International Journal of Constitutional Law Advance Access originally published online on March 16, 2009
International Journal of Constitutional Law 2009 7(2):215-246; doi:10.1093/icon/mop001
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Constitutionalism with Chinese characteristics? Constitutional development and civil litigation in China
* Program Officer and Advisor to the President, Open Society Institute. Adjunct Professor of Law, Fordham University Law School. A version of this article will also appear in a forthcoming collection of essays on Chinese law, entitled CHINESE JUSTICE: CIVIL DISPUTE RESOLUTION IN CONTEMPORARY CHINA (Margaret Woo, Mary Gallagher & Merle Goldman eds., Harvard Univ. Press 2009). Email: tkellogg{at}sorosny.org
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Abstract |
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For decades, the Chinese Constitution has been thought to lie outside judicial purview, as its basic rights provisions have been more or less ignored. For that reason, many outside observers have assumed that constitutional development in China is at a standstill. Nonetheless, in recent years, a number of Chinese lawyers, academics, and activists—pushing for a more active judicial role—have been challenging standard assumptions about the Chinese Constitution. Taking antidiscrimination litigation as a key example, this article describes the impetus inside China for constitutional development and delineates the state's response. While state actors often ignore constitutional claims publicly, they may still respond to the underlying substantive issues raised by would-be reformers. The author argues that, although such efforts have had limited impact on the formal constitutional structure, nevertheless, they have had a positive effect on the public's rights consciousness.