CHINA’S CONSTITUTIONALISM DEBATE CONTENT, CONTEXT AND IMPLICATIONS1

ROGIER CREEMERS

INTRODUCTION On Thursday 3 January 2013, protests broke out at a well-known Chinese pro-reform media outlet, the Guangzhou-based newspaper Southern Weekend, af-ter it was alleged that the provincial censorship authorities had altered the content of a critical New Year’s message without the knowledge of the edito-rial department2. A day later, the website of the Chinese reform-oriented in-tellectual journal Yanhuang Chunqiu (YHCQ) 炎黄春秋 was closed down3. Hitherto, even though it had often published controversial articles on various aspects of reform, it had been left alone by censorship authorities. However, the New Year’s message it posted on its website seemed to have been one step too far. Which content was so explosive that it needed to be removed from the public space in such an uncompromising manner? In both cases, the offend-ing New Year’s messages had called for constitutionalism (xianzheng 宪政). These events were the opening shots of a broad, nationwide debate that would last for months. On one side in this debate were pro-constitutionalist voices who proposed in-stitutional reforms to implement China’s current Constitution. This side ar-gued that the Constitution’s claim that it is the basic norm for behaviour and has the highest legal effect is vitiated by a failure of implementation. Many of the institutional checks it provides, including oversight over laws and regula-tions promulgated at lower levels of government, have remained dead letter. Conversely, the Chinese state and its officials regularly override the liberties protected by constitutional provision without the possibility of constitutional litigation or review. They were opposed by anti-constitutionalist views, which held that constitutionalism is an alien concept that is dangerous for China’s reform trajectory and political stability. This debate has relevance both in its content and its context. The subjects un-der discussion are not mere academic points of theory, but have profound                                                                                                                1 A revised version of this article will be published in The China Journal. The author would like to thank Katherine Morton, Eva Pils, Flora Sapio and Michael Dowdle for their insightful comments on earlier drafts. 2 The New Year’s edition of Southern Weekend had come under particularly close scrutiny by provincial censors. For a detailed overview of the censorial process, see Qian, Gang. 2013a. “Why Southern Weekly Said No.” China Media Project, 11 January 2013, http://cmp.hku.hk/2013/01/11/30623/. 3 Yu, Verna. 2013. “Yanhuang Chunqiu Website Closed Down After Editorial on Constitution.” South China Morning Post, 5 January 2013, http://www.scmp.com/news/china/article/1120153/yanhuang-chunqiu-website-closed-down-after-editorial-constitution.

implications for political and legal reform. The constitutionalist challenge brought questions concerning the legitimacy and sustainability of China’s public legal order to the fore, forcing the leadership to respond. This reaction not only made the leadership’s fundamental position on legal and political reform clear, but also outlined the ideological and institutional risks it per-ceived. In terms of context, the debate arose at a particularly sensitive time, mere weeks after the 18th Party Congress. Leadership transitions have often been a moment of heightened political tension4, and the 2012 handover was overshadowed by the Bo Xilai scandal as well as increasing concern about abuses and problems such as corruption, pollution and food safety. Further-more, this was the first leadership transition to occur in the era of social media. Consequently, the constitutionalism debate not only played out in academic journals and scholarly institutions, but enjoyed wide public interest as well. Essays and viewpoints were widely shared on intellectual websites, as well as through channels such as Weibo, creating a new form of public opinion envi-ronment for the leadership to contend with. The constitutionalist debate thus provides a useful lens through which to assess the CCP’s own conceptualiza-tion of the public order and the political circumstances in which it finds itself. However, it also reveals the profound contradictions that exist at the nexus of questions of legal authority and political legitimacy. Hitherto, the question of legal reform has mostly been studied separately from political reform, and has been dominated by a normative approach structured around the concept of rule of law. Some scholars propose particu-lar definitions of this concept, in order to conceptualize the orientation of le-gal reforms. In Randall Peerenboom’s analysis, for instance, China will not adopt the “thick”, substantive values-based rule of law model that underpins Western legal systems, but a thin conception, which stresses the formal and procedural nature of law5. Wang Chenguang sees the development of the rule of law as a Weberian process of rational institutionalization, away from the rule of man that prevailed during the early decades of Communist rule6. Oth-er scholars have – mostly negatively – evaluated China’s current constitution-al environment through a rule of law lens. Zhang Qianfan, who would be-come one of the most prominent voices in the 2013 debate, attributes this to the lack of judicial mechanisms that transform constitutional provisions into

                                                                                                               4 The gradual transition from the Jiang leadership to the Hu leadership between 2002 and 2004 was the first orderly transition since the establishment of the PRC. Still, it was rapidly followed by an intra-Party ideological campaign “to maintain the advanced nature of the CCP”, as well as the dismissal and arrest of Shanghai Party chief Chen Liangyu. Ji, Fengyuan. 2012. “Linguistic Engineering in Hu Jintao’s China: The Case of the Maintain Advancedness Campaign”. In: Brady, Anne-Marie (ed.), China’s Thought Management. Abingdon: Routledge, 90-103; Li, Cheng. 2007. “Was the Shanghai Gang Shanghaied? The Fall of Chen Liangyu and the Survival of Jiang Zemin’s Faction. China Leadership Monitor 20. 5 Peerenboom, Randall. 2002. China’s Long March Towards the Rule of Law. Cambridge: Cam-bridge UP. 6 Wang, Chenguang. 2010. “From the Rule of Man to the Rule of Law.” In Cai, Dingjian and Chenguang Wang (eds.), China’s Journey Towards the Rule of Law: Legal Reform, 1978-2008. Lei-den: Brill.

real outcomes, referring to China’s constitution as “dead letter”7. Thomas Kel-logg shares this view, pointing out that a decline of Marxist ideology has left a theoretical vacuum that judicial authorities have, so far, not filled8. Don Clarke puts it perhaps most succinctly, quipping “the constitution does not in fact constitute”9. In the politics field, a similar normative discourse revolving the question of whether and how China would democracy has been slowly displaced by ef-forts to explain the undemocratic, single-party state’s resilience. Scholars such as Andrew Nathan and David Shambaugh attribute this resilience to the insti-tutionalization of procedures for succession and collective decision-making, as well as the creation of input institutions and administrative reforms that forestalled demands for political reform through the creation of public goods10. Sebastian Heilmann and Elizabeth Perry point at a contrasting ele-ment: most Party and state institutions – with the exception of a small number of bodies at the Party’s summit – have found themselves in a persistent state of flux and plasticity. In their view, the primary factor supporting political re-silience is a flexible, “guerrilla-style” conception of policymaking, which stands opposed to political accountability, legal consistency and procedural stability. However, this policy style comes at significant expense: its single-minded focus on primary goals, such as maintenance of Party leadership, comes at the expense of competing or secondary claims, and overlooks the deleterious side-effects of strategic pursuits, such as pollution and endemic corruption11. The contrast between these complementary approaches mirrors the intractable conflict between the perceived benefits and costs of institu-tionalization and flexibility. Well-established institutions might coordinate collective action and enable the efficient use of resources, but can also become loci of vested interests. They might generate the predictability and stability needed to foster economic growth, but at the same time impair the agility the Party deems necessary to confront emerging challenges. This tension between the benefits of rule-based institutions and outcome-based flexibility has been noticed in recent China law scholarship. Carl Minzner and Benjamin Liebman both analyse China’s shift away from formal

                                                                                                               7 Zhang, Qianfan. 2011. “A Constitution without Constitutionalism? The Paths of Constitu-tional Development in China.” International Journal of Constitutional Law 8(4), 950-976. 8 Kellogg, Thomas. 2009. “Constitutionalism with Chinese characteristics? Constitutional de-velopment and civil litigation in China.” International Journal of Constitutional Law (7)2, 215-246. 9 Clarke, Donald, 2003. “Puzzling Observations in Chinese Law: When Is a Riddle Just a Mis-take?” In: Hsu, Stephen (ed.), Understanding China’s Legal System: Essays in Honor of Jerome A. Cohen. New York: New York UP. 10 Nathan, Andrew. 2003. “Authoritarian Resilience.” Journal of Democracy 14(1), 6-17; Sham-baugh, David. 2008. China’s Communist Party: Atrophy and Adaptation. Berkeley: University of California Press. 11 Heilmann, Sebastian and Elizabeth Perry. 2011. “Embracing Uncertainty: Guerrilla Policy Style and Adaptive Governance in China.” In Sebastian Heilmann and Elizabeth Perry (eds.), Mao’s Invisible Hand: The Political Foundations of Adaptive Governance in China. Cambridge: Harvard University Press, 1-29.

litigation to resolve disputes against the background of the conflict between constructing a rule-based social order and serving popular ideas of justice12. Law, they conclude, seems to have lost some of its attraction as a tool of social governance, and is being replaced by more flexible approaches, such as medi-ation. However, this focus on the instrumentalist functions of law does not answer the question what role law might play in constituting the public order itself, and how it would connect with other organizing principles of the Party and state in order to delimit and channel the use of political power. Accord-ing to He Xin, a significant part of the answer to this question must be sought in the way in which the Party exercises its power. In He’s view, the CCP’s power is absolute and unlimited in the sense that it is not subject to external oversight or authority, nor to legal constraints. At the same time, the actual exercise of that power is limited, sometimes by well-understood self-interest, sometimes by internal conflicts, compromises and power struggles. Still, the exercise of Party power over and within state bodies has important conse-quences for the way outcomes are generated through the political constella-tion. Therefore, in He’s view, we must look at CCP documents, leaders’ speeches and practices to answer questions of how CCP leadership is concep-tualized and realised, not rely on the texts of the state Constitution or its laws13. This paper will argue that the 2013 constitutionalism debate provides a pow-erful illustration of this dichotomy between Party politics and the role of law within the public order. In response to calls to deal with China’s social, politi-cal and economic problems by formalizing and enhancing legal procedure, the leadership put forward a nativist and reductionist argument defending the correctness of Socialism with Chinese characteristics. Instead of engage-ment and dialogue with the constitutionalists’ arguments, the leadership re-sorted to calling them deluded at best and possibly dangerous for political stability at worst, while maintaining the claim that the Party deals with its own mistakes. In short, the leadership continues to fundamentally reject the very notion of extending enforceable entitlements against, or obligations upon the CCP qua sovereign power itself. This paper also explores the relationship between the constitutionalism de-bate and wider political developments in the turbulent first year of the Xi administration. First, it will review the chronology of the debate, and discuss the different voices and venues that shaped it. Second, it explores possible motivations for the constitutionalist case. Third, it discusses two examples of how Xi reinterpreted two pillars of CCP governance: discipline and ideology. Responding to the substance of the constitutionalists’ claims, Xi Jinping has made the fight against corruption into a key priority, but has done so through ideology-driven Party rectification campaigns, rather than allowing for inde-                                                                                                                12 Minzner, Carl. 2011. “China’s Turn Against Law.” American Journal of Comparative Law 59, 935-84; Liebman, Benjamin. 2014. “Legal Reform: China’s Law-Stability Paradox.” Daedalus 143(2), 96-109. 13 He, Xin. 2012. “The Party’s Leadership as a Living Constitution in China.” Hong Kong Law Journal 42(1), 73-94.

pendent judicial proceedings outside of CCP control. Furthermore, the new ideological line of the Chinese Dream and national rejuvenation that Xi pro-posed is largely a restatement of central elements of pre-existing Party doc-trine, while the anti-constitutionalist response and social media crackdown indicates a continuing refusal to relinquish the commanding heights in public opinion and agenda-setting. Both examples suggest that Xi aims to strengthen the current political paradigm by enhancing its efficacy, rather than challenge its architecture. This has considerable implications for the possible directions of political and legal reform in China, as well as for scholarly understandings of this process. This paper concludes that the current CCP paradigm, as exemplified in the constitutionalism debate, rejects the idea of intractable tensions between dif-ferent sources of legitimacy and authority, as well as legalized checks and balances. However, this denial does not eliminate these tensions, nor does it accommodate the costs of China’s current political model identified earlier. Still, the demonstrated strength of this paradigm may imply that it is more stable than sometimes given credit for, and therefore might persist for the foreseeable future. This, in turn, suggests that scholars would do well to de-velop theories of change in China that are based on a nuanced understanding of the governing paradigm, rather than teleological concepts such as the rule of law or democratization. It seems more likely that, in the absence of disrup-tive or catastrophic events, change will occur through the gradual identifica-tion and resolution of problems within the paradigm, rather than a dramatic paradigm shift – even if that shift is hidden by the ostensibly harmless phrase “implementing the Constitution”.

TIMELINE, VENUES, PARTICIPANTS AND ARGUMENTS The debate inadvertently started with a speech by the newly appointed Gen-eral Secretary of the CCP, Xi Jinping at an event commemorating the 30th an-niversary of China’s 1982 Constitution on 4 December 2012. One particular remark of Xi’s, “the life of the Constitution lies in its implementation” would come to be often cited as a perceived support for the constitutionalist agenda. From there onwards, the debate can be divided into four phases, alternating between pro- and anti-constitutionalist initiatives. The first phase, from De-cember 2012 until April 2013, contains the immediate response to Xi’s speech and the New Year’s incidents outlined in the introduction. During the second phase in May 2013, Party media outlets published a number of articles on the harm wrought by constitutionalism. The third phase, between June and Au-gust 2013, saw a growing number of pro-constitutionalist voices reacting against these vociferous publications. The fourth period, August 2014, saw further anti-constitutionalist publications and the inception of a crackdown on social media that brought an end to the debate. The debate petered out in the closing months of 2013, with a symbolic coda in an essay by the Law Soci-ety of China’s president in the first 2014 issue of the Party journal Seeking Truth.

The essays on the anti-constitutionalist side were mainly published in three Party media outlets: Red Flag Manuscripts (RFM - Hongqi Wengao 红旗文稿), the People’s Daily Overseas Edition and Party Building (Dangjian 党建). Inter-estingly, the former two are subordinate publications of more authoritative titles. RFM is published by the same company that issues Seeking Truth (Qiushi 求是), the Central Committee’s theoretical journal. It also shares the latter’s website, where anti-constitutionalist articles where reposted during the debate. But where Seeking Truth publishes articles by high central and provincial officials, as well as high-profile academics, that closely reflect the general Party line, RFM tends more towards strident leftism, both in terms of topic choice and tone. Equally, the People’s Daily Overseas Edition does not reflect official government opinion to the same extent that the People’s Daily itself does14. The pro-constitutionalist arguments were made through more diffused channels. Many intellectual periodicals published pro-constitutionalist articles. Leading among these was YHCQ, which published articles on constitutionalism in nearly every issue of 2013. YHCQ was found-ed in 1991 by a number of persons associated with Hu Yaobang and Zhao Zi-yang’s reformist faction, and is headed by Du Daozheng, who headed the Administration of Press and Publications in the late 1980s. It is known as a prestigious, relatively independent, reform-minded journal that benefits from the support of high-level experts, including retired senior officials. Other pro-constitutional articles were published in Caijing15. But perhaps the most im-pactful channel for the pro-constitutionalist side was the Internet. The original open letter advocating for the implementation of the Constitution and many other writings were published, disseminated and shared via blogs, social me-dia and intellectual websites such as Love Thinking (Ai Sixiang 爱思想) and Consensus Net (Gongshiwang 共识网). New media also enabled the dissemina-tion of foreign media, such as an interview of the Peking University law pro-fessor He Weifang in the Singaporean Lianhe Zaobao (联合早报)16. The debate aroused considerable interest online, outstripping news about the Chinese moon probe Chang’e. The vast majority of commentators demonstrated sup-port for the pro-constitutionalist position17.

                                                                                                               14 Bandurski, David. 2013. “China’s Constitutional Debate.” China Media Project. 14 August 2013, http://cmp.hku.hk/2013/08/14/33812/ 15 Xu, Chongde. 2013. “Xianzheng shi fazhi guojia yingyou zhiyi” (“Constitutionalism is what Rule of Law Countries Should Be About”), 23 May 2013, http://blog.caijing.com.cn/expert_article-151497-52108.shtml; Cai, Xia. 2013. “Tuijin xian-zheng minzhu yinggai shi zhongguo gongchandang de zhizheng shiming” (“Promoting con-stitutional democracy should be the governing mission of the Chinese Communist Party”), Caijing Online, 31 May 2013, http://comments.caijing.com.cn/2013-05-31/112850810.html. 16 Zhou, Zhaocheng. 2013. “Duihua He Weifang tan Zhongguo xianzheng zhengyi.” (“Dis-cussing China’s constitutionalism debate with He Weifang.”) Lianhe Zaobao, 4 June 2013, www.zaobao.com.sg/ special/zbo/story20130604-212263. 17 Caragliano, David. 2014. “K-Pop, Cat GIFs, and Constitutionalism.” Foreign Policy, 11 Feb-ruary 2014, http://www.foreignpolicy.com/articles/2014/02/11/China_weibo_internet__censorship_constitutionalism.

Let us now turn to the detailed arguments and claims that were made during the debate. In his speech commemorating the 30th anniversary of the 1982 Constitution, Xi argued that it has been an important basis for the economic and social progress that was made. Furthermore, Xi claimed that it “is a good constitution that conforms to our national conditions, conforms to reality and con-forms to the development demands of the times, it is a good constitution that fully re-flects the people’s common will, fully guarantee’s the people’s democratic rights, and fully safeguards the people’s fundamental interests, it is a good constitution that promotes the process of national development, guarantees the people’s creation of happy lives, and guarantees that the Chinese nation will realize its great rejuvena-tion, and it is the fundamental legal system guarantee for our country and people to undergo all sorts of difficulties, dangers and trials, and advance along the path of So-cialism with Chinese characteristics from beginning to end.” 18 The much-quoted remark that the life of the Constitution lies in its implementation prefaced a section in which Xi outlined further actions to be taken to create a Socialist rule of law country (shehuizhuyi fazhi guojia 社会主义法治国家). These includ-ed maintaining the correct political orientation, ruling the country according to the law, guaranteeing that the people enjoy rights and fulfil their obliga-tions, and persisting in the leadership of the Party. Party jargon notwithstand-ing, the language on implementing the constitution and protecting people’s rights seems to have encouraged the pro-constitutionalist side to step up. On Christmas Day, an open letter signed by more than seventy academics and intellectuals was published online. It was framed as a proposal for reform based on the 1982 Constitution. It identified three main problems: a lack of separation between Party and State, centralization of decision-making within the Party, and insufficiently well-institutionalized intra-Party election mecha-nisms. According to the drafters, these problems result in abuse of power, corruption, vested interests and arbitrary government, and so in social unrest and disaffection. In response, they proposed measures to expand electoral democracy, respect for the freedom of expression and association, deepen market economy reforms, realize judicial independence and guarantee the ef-fect of the Constitution19. The YHCQ New Year’s article, published a week later, drew on similar topics. It particularly stressed the potential of imple-menting the current constitution as a way forward in political reform, point-ing in at unfulfilled constitutional provisions on the powers of the National People’s Congress, property rights, human rights, freedom of speech and as-                                                                                                                18 Xi, Jinping. 2012. “Zai shoudu gejie jinian xianxing xianfa gongbu shishi 30 zhounian dahui de jianghua.” (“Speech at the Capital Conference Commemorating the 30th Anniversary of the Promulgation and Entry Into Force of the Current Constitution.”), Xinhua, 4 December 2012, http://news.xinhuanet.com/politics/2012-12/04/c_113907206.htm, translated, https://chinacopyrightandmedia.wordpress.com/2012/12/04/speech-at-the-capital-conference-commemorating-the-30th-anniversary-of-the-promulgation-and-entry-into-force-of-the-current-constitution/. 19 Chen, Hongguo et al. 2012. “Gaige gongzhi changyishu” (“A Proposal for a Consensus about Reform”), Ming Pao, 27 December 2012, http://www.mingpaonews.com/download/ga20121227_1465.pdf, translated, http://chinacopyrightandmedia.wordpress.com/2012/12/25/a-proposal-for-a-consensus-about-reform/

sembly, personal freedom and judicial independence. 20 The unpublished Southern Weekend message took another tack, taking its cue from the Chinese Dream, the new ideological framework Xi Jinping launched soon after his ac-cession. In a poetic article, Southern Weekend saw the implementation of the Constitution as the conclusion of the Chinese people’s journey through the ruin of empire and the disasters of the 20th Century. Now, on the cusp of a new era, constitutionalism would allow all Chinese citizens to fulfil their dreams, with their rights protected and their liberty guaranteed. “Only under constitutionalism will it be possible for the country to continue to become strong and wealthy, and […] for the people to become truly formidable. Only by fulfilling the dream of constitutionalism will it be possible to strive for national sovereignty abroad even better, and safeguard the freedom of the nation; […] even better strive for civil rights at home, and safeguard the people’s freedom. And the freedom of the country must, in the end, rest on the freedom of the people, it must rest on the fact that every-one may speak their hearts, and everyone may have dreams in their hearts21. Official media immediately responded to the wave of public interest these two articles generated. The populist-nationalist Global Times, for example, published two editorials on the same day. The first, written by law professor Yu Zhong, holds that constitutionalism means optimizing the relationships between social subjects. Consequently, constitutionalism can only be devel-oped with reference to the local conditions of its environment, not on the ba-sis of foreign models or simple political proposals. While Yu sympathizes with the constitutionalists’ idealism, he finds their reasoning oversimplified22. The second editorial accused the Southern Weekend protesters of wilfully stir-ring up trouble and claimed that media should know its proper place within the larger picture of reform23. This exchange already contained the main elements of both positions. The pro-constitutionalist side advocated institutional reforms, based on the cur-rent text of the 1982 Constitution, that would legalize various aspects of the public order, including relationships between Party and state, and provide procedural remedies for the infringement of constitutional rights. These pro-                                                                                                                20 YHCQ. 2013. “Xianfa shi zhengzhi tizhi gaige de gongshi” (“The Constitution is the Con-sensus for Political Structural Reform”). Yanhuang Chunqiu 2013/1, 1-3. Translated, http://chinacopyrightandmedia.wordpress.com/2013/01/04/constitutional-governance-is-the-consensus-for-political-structural-reform/ 21 The original, unpublished text of this New Year’s message was soon circulated on China’s Internet, and published on, amongst others, the BBC’s Mandarin website. Print on file with author. 22 Yu, Zhong. 2013. “Gaige de lujing bukeneng shi danyi de.” (“The Route of Reform Cannot Be Singular.”) Global Times, 7 January 2013, http://opinion.huanqiu.com/opinion_china/2013-01/3454136.html. Translated, “http://chinacopyrightandmedia.wordpress.com/2013/01/14/yu-zhong-the-route-of-reform-cannot-be-singular/”. 23 Global Times. 2013. “Nanfang zhoumo ‘zhi duzhe’ shizai lingren shensi.” (“Southern Weekend ‘Letter to Readers’ Really Makes One Think Deeply.”) Global Times, 7 January 2013, http://opinion.people.com.cn/n/2013/0107/c1003-20120508.html. Translated, http://chinacopyrightandmedia.wordpress.com/2013/01/08/global-times-lay-off-supporting-southern-weekend-or-else/.

posals strongly echoed the 1980s reform proposals associated with Hu Yao-bang, and also referenced the earlier meaning of the term xianzheng, which was identified by Sun Yat-sen in 1924 as the final stage of China’s moderniza-tion process. The anti-constitutionalist side reacted not by engaging with the constitutionalist argument, but by refuting the very validity of the term xian-zheng. Furthermore, even thought the pro-constitutionalists had never re-ferred to concepts such as human rights or universal values, they were ac-cused of blindly following foreign models that were not applicable to China’s specific circumstances. While the debate soon died down on social media, intellectual websites and journals continued publishing a trickle of further articles on constitutionalism. YHCQ in particular remained vocal. Its February issue, for instance, com-memorated the recently deceased scholar Wu Jiang by republishing an article of his on protecting press freedom as guaranteed in the Constitution24. In this, Wu discussed how measures first mooted in 1980 had not yet been imple-mented, and that undue and arbitrary governmental interference in press and publications remained rife. In March, it contained an editorial by Gao Kai, the ex-head of research at the National People’s Congress (NPC) Legal Affairs Committee, referred to abortive reform agenda of the Eighties, claiming that while such reform might be difficult, it would enhance the Party’s leading po-sition as well as fulfil the people’s desires25. Furthermore, this issue contained a piece by Zhang Qianfan on the spirit of the US Constitution26. In April, YHCQ led with a transcript of its Spring Festival forum, where the implemen-tation of the Constitution was the main topic27, and contained an essay outlin-ing the historical development of the principle in the 1982 Constitution that the Party is under, rather than above the law28. The month after, its leader was a historical piece by China University of Political Science and Law (CUPL) professor Guo Shiyou, which explored the historical development of the term constitutionalism. Guo discussed late Qing moves towards constitutionalism, arguing that the fall of the dynasty was not due to these reforms, but pro-found social and economic problems. Second, Guo noted how Sun Yat-sen’s proposition of constitutionalism as the objective of reform was hijacked by Chiang Kai-shek, leading to a period of dictatorship under the veil of military tutelage, which only ended because Chiang Ching-kuo had the political vi-sion to complete Sun’s vision and introduce constitutionalism into a Chinese society. The mainland, according to Guo, has remained in a situation of im-posing stability through brute force, leading to abuses such as the Bo Xilai-                                                                                                                24 Wu, Jiang. 2013. “Chongti ruhe baozhang xianfa guiding de chuban ziyou.” (“Bringing Up How to Guarantee the Press Freedom Provided in the Constitution Again”). Yanhuang Chun-qiu 2013/2. 25 Gao, Kai. 2013. “Xianfa shi zhengzhi tizhi gaige de qizhi.” (“The Constitution is the Banner for Political Structural Reform.”) Yanhuang Chunqiu 2013/3. 26 Zhang, Qianfan. 2013. “Meiguo xianfa jingshen tanqiu.” (“Investigating the Spirit of the US Constitution.”) Yanhuang Chunqiu 2013/3.. 27 YHCQ. 2013. “Dui lishi, xianzhuang yu gaige de kanfa.” (“Views on History, the Current Situation and Reform.”) Yanhuang Chunqiu 2013/4. 28 Huang, Zhong. 2013. “Dang zai faxia: Ba’er xianfa de guanjian yuanze.” (“The Party Under the Law: The Crucial Principle of the ‘82 Constitution.”) Yanhuang Chunqiu 2013/4.

Wang Lijun scandal. However, Guo concludes by stating that the time is now right to move towards constitutionalism, especially as the current govern-ment finds itself in far better economic and social circumstances than the Qing did, and it has a vast amount of historical lessons and experience to build on29. This series of articles focused somewhat less on concrete proposals and mech-anisms for reform. They appeared more geared towards persuading the lead-ership that constitutionalism was not something that should be feared or that would result in instability. Rather, they advocated that it would form a logical next step on China’s reform path, and would solve the fundamental problems that imposed such a huge political cost on Chinese society. However, it would soon become clear that these efforts were unsuccessful, as the ideological sphere tightened. By the middle of May, reports appeared that universities had been sent a list of seven topics that could not be discussed in classrooms, including civil society, civil rights, press freedom and universal values30. Lat-er, it would transpire that the Central Committee had issued an internal doc-ument on 22 April 2013, titled “Report concerning the Present Situation in the Ideological Area”, but better known as Document No. 9. This document iden-tified seven acute ideological problems, the first one of which was the propa-gation of Western constitutionalist democracy, and rejecting Party leadership and Socialism with Chinese characteristics. It clearly targeted the intellectual positions taken in the New Year’s messages, indicating: “Western constitution-alist democracy has a clear political connotation and orientation. It includes the tri-partite separation of powers, the multi-Party system, universal suffrage, judicial in-dependence, nationalization of the military and other such matters, it is a bourgeois concept of the State, political model and institutional design. The topic of constitu-tionalist democracy has been around for a long time, and has been played up often re-cently. This mainly manifests itself as: using the commemoration of the 30th anniver-sary of the implementation of the current Constitution to raise the banner of ‘protect-ing the Constitution’ and ‘ruling the country according to the law’, accusing the Par-ty’s leadership of overriding the Constitution, and China of ‘having a Constitution but no constitutionalism’. Some people also use the ‘dream of constitutionalism’ to distort the Chinese Dream of national rejuvenation, saying that ‘constitutionalist democracy is the only way out’, and ‘China should follow the global trend of constitu-tionalism’. The danger of propagating Western constitutionalist democracy lies in setting the Party’s leadership against the implementation of the Constitution and the law, denying Party leadership with Western constitutionalist democracy and abolish-ing the people’s democracy, essentially, this aims to reject our country’s Constitution and the system and principles determined in it, realize a change of banners in the end, and bring the Western political system and model to China.”31

                                                                                                               29 Guo, Shiyou. 2013. “‘Bainiang xianzheng’ de rensihi wuqu.” (“Long-Standing Mistakes in Understanding ‘A Century of Constitutional Governance.’“) Yanhuang Chunqiu 2013/5. Translated: http://chinacopyrightandmedia.wordpress.com/2013/05/09/long-standing-mistakes-in-understanding-a-century-of-constitutional-governance/. 30 Li, Raymond. 2013. “Seven Subjects Off Limits for Teaching, Chinese Universities Told.” South China Morning Post, 10 May 2013. 31 This document was eventually leaked and published in the Hong Kong magazine Mingjing. Central Committee. 2013. “Guanyu Dangqian yishixingtai lingyu qingkuang de tongbao.”

Again, this document dismissed the very concept of constitutionalism whole-sale, denoting it as part of Western political theory that had no place in China, even where the constitutionalist demands completely revolved around Chi-na’s own constitution, making no comparative reference to Western or global norms. Furthermore, this document denounced propagating constitutional-ism as inimical to China’s interests. It also spurred the publication of a swathe of anti-constitutionalist articles, the first and arguably best known was pub-lished in RFM with the title “A Comparative Study of Constitutionalist and People’s Democratic Systems”. In it, Renmin University law professor Yang Xiaoqing differentiated two kinds of constitutional structures. In her view, Western constitutionalism is based on the market economy and private prop-erty, interest group politics with parliamentary representation, separation of powers and judicial independence, as well as politically neutral armed forces. The foundation of the Chinese people’s democracy system, on the contrary, consists of public ownership, the overarching interests of the “broadest num-ber of people”, one governing parties without factions and interest groups, anointed through victory in revolution, no separation of powers or judicial independence but oversight by People’s Congresses, and an army that is loyal to the Party. Yang further argues that there are also non-fundamental aspects to constitutional systems. The latter category includes such as the market, le-gal equality, freedom of speech, parliamentary control over budgeting, inter-national human rights, freedom of religion, federalism, and military interfer-ence in other countries. In contrast to fundamental characteristics, some of these may be absorbed into a Socialist context, enabling Socialist countries to learn from non-Socialist ones. As constitutionalism itself is a fundamental el-ement of the capitalist order, and therefore antagonistic to the people’s demo-cratic system, it cannot be introduced into China’s domestic order, not even through adaptation to Chinese circumstances. Yang also rejects the historical basis for the constitutionalist narrative, by arguing that Mao Zedong had ceased using the term xianzheng even before the establishment of the People’s Republic32. The day after Yang’s article was published, Global Times carried an op-ed that that accused the proponents of constitutionalism of covertly trying to West-ernize China’s political system, but claimed that these efforts were in vain as constitutionalism is an empty concept that is not connected to Chinese reali-ty33. On the 29th of May, an article under the pseudonym Zhengzhixue (郑志                                                                                                                                                                                                                                                                                                                              (“Report concerning the Present Situation in the Ideological Area.”) 22 April 2013. Translated: http://chinacopyrightandmedia.wordpress.com/2013/04/22/communique-on-the-current-state-of-the-ideological-sphere-document-no-9/. 32 Yang, Xiaoqing. 2013. “Xianzheng yu renmin minzhu zhidu zhi bijiao yanjiu.” (“A Com-parative Study of Constitutional Governance and People’s Democratic Systems.”) Hongqi Wen’gao (Red Flag Manuscripts) 2013/10. Translated: http://chinacopyrightandmedia.wordpress.com/2013/06/03/the-chinese-debate-on-constitutionalism-texts-and-analyses-part-i/ 33 Global Times. 2013. “‘Xianzheng’ shi dou quanzi fouding Zhongguo fazhan zhi lu.” (“‘Con-stitutionalism’ Is a Roundabout Denial of China’s Development Path). Global Times, 22 May 2013. http://opinion.huanqiu.com/editorial/2013-05/3957200.html. Translated:

学, a homophone for the Chinese word for political science) appeared in Party Building (Dangjian 党建). According to this article, constitutionalism is a “dis-course trap” against which China must be vigilant. In particular, this article discusses the question whether the word constitutionalism should be used in discussing political reform in China. To this end, it returns to Sun Yat-sen’s writings on modernization. While the article recognizes that Sun’s conception of constitutionalism was progressive at the time it was written, it argues that this was superseded by Mao’s New Democracy and, subsequently, Socialism. Consequently, “‘Constitutionalism’ is a core concept that reflects capitalist econom-ic and political theory and practice, and to be lead by the nose by such a concept would mean that we remove our own ideological weapons.”34 The last two articles in this series appeared in RFM on 13 June. In the first, Wang Tingyou from Renmin University’s School of Marxism argued that con-stitutionalism emerged in tandem with the bourgeoisie in Western countries, as observed in the writings of Marx and Engels. Wang argues that constitu-tionalism therefore is a part of a superstructure conjoined to an economic base of bourgeois capitalism. On whether constitutionalism should be implement-ed in China, Wang argues that it is possible to have a constitution without constitutionalism, and that China is doing so by having a constitution that re-jects Western capitalism. Furthermore, he claims that constitutionalism and democratic politics are not inseparable, as exemplified in Mao’ New Democ-racy. Wang also rejects the idea of Socialist constitutionalism, again pointing to Mao’s dropping of that term in the 1940s. Lastly, he argues that constitu-tionalism and the rule of law are separable, as proved by China’s construction of a Socialist rule of law system35. The second article, by Yu Zhong, was an expanded version of his January piece, which claimed China must develop its own path to follow the Chinese Dream, with cultural self-confidence and re-specting the uniqueness of China’s experience36. Until the publication of Yang’s article, the constitutionalist debate was largely confined to the intellectual environment. However, the virulence of these an-ti-constitutionalist articles, as well as their strong Maoist flavour, spurred lib-eral-leaning intellectuals into action. The day after Yang’s article was pub-lished, Caijing Online republished a 2008 article by the legal scholar Xu Chongde, who had participated in the drafting of both China’s 1954 and 1982 Constitutions. In it, Xu argued that both liberalist thinkers and leftist revolu-

                                                                                                                                                                                                                                                                                                                             http://chinacopyrightandmedia.wordpress.com/2013/05/22/editorial-constitutionalism-is-a-roundabout-denial-of-chinas-development-path/ 34 Zheng, Zhixue. 2013. “Renqing ‘xianzheng’ de benzhi”. (“Clearly Understanding the Es-sence of ‘Constitutional Governance’“). Dangjian (Party Building) 2013/6. 35 Wang, Tingyou. 2013. “Dui xianzheng wenti de yixie kanfa.” (“Some Views on the Issue of Constitutionalism.”) Hongqi Wengao (Red Flag Manuscripts) 2013/11. Translated: http://chinacopyrightandmedia.wordpress.com/2013/06/13/some-views-on-the-issue-of-constitutionalism/ 36 Yu, Zhong. 2013. “‘Zhongguo meng’ yu minzhu zhengzhi daolu de xuanze.” (“‘The Chi-nese Dream’ and the Choice of the Path of Democratic Politics.”) Hongqi Wengao (Red Flag Manuscripts) 2013/11.

tionary extremists negated China’s Constitution. Of these two, he considered the latter more dangerous, castigating them for surreptitiously eliminating the concept of “constitutionalism”, putting China’s constitution on stilts, and blocking the use and implementation of the Constitution by marginalizing it37. Central Party School scholar Cai Xia republished two older articles. In the first, she argued that promoting constitutionalism should be the CCP’s mission in government. In Cai’s view, current CCP ideology has been heavily influenced by its experience of violent revolution, and its failure to adjust to its role as a ruling party. It this failed to lay the foundation for a market economy and democratic politics, but sees people as instruments and denies them the pro-tection of fundamental rights. According to Cai, there are laws of democratic politics that are universal, and cannot exclusively be denominated as capital-ist or socialist. Building a modern political community therefore requires a profound change in CCP thinking and leaving behind thinking patterns asso-ciated with revolutionary violence38. Introducing the second article, Cai de-rides the anti-constitutionalist argument as absurd, she views constitutional-ism as a necessary direction for the development of Chinese socialism.  In this extensive essay, Cai claims that errors in the CCP’s understanding the role of a political party, which directly constrained the building of constitutional in-stitutions and intra-Party democracy. Moving forward, she uses Spain as a case study for democratizing reform. She argues that constitutionalist reforms might create new development spaces for the Party, but this requires the recognition of the fundamental values of democracy and the universality of the laws of democratic politics39. Participation in the debate also came through foreign channels. The Singapo-rean newspaper Lianhe Zaobao interviewed the prominent reformist legal scholar – and signatory of the December open letter – He Weifang. He re-marked that he found the leadership’s position on the question of constitu-tionalism unclear, and that the current political structure was rapidly losing popular support. Concerning the on-going debate, He stated that the leftist, anti-constitutionalist argument contained little intellectual rigour and logic, and they often stooped to the level of blindly cursing their opponents. In He’s view, the support for the anti-constitutionalist side came from decades of brainwashing. Concerning political reform, He declared that the abolition of private property, single party rule, the lack of rule of law and media censor-ship were mistaken, and expressed the hope that the CCP might transform into a North European-style party leaving space for some sort of political competitor40. Shortly after, a website called ImpactChina (yingxiangli Zhongguo

                                                                                                               37 Xu, Chongde. 2013. “Xianzheng shi fazhi guojia yingyou zhiyi” (“Constitutionalism is what Rule of Law Countries Should Be About”), 23 May 2013, http://blog.caijing.com.cn/expert_article-151497-52108.shtml 38 Cai, Xia. 2013, n. 14. 39 Cai, Xia. 2013. “Tuijin xianzheng minzhu guanjian zai Dang zhengjie ye zai Dang.” (“The Key of Moving Constitutionalism and Democracy Forward Lies with the Party, the Obstruc-tion Also Lies with the Party.”) Ai Sixiang, 20 June 2013, http://www.aisixiang.com/data/65005.html. 40 Zhou, Zhaocheng. 2013, n. 15.

wang 影响力中国网), which has since disappeared, posted an article by the le-gal scholar Feng Chongyi and the writer Yang Hengjun, both resident in Aus-tralia. This article accused the anti-constitutionalist writers of being wilful ob-scurantists, while concluding that the rejection of constitutionalism would mean cutting off China’s future prospects41. YHCQ also kept up on the Constitutionalist writing. In its June issue, Zhang Qianfan discussed the Chinese Constitution’s long preamble, which contains an overview of China’s political history, as well as explicit references to Marx-ism and Maoism, Viewing this as an aberration, Zhang proposes that the Massachusetts constitution is taken as an example, which concisely outlines the objective, the form and the nature of government42. In July, Huang Zhong explored the way that Mao Zedong and Liu Shaoqi interacted with the Con-stitution, hinting at the risk of uncontrolled individual power at the top of politics43. The month after, it published an article by CUPL professor Wang Jianxun that claimed the anti-constitutionalist position was based on a Stalin-ist system of concentrated power, which has proven unable to protect the in-dividual and generate a stable legal order. Instead, Wang proposed constitu-tionalism as a system providing horizontal and vertical separation of powers, checks and balances, in order to ensure that individual rights and liberties are protected.44. In a – subsequently deleted – blog post, Zhang Qianfan further accused the anti-constitutionalists of “constitutional nihilism” (宪法虚无主义), who deny the role of the current Constitution, challenge the position of the governing party and destabilize the society. In response, he reiterated his proposal for comprehensive measures to legalize the political structures and create effective mechanisms for constitutional review and rights protection45. This response against the previous wave of anti-constitutionalist articles marked a diversification of viewpoints and tactics, as well as a sharpening in tone. Where earlier constitutionalist articles remained strongly rooted in an agenda within the framework of the current constitution, some writers now

                                                                                                               41 Feng, Chongyi and Hengjun Yang. 2013. “Jujue xianzheng shi duanjue Zhongguo de qi-antu.” (“Rejecting Constutitionalism Is Cutting Off China’s Future.”) Yingxiangli Zhongguo (ImpactChina), 13 June 2013, http://web.archive.org/web/20130619032013/http://www.impactchina.com.cn/ziyouluntan/2013-06-13/28186.html. 42 Zhang, Qianfan. 2013b. “Xianfa xuyan ji qi xiaoli zhengyi.” (“The Controversy on the Pre-amble to the Constitution and Its Effects.” Yanhuang Chunqiu 2013/6. Translated: http://chinacopyrightandmedia.wordpress.com/2013/06/10/the-controversy-on-the-preamble-to-the-constitution-and-its-effects/ 43 Huang, Zhong. 2013. “Xianfa shijiaoxia de Mao Zedong yu Liu Shaoqi.” (“Mao Zedong and Liu Shaoqi from the Angle of the Constitution.”) Yanhuang Chunqiu 2013/7. 44 Wang, Jianxun. 2013. “Xianzheng zhi wo jian.” (My View on Constitutionalism.”) Yanhuang Chunqiu 2013/8. Translated: http://chinacopyrightandmedia.wordpress.com/2013/08/15/my-view-on-constitutionalism/ 45 Zhang, Qianfan. 2013. “Xianfa shishi yu changqi zhizheng.” (“The Implementation of the Constitution and Long-Term Governance.”) ImpactChina, 22 August 2013 (webpage deleted). Translated: http://chinacopyrightandmedia.wordpress.com/2013/08/22/the-implementation-of-the-constitution-and-long-term-governance/.

called for more fundamental institutional and ideological change. Where few explicit connections to foreign legal systems or universal values had been made hitherto, authors now started explicitly discussing constitutionalism as a universal value, and pointed to experiences of constitutionalization else-where. Furthermore, the debate had gone public, as articles and viewpoints were shared through social media, reaching a high point in the early summer. The anti-constitutionalist side further escalated tensions with a second wave of articles in August 2013. Between 5 and 7 August, the People’s Daily Over-seas Edition published three front-page editorials under the name of Ma Zhongcheng, whose affiliation is given as the Research Institute for Maritime Security and Cooperation (Haiyang anquan yu hezuo yanjiuyuan海洋安全与合作研究院) in Hainan. This little-known institute is headed by the hawkish PLA colonel Dai Xu. These editorials respectively argued that: constitutional-ism is a trap, and a weapon of public opinion war that brought down the So-viet Union46; that US constitutionalism enables domination by capitalist-oligarchs, not democracy or rights protection47, and that China does not need Socialist constitutionalism, as its Constitution already stipulates that the all power belongs to the people under the leadership of the Party48. Later that month, Seeking Truth’s website posted two further articles of the institute’s re-searchers. The first alleged that the constitutionalists aimed to destroy the achievements and the spirit of the 18th Party Congress49, while the second dis-cussed how constitutionalism is a US farce, and that the US has too much in-fluence in China’s political system. The suggested response is that the Party enhances its purity and organization, even if the number of constitutionalists is limited to a few hundred, making them a marginal political force50.

                                                                                                               46 Ma, Zhongcheng. 2013. “‘Xianzheng’ benzhishang shi yizhong yulunzhan wuqi.” (“‘Consti-tutionalism’Essentially Is a Weapon of Public Opinion War.”) People’s Daily Overseas Edition, 5 August 2013. Translated: http://chinacopyrightandmedia.wordpress.com/2013/08/07/constitutionalism-essentially-is-a-weapon-of-public-opinion-war/ 47 Ma, Zhongcheng. 2013b. "Meiguo xianzheng de ming bu fushi." ("US Constitutionalism Is Unworthy of the Name.") People's Daily Overseas Edition, 6 August 2013. Translated: http://chinacopyrightandmedia.wordpress.com/2013/08/07/us-constitutionalism-is-unworthy-of-the-name-wang-hailou/ 48 Ma, Zhongcheng. 2013c. "Zai Zhongguo gao suowei xianzheng zhineng shi yuanmuqiuyu." ("Doing So-Called Constitutionalism in China Can Only Be Like Climbing Trees to Catch Fish.") People's Daily Overseas Edition, 7 August 2013. Translated: http://chinacopyrightandmedia.wordpress.com/2013/08/09/doing-so-called-constitutionalism-in-china-can-only-be-like-climbing-trees-to-catch-fish/ 49 Gao, Xiang. 2013. "Xianzheng chao shi dui shibada jingshen de tiaoxin." ("The Wave of Constitutionalism Is a Provokation of the Spirit of the 18th Party Congress."), Qiushi wang (Seeking Truth Online), 19 August 2013, http://www.qstheory.cn/zz/wwtj/201308/t20130819_261266.htm. 50 Zheng, Li. 2013. "'Xianzheng' lilun shi dui Zhongguo gaige de ganyou he wudao" ("The Theory of 'Constitutionalism' Disturbs and Misleads China's Reform"). Qiushi wang (Seeking Truth Online), 20 August 2013, http://www.qstheory.cn/zz/wwtj/201308/t20130820_261787.htm.

These articles became the swansong of the debate. While a few pro- and anti-constitutionalist articles were published in September and October,51, public attention was turned to the Bo Xilai trial and the 3rd Plenum, which would pass a comprehensive reform programme. The online debate was curtailed by a thorough crackdown on social media52. In October, Seeking Truth passed judgment on the pro-constitutionalists, claiming that they seek “to deny and oppose our country’s current Constitution, to press us into conducting the “political reform” they aim for, and their basic objective is that they want to abolish the leader-ship of the Chinese Communist Party and change our country’s Socialist system.” In response, Seeking Truth called for a common ideological basis for the united struggle of the entire Party and the people53. A year after the debate began, He Weifang closed his Weibo account, posting a painting of an ancient poet who retired from government service in disgust of corruption54. In contrast, Seeking Truth’s New Year’s edition contained an article by Chen Jiping, the Party Secretary of the Law Society of China, on constructing the rule of law with Chinese characteristics. In Chen’s view, there is no difference between Party leadership, the popular will, and the public interest, as “safeguarding the authority of the Constitution and the law means safeguarding the authority of the Party and the common will of the people. Guaranteeing the implementation of the Constitution and the law means the guaranteeing the realization of the people’s fun-damental interests55.”

THE DEBATE’S CONTEXT: 2013 IN CHINESE POLITICS

The constitutionalism debate did not originate in a vacuum. Its inception and development were closely tied to the political circumstances in China throughout 2013, which were dominated by the consolidation of the new

                                                                                                               51 Notably, YHCQ’s September issue contained a lengthy feature where different authors ap-proached various questions on implementing the constitution. Du, Daozheng et al. 2013. "Ruhe luoshi ba'er xianfa: Zhuanjia xuezhe zhongrentan." ("How to Implement the 1982 Con-stitution: An Expert Group Talk.") Yanhuang Chunqiu 2013/9. Translated: http://chinacopyrightandmedia.wordpress.com/2013/09/26/how-to-implement-the-1982-constitution-an-expert-group-talk/ 52 Caragliano, 2013, n. 16; Moore, Malcolm. 2014. “China Kills Off Discussion on Weibo after Internet Crackdown.” The Telegraph, 30 January 2014, http://www.telegraph.co.uk/news/worldnews/asia/china/10608245/China-kills-off-discussion-on-Weibo-after-internet-crackdown.html. 53 Seeking Truth. 2013. "Fangu Dang he renmin tuanjie douzheng de gongtong sixiang jichu." ("Seeking Truth: Consolidating the Common Ideological Basis for the United Struggle of the Party and the People.") Qiushi (Seeking Truth) 2013/20. Translated: http://chinacopyrightandmedia.wordpress.com/2013/10/16/seeking-truth-consolidating-the-common-ideological-basis-for-the-united-struggle-of-the-party-and-the-people/ 54 Boehler, Patrick and Laura Zhou. 2013. “Prominent Scholar He Weifang Says 'Goodbye' to Online Debate”, South China Morning Post, 31 December 2013, http://www.scmp.com/news/china-insider/article/1394040/prominent-scholar-he-weifang-says-goodbye-online-debate. 55 Chen, Jiping. 2014. "Tantan fazhi Zhongguo jianshe: Zuexi Xi Jinping tongzhi guanyu fazhi de zhongyao lunshu." (Let's Talk About Building a Rule of Law China: Studying Comrade Xi Jinping’s Important Elucidations on the Rule of Law.") Qiushi (Seeking Truth) 2014/01. Trans-lated: http://chinacopyrightandmedia.wordpress.com/2014/01/12/justice-and-fairness-with-chinese-characteristics-seeking-truth-on-the-rule-of-law/

leadership under Xi Jinping. This is important for two reasons. First, the con-stitutionalist movement came to prominence in the aftermath of the previous leadership transition, a decade before. At his speech commemorating the 20th anniversary of the Constitution, the then newly minted General Secretary Hu Jintao indicated that the Constitution was a legal weapon for safeguarding citizen’s rights. Shortly afterwards, the death under suspicious circumstances of a young man, Sun Zhigang, in police custody led to a wave of protests and claims for constitutional review of the regulations under which Sun had been detained. The State Council abolished these regulations soon afterwards, en-couraging a further surge of grass-roots constitutional activism56. The pro-constitutionalists may have seen the transition – and the period of uncertainty about the new leadership’s direction that usually follows – as an opportunity to reinvigorate this stalled trend. Second, the transition took place in a turbu-lent political climate. Not only had social and political tensions grown, the ar-rival of new media made them more visible. This greatly eroded the leader-ship’s capacity to control the dissemination of factual information and politi-cal opinions. Among both Chinese and foreign observers, the Hu-Wen era had become seen as a lost decade57. The Congress itself had been delayed due to the Bo Xilai affair. Yet, little was known about the personalities and agen-das of the incoming leaders, and the policies they would pursue in office. It is in this environment of uncertainty that the seeds of the constitutionalism de-bate are found, and the deepening contrast between the constitutionalist ar-gument and the Xi administration’s course mirrors a broader direction to-wards stronger Party discipline and social control. In particular, I will look at three important aspects of the debate’s context: the expectations concerning Xi’s political preferences, his immediate efforts to strengthen Party discipline, and the growing prominence of ideology. Before the 18th Party Congress, great expectations awaited China’s new lead-ers, particularly on the reformist side. Xi, like other political climbers, had never made clear political statements that might antagonize other Party heav-yweights. Consequently, his views and the agenda for his new administration remained largely obscure outside of the Party’s inner sanctum, leaving out-side observers to scramble for any available information to help them position themselves after the transition. One particular factor was Xi’s family back-ground, and the heritage left behind by his father, Xi Zhongxun. This was a political moderate who, like Deng Xiaoping, had been purged a number of times, yet had come back to take up successive leadership positions in Guangdong in the early Eighties. He spearheaded the establishment of the Special Economic Zones that would become the drivers of China’s develop-ment. But Xi the elder was not just known as an economic modernizer. He

                                                                                                               56 Hand, Keith. 2009. “Citizens Engage the Constitution: The Sun Zhigang Incident and Con-stitutional Review Proposals in the People's Republic of China,” in Balme, Stéphanie & Mi-chael Dowdle (eds.), Building Constitutionalism in China, Palgrave MacMillan, 221-242. 57 See, for instance, Johnson, Ian. 2012. “China’s Lost Decade.” New York Review of Books, 27 September 2012; Yu, Jie. 2012. Hexie dadi Hu Jintao: Ta rang Zhongguo shiqu shinian (River Crab Emperor Hu Jintao: He Let China Lose Ten Years). Hong Kong: Chenzhong Shuju (Morning Bell Press).

was the only senior leader to vocally defend Hu Yaobang during the latter’s ouster, and opposed the armed response to the Tiananmen protests58. During the constitutionalist debate, an alleged 1986 quote by Xi Zhongxun was circu-lated on social media, which claimed that China had a choice between the path of the rule of law and of an omnipotent government that would maintain a firm grip of the economy and ideology. If the latter was chosen, Deng could not solve the problems of China’s political structure even if he lived to be a hundred59. Later in 2013, Yanhuang Chunqiu would commemorate the 100th anniversary of his birth with a feature on his proposal for a “Law for the Pro-tection of Different Opinions” (butong yijiang baohu fa 不同意见保护法)60. Xi’s family background may have motivated YHCQ’s constitutionalists to push their reform agenda, especially given their strong personal and political links with the reform programme of the 1980s. Another sign that might have spurred the reformists was Xi’s known strong stance against corruption. Xi put anti-corruption into a central point in his first public speech as General Secretary61, and words were turned into action within a matter of weeks. On the same day that Xi made his remarks on the implementation of the Constitution, the Politburo approved eight rules to im-prove the Party’s work style and connect better with the masses. These rules not only mandated shorter meetings and reports, they also ordered officials to lessen the use of official cars, simplify official receptions, decrease the number of foreign trips and the size of officials’ entourages, and strictly obey rules on officials’ housing and remuneration62. These rules, and an austerity drive to reduce conspicuous consumption among government officials, were imple-mented relatively strictly, greatly impacting the market for luxury goods and services. At a January meeting of the Central Discipline Inspection Committee, Xi called for a strengthening of anti-corruption legislation and intra-Party rules to ensure officials and departments would use their powers only within prescribed limits. Power, according to Xi, should be “locked up within a cage of regulations63.” In June, as the constitutionalism debate was hitting its peak, the Standing Committee launched a rectification campaign, called the Party Mass Line Education and Practice Movement (Dang de qunzhong luxian jiaoyu                                                                                                                58 Yu, Pon Hoi. 2012. “What Kind of Leader Will Xi Jinping Be?” American Foreign Policy Inter-ests 35, 295-301. 59 Screenshot on file with author. 60 Gao, Kai. 2013. "Xi Zhongxun jianyi zhiding 'Butong yijian baohufa'" ("Xi Jinping Suggested the Formulation of a 'Law for the Protection of Different Opinions.'"). Yanhuang Chunqiu 2013/12. 61 Xi, Jinping. 2012a. "Zai Changwei jianmianhui shang de jianghua." ("Speech at the Inaugu-ral Meeting of the Standing Committee.") Sina, 15 November 2012, http://news.sina.com.cn/c/2012-11-15/121925587435.shtml. 62 People’s Daily. 2012. “Zhongyang Zhengzhiju zhaokai huiyi shenyi guanju gaijin gongzuo zuo-feng, miqie lianxi qunzhong de youguan guiding.” (“Politburo Convenes Meeting to Deliberate Rules Concerning Improving Work Styles and Closely Connecting with the Masses.”) People’s Daily, 5 December 2012, http://cpc.people.com.cn/n/2012/1205/c64094-19793530.html. 63 Xinhua. 2013. “Xi Jinping: Kexue youxiao fangzhi fubai, jiandingbuyi ba fanfuchanglian jianshe yinxiang shenru.” (“Xi Jinping: Scientifically and Effectively Prevent Corruption, Un-waveringly Deepen Anti-Corruption and Pro-Clean Government Construction.”) Xinhua, 23 January 2013, http://cpc.people.com.cn/n/2013/0123/c64094-20292472.html.

shijian huodong党的群众路线教育实践活动)64. While this campaign had multi-farious objectives, serving to consolidate the leadership’s position, impose discipline and unite the Party for reform, it was presented as a drive to foster popular support for Party rule, which required improving officials’ perfor-mance and reducing abuse. The Party made a great show of the trial of Bo Xi-lai, convicted on a corruption charge, and has since prosecuted and convicted a considerable number of senior officials for bribe-taking and other forms of graft65. The Decision of the 3rd Plenum in November contained an entire sec-tion on measures to strengthen the supervision of power66. In January 2014, it was announced that officials whose spouse resides abroad and officials with too many positions would no longer be eligible for promotion 67. However, while the new leadership might have shared the constitutionalists’ concern about corruption and abuse, it certainly did not co-opt their institu-tional and procedural agenda. One area where this would become clear rapid-ly was ideology. The ideology and propaganda agenda had risen considera-bly in importance in the years running up to the 18th Party Congress, as it was felt that the Party was losing the dominant voice in the public sphere. In par-ticular, the growth of the Internet and social media was identified as a poten-tial source of instability, through the spreading of political rumours, but also the exposure of corruption and malpractice68. By the end of 2012, measures had been taken to bring some control to the social media environment, includ-                                                                                                                64 Xinhua. 2013. “Dang de qunzhong luxian jiaoyu shijian huodong gonzuo huiyi zhaokai, Xi Jinping fabiao zhongyao jianghua.” (“The Party’s Mass Line Education and Practice Move-ment Work Conference Convenes, Xi Jinping Makes Important Speech.”) Xinhua, 18 June 2013, http://news.xinhuanet.com/politics/2013-06/18/c_116194026.htm. Translated: http://chinacopyrightandmedia.wordpress.com/2013/06/19/xi-jinping-launches-party-rectification-movement/ 65 In 2013, 17 officials of vice-minister or higher levels were convicted, while the number of officials punished for corruption in 2013 rose by 5 percent over 2012. Pei, Minxin. 2014. How Xi Jinping Can Sustain His Anti-Corruption Drive. China-US Focus, 16 January 2013, http://www.chinausfocus.com/political-social-development/how-xi-jinping-can-sustain-his-anti-corruption-drive/. For an overview of high-profile cases, see SCMP. 2013. “New Dawn for China? Corruption Crackdown Nets Big and Small Officials.” South China Morning Post, last updated 4 November 2013, http://www.scmp.com/comment/blogs/article/1102978/chinese-officials-behaving-badly 66 Central Committee. 2013b. “Guanyu quanmian shenhua gaige ruogan zhongda wenti de jueding.” (“Decision concerning Some Major Issues in Comprehensively Deepening Reform.”) 15 November 2013. Translated: http://chinacopyrightandmedia.wordpress.com/2013/11/15/ccp-central-committee-resolution-concerning-some-major-issues-in-comprehensively-deepening-reform/, Section X. 67 Central Committee. 2014. "Dangzheng lingdao ganbu xuanba renyong gongzuo tiaoli." ("Work Regulations for Leading Party and Government Cadre Promotions and Appoint-ments.") 15 January 2014. Translated: http://chinacopyrightandmedia.wordpress.com/2014/01/15/work-regulations-for-party-and-government-leading-cadre-promotions-and-appointments/ 68 The 6th Plenum of the 17th Party Congress was exclusively dedicated to diagnosing the situ-ation in the cultural sphere and proposing measures to strengthen control. Central Commit-tee. 2011. "Guanyu shenhua wenhua tizhi gaige de jueding." ("Decision Concerning Deepen-ing Cultural Structural Reform.") 18 October 2011. Translated: http://chinacopyrightandmedia.wordpress.com/2011/10/18/central-committee-of-the-chinese-communist-party-decision-concerning-deepening-cultural-structural-reform/

ing self-policing on the Weibo platform and the introduction of a real-name registration system69. The new leadership intensified its ideological efforts, as exemplified in Document No. 9. Apart from constitutionalists, this contained six other categories of acts deemed harmful to the Party’s undertaking: uni-versal values, civil society, neoliberalism, Western views of news, historical nihilism and challenging the reform programme. Respectively, these were deemed to undermine core pillars of CCP governance: the ideological and theoretical basis for Party rule, its social basis, China’s basic economic system, the principle that the Party manages the media, the history of the CCP and the People’s Republic, and the socialist nature of the reform programme70. These different themes often became interlinked in the Party press, and many of the anti-constitutionalist articles also took aim against other categories identified in the document, and vice versa. At the same time, the new leadership put forward a revised ideological framework, the “Chinese Dream” (Zhongguo meng 中国梦) of the great rejuve-nation of the Chinese nation (Zhonghua minzu weida fuxing 中华民族伟大复兴). Realizing this dream requires a common ideological basis for the united struggle of the Party and the people71, self-confidence about China’s socialist path, theory and system, and the consolidation of Marxist thought in CCP ideology72. However, as the constitutionalism debate deepened, the leader-ship’s tone became more confrontational. In the middle of August, Xi gave a secret speech at a nationwide conference on propaganda and ideology, in which he asserted that the Party found itself in a “public opinion struggle” (yulun douzheng 舆论斗争), and that it was necessary to “unsheathe the sword” (liangjian 亮剑) against hostile forces propagating universal values73. Immedi-ately after this conference, a crackdown against social media began, exempli-

                                                                                                               69 So far, the latter has not been strictly implemented. See also Creemers, Rogier. 2014. “The Privilege of Speech and New Media: Conceptualizing China’s Communications Law in the Internet Age.” Paper presented at the conference “New Media, the Internet and a Changing China”, University of Pennsylvania, Philadelphia, 23-24 January 2014. 70 Central Committee. 2013a. “Guanyu Dangqian yishixingtai lingyu qingkuang de tongbao.” (“Report concerning the Present Situation in the Ideological Area.”) 22 April 2013. Translated: http://chinacopyrightandmedia.wordpress.com/2013/04/22/communique-on-the-current-state-of-the-ideological-sphere-document-no-9/ 71 Seeking Truth, 2013b, n. 52. 72 Seeking Truth. 2013a. “Fangu Makesizhuyi zai yishixingtai lingyu de zhidao diwei.” (“Consolidate the Guiding Position of Marxism in the Ideological Area.”) Qiushi (Seeking Truth) 2013/19. Translated: http://chinacopyrightandmedia.wordpress.com/2013/10/04/seeking-truth-consolidate-the-guiding-position-of-marxism-in-the-ideological-area/ 73 An outline of the speech was later leaked and published on the China Digital Times website. Xi, Jinping. 2013. “Yanlun fangmian yao gan zhua gan guan ganyu liangjian.” (“We Must Dare to Grasp, Dare to Manage and Dare to Unsheathe the Sword in the Area of Public Opin-ion.”) China Digital Times, 4 November 2013, http://chinadigitaltimes.net/chinese/2013/11/网传习近平 8•19讲话全文：言论方面要敢抓敢管敢/. Translated: http://chinacopyrightandmedia.wordpress.com/2013/11/12/xi-jinpings-19-august-speech-revealed-translation/. On the concept of public opinion war, see Qian, Gang. 2013. “Parsing the ‘Public Opinion Struggle’.” China Media Project, 24 September 2013, http://cmp.hku.hk/2013/09/24/34085/.

fied by a Supreme People’s Court decision to imposed jail sentences on the dissemination of defamatory and untrue information that harmed the nation’s image, if retweeted more than 500 times74. Furthermore, domestic journalists were obliged to take training courses, to improve their understanding of Marxism75, while certain foreign journalists and media outlets faced harass-ment and rejection of visa applications after publishing reports about the pri-vate wealth of senior officials and their families. Ironically, only days after Xi’s August speech, Xu Zhiyong, an activist campaigning for transparency on officials’ assets was arrested, and later convicted to four years in prison76. Xi Jinping has often been compared to Deng Xiaoping, and the new leader-ship has certainly remained faithful to Deng’s central political dicta. This be-came clear in the anti-corruption movement and the media crackdown that formed the context for the constitutionalism debate. First, the Party rectifies its own mistakes. While the documents concerning the anti-corruption cam-paign consistently reference the need to connect closely with the masses, few institutional means for citizens to provide input into this process have been created. Civil society, which might provide means of external oversight, has been explicitly marked as harmful by the leadership, and derided as inferior to a model in which “the government and the masses are unified77.” Equally, the social media that brought innumerable cases of abuse and venality to light was rapidly muzzled. Rather, the power to initiate and control proceedings against Party officials remains with the Party’s own disciplinary inspection committees, and are this subject to complex intra-Party politicking78. Second, the Party must maintain ideological and political dominance. This is exempli-fied as the refusal to substantively engage with the arguments put forward by the constitutionalists, and their subsequent tarring as harmful to the state, as well as by the neutering of the raucous online political debate. Underlying

                                                                                                               74 Supreme People’s Court. 2013. “Guanyu shenli bianzao, guyi chuanbo xujia kongbu xinxi xingshi anjian shiyong falü ruogan wenti de jieshi.” (Interpretation concerning Some Ques-tions of Applicable Law in Hearing Criminal Cases of Fabrication and Wilful Dissemination of False and Terrorizing Information.”) 18 September 2013. Translated: http://chinacopyrightandmedia.wordpress.com/2013/09/18/3032/. For a detailed over-view of the crackdown, see Creemers, 2014, n. 67. 75 Chin, Josh. 2013. “Mass Re-Education for China’s Reporters.” Wall Street Journal, 18 Decem-ber 2013, http://blogs.wsj.com/chinarealtime/2013/12/18/mass-re-education-for-chinas-reporters/. 76 A number of other activitsts in Xu’s organization, the New Citizens’ Movement, were later arrested jailed as well. Kalman, Jonathan. 2014. “China Jails Four More New Citizens Move-ment Activists.” Guardian, 18 April 2014, http://www.theguardian.com/world/2014/apr/18/china-jails-new-citizens-movement-activists. 77 Hu An’gang. 2013. “Renmin shehui weihe youyu gongmin shehui.” (“Why a people’s soci-ety is superior to civil society.”) People’s Daily Overseas edition, 19 July 2013, http://paper.people.com.cn/rmrbhwb/html/2013-07/19/content_1270853.htm. 78 Unsurprisingly, this has led to allegations that certain officials have been purged in order to make way for Xi loyalists. Lim, Benjamin Kang and Megha Rajagopalan. 2014. “China’s Xi Purging Corrupt Officials to Put Own Men in Place.” Reuters, 17 April 2014, http://www.reuters.com/article/2014/04/17/us-china-corruption-xi-insight-idUSBREA3F1UT20140417.

both these objectives is the assertion that the initiative for politically relevant acts must remain within the control of the Party. In short, 2013 saw a re-trenchment of the governing paradigm, as the leadership reasserted unity and discipline in the aftermath of the 18th Party Congress. The classic Dengist combination of political stability and economic reform has remained, and bold measures in the latter area were announced at the 3rd Plenum in Novem-ber 2013. However, even thought the constitutionalism debate had little im-mediate effect with regard to reform, the contrast between both sides pro-vides instructive ideas and concepts that may assist us in more accurately un-derstanding China’s legal and political order, and conceiving scenarios for future reform. In particular, it provides a case in which the Party has vehe-mently resisted calls for institutionalization of particular procedures and mechanisms, providing more insight in how the leadership attempts to navi-gate the tension between agility and institutions.

IMPLICATIONS AND CONCLUSIONS One preliminary question concerns the extent to which the anti-constitutionalist articles reflect the Party leadership’s official position. On the one hand, these articles have mainly been published in subordinate media outlets, indicating a lesser degree of authority79. Equally, it seems unlikely that the leadership would express its point in the classic socialist jargon used in these publications. However, on substantive points of content, there was a high degree of congruence between official discourse and the anti-constitutionalist article. Both Document No. 9 and Xi Jinping’s August speech reflected the basic elements of the anti-Constitutionalist argument: rejection of universal norms and foreign influence on Chinese politics, a strong stress on nativist exceptionalism and the unique nature of the Chinese polity, and a fundamental assumption only the Party has the ideological-theoretical and organizational means to achieve the lofty goals of modernization and devel-opment80. Related articles in the Party press discussed the risks that relin-quishing this monopoly would bring, with special reference to the fate of the Soviet Union. These provide valuable insights as to why the constitutionalist proposals were rejected with such vehemence. The 2012 open letter and further constitutionalist articles called for stronger institutional and procedural means to rationalize relationships between the Party and the state, between different state bodies, and between the state and citizens. These appeals were framed as gradual steps that could be taken within the existing political structure, as logical implications of the text of the Constitution. The official response, however, did not see these proposals as gradual, but as harmful ideas that struck against the very core of the govern-ing order. To be sure, the reasoning and argumentation in the government

                                                                                                               79 Fewsmith, Joseph. 2013. “Debating Constitutional Government.” China Leadership Monitor 42; Qian, 2013b, n. 71. 80 On the evolution of ideology since Xi’s accession, see Minzner, Carl. 2014. “Old Wine in an Ancient Bottle: Changes in Chinese State Ideology.” China Brief 14(6).

documents and anti-constitutionalist articles was generally simplistic, super-ficial or disingenuous. Still, beneath the rhetoric, they evince an acknowl-edgement that permitting the development of independent or external means of oversight, mandatory transparency and recognition of civil and political liberties would greatly reduce Party power, and fundamentally upset the practices and processes by which politics are currently conducted. Fragment-ed as the CCP might be, it has developed an organizational culture that has, so far, maintained a degree of internal unity, discipline and flexibility that has been sufficient to accomplish the basic requirements for survival: preventing the emergence of external organized opposition and generating the resources required for co-opting essential and emerging interests. This culture is, how-ever, incompatible with notions of transparency, consistency and rules-based ordering that the constitutionalist proposals imply. Equally, strong protection for civil rights would mean a considerable transfer of power from the political system to citizens, something that has been assiduously avoided so far81. In other words, accepting the implications of constitutionalism would reveal or render impossible the – often less than palatable – means by which the Party has been held together, and maintained economic, social and political control. The anti-constitutionalist position thus reflects a continuing refusal to accept a role for law in structuring the foundations of China’s political edifice. The concept of law as a relatively autonomous sphere that constrains the exercise of state power through the juristic application of general norms and principles is eschewed in favour of an approach in which law serves as a tool to realize a teleological programme that requires concentration of state power82. This does not imply that law plays no role at all, as evidenced by the continuing development of legal and regulatory structures in various areas of govern-ance. Equally, this does not suggest that no legal claims can be brought against agents of the state, as opposed to the state itself. It does mean, howev-er, that law is considered as one among many political instruments that can be used to achieve desired outcomes and coordinate actors’ activities. This conclusion has several implications for the study of Chinese law and pol-itics. First, the formal and procedural virtues that Peerenboom identified as constitutive elements of a thin form of rule of law were explicitly rejected in the constitutionalism debate, at least insofar they bear on fundamental ques-

                                                                                                               81 He Xin discusses how rights-based, constitutional claims are often recast administrative or disciplinary rules, implemented through state departments. This implies that, even in cases where the substance of particular claims is recognized, the notion of citizens’ fundamental individual entitlement against the state is rejected. Rather, they are translated into enhanced obligations for the state’s agents. He, Xin. 2009. “Administrative Law as a Mechanism for Po-litical Control in Contemporary China,” in Balme, Stéphanie & Michael Dowdle (eds.), Build-ing Constitutionalism in China, Palgrave MacMillan, 143-161. 82 Political and legal commentators have suggested that one precondition for the emergence of a law-based public order is the coexistence of multiple, autonomous and relatively bal-anced nodes of power, where some form of externalized norms of coordination is required. At least since the establishment of the People’s Republic, such conditions have not been pre-sent in China. See, for instance, Loughlin, Martin. 2010. Foundations of Public Law. Oxford: Ox-ford UP.

tions of the architecture of Party and state power. Consequently, the separa-tion between formal and substantive aspects of law is less informative in ex-plaining China’s legal idiosyncrasies than identifying different spaces in which law is given rein in setting norms and influencing behaviour, as op-posed to other policy tools. In other words, scholarly models of Chinese law would gain more explanatory power if they would explore the areas where, and the circumstances wherein formal and procedural elements are realized. This would allow us to develop a more grounded paradigm of Chinese law, and therefore – on the assumption that change within a paradigm is more likely than a revolutionary paradigm shift – more informative theories of le-gal reform. Second, it is necessary to move the State back to the centre of the analysis. Through the lenses of popular constitutionalism and emerging rights consciousness, many observers have focused on social actors as foun-tainheads of political change, for instance through activism such as the post-Sun Zhigang legal reform campaigns and initiatives such as Charter 08. Yet in no single case has social activism resulted in durable and tangential institu-tionalization of constitutionalist norms and procedures, and overly ambitious activists are usually defeated. In fact, even in the Sun Zhigang case, the regu-lations at issue had been criticized within the state for years before83. The in-cident might thus have sped up a decision-making process already underway within the State, rather than signify the influence of non-state actors. In this sense, China remains a characteristically Leninist state, albeit a profoundly fragmented one. Perhaps a more useful angle to study the development of public order and its reflection in law would therefore be the different posi-tions taken by institutions that are part of, or connected to the State. Third, the law’s lack of autonomy means that the use of legal means to influence behav-iour and generate outcomes contains an element of choice, often between maintaining agile flexibility and creating predictability or stability through institutionalization. Analysing the way these choices are made, may help us understand China's turn against law and the internal logic of the system, and also speaks to the question of resilience. Perhaps the question of resilience is not best understood as a juxtaposition of flexibility and institutions, but as the outcome of a continuous complex process of calculation within different parts of the Party and State to decide which one would serve best the overarching political objectives of maintaining power, social stability and economic devel-opment. This, in turn, requires not only insight into central-level politics and policies, but also a nuanced understanding of how departmental or local ac-tors aim to balance conflicting national, departmental, programmatic and per-sonal objectives. Lastly, particularly in legal research, little attention has been paid to the CCP, its ideology, organization and theory. And yet, we ignore the Party at our peril. It is in the Party Constitution that we find many of the sub-stantive norms and epistemological claims that give meaning to the terminol-ogy in which law is conceived and discussed84. Its social science research poli-                                                                                                                83 Becquelin, Nicolas. 2003. “Enforcing the Rural – Urban Divide: Use of Custody and Repat-riation Detention Triples in 10 Years.” Human Rights in China, 23 February 2003. http://www.hrichina.org/en/content/4682. 84 CCP. 2012. “Constitution of the Communist Party of China.” Last revised 14 November 2012. http://news.xinhuanet.com/english/special/18cpcnc/2012-11/18/c_131982575.htm

cy clearly outlines objectives and means for legal reform85. Institutions such as the Central Party School, as well as organizations under its influence such as the Law Society of China, have an important function in the study of law and the training of legal professionals. Long-standing Party doctrines, such as the notion of contradictions86, are indispensible in comprehending the way in which problems are framed and political solutions proposed. And ultimately, the survival of the Party is perhaps the most fundamental norm of Chinese law and politics. Therefore, understanding how it comprehends and tackles challenges and threats to that power is indispensible in conceiving and evalu-ating possible future scenarios.

                                                                                                               85 Central Committee. 2004. "Guanyu jinyibu fanrong fazhan zhexue shehui kexue de yijian." ("Opinion concerning Further Letting Philosophy and Social Sciences Flourish and Develop.") 20 March 2004. Translated: http://chinacopyrightandmedia.wordpress.com/2004/03/20/ccp-central-committee-opinion-concerning-further-letting-philosophy-and-social-sciences-flourish-and-develop/ 86 This doctrine holds that social conflicts either occur among the people or between the ene-my and the people. In the former case, these can be dissolved through diligent study, while in the latter case, struggle is necessary. It was developed by Mao in the 1930s, and its continuing importance was referenced in a recent People’s Daily editorial. People’s Daily. 2013. “"Zhenque kandai gaige kaifang qianhui liangge lishi shiqi." ("Correctly Deal With Both His-torical Periods Before and After Reform and Opening Up."). People's Daily, 8 November 2013. Translated: https://chinacopyrightandmedia.wordpress.com/2013/12/26/correctly-deal-with-both-historical-periods-before-and-after-reform-and-opening-up/.