Recovering the Forgotten History of China’s Constitution

For legal scholar Tian Lei, the past is preamble.

In 2010, Tian Lei cut a lonely figure in Chinese legal circles. Coming from a background in political science, rather than law, as a young academic he was largely uninterested in the debates then consuming the field, such as whether China should introduce American-style judicial review or seek to establish its own “China model” of jurisprudence. Instead of constitutional law, Tian preferred to focus his attentions on “constitutional systems” and the roots of China’s current constitutional order.

Tian, who has a Ph.D. in political science from the Chinese University of Hong Kong and a Master of Laws from Yale University, credits the choice to his experiences as a graduate student. His political science training gave him a particular interest in the “rules of the game,” as the government defines them outside of the constitution, while his time studying under Yale professor Bruce Ackerman, the author of the influential “We the People” series, taught him the importance of history to even the most contemporary legal problems.

Today, the academic debates that bored Tian a decade ago are all but over. The Supreme People’s Court, which in 2001 briefly cracked open the door to a potential constitutional review process, has since shied away from arbitrating constitutional disputes. Meanwhile, the Chinese government, with its emphasis on “cultural self-confidence” and socialism with Chinese characteristics, has come down firmly in favor of the China model. The idea that China could learn from the American judicial system has all but disappeared from public and academic discourse.

Yet Tian remains isolated. Although the shifting ideological winds have brought the Chinese Constitution back into the spotlight — in 2014, legislators officially named December 4 “Constitution Day” — neither the document’s defenders nor its critics seem particularly interested in the history of China’s constitutional system. The intents of its framers are increasingly forgotten.

Tian’s new book, “Using Past as Prologue,” seeks to address this attention deficit. Consisting of nine essays spanning more a decade of research, it focuses not on exhaustively studied cases like the 2001 Qi Yuling suit, in which the Supreme People’s Court asserted the right to review whether an individual’s constitutional rights were infringed, but the historical events and figures that shaped China’s current constitutional system. These range from Deng Xiaoping’s pro-reform “Southern Tour” in 1992 and his vision for “one country, two systems” to an inter-provincial boundary dispute in the 1980s.

This May, I interviewed Tian, now a professor at East China Normal University in Shanghai, about his research, the forgotten history of China’s constitution, and his thoughts on contemporary legal trends. The transcript has been edited for length and clarity. Part two, on the divisions of power between provinces and the central government, can be found here.

Cai Yineng: Almost all the cases you discuss in this book are from before the year 2000 — that is, the first 20 years after the adoption of the current constitution in 1982. Why are you so interested in this period?

Tian: I care about the influence that history has on us. We always think of current events as very important, but the passage of time can prove that our original assessment was wrong. For example, the Qi Yuling case in 2001. Looking back, it seems like its impact on academia, and particularly China’s constitutional law circles, was far greater than its significance to China’s constitution itself. (Editor’s note: Qi Yuling was a student whose identity was stolen on China’s ‘zhongkao’ middle school entrance exam. In Qi Yuling v. Chen et al., the Supreme People’s Court declared that the theft had infringed Qi’s constitutional right to an education.)

On the other hand, some events that seem insignificant at the time may have far-reaching political implications. The tax reforms undertaken in the early 1990s, for instance, which greatly increased the proportion of tax revenue diverted to the central government, were largely overlooked by constitutional law scholars. But they have had a decisive lasting impact on a key aspect of China’s constitution — that is, the balance of power between central and local governments.

From time to time, I’ve found factual errors in domestic constitutional law papers, even in otherwise excellent articles. This exposes a serious problem: we are very ignorant of our own history. For constitutional scholars, July 1, 1979 should be as familiar as National Day is to ordinary people. That was the day China promulgated its first major batch of post-Cultural Revolution laws, a major step toward the re-establishment of the rule of law. But many scholars don’t know these basic historical facts. They rarely appear in textbooks or classes. What I want to do is to figure it all out, bit by bit.

Cai: You’ve written about Peng Zhen, who presided over the drafting of the 1982 Constitution. Compared with his contemporaries like Deng Xiaoping and Chen Yun, Peng is a somewhat forgotten figure. How do we evaluate his influence on China’s constitutional system? What were the core constitutional considerations for Chinese political elites of his generation, and how did Peng leave his mark on the document?

Tian: Peng Zhen died on April 26, 1997. He was two years older than Deng Xiaoping and outlived Deng by about two months. In his official obituary, the Communist Party of China called him “the main founder of China's socialist legal system.” He is the only person to be accorded this title, which shows his importance to the history of the construction of China's legal system.

Peng Zhen’s political background was as a legislator, rather than a jurist. Prior to the Cultural Revolution, he was one of the country’s leading legislators; he served three consecutive terms in the Standing Committee of the National People's Congress. During the Cultural Revolution, the NPC was suspended and Peng was persecuted. When the NPC was restored after the Cultural Revolution, he returned to the leadership of the fifth and sixth National People’s Congresses, where he presided over the formulation of the new Constitution.

By that point, Peng was 80 years old. His life taught him a reverence for history. He understood how important stability and authority were to law. In the decade prior to 1982, China had run through two hastily introduced Constitutions. Peng knew that if his new Constitution was to survive, it would need to be carefully worded. He couldn’t afford to pursue too many novel ideas. He absolutely did not want China to have to write a fourth or fifth constitution before the decade was out.

So, on the one hand, the 1982 Constitution ushered in many epoch-defining changes, including the re-affirmation of the role of the individual in the economy. On the other, it is marked by the caution of its framers. In Peng’s own words, “the Constitution only records the things that have been determined” — that is, only the things on which the Communist Party had reached a broad consensus. Contentious, if important, issues, like the role of workers in the management of state-run factories, were thus excluded from the final document.

Looking back, this approach was wise. The new Constitution remained stable for more than three decades. Some of the provisions that allowed China's economy to take off have become so ingrained that we regard these original innovations to be the natural order of things. That’s thanks to the prudence of framers like Peng.

Cai: What challenges have you encountered in your research on the constitution?

Tian: Compared with many countries, the ’82 Constitution is still a very young document. However, a lot of things have happened over the past 40 years. Chinese society has experienced so many changes that its contents and the motivations of its framers can be hard for today’s students to understand.

I tend to believe the provisions that are most difficult to understand today are the essence of the document. I often refer students to a provision of Article 19, committing China to the eradication of illiteracy and outlining the importance of education and self-study. 

Many college students at top universities today do not understand why this is in the constitution. What is meant by “encouraging self-study”? Or “developing vocational education” mentioned in another clause? These ideas are very distant from their lives. However, if you look at Peng’s life, you will find that these were very important concerns to that era of Chinese politicians. They were worried that there were so many illiterate Chinese 30 years after the establishment of the new regime. Addressing that problem was a key aim of that generation of legislators. And this aim is not irrelevant today: Although literacy is almost universal, not everyone gets high-quality education and job opportunities, and “vocational education” is once again a hot topic in policy circles.

It’s a pity that more research into China’s constitutional system has not focused on the intentions of the legislators. Too much of it has been dominated by theoretical discussions borrowed from the Soviet Union, the United States, or Germany, often viewed from the perspective of the urban middle class. Our understanding of the document has become estranged from the original intentions of the legislators, the people they were trying to serve, and the socialist and populist ideas they represented. I really feel that there are still many things in the text of the Constitution that have not been understood well, and many resources that have not been utilized.

Cai: Over a decade ago, your research on the history of China’s constitutional system contributed to the emerging debate over a so-called “China model” of constitutionalism. Nowadays, the discourse surrounding the “China model” has become mainstream and, to borrow your term, “vulgarized.” What do you think happened and how can this trend be reversed?

Tian: The “China model” was at first a somewhat spontaneous trend in academic thought. After the 2008 Beijing Olympics, some scholars tried to break the hegemony of Western theories in ideological circles. They hoped to strengthen research on China's own system and experiences, rather than using Western society as a template for progress. At the time, the “China model” was a marginal idea within domestic academic circles, and no important scholars hoped to reap anything like fame or wealth by advocating it. People were more interested in pure, or intellectual, knowledge: What were the systems that had given China three decades of stable and rapid development?

Over the past 10 years, much of that has changed. At the root of these changes is the fact that organic academic interest in questioning Western discourse hegemony has been overshadowed by a system of official discourse. The official promotion of the “China model” is not a good or bad thing in itself, but for the academic community it has cost a once marginal ideological trend its vitality, vigor, and backbone. If the “China model” has become the politically correct thing to advocate on social media, then it’s also become “vulgar.”

What do we do about this vulgar tendency? Perhaps it can be summarized in one point: all discussions on the “China model” need to be vigilant against the pitfalls of essentialism. We cannot reduce a complex, diverse, and changing Chinese society into a single and empty narrative. That’s why I chose a photo of Chongqing for the cover of my book – not only because I lived and worked there for five years, but also because I think the complex and rugged urban layout of Chongqing is an apt metaphor for Chinese society.