Western academics who criticize Chinese constitutionalism often focus on the inability of the Supreme People's Court to effectively enforce the rights of Chinese citizens enshrined within the Constitution of the People's Republic of China. Such criticism, I argue, is the result of analytical methods too invested in Anglo-American constitutional discourse. These approaches tend to focus only on those Chinese political issues that impede the institution of western-style judicial review mechanisms, and often construe a 'right' as merely having vertical effect (i.e., as individual rights held against the State). Drawing on recent scholarship that studies Chinese constitutionalism using its own categories and values, this Article examines a series of court cases involving employer-employee labor disputes, wherein lower court judges actively engaged in constitutional interpretation and openly invoked and enforced horizontally oriented socio-economic rights to prosecute exploitative labor practices. This analysis demonstrates that the study of Chinese constitutionalism need not be methodologically confined by the institutional paradigms or the rights discourse of Euro-American constitutionalism. Due consideration should be given to the comparative implications of the judicialization of the constitution in lower courts, as well as the possibility of a rights discourse emphasizing constitutionally enshrined horizontal (rather than only vertical) rights.
Horizontal Rights and Chinese Constitutionalism: Judicialization through Labor Disputes,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol88/iss1/6