China toward Constitutionalism? Institutional development under the Socialist Rule of Law system
University of British Columbia
Master of Laws - LLM
Building Constitutionalism in China is seemingly a constant topic worth exploring. However, attempts to adopt the current Western Mature Constitutional System, as a static standard for assessing constitutional development in China’s Context is quite prevalent. By reference to three respective institutions in China’s Socialist Rule of Law system: the Communist Party of China (CPC), National People’s Congress (NPC) and the People’s Courts (Courts), this thesis seeks to examine constitutional development in People’s Republic of China (PRC). This thesis also argues the Mature Constitutional model is unable to engage with the orthodoxy of China’s approach to constitutional development. This thesis first demonstrates why applying the standard of mature constitutionalism to assess constitutional development in China is problematic and renders inaccurate results. Thus a more suitable institutional approach has been raised to examine constitutional development in China. It subsequently discuss the evolution of CPC (ideologies, structure, operation) in post 1978 China in order to examine the Party’s role as both the determinant and product of China’s constitutional development. Then the thesis will discuss how the NPC, a traditional “rubberstamp”, has developed as the highest national legislature and constitutional supervisory organ. The courts in China, in particular, have taken the incremental approach to expand institutional authority by interacting with this highest political power holder and supporting the current constitutional order. This thesis makes an original contribution to both the discourse of China’s constitutional law and the studies on authoritarian constitutional development. The thesis has confirmed that institutional development in China’s particular authoritarian context (the socialist rule of law system) is possible. Development of this nature would be difficult to be appreciated by the Mature Constitutional Standard. Thus, an institutional approach based on a contextual analysis is more suitable for examining how the authoritarian system responds to the challenge of constitutionalism. However, the thesis has found that the future of applying the Mature Constitutional Model to China’s Socialist Rule of Law system is tentative and has predicted that China’s system would confront potential tension between democracy and constitutional development in future.
Attribution-NonCommercial-NoDerivatives 4.0 International
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