Carl Schmitt and the Development of Conservative State Theory in China

Seminar Series: Greater China Legal History Organized by: CUHK LAW Speaker: Prof. Ryan Mitchell Date: 9 October 2020 Over the last decade or so, China’s Supreme People’s Court and the country’s political leaders have consistently rejected the idea of a “judicialized” Constitution, allowing individual litigation. At the same time, the government has also been more vocal and emphatic than ever before in endorsing the national Constitution’s practical and symbolic importance. Is it really possible to endorse “constitutionalism” without endorsing judicial review? If so, how? Arguably, both Anglo-American liberalism and Marxism fail to provide a model for such an approach to constitutionalism—but other traditions, including German conservative state theory, have helped to fill the gap. In discussing the reception of this body of thought in China, this lecture will focus specifically on the role of Carl Schmitt, the controversial but still influential jurist who argued for Executive “dictator