Section One: Theoretical Concerns The orthodox theory in retreat Both the Chinese constitution, and the state system created by it, are in many key ways products of Soviet legal theory, yet many key Western analyses of Chinese law fail to engage in any significant way with the nature of Soviet law and the ways in which Soviet legal theory has shaped the legal, institutional, and constitutional choices made by the Chinese government. This absence of discussion of Soviet legal theory is especially notable given that virtually all of the products of those key choices are still in place today.12 This section seeks to elucidate the key concepts of Soviet legal theory as relates to the unification of state power, the role of the constitution, and the protection of individual rights within the soviet system. According to Soviet legal theory, law exists not to order relationships between private individuals, or between private individuals and the state, but instead to maintain the dictatorship of the proletariat.13 Indeed, once a communist government has been installed, assuming that the State has successfully compelled the transition from a private economy to one that is organized and run by the state, the entire distinction between public and private law begins to drop away. Just as Soviet legal theory rejects the distinction between public and private in Western law, it emphatically rejects the notion, generally associated with Montesquieu, of 12 Over the past two decades, a vast literature has sprung up, much of it around the debate over so-called “Asian values,” seeking to explain, at least in part, the lack of rights protections in Chinese law as a manifestation of Chinese culture. According to this argument, Chinese citizens have a more communal view of society, and place less emphasis on the individual rights. Yet one could argue that the current lack of individual rights protections within the current legal framework has much more to do with the importation of the Soviet law model than with any cultural preferences or differences between China and the West. In fact, when the Communists came to power, they took great strides to eliminate certain cultural practices, such as discriminatory treatment of women, that they saw as inimical to the creation of a modern socialist society. 13 Crucial to this view is the notion that, in capitalist society, law is a weapon to protect the property interests of the bourgeois against the masses. Because the bourgeois is able to shape the law to suit its interests, law is a key tool in the exploitation of the proletariat and the preservation of class hierarchy. As a leading Soviet legal scholar put it: The state was always, and still is, an apparatus of constraint – of violence – with whose aid the dominant classes ensured the obedience of their “subjects.” “The state is a machine to sustain the domination of one class over another.” Under capitalism, as under feudalism and in ancient society, the state protects private property as the basis of exploitation and the interests of those who as exploiters hold private property. It serves to preserve and confirm the class interests of exploiters, dominant in that society. This is the part it plays, irrespective of forms of political organization. (citations omitted) Andrei Y. Vyshinsky, ed., The Law of the Soviet State, Hugh W. Babb, trans., MacMillan Co., New York, 1948, p. 11
separation of powers.4 The orthodox theory views the separation of powers as a sham, which serves not to protect individual rights and interests from possible intrusion by unchecked government power,but rather to create a tripartite system of government power,separate from the society over which it rules.15 More importantly,the separation of powers serves to dilute the power of the legislature, which,under the Soviet system,is the highest organ of state power.Because the legislature is elected by the masses themselves,it possesses democratic legitimacy,and, according to theory,is incapable of acting in a manner that deviates from the interests of society as a whole,in part because class differences-and the diversity of vested interests that spring from them-have been eliminated.16 The power of statutory interpretation also resides with the working body of the legislature the NPCSC in the Chinese context,the Presidium in the former Soviet context-both because the Presidium has democratic legitimacy that the judiciary does not,and also because the Presidium or Standing Committee,as part of the legislature,has legislative expertise that the judiciary,which is empowered only to apply the law to specific cases, could not.7 In both the Chinese and the former Soviet context,Western scholars have puzzled over the question of why the constitutions of both countries,both repeatedly revised in the wake of successive political movements and purges,contain entire sections spelling out basic rights protections when such protections seem to be so glaringly absent from day to day life for average citizens.Communist legal scholars,aware of Western criticisms on the human rights front,reject the claim that constitutional rights provisions are merely 14 Vyshinsky,p.312 15 Ibid.,p.318. 6 Parliamentary supremacy was viewed by Soviet scholars as central to a communist legal system.When the 1975 Chinese constitution seemed to lessen the constitutional powers of the NPC,Soviet critics lambasted the move,contrasting the change with what the Soviets claimed were innovations to the Soviet system that,they argued,allowed for even more effective exercise of legislative power.Hazard,"Marxian Constitutions,"p.996-997. 7 Vyshinsky,p.339.Interestingly,the 1924 Soviet Constitution vested the power to interpret statutes in the Supreme Court;this power was shifted to the Presidium of the Supreme Soviet under the 1936 Stalin constitution.Vyshinsky,p.340.As noted above,the 1954 Chinese constitution followed the 1936 Soviet model in this regard,and the 1982 Chinese constitution more or less preserved this approach.For more on the power of interpretation in the Chinese context,see infra. sCohen,for example,posed the following question in the wake of the promulgation of the revised 1978 Chinese constitution: One of the major unresolved puzzles of Chinese constitutionalism is to ascertain why these freedoms continue to be asserted when to do so flies in the face of the everyday experience of the Chinese people.Would elimination of these guaranties risk too great a propaganda attack abroad? Would it doom to failure the Party's spasmodic efforts to win the loyalty of China'intellectuals, who are essential to the country's modernization but who aspire to greater freedom? Cohen,"China's Changing Constitution,"p.832.Such questions,though justified in light of the gap between rhetoric and practice,may also underestimate the extent to which Party and government actors in communist systems see the constitution as a legally valid and important document.Hazard,"A Soviet Model for Marxian Constitutions,"60 Cornell L.Rev.985,986,1974-1975. 19 Vyshinksy,p.539
7 separation of powers.14 The orthodox theory views the separation of powers as a sham, which serves not to protect individual rights and interests from possible intrusion by unchecked government power, but rather to create a tripartite system of government power, separate from the society over which it rules.15 More importantly, the separation of powers serves to dilute the power of the legislature, which, under the Soviet system, is the highest organ of state power. Because the legislature is elected by the masses themselves, it possesses democratic legitimacy, and, according to theory, is incapable of acting in a manner that deviates from the interests of society as a whole, in part because class differences – and the diversity of vested interests that spring from them – have been eliminated.16 The power of statutory interpretation also resides with the working body of the legislature – the NPCSC in the Chinese context, the Presidium in the former Soviet context – both because the Presidium has democratic legitimacy that the judiciary does not, and also because the Presidium or Standing Committee, as part of the legislature, has legislative expertise that the judiciary, which is empowered only to apply the law to specific cases, could not.17 In both the Chinese and the former Soviet context, Western scholars have puzzled over the question of why the constitutions of both countries, both repeatedly revised in the wake of successive political movements and purges, contain entire sections spelling out basic rights protections when such protections seem to be so glaringly absent from day to day life for average citizens.18 Communist legal scholars, aware of Western criticisms on the human rights front,19 reject the claim that constitutional rights provisions are merely 14 Vyshinsky, p. 312. 15 Ibid., p. 318. 16 Parliamentary supremacy was viewed by Soviet scholars as central to a communist legal system. When the 1975 Chinese constitution seemed to lessen the constitutional powers of the NPC, Soviet critics lambasted the move, contrasting the change with what the Soviets claimed were innovations to the Soviet system that, they argued, allowed for even more effective exercise of legislative power. Hazard, “Marxian Constitutions,” p. 996-997. 17 Vyshinsky, p. 339. Interestingly, the 1924 Soviet Constitution vested the power to interpret statutes in the Supreme Court; this power was shifted to the Presidium of the Supreme Soviet under the 1936 Stalin constitution. Vyshinsky, p. 340. As noted above, the 1954 Chinese constitution followed the 1936 Soviet model in this regard, and the 1982 Chinese constitution more or less preserved this approach. For more on the power of interpretation in the Chinese context, see infra. 18 Cohen, for example, posed the following question in the wake of the promulgation of the revised 1978 Chinese constitution: One of the major unresolved puzzles of Chinese constitutionalism is to ascertain why these freedoms continue to be asserted when to do so flies in the face of the everyday experience of the Chinese people. Would elimination of these guaranties risk too great a propaganda attack abroad? Would it doom to failure the Party’s spasmodic efforts to win the loyalty of China’ intellectuals, who are essential to the country’s modernization but who aspire to greater freedom? Cohen, “China’s Changing Constitution,” p. 832. Such questions, though justified in light of the gap between rhetoric and practice, may also underestimate the extent to which Party and government actors in communist systems see the constitution as a legally valid and important document. Hazard, “A Soviet Model for Marxian Constitutions,” 60 Cornell L. Rev. 985, 986, 1974-1975. 19 Vyshinksy, p. 539
aspirational,and instead turn the tables and attack Western governments for failing to live up to Constitutional promises on individual rights: Soviet constitutions confirm genuinely democratic rights and freedoms in the worker's behalf.For the vast majority of the population,the rights of citizens,as proclaimed by bourgeois constitutions,are merely mythical- in bourgeois states the conditions essential to a realization of these rights in behalf of the workers do not obtain.Soviet constitutions,on the contrary,establish and emphasize material guarantees by virtue of which each citizen can realize the rights ceded to him by the state20 As the above passage suggests,traditional communist theory equates the full enjoyment of individual rights with larger economic and social conditions.Only after basic human needs have been met,so the argument goes,can true freedom be enjoyed. Because the state is the primary protector and effectuator of individual rights,and because the possibility of a dichotomy of interests between the state and the individual is denied,communist legal systems have generally not viewed constitutional rights provisions as limiting state power,and therefore have not sought to set up mechanisms to guarantee individual rights against encroachment by the state.The concept of"negative rights,"in which the government effectuates certain rights merely by doing nothing,is denied any purchase whatsoever.Rights are not located in the inherent dignity and humanity of the individual,but rather flow from the power of the state: (The)history of the socialist state,which from the very first days of its emergence granted to the workers rights of unprecedented breadth,proves incontrovertibly that the source of these numerous civil rights is to be sought in the socialist social organization rather than in any myth as to man's natural and inherent rights.Confirmation of the might of the socialist state,the confirmation and development of the socialist organization of society,are the basis assuring the authenticity,breadth, and systematic confirmation of civil rights and the full flowering of socialist democracy22 As one Chinese commentator points out,it is therefore theoretically impossible for the state to infringe on individual liberties: Based on class analysis and class struggle,a socialist constitution deals with civil rights and human rights in a way naturally different from the capitalist constitution.The latter focuses on freedom and the right to political participation;it is formulated in light of the government's 20 Vyshinsky,p.89. 2Vyshinsky,pp.562-3.According to Vyshinsky:"Any contrasting of individual civil rights with the state is alien to socialist public law,this is a particularly clear-cut distinction between the Soviet Constitution tates,Sovet publi ws distinet mopublic aw. 8
8 aspirational, and instead turn the tables and attack Western governments for failing to live up to Constitutional promises on individual rights: Soviet constitutions confirm genuinely democratic rights and freedoms in the worker’s behalf. For the vast majority of the population, the rights of citizens, as proclaimed by bourgeois constitutions, are merely mythical – in bourgeois states the conditions essential to a realization of these rights in behalf of the workers do not obtain. Soviet constitutions, on the contrary, establish and emphasize material guarantees by virtue of which each citizen can realize the rights ceded to him by the state.20 As the above passage suggests, traditional communist theory equates the full enjoyment of individual rights with larger economic and social conditions. Only after basic human needs have been met, so the argument goes, can true freedom be enjoyed. Because the state is the primary protector and effectuator of individual rights, and because the possibility of a dichotomy of interests between the state and the individual is denied, communist legal systems have generally not viewed constitutional rights provisions as limiting state power, and therefore have not sought to set up mechanisms to guarantee individual rights against encroachment by the state.21 The concept of “negative rights,” in which the government effectuates certain rights merely by doing nothing, is denied any purchase whatsoever. Rights are not located in the inherent dignity and humanity of the individual, but rather flow from the power of the state: (The) history of the socialist state, which from the very first days of its emergence granted to the workers rights of unprecedented breadth, proves incontrovertibly that the source of these numerous civil rights is to be sought in the socialist social organization rather than in any myth as to man’s natural and inherent rights. Confirmation of the might of the socialist state, the confirmation and development of the socialist organization of society, are the basis assuring the authenticity, breadth, and systematic confirmation of civil rights and the full flowering of socialist democracy.22 As one Chinese commentator points out, it is therefore theoretically impossible for the state to infringe on individual liberties: Based on class analysis and class struggle, a socialist constitution deals with civil rights and human rights in a way naturally different from the capitalist constitution. The latter focuses on freedom and the right to political participation; it is formulated in light of the government’s 20 Vyshinsky, p. 89. 21 Vyshinsky, pp. 562-3. According to Vyshinsky: “Any contrasting of individual civil rights with the state is alien to socialist public law; this is a particularly clear-cut distinction between the Soviet Constitution and constitutions of bourgeois states, as Soviet public law is distinct from bourgeois public law.” 22 Vyshinsky, p. 563
possible abuse of power.The former emphasizes the right of welfare;all the rights,including freedom and political participation,are formulated on the assumption that they have been taken away by the capitalist exploiters and the state sides with the laboring masses.Therefore,it is impossible for the state to encroach upon the people's rights...The constitution is designed to entrust the state with the task of taking back power from the exploiting classes and the people's enemy and returning it to the laboring people.23 Although the theory primarily emphasizes economic and social rights,including the right to work,the right to subsistence,the right to education,and so on,under the traditional theory,no ground is given on civil and political rights. Freedom of speech,of the press,of assembly,of meetings,of street parades,and of demonstrations are the property of all citizens in the USSR, fully guaranteed by the state upon the single condition that they be utilized in accord with the interests of the workers and to the end of strengthening the socialist social order. Because the concept of negative rights is denied,effectuation of the right of freedom of expression,for example,quickly descends into a listing of the number of newspapers, books,and pamphlets published,the number of radio stations supported by the state,and the number of movies produced by state-run film companies. Where the theory has most clearly shown its weakness is in the toleration of the expression of views critical of Party or government policy.As one leading Soviet legal theorist put it: In our state,naturally,there is and can be no place for freedom of speech, press,and so on for the foes of socialism.Every sort of attempt on their part to utilize to the detriment of the state-that is to say,to the detriment of all the workers-these freedoms granted to the workers must be 25 classified as a counterrevolutionary crime... This,in part,explains the current low level of institutional protection afforded by Chinese law for basic rights,even in the face of significant improvement in certain areas since the start of the reform era,and the absence of any mechanism for vindicating individual rights protections found in the constitution.Against this background,proposals offered by scholars over the past few years as to the creation of mechanisms for the vindication of individual rights represent a radical departure from the very foundational ideas of the People's Republic.In order to succeed,those proposals must both overcome the 23 Kuan Hsinchi,"Socialist Constitutions in Comparative Perspective,"Chinese Law and Government, Summer-Fall 1983,vol.XVI,no.2-3.Emphasis added. 24 Vyshinsky,p.617. 25 Vyshinsky,p.617. 9
9 possible abuse of power. The former emphasizes the right of welfare; all the rights, including freedom and political participation, are formulated on the assumption that they have been taken away by the capitalist exploiters and the state sides with the laboring masses. Therefore, it is impossible for the state to encroach upon the people’s rights… The constitution is designed to entrust the state with the task of taking back power from the exploiting classes and the people’s enemy and returning it to the laboring people.23 Although the theory primarily emphasizes economic and social rights, including the right to work, the right to subsistence, the right to education, and so on, under the traditional theory, no ground is given on civil and political rights. Freedom of speech, of the press, of assembly, of meetings, of street parades, and of demonstrations are the property of all citizens in the USSR, fully guaranteed by the state upon the single condition that they be utilized in accord with the interests of the workers and to the end of strengthening the socialist social order.24 Because the concept of negative rights is denied, effectuation of the right of freedom of expression, for example, quickly descends into a listing of the number of newspapers, books, and pamphlets published, the number of radio stations supported by the state, and the number of movies produced by state-run film companies. Where the theory has most clearly shown its weakness is in the toleration of the expression of views critical of Party or government policy. As one leading Soviet legal theorist put it: In our state, naturally, there is and can be no place for freedom of speech, press, and so on for the foes of socialism. Every sort of attempt on their part to utilize to the detriment of the state – that is to say, to the detriment of all the workers – these freedoms granted to the workers must be classified as a counterrevolutionary crime…25 This, in part, explains the current low level of institutional protection afforded by Chinese law for basic rights, even in the face of significant improvement in certain areas since the start of the reform era, and the absence of any mechanism for vindicating individual rights protections found in the constitution. Against this background, proposals offered by scholars over the past few years as to the creation of mechanisms for the vindication of individual rights represent a radical departure from the very foundational ideas of the People’s Republic. In order to succeed, those proposals must both overcome the 23 Kuan Hsinchi, “Socialist Constitutions in Comparative Perspective,” Chinese Law and Government, Summer-Fall 1983, vol. XVI, no. 2-3. Emphasis added. 24 Vyshinsky, p. 617. 25 Vyshinsky, p. 617