Global Constitutionalism and the People’s Republic of China:

Dignity as the “Fundamental Basis” of the Legal System

Alec Stone Sweet and Trevor T W Wan

Faculty of Law, The University of Hong Kong

“The Civil Code highlights the protection of rights of the person and comprehensively
enhances the humanistic spirit of China’s law on the basis of human dignity.” 1
– SUN Xianzhong, Constitution and Law Committee of the National People’s
Congress, the People’s Republic of China

Since 2010, the People’s Republic of China [PRC] has engaged in a series of high-profile legal reforms,
purportedly to enhance legitimate “governance,” the “rule of law,” and judicial professionalism and
independence. At the heart of these efforts has been the promulgation of rights-laden, judicially-
enforceable super-statutes, in particular since 2017. 2 Meanwhile, the Communist Party of China [CPC]
and the National People’s Congress [NPC] have implicitly authorized renewal of a scholarly discourse on
rights-based adjudication and statutory judicial review, and acquiesced or encouraged debates that
develop relevant constitutional theory. At the heart of these debates is human dignity, which has been
declared by Sun – a drafter of the Code – to be the “basis” of the revamping of the PRC’s legal system. 3

This paper focuses on the emergence and consolidation of dignity as a foundational norm of the legal
system of the PRC. It does so through an analysis of the roles performed by differently-situated actors: the
CPC, the NPC, the Supreme People’s Court [SPC], the judiciary, and legal scholars. The 2017–2021
period features a set of the most far-reaching statutory reforms in the history of the PRC, the centerpiece
of which is the new Civil Code (2021). In both structure and content, certain statutory provisions of the
Code deserve to be analyzed, in part, as a quasi-constitutional charter of rights. As we will document,
many Chinese scholars do just that. At the core of the Code is dignity, which some claim has emerged as
an overarching meta-norm, from which a list of additional rights, including unenumerated freedoms, can
be derived.

The paper is organized as follows. Part 1 frames Chinese developments in light of the global discourse on
human dignity, which is itself anchored in the jurisprudence of major courts and legal scholarship. We do
not claim that all important judges and publicists outside of China fully subscribe to the themes discussed.
Nonetheless, each of these themes would be recognized as defining features of a common, global
discourse on dignity. Indeed, those who resist adopting them are normally constrained to justify their
reservations. We also address counter-tendencies, as when state officials deploy the dignity norm in
illiberal, rights-regressive ways. Part 2 traces the emergence of dignity as an officially-sanctioned
commitment device, which the CPC designed to signal to citizens a promise to respect their basic rights,
against the background of the horrors of the Cultural Revolution. In part 3, we provide an introduction to
the scholarly discourse on dignity. The Chinese debates are permeated by Kantian theory and German
jurisprudence, the applicability of which is largely presumed, rather than impugned. Part 4 examines the
normative structure of the new Civil Code, focusing on dignity as the meta-norm that begets a host of
qualified rights that “implement” it more concretely. We also examine the so-called “general clauses” of
the Civil Code, which – German style – establish reasons for Chinese judges to restrict civil liberties with

1
SUN Xianzhong, “Reflections on Function of National Governance of China’s Civil Code,” 6 China Law (2020):
81, 89.
2
Alec Stone Sweet, Chong BU, and Zhuo DING, “Breaching the Taboo? Constitutional Dimensions of the New
Chinese Civil Code.” Unpublished draft of 2022, online at:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4057683
3
SUN Xianzhong, “Reflections on Function of National Governance of China’s Civil Code,” op cit.: 81, 82–89.

Electronic copy available at: https://ssrn.com/abstract=4140924

reference to “good morals” and “public order.” Part 5 examines the main mechanisms of control available
to the CPC, the NPC, and the SPC, in the event that the judiciary produces unwanted outcomes of
importance to the “political” authorities.

1.1 Dignity as a Meta-Norm

Human dignity, Baer notes, possesses “a long philosophical but a short constitutional history.” 4
Nonetheless, the norm has become “the central feature” 5 of human rights conventions after World War II,
and the “underlying basis” of rights-based, “modern constitutional law” at the domestic level. 6 As
Shultziner and Carmi document, only five national constitutions referred to human dignity prior to 1945;
by 2012 that count had risen to 162, 7 a number that has increased with each new constitution appearing
thereafter. On the international plane, human dignity is given pride of place in the “international bill of
rights.” 8 Dignity is treated as underwriting the “absolute” status of the prohibitions against torture,
inhuman treatment, slavery and servitude; and it undergirds the right to life, as well as the status of the
“qualified” rights in the case law of international and domestic courts. 9 A growing list of philosophers,
legal theorists, and judges treat dignity as a meta-norm, not least, in that it is the acknowledged source of
a basic “right to have rights.” 10

The steady enhancement of the significance of human dignity since the end of World War II has occurred
in the context of democratic transition and constitutional reconstruction, in particular after the demise of
what Scheppele has aptly called “regimes of horror,” 11 wherein state officials routinely engaged in the
most egregious rights violations. After 1949, the Federal Republic of Germany gradually enshrined
human dignity as the most fundamental of rights, an overarching constitutional “value” and the ultimate
criterion of legality. In successive waves of democratization across the globe, dignity has been
characterized as a supreme principle of the legal order (e.g., Brazil, Peru, South Africa, South Korea, and
many others); and dozens of countries state their commitment to dignity in the preambles of new
constitutions, before reiterating it within a judicially-enforceable charter of rights. On the international
plane, regional human rights courts have also declared it to be a meta-norm, the ultimate basis of all
human rights (e.g., the African Court on Human and People’s Rights, the European Court of Human
Rights). Finally, in Asia, too, the dignity norm has performed a progressive, rights-protective role across

4
Suzanne Baer, “Dignity, Liberty, Equality: A Fundamental Rights Triangle of Constitutionalism,” University of
Toronto Law Journal 59(4) (2009): 417, 439.
5
Aharon Barak, Dignity: The Constitutional Value and the Constitutional Right (Cambridge University Press, 2015):
51.
6
Jacob Weinrib, Dimensions of Dignity: The Theory and Practice of Modern Constitutional Law (Cambridge
University Press, 2016): 1.
7
At the same time, dignity became a major topic of academic inquiry across fields in law, the social sciences,
psychology, and others; Doron Shulztiner and Guy Carmi, “Human Dignity in National Constitutions: Functions,
Promises, and Dangers,” American Journal of Comparative Law 62 (2014): 461–62.
8
Among other texts, the international bill of rights (Benhabib 2009, Appendix: 702) includes: the United Nations
Declaration of Human Rights (1948); the International Covenant on Economic, Social, and Cultural Rights (1966,
entry into force in 1976); and the International Covenant on Civil and Political Rights (1966, entry into force in
1976).
9
Chris McCrudden, “Human Dignity and Judicial Interpretation of Human Rights,” European Journal of
International Law 19(4) (2008): 655–724.
10
Jurgen Habermas, “The Concept of Human Dignity and the Realistic Utopia Of Human Rights,” Metaphilosophy
41(4) (2010): 464-480; Seyla Benhabib, The Rights of Others: Aliens, Residents, and Citizens (Cambridge
University Press, 2012); and James Ingram, “What is a ‘Right to Have Rights’? Three Images of the Politics of
Human Rights,” American Political Science Review 102(4) (2008): 401–16.
11
Kim Lane Scheppele, “Constitutional Interpretation after Regimes of Horror,” in S. Karstedt, (ed.) Legal
Institutions and Collective Memories (Hart, 2009): 233–58.

Electronic copy available at: https://ssrn.com/abstract=4140924

many domains of law, the interpretations of the constitutional courts of post-authoritarian Taiwan and
South Korea being prime examples.

It is undeniable that dignity has developed in profound, juris-generative ways, revealing a remarkable
capacity to structure new, and restructure existing, legal systems. Yet, when we examine in detail how
dignity is invoked and enforced across jurisdictions, we cannot fail to appreciate its elusive, multi-
dimensional character. There is no simple, one-size-fits-all, formulation of the norm. Instead, courts
interpret and apply human dignity in diverse ways, responding to a kaleidoscope of social contexts and
historical legacies. 12 While recognizing this diversity, four systemic themes have fully emerged. Each of
these claims is today a constituent element of a common, global discourse on dignity, which is easily
recognizable even by those who would object to specific arguments. For their part, Chinese officials and
scholars have intensively deliberated precisely these same themes, in ways that would be recognized by
the global community beyond China. Here, we note four of these themes. 13

First, human dignity comprises a foundational norm, in a deep structural sense. Among other properties,
it: (a) attaches to people by virtue of the fact that they are human beings, rather than through possession of
other attributes; (b) provides the source of all other human rights; (c) functions as a positive criterion of
legality of all other legal norms in the legal order; and (d) undergirds (or requires) “constitutional justice,”
and, its corollary, “just governance.” 14 The paradigmatic, and most influential, case is the German. The
Basic Law of the Federal Republic opens with the dignity norm (Art. 1(1)), before the rest of the charter
of rights appears; and the charter, including the properties of being “directly applicable” (Art. 1(3)) and
binding on all officials of the state, is elaborated prior to the establishment of state organs and their
respective competences. At the international level, the Preamble of the Universal Declaration of Human
Rights (1948) announces that “the inherent dignity and of the equal and inalienable rights of all members
of the human family is the foundation of freedom, justice and peace in the world.” The ICCPR (Art 10(1))
declares that “All persons deprived of their liberty shall be treated with humanity and with respect for the
inherent dignity of the human person.” The European Union recognizes that “the dignity of the human
person is not only a fundamental right in itself, but constitutes the real basis of fundamental rights,” 15
such that dignity is “part of the substance” of all rights laid down by the EU Charter of Rights. 16 These
formulations among many others – and the doctrinal methods of implementing them – have settled certain
controversies about the nature and scope of dignity, but they have also generated a host of thorny
jurisprudential issues.

Second, as noted, dignity is typically conceptualized as a meta-norm – in Barak’s language – the “mother
norm,” from which a “bundle of rights” derives: the so-called “daughter rights.” The latter may include
general liberty provisions (the “free development of personality”), the rights “qualified” by an express
limitation clause, and unenumerated freedoms. Barak’s framework of analysis is itself rooted in the
jurisprudence of many powerful courts. 17 The German Federal Constitutional Court (GFCC), the South
African Constitutional Court, the Colombian Constitutional Court, and dozens of others subscribe to its
main features, as do the regional human rights courts in Africa, the Americas, and Europe.

12
McCrudden, “Human Dignity and Judicial Interpretation of Human Rights,” op cit.
13
These brief remarks may fail to capture many aspects that are important to constitutional and treaty-based rights in
the world.
14
On the “principle of just governance,” see Weinrib, Dimensions of Dignity, op cit., 124–47; and Alec Stone Sweet
and Eric Palmer, “A Kantian System of Constitutional Justice: Rights, Trusteeship, Balancing,” Global
Constitutionalism 6(3) (2017): 377–411.
15
Online at: https://fra.europa.eu/en/eu-charter/article/1-human-dignity, compiled by the European Union Agency
for Fundamental Rights.
16
Court of Justice of the EU, Case C-377/98, Netherlands v European Parliament and Council [2001] ECR I-7079,
at 70–77.
17
Barak, “Human Dignity as a Framework Right (Mother Right),” Dignity, op cit., ch. 9.

Electronic copy available at: https://ssrn.com/abstract=4140924

Third, following from seminal German jurisprudence, human dignity operates both as a stand-alone
(subjective) right that an individual may plead at bar, and an (objective) “constitutional value” that infuses
(or radiates throughout) the entire legal order. 18 The South African Constitution of 1996 (Art. 7(1)(2)), for
example, links dignity to democracy, equality, and freedom:

This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our
country and affirms the democratic values of human dignity, equality and freedom. The state must respect,
protect, promote and fulfil the rights in the Bill of Rights.

As a primary constitutional value, dignity (a) generates a positive duty on the part of the state to create
conditions necessary for all rights to be effective, and to protect persons who are vulnerable to their
violation; and (b) supplements all other rights, insofar as dignity-based arguments can add weight to a
qualified right being balanced against contending interests. 19

We have already mentioned rights to be free from torture, slavery, and inhuman treatment, which are
widely treated in “absolute” terms, since no justification in public reason is available for their restriction.
Generally, the scope of these “absolute” rights is defined narrowly, which entails robust “threshold” tests
to ensure that only a very serious harm would, in fact, constitute a “dignity violation” or “inhuman
treatment.” 20 A court that links a violation of a qualified right to human dignity is censuring public
officials in the most forceful way possible. In practice, the overlap between coverage of (a) a “dignity
violation” and (b) a violation of a jus cogens norm, has become more explicit. It is telling that the
prohibition of direct discrimination based on (at least) race, color, ethnicity, sex, and sexual preference
has become a strong candidate for jus cogens status, precisely because such discrimination renders
impossible a defining property of dignity: the self-determination of individuals under conditions of equal
freedom (including in the Kantian sense). 21

Courts typically construct the scope of a qualified right in broad, virtually unlimited terms, not least, since
judges are able to use proportionality analysis to tailor its application in concrete cases, in the balancing
phase. The adjudication of limitation clauses is governed by the proportionality principle, 22 which is also
derived from human dignity. 23 To repeat: a claim to the effect that the limitation of a qualified right
involves an important dignity concern enhances the weight of that right’s weight in the balancing stage.
This makes sense in that the closer any given limitation comes to the basic core of a qualified right, the
closer we come to an expression of the dignity norm itself, as a subjective right. As readers of this Journal
may well know, the German Basic Law (Art. 19(2)) stipulates that it is not permissible for any state actor
to violate the “essential content” of a qualified right, a position that has widely diffused in Europe and
beyond.

18
Barak, “Human Dignity as a Value and as a Right in Constitutions,” Dignity, op cit., ch. 4.
19
See Kai Möller, “Beyond Reasonableness: The Dignitarian Structure of Human and Constitutional Rights,”
Canadian Journal of Law & Jurisprudence 34(2) (2021): 341–64.
20
Jean-Paul Costa, “Human Dignity in the Jurisprudence of the European Court of Human Rights,” in C.
McCrudden (ed.), Understanding Human Dignity - Proceedings of the British Academy, 192 (2013): 393–402.
Antoine Buyse, “The Role of Human Dignity in ECHR Case Law,” (ECHR Blog,21 October 2016), online at:
https://www.echrblog.com/2016/10/the-role-of-human-dignity-in-echr-case.html.
21
Stone Sweet and Palmer, “A Kantian System of Constitutional Justice,” op cit.
22
Alec Stone Sweet and Jud Mathews, Proportionality and Constitutional Governance: A Comparative and Global
Approach (Oxford University Press, 2019): ch. 2.
23
Mattias Kumm and Alec Walen, “Human Dignity and Proportionality: Deontic Pluralism in Balancing,” in G.
Huscroft, et al (eds.), Proportionality and the Rule of Law: Rights, Justification, Reasoning (Cambridge University
Press, 2014): 67–89.

Electronic copy available at: https://ssrn.com/abstract=4140924

Fourth, human dignity gives empirical content to what is, in effect, a Grundnorm. 24 This is a
controversial, and undoubtedly minoritarian view, yet it will be familiar even to its detractors. The idea
helps to explain why human dignity occupies the paramount position it has been given by courts and
scholars. Dignity constitutes a primordial constitutional value – a building block – that is (a) universal,
prior, and external to any specific legal system that recognizes it, and (b) a cornerstone of positive
constitutional law, thereby rationalizing why courts interpret is as they do (points 1-3 just made). In
Kelsen’s original formulation of the Grundnorm concept, the Basic Norm comprises a presupposed
theoretical construction. 25 Kelsen located the Grundnorm outside of the constitution per se; its function is
to provide a normative basis for accepting the constitution itself as higher law. Kelsen insisted that the
Grundnorm was devoid of substantive content, 26 but for the command (X): “thou shalt accept the binding
authority of the constitution.” The dignity concept regresses further, providing an answer to the question:
why must one comply with this command (X)? Indeed, Barak stresses, dignity must “influences the
interpretation of every sub-constitutional norm in the legal system,” in that it “radiates upon the entire
sub-constitutional law.” 27 Eberle states the matter simply: human dignity is “the ‘higher law’ of …
constitutionalism.” 28 The logics behind such pronouncements have today been adopted and adapted in
dozens of legal orders.

1.2 The Use of Dignity for Illiberal Purposes

So far, we have underlined the progressive, rights-protecting aspects of the dignity norm. The themes just
discussed are now actively debated in present-day China. In the new Civil Code, dignity has been given
the highest rank as a statutory right, and many legal elites consider it to be directly linked to the
Constitution of the PRC, as well as comprising the ultimate basis of the PRC’s legal system. Nonetheless,
there are reasons to worry that dignity can and will be used in illiberal ways, as has been documented in
many systems around the world. Dignity’s very omnipotence makes it irresistible to officials seeking to
block personal liberties. In Europe, courts have at times recognized efforts to restrict an individual’s
freedom in the name of protecting that same individual’s dignity, leading to charges of paternalism. 29 In
authoritarian regimes, dignity has been used to criminalize criticisms of state officials, under the guise of
defending the dignity, honor, and reputation of an official, the government, or the “People”. 30 In China,
Laos, Mozambique, and other states, the dignity of “the Constitution” is protected through the criminal
law, or enshrined in the constitutional text itself.

24
Alec Stone Sweet, “Human Dignity and Constitutional Justice,” Jurisprudence 11(2) (2020): 286–87.
25
Hans Kelsen, Pure Theory of Law (University of California Press, 1967): 8–10.
26
On the various ways in which the Grundnorm could nonetheless embed democratic values, see Andreas Kalyvas,
“The Basic Norm and Democracy in Hans Kelsen’s Legal and Political Theory,” Philosophy & Social Criticism 32
(2006): 573.
27
Barak, Dignity, op cit., 106.
28
Edward Eberle, “Observations on the Development of Human Dignity and Personality in German Constitutional
Law: An Overview,” Liverpool Law Rev 33 (2012): 229.
29
The French Council of State determined that certain “dwarf throwing” contests in bars comprised a dignity
violation of contestants, however voluntary their participation; see Susan Millns, “Dwarf-Throwing and Human
Dignity: A French perspective,” Journal of Social Welfare and Family Law 18(3) (1996): 375–91. In another well-
known example, a German administrative court banned an amusement park from hosting laser-based war games,
which involving “simulated killings,” on the grounds that such play violated Art 1.1 (human dignity) of the Basic
Law. The Court of Justice of the EU upheld the ban as a permissible restriction on economic freedoms: Case C-
36/02, Omega Spielhallen und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn [2004]
ECR I-9609.
30
Jack Donnelly, “Human Rights and Human Dignity: An Analytical Critique on Non-Western Conceptions of
Human Rights,” American Political Science Review 76 (1982): 303–16. Shulztiner and Carmi, “Human Dignity in
National Constitutions: Functions, Promises, and Dangers,” op cit., 483–89.

Electronic copy available at: https://ssrn.com/abstract=4140924

Bestowing “dignity” on state officials and institutions, and its deployment as a means of stifling dissent
and legitimizing the ruling elites’ policies weaken dignity and the charter of rights as commitment
devices. In China, political control over the civil society and Party-state bureaucrats has intensified over
time, with detrimental effects on judicial independence. 31 The current need for “stability maintenance”,
heightened as a result of tensions generated by the COVID-19 pandemic and control measures, continues
to prevail in official policy discourse.

Thus, although we now turn to the use of dignity as a commitment device – a promise to the Chinese
people to protect their rights – one must also assume that the CPC and Party-state institutions will tightly
control how dignity and all other rights will be interpreted and applied by the courts.

2. The Political Origins of the Dignity Norm in China

The CPC aggressively asserts that, for China, the political system it controls is superior to any alternative.
The Constitution of the PRC possesses a catalogue of rights, but the SPC and other organs have expressly
prohibited (direct) constitutional judicial review of state acts. Nonetheless, since the end of the Cultural
Revolution (1966–1976), officials have repeatedly promised to enhance political accountability through
strengthening rights protection and the professionalism and independence of the courts. CPC officials
expressly treat these initiatives as commitment devices. At the same time, the CPC’s resistance to
loosening its control over judges creates an obvious tension, comprising a defining feature of law and
politics in contemporary China.

The dignity norm first appeared in the Constitution of the PRC of 1982, 32 Art. 38 stating that:

The personal dignity of citizens of the People’s Republic of China is inviolable. Insult, libel, false
accusation or false incrimination directed against citizens by any means is prohibited.

The provision, which appears within the chapter on the “Fundamental Rights and Duties of Citizens,” has
survived intact despite subsequent revisions of the Constitution (1993, 1999, 2004, 2018). By the early
1980s, the CPC had firmly denounced the Cultural Revolution, for having led to organized violence and
social “instability.” Indeed, tens of thousands of innocent citizens and CPC officials (of both higher and
lower rank) were publicly shamed, imprisoned, and/or killed, without any semblance of modern standards
of due process. It was against this backdrop, that the framers of the 1982 text included a dignity provision
(Art. 38) which, they expected, would be widely associated with principles of personal (and familial)
honour and reputation. The Cultural Revolution, the CPC admitted, had done “massive” damage to the
“bodies and minds of individuals, as well as [exerting] a destructive effect on ... families and society.” 33 A
dignity provision had not been included in the 1978 Constitution, a Maoist-oriented, “revolutionary” text
that was finalized in the immediate aftermath of the Cultural Revolution.34 Thus, dignity only emerged in
the PRC once paramount leader Deng Xiaoping had consolidated power as China’s de facto leader, and
following the CPC’s admission that it had presided over a “regime of horror” of its own making.
31
He Xin, “Pressures on Chinese Judges under Xi,” The China Journal (2020): 49.
32
Dignity was not included in previous constitutional texts (1954, 1975, and 1978).
33
XIE Libin, [“Personal Dignity in Comparative Law Perspective: A Comparison between China and Germany –
And Deliberation with Professor Laifan Lin,” (2010) 28(4) Tribune of Political Science and Law 53, 62] 谢立斌，
《中德比较宪法视野下的人格尊严—兼与林来梵教授商榷》，《政法论坛》2010 年第 28 卷第 4 期，第 62
页。
34
The dignity provision was not included in the 1978 Constitution, which “has yet to free itself from the impact of
the Cultural Revolution,” HAN Dayuan, [“Constitutional Implementation and the Transformation of Social
Governance Model in China,” [2012] 4 Chinese Journal of Law 15, 16] 韩大元，《宪法实施与中国社会治理模
式的转型》，《中国法学》2012 年第 4 期，第 16 页。

Electronic copy available at: https://ssrn.com/abstract=4140924

The 1982 Constitution revived certain structural features of the 1954 Constitution, while seeking to
strengthen “humanity” and “humanism,” which the dignity norm was considered to encompass. As Han
put it: amendments to the 1978 Constitution “failed to remedy the deficiencies caused by a lack of
institutional rationality and dissociation from humanity,” and was therefore unable to “satisfy internal
[requirements] of transformation of social governance,” 35 including the growing “demands of the society
to protect dignity.” 36 As Xie summed up matters: the word “personal dignity” in Art. 38 [Const.] denoted
a basic right for citizens to be “respected,” and a clear condemnation of the atrocities committed in the
name of the state and society during the Cultural Revolution, including public shaming, insult,
defamation, and false incrimination.37

Leading constitutional scholars also reference the comparative dimension. 38 For Lin Laifan, Art. 38
results from “the painful lessons” learned from the Cultural Revolution, a product of consulting the
constitutional experiences of “foreign countries,” presumably the German. Dignity also served Deng’s
agenda to open up China to the world in his landmark Reform and Opening Up policy. After all, as Zhu
stressed, dignity’s “ideational basis” did not “originate in traditional [Chinese] culture and law,” but was
instead “a product of the implementational needs of modern society [that, in turn] necessitate[ed] learning
from Western constitutionalism.” 39

Art. 38 clearly establishes certain “negative obligations,” placing the state under a duty to respect the
basic rights of individuals. The first sentence of Art. 38 confers on citizens a right to defend themselves
against dignity violations perpetrated by state officials (and presumably other individuals), whereas the
second sentence focuses on several types of dignity violations, including the torts of “insults” and
“libel.” 40 The Chinese legal system does not easily recognize clear distinctions between “public” and
“private” domains of action, not least, since the Party-state governs both, and officials are assumed to
instantiate “the People”. In any event, Art. 38 unambiguously enshrines the duty of officials and
individuals to respect every person’s dignity, including in what elsewhere would be categorized as
horizontal, “private law” relationships.

35
ibid 17..
36
ibid.
37
XIE, “Personal Digntiy in Comparative Law Perspective: A Comparison between China and Germany,” op cit.:
62;
WANG Liming, [“Implementation of Personal Dignity in Personality Rights Law,” (2013) 7(5) Tsinghua Law
Journal 5, 9] 王利明，《人格权法中的人格尊严价值及其实现》，《清华法学》2013 年第 7 卷第 5 期，第 9
页。
37
The dignity provision was not included in the 1978 text.
38
XU Chongde, [A Constitutional History of the People’s Republic of China (Fujian People Press 2003) 794–96] 许
崇德，中华人民共和国宪法史 (福建人民出版社，2003 年) 第 794–96 页. Xu’s view is referenced in LIN
Laifan, [“Human Dignity and Personal Dignity – Interpretive Scheme of Article 38 of the PRC Constitution,” [2008]
3 Zhejiang Social Sciences 47, 48] 林来梵，《人的尊严与人格尊严—兼论中国宪法第 38 条的解释方案》，《
浙江社会科学》2008 年第 3 期，第 48 页。
39
ZHU Xiaofeng, [“Right to Personal Dignity as a General Personality Right – a Comparison with the General
Personality Right in German Tort Law,” (2014) 8(1) Tsinghua University Law Journal 49, 55 (footnote 33)] 朱晓峰
，《作为一般人格权的人格尊严权—以德国侵相： 法中的一般人格权为参照》，《清华法学》2014 年第 8
卷第 1 期，第 55 页 脚注 33。.
40
XIE, “Personal Digntiy in Comparative Law Perspective: A Comparison between China and Germany,” op cit.:
63–64.

Electronic copy available at: https://ssrn.com/abstract=4140924

In its most expansive form, dignity is meant to “guard against and preclude” the state’s use of coercion as
a means of interfering “with the free development of personality of all individuals.” 41 It does so, in part,
through memory: the dignity norm is symbolically set against – and immediately reminds one of – the
atrocities committed during the Cultural Revolution. Second, dignity has a juridical meaning: it comprises
a legal right binding upon the state and private actors. Third, by incorporating dignity into the
Constitution, China voluntarily recognized the most important of all standards of modern constitutional
law. These points made, in the absence of constitutional judicial review – to be exercised by, say, a
constitutional court that is meaningfully independent from direct CPC controls – dignity and any
associated rights comprise, at best, imperfect commitment mechanisms, and at worst, a mundane form of
organized hypocrisy. 42

Legal scholars have produced a dense and sophisticated debate on the scope and content of Art. 38 as a
legal norm, its presumed role in structuring the legal system, and its relationship with important statutes.
We examine these debates in part 4 below.

3. The Statutory Face of Dignity

Since 2010, the PRC has announced a series of high-profile legal reforms, the stated purposes of which
are to rationalize “governance,” enhance the “rule of law,” and expand judicial independence. The
promulgation of new rights-laden, judicially-enforceable super-statutes 43 sought to institutionalize these
goals. Meanwhile, the CPC and the NPC appeared to have authorized the development of new scholarly
discourse on rights-based adjudication and statutory judicial review. These same officials have apparently
acquiesced to debates touching on the possibility of the revival of constitutional judicial review, despite
the fact that its formal prohibition remains in place.

With regard to dignity, the NPC seemingly “implemented” 44 Art. 38 of the Constitution (1982) through
the General Principles on Civil Law [GPCL 1986]. The GPCL, which comprised an early attempt by the
NPC to adopt a super-statute, declares “Personal Rights” in Section Four. Art. 101 GPCL expresses
“personal dignity,” 45 which is instantiated (Arts. 102–104 GPCL) by the rights to: life and health; name
and likeness; honor and reputation; marriage and family; and gender equality. Compared to its successor,
the Civil Code of 2021, the GPCL is relatively short and laconic (156 articles), though it contains certain
formulas that would be incorporated into the Civil Code, including in Art. 1 GPCL:

This Law is formulated in accordance with the Constitution and the actual situation in our country, drawing
upon our practical experience in civil activities, for the purpose of protecting the lawful civil rights and
interests of citizens and legal persons and correctly adjusting civil relations, so as to meet the needs of the
developing socialist modernization.

The GPCL was the most important element of a spate of legislation designed to “correct,” up-date, and
repudiate the regime’s so-called “leftist” tendencies, which were viewed as having resulted in mass
starvation during the period of the Great Leap Forward (1958–1960), and the raging “chaos” of the

41
WANG Yu, [“Constitutional Theory and Systemization of Dignity,” [2016] 1 Chinese Journal of Law 37, 54] 王旭
，《宪法上的尊严理论及其体系化》，《法学研究》2016 年第 1 期，第 54 页。
42
Stephen Krasner, Sovereignty: Organized Hypocrisy (Princeton University Press, 1999).
43
Stone Sweet, BU, and DING, “Breaching the Taboo? Constitutional Dimensions of the New Chinese Civil Code,”
op cit.
44
WANG, “Implementation of Personal Dignity in Personality Rights Law,” op cit.: 9..
45
In the official English translation, the Chinese term – [人格尊严] “personal dignity” – is rendered as
“personality.”

Electronic copy available at: https://ssrn.com/abstract=4140924

Cultural Revolution. 46 The new legislation of the 1980s served to consolidate the PRC’s embrace of a
more market oriented, “socialism with Chinese characteristics.”

In recent years, the pace of legislative reform has accelerated, including new, “comprehensive” statutes on
property (2007), tort liability (2010), consumer protection (2013, 2018, 2019), e-commerce (2019), and
banking and finance (2017), much of which has now been replaced by (or restated in) the Civil Code
(2021). Since 2014, the CPC and the NPC have emphasized the strengthening of administrative
accountability, judicial independence, and remedies in the hands of the courts (e.g., the Administration
Litigation Law (2014, amending the 1989 act)). Likewise, the Party-state has undertaken a major revision
of the criminal law, the success of which however is open to debate, not least, as allegations of secret
arrests and wilful denial of due process remain rife. The Law on Criminal Procedure [1979, as revised in
1996 and 2012], also originally celebrated by Party elites as a commitment device, did not lead the regime
to loosen its iron grip on prosecutorial power and the courts, crushing the hopes of reformers. 47 The CPC,
however, continues to reaffirm its commitment to building constitutional rule of law. The Plan on
Building the Rule of Law in China (2020–2025) issued by the CPC Central Committee, 48 proclaims the
Party’s ambition to “Implement Comprehensively the Constitution and Resolutely Preserve the Dignity
and Authority of the Constitution”:

People of all ethnic groups, all state organs and armed forces, every political party, every social
organization, and all enterprises and institutions all have the responsibility of safeguarding the dignity of
the Constitution and ensuring the implementation of the Constitution, and they must not have the privilege
of exceeding the Constitution and laws. [One must] persist in the supremacy of the constitution and the law,
maintain[ing] the unity, dignity, and authority of the country's legal system. [N]o laws, regulations, or
normative documents may conflict with the constitution, and every violation of the constitution and laws
must be investigated. The party takes the lead in respecting and implementing the Constitution, unifying
the party's leadership … to formulate and implement the Constitution and laws … and guarantee[ing] the
effective implementation of the Constitution and laws.

3.2 The Civil Code of 2021

We now examine the main structural features of the new Civil Code (2021). The statute is organized as
seven “Books,” containing one or multiple “Chapters,” which, in turn, are comprised of “Sections”
framing a total of 1260 “Articles.”

The Code contains provisions on topics that most modern constitutions present in the form of a charter of
rights. These include: rights to dignity, equality, liberty, freedom of movement, due process, personality
rights more narrowly understood (to one’s name, honor, privacy, reputation, etc.); prohibitions banning
unlawful search and seizure, defamation and libel, and harming the rights of others; and a host of social
and economic guarantees (to social welfare and insurance, child support, marriage and inheritance, and so
on); as well as various norms of non-discrimination. In addition, the Code contains rights that are not

46
Tong Rou, “The ‘General Principles of Civil Law’ of the PRC: Its Birth, Characteristics, and Role,” Law and
Contemporary Problems 52(2), Special Issue: “The Emerging Framework of Chinese Civil Law” (Spring, 1989):
151, 152–56.
47
Joshua Rozenzweig, “Disappearing Justice: Opinion, Secret Arrest, and Criminal Procedural Reform in China,”
The China Journal 70 (2013): 73.
48
法治中国建设规划（2020–2025 年） “Plan on Building the Rule of Law in China (2020–2025)”, English
translation available at
<https://www.chinalawtranslate.com/en/%E6%B3%95%E6%B2%BB%E4%B8%AD%E5%9B%BD%E5%BB%BA
%E8%AE%BE%E8%A7%84%E5%88%92%EF%BC%882020-2025%E5%B9%B4%EF%BC%89/> accessed 28
May 2022.

Electronic copy available at: https://ssrn.com/abstract=4140924

found in the Constitution, including: of the foetus; to life, health, intellectual property; of victims of
sexual harassment to seek declarations of liability of the tortfeasor and compensation; among others.
Generally, the rights contained in the Civil Code are more “complete” than those in the Constitution: they
tend to be more clearly defined, given that they can be directly pleaded by litigants, and enforced by
judges.

Modern charters of rights, both national and international, typically share certain structural properties. 49
A small number of fundamental rights are expressed in absolute form, that is, they are not qualified by a
limitation clause. For present purposes, the most important provisions are the following:

Art. 109 (Civ. Cd.): The personal liberty and dignity of a natural person is protected by law.

Art. 110 (Civ. Cd.): A natural person enjoys the right to life, the right to corporeal integrity, the right to
health, the right to name, the right to likeness, the right to reputation, the right to honor, the right to privacy,
and the right to freedom of marriage. A legal person or an unincorporated organization enjoys the right to
entity name, the right to reputation, and the right to honor.

These rights, the content of which are fleshed out in subsequent chapters, are declared to be “protected by
law and free from infringement by any organization or individual” (Arts. 1002, 1003, 1004, 1005 [Civ.
Cd.]).

As in virtually all modern constitutions and human rights treaties, the rights found in the new Civil Code
are “qualified” by a “limitation clause,” which explicitly authorizes state officials, including judges, to
restrict the scope of the right for some sufficiently important public purpose. General limitation clauses
are announced in:

Art. 8 (Civ. Cd.): When conducting a civil activity, no person of the civil law shall violate the law, or offend
public order or good morals.

Art. 132 (Civ. Cd.): No person of the civil law shall abuse his civil-law rights and harm the interests of the
state, the public interests, or the lawful rights and interests of others.

These provisions are (virtually identical) analogs of the famous “General Clauses” of the German Civil
Code (1900), which heavily influenced the drafters of the present-day codes of Japan, South Korea, and
China. In Germany, it was through the general clauses that the German Civil Code was
“constitutionalized,” in effect, acting as portals through which dignity and the fundamental rights of the
Basic Law (1949) penetrated (or “radiated”) into the private law, as constitutional values. 50 In contrast,
one assumes that in China, “public policy” and “good morals” refer to the policy goals of the CPC, the
NPC, and the Party-state as a whole, rather than primarily to the importance of dignity and the charter of
rights. In addition, specific limitation clauses, some of which reproduce the “public policy” and “good
morals” standards (e.g., Arts. 999, 1012, 1020), are scattered throughout the Code.

With regard to dignity, it is worth emphasizing another comparative point. In Germany (as well as
domestic systems that have “constitutionalized” civil codes, the European Union, and the treaty-based
human rights regimes of the Americas and Europe), “human dignity” refers, first and foremost, to the
inherent right of all human beings (a) to be respected as juridical equals, and (b) to possess the freedoms
required to exercise meaningful self-determination. That is, the dignity norm grounds the liberty
necessary to freely develop one’s personality. A host of other rights (to privacy, honor, name and likeness,

49
Stone Sweet and Mathews (n 11) 31–41, 162–63.
50
Stone Sweet, BU, and DING, “Breaching the Taboo? Constitutional Dimensions of the New Chinese Civil Code,”
op cit.

10

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and so on) are important “personality rights” that are derived from dignity. In China, “personal dignity”
is often directly defined by these same “personality rights”; indeed, officials and scholars typically
consider Art. 110 (Civ. Cd.) to have implemented Art 109 (Civ. Cd.). The Code then goes on to
operationalize “personal dignity” in “Book Four – Personality Rights” (Arts. 989–1039), within bespoke
chapters devoted to the rights to life, bodily integrity, health, name, likeness, reputation and honor,
privacy and the protection of personal data, marriage and family, and so on, along with limitation clauses
(e.g., Arts. 990, 1020). While “personal dignity” appears to be a relatively narrow concept, its symbolic
importance is paramount, considering the backdrop – the atrocities perpetrated during the Cultural
Revolution – against which it was adopted.

We have left three important structural features of the new Civil Code for last. First, the most important
rights enumerated in the Code are simply announced, often without giving interpretive guidance of any
kind. Second, Art. 3 makes it clear that the Code is fully judicially enforceable:

Art. 3 (Civ. Cd.): The personal rights, proprietary rights, and other lawful rights and interests of the persons
of the civil law are protected by law and free from infringement by any organization or individual.

Taken together, these points point to a major act of delegation of authority to judges, given that the rights
found in the Constitutional of the PRC are not judicially enforceable. Third, Art. 1 declares that the Code
complies with the Constitution:

Art. 1 (Civ. Cd.): This Law is formulated in accordance with the Constitution of the People’s Republic of
China for the purposes of protecting the lawful rights and interests of the persons of the civil law, regulating
civil-law relations, maintaining social and economic order, meet the needs for developing socialism with
Chinese characteristics, and carrying forward the core socialist values.

These points raise intriguing questions of interpretation. What exactly is the legal relationship between
the Code and the Constitution? Does Art. 1 (Civ. Cd.) open a portal from the Code to the Constitution and
vice-versa, making the latter indirectly enforceable? To what extent did the CPC and NPC mean to confer
on judges the lawmaking power necessary to clarify “incomplete” rights provisions and fill legislative
gaps?

4. The Scholarly Face of Dignity

Academic lawyers have intensively deliberated on the content and status of dignity norm within the
Chinese legal system. These discussions have intensified in recent years, as dignity began to diffuse to
different realms of law, including private law. For the sake of analytical clarity, we found it useful to
divide the scholarly discussions on dignity into three broad issues:

(a) the relationship between the Constitution and the Civil Code: is dignity a meta-norm?

(b) the prohibition of judicial review: did the CPC and the NPC confer onto judges the power to
interpret dignity and associated rights as statutory, but meaningfully “constitutional,” norms?

(c) the scope of dignity: is the scope of the dignity norm strictly defined as those “personality
rights” enumerated in the Civil Code?

On each issue, scholars typically espouse a range of different views that cannot always be neatly
compartmentalized. We, therefore, present the most important and representative views from different

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“camps,” broadly conceived, in order to make certain broader points, while seeking to avoid simplifying
distortions. While these issues overlap in important ways, they deserve to be analyzed separately. 51

4.1 Human Dignity as a Constitutional Meta-Norm

Post-2000 publicists on the constitutional status of the dignity norm can be divided into two groupings:
progressives and traditionalists. Progressives rely heavily on three well-springs of support: (a) Kantian
philosophy, (b) the global consensus on dignity as a meta-norm (part 1), and (c) the relevant jurisprudence
of foreign courts, in particular, that of the GFCC. The second group are the “traditionalists,” scholars who
may exhibit receptiveness to “foreign” concepts and doctrines, while being acutely aware of the
difficulties that such transplantation presents. Traditionalists tend to embrace a more textualist or
originalist interpretation of the Constitution. We stress, in advance, that neither camp holds clear-cut,
monolithic views. Nonetheless, the similarities that define the respective domains of each camp are plain
and robust; 52 and, starting from different premises, each group opposes the other’s methodology,
reasoning, and conclusions.

Virtually all progressives frame the legal concept of dignity in light of Kantian theory, often supplemented
by other sources such as dignity’s ecclesiastical roots, or Greco-Roman philosophy. Analysts openly
admit that Kantian ideas are not easily linked to traditional Confucian or Marxist-socialist thought, but
insist that they should apply to China. One striking aspect of discourse is the fact that both progressives
and traditionalists illustrate the relevance of Kant through analysis of important rulings of the GFCC. 53
Widely discussed are the GFCC’s decisions in Aviation Security (2006), Investment Aid (1954), and
Abortion I (1975). Progressives emphasize that human dignity comprises a foundational constitutional
value underpinning the entire constitutional order (including constitutional rights) of China; and for many,
dignity functions as an independent “parent” right, not least, since it has been codified as a cluster of
important personality rights 54 Progressives assert that transplanting dignity to China and interpreting it as
a foundational meta-norm of the Constitution is, justified and necessary, given its importance globally.
Traditionalists reject such arguments: they allegedly lack textual and originalist support, are based on
erroneous interpretive methodologies, and wrongly transplant the German model to China.

Traditionalists cling onto the notion that dignity is limited to “personal dignity,” though the scope of the
latter is unclear. Some traditionalists agree with the progressives that “personal dignity” is defined by
non-exhaustive “personality rights” – such as those enumerated in the new Civil Code – while others
argue that dignity should be construed strictly, in conjunction with the second part of Art. 38 [Const.]
prohibiting insult, libel, false accusation, and false incrimination. Unlike progressives, who see dignity as
a meta-norm providing the foundation for all other constitutional rights, traditionalists treat dignity as
occupying the same rank as other constitutional rights. Dignity thus would comprise one constitutional

51
We recognize that neither the “traditionalist” nor the “progressive” camp is monolithic, and that there exist
important disagreements within each group.
52
Our presentation is necessarily truncated and schematic. In addition, as indicated, we at times impose our own
reconstructive interpretation of these debates, with which not all Chinese authorities would agree.
53
Including: LIN, “Human Dignity and Personal Dignity – Interpretive Scheme of Article 38 of the PRC
Constitution,” op cit.:48; XIE, “Personal Digntiy in Comparative Law Perspective: A Comparison between China
and Germany,” op cit.:54–57; LIAO Zhigang, [“Constitutional Significance of Personal Dignity,” [2007] 1 China
Legal Science 37, 38–39 ] 刘志刚，《人格尊严的宪法意义》，《中国法学》2007 年第 1 期，第 38–39 页。
54
For a slightly different view, see CHU Chen, [“The Concept of Human Dignity in Constitutional Law: In
Comparative Perspective,” (2017) 25(6) Journal of Chengdu University of Technology (Social Sciences) 1, 6] 楚晨
，《人的尊严的宪法含义—从比较法视角解析》，《成都理工大学学报（社会科学版） 》2017 年第 25 卷第
6 期，第 6 页 (taking the view that personal dignity does not provide the basis for all other constitutional rights and
is instead to be directly equated with personality rights)。

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value among many others. 55 Analyses of the new Civil Code (2021) typically proceed on the assumption
that personality rights simply “implement” Art. 38 of the Constitution, without referencing alternative
views. Some important traditionalists, however, accept that their objections would weaken or even fail
altogether if the Constitution was to be formally revised to give dignity the clear status of a meta-norm (as
proposed by some of the progressives). The CPC’s explicit consent to such a change is understood as the
crucial factor.

Most progressives address the huge gap between their arguments, on the one hand, and the text of the
Chinese Constitution, on the other. Some conclude that dignity comprises the foundational norm of the
Constitution by recourse to foreign examples. Others argue that the Constitution should be reformed,
allowing them to arrive at the same result. The most common proposal proceeds in two steps. First, one
claims that dignity comprises the supreme constitutional value of the Constitution, usually through
arguments that closely resemble German constructions of dignity. 56 No less a personage than Lin Laifan,
who has long argued that, dignity is – inherently – a constitutional value, and the ultimate source of
rights, which entails accepting that Chinese legal order is grounded in Art. 38 (Const). 57 Lin also
advanced an interpretive scheme that would cement dignity as the foundational norm of the Chinese
Constitution. 58 Others deny that interpretation, on its own, could produce Lin’s desired results. A second
step may thus be necessary: the Constitution should be formally amended, so as to give human dignity
pride of place in the Preamble, as well as in Art. 1. 59

4.2 Statutory Interpretation and the Prohibition of Constitutional Review

Most readers will know that the SPC prohibited direct constitutional judicial review, upon voiding a
“Reply” that had been previously rendered in the famous Qi Yuling (2001) case. That litigation involved
an instance of identity theft, by one student against another, in order to obtain admission to a vocational
business school. In the first Reply, the SPC, upon request from the Shandong High People’s Court, had
stated that Qi’s right to education (Art. 46 Const.) had been violated. The SPC’s second Reply (2008)
annulled its own interpretation, making it clear that constitutional rights could not be directly applied by
the courts. Putting the matter in this way left open whether constitutional rights could have horizontal
indirect effect, as they would elsewhere under rulings such as Lüth. This debate has been examined
elsewhere, 60 and for present purposes it is enough to make three summary points.

First, some argue that the new Civil Code (2021) is a “supplement” to the Constitution; thus, ersonality
rights in the Civil Code reflect and “implement” Art. 38 (Const). This line of reasoning implies that
judges are under an obligation to produce “constitutionally-conforming” interpretations of the Code’s
provisions. The view is harnessed to Art. 1 (Civ. Cd.), which states the Civil Code is enacted in

55
ZHENG Xianjun, [“The Normative Rank of the ”Personal Dignity” Provision in the Constitution,” [2012] 2 China
Legal Science 79, 87–88] 郑贤君，《宪法“人格尊严”条款的规范地位之辨》，《中国法学》2012 年第 2 期，
第 187–88 页 ; cf DONG Wanyu, [“A Study of the Meaning of “Personal Dignity” in the Constitution,” [2021] 8
Legal System and Society 175, 176] 董婉钰，《对宪法中“人格尊严”内容的探析》，《法制与社会》2021 年第
8 期，第 176 页。
56
An early proponent of this view is LI Lei: LI Lei, [“On Human Dignity: In the Perspective of Constitutional Law,”
(2002) 42(6) Journal of Sun Yatsen University 129] 李累，《宪法上“ 人的尊严”》，《中山大学学报(社会科学
版)》2002 年第 42 卷第 6 期，第 129 页.
57
LIN, “Human Dignity and Personal Dignity – Interpretive Scheme of Article 38 of the PRC Constitution,” op cit.
58
ibid.
59
XIE, “Personal Digntiy in Comparative Law Perspective: A Comparison between China and Germany,” op
cit.:66..
60
Stone Sweet, BU, and DING, “Breaching the Taboo,” op cit.

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accordance with the Constitution. It is also broadly congruent with the dictates of Lüth, as the basics of
the GFCC’s jurisprudence has diffused to domestic systems across the globe, including to South Korea
and Taiwan. 61 Some, such as Civil Code drafter Wang Liming, expressly argue that the Civil Code (2021)
comprises “quasi-constitutional” legislation, whose function is to “implement” and “concretize”
“constitutional values.” 62

Second, scholars are acutely aware of the fact that the most important rights enshrined in the new Code,
as well as the general clauses (limiting private law rights for reasons of “public policy” and “good
morals”) are left vague and undefined. 63 The promulgation of vague but enforceable provisions of the
Code indicates that the NPC intended to delegate to the courts and legal science the task of “completing”
incomplete norms. Further, a growing number of scholars agree that the proportionality principle,
including a balancing stage, should govern the adjudication of qualified rights. 64 The courts are expected
to do so under the supervision of the CPC, the NPC, and the SPC (part V).

Third, the SPC’s decision in the Qi Yuling did not stop judges from engaging in constitutional
interpretation, especially as a mode of justification for their decisions. Two empirical projects are worth
noting. Sprick has shown that courts continue to invoke constitutional provisions to buttress the authority
of their decisions, and as tools to interpret other laws. They do so without citing constitutional provisions
as bases for their decisions, which remains formally banned. 65 For his part, Du maintains a project
documenting why these interpretations matter, not least, from the point of view of remedies, as courts can
and do “read in” or “read out” statutory norms in order to render the legislation under review compatible
with the Constitution. 66 In any event, the new Civil Code (2021) did not close, but rather left glaringly
obvious, important gaps in the private law. Not surprisingly, traditionalists remain opposed to judicial
interpretation or citation to the Constitution, implying that the practices Sprick and Du have detailed are
per se illegitimate under the SPC’s Qi Yuling ruling and other logics. 67 Going forward, a key question is
whether such interpretive practices will coalesce into a coherent approach to making the Constitution at
least indirectly justiciable. As Kumm has argued, in Germany and elsewhere the distinction between
horizonal indirect effect and horizontal direct effect exerts virtually no significance to how rights are

61
Stone Sweet, BU, and DING, “Breaching the Taboo,” op cit.
62
WANG Liming, [“What Does ‘Enacting Civil Law in Accordance with the Constitution Mean’?,” [2017] 1 Law
and Modernization 71, 79] 王利明，《何谓根据宪法制定民法？》，《法治现代化研究》2017 年第 1 期，第
79 页。
63
Even before the enactment of the Civil Code, scholars have noticed the same problem in its predecessors, such as
the General Principles of Civil Law: see, for example, LIU Yadong, [“On the Methodology of the Application of the
General Articles of Civil Law,” [2019] 12 Political Science and Law 78] 刘亚东，《民法概括条款适用的方法论
》，《政治与法律》2019 年第 12 期。
64
See, for example, LIU Quan, [“Abuse of Rights, Boundaries of Rights and the Principle of Proportionality: From
Article 32 of the Civil Code,” [2021] 3 Law and Social Development 39] 刘权，《权利滥用、权利边界与比例原
则—从 《民法典》第 132 条切入》，《法制与社会发展》2021 年第 3 期; ZHENG Xiaojian, [“Applicability
and Expansion of the Principle of Proportionality in Civil Law,” [2016] 2 China Legal Science 143] 郑晓剑，《比
例原则在民法上的适用及展开》，《中国法学》2016 年第 2 期。
65
Daniel Sprick, “Judicialization of the Chinese Constitution Revisited: Empirical Evidence from Court Data,”
(2019) 19(2) The China Review 44.
66
DU Qiangqiang, [“Practice of constitutionality-based Interpretation in Chinese Courts,” [2016] 6 China Legal
Science 107] 杜强强： 《合宪性解释在我国法院的实践》，《中国法学》2016 年第 6 期.
67
For an overview of the debates, see ZHANG Zhuoming, [“The ‘Possible’ and ‘Impossible’ of Citing the
Constitution in Judgments – A Legal Analysis of the Dichotomy between ‘Reasons of the Judgment’ and ‘Basis for
the Judgment’,” (2021) 475(6) Law Science 57, 65–66] 张卓明，《裁判文书援引宪法的“能”与“不能”—“裁判说
理”与“裁判依据”二分政策的法理解读》，《法学》2021 年第 6 期，第 65–66 页。

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actually enforced in the private law, 68 once constitutionalized, beyond preserving certain (formalistic and
rhetorical) distinctions between “private” and “public” law litigation.

4.3 Dignity as “Personality Rights” Narrowly Conceived

One of the most challenging issues facing Chinese scholars and judges will be to determine the precise
relationship between “human dignity” and “personal dignity” (as defined directly by personality rights).
The Chinese formulation is often ambiguous: CPC and political officials use the terms interchangeably,
virtually never distinguishing them; and a set of norms associated with “personality rights” (to honor and
reputation; privacy; likeness; etc.) are used to operationalize “dignity” more concretely in Book Four
(Civ. Cd.). As we have noted, traditionalists reject the claim that human dignity comprises a diffuse
constitutional “value,” arguing that it ought to be narrowly construed as an independent right, a shield
against libel, insult, false accusation and false incrimination. Progressives counter that personal dignity in
Art. 38 [Const] comprises both a foundational constitutional value and a (non-exhaustive) covering rule
for “personality rights” more generally. In the Civil Code, Art. 109 (Civ. Cd.), which announces the
“personal liberty and dignity” of “natural persons,” is considered the primary norm, while Art. 990 (Civ.
Cd) contains two parts:

1. Personality rights are the rights enjoyed by persons of the civil law, such as the right to life, the right to
corporeal integrity, the right to health, the right to name, the right to trade name, the right to likeness, the
right to reputation, the right to honor, the right to privacy, and the like.

2. In addition to the personality rights provided in the preceding paragraph, a natural person enjoys other
personality rights and interests arising from personal liberty and human dignity.

Art. 990.1 (Civ. Cd) comforts the traditionalist position (though it goes beyond the four prohibitions
defined in the second part of Art. 38 (Const.)), whereas Art. 990.2 (Civ. Cd.) supports the wider, more
open-ended, scope that progressives prefer.

As noted, some scholars, as a matter of constitutional theory, support the GFCC’s ruling in Lüth (1958).
The relevance of the Lüth decision to the Chinese situation is strengthened by the promulgation of the
new Code. The Lüth decision, of course, led to the penetration (radiation) of “objective” constitutional
values into the private law, radically enhancing the scope of rights and the importance of judicial review.
In China, one major question is whether the Civil Code, and doctrines of its horizontal indirect effect,
opens interpretive space for judges and legal science to manage the relationship between the private law
and the constitution, despite the formal prohibition of constitutional judicial review.

Some scholars participated in drafting the new Code as members of the NPC, and we take their
subsequent published views tom be those of legal agents of the CPC. Sun Xianshong – a law professor,
NPC deputy, and a member of the Academy of Social Sciences – has recently published an extensive,
commentary on the Code in the quasi-official, China Law, a journal subtitled, “A Professional,
Authoritative Record of the Rule of Law.” Sun’s exposition reveals, but does not resolve, some of the
underlying tensions raised in this paper. The article celebrates the fact that the Code is the most important
statute ever adopted in the PRC, in that it (a) expresses the “fundamental social norms” of the PRC, (b)
serves to “enhance the humanistic spirit of China’s legal system, on the basis of human dignity,” and (c)
“protect[s] the rights of natural persons.” 69 These statements might appear to give credence to the view
that the Code constitutes, in part, a type of statutory bill of rights. However, Sun pointedly dispels such
notions, declaring that the Code is “superior” to a charter of rights, in that the latter is merely
68
Mattias Kumm, “Who Is Afraid of the Total Constitution? Constitutional Rights as Principles and the
Constitutionalization of Private Law,” (2006) 7 German Law Journal 341, 352.
69
SUNg, “Reflections on Function of National Governance of China’s Civil Code,” op cit.:82–89..

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“aspirational” and “cannot bring [citizens] any tangible benefits.” He provides two examples, both of
which fail to prove his point, and in spectacular fashion: the 1789 French Declaration of the Rights of
Man (which is enforceable by the French constitutional court, alone and in conjunction with the Supreme
Court and Supreme Administrative Court); and the 1948 Universal Declaration of Human Rights of the
UN (which is a constituent component of the international bill of rights, and is regularly enforced by
national and international courts).

Sun also addresses the issue of constitutional judicial review, referring expressly to the Qi Yuling episode.
In his view, Art. 109 (Civ. Cd.) would now resolve the case on its own, since the courts could simply
apply it without reference to the Constitution. Sun, however, opted not to take a clear position on whether
Art 1 (Civ. Cd.) integrates the substantive provisions of the Constitution and the Code, or whether judges
are able to justify their rulings on the Code with reference to the Constitution. His commentary would
seem to point to a rejection of such arguments. In most instances, Sun suggests, judges will have no need
to meddle in “constitutional” interpretation to perform their tasks under the Code effectively.

Others who helped to draft the Civil Code disagree on these same points. Wang Liming emphasizes, for
example, that the dignity provisions in both the Civil Code and the Constitution will regularly overlap in
litigation of the Code, such that dignity in the Constitution must be recognized as a guiding norm of the
private law. 70

V. Mechanisms of Control

We now turn to how the legal system has formally processed the dignity norm. In the PRC, there exists a
panoply of procedures whose purpose is to monitor and control the decision-making of the courts. Here,
we focus on the relevant activities of (a) the judiciary, including how the SPC has responded to ordinary
court decisions interpreting dignity; and (b) the organs of the Party and of the NPC when either is
engaged in supervising the courts.

V. 1 Judicial Controls: The Supreme People’s Court

Since 2013, before the Civil Code (2021) came into effect, China Judgments Online reports some 1719
cases involving dignity, including 581 cases dealing with emotional compensation, 579 on other
compensatory damages, 491 dealing with apologies related to civil liability, 445 with tort, 427 with the
right of reputation, and 220 dealing with the right of honor. These are all “personality rights” enumerated
in Book 4 in the Civil Code. The SPC is empowered to issue authoritative “Judicial Interpretations”
(having the full force of law) in order to settle disputes of legal interpretation that arise in the courts. For
example, the SPC has issued a Judicial Interpretation concerning the use of facial recognition technology
which lists, among others, several situations where the mishandling of facial recognition information
constitutes a violation of one’s personality right.71 At present, the SPC is “researching” the utility of

70
WANG Liming, [“Personal Dignity: The Primary Value in the Civil Code Book on Personality Rights,”[2021] 1
Contemporary Law Review 3, 3–5] 王利明，《人格尊严: 民法典人格权编的首要价值》，《当代法学》2021
年第 1 期，第 3–5 页。
71
SPC, [“Provisions of the Supreme People’s Court on Several Issues concerning the Application of Law
in the Trial of Civil Cases Relating to Processing of Personal Information by Using the Facial
Recognition Technology” Interpretation No. 15 [2021]] 最高人民法院关于审理使用人脸识别技术处理
个人信息相关民事案件适用法律若干问题的规定， 法释〔2021〕15 号, English translation available at:
<https://www.chinalawtranslate.com/en/quicktake-spc-facial-recognition-interpretation/> accessed 28
May 2022.

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rendering an Interpretation on the judicial protection of personal information and the right to privacy in
the area of information technology. 72

The SPC also publishes “Guiding Cases”, a corpus of “representative” judicial decisions that are
determined to be important, while lacking binding force as precedent. Local courts are permitted to quote
these guiding cases as reasons, but not as basis, for their judgments. No Guiding Cases in respect of the
dignity norm and personality rights has yet been issued. Other than Guiding Cases, the SPC also from
time to time publish other types of “Typical” or “Model” cases which (while lacking the authoritativeness
of Guiding Cases) serve a similar function of demonstrating how relevant laws and statutes ought to be
applied. In April 2022, a cluster of rulings – entitled Nine Typical Civil Cases of Judicial Protection of
Personality Rights After the Promulgation of the Civil Code 73 – were issued by the SPC. These involved
such matters as: changing the name of a minor; the right to label a tombstone; the prohibition of
unauthorized use of another’s likeness occasioned by artificial intelligence software; and the correction of
a debtor’s records; and the trading of personal information unlawfully obtained. In addition, the SPC is
empowered to publish Official Replies, which respond to questions sent to it by lower courts (akin to a
“concrete review,” preliminary reference system). The Reply to the Shandong High People’s Court in the
Qi Yuling case is one example. To date, no Official Replies reference the dignity norm.

Lawyers and NGOs are presently engaged in challenging the judiciary to expand its capacity to protect
rights, including dignity. Many of these involve the Civil Code. A pending test case, which technically is
based on the Civil Code’s predecessor statute – the GPCL – deserves emphasis. The case involves gender-
based discrimination – which is linked to personal dignity in the new Civil Code – occasioned by the
refusal of providers of certain reproductive medical services to freeze and store the eggs of women, while
allowing the same for male sperm. Counsel for the plaintiff originally proposed three arguments, the first
two of which related to dignity: personality rights, bodily integrity, and a medical contract. In the end,
only the first set of arguments was retained. Plaintiffs’ arguments relied heavily on balancing to show that
the prohibition was not only an incidence of direct discrimination – illegal under both constitutional and
statutory law – but was not “necessary” on policy grounds. Classified as “highly sensitive,” CPC officials
have blocked the release of the ruling of a Beijing court of first instance (2019), and have delayed the
judgment of the second instance since deliberations of September 2021. The case, along with related
cases in other provinces, will be closely watched. Officials have ended their infamous “one child” policy,
and are now openly encouraging families to have more children, given demographic projections
predicting labor shortages.

V. 2 Political Controls: The National People’s Congress and the Communist Party of China

Within the legislature – the NPC – various formal means exist to control judicial outcomes. These
“political review” procedures, which ground review of legislation and associated legal norms, have been
analyzed elsewhere and shown to be weak and ineffective. 74 Most importantly, these controls often fail to
produce reason-based decisions that are sophisticated or detailed enough to give meaningful guidance to
the judges who process litigation. In 2018, the NPC Law Committee was rechristened the NPC
Constitution and Law Committee [CLC], and given a stronger mandate to engage in the ex ante review of
legislative proposals. At the same time, the Legislative Affairs Committee of the Standing Committee of

72
China Daily, “Top Court Works to Advance Personality Rights” available at:
<https://www.chinadaily.com.cn/a/202103/07/WS60446163a31024ad0baad528.html> accessed 28 May 2022.
73
SPC, [“Nine Typical Civil Cases of Judicial Protection of Personality Rights After the Promulgation of the Civil
Code”] 民法典颁布后人格权司法保护典型民事案例, Chinese version available at
<https://www.court.gov.cn/zixun-xiangqing-354261.html> accessed 28 May 2022.
74
Stone Sweet, BU, and DING, op cit.

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the NPC [LAC] was delegated and tasked with the ex post (as applied) supervision of the legality,
constitutionality and uniformity of various legal norms, through the Recording and Review procedure. 75

In the realm of dignity, there is little to report of interest in the domain of ex ante abstract review of
proposals by the CLC. 76 Of the 189 opinions and comments made by the CLC on draft laws to date,
eleven referred to the dignity norm. 77 Three of these concern the dignity of the state (Law on Protection of
Heroes and Martyrs), the national flag (National Flag Law), and the national emblem (National Emblem
Law). Thus, for example, the CLC initiated an amendment to the Heroes and Martyrs bill to enable the
prosecution of any who would disseminate photos of figures in Japanese WWII military uniforms (on the
grounds that glorifying “the war of aggression” undermines the state’s dignity). 78 Five concerned the
personal dignity of certain classes of citizens, including of medical personnel (Law on Promotion of Basic
Medical and Health Care), physicians (Physicians Law), juveniles (Juvenile Delinquency Prevention
Law), judges (Judges Law), and procurators (Procurators Law), as well as the dignity of heroes and
martyrs (Law on Protection of Heroes and Martyrs).

For its part, the LAC has issued annual reports on the Recording and Review procedure only since 2017.
The LAC is not required to report its review activities in detail. Indeed, in the five reports published
during the 2017–2021 period, a total of 47 “representative” instances of review are mentioned; six involve
constitutional issues, and only one concerns dignity. The latter concerns a piece of local regulation that
mandated paternity testing to investigate one-child policy breaches (the LAC held that the parent-child
relationship belongs to the fundamental rights and interests protected by the Constitution for it involves
personal dignity, identity, the privacy of citizens, and the harmony and stability of family relations). 79
Many more of these instances of review would clearly be classified as dignity-related outside of China,
although the LAC refused to analyze these through a dignitarian lens. An important example is the
infamous Custody and Education system that had authorized the police to impose arbitrary detention of
those engaged in prostitution. The system primarily punished low-income and socially marginalized
women, subjecting them to harsh punishment, corrupt management, and even slave labor.80 Scholars,
lawyers, and activists had long sought the regime’s abolition. The LAC agreed, recommending to the
Standing Committee of the NPC that the system be abandoned; but the stated grounds for doing so was
“social consensus” and “the state of development of societal, democratic, and rule of law factors,” which
taken together had rendered the measures no longer necessary. 81 The Standing Committee of the NPC

75
Paul Law and Trevor TW Wan, “Recordation and Review by the National People’s Congress Standing Committee
under the Hong Kong Basic Law,” 52 Hong Kong Law Journal (2022): 43, 50–56.
76
In 2021, it engaged in the ex ante review of more than 100 bills. 全国人民代表大会宪法和法律委员会关于第十
三届全国人民代表大会第一、第二、第三、第四次会议主席团交付审议的代表提出的议案审议结果的报告
[Reports of the Constitutional and Law Committee of the NPC on the Review Outcome of Motions Submitted by the
Deputies Referred for Review by the Presidium of the First, Second, Third, and Fourth Sessions of the Thirteenth
National People’s Congress], available at <http://www.npc.gov.cn/npc/c12491/list_2.shtml>.
77
Data collected from NPC official archive <http://www.npc.gov.cn/npc/c12435/list.shtml> and People Data
<http://data.people.com.cn/> based on information available.
78
Art. 185 of the Constitution states that: “A person who infringes upon the name, likeness, reputation, or honor of a
hero or a martyr, among others, causing damage to the public interest, shall assume civil liability.”
79
For details, see WEI Changhao, “Recording & Review: Invalidating Compulsory Parentage Testing as a Tool to
Enforce Birth Quotas,” (NPC Observer, 22 December 2021) <https://npcobserver.com/2021/12/22/recording-
review-invalidating-compulsory-parentage-testing-as-a-tool-to-enforce-birth-quotas/>.
80
HE Haibo, [‘On Custody and Education’ (2015) 27(2) Peking University Law Journal 438] 何海波，《论收容教
育制度》，《中外法学》2015 年第 2 期.
81
Standing Committee of the NPC Legislative Affairs Commission, [Report on the Work of Filing and Review in
2018] 全国人民代表大会常务委员会法制工作委员会关于 2018 年备案审查工作情况的报告, available at
<http://www.npc.gov.cn/npc/c12491/201812/afbfcb16af1d455b86dfb0cb4175ba2a.shtml> accessed 28 May 2022.

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concurred, eventually voting to abolish the system. 82 In 2021 alone, the Standing Committee of the NPC
received a total of 6,339 requests for review from private citizens and organizations and among 5,741 was
taken up by the LAC. 83 These figures testify to a nascent and robust social demand for better rights
protection in the PRC.

In addition, certain CPC organs also have responsibility to monitor and control judicial outcomes, the
most important being the Political-Legal Affairs Committee [PLAC], a constituent body of the Central
Committee of the CPC. The PLAC is charged with guiding and supervising the work of the entire
political-legal domain, which includes the judiciary, procurators, and administrative officials working in
public and state security. As part of the Party system, the PLAC’s work mainly reflects Party rules and
priorities. Some of the most relevant procedures are case coordination and case inspection. 84 Case
coordination aims to facilitate conflict resolution and coordination between state institutions, while case
inspection involves the investigation and settlement of cases involving alleged breaches of CPC (or legal)
rules. 85 Both channels enable the CPC to intervene in cases that are legally significant, socially salient, or
politically sensitive. Unfortunately, it is virtually impossible to provide an overview or analysis of how
these procedures actual operate, since no central Party organ releases information (research has uncovered
aspects of the work of local PLACs 86). To our knowledge, no national-level rulings concern the dignity
norm.

Conclusion

In the formal pronouncements of its political leaders, and the writings of some of its most important
scholars, China has embraced human dignity, not least, as a norm that links the Constitution to rights
protection and to the new Civil Code. It also connects the PRC to global law, in particular, to the
jurisprudence of modern constitutionalism. Moreover, as it does around the globe, the dignity norm serves
myriad state purposes, including the legitimation and justification of complex regulation in the digital age
(i.e., with regard to the protection of online privacy and personal data). The emergence and
institutionalization of the dignity norm deserves to be highlighted as an important aspect of the evolution
of Chinese constitutionalism. Although it is likely that the protection of rights by the courts will be
gradually strengthened in certain areas (personal honor, privacy, name and likeness, and so on), political
officials will continue to enforce dignity in illiberal ways, in the service of legitimizing authoritarian rule
and the Party-state.

82
China Daily, “China Abolishes ‘Custody and Education’ System” 28 Decmeber 2019, available at
<https://global.chinadaily.com.cn/a/201912/28/WS5e0730cca310cf3e35581415.html> accessed 28 May 2022.
83
Standing Committee of the NPC Legislative Affairs Commission, [Report on the Work of Filing and Review in
2021] 全国人民代表大会常务委员会法制工作委员会关于 2021 年备案审查工作情况的报告, available at
<http://www.npc.gov.cn/npc/c30834/202112/2606f90a45b1406e9e57ff45b42ceb1c.shtml> accessed 28 May 2022.
84
See Ling Li, ‘The Chinese Communist Party and the People’s Courts: Judicial Independence in China’ (2016)
64(1) The American Journal of Comparative Law 37, 66–72.
85
ibid 67–69.
86
XU Qing, [“Local CPC Committee of Political and Legal Affairs in Judiciary: An Investigation in W City of Y
Province” (2016) 17(2) Peking University Law Review 211] 徐清，《基层政法委员会组织结构论——基于 Y 省
W 市政法委员会的实证分析》，《北大法律评论》2016 年第 17 卷第 2 期; HOU Meng, [“Political-Legal
Governance in the Context of Judicial Reform: A Case Study of Grassroot Political-Legal Affairs Committee’ [2003]
5 ECUPL Journal 99] 侯猛，《司法改革背景下的政法治理方式——基层政法委员会个案研究》，《华东政
法学院学报》2003 年第 5 期.

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