14 - The ‘Invisible Constitution’ seen Realistically

Summary

With necessary methodological control, the ‘invisible constitution’ can function effectively to reveal and to evaluate the incomplete nature of the 1982 ‘Reforming’ Constitution of China in the constitutional realism of a party-state system. In this article, we investigate the whole picture of China’s textually unwritten but de facto evolution in the reform, underpinned by the internal logic of the unitary system. With an intellectual link, both criticism on Tribe’s Invisible Constitution and national debates over China’s unwritten constitution share similar methodological malleability. Even through a perspective of constitutional realism, as we hold, the text of the written constitution should clearly be the source restricting the usage and scope of the invisible or textually ‘unwritten’ constitution. Accordingly, a general conclusion on the whole picture of China’s sub-state decentralisation is that the implicit limitation of these decentralisation arrangements exists in the institutional logic rather than the written articles: they are constitutionally designed to fit into the unitary system where the central authorities have the final say on the central-local relationship in any case. The lack of a proper mechanism that can resolve the central-local disputes has different results, and a foreseeable trend is the formal recentralisation of the whole party-state system.