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The ‘Invisible Constitution’ seen Realistically
407
democratic centralism, which is constitutionally articulated as the unitary sys-
tem; and (4) the Basic Laws of Special Administration Regions, consisting of
‘One Country, Two Systems’ as an essential part of the fundamental frame-
work together with the 1982 Constitution.
With a significant break from constitutional normativism, Jiang provides
a comprehensive and persuasive account concerning the realistic picture of
China’s constitutional-political practice in its dual constitutional system.
22
Jiang’s methodological approach reflects a sociological concern that funda-
mental principles, including institutions, rules and conventions significantly
influence patterns of political behaviour in governing China.
23
Jiang’s research
also addresses the self-consciousness of Chinese constitutionalism, which has
been appreciated, presented and has tried to defend the legitimacy of consti-
tutionalism, Chinese style.
24
To Jiang, the ‘unwritten constitution’ is equated with the rules of real pol-
itics outside the text of China’s Constitution.
25
Since the Chinese version of
Jiang’s argument was published in 2009, domestic constitutional scholars
have been criticising Jiang’s inexact adoption of the ‘unwritten constitution’
and his suggestion that the party’s constitution is the material constitution
in China. Zhou Yongkun argues the ‘unwritten constitution’ should address
human rights protections as the fundamental value of modern constitutional-
ism.
26
With a contextual and historical study on the notion of the ‘unwritten
constitution’ in British tradition, Zhai Zhiyong convincingly argues that the
‘unwritten constitution’ is an improper label from an outdated taxonomy and
can contribute little to the substantive discussion.
27
Other critics have argued
that only the written constitution can determinatively underpin a country’s
constitutional framework, although other factors can also influence the oper-
ation of state powers and the protection of civil rights.
28
In Jiang’s theoretical
22
For a recent study echoing China’s dual constitutional system with further empirical construc-
tion, see Shucheng Wang, ‘Emergence of a Dual Constitution in Transitional China’ (2015)
45 Hong Kong Law Journal 819.
23
Kevin J. O’ Brien, ‘How Authoritarian Rule Works’ (2010) 36 Modern China 79, 82.
24
Larry Catá Backer, ‘Towards a Robust Theory of the Chinese Constitutional State: Between For-
malism and Legitimacy in Jiang Shigong’s Constitutionalism’ (2014) 40 Modern China 168, 173.
25
Heike Holbig, ‘China’s Unwritten Constitution: Ideological Implication of a “Non-ideological”
Approach’ (2014) 132 The German Journal of Contemporary China 53, 55.
26
Zhou Yongkun, ‘Some Issues in Studying the Unwritten Constitution’ (2009) 3 Law Science 26,
29. [周永坤：“不成文宪法的几个问题”1，《法学》2011年第3期，第29页。]
27
See Zhai Zhiyong, ‘The Conceptual Change of the Unwritten Constitution: On Misusing the
Unwritten Constitution in China’ (2013) 7 Tsinghua Law Journal 86. [翟志勇：“英国不成文
宪法的观念流变
– – 兼论不成文宪法概念在我国的误用”，《清华法学》2013 年第 3 期
（总第
7卷），第86–97页。]
28
Ibid.
, 97.
408
Han Zhai
effort defending China’s constitutional uniqueness as a party-state, Tu Zhenyu
notes Jiang’s overenthusiasm in adopting concepts (such as the notion of the
‘invisible’ or ‘unwritten’ constitution) that lack reflection on both the Chinese
political status quo and Western discourses. More dangerously, this strongly
labelled ‘conception-borrowing’ could be disrespectful to real Chinese efforts
that are part of the country’s move towards constitutionalism.
29
Arguably, Jiang
failed in his nationalist intention in exactly the same way.
The criticism of Jiang’s work by his Chinese colleagues is not targeted at the
notion of the unwritten constitution. Rather, the aspect with which most con-
stitutional scholars disagree is Jiang’s conclusion that the ‘party’s constitution’
– the unwritten political practices of governance in China – is the material
constitution of China. Jiang’s critics argue that the notion of the ‘unwritten
constitution’ is open enough to allow any political factors to be considered
constitutional. These factors could include identifying the party as a constitu-
tional subject for further study, rather than admitting the party is beyond the
constitution, especially concerning the relationship between the constitution
and modern political parties.
As it was the thirtieth anniversary of the 1982 Constitution, the year 2012 wit-
nessed another rising research current concerning what is ‘unwritten’ in the
1982 Constitution, mainly exemplified by Tian Lei’s research on pragmatic
local practices during the reform period.
Conscious of ‘rediscovering the 1982 Constitution in China’, Tian employs
a new framework to present preliminary theories about the implementation of
the 1982 Constitution. Starting from the country’s internal ‘differential pattern’
as the reality of regional diversity in various aspects of governing, there cannot
be a formal pattern set for economic policy implemented locally.
30
From the
modern semi-feudal and semi-colonial society that inherited the basic territo-
rial structure of the Qing Empire to the military triumph of the CPC, China’s
historical experience is a testament to the importance of ‘differential pattern’
in understanding the fundamental situation of China. The practice of the
reform, which included nationwide projects such as the South–North Water
Diversion Project and the West–East Gas Pipeline Project to close regional
disparities in resources and economy, also confirmed the differential pattern
29
Tu Zhenyu, ‘Reflecting the Debate on the Unwritten Constitution’ (2015) 6 Political Science and
Law 65, 70. [屠振宇：“中国不成文宪法的争论与反思”，《政治与法律》2015年第6期，
第
70页。]
30
Tian Lei, ‘“Differential Patterns”, Anti-patterning and the “Incompletely Theorised Agree-
ments”: Outlining China’s Constitutional Narrative’ (2012) 24 Peking University Law Journal
927, 927. [田雷：“‘差序格局’、反定型化与未完全理论化合意: 中国宪政模式的一种叙述
纲要
”, 《中外法学》2012年第五期（总第24期)，第927页。]
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