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The ‘Invisible Constitution’ seen Realistically
409
as the determinant factors in governance.
31
Referring to Sunstein’s critique
on Rawls, Tian adopts ‘incompletely theorised agreements’ to explain Deng
Xiaoping’s political pragmatism and its implementation throughout the whole
design and ongoing practice of the reform.
32
In the landscape of Chinese constitutional research during the latest
decade, Jiang and Tian’s work together represents the growing influence of
political constitutional scholarship, which is said to have emerged in 2008
following the publication of a paper concerning the nature of the 1982
Constitution.
33
Going against the grain to see the establishment of judicial
review as China’s near future, Chen Duanhong brings the CPC, as a consti-
tutional subject, under the framework of popular sovereignty and constituent
power. By abstracting the ‘five fundamental rules’ from the 1982 Constitution,
Chen argues that the Constitution cannot be practised through judicial review
because its normative characteristics are too fragile.
34
Thus, in the political
context of the party-state lacking a judicial review system, the function of
regulating public factors is now vested in the internal discipline regulators
of the party, administrative supervision of lower level government offices is
conducted by higher level offices and the people’s congress supervises other
state organs, together with subsequent legal sanctions.
35
Further, most of the
controversial cases concerning fundamental rights are involved with institu-
tional changes and could even involve the evolution of legal principles based
on the transforming social values during the reform. Therefore, it is actually
improper for the courts to decide those fundamental political issues, and they
are unable to do so.
36
Thus, Chen argues that it is more appropriate to view the
1982 Constitution as a political charter in which lies the possibility of Chinese
political constitutionalism.
37
31
Ibid.
, 935.
32
Ibid.
, 945.
33
For the starting point of the emerging domestic political constitutionalists and their research,
see Gao Quanxi, ‘The Rise of Political Constitutional Study and Its Evolution’ (2012) 1 Shang-
hai Jiao Tong University Law Review 22, 22 [高全喜：“政治宪法学的兴起与嬗变”，《交大
法学》
2013 年第1期，第 22 页。] In fact, the political constitutional study has been develop-
ing by consistent debate between the political constitutionalist and the leading scholars who
side with the normative constitutionalism.
34
Chen Duanhong, ‘The Constitution as the Fundamental Law and the Higher Law’ (2008) 20
Peking University Law Journal 485, 504. [陈端洪：“论宪法作为国家的根本法与高级法”，
《中外法学》
2008 年第 4 期（第 20 卷), 第 504 页。]
35
Ibid.
, 502.
36
Ibid.
, 502.
37
Ibid.
, 511.
410
Han Zhai
14.2.3. Methodological Reflections: The Written Constitutional Matters
In studying China’s developmental constitutionalism, constitutional schol-
ars can be easily influenced by the political status quo of the ruling party,
resulting in some perspectives reflecting the constitutional realism of China’s
dual constitutional context within a party-state system. As these differences in
approach indicate and justify, there is no universally employed methodologi-
cal approach to determine what forms part of a country’s unwritten or ‘invisi-
ble constitution’. However, the text of the written constitution should clearly
be the source restricting the usage and scope of the ‘unwritten’ constitution.
Otherwise, the unlimited use or further construction of the concept of the
unwritten or ‘invisible constitution’ would endanger the unwritten constitu-
tion itself as lacking normative justification. This unlimited use would raise
a question similar to one raised by those who have reviewed Tribe’s work,
namely, who is to say what the unwritten constitution contains.
38
Political constitutional study should safeguard the text of the Constitution
as the premise for further inquiry into its invisible parts, especially with respect
to the essential reforming features and the fundamental framework that the
1982 Constitution has provided for governance. These reform features are
not only in place to accomplish practical goals during the reform, but also
to ensure the rigid arrangement needed to govern such a wide territory. For
example, both Jiang’s and Tian’s works see the evolving picture of the cen-
tral-local relationship under the written arrangements of the 1982 Constitution
despite of the party and state. Inspired by the methodological review above,
taking the unitary system in the 1982 Constitution of China as a case study,
this chapter will move to a substantive discussion of the unitary influence on
the three types of decentralisation arrangements.
14.3. Case Study: Decentralisation
Arrangements under the Unitary System
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