Due to the particular political reality under the Party-state, neither a substantial nor a formal way is sufficient to grasp the key problem confronting the Chinese rule of law, namely the separation of the Party and the state. This article argues that the precondition for rule of law in the Chinese Party-state lies in the paradox thesis: How and to which extent the separation of the Party and the state within a Party-state is possible and, more importantly, in which sense such a separation is achieved. The author argues that, when under the political reality of Partystate, the kind of Party-state separation in the organizational sense is not realizable in a foreseeable future, the Party-state separation in the functional sense as the basic space should be upheld and maintained, if man can still argue that some kind of rule of law in China exists or is still needed. This article places the general history of rule of law in China under the analytical framework of the separation of the Party and the state and points out that the constitutional confirmation of socialist rule of law state represents the climax of the separation of the Party and the state and the Chinese rule of law itself. Subsequently, it analyses the challenges brought to the Socialist rule of law state by the conception of so-called “rule of law China”, the “intra-Party rule of law” and the justification of the normative superiority the Party Constitution over the state Constitution in recent years.

EB00000004200K

Available