40 years of Chinese reform and opening up alongside Chinese Constitutional study

• Author: 40 years of Chinese reform and opening up alongside Chinese Constitutional study
• Pages: 458-496

FRONTIERS OF LAW IN CHINA

VOL. 13 DECEMBER 2018 NO. 4

DOI 10.3868/s050-007-018-0035-5

FOCUS

CHINESE LEGAL SCIENCE IN THE 40 YEARS OF REFORM AND OPENING UP

40 YEARS OF CHINESE REFORM AND OPENING UP ALONGSIDE CHINESE

CONSTITUTIONAL STUDY

HAN Dayuan*

Abstract China has a long history of constitutional jurisprudence, bearing different

academic missions in different eras. China’s constitutional jurisprudence, characterized

by its academic logic and principled nature, has not only facilitated social development

and progress but also actively played academic functions during the Chinese reform and

opening up. This paper considers the social changes during the last 40 years of the

policy’s implementation as the background and, by employing standardized and

literature analysis methods, combs the main progress and evolution of the knowledge

system during the 40 years of constitutional jurisprudence study, followed by a look into

its future.

Keywords reform and opening up, constitutional jurisprudence, constitutional practice,

constitutional text

INTRODUCTION .................................................................................................................... 459

I. THE CONSTITUTIONAL SIGNIFICANCE OF THE 40-YEAR REFORM AND OPENING

UP........................................................................................................................... 459

II. THE RESEARCH HISTORY OF THE 40-YEAR CHINESE CONSTITUTIONAL

JURISPRUDENCE ..................................................................................................... 461

A. Constitutional Studies from 1978 to 1982....................................................461

B. Constitutional Studies from 1982 to 2002....................................................463

C. Constitutional Studies from 2002 to 2012....................................................466

D. Constitutional Studies from 2012 to 2018....................................................466

III. THE MAIN PROGRESS OF CHINESE CONSTITUTIONAL STUDIES OVER THE

PAST 40 YEARS ..................................................................................................... 469

A. Specialization of Constitutional Jurisprudence ...........................................469

B. Fundamental Categories of Constitutional Jurisprudence ..........................473

C. Localization of Fundamental Rights............................................................476

* (韩大元) Ph.D. in Law, School of Law, Renmin University of China, Beijing, China; Professor, School of

Law, Renmin University of China, Beijing 100872, China. Contact: handayuan@263.net

2018] 40 YEARS OF CHINESE REFORM AND OPENING UP ALONGSIDE CHINESE CONSTITUTIONAL STUDY 459

D. The “Scientific Nature” of Constitutional Jurisprudence ...........................480

E. Methodology of Constitutional Jurisprudence.............................................482

F. Localization of Constitutional Jurisprudence ..............................................484

G. Dialogues between Constitutional and Departmental Jurisprudences ........489

H. The Openness of Constitutional Jurisprudence ...........................................491

IV. THE FUTURE OF CHINESE CONSTITUTIONAL JURISPRUDENCE.............................. 493

CONCLUSION........................................................................................................................ 495

INTRODUCTION

Since its reform and opening up in 1978, China has experienced profound social

transitions. During these 40 years, China has established the basic strategy of “ruling the

country in accordance with the law, establishing the socialist rule of law” and developed a

socialist legal system. The supremacy of the Constitution and governing the country by

law have become widely accepted concepts. Additionally, the Constitution plays

increasingly important roles in state and social governance.1 An academic review of

Chinese constitutional jurisprudence during the last 40 years of reform and opening up at

the commemoration of its 40th anniversary not only provides a stage-by-stage summary,

but also implies an expectation and vision for its future development, and moreover, the

development of the rule of law.

I. THE CONSTITUTIONAL SIGNIFICANCE OF THE 40-YEAR REFORM AND OPENING UP

To commemorate the 40th anniversary of reform and opening up, we need to

understand the inter relationship between this word and the Constitution. In general terms,

“reform” means changing old systems and objects, specifically, the improvement and

renovation within the current structure. It is a form of repudiation of revolutionary order.

Also, the term “opening up” usually refers to removing restrictions and relieving some

form of energy. In the eyes of constitutional jurisprudence, the reforms in the 1980s were

mainly focused on irrational systems established during the Cultural Revolution; opening

up was freeing the country from a closed or semi-closed state and starting to learn useful

experience from abroad to connect China’s growth to the world. Revolution and reform

are two different concepts with different constitutional functionality. Having experienced

a decade-long Cultural Revolution, Chinese people wanted stable lives and personal

freedom instead of revolution. The transition from revolution to reform exhibits the new

role and function that the Constitution plays in China’s social progress.

1 TANG Zhongmin, 论依宪治国的理论建构及其实现路径 (Theoretical Construction of Rule of

Constitution and the Path to Implementation), 2 探索 (Probe), 188–192 (2015); BI Kejun, 依宪治国的思想

教化与行动逻辑 (Ideological Education and Action Logic in Rule of Constitution), 10 东岳论丛 (Dongyue

Tribune), 159–163 (2015).

460 FRONTIERS OF LAW IN CHINA [Vol. 13: 458

The term “reform” first appeared in the 1950s, for example, in reference to judicial

reform in that era. However, the term “opening up” was nonexistent at the time. In 1978,

the two terms first came together as a policy and system. Therefore, replacing revolution

with reform and opening up was a requirement for the evolution of the Constitution itself.

This concept explains the intrinsic value and driving force of the Constitution. As a

“reforming constitution,” the 1982 Constitution embodied the idea to “uphold the truth,

correct mistakes,” and considered restoring and rebuilding constitutional order as the

main subject of the era.

From 1987 to 1993, the phrase “reform and opening up” was successively written into

the Communist Party of China (CPC)’s basic line, Party Constitution, and China’s

Constitution, indicating the growing recognition at the level of national policy and

systems. It became a party-wide as well as country-wide general consensus.2 Most

notably, the 1993 third constitutional amendment added “uphold reform and opening up”

into the preamble of the Constitution, making it the constitutionally approved national

goal and unequivocally stating its constitutional nature.

The Third Plenary Session of the 11th CPC Central Committee established economic

development as China’s central guiding ideology. With subsequent social progress and

development, it can be said that the 1982 Constitution comprehensively embodied the

spirit of reform and opening up. It marked the ascent of its status from the party’s basic

policy to the national goal and basic state policy and was given clear constitutional status.

To rebuild legal order during the new era of reform and opening up, constitutional

scholars provided an abundance of academic resources. The transition from the initial

stage of reform and opening up to its full-scale implementation is inseparable from the

development of the Constitution, as the latter established the policy’s goals, principles,

and borders. One scholar pointed out that from the perspective of constitutional

jurisprudence, reform and opening up has two logics behind it: One is economic reform,

which is connected to the transition between the past and present and a manifestation of

vertical logic between constitutional structure and temporal progress; the other is the

opening up, which is connected to the East−West collision and is a manifestation of the

transversal logic of constitutional structure.3 Based on such thinking, reform and opening

up is a “reform of the constitutional system,”4 and the driving mechanism provided by

the Constitution is its premise or primal element. What will happen if it loses the

mechanism, and if so, how can we explain the 40 years of development under the policy

from the perspective of interplay between social and constitutional progress? These

2 WEN Weidong, 邓小平与“改革开放”一词的提出 (DENG Xiaoping and the Origin of Reform and

Opening Up), 3 党的文献 (Literature of Chinese Communist Party), 120–121 (2013).

3 GAO Quanxi, 改革开放与宪法变迁 (Reform and Opening Up and Transition of Constitution), 3 民主与

科学 (Democracy and Science), 4–5 (2017).

4 Id.