Editor’s note: This is part two of an interview with Tian Lei on China’s constitutional system. Part one, on the history of Chinese constitutionalism and the relevance of a “China model” of jurisprudence, can be found here.

Cai Yineng: In your work on the Chinese Constitution, you emphasize the importance of “space.” Why is space so important to understanding China’s constitutional system?

Tian Lei: China scholars often encounter a problem. To borrow a line from the American sinologist Kenneth Pomeranz: Why is China so big? It encompasses a vast territory, inhabited by a complex mix of populations and cultures, with large regional development imbalances.

Today, it’s easy to take China’s convenient interprovincial transportation for granted, but back in my Ph.D. days in the mid-2000s, things were totally different. I once chatted with a visiting scholar from the United States, who said that, in his home country, it was possible for a package to be sent anywhere in the country and arrive at its destination within one day. What I found so remarkable about this story was that the U.S. is a federation, but in many regards, its internal uniformity is greater than China’s. Later, my experiences studying in the U.S. only confirmed this impression. The SIM card that I bought in the state of New York could be used normally in other states — whereas China’s three major carriers only abolished interprovincial roaming fees in 2017.

As a result, I tend to think the traditional dichotomy between federations and “unitary states” is oftentimes more misleading than illuminating. And the past few years have seen Chinese and overseas scholars in fields as varied as law, economics, and politics attempt to hammer out new theories that account for China’s diversity.

Cai: In your book, you highlight an internal border dispute in which two Chinese provinces, Jiangsu and Shandong, both laid claim to a valuable lake. What can this case tell us about China’s internal political structure?

Tian: This dispute reflects how local governments in China are pulled in two directions at once. On the one hand, they must report to higher levels of government and execute the will of the central authorities; yet on the other, they must also look out for the interests of their jurisdiction. At the peak of the dispute, from 1980 to 1985, violent conflicts broke out between residents of Jiangsu and Shandong over the ownership of fisheries and fields surrounding Weishan Lake, which had been contested since the late Qing Dynasty (1644-1912). Several people died. It was at this point that the central government ultimately decided to intervene and make a final ruling, mostly in Shandong’s favor.

Even after the central government issued a plan for the delimitation of new borders in 1984, however, officials from the two provinces continued to push back. For example, at the beginning of 1985, the chief of Pei County in Jiangsu told an official from the Ministry of Civil Affairs, whose rank was higher than his own: “Above me, there are edicts that I must enforce; but beneath me, there are the interests of the masses that I can’t neglect.” Clearly, in this case, he prioritized the latter — that is, the interests of residents within his area of jurisdiction. This challenges the general perception of China as an internally uniform, centralized state — in other words, a nation where local governments don’t have independent will and act merely as limbs of the central authorities.

But the central government can and will exert its power to make final judgements where it deems necessary. After many fruitless attempts at mediation, Beijing issued three documents between 1984 and 1985 to resolve the border dispute.

It’s worth noting that, while the central government’s executive powers are drawn from China’s bureaucratic structure as a modern nation-state, they are reinforced by its political one-party system. In this case, not only was the central government able to issue legally effective documents — high-ranking party officials were also able to enforce disciplinary measures to keep local cadres in line.

That raises the question: Why doesn’t the central government make more use of its executive powers? One reason is that making edicts to forcefully resolve administrative problems is not always effective. For example, in the Weishan Lake dispute, the border was first set according to rules promulgated by the central government in 1953, but these were not effectively enforced by either of the two provinces. Even the plan issued in 1984 had to be reinforced by another two documents before the dispute was laid to rest. So, in most circumstances, the central government seemingly prefers to play a mediating role, pushing for consensus and reducing the costs of enforcement.

The Chinese Constitution doesn’t specify which powers belong to the central government and which belong to local governments. Rather, it calls for “giving full play to the initiative and motivation of local authorities under the unified leadership of the central authorities.” That allows the space for this type of negotiation to continue to exist.

Cai: Growing numbers of scholars argue that China is caught in a cycle between centralization and decentralization. For example, after the Cultural Revolution, the recovery of the economy was dependent on the downward delegation of financial powers, but these powers were later centralized again to solve a looming fiscal crisis. How did this cycle arise?

Tian: I always use the fiscal reform of 1994 as an example in my classes on constitutional law. The content and process of the reforms, which redirected the bulk of tax revenues to the central government, vividly demonstrate the characteristics of the Chinese Constitution and the country’s vertical distribution of power. Charged with leading the reforms was then Vice-Premier Zhu Rongji. His talks with many provincial officials throughout the reform process were compiled and published as a book in 2011. I strongly recommend it to anyone interested in the relationship between central and local authority in China.

The fiscal reforms grew out of a practical concern. Although the distribution of powers to local governments in the 1980s helped revive the economy, it also whittled away the central government’s financial resources. By the 1990s, the central government was on the verge of fiscal collapse, with some scholars describing the decade as the central government’s “direst hour.” Promoting fiscal reform was not only about rebalancing power through public policy — it was a crucial step in saving the central government and protecting the constitutional system.

Even in such dire straits, pushing the reform through nonetheless required negotiations between the central government and provinces. Some provinces’ revenues had greatly increased as a result of decentralization measures during the 1980s, and Zhu had to personally convince provincial officials to go along with the reform plan. For instance, in order to dispel the concerns of economically powerful Guangdong province leaders about potential decreases in local revenue, he agreed to a carve-out allowing the province to keep a larger share of its revenues. He then had to turn around and explain these compromises to the central government. It’s another example of the consensus-building process that allowed China’s reforms to be successfully implemented.

Cai: In your book, you argue that the central government’s tacit consent to local experiments outside the constitutional framework, a practice termed “benign unconstitutionality” by some scholars, played a major role in China’s economic rise. How did China’s reformers strike a balance between the authority and uniformity of the law on the one hand; and pilot projects and “benign unconstitutionality” on the other?

Tian: I’ve discovered that this balancing act tends to come up in a lot of the cases I study. On the one hand, there’s stability, uniformity, and central authority, which I like to think of as the “one”; while on the other, there’s transformation, pluralism and local initiative, i.e. the “many.” “Benign unconstitutionality” is one of a handful of original concepts put forward by scholars of the Chinese constitution to represent the dialectical relationship between the “one” and the “many.”

We could use Li Ning’s performance at the torch-lighting ceremony of the 2008 Olympics in Beijing as a way of visualizing this concept: As he danced through the air toward the scroll-like torch tower, he momentarily moved ahead of the light cast by the scroll, but returned to it soon after. If the scroll was the constitution, his dance outside and ahead of its borders was an act of benign unconstitutionality.

However, I recently noticed while digging into historical sources that past discussions of benign unconstitutionality perhaps underestimated the foresight of the constitution’s framers. For example, in 1985, the People’s Congress authorized the State Council to draft provisional clauses regarding the reform of economic institutions as well as the process of opening-up. These clauses would then be cemented in law by the People’s Congress or the Standing Committee, once they had been “validated by experimentation and the conditions for their implementation were ripe.”

From this perspective, many past cases that have been viewed as benign unconstitutionality were perhaps not, as you say, “tacitly consented to” by the central authorities, but explicitly approved. What constitutes “unconstitutionality” in this context is actually not all that self-evident and requires more in-depth research into the relevant legislative records and administrative archives. But the reformers of the 1980s perhaps cared more about questions of “legality” than we tend to think.

Cai: Returning to an earlier topic, many law scholars, and constitutional law scholars in particular, see themselves as champions of certain values and actively push for social changes. You seem reluctant to take such a proactive role. Why? What do you think is a scholar’s social?

Tian: In a sense, I have been deeply influenced by the perspective of American constitutional law scholars, and in particular the concept of “self-restraint.” Constitutions are by design focused on stability. Regardless of whether you look at the United States or China, their text is always abstract. The American Supreme Court Justice John Marshall wrote of the constitution that “only its great outlines should be marked, its important objects designated.”

China’s leading constitutional framer, Peng Zhen, echoed this language in his own work, writing that the drafting of China’s constitution should focus “on the trunk, not the branches, on the important things, not on their complexity.” With the right mindset, you can read any set of values into a constitution, then use your interpretation to argue for the reforms you hope to see. But as I see it, the question is: what does the Constitution say? Any constitution represents the consensus of its framers at a particular point in time. As a scholar, I believe my role is to clarify that consensus, not repackage it to suit my own beliefs.

Translator: Lewis Wright; editor: Kilian O’Donnell.

(Header image: Bureaucrats swear an oath on a copy of the Chinese constitution in Chongqing, 2020. IC)