China’s Unwritten Constitution

Ideological Implications of a “Non-ideological” Approach

Abstract

Since the promulgation of China’s present constitution in 1982, liberal approaches have been dominating debates in Chinese constitutional jurisprudence as well as political and legal dialogues between the Chinese and Western governments. More recently, however, the liberal mainstream seems to be challenged by new strands of a “Sinicized Marxist” or “political constitutionalism” criticizing the Chinese constitution for being subject to Western ideological hegemony. This articles focuses on the work of Jiang Shigong, a law professor at Peking University who has been lauded by Western scholars for his sophisticated distinction between “written” and “unwritten constitutions” to capture the “real” constitutional and political rules by which Chinese politics functions. It will be shown how, in the name of a supposedly “non-ideological” approach, his analysis of China’s “unwritten” constitution and political rules actually bears strong ideological implications. Reading between the lines of Jiang Shigong’s argumentation, it appears not only to justify the Chinese Communist Party’s leadership as the “absolute constitution” behind China’s political regime, but also to contribute to a slow but steady crowding out of liberal voices in Chinese jurisprudence and political science.