Brang, Lucas
(2021).
Conceptual realism and imperial nostalgia in Chinese legal historiography.
International Journal of Constitutional Law, 19 (1).
pp. 328-342.
Oxford University Press.
ISSN 1474-2640
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Abstract
In this review essay, I discuss two recent trends in Chinese constitutional theory and their influence on the field of legal historiography. The first of these trends is a methodological turn toward “conceptual realism.” This notion implies that legal concepts should be able to adequately capture political reality, lest they (1) end up eroding China’s illiberal political status quo — the neo-conservative agenda — or (2) fail to identify the deep-seated reasons for the repeated failure of liberal constitutionalism in modern China — the critical-liberal agenda. Terminologically, this realist turn manifests itself in a set of conceptual binaries, including that of “state body” (guoti 國體) vs. “form of government” (zhengti 政體), “absolute constitution” vs. “constitutional law,” and “political” vs. “normative constitution.” The second trend is a broader shift toward historicism and “imperial nostalgia,” that is, the belief that, for better or for worse, the structural features of China’s pre-modern imperial state continue to impact its present constitutional reality. A review of recent Chinese literature suggests that — while there is some agreement among “conceptual realists” on the legal-territorial implications of China’s modern transition from empire to nation-state — there is substantial disagreement on the reasons for its subsequent failure to consolidate liberal constitutional democracy. This also indicates that, while “statism” has indeed emerged as a new methodological consensus in Chinese academia, this consensus does not translate into a shared normative vision beyond the undisputed territorial unity of the Chinese nation-state. The discussion focuses on two books: Gao Quanxi, Zhang Wei, Tian Feilong, Xiandai zhongguo de fazhi zhi lu [The Road to the Rule of Law in Modern China] (2012); and Zhang Yongle, Jiu bang xin zao: 1911-1917 [The Remaking of an Old Country: 1911-1917] (2016).
| Item Type: | Journal Article | ||||||||
| Creators: |
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| URN: | urn:nbn:de:hbz:38-503138 | ||||||||
| DOI: | 10.1093/icon/moab012 | ||||||||
| Journal or Publication Title: | International Journal of Constitutional Law | ||||||||
| Volume: | 19 | ||||||||
| Number: | 1 | ||||||||
| Page Range: | pp. 328-342 | ||||||||
| Date: | 29 April 2021 | ||||||||
| Publisher: | Oxford University Press | ||||||||
| ISSN: | 1474-2640 | ||||||||
| Language: | English | ||||||||
| Faculty: | Faculty of Arts and Humanities | ||||||||
| Divisions: | Faculty of Arts and Humanities > Fächergruppe 4: Außereuropäische Sprachen, Kulturen und Gesellschaften > Ostasiatisches Seminar | ||||||||
| Subjects: | Political science Law Geography and history |
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| Refereed: | Yes | ||||||||
| URI: | http://kups.ub.uni-koeln.de/id/eprint/50313 |
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