CRITICAL PERSPECTIVES ON PUBLIC LAW
Panel formed with individual proposals.
Constitutional law knowledge in China has suffered aberrance recently: the extent of studies narrowing, normative awareness weakening, the core concept of constitutionalism replaced, and constitutional professionalism losing. This paper asks how and why these changes have occurred. By adopting the power-knowledge approach, we examine the discipline of political power on constitutional scholarship and the constitutional discourse produced thereby. After the founding of the 1982 Constitution, the reformer wing of power brought out immature but true discourse towards constitutionalism. During marketization, the professionalized but isolated constitutional scholarship produced the normative constitutional discourse as the single storm within the teacup. The New Era significantly sees a de-normalizing counterfeit Xian'zhi pursued. The explanation offered in this paper also helps us comprehend how constitutional faith can be defended or destroyed in transitional societies.
Suppose that an authoritarian regime wants to make changes to legal norms or institutions to consolidate its hold on political power. Suppose further that the regime cannot ignore the domestic or international costs of doing so, and that it has an interest in responding to critiques of these changes based on liberal democratic norms and the rule of law. How can it do so? One approach is to sow confusion and undermine the normative standards themselves – to “gaslight“ the domestic or international audience (or both). To that end, a regime might assert that the change it proposes resembles a “best practice“ from another jurisdiction. Such emulation need not be thorough, or even sincere - it may suffice simply to assert that a proposed change resembles that in another jurisdiction. Gaslighting need not succeed in deceiving outsiders or subjects - undermining standards by which legal reforms are measured, sowing confusion, or providing a superficial pretext for inaction may be sufficient.
One of the political-symbolic functions of the Brazilian constitution is notoriously an alibi for the future fulfillment of the program outlined in its text, as Marcelo Neves has well observed. In this perspective, the hope of a future fulfillment of the constitutional norm continually fuels the desire for inclusion of the citizen in the system. However, in recent years, a large number of Brazilian subintegrates have observed that this expectation has not been and will not be met. Worse, the alibi served only to support the maintenance of elites in power. Evidently, an exploration of the legal system by the politician. As a result, as the lack of normative implementation of the constitution is increasingly observed, society's distrust in the state intensifies. In an environment of growing feeling of lack of representation in the political class on the part of citizens, this ended up displacing a significant portion of society to the illiberal field.
The times of neoliberal globalisation compel Constitutional Law to reflect on itself. This exercise will show that what has been understood as the universal conception of Constitutional Law is just a Eurocentric one: It has been constructed out of the internal history of European Nation-states & their struggle against absolutism and totalitarianism. But there has been another body of constitutionalism that emerged in the context of modern colonialism: a) The norms in the constitutions of European Empire-States regarding colonies - b) the law used to rule over colonies by, among others, the Spanish Empire (Derecho Indiano) or by the British East India Company (British Colonial Law) - c) the Declarations of Independence & the constitutions enacted by former colonies in the Americas in the 19th century, & d) the constitutions of African & Asian ex-colonies adopted as a result of decolonisation in the 20th century. Constitutions have to do with colonialism, enforced it and emerged from it.