Judicial Politics

The Sciences Po Series in International Relations and Political Economy Series Editor, Christian Lequesne This series consists of works emanating from the foremost French researchers from Sciences Po, Paris. Sciences Po was founded in 1872 and is today one of the most prestigious universities for teaching and research in social sciences in France, recog- nized worldwide. This series focuses on the transformations of the international arena, in a world where the state, though its sovereignty is questioned, reinvents itself. The series explores the effects on international relations and the world economy of regionaliza- tion, globalization (not only of trade and finance but also of culture), and trans- national flows at large. This evolution in world affairs sustains a variety of networks from the ideological to the criminal or terrorist. Besides the geopolitical transformations of the globalized planet, the new political economy of the world has a decided impact on its destiny as well, and this series hopes to uncover what that is. Published by Palgrave Macmillan: Politics in China: Moving Frontiers edited by Françoise Mengin and Jean-Louis Rocca Tropical Forests, International Jungle: The Underside of Global Ecopolitics by Marie-Claude Smouts, translated by Cynthia Schoch The Political Economy of Emerging Markets: Actors, Institutions and Financial Crises in Latin America by Javier Santiso Cyber China: Reshaping National Identities in the Age of Information edited by Françoise Mengin With Us or Against Us: Studies in Global Anti-Americanism edited by Denis Lacorne and Tony Judt Vietnam’s New Order: International Perspectives on the State and Reform in Vietnam edited by Stéphanie Balme and Mark Sidel Equality and Transparency: A Strategic Perspective on Affirmative Action in American Law by Daniel Sabbagh, translation by Cynthia Schoch and John Atherton Moralizing International Relations: Called to Account by Ariel Colonomos, translated by Chris Turner Norms over Force: The Enigma of European Power by Zaki Laidi, translated from the French by Cynthia Schoch Democracies at War against Terrorism: A Comparative Perspective edited by Samy Cohen, translated by John Atherton, Roger Leverdier, Leslie Piquemal, and Cynthia Schoch Justifying War? From Humanitarian Intervention to Counterterrorism edited by Gilles Andréani and Pierre Hassner, translated by John Hulsey, Leslie Piquemal, Ros Schwartz, and Chris Turner An Identity for Europe: The Relevance of Multiculturalism in EU Construction edited by Riva Kastoryano, translated by Susan Emanuel The Politics of Regional Integration in Latin America: Theoretical and Comparative Explorations by Olivier Dabène Central and Eastern Europe: Europeanization and Social Change by François Bafoil, translated by Chris Turner Building Constitutionalism in China edited by Stéphanie Balme and Michael W. Dowdle Building Constitutionalism in China Edited by Stéphanie Balme and Michael W. Dowdle BUILDING CONSTITUTIONALISM IN CHINA Copyright © Stéphanie Balme and Michael W. Dowdle, 2009. Softcover reprint of the hardcover 1st edition 2009 978-0-230-60032-4 All rights reserved. First published in 2009 by PALGRAVE MACMILLAN® in the United States—a division of St. Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Where this book is distributed in the UK, Europe and the rest of the world, this is by Palgrave Macmillan, a division of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN 978-1-349-36978-2 ISBN 978-0-230-62395-8 (eBook) DOI 10.1057/9780230623958 Library of Congress Cataloging-in-Publication Data Building constitutionalism in China / edited by Stéphanie Balme and Michael W. Dowdle. p. cm.—(Sciences Po series in international relations and political economy) Based on an international conference on “Constitutionalism and Judicial Power in China” at Sciences Po (CERI) in Paris in December 2005—Preface. Includes bibliographical references and index. 1. Constitutional law—China—Congresses. I. Balme, Stéphanie. II. Dowdle, Michael W. KNQ2069.B85 2008 342.51—dc22 2009002720 A catalogue record of the book is available from the British Library. Design by Newgen Imaging Systems (P) Ltd., Chennai, India. First edition: October 2009 10 9 8 7 6 5 4 3 2 1 CONTENTS Contributors vii Acknowledgments ix One Introduction: Exploring for Constitutionalism in 21st Century China 1 Stéphanie Balme and Michael W. Dowdle Part 1 Constitutionalism as Envisioning the State Two “Judicial Politics” as State-Building 23 Zhu Suli Three Of Constitutions and Constitutionalism: Trying to Build a New Political Order in China, 1908–1949 37 Xiaohong Xiao-Planes Four Epistrophy: Chinese Constitutionalism and the 1950s 59 Glenn D. Tiffert Five Middle Income Blues: The East Asian Model and Implications for Constitutional Development in China 77 Randall P. Peerenboom Part 2 The Development of a Political Jurisprudence Six China’s Constitutional Research and Teaching: A State of the Art 99 Tong Zhiwei Seven Western Constitutional Ideas and Constitutional Discourse in China, 1978–2005 111 Yu Xingzhong vi Contents Eight “To Take the Law as the Public”: The Diversification of Society and Legal Discourse in Contemporary China 125 Ji Weidong Part 3 Transmitting Constitutionalism: Judicial Power and the Justice System Nine Administrative Law as a Mechanism for Political Control in Contemporary China 143 He Xin Ten Access to Justice and Constitutionalism in China 163 Fu Hualing Eleven Ordinary Justice and Popular Constitutionalism in China 179 Stéphanie Balme Twelve Beyond “Judicial Power”: Courts and Constitutionalism in Modern China 199 Michael W. Dowdle Part 4 Toward a Popular Constitutionalism Thirteen Citizens Engage the Constitution: The Sun Zhigang Incident and Constitutional Review Proposals in the People’s Republic of China 221 Keith J. Hand Fourteen Rights Activism in China: The Case of Lawyer Gao Zhisheng 243 Eva Pils Fifteen Epilogue: Virtual Constitutionalism in the Late Ming Dynasty 261 Pierre-Étienne Will Bibliography 275 Index 303 CONTRIBUTORS Stéphanie Balme is Senior Research Fellow at Sciences Po, Paris (CERI & Chair MAPDP) and Visiting Professor at the Tsinghua University School of law. Michael W. Dowdle is the former Chair of Globalization and Governance at Sciences Po, Paris and a Visiting Associate Professor of Law at the National University of Singapore School of Law. Fu Hualing is a Professor of Law at the Hong Kong University Law School. Keith J. Hand is an Associate Professor of Law at the University of California Hastings College of the Law. He Xin is an Associate Professor of Law at the School of Law, City University of Hong Kong and a member of the New York University Law School’s Global Faculty. Ji Weidong is a Professor of Law at Kobe University and Dean of the Leo KoGuan Law School of Shanghai Jiao Tong University. Randall P. Peerenboom is a Professor of Law at La Trobe University, an Associate Fellow at the Oxford University Centre for Socio-Legal Studies, and Director of the Oxford Foundation for Law, Justice and Society China Rule of Law Program. Eva Pils is an Assistant Professor of Law at the Chinese University of Hong Kong Faculty of Law. Glenn D. Tiffert is a Ph.D. candidate at the University of California Berkeley History Department. viii Contributors Tong Zhiwei is a Professor of Law and former Dean at the Shanghai Jiaotong University School of Law, and Director of the Institute of Constitutional and Administrative Law. Pierre-Étienne Will is a Professor at the Collège de France, Chair of History of Modern China, and Director of the Institut des Hautes Études Chinoises. Xiaohong Xiao-Planes is University Professor at l’École des Hautes Études en Sciences Sociales (EHESS) and holds the Chair in Chinese History at l’Institut National des Langues et Civilisations Orientales (INALCO). Yu Xingzhong is an Associate Professor of Law at the Chinese University of Hong Kong Faculty of Law. Zhu Suli is a Professor of Law and Dean of the Beijing University Law School. ACKNOWLEDGMENTS This book is the product of three years of investigation into China’s constitutional option. It stems from earlier research into the development of constitutionalism and rule of law in socialist countries in the post–cold war world. This led to an international conference on “Constitutionalism and Judicial Power in China” that we convened at Sciences Po (CERI) in Paris in December 2005. This conference, which was organized with the help of our friend Pasquale Pasquino, brought together fifteen prominent scholars from China, Europe, and the United States. It also benefited immensely from the participa- tion and support of two Grand Justices of the French Constitutional Council: M. Pierre Joxe and M. Olivier Dutheillet de Lamothe. We are particularly appreciative of M. Dutheillet’s subsequent visit, along with that of his colleague, Grand Justice Guy Canivet, in 2008 to the Tsinghua University Law School, in order to discuss important constitutional issues related to China. Additional thanks go, first and foremost, to Professor Mireille Delmas-Marty, who initiated Franco-Chinese legal cooperation in the 1980s and is still pursuing her unique pedagogical approach to rule of law developments in China. Most recently, she has been engaging both Chinese scholars and Chinese authorities in debate of law and globalization. She has been a great inspiration for this research project. Judge Wang Yaqin and her colleagues from various jurisdictions in China provided invaluable assistance in facilitating Stéphanie’s long and intru- sive fieldworks in Southern and Western China. Our thinking about this issue has also benefited from constant intellectual exchanges with Judge Jean-Luc Quinio, head of the Franco-Chinese judicial cooperation program of the French Embassy in Beijing, and Antoine Garapon, General Secretary of the Institut des Hautes Études sur la Justice (IHEJ) in Paris.

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