China is developing its own distinctive path towards socialist constitutionalism and rule of law, one that reflects China's history and its unique circumstances but also conforms to the general principles of transnational constitutionalism. The Chinese constitutional order is grounded on a principal of separation of powers that distinguishes between an administrative power assigned to the government and a political authority assigned to the Chinese Communist Party (“CCP”). This constitutional order is reflected in two related but distinct legal contexts—laojiao (the system of administrative detentions, re-education through labor, or “劳动教养”) and shuanggui (the system of intra-CCP discipline of its cadres, “双规”). This article develops a theory of Chinese socialist constitutionalism though an examination of these structures for extra-judicial detention. On the basis of this reading of Chinese socialist constitutionalism, it will suggest why laojiao is constitutionally problematic, but shuanggui is constitutionally sound under the current Chinese constitutional framework. Laojiao deals with general conduct obligations of individuals imposed through, and fully subject to, the administrative order established under the leadership of the CCP, elaborated through the State Constitution. Deviation therefrom breaches both the State Constitution and the CCP’s mass line. Shuanggui deals with political rather than administrative breaches that touch on the integrity of the role of the CCP as Party in Power. It is in this sense beyond the competence of the administrative authorities represented by the government apparatus and relates to the constitution of the CCP rather than the constitution of the state and its administrative authority over the people. As a consequence, the shuanggui system is not subject to the same constitutional difficulties as laojiao. Legitimacy is not perfection, and the article ends with a consideration of the ways in which shuanggui might be reformed to better conform with the CCP’s own organizational line and its constitutional principles.
Larry C. Backer & Keren Wang,
The Emerging Structures of Socialist Constitutionalism with Chinese Characteristics: Extra-Judicial Detention and the Chinese Constitutional Order,
23 Pac. Rim L & Pol'y J.
Available at: https://digitalcommons.law.uw.edu/wilj/vol23/iss2/2