401
14.1. Locating the Scene
To engage the real world, comparative constitutional scholarship needs to
endeavour to cover politics while maintaining the boundary between con-
stitutional normativity and political realities. The notion of the ‘invisible
constitution’ presents an opportunity for deeper and more contextually sensi-
tive investigations into constitutional implications in different constitutional
regimes. In an authoritarian party-state without any judicial review or formal
constitutional interpretation, what picture can the concept of the ‘invisible
constitution’ draw from China’s incomplete 1982 Constitution? Beyond iden-
tifying the ‘invisible constitution’ as an interpretative approach, we hold that
it has the potential to become a theoretical framework for studying the con-
stitution and its function through a realistic perspective. When the functions
of a constitution might not be entirely predicted by a written constitution,
then between the ideal of a normative constitution and the reality of its imple-
mentation, there is usually a departure that might be more significant in the
case of a reforming constitution. From this gap, constitutional scholarship has
offered theoretical frameworks such as constitutional conventions, informal
constitutional changes and now the likely development of the ‘invisible con-
stitution’. In this chapter, the ‘invisible constitution’ refers to the unforeseen
changes that occur during the implementation of a written constitution and
the implicit logic behind the fundamental arrangements offered by the 1982
Constitution of China in a historical-social context.
The ‘invisible constitution’ gained its specific influence over Chinese
constitutional scholarship through the translation of Tribe’s work in 2010.
Inspirations about the ‘invisible constitution’ can be found in articles and
debates on the material constitution during the reform period. This research
trend is underpinned by the pursuit of a proper theory to explain the uniqueness
14
The ‘Invisible Constitution’ seen Realistically
Visualising China’s Unitary System
Han Zhai
402
Han Zhai
both in and beyond the written text of the 1982 Constitution. However, in post-
1978 China, the ‘invisible constitution’ implies possible intellectual access to
study the 1982 Constitution in the realistic context of constitutional changes.
The incomplete nature of the 1982 Constitution necessitates a theoretical
framework such as the ‘invisible constitution’. With a minimalist unitary sys-
tem, the text of China’s 1982 Constitution keeps silent on almost every crucial
issue that a constitution should articulate during the reform period, and this
constitutional silence invites us to see the de facto picture. As China’s ‘reform-
ing’ constitution, the 1982 Constitution aims to move beyond the country’s
totalitarianism past and relaunch the modern state-building of China.
1
It
offers the rebalancing of the entire power structure of the Chinese state, estab-
lishing a symbolic state president, a central military commission and an oper-
ative national legislative body by empowering its Standing Committee with
more special committees. In practice, effective local laboratories subsequently
developed formal national policy and could even cause textual constitutional
changes.
2
The 1982 Constitution provides a unitary system that allows the ini-
tiative and enthusiasm of local authorities under the unified leadership of the
central authorities.
3
This model provides enough constitutional leeway for the
ongoing trial-and-error practise and future developments during the reform
period.
4
During the reform era, the 1982 Constitution reflected policy changes
rather than setting the parameters of the reform itself. Amendments to the
1982 Constitution mainly incorporated and legitimated changes in the direc-
tion and operation of economic reform.
5
The changes in the Constitution that
were unforeseen or developed later were invisible indeed.
The invisible part of China’s 1982 Constitution not only refers to what is tex-
tually unwritten, which can be easily identified in the implementation of the
1
Li Qiang, ‘State Capacity, Democratic Principles, and Constitutional Order: Modern State-
Building in Post-totalitarian Society’ in Xiaoming Huang (ed.),
The Institutional Dynamics of
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