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The Rule of Law, the Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the 'Three Represents'), Socialist Rule of Law, and Modern Chinese Constitutionalism



Since the middle of the last century, the ideal of constitutional legitimacy has been grounded on the foundation of the concept of the rule of law. The rule of law is usually understood in two senses: first, as embracing firm limits on an arbitrary use of power, that is, of the use of the state power when not grounded in law (process aspect); and second, as vesting the state with a critical role as guardian of a set of foundational communally embraced substantive norms that are to be protected and furthered through the use of state power grounded in law (substantive aspect). The Chinese Constitution of 1982 has, as a formal matter, embraced the idea of the rule of law in its process aspect. The Preamble declares that the Constitution is the fundamental law of the state and has supreme legal authority and Article 5 as amended in 1999 emphasizes the People's Republic of China practices ruling the country in accordance with the law and building a socialist country of law. However, it is more difficult to discern even a formal adoption of the rule of law in its substantive aspect. As a consequence, outsiders have questioned the fidelity of the Chinese state to the rule of law because of the control by the Chinese Communist Party (CCP) of the apparatus of law making in China. In one sense these arguments can be reduced to a criticism of Chinese constitutionalism as illegitimate because it lacks a basis in moral and ethical norms outside of the personal desires of the leaders of the CCP. This paper suggests that traditional criticism misperceives the fundamental nature of Chinese Constitutionalism as it attempts to fashion its own distinct socialist rule of law constitutionalism. Fundamental to this socialist rule of law is the core premise the connection between the apparatus of the state (its institutions) and that of the Chinese Communist Party (as the Party in power). The paper examines the way the normative basis of this socialist rule of law has been advanced through the use of increasingly sophisticated and complex specific ideological frameworks into the constitution. This may suggest a greater willingness to advance the implementation of ideology, and the substantive structure it represents, through state power grounded in law. However, because the norm structures of Chinese ideology articulated through the CCP remain either alien or antithetical to their usual Western counterparts, they remain opaque outside of China. To examine the parameters of this possible shift in Chinese constitutionalism, the paper will examine one element in this process of incorporation - the inclusion of sange daibiao (the 'Three Represents') into the governance structures of the CCP after 2000 and the Chinese Constitution after 2004. Like the earlier constitutional assimilation of Deng Xiaoping Theory, the adoption of sange daibiao may serve, at least as a formal matter, to further incorporate substantive rule of law elements into Chinese constitutionalism. Sange daibiao illustrates the way in which China is seeking to construct socialist rule of law through a commitment to an institutional structure of the state in which the CCP serves not as a mere Western style political party but as an integral organ of state power. The focus is on the reality of the CCP within the state. Sange Daibiao provides an ideological basis, a deep constitutional foundation, for the position of the CCP at the center of the constitutional apparatus of the Chinese state. But it does more than that - it also provides the basis through which the rule of law, as a framework for the proper relationship between state institutions (representing the collective) and the individual (as an instrument of that collective). As developed by the organs of the CCP, it is clear that Sange Daibiao can provide the principles through which the framework of commonly understood rule of law constitutionalism can be adopted with Chinese characteristics.
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The Rule Of Law, The Chinese Communist Party, and
Ideological Campaigns: Sange Daibiao (The “Three
Represents”), Socialist Rule Of Law, and Modern Chinese
Larry Catá Backer1
AND WITHIN CHINA. .......................................................................111
A. Less Party More State.............................................................147
B. More Party Less State.............................................................148
A. The Elaboration of the Substantive Values of
Sange Daibiao (Three Represents). ........................................153
1. Ba Rong Ba Chi ................................................................156
B. The Difficulties of Sange Daibiao and Process
Constitutionalism ...................................................................163
IV. CONCLUSION ..................................................................................171
Academic, political, and civil society elites have developed a distinct
pattern of argumentation and analysis when discussing the rule of law in
China. The discussion usually proceeds along the following lines.2
1 Professor of Law, Pennsylvania State University, Dickinson School of Law-University Park
Campus. The author may be reached at I want to thank the organizers of the
conference, “China: Law, Finance, Security,” held at the University of Iowa College of Law on
February 10, 2006, and the participants for their insightful and engaging comments. Special
thanks to my research assistants on this project: Andres Almendarez (Penn State ’07) and John
Haverty (Penn State ’08) for their usual exemplary work.
Electronic copy available at:
China has sought to conform its institutions to the norms developed in
the West. Thus, China has created State institutions as those organs of
government where the will of the people as a whole can be represented.3 It
has separated from these representative organs of state power the
institutions of the Chinese Communist Party (CCP).4 That separation
confirms the Western intuition that the CCP should be no more than a
political faction (like the American Republican Party or the U.K. Labour
Party). At best, the CCP can represent the will, however powerful, of a single
political party, albeit one with current constitutional status. As such, the
CCP must give way to a superior institution, the state, through which the
will of all of the political community can be most equitably expressed.
To this end, the typical analysis posits, as a positive development, the
recent efforts by the Chinese to separate politics from institution. The
Chinese Constitution of 19825 has, as a formal matter, embraced the idea of
the rule of law in its procedural aspects, that is, by constructing an
2 Presented in summary form here, the argument is elaborated in more detail in Section I infra.
3 The powers of all state organs are specified in the Constitution of the People’s Republic of
China (Zhonghua Renmin Gonghueguo xian fa). XIAN FA (1982 as amended) (P.R.C.), available
translated in (last visited December
11, 2006). “The National People’s Congress is the highest organ of state power.” Id. at art. 57 ;, Structure of the State: The Organ of State Power, /state_structure/64411.htm. The supreme
administrative organ of the state is the State Council. See XIAN FA art. 85 (1982) (P.R.C.); Legal
Position, Function and Rights of the State Council, (last visited Sept. 12, 2006)
4 The Chinese Communist Party is the party in power in China:
The CPC is a unified entity organized according to its program, constitution
and the principle of democratic centralism. The Constitution of the
Communist Party of China stipulates that any Chinese worker, farmer,
member of the armed forces, intellectual and any advanced element of other
social strata who has reached the age of 18 and who accepts the program and
constitution of the CPC and is willing to join and work in one of the Party
organizations, carry out the Party decisions and pay membership dues
regularly may apply for membership in the CPC., Structure of the State, The Party in Power, (last visited Dec. 11, 2006).
According to a P.R.C. State website, “[a]s of June 2002, the CPC had a total membership of
66.355 million belonging to about 3.5 million grassroots organizations.”, The
Central Organizations of the CCP, (last visited Nov. 24, 2006).
A sense of the relationship between the “party in power” and the “supreme organ of state power”
can be gleaned by a review of the depiction of the leadership in China on an official website
maintained by the government. See, CPC Leaders, (last visited Nov. 24, 2006).
5 XIAN FA (1982 ) (P.R.C.).
Electronic copy available at:
autonomous legal order.6 The Preamble declares that the Constitution “is the
fundamental law of the state and has supreme legal authority.”7 Article 5, as
amended in 1999, emphasizes that “[t]he People's Republic of China practices
ruling the country in accordance with the law and building a socialist country
of law.”8 The Chinese Constitution thus necessarily focuses, as it must,
almost exclusively on institutions.
Yet the standard analysis finds these changes inadequate. It finds the
rush toward Western forms of governance an empty gesture with little real
effect on governance when judged by a Western governance ideal. The
Chinese Constitution has avoided any attempt to embrace rule of law in the
substantive aspect, even as a formal matter within the black letter of the
Constitution itself. To the extent that reference is made to ideology—in the
form of Marxist/Leninist, Mao Zedong, and Deng Xiao Ping thought, and
after 2004, to the “important theory of Three Represents”9those have little
merit. These references are reminiscent of Western analysis of the “bad old
days” of the Cultural Revolution10 and suggest little more than mere ideology.
None can implicate substantial rule-of-law issues in the substantive or
procedural aspects. Moreover, even the formal compliance with process rule-
of-law aspects hides the reality of deficiencies in the implementation of these
The focus of this standard model of Chinese rule of law is the political
state, including its formal institutions. Chinese efforts, like those of other
nations, are usually measured against the State in its idealized form, which
is usually conceived as the ultimate legal personality, formally manifested
through its constitution, lawmaking authority, and an institutionalized
6 See Bo Ll, What is Rule of Law?, 1(5) PERSPECTIVES (Apr. 30, 2000).
The core of "rule of law" is an autonomous legal order. Under rule of law, the
authority of law does not depend so much on law's instrumental capabilities,
but on its degree of autonomy, that is, the degree to which law is distinct and
separate from other normative structures such as politics and religion.
7 XIAN FA (1982) (P.R.C.) (“This Constitution affirms the achievements of the struggles of the
Chinese people of all nationalities and defines the basic system and basic tasks of the state in
legal form; it is the fundamental law of the state and has supreme legal authority.”).
8 XIAN FA art. 5 (1982) (P.R.C) (1999 amendment).
9 See discussion infra at Section II; note 110.
REVOLUTION, RADICALISM AND REFORM 77-86 (1997). For a useful bibliography of English-
government.11 The formal institutional elements of the state apparatus are
also evaluated in terms of core Western liberal notions.12 The foundation of
this system posits that an institutionalized element of a particular sort
comprises the supreme elements of the hierarchy of political authority in
every political community.13 Since the state is the supreme autonomous
entity within a political territory, it is assumed to hold all formal political
authority derived from the people. This authority is expressed through its
governmental institutions, throughout which its supreme political power is
distributed.14 Constitutionalism, in this view, tends to focus on substance
rather than form; the existence of a document labeled “constitution” does not
11 See, e.g., Herman Schwartz, Building Blocks for a Constitution, 9(1) ISSUES OF DEMOCRACY:
12 For a sense of these notions, see Michel Rosenfeld, The Rule of Law and the Legitimacy of
Constitutional Democracy, 74 S. CAL. L. REV. 1307 (2001); Louis Henkin, A New Birth of
Constitutionalism: Genetic Influences and Genetic Defects, in CONSTITUTIONALISM, IDENTITY,
1994) (identifying modern constitutionalism as based on popular sovereignty, on the supremacy
of law and the primacy of constitutional law within a political community, on governance
through democratic principles (including limited government, checks and balances, civilian
control of the military, judicial control of the police power, and an independent judiciary), on
respect for international norms of human rights, on self-determination, and on the creation of an
independent power to compel compliance with these principles).
13 See, e.g., Michel Rosenfeld, Constitution-Making, Identity Building, and Peaceful Transition to
Democracy: Theoretical Reflections Inspired by the Spanish Example, 19 CARDOZO L. REV. 1891,
1897-99 (1998). This Western liberal conceptual system has recently been challenged in the
Muslim world, where it finds expression in an inversion of sorts. In Iran, Afghanistan, and Iraq,
for example, constitutional systems purporting to be grounded in rule-of-law notions subordinate
all state power to the theology, morals, ethics, and rule systems of a particular normative
religious establishment and its governance apparatus. See Larry Catá Backer, Speech at Temple
University Beasley School of Law, Institute for International Law and Policy, God Over
Constitution: Religiously Based Foundations and Modern Constitution-Making in the 21st
Century, (Oct. 29, 2005) (transcript on file with author) to be published – MISS. C. L. REV.
(foirthcoming 2007). On the nature of Iranian theocracy, see FOROUGH JAHANBAKSH, ISLAM,
14 In the United States, see Marbury v. Madison, 5 U.S. (1 Cranch.) 137, 176 (1803),
That the people have an original right to establish, for their future
government, such principles as, in their opinion, shall most conduce to their
own happiness is the basis on which the whole American fabric has been
erected. . . . This original and supreme will organizes the government, and
assigns to different departments, their respective powers.
necessarily make for a legitimate constitution, conceived, thus, as a bundle of
legitimating norms.15
All other entities—political, social, economic, or religious—are viewed
under this analysis as having a derivative, semi-autonomous, and partial
character at best. They are either creatures of the state, like corporations16
(including religious corporations),17 or illegitimate sources of sovereign
political power within a state because they are not the legitimate expression
of direct sovereign political power by all of the people, a power manifested
only through the apparatus of the state in which the people authoritatively
constitute themselves. As such, these non-governmental entities are
derivative because they derive their power, principally manifested in their
juridical personality and legal authority, from the instrumentalities of the
state. These state instrumentalities, in the aggregate, constitute the
government, or the apparatus of the state. These non-governmental entities
are also semi-autonomous because their authority cannot be exercised
independent of the authority from which they derive their status. Having
derived their authority from the state, their autonomy is thus dependent on
the state.18 Lastly, these entities are partial entities because their power,
authority, independence, and characteristics can approach, but never equal
or exceed, the totality of political power that is vested in the state. The state
alone is said to be able to exercise the totality of this political power; it is a
power that cannot be alienated.
The normative basis for evaluating the proper conduct of a state, as the
locus of political power within a defined territory, is to some large extent
bundled up in the complex of concepts understood as the “rule of law:”
What we in the West have come to call the “rule of law” has
always been a multi-edged sword. It is most commonly
deployed to guard against arbitrary use of state power by
15 For a good discussion of the legitimacy of constitutions, see Walter F. Murphy, Constitutions,
THE CONTEMPORARY WORLD 3-25 (Douglas Greenberg et al. eds., 1993). For a critique of this
perspective on grounds of (an unfair) privileging of current Western notions, see, for example,
16 See, e.g., Trs. of Dartmouth Coll. v. Woodward, 17 U.S. 518, 636 (1819). (“A corporation is an
artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere
creature of law, it possesses only those properties which the charter of its creation confers upon
17 See, e.g., Late Corporation of the Church of Jesus Christ of Latter Day Saints v. U.S., 136 U.S.
1 (1890).
18 Globalization has begun to weaken this aspect of the relationship of state authority to the
entities that operate within its territory. For a discussion, see Larry Catá Backer, The
Autonomous Global Corporation: On the Role of Organizational Law Beyond Asset Partitioning
and Legal Personality, 41 TULSA L.J. 4 (forthcoming 2006).
people with access to that power. It is in this sense that the
rule of law is perhaps best understood. In its basic political
sense it encompasses ideals such as free and fair elections,
protected through the instrumentalities of the state,
principally the independent judiciary, against abuse by
individuals. The rule of law can also be used to protect a
polity against its own excesses.19
As a consequence, conformity of the state to accepted standards of rule-of-
law notions tends to be measured only against the performance of the state—
principally through its government. The core of this measure is focused on
the regularization of rulemaking. Power must be exercised only through
regular processes of rule making.20 Rules must apply fairly to all, and the
mechanisms for their enactment and enforcement must also be applied fairly
and equally to all.21 No individual is above fairly enacted rules, nor is any
individual delegated the power to make rules other than as part of systems
for rulemaking that are representative and not inherently arbitrary.22
19 Larry Catá Backer, Using Law Against Itself: Bush v. Gore Applied in the Courts, 55 RUTGERS
L. REV. 1109, 1110-11 (2003). I noted there the growing influence of these notions outside the
West, citing to the work of Anwar Ibrahim, an influential Malay politician:
For Ibrahim, the rule of law encapsulates three principles. . .The first is the
predominance of regular law so that the government has no arbitrary
authority over the citizen. . .Secondly, all citizens are equally subject to the
ordinary law administered by the ordinary courts. . And thirdly, perhaps the
most significant, the citizen’s personal freedoms are formulated and protected
by the ordinary law, rather than by abstract constitutional declarations.
Id. at 1109 n.1 (quoting ANWAR IBRAHIM, THE ASIAN RENAISSANCE 63 (1996)).
20 On process and rule of law, see RANDY E. BARNETT, THE STRUCTURE OF LIBE RTY: JUSTICE AND
THE RULE OF LAW 257-301 (1998).
21 “The idea of the rule of law is also inextricably linked with certain basic institutional
arrangements. The fundamental notion of equality, which lies close to the heart of our
convictions about justice and fairness, demands an equal voice for all adult citizens in the
22 See, e.g., Spencer Zifac, Globalizing the Rule of Law: Rethinking Values and Reforming
Institutions, in GLOBALISATION AND THE RULE OF LAW 32-65 (Spencer Zifcak ed., 2005). For the
earlier English version of the concept, see, e.g., A.V. DICEY, INTRODUCTION TO THE STUDY OF LAW
OF THE CONSTITUTION 107-23 (Liberty Classics 1982) (1885). There is thus something of a
consensus in the West with respect to the necessary connection between the form in which
rulemaking power is manifested and political legitimacy. Rawls nicely summarized the
Political power is legitimate only when it is exercised in accordance with a
constitution (written or unwritten) the essentials of which all citizens, as
reasonable and rational, can endorse in the light of their common human
Additionally, all laws must respect certain boundaries of state power.23 Law
must not be used for bad ends.24 While this moral or ethical component can
take many forms, it generally encompasses behavioral norms now commonly
understood to comprise an international system of human rights.25
However astute and laudable the aims and analysis, this Article suggests
that the standard Chinese rule-of-law analysis model is only partially correct.
The problem of rule of law in China is indeed the problem of the Chinese
Communist Party. But having gotten that part right, the standard analysis
tends to get everything else wrong. By treating rule-of-law principles as
substantially more than a set of framework principles, and by measuring
compliance with this framework against a rigid set of secondary assumptions
about the way a state expresses rule for law compliance, that analysis
invariably misses the critical element in the development of rule-of-law
culture in China. That critical element is the CCP.26
reason. This is the liberal principle of legitimacy. It is a further desideratum
that all legislative questions that concern or border on those essentials, or are
highly divisive, should also be settled, so far as possible, by guidelines and
values that can be similarly endorsed.
23 This is understood by some as the idea of “thick” rule of law. See Randall Peeremboom,
Varieties Of Rule Of Law: An Introduction And Provisional Conclusion, in THEORIES AND
(Randall Peerenboom, ed., 2004) (thick rule of law theories “incorporate elements of political
morality such as particular economic arrangements (free-market capitalism, central planning,
‘Asian developmental state’ or other varieties of capitalism), forms of government (democratic,
socialist, soft authoritarian) or conceptions of human rights (libertarian, classical liberal, social
welfare liberal, communitarian, ‘Asian values,’ etc.”)). In German theory it encompasses the idea
of the sozialstaat. “The Sozialstaat stands for social justice and obligates the government to
provide for the basic needs of all Germans.” DONALD KOMMERS, THE CONSTITUTIONAL
24 This idea derived great impetus from the insight that a state could conform to a process-
centered rule of law to commit bad deeds against the powerless. In the Twentieth Century, the
great models of rule of law states gone awry were Germany between 1943 and 1945 and Japan
GERMANY 30-41 (1997).
25 Some constitutions recognize this component explicitly. See, e.g., S. AFR. CONST. 1996, art.
39(1), available at (“When
interpreting the Bill of Rights, a court, tribunal or forum—(a) must promote the values that
underlie an open and democratic society based on human dignity, equality and freedom; (b) must
consider international law; and (c) may consider foreign law.”).
26 Janet Ainsworth puts it nicely when she suggests that “By suppressing the significance of, on
the one hand, China’s Chineseness or, on the other hand, its Marxism, . . . these perspectives
seriously distort our understanding of Chinese constitutional discursive practice.” Janet E.
Ainsworth, Interpreting Sacred Texts: Preliminary Reflections on Constitutional Discourse in
China, 43 HASTINGS L.J. 273, 298 (1992).
This Article argues that no rule-of-law analysis of China is useful or
complete unless it seriously considers two structural aspects of Chinese
governance usually ignored in the standard analysis. The first is the Chinese
Communist Party and its formal role in political governance. The second is
the generation-old and still incomplete work of the CCP to develop a sound
ideological basis for rule through law in China. This Article suggests that the
Chinese State Government is a combination of both the formal apparatus of
government—its institutions and governing instruments—and the CCP as
the party in power. The question of rule of law in Chinese terms, then, must
center on the CCP, and not on the state apparatus, which the CCP controls.
For rule of law to find its way into the formal structures of Chinese
government, the CCP must first internalize a rule-of-law culture into its own
governance, and then into its relationship with the formal political
institutions of the State through which it governs. Only when this is realized
will it be possible to extend rule-of-law norms to the governing institutions of
the State. China is now poised to institutionalize a rule-of-law culture
throughout its systems of governance. Its latest ideological campaigns
suggest the possibility of a normative foundation for that
institutionalization.27 These ideological campaigns have been criticized as
little more than the continuance of the politics of the Cultural Revolution in a
more systematic form.28 But like the ideological writings represented by the
Federalist Papers and certain other privileged writings of a few members of
the post-colonial elite,29 which served as the foundation of the ideology of
American politico-legal thought, current Chinese ideological campaigns may
27 See discussion infra at Section III.A.
(including a comparison of pre- and post-Mao campaigns). Guo’s observations in this regard are
worth highlighting:
Political campaign, a defining feature of a communist totalitarian regime, has
always been employed by the Chinese communist regime as a means to
achieve their goals. Although the post-Mao regime has repeatedly proclaimed
their intention not to wage any further political campaigns in the course of
constructing a socialist society, political campaigns have been widely and
recurrently used in post-Mao China to educate the public about the official
norms and current political line of the post-Mao regime.
Id. at 43-44.
29 Foremost among this elite were Alexander Hamilton, James Madison, and Thomas Jefferson.
The writings of these men tend to dominate the analysis of the American courts, especially in the
context of interpretation of the U.S. Constitution. For important examples in modern times, see,
e.g., Reynolds v. U.S., 98 U.S. 145 (1878) (Madison and Jefferson); Immigration and
Naturalization Service v. Chadha, 462 U.S. 919 (1983) (Hamilton); Printz v. U.S., 521 U.S. 117
(1997) (Hamilton, Madison). These are the fruits of a successful ideological campaign slowly
transformed over the course of centuries into a basis for authoritative constitutional
have staying power. Certainly, it is far too early to tell. Yet, like the
Federalist Papers and other influential early American ideological writings,
these ideological campaigns contain what can be understood as strong
organizing principles, reflecting deeply held views of the Chinese elite. At
their core, these organizing principles recognize the foundational nature of
some form of collectivity as basic to Chinese society and political culture.
These principles also serve as recognition of the role of the Chinese
Communist Party as the state actor with the mandate to serve that
collectivity, at least while it stays true to those principles, over which it has
no power to change. This, of course, is the essential feature of rule-of-law
societies—power administered by mandate against which power may be
assessed and legitimacy measured. It is in this sense that the CCP’s most
recent ideological campaigns contain the kernel of a set of norms for
regulating a sound relationship between state and individual—norms open-
ended enough to serve the construction of substantive rule-of-law values.
This Article begins with a critique of the usual approach to Chinese rule-
of-law analysis. It then exposes and examines the great deficiencies of that
traditional analysis: its failure to appropriately focus on the CCP, and its
unwillingness to take the CCP’s ideological campaigns seriously. This Article
then elaborates a sounder basis for rule-of-law analysis—one based on an
understanding of the critical place of the CCP in Chinese political
governance, on the role that the CCP’s ideological pronouncements play in
the construction of a normative framework of Chinese political governance,
and on the need to focus first on the institutionalization of the rule of law
within a CCP that plays a more transparent role within the Chinese state.
That institutionalization must be both internal—directed within the CCP
itself—and external—directed to the role of the CCP as a key element of the
formal state apparatus. For this purpose, this Article considers the role of the
recent Sange Daibiao or “Three Represents” campaign30 and its incorporation
in both the constitution of the CCP31 and of the Chinese State.32 The
Article then suggests ways in which Chinese constitutional theory has begun
to formally elaborate the Three Represents and, and the utility of, ideological
campaigns for this purpose. To that end, this Article briefly examines a series
of recent elaborations of Sange Daibiao, focusing on the “Two Musts”
campaign, the “Fish-Water” connection, the ba rong ba chi (Eight Honors
Eight Disgraces) campaign, and the “Three Harmonies” campaign.33 The
30 See discussion infra at Section II.
31Constitution of the Communist Party of China (2002) translated in (last visited December 14, 2006)..
32 XIAN FA (1982 as amended) (P.R.C.), supra note 3, (see especially 2004 amendments).
33 See discussion infra at Section III.A.
Article ends with a suggestion of the formidable limitations on constitutional
theorizing in China.34
Whatever the mode of analysis—the traditional one, or the one suggested
here—there is little question that China is not yet a rule-of-law state,
however that is conceived.35 But Chinese leaders have been moving decidedly
toward the embrace of a form of rule-of-law culture. This Article on the
construction of an ideological foundation within which rule of law can develop
in China under the present regime, and subject to the socio-cultural and
political constraints of that regime. Sange Daibiao suggests the construction
of an elaborate normative system for the erection of a state apparatus that
fuses political state and political party. But to function as a rule-of-law
system in this context, the Party will have to conform to rule-of-law norms
usually limited to states in the West (even norms constructed with Chinese
characteristics or the like).
China stands at a crossroads. The choice of path will be made by the
CCP. The CCP may continue to define itself as a political party increasingly
remote from the edifice of the state system it is creating. Eventually this
could increase the likelihood that the CCP will face the difficulties and
opportunities that the Communist Party did in Eastern Europe.36
Alternatively, the CCP may more openly embrace its role as a critical
component of the state apparatus and assume both the obligations and
privileges of that role in a rule-of-law context. Its recent behavior suggests
that it is leaning toward the latter approach. If that is the case, then Western
analysis will have to reorient itself if it wishes to understand the path to rule
of law available to a Chinese state in which the CCP remains the “party in
34 See discussion infra at Section III.B.
35 See Randall Peerenboom, Let One Hundred Flowers Bloom, One Hundred Schools Contend:
Debating Rule of Law in China, 23 MICH. J. INTL L. 471 (2002) (discussing models of thick rule
of law).
EUROPEAN COUNTRIES 1991-1998 (2002); Cf. Anelia K. Dimitrova, From Proletariat to People:
Public Relations Metamorphosis of the Bulgarian Communist Party and Its Political Tribune
Before the First Free Multi-Party Elections in 1990, 32(2) E. EUR. Q. 167 (1998) (discussing the
reinvention of the Bulgarian Communist Party from party in power to successful political
Since the middle of the last century, the ideal of constitutional legitimacy
has been grounded on the concept of the rule of law.37 The rule of law is
usually understood in two senses.38 First, rule of law is understood as
embedded in mandatory systems for maintaining firm limits on the arbitrary
use of state power by the individual. This is the idea of rule of law in its
process aspect, limiting the use of state power only when grounded in
legitimately enacted law. Second, rule of law is understood in its substantive
aspect as vesting the state with a critical role as guardian of a set of
foundational communally embraced substantive norms that are to be
protected and furthered through the use of state power grounded in law. In
the West, the foundational expression of this substantive aspect has taken on
a variety of aspects. In some jurisdictions, substantive rule of law is the most
important aspect of constitutionalism and constitutional discourse. In some
cases, this privileging of substantive rule of law is the product of historical
experience with a process-oriented constitutionalism. France under the Vichy
regime39 and Germany under the Nazi regime40 were invocations of process
constitutionalism that served to legitimize the use of the state for the
37 The source of the classic Anglo-American understanding of “rule of law,” that is, rule of law in
states with strongly developed and integrated independent judiciaries, can be found in A.V.
1927) (1885).
38 For a nice summary description, see Michel Rosenfeld, The Rule of Law and the Legitimacy of
Constitutional Democracy, 74 S. CAL. L. REV. 1307 (2001).
Grosswald Curran, The Legalization of Racism in a Constitutional State: Democracy’s Suicide in
Vichy France, 50 HASTINGS L.J. 1, 17 (1998) (“Law thus had a dual role: it was a factor in
preparing a smooth transition from constitutional democracy to fascism, but also in disguising
that transition under a façade of continuity.”).
40 See Vivian Grosswald Curran, Fear of Formalism: Indications From the Fascist Period in
France and Germany of Judicial Methodology’s Impact on Substantive Law, 35 CORNELL INTL
L.J. 101, 151-75 (2001/2002).
Anti-individualism in repudiation of Weimar legal values was a common
thread of Nazi legal writing, as was the repudiation of any legal value or
source of law other than the Fuhrer. Contrary to Kantorowicz’s insistence on
enacted law as the most privileged source of legal authority, Nazi legal theory
explicitly rejected the authority of enacted law if it did not comport with
Hitler’s wishes.
Id. at 167; Matthew Lippman, Law, Lawyers, and Legality in the Third Reich: The Perversion of
Principle and Professionalism, 11 TEMP. INTL & COMP. L.J. 199 (1997).
perpetuation of great crimes against humanity.41 In Germany today, the
underlying great substantive rule-of-law norm is “human dignity,”42
embraced, in part, as a consequence of the experiences of Germany between
1933 and 1945. On the other hand, in the United States, the formal emphasis
has been on process constitutionalism; process is privileged over substance to
a great, though by no means exclusive, extent.43 Substantive
constitutionalism is sometimes articulated through the privileged language of
process. Thus, for example, process itself (as an aspect of fairness, understood
as substantive due process or equal protection) has assumed an important
foundational substantive rule-of-law quality44 within the overarching
substantive rule-of-law animating principle of “democracy.”45 As a formal
expression of commands, rule of law in both of its aspects is usually
associated with positive acts emanating from legitimate institutions of state
power representing the political community.46
The focus of rule-of-law analysis is usually limited to the formal state
apparatus.47 The institutions of the state apparatus—collectively its
LIFE IN THE THIRD REICH 323-324 (Salvatore Attanasio trans., 1966) (“The German revolution
was legal–that is, it was formally correct in accordance with the earlier tradition. . . . Besides, its
legality derives from the Weimar Constitution–that is, it is legal in terms of a discarded
42 Grundgesetz für die Bundesrepublik Deutschland [GG] [Basic Law] May 23, 1949, art. 1.
translated in
law.html (last visited Dec. 14, 2006) .
43 For process theory in its most crystallized form, see JOHN HART ELY, DEMOCRACY AND
DISTRUST: A THEORY OF JUDICIAL REVIEW 88-103 (1980); Laurence Tribe, Structural Due
Process, 10 HARV. C.R.-C.L. L. REV. 269 (1975); Hans Linde, Due Process of Lawmaking, 55 NEB.
L. REV. 197 (1976). For a criticism, see Mark Tushnet, Darkness on the Edge of the Town: The
Contributions of John Hart Ely to Constitutional Theory, 89 YALE L.J. 1037 (1980).
44 See Larry Catá Backer, Fairness as a General Principle of American Constitutional Law:
Applying Extra-Constitutional Principles to Constitutional Cases in Hendricks and M.L.B. 33
TULSA L.J. 135 (1997).
45 The democratic principle of political organization has become virtually mandatory since the
Twentieth Century. See, e.g., NOMOS XXXV: DEMOCRATIC COMMUNITY (John W. Chapman and
Ian Shapiro eds., 1993); George W. Bush, President of the United States, Second Inaugural
Address, in Washington, D.C. (Jan. 20, 2005), (transcript available at
46 In its Chinese context, see, e.g., Michael Dowdle, Of Parliaments, Pragmatism, and the
Dynamics of Constitutional Development: The Curious Case China, 35 N.Y.U. J. INTL L. & POL. 1
47 Hal Blanchard, Constitutional Revisionism in the P.R.C.: “Seeking Truth From Facts,” 17 FLA.
J. INTL L. 365 (2005).
government—are usually synonymous with those political institutions
through which the legislative, executive, and judicial authority of the people
is exercised. The analysis is almost always fixated on the governance norms
contained in the state’s constitution—the document understood as the
highest expression of the political will of the people in their role as the
ultimate sovereigns, that is, as the supreme holders of state power. All other
entities or expressions of power within the state are viewed as subordinate to
the formal system of state power. Indeed, where state power is subordinated
to some other system (for example, religion) the basic state-centered legal
power hierarchy is threatened and rule of law becomes problematic.48
Rule-of-law analysis tends to incorporate an assumption that there can be
no identity between political parties and “government.” The manifestation of
the state is possible only through its “apparatus,” that is, its government.
Political parties serve as the principal vehicle for the manifestation of
individual political will. Political parties operate through it’s the government
or state apparatus, to which the all political parties remain distinct and
suboirdinate, for as long as their individual representatives are successfully
elected to office. Party apparatus (or government), in this system, can
function only in parallel with, and subordinate to, the paramount apparatus
of the state. By definition, then, party governance can never be “government,”
and capture of “government” by the apparatus of any one party inverts the
natural political order. This inversion is captured in the West by the notion of
tyranny, the dictatorship of party apparatus over the state apparatus. This
inversion is viewed as fundamentally illegitimate.
This view of the distinction between government and party is nicely
captured in American political thought. Political parties are viewed as
“factions” in the sense understood by James Madison in Federalist Paper No.
By a faction, I understand a number of citizens, whether
amounting to a majority or minority of the whole, who are
united and actuated by some common impulse or passion, or
of interest, adverse to the rights of other citizens, or to the
permanent and aggregate interests of the community.49
Such factions do not represent the people as a sovereign body. Rather,
they are the expression of individual will, albeit in collective form. Madison
also notes that “[c]omplaints are everywhere heard . . . that the public good is
48 This has been the case especially in the construction of theocracies, either as an expression of
indigenous sovereignty, as in Iran, or as an expression of “diversity” theoretics by the agents of
Western states working with indigenous elites, as in Iraq and Afghanistan. See Backer, God
Over Constitution, supra, note 13.
49 THE FEDERALIST NO. 10 (James Madison) (Roy P. Fairfield ed., 1981)
disregarded in the conflicts of rival parties.”50 Thus, from the earliest period
of the American Republic, there was a strongly guarded separation between a
state and its government (as representative of the entire people), on the one
hand, and factions or political parties (as representative of the will of
individuals), on the other hand.
There can be no formal governance power that exists outside of the state
and the institutions identified in its formal governance documents. Thus, the
West traditionally separates the ideology of political power—which some
think represents the personal views of individuals rather than the people as a
whole—from the institutions of the state, which some think is bereft of
political ideology other than to the extent inherent in its very structure
through which the will of the people as a whole may be expressed.
On this basis, there has been a sort of standardization of the analysis of
rule-of-law issues in the People’s Republic of China. The analysis starts with
the idea that, since the end of the Cultural Revolution,51 China appears
finally to have begun the process of building a proper (Western style) state.52
China has abandoned the excesses of a lawless political culture,53 at least
50 Id.
51 For a discussion of aspects of the Cultural Revolution relevant to this paper, see JING LIN, THE
(1991) (focusing on the developmental process that fostered the Red Guards’ aggression toward
the so-called class enemies and their obedience toward the Chinese Communist leader Chairman
Mao, the most visible aspect of the Cultural Revolution); LOWELL DITTMER, LIU SHAOQI AND THE
(especially for the circumstances of the fall of Peng Zhen Id. at 54-62, who was instrumental in
the construction of early post-Mao Zedong Chinese Constitutionalism). For a good source of
original source material in translation, see CHINA'S CULTURAL REVOLUTION, 1966-1969: NOT A
DINNER PARTY (Michael Schoenhals ed., 1996).
52 For an acknowledgement and criticism, see Randall Peerenboom, What Have We Learned
About Law and Development? Describing, Predicting, and Assessing Legal Reforms in China, 27
MICH. J. INTL L. 823, 836-37 (2006). Peerenboom explains that
many commentators describe China's efforts to implement rule of law in
terms of a transplant deduced from a predetermined foreign model and
implemented in top-down fashion by the central government. The assumption
is often that China is moving toward a liberal democratic conception of rule of
law. This assumption is unfounded, at least for the short term (and, I have
argued, for the medium and long terms as well), and misses the innovative
quality of rule of law in China.
[u]ntil very recently, discussions of lawmaking and the legislature in China
were regularly greeted by scholars, journalists and policy makers with tough
lawless in the sense that politics was substituted for law.54 The analysis
acknowledges that formal positivist law making was an important tool of the
CCP in the consolidation of Communist rule in the 1950s in the initial post-
Revolutionary efforts to legitimate the Socialist transformation of Chinese
society. Yet the breadth and intensity with which post-Mao reformers have
engaged in transplanting laws and applying legal ideas and techniques to
solve contemporary, and above all, economic problems have no parallel in
Chinese history since the Republican era, and in some respects may even
surpass it.55 Thus, a hallmark of post-Mao Zedong Chinese legal development
is the attempts at formal institution building through the implementation of
systems of law administered through a state apparatus that more closely
resembles those of other states.
This analysis acknowledges that though law continues to be “conceived
and operates as an instrument with which to uphold the Socialist political
order and perpetuate party domination,”56 China has also begun to organize
its legal system within a proper Western-style hierarchy of law administered
by State officials. For this purpose, it appears that China has lavished a lot of
attention on the adoption of an amended constitution,57 beginning the process
questions such as “why should we care how laws are made in China?” Few
could be convinced that law, lawmaking politics and legislatures matter in
single-party authoritarian systems such as China. . . . As recently as ten
years ago a book such as this one on Chinese lawmaking politics might have
caught the eye of a scholar of Asian law, but for most political scientists it
would have held scant interest, since their principal fascination is the study
of power.
Id. at 4.
54 For a sense of the relationship between rules of politics at the time of the Cultural Revolution,
at least as popularized in the West at the time, see Alice Erh Soon Tay, ‘Smash Permanent
Rules’: China as a Model for the Future, 7 SYDNEY L. REV. 400, 400-23 (1973-76).
55 Edward J. Epstein, Law and Legitimation in Post-Mao China, in DOMESTIC LAW REFORMS IN
POST-MAO CHINA 19 (Pitman B. Potter ed., 1994).
56 Id.
1998 156-161 (1999). Chen notes that the
post-Mao rule of law campaign to a large extent marked the resumption of
China's state-building process. This process, interrupted after the late 1950s,
propelled a transition from an undisguised rule of Party policy to a rule of
state law that aimed to place Party policy under a constitutional and legal
Id. at 157. As this argument suggests, the P.R.C. has had a long experience with written
constitutions. For a discussion of constitutionalism in China, see LIN FENG, CONSTITUTIONAL
LAW IN CHINA (2000). The current Constitution was adopted on December 4, 1982 and was
of constituting a State apparatus superior to any other organized force within
the State. Most importantly, for constitutional legitimacy purposes, the black
letter of the Chinese Constitution has at last embraced rule-of-law concepts.58
At least as a formal matter, China has also made steady progress in
deepening its commitment to rule-of-law governance by adopting a broad
spectrum of legislative codes, including a corporate code,59 a securities
market code,60 an administrative litigation law,61 and a civil procedure law
for foreigners.62 China has also started work on a comprehensive system of
tort law.63
The analysis suggests, then, that to progress further China must actively
implement these codes and develop a sound and independent judicial
system64 or some equivalent.65 Its rule-of-law culture will be made stable and
periodically revised through 2004. XIAN FA (2004) (P.R.C.), translated in (last visited Dec. 11, 2006).
58 Article 5 of the P.R.C. Constitution provides:
No law or administrative or local rules and regulations shall contravene the
constitution. All state organs, the armed forces, all political parties and
public organizations and all enterprises and undertakings must abide by the
Constitution and the law. All acts in violation of the Constitution and the law
must be investigated. No organization or individual may enjoy the privilege
of being above the Constitution and the law.
XIAN FA, art. 5 (1986) (P.R.C.), translated in (last visited Dec. 11, 2006).
59 See The Company Law of the People’s Republic of China (revised in 2005) (promulgated by the
Standing Comm. Nat’l People’s Cong., Dec. 29, 1993, effective Dec. 29, 1993), translated in, (last visited Dec. 11,2006).
For a recent analysis of the difficulties of Chinese corporate governance, see Donald Clarke, The
Independent Director in Chinese Corporate Governance, 31 DEL. J. CORP. L. 125, 130-50 (2006).
60 See, e.g., Yuwa Wei, The Development of the Securities Market and Regulation in China, 27
LOY. L.A. INTL & COMP. L. REV. 479, 488-500 (2005); Alice de Jonge, Corporate Governance in a
Cross-Border Environment: Overseas Listings of Chinese Firms, in TRENDS AND DEVELOPMENTS
IN CORPORATE GOVERNANCE 91-97 (Dennis Campbell ed., 2004).
61 See Administrative Procedure Law of the People’s Republic of China (promulgated by the Nat'l
People's Cong., Apr. 4, 1989, effective Oct. 1, 1990), available at
62 See Mo Zhang, International Civil Litigation in China: A Practical Analysis of the Chinese
Judicial System, 25 B.C. INT'L & COMP. L. REV. 59 (2002).
63 See George W. Conk, People's Republic of China Civil Code: Tort Liability Law, 5 PRIVATE L.
REV. 77 (2005). But see Yao Hui, Recent Development of Chinese Civil Law: Focus on Drafting the
Civil Code and Jus Rerem (Law of Real Rights), 5 J. CHINESE & COMP. 289, 295 (2002)
(questioning whether, in China, the law of torts should be separated from the law of obligations).
64 For a discussion, see, e.g., VAI IO LO & XIAOWEN TIAN, LAW AND INVESTMENT IN CHINA: THE
permanent once all stakeholders in governance, including principally the
Chinese Communist Party,66 follow the post-Soviet model67 and become
subject to the limitations of the law promulgated, in fact, as well as in law.68
Some critiques suggest that democratization of governance should be the last
step necessary to ensure that a rule-of-law culture materializes in China.69
1970s, China has undertaken various efforts to rebuild or revitalize its judicial system.
Nonetheless, in the last two decades, the Chinese judicial system has been much criticized,
especially on the poor quality of judges, lack of judicial independence, and weak enforcement.”
See also Mo, supra note 62, at 92-95. For a discussion of the problem in a specific context, see
Vincent A. Pace, Comment, The Bankruptcy of the Zhu Kuan Group: A Case Study of Cross-
Border Insolvency Litigation Against a Chinese State-Owned Enterprise, 27 U. PA. J. INT'L ECON.
L. 517 (2006). For a recent critical assessment of the effect of judicial process reforms in
Shanghai, see Mei Ying Gechlik, Judicial Reform in China: Lessons from Shanghai, 19 COLUM.
J. ASIAN L. 97 (2005).
65 See Carl F. Minzner, Xinfang: An Alternative to Formal Chinese Legal Institutions, 42 STAN. J.
INTL L. 103 (2006):
Given the institutional weaknesses of the Chinese judiciary and government
limitations on citizen political participation, xinfang appeals remain a
popular channel for injured citizens to prompt elite involvement in the
resolution of their particular grievances. In practice, the xinfang system often
replaces formal legal channels as the locus for citizen dispute resolution.
Contrary to the conclusions of many foreign observers, China may not be
developing a Western-style rule of law but rather a modernized form of
traditional petitioning structures and practices.
Id. at 107.
66 The Chinese Communist Party (CCP) is the party in power in the P.R.C.. For a history of the
development of the CCP in the period prior to the end of the Civil War, see MARK SELDEN, CHINA
IN REVOLUTION: THE YENAN WAY REVISITED (1995). The Chinese Communist Party began
organizing itself, or at least expressing its organization, through constitutions beginning early in
its history, before the establishment of the P.R.C. The CCP adopted a constitution as early as
1921 for its own internal governance. ARIF DIRLIK, THE ORIGINS OF CHINESE COMMUNISM 246
(1989) (describing the difficulties of the organization of the Communist party through the early
1920s). The CCP currently functions under a constitution. See Constitution of the Communist
Party of China (2002), supra note 31The CCP takes its constitution seriously. On the history of
the Communist Party of China as the CCP views it, see, e.g., A CONCISE HISTORY OF TH E
COMMUNIST PARTY OF CHINA (Hu Sheng ed., 1994).
67 See, e.g., Thomas Carothers, The Rule of Law Revival, FOREIGN AFF., Mar.-Apr. 1998, at 95-96.
This model has had its problems, some fairly well documented. See, e.g., PATTERNS IN POST-
SOVIET LEADERSHIP (Timothy J. Colton & Robert C. Tucker eds., 1995) (essays on the difficulties
of transition in Eastern Europe).
68 See, e.g., Eric W. Orts, The Rule of Law in China, 34 VAND. J. TRANSNATL L. 43, 66-67 (2001)
(noting the difficulties of reconciling rule of law notions with the primacy of the CCP); Pittman B.
Potter, The Chinese Legal System: Continuing Commitment to the Primacy of State Power, in
THE PEOPLE'S REPUBLIC OF CHINA AFTER 50 YEARS 111, 113 (Richard Louis Edmonds ed., 1999).
69 See, e.g., Dingjian Cai The Development of Constitutionalism in the Transition of Chinese
Society, 19 COLUM. J. ASIAN L. 1 (2005) (arguing that the inequitable distribution of resources
produced in the post-Mao period will produce a popular push for more rule of law reform that
might lead to a real crisis for Chinese society and produce an appropriate form of
The Chinese State apparatus, under the typical analysis, fails to measure
up to the ideal forms through which rule of law is expressed in political
communities. As Stanley Lubman bluntly put it: “[i]nstitutions and habits of
thought that have marked China since the establishment of the P.R.C. have
powerfully inhibited the development of autonomy for the new legal
institutions. New or revived legal bureaucracies have encountered resistance
and pressure to operate in ways that are inconsistent with promoting
legality.”70 The cause of these difficulties is easy to identify—it is what
Lubman might consider to be the great factional invert, the CCP. In
condemning the CCP as the great impediment to legitimate rule of law state
building in China, Lubman is effectively condemning a system which
conflates faction (as the West understands the fundamental nature of
political parties) and government (the only legitimate expression of state
apparatus) within the apparatus of the CCP. “The CCP has not tolerated any
threat to its control over the power of the state apparatus, and the legal
reform has succeeded only to the extent that the CCP has relinquished, or
more commonly, modulated and redirected its power.”71 Law reform, rather
than being mandatory under accepted principles of rule of law for the
development of a legitimate state apparatus representative of all of the
people and empowered to limit the arbitrary discretion of any individual or
group, becomes just another discretionary method of keeping the CCP in
power, and thus both arbitrary and illegitimate.72
On the basis of analyses like this, commentators have urged China to
adjust its State apparatus (principally the instrumentalities through which
state power is formally exercised) so that the State can better conform its
practices to the rule-of-law ideal.73 Many say that embracing this ideal will
ultimately require the transformation of the Chinese state from a strict
constitutionalism in China). But see SUZANNE OGDEN, INKLINGS OF DEMOCRACY IN CHINA (2002)
(arguing in part that Chinese cultural norms and Western conceptions of democracy are not
compatible; the latter focuses on limitation of the government's power, the former looks to
increasing the effectiveness of governmental control). For the presentation of the issue as a
problem of dialectics, an irony of sorts given the nature of Marxist-Leninist confrontations with
the inherent dialectics of capitalism, see Bradley L. Millwick, Feeling for Rocks While Crossing
the River: The Gradual Evolution of Chinese Law, 14 J. TRANSNAT'L L. & POL'Y 289, 304-06
70 Stanley B. Lubman, Introduction to DOMESTIC LAW REFORMS IN POST-MAO CHINA 3, 4 (Pitman
B. Potter ed., 1994).
71 Id.
72 Id. (“Law reform was subject to the discretion of the CCP to allow it, both as a matter of policy
from above and in implementation from below.”).
73 See, e.g., M. Ulric Killion China's Amended Constitution: Quest for Liberty and Independent
Judicial Review, 4 WASH. U. GLOBAL STUD. L. REV. 43, 78 (2005) (“Until China's polity
incorporates a more Western model of constitutionalism with separation of powers, popular
sovereignty, and independent judicial review, amendments to the 1982 Constitution that
supposedly safeguard liberty and social rights will remain without effect.”).
authoritarian one to something else—perhaps a government that mimics the
government of Singapore,74 Japan,75 or another East Asian model.76 The CCP
essentially stands in the way of the realization of the rule-of-law ideal.77 At
worst, it ought to embrace its destiny to become one of many parties in a
multiparty democratic system—the Eastern European model.78 In the best-
case scenario, at least from an American political perspective, the CCP ought
to disappear entirely, as inimical to the operation of a proper rule-of-law state
As applied by commentators to Chinese constitutionalism, these ideals
usually translate into a criticism of the Chinese Communist Party as an
impediment to the evolution of the instrumentalities of the Chinese state into
a rule-of-law government. Alternatively, these commentators seek to solve
the “problem of Chinese rule-of-law transition by concentrating on the
formal institutions of government and marginalizing the CCP. These
generalized criticisms or marginalizations of the CCP take a number of
forms, even among those sensitive to the realities of Chinese governance. A
strain of rule-of-law scholarship measures the progress of Chinese
constitutionalism by reference to the separation of the CCP from the
74 For a discussion of the Singapore system of governance, see Li-Ann Thio, Beyond the “Four
Walls” in an Age of Transnational Judicial Conversations Civil Liberties, Rights Theories, and
Constitutional Adjudication in Malaysia and Singapore, 19 COLUM. J. ASIAN L. 428 (2006).
75 For a discussion of Japanese constitutionalism, see Christopher A. Ford, The Indigenization of
Constitutionalism in the Japanese Experience, 28 CASE W. RES. J. INTL. 3 (1996).
76 For a discussion of “Asian Values” constitutionalism, see Michael C. Davis, Constitutionalism
and Political Culture: The Debate over Human Rights and Asian Values, 11 HARV. HUM. RTS. J.
109 (1998).
77 For a discussion of the transformation of Eastern European Communist Parties from the party
in power to one of many in multi party democratic states, see, e.g IAN JEFFRIES, EASTERN
TRANSITION 385-415 (2002); Thomas F. Remington, Introduction: Parliamentary Elections and
78 For a discussion of the Eastern European model of Constitutionalism, see Rett R.
Ludwikowski, “Mixed” Constitutions—Product of an East-Central European Constitutional
Melting Pot, 16 B.U. INTL L.J. 1 (1998).
79 The current American administration desires this model for the Communist Party of Cuba
when Fidel Castro dies and the United States feels freer to effect political transition in Cuba. See
PRESIDENT (May 6, 2004), See also Carlos M.
Gutierrez, U.S. Commerce Secretary, Speech to the Cato Institute: Comprehensive Immigration
Reform for a Growing Economy (Aug. 1, 2006),
pf_immigrationreform/transcipt_commerce_secretary_carlosgutierrez.html; Larry Catá Backer,
Fighting the Ghosts of the Past: Should American Policy Replay the 1950s in 21st Century
Cuba?, Law at the End of the Day, July 1, 2006,
apparatus of government.80 It should follow that the more marginalized the
CCP becomes, the more it becomes first the political party and then,
eventually, merely one political party among many, the more likely this
strain of scholarship is inclined to suggest that rule of law is advancing in
China. For example, Jiang Jinsong and Jack R. Van Der Slik suggest that
Chinese rule-of-law constitutionalism advances as the official organ of State
power, the National People’s Congress actually comes to fulfill the place
assigned to it by the Chinese Constitution.81 Michael Dowdle has also focused
on the role of the State apparatus as an indicator of the advance of rule-of-
law culture in Chinese constitutionalism.82 Ironically, some scholars have
suggested that Chinese Constitutionalism, understood in this sense, arose
from a cynical manipulation of institutions by senior Party members fighting
for power and influence.83 For that purpose, the language of constitutionalism
served the leadership of the National People’s Congress, shut out of CCP
leadership positions, as a source of legitimate arguments for vesting an organ
outside the direct control of the CCP with institutional authority.84
There are other, related, perspectives as well. Eric Orts, for example, is
one of a number of scholars who seek to unbundle democratic theory from
rule-of-law analysis.85 The focus there is on the implementation of the rule of
law within the institutions of government with the CCP playing, at best, the
role of an outsider/spoiler.86 Pat Chew also suggests the possibility of an
80 This position is nicely summarized in Hal Blanchard, Constitutional Revisionism in the P.R.C.:
“Seeking Truth from Facts,” 17 FLA. J. INT'L L. 365, 371-73 (2005).
Critics argue, however, that the distinction between the CPC and the P.R.C.
Constitution itself is meaningless. Although the state professes to accept
certain constitutional limits on its authority, the CPC maintains tight control
of the political system through its appointment of key legislative officials as
well as the exclusive authority of the NPC and its Standing Committee
(NPCSC) to determine and interpret the constitutionality of any given law.
Id. at 372. See also discussion at notes 82-95 and accompanying text infra.
82 See generally Michael Dowdle, The Constitutional Development and Operations of the National
People's Congress, 11 COLUM. J. ASIAN L. 1 (1997).
SOCIALISM 1976-1992 (1995).
85 See generally Eric W. Orts, The Rule of Law in China, 34 VAND. J. TRANSNATL L. 43 (2001).
86 Id.
institutionalized rule-of-law regime within the Chinese State that is not
necessarily tied to Western notions of democracy.87 Others have also
suggested the difficulties of squaring the notions of rule of law with
development in East Asia.88 Still others suggest that the reality of China is
an embrace of a rule of law dissimilar to that understood in the West and
that adjustment rather than conformity might be the best approach.89
Randall Peerenboom shares some sympathy for Clarke’s position but
focuses on the institutions of the Chinese State rather than on those of the
CCP.90 Focusing on distinctions between “thick” and “thin” notions of the rule
of law, he suggests that rule of law efforts in China can only be understood in
its process or “thin” aspects.91 Focusing on attainment of thin rule-of-law
governance in China,92 Peerenboom suggests that the China continues to
reject Western substantive notions of rule of law, grounded in liberal
87 Pat K. Chew, The Rule of Law: China’s Skepticism and the Rule of People, 20 OHIO ST. J. ON
DISP. RESOL. 43, 65 (2005).
88 John K.M. Ohnesorge, The Rule of Law, Economic Development, and the Developmental States
of Northeast Asia, in LAW AND DEVELOPMENT IN EAST AND SOUTHEAST ASIA 91-127 (Christoph
Antons ed., 2003).
89 See Benedict Sheehy, Fundamentally Conflicting Views of the Rule of Law in China and the
West & Implications for Commercial Disputes, 26 NW. J. INT'L L. & BUS. 225 (2006). He suggests
[i]n China, although it has experimented with the notion at different times in
its history, currently the Chinese Communist Party ("CCP") is the basis of
power and influence as well as the basis of all law. In essence, therefore, the
law has been a tool of the CCP. While the CCP has been seeking to change
this status, change is still at an inchoate stage, and as a result, for foreign
commercial interests, access to predictable legal outcomes and enforcement
has been very limited.
90 See Peerenboom, supra note 35.
91 See id.
92 See Randall Peerenboom, China and the Rule of Law: Part I, 1(5) PERSPECTIVES, Apr. 30, 2000, He suggests:
In contrast to thick or substantive theories of the rule of law, thin theories
emphasize the formal or instrumental aspects of a legal system—those
features that any legal system allegedly must possess to function effectively
as a system of laws, regardless of whether the legal system is part of a
democratic or non-democratic society, capitalist or socialist, liberal or
theocratic, and indeed regardless of whether the legal system is a good one or
an evil one.
democratic theory.93 He explains that China must focus on the process of
developing the rule of law and that a complete transformation awaits the
folding of the CCP into a traditional state system in which it will serve its
purpose as one of many political parties.94 Michael Dowdle advances similar
arguments, suggesting both that traditional rule-of-law arguments do not
work in the Chinese context, and that, at least for the present state of
development in China, there cannot be rule of law as the term is conceived in
the West.95
As a consequence, outsiders have questioned the fidelity of the Chinese
state to the rule of law because of the control by a single party, the CCP, of
the apparatus of state power in China, including all lawmaking power. In one
sense these arguments can be reduced to a criticism of Chinese
constitutionalism as illegitimate because it lacks a basis in institutionalized
moral and ethical norms. These commentators suggest that China has
substituted the personal desires of the leaders of the CCP for the equal and
neutral application of norms to all individuals, which is the essence of the
rule of law in its process aspect. In the absence of these fundamental
institutional norms, the behavior of China's leaders is essentially
unconstrained. As such, this behavior appears to be the essence of arbitrary
governance according to Western thought. The greatest effect is on the
willingness of the political culture to tolerate a tremendous amount of
personal discretion in the application of rules, and the use of personal power
for personal ends (career advancement and the like) or to further personal
relationships (guanxi).96 Rule-of-law systems cannot be legitimate or
authentic in the face of party control of the apparatus of state government
93 Id. (“I have suggested that a thin theory of rule of law is a better benchmark for making cross
cultural comparisons than a thick theory, and in particular that a thin theory is a better
benchmark for judging the performance of China's legal system than a liberal democratic theory
since there seems to be little support for a liberal democratic rule of law in China at this time.”)
94 Peerenboom, supra note 35, at 474. This builds on insights drawn from Western jurisprudence,
like those nicely expressed by Robert George: “An unjust regime's adherence to the procedural
requirements of legality, so long as it lasts, has the virtue of limiting the rulers' freedom of
maneuver in ways that will generally reduce, to some extent, at least, their capacity for
evildoing.” Further, “[p]otential victims of injustice at the hands of wicked rulers will generally
benefit, if only to a limited extent, from their rulers' willingness, whatever its motivation, to
respect the requirements of the rule of law.” Robert P. George, Reason, Freedom and the Rule of
Law: Their Significance in the Natural Law Tradition, 46 AM. J. JURIS. 249, 253 (2001).
95 Michael Dowdle, Heretical Laments: China and the Fallacies of “Rule of Law,” 11 CULTURAL
DYNAMICS 287 (1999).
96 Pitman Potter points out the complexities and difficulties of separating law and legal
institutions from the traditional focus on relationships. See Pitman B. Potter, Guanxi and the
P.R.C. Legal System: From Contradiction to Complementarity, in SOCIAL CONNECTIONS IN
Doug Guthrie, & David Wank eds., 2004).
because no party can represent all the people—only the institutions of the
state can serve that function.
While grounded in neutral language, these arguments are, in reality,
applied expressions of a particular ideology that has assumed universal
acceptance outside of China in the period after the end of the Second World
War. Specifically, this popular strain of rule-of-law analysis is grounded in a
very specific ideal of constitutionalism that has become well developed and
accepted outside of China.97 Yet this peculiar ideal is somewhat removed
from governance ideals developed within the People’s Republic.98 The
international norm of deep constitutionalism that has developed since 1945
serves as the ideal against which the Chinese system is evaluated.99 That
system is
based on the idea that a universally shared system of values
exists that serves to limit the extent to which any political
community can express the popular (sovereign) will in their
constitutions. These universally shared (and imposed) norms
are developed and policed from out of an on-going discussion
among the community of nations, from out of which norms are
developed through consensus. These norms focus on the limits
of state power, especially as expressed against individuals,
represent the highest expression of universal political will,
and are meant to provide the foundation for the rule of law as
expressed within the constitutional traditions of a state.100
Two of the most prominent among these norms are “democracy” and
“human dignity,” from which globalized constitutional norm-making is
grounded within a matrix of social, political, and economic rights articulated
in an increasing number of pronouncements from international
These approaches to analyzing China and its constitutional developments
tend to say more about the cultural perspectives of the critics than about
China itself. In this respect this analysis shows some sympathy for Donald
97 See Louis Henkin, A Birth of Constitutionalism: Genetic Influences and Genetic Defects, in
42 (Michel Rosenfeld ed., 1994).
98 See generally Peerenboom, supra note 35.
99 Backer, God Over Constitution, supra note 13,
100 Id.
101 See Larry Catá Backer, President Bush’s Second Inaugural Address: A Revolutionary
Manifesto For International Law in Chaotic Times, Law at the End of the Day (Apr. 1, 2006),
Clarke’s position that the standard critiques are based on an ‘imperfect’
realization of the Western rule-of-law ideal approach to comparative law.102
Clarke argues that systems are measured and analyzed in terms of an ideal
state chosen by the analyst.103 The system chosen is usually a Western
political system—the United States or a European state. As a consequence,
any sort of Western-based rule-of-law paradigm contributes little to an
understanding of the evolution of Chinese governmental institutionalism.104
This view, in one form or another, creates problems for rule-of-law analysis,
especially as applied to East Asian states105 and China.106
This approach is unsatisfactory for three reasons.107 First, as I argue
here, it misses an important recent development in the specific context of
Chinese constitutionalism—the growing importance of writing specific
ideological frameworks into the Constitution.108 Second, it misjudges the
character of the theorizing of the CCP after Mao Zedong. Third, it misses the
institutional importance of the CCP in the analysis of rule-of-law issues in
China, suggesting a rhetorical but “realist” analytical place for the CCP
within political and constitutional analysis in the P.R.C. as faction but not as
102 See Peerenboom, supra note 35, at 526-27 (citing Donald Clarke, Alternative Approaches to
Chinese Law: Beyond the “Rule of Law” Paradigm, 2 WASEDA PROCEEDINGS OF COMP. L. 49, 49-
62 (1999)). Peerenboom explains, “Donald Clarke, for instance, raises a number of concerns about
the ‘imperfect realization of an ideal’ or ‘IRI’ approach to comparative law, an approach that
shares certain similarities with my approach, although there are also important differences.” Id.
at 526.
103 Clarke, supra note 102, at 51.
104 Id. at 52.
105 See, e.g., David Clark, The Many Meanings of the Rule of Law, in LAW, CAPITALISM AND
POWER IN ASIA 28-44 (Kanishka Jayasuriya ed., 1999); Shin-yi Peng, The WTO Legalistic
Approach and East Asia: From the Legal Culture Perpsective, 1 ASIAN-PAC. L. & POL'Y J. 13
passim (2000).
106 See Pat Chew, The Rule of Law: China’s Skepticism and the Rule of People, 20 OHIO ST. J. ON
DISP. RESOL. 43, 43-51, 64-66 (2005);). Cf. PEERENBOOM, supra note 46.
107 Both the first and second points are important. However, this Article will focus on the third.
While each point implicates the political theoretics of normative system foundation for legal
communities, the third point is fundamental to the understanding of the context in which rule of
law norms will develop in the P.R.C.—the institutional place of the CCP in the state and the
development of systems of rule based norms building on that understanding.
108 See discussion infra Section II, Sange Daibiao (Three Represents) As a Path to Substantive
Constitutionalism With Chinese Characteristics.
109 See discussion, supra notes 48-55.
Ideological campaigns are basic to political discourse in the P.R.C..110
What is new is the way in which ideological campaigns have been
transformed into a means of legal discourse.111 The growing importance of
including specific ideological frameworks within the Chinese and CCP
constitutions, especially since the end of the Deng Xiaoping leadership, may
have significant structural implications for both State and Party. This may
suggest a greater willingness to advance the implementation of ideology and
the substantive structure it represents, through state power grounded in law.
As “an important vehicle for communicating regime values to Party cadres
and the masses,”112 ideology supplies the normative bases of appropriate
institutional action that serves to define the relationship between the
state/supreme political entity and the individual. However, as I explain
below, because the norm structures of Chinese ideology articulated through
the CCP remain either alien or antithetical to their usual Western
counterparts, they remain opaque outside of China.113
More importantly, the Western approach dismisses ideological
developments in Chinese constitutionalism that Western states might
characterize as substantive or deep constitutionalism.114 Ironically, the
American President treats his ideological campaign for democracy,
accountability, and social responsibility as part of the important discourse of
constitutional values in the United States,115 yet the important conversations
110 Jiang Zemin stated: “The Chinese Communist Party attaches great importance to the guiding
role of theory.” Jiang Zemin, Report at the Fifteenth National Congress of the Communist Party
of China, Hold High the Great Banner of Deng Xiaoping Theory for an All-Round Advancement
of the Cause of Building Socialism With Chinese Characteristics Into the Twenty-First Century,
(Sept. 12, 1997), See also WEIXING CHEN,
155 (1999) (describing the conflation of ideological and legal campaigns).
111 See discussion infra Section II, Sange Daibiao (Three Represents) As a Path to Substantive
Constitutionalism With Chinese Characteristics.
112 Jia Hepeng, The Three Represents Campaign: Reform the Party or Indoctrinate the
Capitalists?, 24 CATO J. 261, 262 (2004).
113 See discussion infra Section III, Building on Three Represents Fundamentals.
114 For some emerging scholarship seeking to understand Chinese democratization, perhaps even
on its own terms, see, e.g., Randall Peerenboom, The Fire-Breathing Dragon and the Cute,
Cuddly Panda: The Implication of China's Rise for Developing Countries, Human Rights, and
Geopolitical Stability, 7 CHI. J. INT'L L. 17, 26-29 (2006); David Bachman, China's
Democratization: What Difference Would It Make for U.S.-China Relations?, in WHAT IF CHINA
115 See, e.g., Jayanth K. Krishnan, From the ALI to the ILI: The Efforts to Export an American
Legal Institution, 38 VAND. J. TRANSNAT'L L. 1255, 1256-60 (2005); Fleur Johns, Guantánamo
and the Annihilation of the Exception, 16 EUR. J. INT'L L. 613, 629 (2005).
within China about the role of citizen, state and party are marginalized as
“mere” ideology.116 But it is also important to accept that Chinese
constitutional conversations will occur in a manner distinct from, and use
forms unfamiliar to, Western approaches to constitutionalism. While it is
important to judge these efforts both within and outside of China, it is also
important to base these judgments within the framework that China has
chosen for itself.
What might be the ramifications of the current tendency of analysis to
dismiss ideological campaigns as politics by other means? On the one hand, it
takes the ideological campaigns of the CCP too literally. As a consequence,
the analysis tends to minimize the importance of this theorization.
Characterized as mere CCP sloganeering, ideological campaigns, it is
suggested, are little more than cynical attempts to manipulate Chinese public
opinion with no intended substantive effect.117 On the other hand, Western
style analysts do not take CCP ideology literally enough, but as invariably
little more than the politics of individual power by other means.118 It follows
from either of these stances that ideology serves merely to mask the
116 Peerenboom has nicely described the difficulties of ignoring ideology in Chinese constitutional
While most commentators portray political ideology as the main obstacle to
establishing rule of law in China, the biggest obstacles at present are
systemic in nature and involve the lack of institutional capacity. In the
future, economic factors, the interests of key institutional and social actors,
and ultimately political ideology (if China remains a single-party socialist
state) are likely to exert the most influence on legal reforms and their
likelihood of success.
Randall Peerenboom, What Have We Learned About Law and Development? Describing,
Predicting, and Assessing Legal Reforms in China, 27 MICH. J. INT'L L. 823, 864-65 (2006).
117 Fairly typical in Western writing is to posit a positive contrast between the sloganeering
under Mao and the more pragmatic approach under his successors. See Ke Jian, Environmental
Justice: Can American Discourse Make Sense in Chinese Environmental Law?, 24 TEMP. J. SCI.
TECH. & ENVTL. L. 253 (2005) (“Deng placed economic progress above the Maoist goals of class
struggle and permanent revolution. Profit incentives took the place of ideological slogans as
China’s leaders experimented with ways to modernize the economy.”) Id. at 269. There is a
general sense in the West that ideology and especially slogans are a bad way to develop policy.
This is nicely reflected in statements like this: “Hardline ideology, simplistic theories, and
slogans make it easy to draw lines and make decisions, but not necessarily good ones.” Ellen
Dannin, To Market, To Market: Legislating on Privatization and Subcontracting, 60 MD. L. REV.
249, 257 (2001).
(Stanford University Press, 1981). Though in fairness, there was quite a bit of sloganeering
especially in the period before 1978. Consider the discussion of the use of “slogans” by Mao in the
times the view of ideology and sloganeering as both manipulative and merely political conflate,
see id. at 109-113).
arbitrariness of the CCP’s culture of exercising personal power without
limits. But Sange Daibiao may suggest a transformation of the character and
focus of ideological campaigns, as well as the naturalization of that discourse
within Chinese constitutionalism.119 It would follow from this alternative
view that the traditional analysis (including that by Chinese in the West)
may misjudge the construction of a formal normative element to Chinese
legal discourse through the traditional methodology of ideological campaigns.
The integral role that political ideologies play within the structure of
national constitutions is often overlooked today. Each state strives to embody
within its supreme constitutive document the core political principles, ideals,
and standards to which it is to adhere. , The ideologies of the American
founding generation has provided a source of livcely debate for American
jurists attempting to apply and interpret the Amerixcan constitution.
Americans have long been among the most able political society at
translating ideological campaigns into the substance of a rule of law society.
The political ideology of federalists, expressed forcefully in the Federalist
Papers,120 has assumed iconic status in American jurisprudence. “James
Madison Thought” and “Thomas Jefferson Thought” guide the deliberations
of the Supreme Court, and the political branches to some extent as well, as
surely as “Marxist-Leninist Mao Zedong Thought” guides Chinese
constitutionalism and limits the discretion of Chinese political leaders to
effect change. For example, the thoughts expressed in Madison’s Memorial
and Remonstrance Against Religious Assessments121 and similar writings and
Thomas Jefferson thought as expressed in writings such as the letter to the
Danbury Baptist Association122have played a definitive role in the
development of the jurisprudence of the Religion Clauses (Establishment
and Free Exercise).123 Yet scholars seem to ignore this important function of
political ideologies, assuming, perhaps, that all constitutions are to be viewed
objectively and not inherently antithetical to alternative political
philosophies. Americans do not demonize the ideologies on which the United
States was founded; yet American scholars tend to demonize similar
119 See discussion infra Section III, Building on Three Represents Fundamentals.
120 THE FEDERALIST PAPERS (Roy P Airfield ed., 2d ed. 1966).
121 James Madison, Memorial and Remonstrance Against Religious Assessments, in FOUNDING
THE REPUBLIC 89 (John J. Patrick ed., 1995).
122 For a discussion, see Daniel L. Dreisbach, THOMAS JEFFERSON AND THE WALL OF SEPARATION
BETWEEN CHURCH AND STATE (2002) (explaining historical context of Jefferson’s letter and the
use to which the letter was put thereafter).
123 See, e.g., Reynolds v. U.S., 98 U.S. 145 (1878) (citing to Jefferson and Madison as providing
the conceptual framework for the decision); Everson v. B. of Educ., 330 U.S. 1 (1947) (relying on
Thomas Jefferson and James Madison thought).
ideological projects in other young political communities, especially their
ideological and political competitors (enemies).
This marginalization of ideology, as something less valuable than the
writings of the founders of other constitutional systems in other ideologically
driven states, makes it difficult for Western scholars to appropriately weigh
Chinese ideological positions. The embedding of this ideological development
within the development of what is seen as a political party (authoritarian in
Western terms because of its usurpation of the State apparatus through the
“party-in-power rhetoric”) also tends to reduce the importance of ideology in
the development of purely state-centered thought. Yet as I have suggested,
the conflation of State and Party in China (for good or ill in Western terms)
requires an acceptance of the role of what we term ideology in the formation
of Chinese political and constitutional thought. As one commentator
admonishes, “[b]y suppressing the significance of, on the one hand, China’s
understanding of itself as uniquely ‘Chinese,’ or, on the other hand, its
Marxism,” what we do in our scholarly analysis is “seriously distort our
understanding of Chinese constitutional discursive practice.”124 The study of
the Chinese Constitution must thus be broader and not guided by comparison
to strictly Western political concepts—individual autonomy, for instance—but
instead to the specific political ideology espoused. This does not negate or
suspend judgment, but it does require a clear-headed consideration of the
system to be judged and an understanding of the nature of the judgment.
Traditionally, and with some justification, Chinese ideological campaigns
have had a very bad reputation among sinologists outside of China. Fairly
typical of this attitude is that of Marie Holzman, who reminded her readers
as early as 2001 of the historical context in which ideological campaigns were
used and misused by generations of leadership in China.125 Unlike American
or French ideological campaigns at the time of the formation of those states,
Chinese ideological campaigns have been chaotic affairs, with constant and
sometimes unpredictable shifting of form and substance.126 Certainty,
predictability, and fidelity to core ideas in the construction of a stable
normative system have been absent for the most part. Ideological campaigns
were used, especially through the end of the 1970s, as one of several covers
beneath which bitter personal and factional fighting for power took place
among the Chinese elite.127 Within China and among those in the overseas
124 Ainsworth, supra note 26, at 298.
125 Marie Holzman, Human Rights in China (HRIC), The Chinese Regime’s Use of Repression
and the Evolution of Its Targets, Jan. 22, 2001,
126 See generally DITTMER, supra note 51; HARDING, supra note 118.
127 See, e.g., GUO, supra note 25; TANNER, supra note 53; JOSEPH FEWSMITH, DILEMMAS OF
Chinese community, then, it comes as no surprise that the attitude greeting
these campaigns remains one of suspicion and derision. Successive waves of
ideological campaigns are mocked (the fate of Sange Daibiao, and its progeny,
for example, and the recent ba rong ba chi campaign)128 and criticized as
incomprehensible (as, for example, the consensus about Sange Daibiao).
Yet historical abuse ought not to blind analysis of the inherent potential
of ideological campaigns. The origins of French democratic and state ideals
were bound up in the almost uncontrolled violence of the French Revolution,
the excesses of which still excite feeling in the West. The Revolution was
followed by long periods of dictatorship, political suppression, and the abuse
of ideology for nefarious personal purposes in French politics.129 The United
States did not fully embrace what passes for its eternal founding ideology
until after, and as a consequence of, the military victory of the Northern
elites in 1865.130 As the reality of rule of law within the CCP takes hold and
deepens, and as Party discipline grows and collective rule becomes more
regularized, more bureaucratic, and less personal, the system of rules
grounded in an elaborate ideology becomes more important. That normative
structure and those rules can become the permanent feature of the
governance apparatus and the personal becomes less powerful. The key, of
course, is depersonalization of governance within a stable and deeply
embedded normative system. Yet China has yet to institutionalize a
governance system in which systems of rules bind individuals and constrain
the form in which personal quests for power can take place.131 Sange Daibiao
points toward the creation of such a system, and it could also serve as the
basis for the deepening of such a system. This has been the focus of recent
rule-of-law developments of the Chinese elite. Its success is by no means
assured, but neither was that of Hamiltonian federalism in 1801.
Lastly, it is worth focusing in some detail on the way in which the
standard analysis caricatured in this section misses the important
institutional place of the CCP in the analysis of the rule of law.132 In Western
analysis, the CCP is the elephant in the room that no one wants to
128 See discussion infra Section III, Building on Three Represents Fundamentals.
129 For a discussion of French ideological history, see SUDHIR HAZAREESINGH, POLITICAL
130 See Larry Catá Backer, The Extra-National State: American Confederate Federalism and the
European Union, 7 COLUM. J. EUR. L. 173 (2001).
131 See discussion infra Part III.
132 See generally Larry Catá Backer, Cuban Corporate Governance at the Crossroads: Cuban
Marxism, Private Economic Collectives, and Free Market Globalism, 14 TRANSNATL L. &
CONTEMP. PROBS. 337 (2004).
acknowledge. It is either viewed as an impediment to attainment of the rule
of law or as a vast and unruly faction that stands between the people and the
apparatus of the state. It is, essentially, the group that prevents the
development of democracy and independent state institutions capable of
supporting a strong rule-of-law (in its procedural aspects) state.
No analysis of the rule of law in China is possible without taking into
account the institutional role of the Chinese Communist Party both within
and outside the apparatus of the State. This requires taking seriously the
place of the CCP as the party in power” for constitutional purposes. It also
requires looking at the CCP not as a Western-style party—like the factions of
Madison’s theorizing—but as an essential element of the construction of
State power.
If we accept the CCP as playing a critical role in governance, then I would
posit that our understanding of the State becomes more complicated.
Between State and Party, the apparatus of the State is split into two parts:
one largely following the pattern of institutionalized governance in the West,
and the other following the understanding of the fusion of government and
politics inherent in the construction of State socialism in China since 1949.
This split is very important, as it shows the difficulties of constructing
institutions that can at the same time serve to communicate with other
states, and remain true to the substantive basis of the social and political
order of the state. The formal organization of the institutions of State power
is the Western-style manifestation of the government of a proper political
entity with all the indicia of state institutions in a form understandable by
the community of nations. This is the face of public organization—what the
rest of the world expects to see—and the place from which they apply the
standards of appropriate conduct.
The inward manifestation of the state apparatus—its substantive
values—is represented through the formal institution of the CCP. This basic
insight of Marxist-Leninist state theory does not lose its power but is folded
into Sange Daibiao. In the context of China, the apparatus of the CCP serves
as the manifestation of the ideological or substantive aspects of the rule of
law. This represents the genius of the people as a whole in upholding the
foundational normative structure of the State: Marxist-Leninist, Mao Zedong,
Deng Xiao Ping thought, and the important thought of Sange Daibiao. The
CCP serves as the institutional representative of the people and thus serves
the important State purpose of infusing the formal institutions of State power
with a normative basis for the exercise of political power.133 That normative
basis has found expression in a number of important pronouncements each
133 XIAN FA art. 5 (1982) (P.R.C.) art. 5; XIAN FA Preamble (1999) (P.R.C.). The CCP itself, then,
can serve potentially (and it is mostly potential at this stage) as the institutional incarnation of
“thick” or substantive rule of law, and thus, as the actual apparatus of the state.
worthy of implementation, touching on the separation of individual from
communal power. These include the Four Cardinal Principles,134 Hu Jintao’s
recent Two Musts Campaign (the CCP must keep a humble attitude and
must keep a hardworking spirit), the Fish-Water connection between CCP
cadres and the masses, and the ba rong ba chi campaigns of 2006.135 The split
that the Sange Daibiao reifies is not between State and Party, but between
politics and economics. In a great sense, again, Sange Daibiao owes a
tremendous amount to the normative distinctions introduced by Deng
Xiaoping, grounded in the concept that China was in the primary stage of
The Chinese Constitution attempts to establish the context on which
these two aspects of government can come together—the formal institutions
of the State and the oversight of values/governance role of the CCP. The
Constitution carefully develops the overlap between State and Party. Yet
Western commentators tend to focus more on those parts of the constitution
most like their own—the sections dealing with the formal organization of the
state. They tend to be blind to those portions of the Constitution that open a
window on that other important aspect of government—the relation of
government and CCP—that is, on the relationship between institution and
The State itself can be considered complete only when the formal State
apparatus is joined with the apparatus of the CCP. For the West, this is
difficult to grasp, impeded as it is by the Western limitations of considering
political parties as separate from the institutions of the state. On this basis it
is easier to understand the CCP’s own understanding of rule of law” as a
134 The central role of the Four Cardinal Principles is emphasized in the Constitution of the
Communist Party o China, supra, note 31 (“The Four Cardinal Principles -- to keep to the
socialist road and to uphold the people's democratic dictatorship, leadership by the Communist
Party of China, and Marxism-Leninism and Mao Zedong Thought -- are the foundation on which
to build our country. Throughout the course of socialist modernization we must adhere to the
Four Cardinal Principles and combat bourgeois liberalization.”) .
135 See discussion infra Section III.A.
On the one hand, it is argued, China had become socialist—which meant that
the Communist Party would continue to rule as the vanguard of the
“dictatorship of the proletariat.” On the other hand, it was understandable
that, being only in socialism's initial stage, China would still have
superstructural detritus from its recent feudal past, which included Mao's
one-man rule and his “patriarchal” cult of personality, as well as the
bureaucratism and political sinecure of the party and government. Being in
the primary stage of socialism could also explain China's poverty and justify
the need for market reforms to develop the economy.
hybrid concept. This was brought out by Jiang Zemin in an important
address worth quoting in full:
Ruling the country by law means that the broad masses of the
people, under the leadership of the Party and in accordance
with the Constitution and other laws, participate in one way
or another and through all possible channels in managing
state affairs, economic and cultural undertakings and social
affairs, and see to it that all work by the state proceeds in
keeping with law, and that socialist democracy is gradually
institutionalized and codified so that such institutions and
laws will not change with changes in the leadership or
changes in the views or focus of attention of any leader.137
This requires understanding that the construction of the Chinese State is
different from that of traditional Western states. The Chinese state is an
aggregate, a fusion of outward and inward institutional manifestations of
power, and thus of CCP and state within China: “The Party has led the
people in drawing up the Constitution and other laws, to which it confines its
activities.”138 The focus, then, is both on rule building and Party building.
This was made clear by a discussion of Party building in 2004:
What kind of party is the Communist Party, and how do you
build this party? The problem appears to be simple, but it is
not easy to answer. 70 years of Soviet exploration could not
solve the problem. “Three Represents”, the Sine-ization of the
latest Marxist theories, a scientific answer to this question of
promoting the building of the ruling party, pointed out the
137 Jiang, supra note 110.
138 Id. Jiang made the relationship between State and Party quite clear in this context:
In ruling the country by law, we can unify the adherence to Party leadership,
the development of people's democracy and do things in strict accordance
with the law, thus ensuring, institutionally and legally, that the Party's basic
line and basic policies are carried out without fail, and that the Party plays
the role of the core of leadership at all times, commanding the whole
situation and coordinating the efforts of all quarters.
139 Changjiang Wang, Yi xiang shen mou yuan lu de zhan lue bu shu—lun dang de zhi zheng
neng li jian she [A Prudent and Strategic Plan—Of the Party’s Rule Building Capacity],
(translation by John Haverty).
Strengthening the party system, improving the party’s institutions and mechanisms, is the key
to the party’s capacity to build rule. The overall capacity of the ruling party is an important
It is only within this context that the current ideological campaign—
Sange Daibiao—assumes its importance for Chinese constitutionalism and
the advancement of the rule-of-law culture in China. The expression of Sange
Daibiao can be obscure. Stefan Landsberger provides a nice summary:
The theory focuses on the future role of the CCP as "a faithful
representative of the requirements in the development of
advanced productive forces in China, the orientation of the
advanced culture in China, and the fundamental interests of
the broadest masses of the people in China.140
Sange Daibiao provides an ideological basis, a deep constitutional
foundation, for the position of the CCP at the center of the institutional
apparatus of the Chinese state. However, it does more than that. It also
provides the basis for the rule of law as a framework for the proper
relationship between state institutions (representing the collective) and the
individual (as an instrument of that collective). As developed by the organs of
the CCP, it is clear that Sange Daibiao can provide the principles through
which the framework of commonly understood rule-of-law constitutionalism
can be adopted with Chinese characteristics.
Having suggested a theoretical basis for the constitutional importance of
ideological campaigns, like Sange Daibiao, it would be useful to examine, if
only briefly, the possible parameters of this construction of Chinese
constitutionalism, focusing on the inclusion of Sange Daibiao in the CCP
constitution after 2000 and in the Chinese Constitution after 2004.141 Like
fundamental aspect. Overall, the Party doesn’t have the capability to simply add (to it). In
practice, often he case: We equipped our cadres to important positions, and with strong
individual qualities, more so once a team is formed, but inevitably contradictions of some type,
will affect the ability to rule as impact the party’s image among the masses. Of course, there are
personal factors to this, but more critical is the factor of the system. With this in mind, the
important point with regard to strengthen the party’s rule building is to establish a scientific and
working mechanism as an organic and indispensable component to the party’s ruling capacity.
140 Jiang Zemin Theory (“Three Represents”), Stefan Landsberger's Chinese Propaganda Poster
Pages, (last visited Nov. 25, 2006).
141 The 2004 amendment to the Constitution of the People’s Republic of China, following similar
modifications to the Constitution of the CCP, changed the language in the P.R.C. Constitution’s
Preamble from “along the road of building socialism with Chinese characteristics . . .” and “under
the guidance of Marxism-Leninism, Mao Zedong Thought and Deng Xiaoping Theory . . .” to
“along the road of Chinese-style socialism . . ." and “under the guidance of Marxism-Leninism,
Mao Zedong Thought, Deng Xiaoping Theory and the important thought of ‘Three Represents’. .
.” XIAN FA, amend. IV, para. 1 (2004) (P.R.C.) (Approved on Mar. 14, 2004 by the 10th NPC at its
2nd Session). Unlike some Western constitutions, it is clear that the Preamble to the Chinese
Constitution can have full constitutional effect. In this respect, it is understood as operating in a
the earlier constitutional assimilation of Deng Xiaoping Theory and its core
“Four Cardinal Principles,”142 the adoption of Sange Daibiao may serve, at
least as a formal matter, to further incorporate substantive rule-of-law
elements into Chinese constitutionalism. The framework for the connection
between ideological basis and rules of acceptable conduct, between State and
Party, became clear with implementation of the Four Cardinal Principles.143
“When expression diverged too far from what he deemed acceptable, Deng
cracked down. Such crackdowns allowed more ideologically oriented
conservatives to criticize ‘bourgeois liberalizationfor a while, but inevitably
Deng would dampen the expression of such themes and re-emphasize
economic development.”144
The changed importance of ideological focus for the purpose of State
construction through the CCP was a critical break by Deng from the
governance principles of Mao.
The post-Mao regime has attempted to resurrect the political
tradition and political theory of the mid-1950s and base the
way similar to the French Constitution. For further discussion, see Larry Ca Backer,
Restraining Power from Below: The European Constitution’s Text and the Effectiveness of
Protection of Member State Power Within the EU Framework, THE FEDERA L TRUST FOR
EDUCATION AND RESEARCH ONLINE PAPER NO. 15/04 (2004), Other States have declared that their preambles may
have no constitutional effect. See, e.g., Martin Prozesky, The Proselytization Problem: Principles,
Practices, and National Constitutions in South Africa, 14 EMORY INT'L L. REV. 849, 872 (2000).
The new Catalan autonomy statute also vests its preamble with constitutional effect. See Larry
Catá Backer, The Debate Over the New Autonomy Statute for Catalonia: Perspectives From the
Left, Law at the End of the Day, June 5, 2006,
Fewsmith explains it:
For Deng, the “four cardinal principles” (upholding the socialist road, the
dictatorship of the proletariat [later, the people's democratic dictatorship],
the leadership of the Communist Party, and Marxism—Leninism—Mao
Zedong Thought), which he had enunciated in the spring of 1979 to curtail
liberal criticisms of Mao and the socialist system, did not constitute a vision
of socialist ideology but rather a boundary line defining the limits of
acceptable public expression.
143 The Four Cardinal Principles serve as an important ideological base of the purpose and
organization of the Chinese Communist Party. “The basic line of the Communist Party of China
at the primary stage of socialism is to lead the people of all our ethnic groups in a concerted, self-
reliant and pioneering effort to turn China into a prosperous, strong, democratic and culturally
advanced modern socialist country by making economic development our central task while
adhering to the Four Cardinal Principles and persevering in the reform and opening up.”
Constitution of the Communist Party of China, supra, note 31, Preamble.
144 Id. at 27.
political doctrine of the post-Mao regime on the "Four
Cardinal Principles," proclaimed as defining the core
elements of the post-Mao regime: Marxism-Leninism and Mao
Zedong Thought, the socialist road, the dictatorship of the
proletariat, and the leadership of the Communist Party.145
The foundations of the Four Cardinal Principles provided the “thick”
ideological basis for ther construction of a CCP-based rule-of-law structure.
The principles are grounded in the fundamental “claim [that] the CCP itself
[is] in possession of universal truth and assert[s] the necessity for a ruling
ideological orthodoxy as the guiding principle of China's socialist revolution
and construction.”146
Sange Daibiao may serve as a way to broaden the reach of the Four
Cardinal Principles. In this sense, Sange Daibiao may not be an advance so
much as the marker of a consolidation of the ideas of Deng Xiaoping in
concentrated form. In this respect, Sange Daibiao represents a deepening of
the conservative trend in political theory that seems to accompany the
liberalization of economic theory since Deng’s time.147
Why did China only start implementing Sange Daibiao within the past
few years? Sange Daibiao would have been impossible in the absence of Deng
Xiaoping Theory and with the liberalization that occurred after the end of the
Mao Zedong period in the 1970s. Deng Xiaoping Theory made possible the
opening of the CCP and the State to influences and elements beyond the
narrowness of class struggle. That opening is reflected in both the expansion
of potential Party members and in the broad identification of the CCP with
progress and socio-cultural elements. Sange Daibiao would also have been
impossible in the absence of the Tiananmen Square violence and its
aftermath. That episode suggested the need to separate politics from
145 GUO, supra note 28, at 43.
146 Id. Guo rightly suggests that “It is in this fundamental sense that we are able to distinguish
between a totalitarian communist regime and an authoritarian dictatorship rather than in the
sense of how many ‘pragmatic’ elements in the post-Mao ideological doctrine.” Id.
147 Joseph Fewsmith recounts the circumstances of Deng’s political conservatism as he moved
forward on economic moderation:
Another factor prompting Deng's conservative turn at this time may have
been his vulnerability to the criticism from other socialist states. It is said
that while the Theory Conference was in session, Kim Il-sung made a secret
visit to China and grilled Deng Xiaoping on whether or not he was intending
to become another Khrushchev, whether or not he intended to uphold
socialism, whether or not he would maintain the leading role of the
Communist party, and so forth. Deng, whose power was not yet secure, feared
that he would indeed be labeled another Khrushchev.
FEWSMITH, supra note 142, at 82.
economics and to find a way to legitimate the allocation of political power to
the CCP, leaving economic power to the people. Sange Daibiao has to do with
the desire to integrate and modernize China within the global economy, for
which clarity in law is needed. It also comes from the need to tie together
political and moral foundations, and to find a basis for legitimating the CCP’s
role as the perpetual party in power.
These connections are clearly visible in the 2006 revisions to school
textbooks originating in Shanghai,148 the power center of Jiang Zemin.149 The
revisions emphasized “ideas and buzzwords that dominate the state-run
media and official discourse—economic growth, innovation, foreign trade,
political stability, respect for diverse cultures and social harmony.”150 The
news story reporting of these text revisions also suggested a direct connection
between these changes in Shanghai and Jiang’s Sange Daibiao as augmented
by Hu Jintao’s recent “Three Harmonies” principles.151 The news story also
suggested that
the Shanghai textbooks reflected the political viewpoints of
China’s top leaders [Jiang and Hu]. . . . Mr. Jiang’s “Three
Represents” slogan was aimed to broaden the Communist
Party’s mandate and dilute its traditional emphasis on class
struggle. Mr. Hu coined the phrase “harmonious society”
which analysts say aims to persuade people to build a stable,
prosperous, unified China under one-party rule.152
Within the context of the two faces of State power in China, the Three
Represents is important for a number of reasons. First, it is important
148 See Joseph Kahn, Where’s Mao? Chinese Revise History Books, N.Y. TIMES, Sept. 1, 2006, at
149 For a discussion of Jiang and his connection to a Shanghai power base, see Lindsay Beck,
Beijing Corruption Case Signals Political Battle, REUTERS, June 21, 2006 (suggesting an attempt
by Hu Jintao to erode Jiang Shanghai power base in the context of Hu’s anti-corruption
150 Kahn, supra note 148, at A6.
151 For a discussion of the politics of Hu Jintao’s Three Harmonies, see Willy Lam, Hu Jintao’s
Theory of the “Three Harmonies,” 6(1) CHINA BRIEF, Jan. 3, 2006,
publications_details.php?volume_id=415&issue_id=3571&article_id=2370615 (“This ‘triple he
[harmony]’ can be rendered as ‘seeking peace in the world, reconciliation with Taiwan, and
harmony in Chinese society.’”). Lam suggested that the development of this supplement to the
Sange Daibiao was Hu’s attempt to solidify his position within the CCP leadership and to
distinguish himself from his reportedly more aloof predecessor by broadening the reach of the
CCP’s ideological campaigns. Id. (“Hu is anxious to render the Hu-Wen team more appealing to
the general populace.”).
152 Kahn, supra note 148. Kahn goes on to report that “[t]he new textbooks de-emphasize
dynastic change, peasant struggle, ethnic rivalry and war, some critics say, because the
leadership does not want people thinking that such things matter a great deal.” Id.
because of the deepening of a new (post-1978) pattern of parallelism—
incorporating changes in both the CCP constitution and the Chinese
Constitution. This appears to solidify a parallelism in the institutionalization
of the rule of law—the CCP and its expression as the State apparatus
(usually the National People’s Congress and the State Constitution) moving
in lock step on rule-of-law behavior. This is a parallelism that has served as a
constant within Chinese jurisprudence since 1983 and the elevation of Peng
Zhen as head of the National People’s Congress.153 The Three Represents, as
a basic norm of both Chinese constitutionalism and the CCP, provides a
bridge between the State apparatus and the CCP apparatus. It confirms the
need for parallel development among the two. It also suggests the separation
between state and Party. It might even suggest the possibility of supremacy
of the Constitution over the Party itself, at least as the source of authority
within the Chinese State apparatus. This supremacy is possible in Three
Represents theory precisely because it is grounded in the primacy of the CCP
within the formal apparatus of the State.154 By conceding everything, it
concedes nothing to the State (and specifically to the NPC).
But it does more than that. Here, at least from a theoretical perspective,
one can appreciate the great value of the Three Represents as a mandatory
bridge between, and perhaps ultimately the very undoing of the parallel in
the development of State and CCP apparatus. The Constitution might be the
supreme instrument of State power, imposing on all elements of the political
order an obligation to act within its rule order. But within that hierarchical,
rule-of-law bound, constitutional system, the Three Represents theory makes
clear that the CCP retains supreme authority. In a sense, Chinese
constitutionalism is now locked into rule-of-law development within the
framework of the CCP, rather than being potentially independent of it. In
particular, the Three Represents provides a method of curbing the
independent role of the NPC without appearing to affect its power. This
effectively undoes the work of Peng Zhen of a generation earlier, without
seeming to affect it at all.155 Without disturbing the place of the NPC at the
top of the hierarchy of the state apparatus, and without questioning the role
of the NPC, the Three Represents suggests a socialist aspect to Chinese
153 See TANNER, supra note 53, at 97-101; POTTER, supra note 83.
154 Dowdle, supra note 46.
155 Michael Dowdle correctly explained that Peng was to some extent successful in convincing the
CCP elite that the failure of the Cultural Revolution proceeded from a lack of information and
understanding within the party system itself. Michael Dowdle, Of ‘Socialism’ and ‘Socialist’
Legal Transformations in China and Vietnam, in ASIAN SOCIALISM AND LEGAL CHANGE: THE
DYNAMICS OF VIETNAMESE AND CHINESE REFORM 21, 35 (John Gillespie & Pip Nicholson eds.,
2005). This lack of information, he argued, had been caused by the dismantling of the
constitutional system. Id. He claimed that, because of the uniquely representational nature of
the NPC, constitutionalism provided special access to knowledge that was vital to preventing the
kinds of Party mistakes the Cultural Revolution represented. Id.
constitutionalism. This socialist aspect, together with the role of the CCP in
the State apparatus that is itself ordered through the Chinese Constitution is
both what had been missing in Chinese constitutionalism156 and that which
can make it distinct from constitutional theorizing originating in the West.157
If the CCP represents the people’s interest, it has reasserted its place over
the NPC in political decision making in China and has tied that decision
making more closely to the Marxist-Leninist-Maoist foundations of Chinese
political culture.
Second, Sange Daibiao may represent a conservative turn in the
Constitution of the State and the division of power in China. It undoes, to
some extent, the great compromise of the 1950s, in which the group that
defended Mao against Kao Kang’s attempt to decentralize power within the
CCP actually managed to reduce Mao’s power.158 That compromise shifted
power to the Standing Committee of the National People’s Congress as a
means of checking the power of the CCP leadership of Mao Zedong.159 That
great change was only possible in the context of the rise of an
institutionalization of the collective leadership principle, a concept that the
CCP has struggled to consistently embrace since the 1950s.160
The contest between an emphasis on obedience to
organizational superiors and a need to stimulate mass
initiative, between adherence to formal procedure and the
resort to more flexible informal expedients, and between
collective leadership and a cult of personality has lasted for
156 See, e.g., ADRIAN CHAN, CHINESE MARXISM (2003).
157 This later point, of course, remains a principle concern of CCP theorists like Jiang Zemin.
159 For the story, see id. at 12-13; FREDERICK C. TEIWES, POLITICS & PURGES IN CHINA:
160 See LOWELL DITTMER, CHINA UNDER REFORM 52-53 (1994). Citing the work of Leonard
Schapiro and John Lewis, Dittmer argues that
the CCP has a ‘leadership principle’ (Führerprinzip). . . . Whereas in the Nazi
party the führerist leadership pattern was uncontested, in China it was
(according to Schapiro and Lewis) combined with the Bolshevik or Leninist
principle of collective leadership, forming an uneasy compromise that lasted
from the Zhengfeng movement in Yanan until the Cultural Revolution, at
which point führerism predominated. Deng Xiaoping's ascendancy represents
a reassertion of collective leadership with a strong informal undercurrent of
personal leadership. . .
Id. at 52 n.7 (citing Leonard Schapiro & John Wilson Lewis, The Roles of the Monolithic Party
48 (J. W. Lewis ed., 1970)).
decades, and the leadership itself has changed its form from
time to time depending on who prevailed.161
Furthermore, the change represents a renewal of the strain of Chinese
Communist thought that sought to reject autarchy in favor of collective
decision making.162 As such, it represents an attempt to more strongly
institutionalize, as a formal matter, the more stable collective governance
ideals so as to move away from the personality driven CCP which has been
dominated by a single, apocryphal character.
Third, Sange Daibiao demonstrates a willingness within the CCP itself to
embrace a certain transparency in governance.163 As the faithful
representative of fundamental interests of the masses in China, the Three
Represents declares a commitment to legitimacy based on its representation
of the people.164 That faithfulness requires the Three Represents to retain the
confidence of the people. In a sense, the Three Represents is meant to remind
both State and Party that the CCP is the paramount apparatus of the state,
and that the supreme organs of State power must be guided by a CCP that
must itself reflect the highest ideals of state organization.165 Those
organizational ideals, then, must be directed inwards to the structure and
161 Id. at 52.
162 See, e.g., WEDEMAN, supra note 158, at 13-14.
163 Senior CCP officials are now more often quoted as embracing transparency. For example, Wu
Guanzheng, secretary of the Central Commission for Discipline Inspection of the Communist
Party of China was recently reported as ordering “officials to attend to outstanding problems
that had damaged the interests of the people, and push for more transparency in administration
of government, enterprises and villages.” Senior CPC Leader Pinpoints Enhanced Party
Discipline, XINHUA NE WS AGENCY, Apr. 23, 2006,
164 Joseph Fewsmith suggested that
[f]rom a theoretical point of view, the most interesting of Jiang's three
representatives is his call for the Party to represent the fundamental
interests of the broad masses of the Chinese people. This formulation leaves
room for ambiguity, but it moves away from traditional notions of the
Communist Party representing the vanguard of the working class and toward
the notion that it represents the interests of all the people.
FEWSMITH, supra note 142. This shift is particularly important in the context of the foundational
organizal theory of the CCP. Fewsmith explains that “[t]he notion of an “all people's party” has
long been an anathema to Marxist doctrine in China, but Jiang's formulation clearly edges in
that direction, as both proponents and detractors of the “three representatives” note. Id.
165 Fewsmith reminds us that the focus of the Sange Daibiao was on the CCP and not the State.
“Jiang claimed that, in summing up the Party's history, one could conclude that it had always
represented the most advanced productive forces, the most advanced culture, and the
fundamental interests of the broad masses of the Chinese people.” Id. at 52.
behavior norms of the CCP’s institutions.166 Only then, and and more
importantly, can the insights of Sange Daibiao be directed outward as a
means of providing a normative basis for the construction and deployment of
state power.167
Fourth, the Three Represents, at least in theory, can serve to limit the
discretion of both Party and State officials. In each of its expressions of
representativeness, the Three Represents emphasizes the people as a whole
over the interests of any individual, faction, or interest group.168 It is clear
that the Three Represents can be read as providing a basis for creating and
imposing a great principal of fiduciary duty on Party and State officials; an
obligation to act solely in the best interests of the people.169 Jiang Zemin
Our powers are given to us by the people and all cadres are
their servants who must be subjected to supervision by the
people and the law. We should deepen the reform in this
166 State Council Information Office, White Paper: Building of Political Democracy in China
(2005,) § VIII(2), available at (last visited Dec. 14,
2006)(“Promoting people's democracy by improving inner-Party democracy is an important
component of the CPC's democratic rule.” (last visited Dec. 14,
2006) [hereinafter Building of Political Democracy].
167 Building of Political Democracy, supra. “All power in the PRC belongs to the people. This is a
fundamental principle for building political democracy in China. It is also an essential
requirement of the CPC's leadership and exercise of state power. In China, the CPC leads and
supports the people to be the masters of the state and ensures its realization. This provides an
institutional and legal guarantee that the fundamental principle, that is, all power in the PRC
belongs to the people, is fully and thoroughly implemented and embodied in every aspect of
national and social activities.” Id., at § II, available at (last visited Dec. 14,
168 Like Fewsmith, Guo believes that:
Jiang’s new initiative really differs little from Hu Yaobang and Zhao Ziyang’s
attempt to broaden the constituency of the CCP and transform it into some
sort of ‘national party’. Like Hu and Zhao, the current leadership seems to
have realized that sooner or later the Party will have to reposition itself in
relation to the nation and relaunch itself as a representative of the whole
169 This was intimated in recent writing. “People’s judgment of the party’s ruling capacity, strong
or weak, often depends on the use of power to do things for the people.” Changjiang Wang, Yi
xiang shen mou yuan lu de zhan lue bu shu—lun dang de zhi zheng neng li jian she [A Prudent
and Strategic Plan—Of the Party’s Rule Building Capacity], PEOPLES DAILY ONLINE, July, 5,
2004, But one can trace this back to
Jiang’s characterizations of the rule of law in China in 1997.
connection, improve the legal system of supervision, and
establish and improve a mechanism ensuring that our cadres
exercise their authority within the framework of law.170
The implementation is critical, but is also a harder question, which is briefly
discussed in the last part of this Article. Developments like ba rong ba chi
certainly point in the direction of increased willingness to draw attention to
Fifth, though the Three Represents limits discretion, it does so within a
system of flexible application, while keeping in mind the particular realities
of China’s position in the world. This is an idea that Jiang has been
developing in the years before the unveiling of the Sange Daibiao. By 1997,
Jiang was working through the nature of the intersection of the Party’s
involvement as a leader of the people, and its role as the representative of
“the highest level of productivity.”172 In that context, it embraces the
historical lessons that the Party has learned from its recent past and signals
that “the practical problems of the Chinese revolution”173 must be solved, i.e.
NOT by simply “studying Marxism-Leninism statically and in isolation”174
but by following Deng Xiaoping Theory; and very importantly, understanding
that “ruling the country by law . . . is also the objective demand of a socialist
market economy.”175
170 Jiang Zemin, supra note 110.
171 See discussion infra at Section III.A.
172 Jiang Zemin, supra note 110.
173 Id. at Section III (Historical Status and Guiding Significance of Deng Xiaoping Theory):
During the rectification campaign in Yanan, Mao Zedong emphasized, ‘[a]
policy should be established of focusing on the study of the practical problems
of the Chinese revolution and using the basic principles of Marxism-Leninism
as the guide, and the method of studying Marxism-Leninism statically and in
isolation should be discarded.’
174 Id. (“It is meaningless to talk about Marxism in isolation from a given country's reality and
the development of the times. We would get nowhere if we studied Marxism statically and in
isolation, and separated it from its vigorous development in actual life, or set them against each
175 Id. at Section VI (Reforming the Political Structure and Strengthening Democracy and the
Legal System).
Ruling the country by law is the basic strategy employed by the Party in
leading the people in running the country. It is also the objective demand of a
socialist market economy, an important hallmark of social and cultural
progress, and a vital guarantee for the lasting political stability of the
This view clearly parallels Jiang’s belief that “[w]e must never discard
Marxism-Leninism and Mao Zedong Thought,”176 and at the same time, it
asserts that China should not categorically follow the latter thinkers. This
idea is written into the Preamble of the constitution of the CCP.177 Note the
great continuity here, as a matter of substantive rule-of-law construction,
between the great principles developed by Deng, and their refinement by
Jiang, leading to the Sange Daibiao.178 Ironically, there is danger in the new
turn. The sensitivity to the distinction between Marxist-Leninist-Mao
thought as theory and the flexibility of principles that can be deployed in the
implementation of that theory has been used as a basis for dialogue among
groups traditionally excluded from governance.179 This suggests at least a
176 Although Jiang Zemin states “[i]f we did, we would lose our foundation. . . .”, he is mindful of
the balance struck by Deng: “[i]t is meaningless to talk about Marxism in isolation from a given
country's reality and the development of the times.” Id. at Section III.
177 The 1982 P.R.C. Constitution, amended and adopted at the 16th CPC National Congress on
November 14, 2002, makes this clear:
Since the Fourth Plenary Session of the Thirteenth Party Central Committee
and in the practice of building socialism with Chinese characteristics, the
Chinese Communists, with Comrade Jiang Zemin as their chief
representative, have acquired a deeper understanding of what socialism is,
how to build it and what kind of a party to build and how to build it,
accumulated new valuable experience in running the Party and state and
formed the important thought of Three Represents.
Constitution of the Communist Party of China, supra, note 31, Preamble.
178 There is less irony than one might suppose, then, in the title of the speech—“Hold High the
Great Banner of Deng Xiaoping Thought.” Jiang, supra note 110. Neither Jiang nor Hu can
venture far from its strictures. Thus both leaders recognize its importance in the construction of
a stable, normative basis for state organization (including the organization of the CCP) and the
relationship between Deng Xiaoping Thought and the normative superstructure created by later
ideological campaigns. See discussion supra, Part III.
179 A very interesting spin comes from recent statements made by the Dalai Lama. They are
useful both as a check on my analysis, and as a “related” outsider’s perspective of the cumulative
effects of these ideological campaigns on the construction of a substantive rule of law. See His
Holiness, the 14th Dalai Lama, Statement on the 47th Anniversary of the Tibetan National
Uprising Day (Mar. 10, 2006) (transcript available at what appears to work as an internal constitutional
dynamic may work less well when deployed by elements regarded as outsiders by the CCP,
including the Dalai Lama. The Dalai Lama comes from the usual point of analysis—that CCP
ideology has been characterized by many movements tied together only by their purported
fidelity to Marxist Leninist principles. But ideology appears to turn to normative theory in the
hands of Mao’s successors:
Then Deng Xiaoping, through seeking truth from facts, introduced socialist
market economy and brought huge economic progress. Following this, based
partial resurrection of the early distinction made by Liu Shaoqi between
principle and policy.180
Sixth, the Three Represents’ emphasis on the role of the CCP as the
representative of the highest level of productivity confirms the commitment
of Chinese constitutionalism to engagement and the economic reforms of the
Deng Xiaoping. Indeed, this may have been a conscious objective of Jiang in
introducing Sange Daibiao.181 The Three Represents effectively
constitutionalizes Deng’s ideal of socialism with Chinese characteristics,
linking the competence of the CCP to assist in the understanding and
application of Marxist/Leninist Maoist thought with the legitimating
authority of the Constitution and governance through the apparatus of State
institutions.182 Sange Daibiao, by emphasizing (and thus connecting itself
with) the socialist character of the post-1978 market oriented reforms of Deng
on his theory of the “Three Represents,” Jiang Zemin expanded the scope of
the Communist Party of China to include not just the peasants and workers,
but also three other elements, namely the advanced productive forces, the
progressive course of China's advanced culture, and the fundamental
interests of the majority. Today, President Hu Jintao's theory of “Three
Harmonies” envisages peaceful coexistence and harmony within China, as
well as with her neighbours and the international community.
Id. Though the Dalai Lama clearly has a pointed political agenda—the issue of the status of
Tibet—he recognizes, as few in the West do, the consequences of the turn in Chinese ideological
campaigns. In this respect, at least, I think the Dalai Lama’s insights are quite useful.
180 Andrew Wedeman reminds us of the importance of this distinction, suppressed during the
Cultural Revolution and then resurrected in the 1980s. WEDEMAN, supra note 158. But Liu
separated politics into “questions of principle”—class struggle—and “practical and concrete”
problems of administration. In 1941, for example, Liu wrote:
[Many comrades] did not understand that, while they should wage
uncompromising struggle against those in the Party who hold different views
on questions of principle, . . . they can and should achieve a necessary
compromise on questions of current policy or on questions of a purely
practical nature. . . . They fight over every issue. . . . They make no
concessions on any point and won't compromise under any circumstances.
They regard all contradictions as antagonistic and so adopt an antagonistic
attitude toward everything.
Id. (quoting, in part, Liu Shaoqi, On Inner-Party Struggle, in SELECTED WORKS OF LIU SHAOQI
180, 188-89 (1984), and citing, in part, Harry Harding, Jr., Maoist Theories of Policy-Making and
Organization, in THE CULTURAL REVOLUTION IN CHINA 113, 128 (Thomas W. Robinson ed.,
181 Joseph Fewsmith has noted that “even as he touted Deng's reputation and legacy, he hinted
that he himself would push that legacy forward, which he has tried to do in the years since.”
FEWSMITH, supra note 142, at 193.
182 On Deng’s efforts to enhance his authority and the legitimacy of his reforms by centering
them squarely within the authority of the CCP and correct interpretation of Marxist/Leninist
Maoist thought, see, e.g., CHAN, supra note 156; ALAN R. KLUVER, LEGITIMATING THE CHINESE
Xiaoping Theory, reinforces the identity between government and Party
apparatus, and thus deepens a particular substantive understanding of the
relationship between State and Party. As one commentator put it: “The
nominal limitation to the government revealed in these reform measures is
aimed at limiting abuses of power by individual officials or government
organs, rather than restricting the CCP’s dominance over political powers.”183
Seventh, Sange Daibiao cannot be understood as another isolated
instance of mere rhetoric; the importance of the connection between Deng
Xiaoping Theory and Sange Daibiao, and their relationship to opening the
membership of the CCP to previously excluded people cannot be
underestimated. It is generally well understood that Sange Daibiao developed
in the context of a campaign to open membership in the CCP to the emerging
capitalist class in China.184 Related to that was the campaign to provide some
protection for property rights, which saw significant amendments to the CCP
Constitution.185 A number of commentators have noted that an important
CCP goal is to co-opt the capitalist or market elements of Chinese society by
offering a place in the CCP in return for adherence to CCP norms, including
the basic socialist foundation of state organization.186 This is an important
point—it suggests the very real ways in which membership in political
society in China is structured around the leadership of the CCP, and that the
nature of CCP leadership is more normative than political. This represents a
great theoretical leap from the very structured vanguard theory of CCP
membership, looking towards the conflation of a “rights rich” citizenship and
with CCP membership.187
Eighth, the Three Represents attempts to solve the difficulty, long noted
by both Chinese and Western scholars,188 of combining the organizational
norms suggested by Marxist-Leninist theory, one based on a union of
government and state within the CCP without an institutionalist framework,
183 Id. at 263.
184 Jia Hepeng, supra note 112, at 267 (“Initially brought forward in February 2000, the Three
Represents theory was highlighted in Jiang Zemin's July 1, 2001, speech, which was delivered to
celebrate the 80th anniversary of the CCP. In the speech, Jiang also urged that capitalists and
other elites be allowed to join the Party.”).
185 XIAN FA art. 13 (1982) (P.R.C.) (revised effective Mar. 14, 2004) (“Citizen’s lawful private
property is inviolable” and “The State, in accordance with law, protects the rights of citizens to
private property and to its inheritance.”).
186 Jia, supra note 112, at 267-69.
187 On the opportunities and difficulties of this approach, see FEWSMITH, supra note142, at 229-
with an inclusive institutionalism based on a separation between government
and party.189 The Three Represents suggests that in China, the CCP exists in
two guises simultaneously. First, the CCP serves as a supreme political
party. Second, the CCP serves as the paramount institution of state power; it
is both a political (the Party) and governance (the State) entity. It continues
the middle path first elaborated by Deng Xiaoping: “Deng was interested in
defining a middle path, using ‘reform and opening up’ to oppose ‘leftism’ and
using the ‘four cardinal principles’ to oppose ‘bourgeois liberalization.’”190
The Three Represents thus highlights the basic problem of the rule of law
in China and points to its solution. The problem of the rule of law in China
can be understood as concentrating on the resolution of the questions of the
long-term fundamental role of the CCP in China, and of the relationship
between the CCP and the State apparatus it has created—and now
dominates—in the service of the masses.
Despite receiving much attention in the context of the Chinese
constitutional hierarchy,191 Sange Daibiao occupies an ambiguous place. It is
not described as “thought,” the highest level of substantive ideological
authority, currently reserved for Marxism-Leninism and Mao Zedong
189 Institutionalism was a contradiction because the State was to wither away. Indeed, one source
of the great rift between Trotsky and Stalin was Trotsky’s resistance to what he saw as Stalinist
corporatism and, thus, to Stalinist repudiation of the foundations of Marxist-Leninist thought.
For a taste of these difficulties in Marxist thought, see ISAAC DEUTSCHER, THE PROPHET
UNARMED: TROTSKY: 1921-1929, 286-291 (Verso 2003) (1959); John Fitzgerald, The Politics of the
Civil War: Party Rule, Territorial Administration and Constitutional Government, in CHINAS
Draguhn & David S.G. Goodman eds., 2002). The Cultural Revolution represented, in one sense,
an attempt at purer forms of Marxist-Leninist state order. See, e.g., SCHWARTZ, supra note 188.
But its failure confimed the importance of institutionalization. The form of that
institutionalization has been at the core of the great debates within the CCP elite ever since.
190 FEWSMITH, supra note 142, at 27. Fewsmith observes that Deng’s use of ideology was a way to
prevent ideological disputes from tearing the Party apart as they had in the past, and it was a
political strategy that allowed Deng to build a coalition that upheld the center of the political
spectrum. The adoption of the formula “one center and two basic points” in the spring of 1987 (in
the course of the campaign against bourgeois liberalization that followed Hu Yaobang's ouster)
merely formalized long-standing practice. Id. at 27.
191 The informal hierarchy of Chinese constitutional law and legal principles has been nicely
described in the popular press in Asia:
At the highest is “thought”. For now only the ideas of Mao Zedong are
characterised as worthy of the intellectual pinnacle—a belief system or
“thought”. Deng[‘s] . . . legacy of four modernisations is only described as a
“theory”. Jiang Zemin was not as modest. He apparently tried to get his idea
of “three represents” endorsed by the Party as “thought” but could not
C. Raja Mohan, Peaceful Rise, In Three Steps, INDIA EXPRESS, Jan. 30, 2006, http://iecolum
Thought. It is also not described as theory,’ an important though less
authoritative level of substantive ideological principles, currently applied to
Deng Xiaoping Theory. Translated as “the important thought of ‘Three
Represents,’”192 it occupies an authoritative space sui generis—neither
‘Thought’ nor ‘Theory.’ But this does not mean that its place within the
hierarchy of authoritative ideology is unknown. But for this purpose, the
answer lies in the constitution of the CCP rather than in the P.R.C.
Sange Daibiao is located in the same place within the “Thought/Theory”
matrix of the constitution of the CCP, as it is in the P.R.C. Constitution.193
But, the constitution of the CCP, as adopted in 2002, attempts to place Sange
Daibiao within the hierarchy of governing ideology in more concrete form:
The important thought of Three Represents is a continuation
and development of Marxism-Leninism, Mao Zedong Thought
and Deng Xiaoping Theory; it reflects new requirements for
the work of the Party and state arising from the changes in
China and other parts of the world today; it serves as a
powerful theoretical weapon for strengthening and improving
Party building and for promoting self-improvement and
development of socialism in China; and it is the crystallized,
collective wisdom of the Communist Party of China.194
Within the framework of the CCP’s authoritative ideology, Sange Daibiao
is accorded that status of “a guiding ideology that the Party must uphold for a
long time to come. Persistent implementation of the “Three Represents” is the
foundation for building our Party, the cornerstone for its governance and the
source of its strength.”195 It should be read and interpreted in light of the
still-superior principles of Marxist/Leninist and Mao Zedong Thought. Thus,
in the ‘dialog’ between State and