Three competing constitutional discourses for the 21st century China


Student thesis: Doctoral Thesis

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  • Chengyi PENG


Awarding Institution
Award date3 Oct 2011


After three decades of economic reform and opening up to the outside world, China's ideological realm has been significantly transformed and complicated. This is well manifested in the constitutional discourses concerning the future of China. One notable example is the wide acceptance of the liberal constitutional paradigm among Chinese intellectuals, as shown in the issuing and impacts of the Charter 08 two years ago by some liberal dissidents. However, in recent years, this expanding perspective has been challenged by "mainland New Confucians" and Sinicized Marxists alike. The former camp advocates a constitutional framework that is based upon and loyal to the Confucian tradition. Some members of this group recently held a conference entitled "Confucian Religious Constitutionalism and China's Future" in Hong Kong in May 2010. Nevertheless, because both the liberal and tradition-based schools display a certain level of hostility and prejudice toward Marxism, they basically deny the legitimacy of the current constitutional framework of China and consequently ignore its achievements. Yet the theorization of Sinicized Marxist constitutionalism has achieved significant development in recent years; one important example is the American constitutional scholar Larry C. Backer's model, which seeks to grant legitimacy to China's current constitutional development in the international community. Legal scholars in China also just convened a large conference on "Socialist Constitutionalism with Chinese Characteristics" in China in the May of 2010. In light of these developments, we can see that three discourses of constitutionalism, namely Western Liberal Constitutionalism, Traditional Confucian Constitutionalism, and Sinicized Marxist Constitutionalism have emerged and are being advocated for the future of China. Because the latter two are newly emerging, there are no literature seeking to engage or compare them yet. My doctoral research seeks to fill the gap by providing a description of the three discourses, analyzing their respective strengths and weaknesses, and suggesting the prospect of the constitutional game. As the Western Liberal Constitutionalism has been well explored in academia, I mainly review its spreading history in China, its core claims, and discuss the major challenges it faces today in China. For Traditional Confucian Constitutionalism, I introduce and analyze the institutional, ritualistic, and religious approaches towards the topic currently available and develop a three-layered full picture of the Traditional Chinese Constitutionalism. Regarding Sinicized Marxist Constitutionalism, I review and analyze its emerging context as well as the three main versions held by different scholars under this general and overarching canopy, and elaborate its philosophical foundation to help to understand this paradigm. Finally, I conduct a preliminary comparison of the three constitutional discourses and discuss the current strategic configurations of them as well as the likely outcomes.

    Research areas

  • China, Confucianism and state, Law and socialism, Constitutional law