Emergency powers and the constitution : a case study of the Republic of China (1912-1991)

Abstract

The research question of this thesis is twofold. On the one hand, it attempts to address the issue of the legitimate basis of emergency powers and its implications for the study of emergency laws in modern Chinese history. The issue is significant for our understanding of the relationship between emergency powers and the constitution, particularly when the latter is not equipped with an “eternity clause.” As constitutional and statutory emergency powers existed in the Republic of China, and not all of its successive constitutions had “eternity clause,” this thesis focuses on the case of the Republic of China. On the other hand, by selecting the Republic of China for study, the thesis also attempts to address the issue of inadequate knowledge of emergency powers of the Republic of China in the period from 1912 to 1991, most of which have not been studied before.

With regard to the research question, this thesis first formulates a theoretical framework, following Carl Schmitt’s dualistic notion of the constitution, to distinguish the constitution in the “absolute” sense from the constitution in the “relative” sense, where the former is understood as the legitimate basis of emergency power, which is what the exercise of emergency power should protect and eventually restore from crisis. Having formulated a constitutional perspective that can identify what was absolute and essential in the successive constitutions of the Republic of China, the thesis reconstructs the hypothetical legitimate basis of emergency powers in the Republic as an analytical framework for statutory analysis. Secondly, statutory analysis is conducted, according to the above theoretical framework and standard categories in the study of emergency laws, for different periods of republican history. Laws are selected for analysis based on the criterion of whether they could demonstrate their relationship with the hypothetical absolute constitutional order and the legal pattern of each period in the history of the Republic of China.

Similarly, the research outcome is also twofold. On the one hand, as the first attempt to apply Carl Schmitt’s constitutional perspective to the case of emergency powers in the Republic of China, this thesis demonstrates how to formulate a hypothetical legitimate basis of such emergency legislations, and how to take the eventual restoration of the absolute constitutional order as a criterion to evaluate the legitimacy of these emergency powers. Besides, this intellectual exercise of applying Schmitt’s perspective to the case of the Republic of China has led to a finding about the significance of the “eternity clause” in the constitution of 1923, and to the typological issue of the emergency nature of the constitution of 1931, which may also have significant implications for Chinese emergency law studies. On the other hand, by studying a large number of statutes, spanning eighty years, the statutory analysis in this thesis demonstrates the basic features and legislative patterns of major emergency laws in the Republic of China. Such analysis has not been undertaken before in this manner. Thus this thesis can enrich our understanding of the emergency laws of the Republic of China.