Abstract
The Chinese Constitution of 1982, Article 36, calls for the protection of religious freedom. But Westerners should understand that constitutionalism in China reflects a very different political context. There is a hierarchy of values in the Chinese Constitution, the author argues, which ranks the supremacy of the Communist Party and the construction of a modern socialist society above the protection of personal freedoms. Indeed, the term “ protection” is transformed into something more akin to management and control in the Chinese context. Political reforms in China, including the new protections for property rights, all reflect this hierarchy of values. Even so, says the author, the growing body of case law on property disputes shows potential for gradual movement toward liberty in religion as well.
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Notes
The “Real Right Law,” enacted in 2007, establishes the basic law for regulating and protecting private property in China. See Han Dayuan, ed., A True Record of the Legal Debates of the PRC in Sixty Years: The Constitution Volume (Xiamen: Xiamen University Press, 2009), chs 10 and 17.
John Rawls, Justice as Fairness (Cambridge, MA: Harvard University Press, 2003), 2.
Du Wenzhong, Constitutionalism of Modern China (Beijing: Law Press, 2009), ch. 3.
Hou Xinyi, “A Country Heading for Democracy and Rule of Law,” Qian Jin Forum 3 (2011): 41.
See, e.g., Zhang Qianfan, Introduction to Constitutional Law (Beijing: Law Press, 2004), 561.
See, e.g., Ma Ling, “On Citizen’s Exercise of Religious Freedom in Our Country,” Nanjing University Law Review 2 (1999): 136–142;
Yao Junkai, “On Religious Liberty and Its Protection by Rule of Law,” The Magazine of the Protestant Churches in China 19 (2007): 32–35. Those articles mainly focus on the improvements of institutional protection of religious freedom, which are the uniform answers to problems of religion and politics.
See Du Jiwen, “A Discussion on the Problem of Incorporating Religious Theology into National Education System and Research Institutions,” Science and Atheism 2 (2010): 25–28.
See Yang Yang, “On Confucianism and Its Theocracy Thought,” Qi Lu Journal 1 (1999): 80–86.
Daniel H. Bays, “A Tradition of State Dominance,” in Jason Kindopp and Carol Lee Hanmrin, eds, God and Caesar in China (Washington, DC: Brookings institution Press, 2004), 26.
Feng Yujun, “An Investigation on the Enforcement of Religious Affairs Administrative Law in China,” Law and Social Development 1 (2011): 130.
A term given by Professor Gao Quanxi in his “Exploratory Study of Model of Duality in China’s Current Law-Based Management of Religion,” China Law 3 (2009): 75–78.
See Lin Laifan, From Constitutional to Normative Constitution (Beijing: Law Press, 2001).
See Chen Duanhong, “Constitutional Law as the Fundamental Law and Higher Law of Our Country,” in his Constituent Power and Fundamental Law (Beijing: China Legal Publishing House, 2010), 283–292.
See Robert George, “Religious Liberty and Political Morality,” in his In Defense of Natural Law (New York: Oxford University Press, 1999), 127.
This is reaffirmed in the “Three Supremacies” thought given by the president of PRC, Hu Jintao, in a speech to chief justices and prosecutors in 2007. Three Supremacies refer to the supremacy of the leadership of the party, the supremacy of the people’s interests, and the supremacy of the constitutional law. This thought is articulated by many professors, and most notably, the president of the Supreme People’s Court, Wang Shengjun, in his “Insisting on the ‘Three Supremacies’: Guidelines for the Judicial Work Keeping Pace with the Times,” Journal of Law Application 10 (2008): 4–6.
See Zhou Zhihua, “The Identification of Roles of Courts in the Innovation of Social Management,” Legal Information 11 (2010): 48–50;
Dong Zhiliang, “Courts Are the Participants and Impellors of the Innovation of Social Management,” Legal Information 11 (2010): 54–56.
See Chen Duanhong, “Constitutional Law as the Fundamental Law and Higher Law of Our Country,” in his Constituent Power and Fundamental Law (Beijing: China Legal Publishing House, 2010), 314–315.
Liu Peng, “The Process of Rule of Law for Religion in China,” in his Pu Shi Social Science Selected Papers (Beijing: Pu Shi Social Science Institute, 2011), 48.
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© 2014 Zheng Yushuang
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Yushuang, Z. (2014). Political Constitution and the Protection of Religious Freedom: A Jurisprudential Reading of Article 36 of the Chinese Constitution. In: Carpenter, J.A., den Dulk, K.R. (eds) Christianity in Chinese Public Life: Religion, Society, and the Rule of Law. Palgrave Studies in Religion, Politics, and Policy. Palgrave Macmillan, New York. https://doi.org/10.1057/9781137410184_6
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DOI: https://doi.org/10.1057/9781137410184_6
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