Brang on Conceptual Realism and Imperial Nostalgia in Chinese Legal Historiography @UniCologne

Lucas Brang, University of Cologne, has published Conceptual Realism and Imperial Nostalgia in Chinese Legal Historiography at 19 International Journal of Constitutional Law 328 (2021). Here is the abstract.

In this review essay, I discuss two recent trends in Chinese constitutional theory and their influence on the field of legal historiography. The first of these trends is a methodological turn toward “conceptual realism.” Conceptual realists hold that legal concepts should be able to adequately capture political reality, lest they (i) end up eroding China’s illiberal political status quo — the neo-conservative agenda — or (ii) fail to identify the deep-seated reasons for the repeated failure of liberal constitutionalism in modern China — the critical-liberal agenda. Terminologically, this anti-formalist turn manifests itself in a set of conceptual binaries, including that of “state body” (guoti 国体) vs. “form of government” (zhengti 政体), “absolute constitution” vs. “constitutional law,” and “political” vs. “normative constitution.” The second trend is a broader shift toward historicism and “imperial nostalgia,” that is, the belief that, for better or for worse, the structural features of China’s pre-modern imperial state (should) continue to impact its present constitutional reality. A review of recent Chinese literature suggests that — while there is some agreement among “conceptual realists” on the legal-territorial implications of China’s modern transition from empire to nation-state — there is substantial disagreement on the reasons for its subsequent failure to consolidate liberal constitutional democracy. This also indicates that, while “statism” has indeed emerged as a new methodological consensus in Chinese academia, this consensus does not translate into a shared normative vision beyond the undisputed territorial unity of the Chinese nation-state. The discussion focuses on two books: Gao Quanxi, Zhang Wei, Tian Feilong, 现代中国的法治之路 [The Road to the Rule of Law in Modern China] (2012); and Zhang Yongle, 旧邦新造: 1911-1917 [The Remaking of an Old Country: 1911-1917] (2016).

The full text is not available from SSRN.