Abstract:The intense reception of Carl Schmitt’s writings among Chinese constitutional theorists is one of the more striking phenomena within the globalisation of constitutional thought in recent decades. This article approaches it from two angles. First, the reception of Schmitt and the subsequent debates about his oeuvre and persona are interpreted as performative practices in which Schmitt soon emerged as both the bête noire of a liberal-leaning constitutional scholarship and an object of romantic projection for avant-garde theoretical endeavours. Engagement with Schmitt thus crucially contributed to the emergence of both a neo-conservative and a critical-liberal sensibility among Chinese legal scholars. Second, with the rise of what is known in China as Political Constitutionalism in the mid-2000s, Schmitt also began to exert a more substantive terminological and conceptual influence on Chinese constitutional theory more generally, leaving his imprint on some of its fundamental theoretical binaries. Looking at the Chinese debate on Schmitt, therefore, not only grants us a unique glimpse into how constitutional debates are structured and evolving in contemporary China, it also demonstrates the often-unexpected trajectories of conceptual migration in the global age.

Political constitutionalism emerged on the Chinese academic scene in the mid-2000s as a countermovement to the rights-based, court-centered, and textual mainstream in Chinese constitutional scholarship. On the surface, it has launched a biting and sophisticated critique of academic and institutional Westernization and reasserted a sense of Chinese constitutional particularity. However, contrary to its intellectual self-representation as a genuinely Chinese phenomenon, the movement’s academic formation, methodological agenda, and theoretical vocabulary are inseparable from global ideological trends and draw heavily on European and American precedents. Consequently, the movement is troubled by a set of performative contradictions. These include the contradiction between its transnational genealogy and nationalist agenda; its pluralist theoretical makeup and anti-pluralist political rhetoric; as well as its putatively value-neutral sociological methodology and the politically selective application of said methodology. These antinomies, I argue, speak to the recurring dilemmas of “national” self-assertion in a globalized world.

In Chinese constitutional debates of the past decade, two intellectual trends stand out. The first we might call a turn toward "conceptual realism." Its implications are twofold: First, rather than lamenting the ostensible failure of political reality to live up to liberal constitutional precepts, this liberal conception itself should be revised. A kind of semantic coping strategy, this entails the more or less radical de-formalization of the term "constitution." Any constitution worthy of its name, then, must speak to the ineluctable facts of "real politics," however discouraging they may seem-auctoritas non veritas facit legem. Second, this "effective" or "living" constitution ought to be the sole conceptual benchmark for jurisprudential debates, lest the organic partystate be "corrupted" by a false legal formalism. Since the mid-2000s, prominent Chinese jurists have thus come to endorse a concept of constitution that refers not to a particular piece of legislation or written document, but rather a set of foundational institutions and political decisions which supposedly uphold the body politic and express its juridical will. 1

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