Thursday, August 10, 2023

Alec Stone Sweet and Trevor Wan on Global Constitutionalism and the People’s Republic of China: Dignity as the “fundamental basis” of the Legal System? (International Journal of Constitutional Law)

"Global constitutionalism and the People’s Republic of China: Dignity as the “fundamental basis” of the legal system?"
Alec Stone Sweet, Trevor T W Wan
Published:22 May 2023
Abstract: The People’s Republic of China has declared dignity to be a foundational norm of its legal system, as institutionalized through a suite of constitutional and legislative reforms. Indeed, the 2017–21 period saw the adoption of some of the most far-reaching statutes in the history of the PRC, the centerpiece of which is the new Civil Code (2021). In both structure and content, provisions of the Civil Code comprise a quasi-constitutional charter of rights. Indeed, many Chinese scholars do treat the Civil Code as such, developing sophisticated constitutional theory along the way. At the core of these claims is dignity, which occupies a prominent position within the Civil Code, and from which a host of additional rights, including unenumerated rights, can be derived. After situating these developments in light of global constitutional practice, we examine the emergence of dignity as an officially sanctioned commitment device, and analyze the pertinent scholarly discourse, structure, and content of the new Civil Code, and the various roles that the Communist Party of China, the National People’s Congress, and the Supreme People’s Court are expected to perform in supervising the work of the judiciary in operationalizing the Civil Code. We conclude that while the PRC has not fully embraced the dignity norm in the way other constitutional systems have, it has nonetheless permitted significant discursive debates that deserve to be analyzed comparatively.

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