Beyond “Judicial Power”: Courts and Constitutionalism in Modern China

Abstract

Since the turn of the new century, there has been an explosion of popular constitutional discourse in China. However, the courts seem curiously absent from this emergence. Standard constitutional thought, at least as it comes out of the Anglo-American world, tends to view neutral and independent courts—and in particular “judicial review”—as the centerpiece of a functional constitutional system. Is China a case of “constitutionalism without courts?” (cf Dowdle 2002). Or does the apparent lack of judicial presence in this new discourse render this discourse developmentally meaningless, a mere anomaly in a larger trajectory that is fatally stalled? (see Pei 2006).