Series: Critical Legal Thinking on China
On December 4, 2020, the keynote lecture for Hong Kong’s second annual official “Constitution Day Seminar” was delivered by Peking University law professor Chen Duanhong. In his remarks, Chen firmly supported the legal climate established since the promulgation of the National Security Law by China’s central government five months earlier. Citing Hobbes, Lincoln, and Giorgio Agamben, Chen depicted movements that reject the basic legitimacy of a state’s constitutional order as beyond the pale of legal protection—“at war with the sacred,” such forces would be properly categorized as enemies of the polity, rightless subjects in a space of “exception.”1Chen Duanhong, “2020 Nian ‘Guojia Xianfa Ri’ Zuotanhui Zhuti Yanjiang: Guojia Anquan yu Xianfa’ [2020 ‘Constitution Day’ Keynote Lecture: National Security and the Constitution].” Available at: https://www.cmab.gov.hk/doc/tc/documents/constitution_day/speech3.pdf
Unmentioned by name, but very much providing the framework for Chen’s remarks, was the early 20th century German jurist Carl Schmitt. The latter’s arguments about “norms” and “exceptions,” the “friend-enemy distinction” as the basis for political identity, and the roles of sovereign power as well as a society’s “concrete order” in shaping legal systems, et al., have suffused Chen’s scholarship since the early 2000s. Along with a number of other high-profile legal scholars in some of Mainland China’s most elite universities, Chen has for decades now advocated a view of China’s public law drawing heavily on Schmittian themes and concepts.
It would thus have surprised no one familiar with Chen’s work when, in an official setting and before an audience including Hong Kong Chief Executive Carrie Lam and the other leaders of the Hong Kong Government, he reiterated that “the substance of loyalty to the State and to the Constitution lies in the process of exclusion, or the distinguishing of friends and enemies.” The specific connection with the new national security framework was also hardly unexpected; Chen himself had earlier advocated the promulgation of national security legislation for Hong Kong in response to the protest movement since 2014, and in advance of Beijing’s decision to do just that. In his scholarship and as a member of the PRC’s Basic Law Committee for Macao—a “Special Administrative Region” with constitutional status equivalent to that of Hong Kong and under a parallel “One Country, Two Systems” arrangement—Chen had also already drawn connections between Schmitt’s 1920s-30s writings and China’s 21st century polity.
The spectacle of influence from Schmitt’s thought among regime-friendly legal scholars like Chen has at times drawn bewildered condemnation, both from Western observers and from China’s own liberal advocates of Anglo-American-style constitutionalism. On the other hand, the exact degree to which ideas drawn from Weimar counterrevolution could really impact the constitutional development of an ostensibly socialist geopolitical-economic superpower like the PRC, rather than merely provide occasional rhetorical justifications, remains open to question. What is really Schmittian in today’s China, and how much of its ruling logic is rooted in his form of radical conservatism rather than Marxism-Leninism or its various iterations and adaptations?
China’s Order
There were occasional Chinese intellectual engagements with Schmitt’s conservative thought ever since the late 1920s, with influential elements in the then-ruling Nationalist Party (Guomindang) attracted to his ideas merging a “strong” authoritarian state with room to accommodate both legalistic governance and a “sound,” primarily market-based economy.2Carl Schmitt, “Starker Staat und Gesunde Wirtschaft: Ein Vortrag vor Wirtschaftsführern” [Strong State and Sound Economy: A Lecture for Economic Leaders] (Lecture of 23 Nov. 1932) in Carl Schmitt and Günter Maschke (ed.), Staat, Großraum, Nomos: Arbeiten aus den Jahren 1916-1969 (Berlin: Duncker & Humblot, 1995). However, such views were long absent from public discourse after the founding of the People’s Republic of China in 1949. Official Marxism-Leninism, both in Soviet-derived and Maoist variants, generally emphasized direct Party rule over the statist model articulated by Schmitt. It was only the 1980s-90s phenomenon of economic liberalization, without major corresponding political transformation, that brought new, still marginal attention to Schmitt’s terms and ideas.
The most directly-relevant context for recent Chinese readings of Schmitt, however, lies in the debates over political and legal reform that took place among Chinese intellectuals in the first decade of the 21st century. From the late 1990s, there had emerged a trend of advocating liberal reforms, particularly in the realm of legal practice and academia. Prominent legal scholars sought to capitalize on the recent shift towards integration with Western international norms and institutions—perhaps best exemplified by China’s signing of major human rights treaties and improvements to law and procedure during the process of negotiating WTO accession—by pushing for a convergence with Anglo-American judicialized rule of law notions.
The question of how far the Party should go in permitting liberal political reform alongside economic liberalization/globalization had been discussed since the beginning of China’s “Reform and Opening-Up” under Deng Xiaoping. However, the situation at the dawn of the Hu Jintao era in 2003 was, in the eyes of some liberals, ripe for a more extensive transformation on Western (and especially American) lines. One pivotal moment was the issuing of an opinion by the Supreme People’s Court in response to the Qi Yuling case, which stated that infringements of basic rights contained in the 1982 Constitution could be directly adjudicated in Chinese courts. Some went as far as to refer to this development as “China’s Marbury v. Madison.”
Carl Schmitt’s thought first became explicitly influential in PRC academia around this period, serving as a resource for those arguing against such wholesale liberalization and emulation of Anglo-American legal/political forms. His conservative state theory and notions of “political theology,” associating sovereign power with a secularized divine authority, were the focus of early readings by Liu Xiaofeng, a cultural and political theorist educated in Switzerland. Liu’s reception of Schmitt, in turn, drew on his resurgence in critical political and legal scholarship in the English-speaking world. Other regime-friendly scholars, including Chen Duanhong and his Peking University Law School colleague Jiang Shigong, soon after began arguing against steps such as “judicialization” of China’s constitution, in part by reference to Schmitt’s thought.3See, e.g. Jiang Shigong, “Xianfa Sifahua de Bolun: Jian Lun Faxuejia zai Tuidong Xianzheng zhong de Kunjing [Paradoxes in the Discourse of Constitutional Adjudication: Discussed Alongside the Predicament of Legal Scholars in Promoting Constitutional Government],” 2 Zhongguo Shehui Kexue [Social Science in China] 18–28 (2003); Chen Duanhong, “Lun Xianfa Zuo Wei Guojia de Genben Fa yu Gaoji Fa [On the Constitution as Fundamental Law and
Superior Law],” 4 Zhong Wai Faxue [Peking University Law Journal] 485–511
(2008); Jiang Shigong, Wang Xi, and Xu Nan, “Yuanze yu Tuoxie: Duihua Meiguo Xianfa [Principles and Compromise: Dialogue with the U.S. Constitution],” 1 Zhengzhi yu Falü Pinglun 317 Politics and Law Review.
In the context of the early 21st century PRC, Schmitt proved a useful conservative counter for liberal arguments to be used in place of citing cumbersome official state Marxist doctrines that at times appeared surreal when applied to a rapidly changing Chinese economy and society. Chen Duanhong, in particular, had success in promulgating his Schmitt-derived argument for a set of ordered “fundamental laws” (genben fa 根本法) that make up the essential content of the PRC Constitution: (1) “the leadership of the Communist Party”; (2) “socialism”; (3) “democratic centralism” (i.e., the principle of legislative supremacy under Party coordination); (4) “modernization”; and (5) “protection of basic rights.” This framework quite clearly put liberal rights discourse in its place, well below the preservation of Party leadership and authority.
By 2008, the Qi Yuling decision by China’s highest judicial body had been retracted, in line with a renewed top-down emphasis on reaffirming Party “leadership” in the legal realm. This expression of sharp limits to the reach of legal/political liberalization was matched by others over the course of Hu Jintao’s second term as General Secretary of the Communist Party, which culminated in 2012 with the handover to Xi Jinping. Under Xi, there has been an ongoing emphasis on what is described as “deepening reform”—including via improving tangible outputs of the political system as well as the reliability and professionalism of the legal system—through means such as intensified regulation of markets, a “siege against poverty,” and, especially, a focus on anti-corruption and internal Party discipline. This has coincided with the entrenchment of both the Party’s and Xi’s own insulation from all legal/political challenges, including any by constitutional litigation, civil society activism, or independent scholars and lawyers.
The 2018 constitutional amendments inter alia removing term limits for Xi’s position, creating a powerful new disciplinary body, and inserting “leadership of the Communist Party” into the constitutional text, summed up these trends. Subsequently, the Party leadership with Xi at the core has begun to place official emphasis on maintaining and perfecting “China’s Order” (Zhongguo zhi Zhi 中國之治) as a coherent framework, to be in place for many years to come.
Exceptional Spaces
Citations of Schmitt’s thought by commentators on law and politics seeking to support the basic framework of Party rule (without simply regurgitating the latter’s official doctrines) have increased alongside the Party’s ever more explicit rejections of political liberalization since 2002 (Figure 1). However, there is little evidence of a direct causal relationship between these trends in legal theory and corresponding state practice in most areas, with a few important exceptions. These primarily concern the definition of China’s territorial structure as well as the external dimension of the PRC government’s authority and its relationship with international norms.
Beijing’s recent steps in relation to Hong Kong have, in contrast to previous approaches, taken a markedly legalistic turn. The passage of the National Security Law in 2020, and its subsequent use to characterize certain forms of political speech and organization as threats to the polity, have at times approximated a Schmittian ethos whereby “homogeneity” of worldview (in this case the homogenous commitment to “patriots running Hong Kong”) can be enforced by sovereign fiat. In contrast to most prior campaigns of political suppression against groups in Mainland China, meanwhile, the quashing of Hong Kong’s protest movements since 2014 has operated primarily via state institutions and legal procedures, rather than explicitly extralegal, Party-based bodies. It is not the Party itself exerting a nebulous “leadership,” but rather the National People’s Congress acting as the constitutional seat of state sovereignty, that has served as the final voice of “sovereign Decision” with respect to the legal questions surrounding matters such as national security or the expulsion of “disloyal” local legislators.
Similarly, the official responses to phenomena such as international critique of PRC policies with respect to China’s vast claims in the South China Sea (inherited from the Nationalists) as well as in international human rights institutions, have emphasized not Party ideology but state sovereignty. The Schmittian premise that sovereign authority includes the ability to designate “exceptions” to otherwise-valid norms is well-reflected in the insistence on a reservation for sovereignty-related matters from arbitration under the UN Convention on the Law of the Sea (though this does not dramatically differ from similar positions taken by Russia and the United Kingdom in their own maritime law disputes, nor from the United States’ à la carte approach to UNCLOS and other multilateral instruments). It is also apparent in Beijing’s embrace of the UN Human Rights Council as a forum for promoting development-based achievements in social and economic rights alongside the rejection of effectively all criticisms or suggestions regarding civil and political matters. This is echoed by a similar qualified embrace of the UN system as a whole.
Finally, recent official approaches to fundamental questions of political economy and global market order at times also echo Schmittian dynamics. The Party under Xi has made real, albeit modest efforts to slow the meteoric rise of inequality that accompanied explosive GDP growth. However, the merging of an interventionist state with a redoubled commitment to building “healthy” markets, exemplified in recent antitrust enforcement in the tech sector, suggests a partial convergence with logics of ordoliberal or “ordoglobal” regulation that have also been identified in both EU and Bretton Woods institutions. That (some) states and institutions can exert a dominant role in the creation and ordering of markets even without fully directing them is a corollary of the “authoritarian liberalism” sometimes associated with Schmitt’s thought.4Quinn Slobodian, Globalists: The End of Empire and the Birth of Neoliberalism (Cambridge, MA: Harvard University Press, 2018); Werner Bonefeld, “Authoritarian Liberalism: From Schmitt via Ordoliberalism to the Euro,” 43 Critical Sociology 4-5, 747-761 at 749 (2017). Beijing’s vast programs of regional investment, lending, and institution building also organically link this economic vision with Schmittian themes of spheres of influence within “great spaces.”
Again, each of the above elements of recent state policy suggest more a correlation with Schmittian theory than any actual causal determination of the former by the latter. However, the overlap of these various separate trends and their ability to comprise a single coherent worldview supporting many of Beijing’s Xi-era policies is suggested by, among other things, an article published by Chen Duanhong in advance of his late 2020 lecture. Identifying “three fundamental laws” of the Hong Kong and Macau constitutional orders, Chen suggests these comprise: 1) “national unity and territorial integrity”; 2) “prosperity and stability”; and 3) “capitalism.”5Chen Duanhong, “Lun Gang Ao Jiben Fa de Xianfa Xingzhi [On the Constitutional Character of the Hong Kong and Macau Basic Laws],” 32 Zhongwai Faxue [Peking University Law Journal] 1, 41 at 54 (2020).
Positions like those of Chen would (if adopted) clearly depart from the Deng-era model of a Marxist-Leninist state making expedient accommodations to economic globalization in order to promote development—instead explicitly enshrining the PRC state as the enforcer of an authoritarian capitalist market order insulated from all democratic challenge. If nothing else, this is a consistent constitutional vision offered at a time when neither traditionalist Marxist-Leninists nor embattled liberals can purport to similar clarity and verisimilitude.
Suggested Further Reading
Chen Duanhong, “Lun ‘Yi Guo Liang Zhi’ Tiaojian Xia Tebie Xingzheng Qu Guojia Anquan Gainian de Teshu Xing [On the Special Character of the Concept of National Security in Special Administrative Regions Under the Conditions of ‘One Country, Two Systems’],” Zijingwang, January 22, 2018, available at http://hk.zijing.org/2018/0122/750657.shtml
Gong Renren, “Zhongguo Daxue Mudu zhi Guai Xianzhuang [The Bizarre State of Affairs I Have Personally Witnessed in Chinese Universities],” Financial Times Chinese Edition, June 3, 2015, available at: https://www.aisixiang.com/data/88701.html
Charlotte Kroll, “Reading the Temperature Curve: Sinophone Schmitt-fever in Context and Perspective”in Kai Marchal and Carl K.Y. Shaw (eds.), Carl Schmitt and Leo Strauss in the Chinese-Speaking World: Reorienting the Political, 103–19 (Lexington Books, 2017)
Mark Lilla, “Reading Strauss in Beijing,” New Republic, December 16, 2010, available at: https://newrepublic.com/article/79747/reading-leo-strauss-in-beijing-china-marx
Reinhard Mehring, Carl Schmitt: A Biography, (Polity, 2014) (2009)
Ryan Martinez Mitchell, “Chinese Receptions of Carl Schmitt Since 1929” 8 Penn State Journal of Law & International Affairs 1, 181 (2020)
Ryan Martinez Mitchell, “Theories of Sovereignty in the Origins and Implementation of Hong Kong’s National Security Law” in Hualing Fu and Michael Hor (eds.), Hong Kong’s National Security Law: Restoration and Transformation (Hong Kong University Press, forthcoming, 2022), SSRN draft available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3863353
Sebastian Veg, “The Rise of China’s Statist Intellectuals: Law, Sovereignty, and ‘Repoliticization,’” 82 The China Journal 1, 23 (2019)
Dali L. Yang, “China’s Developmental Authoritarianism,” 12 Taiwan Journal of Democracy 1, 45 (2016)
Ryan Martínez Mitchell is Assistant Professor, Faculty of Law, Chinese University of Hong Kong
- 1Chen Duanhong, “2020 Nian ‘Guojia Xianfa Ri’ Zuotanhui Zhuti Yanjiang: Guojia Anquan yu Xianfa’ [2020 ‘Constitution Day’ Keynote Lecture: National Security and the Constitution].” Available at: https://www.cmab.gov.hk/doc/tc/documents/constitution_day/speech3.pdf
- 2Carl Schmitt, “Starker Staat und Gesunde Wirtschaft: Ein Vortrag vor Wirtschaftsführern” [Strong State and Sound Economy: A Lecture for Economic Leaders] (Lecture of 23 Nov. 1932) in Carl Schmitt and Günter Maschke (ed.), Staat, Großraum, Nomos: Arbeiten aus den Jahren 1916-1969 (Berlin: Duncker & Humblot, 1995).
- 3See, e.g. Jiang Shigong, “Xianfa Sifahua de Bolun: Jian Lun Faxuejia zai Tuidong Xianzheng zhong de Kunjing [Paradoxes in the Discourse of Constitutional Adjudication: Discussed Alongside the Predicament of Legal Scholars in Promoting Constitutional Government],” 2 Zhongguo Shehui Kexue [Social Science in China] 18–28 (2003); Chen Duanhong, “Lun Xianfa Zuo Wei Guojia de Genben Fa yu Gaoji Fa [On the Constitution as Fundamental Law and
Superior Law],” 4 Zhong Wai Faxue [Peking University Law Journal] 485–511
(2008); Jiang Shigong, Wang Xi, and Xu Nan, “Yuanze yu Tuoxie: Duihua Meiguo Xianfa [Principles and Compromise: Dialogue with the U.S. Constitution],” 1 Zhengzhi yu Falü Pinglun 317 Politics and Law Review. - 4Quinn Slobodian, Globalists: The End of Empire and the Birth of Neoliberalism (Cambridge, MA: Harvard University Press, 2018); Werner Bonefeld, “Authoritarian Liberalism: From Schmitt via Ordoliberalism to the Euro,” 43 Critical Sociology 4-5, 747-761 at 749 (2017).
- 5Chen Duanhong, “Lun Gang Ao Jiben Fa de Xianfa Xingzhi [On the Constitutional Character of the Hong Kong and Macau Basic Laws],” 32 Zhongwai Faxue [Peking University Law Journal] 1, 41 at 54 (2020).
For communist China it was NO problem that Taiwan, since a few decades ago, made a transition to democracy (changes under US tutelage as in Chile, Indonesia, Spain, Portugal, Argentina, Greece, etc, etc) as long as they do NOT seek independence (like Catalonia, in Spain, for example): that is the meaning of “One country, two systems” from Deng Xiaoping to Xi Xinping. BUT, the USA wants to use -and uses. the independence cause of Taiwan or Hong Kong, as a weapon against China.