Conceptual realism and imperial nostalgia in Chinese legal historiography

Abstract

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