BMET 22A36 - Chinese Constitutional Law in Comparative Perspective

Does China have “a constitution without constitutionalism”? Or does China offer an alternative form of constitutionalism? Lacking the basic grammar of “Western” modern constitutionalism, such as the separation of powers and judicial constitutional review, the Chinese constitutional law is key to understanding many controversies about China in the international community, especially those concerning human rights protection and the governance of autonomous regions (such as Xinjiang and Tibet) and special administrative regions (notably Hong Kong). To help students better understand the characteristics of China's political and legal system and reflect on the role of the constitution in a state and how it is implemented, this course provides a comprehensive introduction to the historical trajectory of constitution-making and constitution-amending in China, the features of the current constitution, and the latest developments of constitutional implementation, understood in the social, political, and economic contexts of China and from a comparative perspective vis-à-vis the West. At the same time, the course will familiarize students with some basic concepts in legal theory and constitutional law, as well as different approaches of comparative legal studies. The course begins with an introduction to the modern idea and practices of constitution and constitutionalism in the West and how the current Chinese constitution and practices measure up against them. The course then unfolds in three parts. In Part I, we will first review the constitutional reform in the late Qing Dynasty and the constitutional revolutions in the Republican Era. Then we will examine the making of the 1949 Common Program and the 1954 Constitution of the PRC and figure out the rationales for and the features of each constitutional amendment thereafter. Part II will focus on the current Constitution: the fundamental rights and duties of the citizens; the party's leadership, the principle of democratic centralism and the division (rather than separation) of powers among state organs; the pluralist central-local relations in a unitary system, notably the regional ethnic autonomy and the “one country, two systems” policy, etc. In the final session, we will explore the idea of “constitutionalism beyond liberalism” and discuss where the Chinese experiences can contribute to our understanding of constitutionalism.

Pengfei WANG

Atelier

English

Autumn 2023-2024

1. Class participation (10%); 2. In-class quiz (15%); 3. Oral presentation (15%); 4. A final research paper (60%).