The communist party & the law: An outline of formal and less formal linkages between the ruling party and the other legal institutions in the people's republic of china
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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This paper, roughly belonging to the comparative public law field, investigates the concrete links, formal, quasi-formal and substantial interactions, functional and organic compenetrations occurring amongst legal and political actors in the Chinese Party-State System. The legal position enjoyed by the ubiquitous Communist Party within the political-legal system of the PRC. A description is provided on how the status of the Party and the Socialist System - the protecting and enveloping skull within which the Party-brain operates - has been modified and re-engineered, and sometimes formalized throughout a broad set of norms (constitutions, political documents, system-laws, ordinary laws, administrative regulations, case law) since the establishment of the PRC in 1949 and particularly during the Deng, Jiang and Hu eras. The political-legal means used by the Party to operate as an organism innervating its parent-body i.e. the PRC institutional system. Attention is focused both on the statutory well-known organs that constitute the Party apparatus and on the less known and often neglected chains of transmission and ad hoc organisms a structures (Leading Small Groups, organic committees, Party groups, the nomenklatura etc) operating as traits d’union between Party, State (People’s assemblies, government/executive, military & security forces, judiciary), civil society and businesses, and carrying the Party’s will and impulse to the peripheral layers of the System. Party’s Legal Creativity. In discussing the greater Rule of Law topic, the question of how laws themselves are created and by whom is often forgotten. While looking at this issue and considering that in the CPC-ruled Socialist Legal System State rules are created according to CPC rule development, the question then becomes whether a new legal category is needed to conceptualize CPC regulations. The CPC has a complex corpus of internal rules, and the production of party norms and regulations comes through the CPC Interim Regulations on the Procedure for Establishing Internal Party Regulations, an internal legislation law established in 1990, about 10 years prior to the national Legislation Law. As the normative framework for Inner Party Rule of Law existed prior to State Rule of Law, there is indeed a need of conceptualization of CPC rules, and a possible complement to the notion of binding ‘normative’ rules of State would be to consider their alter ego, the soft CPC rules, as ‘nomopoietic’, or rule-creating rules for the State.
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