Introduction

Since the early years of the 20th century, Chinese scholars and political leaders have at times debated claims regarding an inherent, pre-legal order of the Chinese society and state.

During the late imperial era, the term had already been used in (anteced­ents of) both contexts interchangeably - a natural conclusion of the premise that the Emperor’s sacred person was largely synonymous with the polity, and thus failures of deference violated both imperial dignity and state order.³ After the abolition of the monarchy and the founding of the Republic of China in 1912, however, guoti became clearly associated with a distinction, drawn from Meiji Japanese discourse, between zhengti (Jp. Seitai, form of government) and guoti HS (Jp. Kokutai, [fundamental] form of the state).⁴ This dichotomy has

1 See, for example, Wang Hongbin, ‘“Zhengti” “Guoti” Ciyu zhi Shanbian yu Jindai Shehui Sichao zhi Bianqian [The Change of the Meaning of Regime and State System with the Evolu­tion of Modern Social Thought]’ (2014) 5 Anhui Shixue 49; Lin Laifan, ‘Guoti Gainianshi: Kuaguo Yizhi yu Yanbian [History of State Form as a Concept: Transnational Transplants and Evolution]’ (2013) 3 Zhongguo Shehui Kexue 65; Fan Xianzheng, ‘“Guoti” yu “Zhengti” zai Jindai Zhongguo de Yanbian yu Fenhua [The Evolution and Differentiation of “Guoti” and “Zhengti” in Modern China]’ (2014) 3 Xueshu Yanjiu 40.

2 See, for example, Lin, supra note 1.

3 See Li Yumin, ‘Wanqing Shiqi Guoti Guan de Bianhua Shitan [Evaluating Transformations of the Guoti Perspective in the Late Qing Era],’ 6 Renwen Zazhi 71 (2013).

4 See, for example, Lin (n 1); see also Chen Duanhong, ‘Lun Xianfa Zuowei Guojia de Gen- benfa yu Gaojifa [On the Constitution as Fundamental Law and Superior Law] (2008)’ 20(4) Zhongwai Faxue 485.

DOI: 10.4324/9781003097099-3

“State form” in modern China 47 been maintained ever since, and continues to structure Chinese debates over the concept ofguoti even today.^[121]

In both China and Japan, as in a number of other jurisdictions worldwide,^[122] the question of republican versus monarchical state form was the main focal point for early 20 th century discussions of a fundamental constitutional structure. In many of its uses since, however, the zhengti/guoti dichotomy has come to more closely resemble the conservative German state theorist Carl Schmitt's distinc­tion between a “relative constitution” and the “absolute constitution,” the latter referring, once again, to the pre-legal inherent structure of a polity (or its core values) that cannot be (legitimately) altered by positive law enactments or judg­ments.^[123] This resemblance has, of course, been noted and explored by Chinese constitutional scholars.^[124]

For comparative constitutional scholars, attention to the notion ofguoti opens up a unique perspective on questions of constitutional change and amendment, informed by a discursive world highly distinct from that of Anglo-Am erican- style “judicial constitutionalism.”^[125] The concept's history suggests that the formal norms of written constitutions can be relativized based on prevailing ideas about political ontology and structure. Conversely, those underlying political or social structures may themselves lie beyond the reach of positive law. Importantly, extensive contestation is possible as to the actual specific content of any such pre-legal guoti - the idea has been invoked to justify liberal, socialist, and also authoritarian political projects.

3.2