Arif A. Jamal


Ernest Caldwell wants to defend Chinese constitutionalism from criticism, mainly from Western constitutional scholars or scholars who hold up Western constitutional patterns as an ideal. Caldwell makes both a 'comparative' claim and a 'value' claim. The comparative claim is that Chinese constitutional law must be understood on its own terms and that on these terms it does protect rights, even if it does not do so in the same way as Western constitutional law. The value claim is that the procedures in China's legal system satisfy value concerns captured in the term 'constitutionalism' because they show how that system respects the supremacy of constitutional norms in a way that, though different from, is not inferior to Western constitutionalism. I take up and challenge both the comparative and the value claims. In particular, I argue, first, that one need not adopt the perspective that Chinese constitutional law must be seen entirely on its own terms and in a way that cannot be compared with Western models without generating misunderstanding. Second, I argue that Caldwell is mistaken in thinking that the value of judicial review can be satisfied by the horizontal rights review he finds in Chinese constitutional law.