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A short note on Larry Catà Backer's theory of the Chinese constitutional order

A short note on Larry Catà Backer's theory of the Chinese constitutional order

Rex regnat et non gubernat

Effigy of King Henry IV
In his articles "The Party as a Polity" and "Party, People, Government and State", Penn State's Larry Catà Backer  – a distinguished constitutionalist – challenges the consensus of Western studies of Chinese constitutionalism by asking the seemingly innocent question of whether Marxist-Leninist systems in which the state apparatus is placed under the authority of a communist party are constitutionally legitimate. 

He answers the question in the affirmative, by constructing a theory where the “whole of the Chinese constitutional order”  is a dual apparatus composed by the Statute of the Chinese Communist Party (CCP) and the State Constitution. While the Statute of the CCP bestows political power on the Chinese Communist Party, the State Constitution elects the government as the site of administrative power. Situating the CCP at the very core of China's constitutional system rather than outside of it - as it is normally done in China studies – has important implications for the constitutional legitimacy of CCP regulatory documents. Under the construct of a Party-State Constitutionalism, these enjoy a legal force perhaps higher than the force of state law, therefore institutions as shuanggui (the notorious detention system for errant Party members) are constitutionally sound.

This theory will hardly shock those who have been socialised in contexts where loyalty to both canon law and secular law is required, but its claims have scandalised many in the Western academia. Some have rejected the theory in its entirety, while others have accepted its descriptive component but repudiated its normative part. My goal in writing this post is performing an intellectual exercise, therefore I will not set out to dismantle the theory of Party-State Constitutionalism, but sketch out a possible strategy to do so. 

Those attempting to negate the theory of Party-State Constitutionalism may take the predictible road of attacking its claims about shuanggui, the CCP Statute or the concept of endogenous democracy. Following this strategy however means placing oneself in a cul-de-sac. The theory includes heavy doses of CCP ideology which, exactly as the 'guiding ideology' of any other variation of Marxism-Leninism, is premised on an Hegelian logical model. This model works by resolving any contradiction at a higher level of truth. Therefore, observations hat shuanggui causes significant legal problems, that endogenous democracy is a misnomer for dictatorship etc. would invite the response that the theory has been misunderstood, and provoke an explanation of how the theory's logical structure is sufficient to solve the various oxymorons and contradictions interspersed in the 2009 and 2012 article as well as in more recent ones. More than being a failure to address objections to the theory, such a response would testify to the ineffectiveness of any criticism that used concepts drawn from liberal-democratic ideologies.

A more viable move to challenge the theory of Chinese Party-State Constitutionalism has to start from somewhere else. The theory of Chinese Party-State Constitutionalism is not an autonomous theory, but the application of a taxonomy (thetaxonomy of constitutionalism) to a specific political-institutional context. Those who have an interest in advocating for the superiority of one value system over the others –- and who do not realise how by merely conceiving this idea they have reacted exactly as the taxonomy predicts –- may want to attack the taxonomy itself. Proving that the taxonomy does not reach its goals is sufficient to take the ground from under the theory of Chinese Party-State Constitutionalism.

The goals of any taxonomy are identifying, classifying and describing entities, regardless of whether these entities are plants, animals or constitutions. All of us would accept without question the observation that the Agave family and the Aloe Family are two different families of succulent plants. Arguments that only plants belonging to the Agave family are plants, while those belonging to the Aloe family are stones would be dismissed with a laughter, exactly as arguments that Agave is a plant while Aloe is a non-plant, a quasi-plant, an aberrant plant etc. Backer's Constitutionalism Framework stands to constitutions exactly as in botanical taxonomy orders of plants stand to various families of plants. The meta-ideology of constitutionalism is a “means of evaluating the form, substance and legitimacy“ (106) of constitutions:

a system of classification the core object of which is to define the characteristics of constitutions (those documents organizing political power within an institutional apparatus) to be used to determine the legitimacy of the constitutional system as conceived or as implemented, based on rule of law as the fundamental postulate of government (that government be established and operated in a way that limits the ability of individuals to use government power for personal welfare maximizing ends), and grounded on a metric of substantive values derived from a source beyond the control of any individual” (110)

For ease of classification, constitutions can be grouped in five frameworks: transnational, natural law, theocratic, rationalist, Marxist-Leninist.

While Agave is just what it is and it grows because it grows, making botanical taxonomies largely uncontroversial, not the same can be said of constitutional taxonomies. Constitutional documents express the value systems upon which state-like (here) political communities are built. As each one of us is born in a political community, these value systems will contribute to shaping our beliefs. These beliefs in turn will color our moral judgment of constitutions belonging to a framework other than our own. Once we move down from the meta-theoretical plane to the plane of national constitutions and, below them, to the individual plane we will find out how individuals who have been socialised into any family of constitutions will likely reject constitutions belonging to any other constitutional family. This is an important predictive implication of the Constitutionalism Framework. Such a taxonomical approach to the study of constitutions is not immune from difficulties, however.

The Constitutionalism Framework yields the prediction that all those who have been socialised in a polity belonging to any given constitutional family will negate the legitimacy of any other constitutional family. More specifically, any individual socialised in the United States will negate that the Constitution of the People's Republic of China (PRC) deserves legitimacy. Any attempt to deny that the CCP Statute, the Constitution of the PRC or both are indeed legitimate constitutions would accord with the Constitutionalism Framework and prove its predictive power. Critics of the constitutionalism framework can easily put themselves in the predicament whereby their denial of the moral and legal legitimacy of the Chinese Constitution does nothing but affirm the very theory they do not accept. To pose a challenge to the theory, they would have to adopt the opposite position, whereby the Chinese constitution is as legitimate as any other constitutional document. A predictive difficulty to the theory can instead be posed by any instance of an individual socialised outside of a Marxist-Leninist system who affirmed the legitimacy of the Party-State Constitution. However weak this objection, responses that individuals can choose their own philosophies and values sytems would come dangerously close to admitting that a free will exists. This admission may not be entirely compatible with the Nietzschean undertones of the Constitutionalism Framework.

Under the Constitutionalism Framework families of constitutions are “incompatible and aggressively competitive”. Incompatibility and competitiveness work in two distinct ways. As a descriptive component, they specify how families of constitutions interact with each other. As predicates, they are the two necessary conditions that allow to group constitutions under the different frameworks of transnationalism, natural law, theocracy etc. In other words, these predicates are two building blocks of Backer's constitutional taxonomy. A third pillar is the quality of state-likeness of a political community, which makes the framework flexible enough to include, among others, de facto sovereign states (such as the Republic of China, also known as Taiwan) in the Constitutionalism Framework.

The Constitutionalism Framework does not specify whether there needs to be compatibility and uncompetitiveness among constitutions that belong to the same variant of constitutionalism, but we can safely assume that this is the case. If any two or more constitutions within the liberal family were based on incompatible value-systems they could no longer be grouped under the same family, and one could not reason about variants of constitutionalism, but merely about a collection of isolated constitutions. Given how competition among constitutional families is motivated by an incompatibility of substantive values, it follows that competition cannot exist within the same constitutional family. If competition existed between two or more constitutions, it would be motivated by the fact that constitutions express different substantive values and if this were the case we could not include them under the same family.

The Constitutionalism Framework has been designed as a meta-ideological device and while it has an extraordinary explanatory power at the meta-level, it is still possible to hypothesize a case this framework cannot account for. This hypothetical case would see the existence, within the Marxist-Leninist family, of two parties organized along Leninist lines, which share the same ideology and the same metric of substantive values. One would not expect either party to adhere to classical Marxism-Leninism, but the statute of each party should at least claim to profess a version of Marxism-Leninism that has been adapted to its historical and cultural context. Both parties would have to be the locus of supreme political power within their respective political community, delegate administrative power to their state apparata and – these are fundamental conditions – claim the superiority of their own variant of Leftist ideology, trying to wield sovereign power over the same territory and the same people.

As hypothetical as this case may be, the prevailing orientation of China studies still precludes the making of this or a similar challenge to the Constitutionalism Framework or to the theory of Party-State Constitutionalism. 


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