Idealism and Realism in Chinese Constitutional Theory and Practice

The tension between idealism and realism in Chinese constitutional law is most likely one of the most obvious ones, if not the most obvious one, in all different kinds of constitutional systems in the world. This chapter is a case study on China which examines the tension as well as interaction between idealism and realism in both Chinese constitutional theory and practice. It analyses the issue from several different perspectives. Firstly, it examines the tension between idealism and realism from a temporal dimension, i.e., Chinese constitutional history. The discussion of the historical constitutional development in China, especially in contemporary China, shows that the tension between idealism and realism existed in China from the very moment when China attempted to enact its first constitution in 1908. That tension continued when the Communist Party of China (CPC) came into power and enacted its first Constitution in 1954 and continues even now under the current Constitution. Secondly, it discusses the tension between idealism and realism in contemporary Chinese constitutional practice. Three examples are chosen for detailed discussion. One is electoral law versus electoral practice, with the discussion demonstrating that on the one hand the written electoral law represents idealism while electoral practice in China represents realism. That had been the case with idealism and realism in Chinese constitutional practice until a new dimension was added by the debate on the justiciability of the Chinese Constitution, which will be the second example to be discussed. The Supreme People's Court (SPC) in China got itself involved voluntarily by issuing its judicial opinion on the justiciability of the Chinese Constitution in the Qi Yuling Case. That judicial opinion actually led to serious scholarly debate on the justiciability of the Chinese Constitution. While the SPC had the intention to create a Chinese Marbury v. Madison, it eventually withdrew that judicial opinion several years later. That can be interpreted as an example where realism prevailed over idealism. The related third example is the debate over a suitable mechanism for constitutional supervision in China. While there are many well-established constitutional supervision models in the world from which China may learn, the most recent proposal by a group of leading constitutional scholars to the Central Government is to establish a special committee under the National People's Congress (NPC) to conduct constitutional supervision.