Michael W. Dowdle

Heretical Laments: China and the Fallacies of ‘Rule of Law’

While the general consensus is that there is no real rule of law in China, we actually have a great deal of difficulty explaining why. This article seeks to show that none of the arguments commonly advanced as to why there is no rule of law in China are particularly compelling. Some critiques claim that China’s rule-of-law insufficiencies are due to deficiencies in her conceptualization of law. But these critiques either depend on false conflations of how individual and collective values work, or on very controversial claims about western conceptions of law, or otherwise identify distinctions that have no real bearing on the development of China’s legal system. Other critiques argue that China’s failure to achieve or enjoy rule of law is due to particular deficiencies in her legal system. But the structural features upon which these critiques focus seem inappropriate for a country in China’s present stage of development. One thinks, all in all, that rule-of-law theorists simply expect too much from law. The question we should be asking is not ‘is there rule of law in China?’, but rather ‘ shouldthere be rule of law in China as we currently conceive of that concept?’ At least for the present state of China’s development, the answer is quite possibly no.

Beyond “Judicial Power”: Courts and Constitutionalism in Modern China

Since the turn of the new century, there has been an explosion of popular constitutional discourse in China. However, the courts seem curiously absent from this emergence. Standard constitutional thought, at least as it comes out of the Anglo-American world, tends to view neutral and independent courts—and in particular “judicial review”—as the centerpiece of a functional constitutional system. Is China a case of “constitutionalism without courts?” (cf Dowdle 2002). Or does the apparent lack of judicial presence in this new discourse render this discourse developmentally meaningless, a mere anomaly in a larger trajectory that is fatally stalled? (see Pei 2006).

Introduction: Exploring for Constitutionalism in 21 st Century China

Of the plausible scenarios for China’s future, the possibility of a new constitutionalism has been taken seriously by only a few Western specialists. Yet the constitutionalist scenario gains credibility from the improbability of the alternatives.

Public accountability: Conceptual, historical and epistemic mappings

Many in the Anglo-American world perceive a growing crisis in public accountability. They fear that privatisation and globalisation are breaking down the traditional accountability arrangements that give us confidence in our government—for example, by devolving important political authority and power to private actors who are able to operate outside the public accountability mechanisms designed for civil servants, or by shifting governmental powers and responsibilities on to transnational actors, both public and private, who operate outside the jurisdictional reach of domestically formulated accountability systems (see Drahos, Chapter 15; Tusikov, Chapter 20, this volume). All this leads to suspicion about whether the political forces affecting our lives are really acting in the interest of the public.

Do we really need a ‘pluralist jurisprudence’?

ABSTRACT The quest for a pluralist jurisprudence must account for the fact that legal pluralism is actually a long-standing feature of European law, one that has been with us constantly for over two millennia, and which for all of its history does not seem to have caused any real jurisprudential problems until now. This gives rise to the question, ‘why is there now suddenly a need for such a jurisprudence?’ This essay suggests that the reason is because transnationalization and the hollowing-out of the Westphalian state have caused issues of legal pluralism to become political issues and not just legal issues. But can political issues really be addressed using a ‘jurisprudential’ lens? Possibly so, but if so, it will have to be a jurisprudential lens that looks very different from those we commonly associate with ‘jurisprudence’ as we practice it today.

Constitutionalism beyond Liberalism

Constitutionalism Beyond Liberalism bridges the gap between comparative constitutional law and constitutional theory. The volume uses the constitutional experience of countries in the global South - China, India, South Africa, Pakistan, Indonesia, and Malaysia - to transcend the liberal conceptions of constitutionalism that currently dominate contemporary comparative constitutional discourse. The alternative conceptions examined include political constitutionalism, societal constitutionalism, state-based (Rousseau-ian) conceptions of constitutionalism, and geopolitical conceptions of constitutionalism. Through these examinations, the volume seeks to expand our appreciation of the human possibilities of constitutionalism, exploring constitutionalism not merely as a restriction on the powers of government, but also as a creating collective political and social possibilities in diverse geographical and historical settings. Combines theoretical and comparative constitutional analysis, putting together two sets of discourses that are usually separate, enabling theory and practice to be mutually enhanced Theoretically comparative, providing the reader with a better understanding of the possibilities of constitutionalism Geographically comparative, enabling the reader to see how constitutional theory can transcend national and cultural differences.

Constitutionalism in the Shadow of the Common Law

Article 8 of the Basic Law of the Hong Kong SAR commands that “the laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained.” This introduces a unique element into Hong Kong’s constitutional interpretation—its “interpretative politics”: Hong Kong may be the only jurisdiction in the modern world to elevate a particular legal system to the status of a constitutional right.