Chinese constitutionalism
The Law School's China Law Center held a conference in Beijing May 7-8, in conjunction with Peking University Law School, that brought together leading Chinese legal scholars and government officials to discuss "Constitutional Review and the Future of Chinese Constitutionalism."
The concept of constitutional review has been established in the United States since the 1803 Supreme Court case Marbury v. Madison, explains Paul Gewirtz, the Potter Stewart Professor of Constitutional Law at Yale and director of the China Law Center. In China today the issue is so controversial that the word for "constitutionalism" isn't supposed to be printed in newspapers, he notes.
Nonetheless, reform-minded scholars, lawyers and activists in China have begun to make constitutional arguments in lawsuits, articles and petitions, despite the lack of any government institution to enforce the Chinese constitution. The Chinese government has recently recognized the constitution in several ways, including by creating a commission with some power to review local laws for constitutional compliance.
"There are these small developments bubbling up in China," says Gewirtz. "The situation seems to be potentially in flux."
The discussions at the May conference "were completely fascinating and remarkably open," Gewirtz says, "focusing not only on what sort of constitutional review would be ideal for China, but what mechanisms might practically be implemented in the next few years."
Jeffrey Prescott, a China Law Center fellow based in Beijing, describes why such discussions are inherently sensitive in China: "Constitutional reform raises fundamental questions in China about the role of the government and of the Party. ... In recent years there have been few public opportunities in China to discuss these issues, so I think participants on the Chinese side found the workshop valuable to push forward debate about constitutional reform."
Five other non-Chinese participants traveled to China with Gewirtz. They were Yale Law School scholars Drew Days, the Alfred M. Rankin Professor of Law, and Paul Kahn, the Robert W. Winner Professor of Law and the Humanities; Stephen Holmes, a law professor at New York University; Dieter Grimm, a former justice of the Federal Constitutional Court of Germany; and Olivier Dutheillet, a member of the Constitutional Council of France.
Gewirtz says it was particularly helpful that the participants represented three different models of constitutional review, rather than just the American system. The German system has a specialized constitutional court, with fixed terms for judges. In France, constitutional review is triggered by the political system, and the review is more closely tied to the political process. The merits and disadvantages of each approach came up during the conference, notes Gewirtz.
The experts from outside China provided advice and insights, but aimed primarily to help the Chinese develop their own ideas and approaches. Gewirtz says he was pleased that all of the non-Chinese participants had extensive practical experience with how constitutional review works in their countries, since the Chinese have no direct experience with it.
The discussion at the conference covered theory, pragmatism and advocacy. For example, the National People's Congress (NPC) officially has the power to interpret the constitution, and the conference participants talked about whether to advocate for a committee under the NPC to take up constitutional review or whether to push for judicial review instead. Some saw the committee approach as more practical, while others felt it could never be independent enough. They also discussed what sorts of arguments in favor of constitutional review could be persuasive to China's leaders.
Gewirtz emphasizes that constitutional review is more than a topic for scholars to debate, since it is a key mechanism for advancing individual rights, such as the right to property and the right to free expression.
The primary Chinese organizer of the conference was He Weifang, a professor at Peking University Law School and a leading legal scholar in China. Gewirtz gives him much of the credit for the open discussion at the conference. "He's very outspoken," said Gewirtz. "And he's outspoken in a way that invites others to debate."
The China Law Center and He Weifang plan to put together a book of papers and discussions from the conference, hoping to build a broader understanding of what constitutional review could contribute to China. The China Law Center and Peking University Law School will also sponsor a series of lectures and roundtable discussions with policymakers and scholars in China on free expression and the value of free speech to society.
-- By Jonathan Weisberg, Yale Law School
T H I S
W E E K ' SS T O R I E S
Team creates blood test for 'silent killer'
University marks 100 years of 'Pomp and Circumstance'
Yale scientist featured in new stamp series
Twelve honored for strengthening town-gown ties
ENDOWED PROFESSORSHIPSTwo appointed to Sterling chairs
R. Howard Bloch: French and Medieval Studies
Ian Shapiro: Political science and YCIASRomano named Ruebhausen Professor
Waxman is appointed to Flaherty chair
Dr. State has been designated Harris Assistant Professor . . .
Krauss named to second term at Silliman
Researchers discover virus' potential to target and kill deadly brain tumor
Yale professors endow teaching and research fund in the history of science
Study shows, when it comes to fish genitalia, size has pros and cons
Two Yale scientists honored with election to the NAS
Six Yale affiliates elected fellows of scholarly society
Beijing conference explored Chinese constitutionalism
New scholarship will help nurture future activist ministers
Yale-IBM computer facility formally dedicated
REUNIONSAlumni will gather for talks, tours and other special events
Library exhibit celebrates the accomplishments of the Class of '55
Medical school reunions feature talks on cutting-edge research
Yale launches research on lung cancer . . .
Workshop will explore technology's power to capture . . .
Show features artist's colorful depictions of 'Northern Shores'
Glen Micalizio wins Beckman Young Investigator award . . .
IN MEMORIAMBenjamin Mordecai: Drama school teacher and Broadway producer
Memorial service to honor South African historian Leonard Thompson
Campus Notes
Bulletin Home|Visiting on Campus|Calendar of Events|In the News
Bulletin Board|Classified Ads|Search Archives|Deadlines
Bulletin Staff|Public Affairs|News Releases|
E-Mail Us|Yale Home