Written and Unwritten Constitutions: A New Approach to the Study of Constitutional Government in China

Abstract

Criticizing the formalism in China’s constitutional studies over the past 30 years and following an empirical-historical perspective to deal with the dilemma of representation and practice, the author argues that both a written constitution and an unwritten constitution are basic features of any constitutional system, and China’s constitutional order can only be understood if China’s unwritten constitution is taken into account. Selecting four important constitutional issues (the relationship between the Chinese Communist Party and the National People’s Congress; the position of state chairman and the trinity system of rule; the relationship between the center and localities; and the constitutional structure of “one country two systems”), the author explores four sources of China’s unwritten constitution—the party’s constitution, constitutional conventions, constitutional doctrine, and constitutional statutes—and calls for taking into account China’s unique political tradition and reality to enrich current constitutional scholarship.