China's Changing Constitution Jerome Alan Cohen An organization must have rules,and so must a state.A constitution is a set of general rules,it is the fundamental law...Constitution-making is a matter of science. Mao Tse-tung On 5 March 1978 the People's Republic of China promulgated its second constitution in little more than three years and the third since its establishment in 1949.?What functions does a constitution serve in the Chinese political-legal system?Is it a sham not worth the paper on which it is printed?Is it an artifice of propaganda designed to impress and mislead foreigners?Does it have legal as well as political significance? The 1954 Constitution was not revised for two decades-why then was its 1975 successor so quickly overtaken by events?What are the differences among these basic documents? Background Some preliminary observations are in order.Self-conscious constitution-making is a 20th-century phenomenon in China.To be sure, the succession of imperial dynasties that ruled the country from the third century B.C.until 1912 had gradually developed a large collection of sophisticated statutes that described the structure,principles, functioning and interrelationships of the various agencies of the empire, and these were supplemented by customs,traditions and precedents.Yet the type of single document charter of government that began to proliferate in the west after the American and French Revolutions did not appear in China until the very last years of the ailing Manchu dynasty.Then,in a desperate effort to stave off collapse,the Manchu .I am grateful to my assistants Paul Theil,Peter Chan and Jane Leifer for their valuable help in preparing this study,and to several colleagues,especially Professor Harold J.Berman of Harvard and Dr Frank Munzel of the Max Planck Institute in Hamburg,for stimulating comments on it.An earlier version was presented at the Northwestern University School of Law in Chicago on 6 April 1976,as the second of my three Julius Rosenthal Lectures. 1.Mao Tse-tung,"On the draft constitution of the People's Republic of China," 14 June 1954 in Selected Works (Peking:Foreign Languages Press,1977),Vol.V, pp.141,145-46. 2.An English translation of the new constitution can be found in Documents of the First Session of the Fifth National People's Congress of the People's Republic of China(Peking: Foreign Languages Press,1978),pp.125-72.An English translation of the 1975 version can be found in The Constitution of the People's Republic of China (Peking:Foreign Languages Press,1975).An English translation of the 1954 document can be found in Documents of the First National People's Congress of the People's Republic of China (Peking:Foreign Languages Press,1955),pp.131-63.All quotations from these constitutions are from those translations unless otherwise indicated,but the term "procuracy"has been substituted for the more awkward and less familiar “procuratorate.”China's Changing Constitution Jerome Alan Cohen An organization must have rules, and so must a state. A constitution is a set of general rules, it is the fundamental law. . . . Constitution-making is a matter of science. Mao Tse-tung' On 5 March 1978 the People's Republic of China promulgated its second constitution in little more than three years and the third since its establishment in 1949. 2 What functions does a constitution serve in the Chinese political-legal system? Is it a sham not worth the paper on which it is printed? Is it an artifice of propaganda designed to impress and mislead foreigners? Does it have legal as well as political significance? The 1954 Constitution was not revised for two decades - why then was its 1975 successor so quickly overtaken by events? What are the differences among these basic documents? Background Some preliminary observations are in order. Self-conscious constitution-making is a 20th-century phenomenon in China. To be sure, the succession of imperial dynasties that ruled the country from the third century B.C. until 1912 had gradually developed a large collection of sophisticated statutes that described the structure, principles, functioning and interrelationships of the various agencies of the empire, and these were supplemented by customs, traditions and precedents. Yet the type of single document charter of government that began to proliferate in the west after the American and French Revolutions did not appear in China until the very last years of the ailing Manchu dynasty. Then, in a desperate effort to stave off collapse, the Manchu * I am grateful to my assistants Paul Theil, Peter Chan and Jane Leifer for their valuable help in preparing this study, and to several colleagues, especially Professor Harold J. Berman of Harvard and Dr Frank Munzel of the Max Planck Institute in Hamburg, for stimulating comments on it. An earlier version was presented at the Northwestern University School of Law in Chicago on 6 April 1976, as the second of my three Julius Rosenthal Lectures. 1. Mao Tse-tung, " On the draft constitution of the People's Republic of China," 14 June 1954 in Selected Works (Peking: Foreign Languages Press, 1977), Vol. V, pp. 141, 145-46. 2. An English translation of the new constitution can be found in Documents of the First Session of the Fifth National People's Congress of the People's Republic of China (Peking: Foreign Languages Press, 1978), pp. 125-72. An English translation of the 1975 version can be found in The Constitution of the People's Republic of China (Peking: Foreign Languages Press, 1975). An English translation of the 1954 document can be found in Documents of the First National People's Congress of the People's Republic of China (Peking: Foreign Languages Press, 1955), pp. 131-63. All quotations from these constitutions are from those translations unless otherwise indicated, but the term " procuracy " has been substituted for the more awkward and less familiar " procuratorate