ADVERTISEMENTS

What follows is a working draft of the paper I presented as part of the panel, "Constitutionalism in China (Practice) (II)" held as part of the excellent conference, "Constitutionalism in China in the Past 100 Years and Its Future," sponsored by the Centre for Chinese and Comparative Law (RCCL) School of Law, City University of Hong Kong, Hong Kong, China, and its director Dr. Prof. Lin Feng on October 17, 2008.

The Party as Polity, The Communist Party and the Chinese Constitutional State: A Theory of Party-State Constitutionalism

ABSTRACT: Since the establishment of the Soviet Union, constitutional theory has tended to look suspiciously at the constitutionalization of Marxist Leninist state apparatus under the control of a single party in power. There is a sense of illegitimacy, and a suggestion of the construction of sham constitutions, in regimes in which the ultimate state power is vested in an apparatus which itself is subject to the direction of an extra constitutional power, which in turn is meant to mask personal rule. With state under Party, and Party a system of leveraging personal power, the state-party system had come to be understood as a cover for tyranny and despotism, as a veil over the personal rule of an individual or a clique according to their whim and supported by the coercive power of military establishments and internal terror regimes. In this context, constitutionalism is incomprehensible. These judgments have formed the basis of analysis of Chinese constitutionalism as well, serving as the foundations for critique especially after the reforms of Deng Xiaping and his successors after 1989. But are these criticisms inevitably correct in general, and wholly applicable in the post 1989 Chinese context? This paper explores those questions, suggesting a basis for the articulation of a legitimizing constitutionalist theory for states organized on a state-party model along certain lines. Focusing on the evolution of state-party constitutionalism in China since 1989, the article first reviews the basic principles of current constitutionalism theory and its importance as a legitimating global ideology against which state organization, and the actions of state officials, are judged. The article then looks to the evolution of the party-state model of governance from its origins in 19th century European Marxist-Leninist theory to its reception in China in the 1920s, and its modern transformation ?under the guidance of Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory and the important thought of 'Three Represents'? (PRC Constitution 2004, Preamble). Drawing from the implications of the evolution of theories of state-party constitutionalism in China, the article suggests that it is possible to theorize a state-party model of state organization that remains true to the ideals of constitutionalism grounded in the core postulate of rule of law governance. The basis of Chinese state-party constitutionalism requires a reconception of an understanding of constitution?to include both the document constituting the state and that constituting the Party as equivalent components that together form the national constitution as understood in the West. It is also based on a different understanding of the character of the Communist Party?not as a political party or as a private actor but as an integral part of the institutional structure of government, and more importantly, as the holder of political citizenship. These insights produce substantial consequences for the ways in which Chinese constitutionalism are understood and evaluated under global constitutionalist standards, which are discussed in the last section of the paper. These include the reflection of the party-state construct (1) in a division of the character of citizenship between economic and social citizenship, claimed by all persons, and political citizenship, which can be exercised through the Party, (2) in an understanding of political organization in which the state power and its institutions are subordinate to political authority, (3) in an institutionalization of political authority within a collective that serves as the source and conduit of constitutional values to be applied by the holders of state authority, and (4) in a system in which Party elaboration of rule of law values is contingent on state and party self discipline. Chinese constitutionalism, understood as state and party constitutionalism can, together, serve as a basis for understanding the way in which rule of law governance is legitimately possible where the disciplinary focus of constitutional duty is focused, not primarily on the state apparatus, but instead centers on the Party apparatus. Rule of law constitutionalism in China, then, is better understood as state-party constitutionalism, with a necessary focus on party rather than state, grounded in separation of powers principles in which the administrative function is vested in the state and political authority over all is vested in the Party under law. But thus constructed, even state-party systems can claim a certain legitimacy as a constitutionalist system?though one whose substantive values are inconsistent with those of secular transnationalist constitutionalist states. This is constitutionalism with Chinese characteristics.

I. INTRODUCTION

Constitutionalism has, for the last century or so, sought to provide a basis in theory for legitimating certain forms of state organization within territorially based political communities. (Backer, 2009). Constitutionalism serves as a basis for classifying the form of state systems of governance. (Henkin 1993). Its object is twofold?to develop an ideal of governance forms and to judge the legitimacy of a constitutional system against this ideal. (Okoth-Ogendo 1993) Constitutionalism is grounded on the fundamental postulate of rule of law?that states ought to be organized to avoid tyranny or despotism by grounding state action in law and by limiting the reach of such lawful state action on the basis of values reflecting the values of the political collective. (Coomaraswamy 2993).) Beyond this institutionalizing and legitimating objective, constitutionalism can be grounded on any number of legitimating value systems?each competing with the others for the allegiance of the greatest number of states. (Backer 2008). When the source of values is the transcendent genius of the nation itself, it is understood as nationalist constitutionalism. (Rubenfeld 2004). When the values are sourced in the consensus of the community of nations, understood as common constitutional traditions of the community of nations or as the expression of international consensus in international conventional law or customary international law (Herschl 2004), it is understood as transnational constitutionalism. (Backer 2008). But such values can be sourced beyond the control of individuals in a number of other, and increasingly important, ways. Theocratic constitutionalism is on the ascendant. (Backer 2008a; Hirschl 2008). And natural law constitutionalism also has its adherents. (Corwin 1928-29). These forms of state ordering are incompatible in the genesis and application of values of the state order, but they all share equally in the commitment to the fundamental values of a constitutional order?a rule of law based governance structure grounded in limits on state power and popular accountability based on law.

Since the establishment of the Soviet Union, constitutional theory has tended to look suspiciously at the constitutionalization of Marxist Leninist state apparatus under the control of a single party in power. There is a sense of illegitimacy, and a suggestion of the construction of sham constitutions, in regimes in which the ultimate state power is vested in an apparatus which itself is subject to the direction of an extra constitutional power, which in turn is meant to mask personal rule. With state under Party, and Party a system of leveraging personal power, the state-party system had come to be understood as a cover for tyranny and despotism, as a veil over the personal rule of an individual or a clique according to their whim and supported by the coercive power of military establishments and internal terror regimes. In this context, constitutionalism is incomprehensible.

These judgments have formed the basis of analysis of Chinese constitutionalism as well, serving as the foundations for critique especially after the reforms of Deng Xiaping and his successors after 1989. Indeed, the intensity of the critique increased in parallel with the institutionalization of the campaigns to separate state from Party apparatus and to introduce notions of law and rule of law within the state and Party apparatus. The pre-Deng Chinese state governance architecture could be dismissed as anti-constitutionalist, rather than criticized for failures to appropriately incorporate constitutionalist principles. From the late 1970s, the nature of the engagement with constitutionalism changed. After Deng, China could be judged from a constitutionalist perspective?and it was increasingly judged harshly, especially after 1989, or dismissed as a capitalist but totalitarian state. ?China and Russia represent a return of economically successful authoritarian capitalist powers, which have been absent since the defeat of Germany and Japan in 1945, but they are much larger than the latter two countries ever were.? (Gat 2007). Moreover, the move to a constitutionalist institutionalization of state power in China after 1979 also refocused the object of analysis?from Party-State dictatorship to state institutions under the constitution. The Chinese Communist Party was deemed either increasingly irrelevant, or an obstacle to democratization along Western lines. (Lubman 1999). It was emphasized, for example, that ?although they have continued to emphasize the importance of the role of law, at the same time they also insist on maintaining the dominant role of the CCP in Chinese society, and cannot resolve the contradiction between these two policies.? (Id.). The state apparatus was criticized as both unresponsive to the will of the people and unconnected to the usual vehicle for accountability (free and fair popular elections). Viewed strictly from the perspective of the National Constitution and the State governmental apparatus, China was viewed as a failed constitutionalist state. (Backer 2006).

But are these criticisms inevitably correct in general, and wholly applicable in the post 1989 Chinese context? This paper explores those questions, suggesting a basis for the articulation of a legitimizing constitutionalist theory for states organized on a state-party model along certain lines. Focusing on the evolution of state-party constitutionalism in China since 1989, the article first reviews the basic principles of current constitutionalism theory and its importance as a legitimating global ideology against which state organization, and the actions of state officials, are judged. It starts from the premise that constitutionalism is itself an ideology with its own framework of reference. That ideology and framework is important, not only as a powerful tool of analysis, but as a basis for making political judgments about the quality of state governance among the community of nations and increasingly, within political communities. Constitutionalism is best understood as a system of classification for the purpose of judging the legitimacy of state governance systems as conceived and as applied, grounded in the fundamental postulate of rule of law governance and based on a system of values beyond the control of any individual for the limitation and bureaucratization of governmental power. The basic premise of constitutionalism is to distinguish it from despotism or tyranny. The distinguishing characteristics of modern constitutionalism is its privileging of values systems which both limit state power and provide the basis for applying that power. (Backer 2009). Since 1945 three values variants have emerged within constitutionalism. The oldest is nationalist constitutionalism, of which the American and French constitutions provide the best examples. These derive substantive for values principally within the polity. Since 1945 transnational constitutionalism has emerged as a powerful force. (Backer 2008). Transnational constitutionalism is grounded in a constitutional values system derived from the common constitutional traditions of the community of states evidenced either in shared practices and values, customary international law norms or memorialized international rules in the form of treaties and conventions. Since the 1970s another powerful values system has emerged. Theocratic constitutionalism is grounded in the embrace of the rule of law principle of state construction, but implemented on the basis of and through the rule systems of a single religion. (Backer 2008a).

Might post-Deng Chinese constitutionalism provide another legitimate variant of values systems within constitutionalism? To explore that issue it is necessary to more realistically examine the true context of Chinese constitutionalism?not as Westerners have come to understand its exposition, but as the Chinese have attempted to construct it for themselves. For that purpose, the article then looks to the evolution of the party-state model of governance from its origins in 19th century European Marxist-Leninist theory to its reception in China in the 1920s, and its modern transformation ?under the guidance of Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory and the important thought of 'Three Represents'? (PRC Constitution 2004, Preamble).

Drawing from the implications of the evolution of theories of state-party constitutionalism in China, the article suggests that it is possible to theorize a state-party model of state organization that remains true to the ideals of constitutionalism grounded in the core postulate of rule of law governance. The basis of Chinese state-party constitutionalism requires a different conception of an understanding of constitution?to include both the document constituting the state and that constituting the Party as equivalent components that together form the national constitution as understood in the West. It is also based on a different understanding of the character of the Communist Party?not as a political party or as a private actor but as an integral part of the institutional structure of government, and more importantly, as the holder of political citizenship.

These insights produce substantial consequences for the ways in which Chinese constitutionalism are understood and evaluated under global constitutionalist standards. The fundamental insight, one more readily recognized within China than outside of it, is the nature and structural effect of the ?party in power? concept. Taking Chinese theory at face value (Backer 2006) it becomes clear that at least since the time of Deng Xiaoping, the Chinese Communist Party has sought to attain a more refined institutionalization within the political order. With that institutionalization has come a reliance on those mechanisms that constrain assertions of individual power through rule of law concepts. Rule of law provides an expression of collective governance. That collective space, in turn, serves as the site for democratic citizenship. That site is the Party itself, as an autonomous community. That community itself serves as a representative and proxy for the nation in two respects?it is the site where political values are elaborated and protected and it serves as the body of individuals charged with the task of such elaboration and protection within both the political order and in its state institutions. It is in this sense that one can better understand the modern meaning of that old Marxist notion of Party as vanguard?the Party itself is vanguard/guardian of fundamental substantive values of the political state. And it is in this sense as well that one can understand Party membership as the functional equivalent in the West of political citizenship. The holders of political citizenship?Party members?then serve within the Party as the forces for social cohesion, and the deployment of values based rule of law substantive values, and outside the Party in a fiduciary capacity to all people in the political community who are holders of social and economic rights, but who lack political rights. Political citizenship, then, though limited, is open to those who would adhere to and further the political and rule of law values of the Party within the governance structures of the state set up for that purpose. But rule of law notions within the Party must then be applied to make such political citizenship available to all in exchange for adherence to the Party ?line? (it substantive political values on which the state was founded). This is in-line with the ethos surrounding the 3 Represents campaign. (Backer 2006). Rule of law, then, resides within the Party architecture. And it is from that Party architecture that rule of law concepts move out to the governmental, social and economic spheres. State organization, then, devolves from, and reflects, Party organization and the values the Party represents as an institutionalized, rule governed, collective of the state?s political citizens. To understand Chinese constitutionalism, one has to recognize that the Chinese Constitution exists as a combination of polity and governing ideology, on the one hand, and state apparatus, on the other. The Chinese Communist Party serves as the institutionalization of the polity and the source of its substantive values. The National Constitution serves as the institutionalization of state power. Together they represent the Chinese constitutional order. Constitutional analysis, then, ought to focus more on the CCP Constitution, and its elaboration/application of rule of law ideals within its value system as part of the constitutional ordering that serves as the foundation for the elaboration of state power under the national constitution.

This structuring of power relationships between political collective and the governmental organizations meant to institutionalize state power (within that collective) have significant values effects on the way in which Party, state and individuals relate. These include the reflection of the party-state construct (1) in a division of the character of citizenship between economic and social citizenship, claimed by all persons, and political citizenship, which can be exercised through the Party, (2) in an understanding of political organization in which the state power and its institutions are subordinate to political authority, (3) in an institutionalization of political authority within a collective that serves as the source and conduit of constitutional values to be applied by the holders of state authority, and (4) in a system in which Party elaboration of rule of law values is contingent on state and party self discipline.

Chinese constitutionalism, when understood as a symbiosis of state and party constitutionalism can, together, serve as a basis for understanding the way in which rule of law governance is legitimately possible where the disciplinary focus of constitutional duty is focused, not primarily on the state apparatus, but instead centers on the Party apparatus. Rule of law constitutionalism in China is better understood as state-party constitutionalism, with a necessary focus on party rather than state. But for all the focus on the party, it is a state that is being developed. This state is acquiring a governance apparatus true to the basic notions of constitutionalism?rule of law, accountability, and limited government. The unique features of the system lie in the role of the Party. That role remains constitutionalist to the extent that it, too, embraces both rule of law and institutionalization concepts. But Party ere serves as some than a supervisory overlay?the way that the religious establishment serves as such an overlay in theocratic constitutionalist systems. (Backer 2008a). Instead, the Party also serves as polity, and it is in this sense especially that its connection with constitutionalism can be acute. With a transformation from a party of individuals to an institution representing the political citizenship of the nation, the Party retains its constitutionalist character to the extent that in its internal operations it observes the same rule of law framework as that imposed externally on the state apparatus. Thus constructed, even state-party systems can claim a certain legitimacy as a constitutionalist system?though one whose substantive values are inconsistent with those of secular transnationalist constitutionalist states. This is constitutionalism with Chinese characteristics.

II. THE CONTOURS OF CONSTITUTIONALISM

Constitutionalism has come to be understood as a complex systemic ideology of the construction of governance. (Backer 2009). In its simplest reduction, it can be understood as consisting of five elements: (1) a system of classification, (2) the object of which is to define the key characteristics of constitutions, (3) for the purpose of determining the legitimacy of a constitutional system as conceived or as implemented to provide a principled basis for outsiders (foreign states, entities, individuals) to judge the lawfulness of the constitutional order created and for insiders (citizens) to judge the distance between the ideals of their constitutional system and its reality (and to act thereon), (4) based on the fundamental postulate that the use of governmental power is subject to rule of law limits that are in turn (5) grounded on values derived from a source beyond the control of any individual. (Id.). Constitutionalism rejects the idea that any systematization of governance through a written document styled a ?constitution? can legitimate the state apparatus created thereby. At its most basic form, constitutionalism provides a means for erect a high wall between, on the one hand, governance grounded in institutional values and actions centered on the common good, and on the other hand, governance grounded in personal power of individual or ruling cliques centered on the perpetuation of personal or group power.

Structure and values are at the heart of constitutionalism. Rule of law best captures the structuring ideals of constitutionalism. ?The general cohesive power of law, in its nondespotic and tyranny-restricting role, is termed in Anglo-American legal usage as the rule of law. . . . . These expressions refer to partly similar assumptions and legal prescriptions found in the various traditions referring to the state?s structure, organization and operations.? (Sajó 199, 205). The source of the classic Anglo-American understanding of ?rule of law,? that is, rule of law in states with strongly developed and integrated independent judiciaries, can be found in Dicey (1885). The rule of law is usually understood in two senses. (Rosenfeld 2001).

First, rule of law is understood as embedded in mandatory systems for maintaining firm limits on the arbitrary use of state power by the individual. This is the idea of rule of law in its process aspect, limiting the use of state power only when grounded in legitimately enacted law. Second, rule of law is understood in its substantive aspect as vesting the state with a critical role as guardian of a set of foundational communally embraced substantive norms that are to be protected and furthered through the use of state power grounded in law. (Backer 2006).

It is understood that ?constitutionalism has one essential quality: it is a legal limitation on government.? (McIlwain 1947, 21). ?The common idea in the various concepts is that the state?s bodies act according to the prescriptions of law, and law is structured according to principles restricting arbitrariness. . . . To be sure, no constitutional system can exist without the rule of law.? (Sajó 1999, 205).

This idea acquired universalist aspirations after 1945. (Arendt 1977, 143). These concerns are bound up in notions of process?protections against arbitrary actions on the part of government or any of its servants. Many of these notions are now understood as an aspect of ?rule of law.? (Peerenboom 2002, 126-188). In this sense, rule of law can be understood as embedded in mandatory systems

for maintaining firm limits on the arbitrary use of state power by the individual. This is the idea of rule of law in its process aspect, limiting the use of state power only when grounded in legitimately enacted law. Second, rule of law is understood in its substantive aspect as vesting the state with the critical role as guardian of a set of foundational communally embraced substantive norms that are to be protected and furthered through the use of state power grounded in law. (Backer 2006, 39).

But process is not enough to protect a polity from itself. (Lippman 1997). Rule of law or limits as a foundational component of constitutionalism also has a substantive aspect. Academics sometimes speak of positive as well as passive constitutionalism associated with the vindication of certain norms. ?Thus, we should talk about constitutionalism in terms of what government should do, rather than what it cannot or should not do. We must tackle the challenge posed by Leon Duguit many years ago: ?Any system of public law can be vital only so far as it is based on a given sanction to the following rules: First, the holders of powers cannot do certain things; second, there are certain things they must do.?? (Miller 1984, 204: Duguit 1919, 26).

The principles under which legality is constituted becomes of paramount importance within modern constitutionalism. Hayack, for example, noted that ?all power rests on the understanding that it will be exercised according to commonly accepted principles, that the persons on whom power is conferred are selected because it is thought that they are most likely to do what is right, not in order that whatever they do should be right.? (Hayack 1960, 181). For many, the focus is on democracy. (e.g., Dewiel 2000; Sunstein 2002). Samuel Issacharoff speaks of ?the role of constitutionalism in stabilizing democratic governance in . . . fractured societies. . . because of the limitations it imposes on democratic choice.? (Issacharaoff 2004, 1861).

If rule of law provides the appropriate limits to the forms of constitutionalist governance, then values provides the specific principles used to limit the choices available to the polity and its representatives with respect to the use of governance power. ?Constitutionalism is thus a written constitution per se surrounded by a cloak of unwritten principles, values, ideals, procedures, and practices.? Vlasihin 1989, 258). But not all values are constitutionalist. The racist values of fascism (Gregor 1969, 241-282), the militarism of Imperial Japanese constitutionalism (Backer 2008), and the despotism of ?big man? African dictatorships grounded in some sort of values ideology (Biney 2008) are not legitimately constitutionalist. The key to values in constitutionalism, like that of rule of law in constitutionalism, is to avoid despotism or tyranny. It also provides the values to which the political culture aspires. ?Aspirational constitutionalism defines a country, a nation, in terms of its future, its goals and its dreams. Other countries' constitutions and constitutional examples can be used to express this aspirational sense and may be positively selected precisely in order to do this.? (Schepple 2003, 299). Imitation appears to be a great avenue for realizing at least the form of constitutional aspiration. ?For example, many second- and third-wave European democracies may have adopted the model of the Federal Constitutional Court of Germany precisely to demonstrate that they, too, aspired to realize the constitutional principles that the Constitutional Court had helped Germany achieve.? (Schepple 2003, 299).

There is a strong sense that the values chosen ought to reflect the particularities of the political culture from which it arises, (Franklin & Baun 1994, 6-7), especially as to moral or ethical norms. (Elster 1991, 465). Still, these substantive notions themselves are value laden and ambiguous. (Backer 2006); Okoth-Ogendo 1993). Still, within nationalist and internationalist constitutionalist discourse, there is a rough standard of values?most centering on human rights and principles of limited government. Within other rising constitutionalist traditions the foundations of values are frameworked within the strictures of pronouncements of the divine will?and to some extent much of the language of that will can be understood to overlap nationalist and internationalist constitutionalist concerns. However, the implementation may be quite different. (Cairo Declaration 1990).

But the ultimate purpose of constitutionalism is to deploy its understandings of the boundaries of appropriate governance construction as a basis for judging political governance systems legitimate or illegitimate. That purpose has great significance. It serves as a mechanics for the international community in the regulation of the relations among states. It also serves as a basis through which a polity can base action to reform or replace a particular framework of governance. Both intervention and revolution are at the foundation of constitutionalism in its internal relations function and in its domestic legitimacy function. But it also serves as the articulation of political aspiration. It is inevitable tat there exist a gap between the social-political values principles encased in constitutionalist systems and the operation of such systems. But the elaboration of such principles, and their placement within a law framework provides a basis for a nation to judge itself and to judge those who would be given the authority to assert political power.

III. THE TRADITIONAL STATE-PARTY MODEL OF POLITICAL ORGANIZATION: FROM LENINIST RUSSIA TO POST REVOLUTIONARY CHINA.

Over the course of the last century or so, the State-Party model of governance has provided the traditional opposite of constitutionalists governance systems. This section provides a short description of those characteristics of state-party theory that has been at the center of that determination and the evolution of state-party theory from its earliest application in Leninist Russia to its evolution during the period of the Cultural Revolution in China. It suggests the basis for an understanding of this theory as anti/constitutionalist. Certainly that was the case as state/party theory was elaborated within the Soviet Union and its satellites?to disastrous long-term effect. (Fukuyama 1992; Derrida 1993, 127-130). It also suggests the path to legitimate constitutionalism, though one very different from that which the West has embraced.

An excellent starting point for an understanding of the origins of the classical notions of the state-party construct is, of course, Vladimir Lenin?s germinal work. The thesis of Lenin?s The State and Revolution (Lenin 1917), focuses on the relation of the socialist proletarian revolution to the state. The purpose of the publication is to correct the distorted applications of Marxism by the bourgeoisie and opportunists within the labor movement. (Id., Sec. 1). In Lenin?s view, these groups ?omit, obscure, or distort? the revolutionary aspects of Marxism which call for the overthrowing of the state. (Id.). According to Engels, ?the State is?a product of society at a certain stage of development.? (Id.). As such it serves as the product and manifestation of the irreconcilable antagonisms among societal classes. (Id., Ch. 1). The state, thus, arises when and where these class antagonisms cannot be reconciled. (Id.). According to Marx, Lenin notes, ?the state could neither have arisen nor maintained itself had it been possible to reconcile classes.? (Id.). Therefore, the state is an organ of class rule, an organ for the oppression of one class by another. (Id.). The creation of this order legalizes and perpetuates the oppression by serving as the moderator of the conflict between the classes. To break this oppression, the proletariat are called upon to take down the state. This, however, is not the idea being advanced by the so-called opportunists, insists Lenin, who instead characterizes these forces as who instead push for a stronger state, albeit one that would better respond to the needs of the proletariat.

There is thus a great tension within Leninist theory about the state and its relation to the revolutionary Marxist movement. There is a sense that the state is a representative construct, and that its utilization would pollute the revolutionary cause. Thus, for Lenin,

a state arises, a special power is created, special bodies of armed men, and every revolution, by destroying the state apparatus, shows us the naked class struggle, clearly shows us how the ruling class strives to restore the special bodies of armed men which serve it, and how the oppressed class strives to create a new organization of this kind, capable of serving the exploited instead of the exploiters. (Id., Ch. I, Section 2).

Lenin thus suggests that prior to the overtaking of the state by the proletariat in order to establish a more favorable state apparatus, the state of the bourgeoisie exists to keep the class antagonisms in check. (Id., Ch. 3). To maintain its special public power above that of society, the state must tax and issue state loans. (Id., Section 3). Because the state is run and dominated by the most powerful economically dominant class, it serves as an instrument of exploitation of wage-labor by capital. (Id.). This of course, refers to a capitalist state. According to Lenin, ?a democratic republic is the best possible political shell for capitalism, and therefore, once capital has gained possession?it establishes its power so securely, so firmly, that no change of persons, institutions or parties in the bourgeois-democratic republic can shake it.? (Id.). Hence Lenin concludes, there is a need for revolutionary overthrow of the bourgeois-democratic republic.

But once overthrown, is it to be replaced with a socialist state? Lenin suggests that once the proletariat have seized control of the state, it is expected that the apparatus of the state will wither away. (Id., Section 4). ?The proletariat seizes from state power and turns the means of production into state property to begin with. But thereby it abolishes itself as the proletariat, abolishes all class distinctions and class antagonisms, and abolishes the state as state.? (Id.). When the state at last ?becomes the real representative of the whole society, it renders itself unnecessary.? (Id.).

In this development, the role of the Communist Party can be seen as the torch-bearer in guiding the proletariat through this process. The first act by which the state comes to represent the whole of society takes occurs when the means of production are possessed in the name of society. (Id.). That also serves as the last independent act of the state because the government of persons is replaced by the administration of things, and by the conduct of processes of production. (Id.). The state, therefore, is not abolished but rather withers away. (Id.). This, of course, cannot occur without a violent overthrow of the bourgeois.

The state is thus seen both as ultimately unnecessary and inimical to the attainment of the objectives of the Marxist revolutionary project. At the same time, Lenin suggests that the state will not merely disappear upon the success of the revolutionary vanguard, but will ?wither away.? As such, there is a role for the state as a disappearing entity?as the framework through which the Communist Party, as a vanguard representative of the ultimate (no state) objective can bring it about. It is in this transitional sense that the party is in power and may temporarily utilize the state apparatus to its ultimate ends. Lenin notes that ?by educating the workers' party, Marxism educates the vanguard of the proletariat, capable of assuming power and leading the whole people to socialism, of directing and organizing the new system, of being the teacher, the guide, the leader of all the working and exploited people in organizing their social life without the bourgeoisie and against the bourgeoisie.? (Id., Chapter II, Section 1). Against this he contrasts ?the opportunism now prevailing trains the members of the workers' party to be the representatives of the better-paid workers, who lose touch with the masses, ?get along? fairly well under capitalism, and sell their birthright for a mass of pottage, i.e., renounce their role as revolutionary leaders of the people against the bourgeoisie.? (Id., Chapter II, Section 1). The emphasis was on the vanguard status of the Party and its consequential obligation to induce ?right thinking? in a process that would obsolete both state and party as both merged with the people.

Thus both state and party are ultimately transitional. (Id., Ch. 4). In striving for socialism, however, Lenin is convinced that as the masses transition from socialism to communism, the need for violence against people in general, for the subordination of one man to another, and of one section of the population to another, will vanish altogether since people will become accustomed to observing the elementary conditions of social life without violence and without subordination. (Id.).

In a higher phase of communist society, after the enslaving subordination of the individual to the division of labor, and with it also the antithesis between mental and physical labor, has vanished, after labor has become not only a livelihood but life's prime want, after the productive forces have increased with the all-round development of the individual, and all the springs of co-operative wealth flow more abundantly - only then can the narrow horizon of bourgeois law be left behind in its entirety and society inscribe on its banners: From each according to his ability, to each according to his needs! (Id., Ch. V, Sec. 4).

And indeed, for a while in the last century it appeared that Leon Trotsky?s vision of a stateless world globalized within Communism was irresistible:

The completion of the socialist revolution within national limits is unthinkable. One of the basic reasons for the crisis in bourgeois society is the fact that the productive forces created by it conflict with the framework of the national state. . . . The socialist revolution commences on the national arena, is developed further on the inter-state and finally on the world arena. Thus, the socialist revolution becomes a permanent revolution in a newer and broader sense of the word; it attains completion only in the final victory of the new society on our entire planet. (Li Fu-Jen).

But history, of course, has evidenced the contradictions and tensions in this view, and the resultant turn in governance. Prominent among them were the relationship of party to state, of democracy to dictatorship of the proletariat and of the proletariat to the party. In effect, Marxist Leninist mass movement revolutionary governments were confronted with the same issue that all governments founded on a critical mass of assumptions face?how to preserve the character of the state against those who would turn away from the normative framework on which it is based without, in so doing, betray those principles. This problem plagues Western democracies as well. The stakes, even at the beginning, were high?the legitimate basis of assertions of power by the Bolsheviks (and later by other communist mass movement parties come to power). ?If the dictatorship, on the other hand, frankly abolished proletarian democracy it would deprive itself of historic legitimacy, even in its own eyes.? (Deutscher 2003, II-422). On the other hand, failure to limit the power of the masses to act could threaten the conceptual foundations of the state?the equivalent, perhaps, of permitting an electorate to adopt a form of governance that would fundamentally change the character of the state. This is a course of action that even Western democratic theorists find problematic. (Habermas 2006; Curran 2002).

But from Lenin?s death, the choice that the Soviets made was to emphasize dictatorship, hierarchy, obedience and a monolithic state structure. ?It would cease to be a proletarian dictatorship in the strict sense. Its use of that title would henceforth be based on the claim that it pursued a policy with which the working class, in its own interest, ought and eventually must identify itself, but with which it did not as yet identify itself. The dictatorship would then at best represent the idea of the class, not the class itself.? (Deutscher 2003, II-422). Totalitarianism served as the conceptual fig leaf over a dictatorship that rejected basic constitutionalist assumptions?rule of law, popular sovereignty and the like?in favor of assumptions (embraced in equal measures by mid 20th century fascist regimes?of the merger of the individual into the mass and the merger of the mass into the leadership of party. (Gregor 1969).

Thus rather than a withering away of the state, one saw the institutionalization of the party within the state, the institutionalization of a state order with a comfortable group of Party bureaucrats and the perpetuation of a totalitarian state organization under the rule of a party in power, that itself masked an aristocratic or feudal organization in which hierarchical power relationships were key.

According to its Statutes, the foundation of the Party's internal life is "inner-Party democracy" and its cornerstone is "democratic centralism." " Lenin's and Stalin's bolshevik principle of democratic centralism," said Gottwald, "offers a reliable guidance on how to build the Party and how to shape the mutual relationship of its organs on all levels." [Rudé právo, December 8, 1951]. Copying Soviet rules, the KS? Statutes refer to it as "the guiding principle of the organizational structure of the Party" and use an exact translation of the Russian formula to spell out its four basic points: (a) election of leading Party organs, from the lowest to the highest; (b) periodic accountability of elected organs to the organizations which elected them; (c) strict Party discipline and subordination of the minority to the majority; (d) the unconditionally binding character of the decisions of higher organs on lower organs.

At face value, these four elements of democratic centralism are compatible with the concepts of democracy. In theory, their use would not impair the democratic character of the Party embracing them. But, in adopting the Soviet formula, communist leaders of Czechoslovakia absorbed simultaneously the body of dictatorial usages and practices that have grown around it in its native Russian habitat and distorted the formula's original meaning. Consequently, the gap between the theory and the practice of democratic centralism is almost as wide in Czechoslovakia as it is in the country of its origin. This can be illustrated by taking the four basic ingredients of democratic centralism and comparing their democratic phraseology with actual Party conditions. (Taborsky 1961, 68-69).

The difficulty wasn?t necessarily in the fact of party leadership, or in the suspension of proletarian democracy under the tutelage of the party, it was more that even within the Party there was virtually no space for the expression of proletarian democracy in any form. And indeed, the totalitarian turn in Communism had been criticized as a perversion of the original idea of Party and state (Orwell 1945). Trotsky, its author and also one its most prominent victims, made it clear for those wary of the legitimacy of party state systems as unrepresentative of the people from whom they ostensibly derived their authority.

When Trotsky now urged the Bolshevik party to ?substitute? itself for the working classes, he did not, in the rush of work or controversy, think of the next phases of the process, although he himself had long since predicted them with uncanny clear-sightedness. ?The party organization would then substitute itself for the party as a whole; then the Central Committee would substitute itself for the organization; and finally a single dictator would substitute himself for the Central Committee.? The dictator was already waiting in the wings. (Deutscher2003, II-435).

And thus, from a constitutionalist perspective, the emphasis moved from the people to the dictatorship, as Soviet inspired political systems sought to ?harden themselves monstrously into their cadaverous rigor.? (Derrida 1993, 130). So, by the 1960s all that was left was the state as a governance apparatus of the party, and an internal party structure that emphasized centralist elements and little by way of democratic ideology.

The bureaucratic corporatism of Stalin and Castro, in which party and state were conflated in a manner that emphasized the dictatorship, even within the party structure was deeply incompatible with constitutionalist notions. But through the 1980s that was a point of pride in those states. (Castro 2000). These ideas were particularly well developed in the African context. (Zolberg 1985, 1-2). ?The state is conceived as the most effective agency for effecting the nation?s will, a will that can only become conscious via an explicit and exclusive political ideology.? (Gregor 1969, 369). But not just conscious via ideology?but conscious through the channeling of popular will by a ?leader,? for that consciousness required a ?big man? to activate it. The archetypical example was Kwame Nkrumah of Ghana, who merged traditional African tribal traditions with Leninist vanguard traditions. (Mazrui 2004, 4). And like Stalin and others, the notion of democratic centralism was manipulated to emphasize the centralism and marginalize the democratic elements, even within the systems of internal party governance. Democratic centralism, in Africa, was viewed as the fig leaf covering descents into authoritarian rule. (Mazrui 2004, 4). ?Internal to this thinking was the belief that any arrest or obstruction in the implementation of the plan was the result of sabotage, imperialism, or neo colonial forces at work seeking to overthrow the government.? (Biney 2008, 143). The consequence was the creation of states that might work well within the theoretical models on which they were constructed, but were also fundamentally anti-constitutionalist. It was common, then, in the first decades of African national liberation after the Second World War for states to adopt ??techniques of suppression? to achieve not only unanimity but also the dominance of the government over the opposition and the state over the entire society.? (Id.).

Yet by the 1980s, the contradictions of state-party governance and proletarian democracy as practiced in Soviet or African style party-state governmental apparatus became increasingly ridiculed as anachronistic. The attacks became more pronounced after the collapse of Soviet style Marxist-Leninist political organization and the embrace of constitutionalism by Russia and the states of the old Soviet Empire.

Now, as one can see foreshadowed, it seems, everywhere in the world today, the structure of the party is becoming not only more and nor suspect (for reasons that are no longer always, necessarily, ?reactionary,? those of the classical individualist reaction) but also radically unadapted to the new?tele-techo-media?conditions of public space and political life, of democracy, and of the new modes of representation (both parliamentary and non-parliamentary) that they call up. (Derrida 1993, 127).

Either way, however, the relation between state and party was defined in political and power rather than in legal and systemic terms. The rules of constitution and constitutionalism would have necessarily been rejected as a disguised means of privileging class elements. In its place would be substituted a universalizing values based program of governance meant to overturn the current conceptions of state governance and to provide a new framework or language for understanding political reality. ?A world army of the revolutionary proletariat?that is what now stands for communism, and, at the Congress just ended, received organizational form and a clear, precise and detailed programme of action.? (Lenin, 270-272). Constitution, then is ultimately rejected in favor of a direct application rule through conflation of law and politics. ?As a state philosophy, Marxism-Leninism presents itself as an all-inclusive system, in which all things are held to be dialectically interrelated, so that a mistaken idea in any one field (including law, or even natural science) must ultimately lead to mistaken views in every other field, including politics.? (Schwartzchild 1986, 686 & n.15).

The anti-constitutionalism is apparent?not so much in its totalitarianism, an easy target?but in its easy transition from a dictatorship of a vanguard party to the dictatorship of the leader of the vanguard party. ?First and foremost, there is an ideology of totalitarianism, a collection of reasoned vindications in support of a type of society minimally characterized by a mass movement of solidarity animated by a specific Weltanschauung, rule by a single party hierarchically organized under the charismatic or pseudocharismatic rule of a leader in an institutional system that provides for state monopoly of communication, coercion and economic control? (Gregor 1969, 361). And that, more than the issue of the place of state apparatus or party, is the abyss that separates such systems from constitutionalist legitimacy.

It was both the tentativeness of the state apparatus, and its characterization as tool rather than institution that post Revolutionary China embraced for long periods after 1949 and in heated form between the late 1950s and the late 1970s. ?Maoism, the ideological engine that drove CCP rule since 1949, insisted that policy innovations be tentative and that implementation be adjusted to reflect specific local conditions; its imprint on legislative drafting remains strong.? (Lubman 2000, 384-85).

In any case, this very brief excursus through the framework of party-state conception serves to make a point critical to the analysis that follows: that the emphasis on the party-state form of governance placed heavy emphasis on the state portion of the relationship. More importantly, the party aspect of the party-state construct suggested cover for a dictatorship?the privileging of a Praetorian element in the state who whose privileged position was dependent on obedience to the leader. Through a perversion of the original notion of democratic centralism (where the emphasis shifted from democratic to centralism), this dictatorship could present itself as democratic while asserting authority through a tyrant. What was institutionalized was power in the hands of an individual (and his retainers); what was bureaucratized was the system of exploitation of theory in the service of the few, without law and without limits on the discretion of the purported servants of party and state.

It had never occurred to Marxist to reflect whether it was possible or admissible to try to establish socialism regardless of or against the will of the working class. They simply took that will for granted. For the same reason it seemed to the Bolsheviks as clear as daylight that the proletarian dictatorship and proletarian (or Soviet) democracy were only two complementary and inseparable aspects of the same thing. . . . Now a conflict arose between the two aspects of the Soviet system. (Deutscher 2003, II-421-422).

Historically caught up in the contradictions of mass movement revolutionary parties, the Soviet response set the model, which was followed for several generations throughout the Marxist-Leninist world. That response also effectively served to reject the possibility of constitutionalist legitimacy as a basis of state, party or national legitimacy. Once this rejection did not matter?but things change.

IV. MOVING TOWARD OF NEW MODEL OF THE STATE-PARTY: FROM DENG XIAOPING TO HU JINTAO, AN EVOLVING IDEOLOGICAL CONSTRUCTION.

Like constitutionalism, state-party governance theory has also evolved. In China in particular, the push towards what the Chinese refer to as scientific development in the political field (Hu 2007) has produced a great leap in the sophistication of the concept. This section describes the form of that transformation, a transformation that the article suggests, provides a basis for its increasing conformity to modern global constitutionalist values. For China transformation required overcoming the problems and limitations of the Soviet approach to post revolutionary mass movement proletariat democracy. It suggests that, unlike the ossification that resulted from the Stalinist settlement of Marxist-Leninist governance in Soviet approach dominated states, the Chinese have been able to fashion, over the course of the last thirty years, the foundations of a different approach to the great fundamental contradiction of post revolutionary governance?the legitimation of party governance in a proletariat mass democracy.

Much more than an embrace of rule of law and a constitutionalist Weltanschauung was at stake in this enterprise. The movement from a revolutionary mass movement denominated a ?party? to a governing apparatus at the heart of state and nation also denominated ?party? has taken over half a century. But the contours of that change are becoming clearer. There is now a growing gulf between the revolutionary band well outside any form of legitimate power and the immense political movement overseeing a state apparatus as it seeks to maintain its role as the supreme embodiment of political authority. Anti-constitutionalism was the status quo in 1979; by 2008 the theoretical framework of something different?a single party constitutionalist state?could be discerned.

To understand this fundamental, and fundamentally important change, at the level of theoretical self conception (at least) it is necessary to journey from the nascent party-state framework fashioned by the newly institutionalized worker party state under Mao Zedong, through the vast consolidation and deepening of some of the critical elements lying quietly within that Maoist framework by Deng Xiao Ping and Jiang Zemin. Lastly, it requires an appreciation of the current efforts to put this together and implement theory on the ground through the current (by no means complete) elaboration of scientific development? as the legitimating principle and Ba rong ba chi (????) (Backer August 6, 2006) as the politico-ethical principles by Hu Jintao.

The era of Mao Zedong represents the formative period of Chinese political thought. Its great importance cannot be underestimated as an organic component of Chinese political and thus constitutional theory. But Mao Zedong?s thought is increasingly historicized. And rightly so. Mao Zedong developed his thought during a time of great dynamism in the history of China and the CCP. But it was also a time largely marked by a sense of the outsider position of the CCP. The CCP was not merely a vanguard party, but for a long time a revolutionary party. Even after the end of the civil war, the CCP continued to think of itself as outside the apparatus. It was the process of moving from an outsider to an insider conceptualization of the CCP?s position within China that produced a large measure of the dynamism in the relations of CCP to state and to the nation. This was a period of paranoia, perhaps justified, ?the perception of party leaders, Mao in particular, that hostile forces remained in China long after the civil war was over caused a fluctuation between periods of transformation and consolidation but inhibited the onset of adaptation.? (Dickson 1997, 71). This was the period of the great emphasis on dictatorship, of hegemonism and on de-institutionalization, of the period leading through the Cultural Revolution. The focus was on political and ideological problems and not on institution building, especially after the great leap forward.

The rise and fall and rise of Pen Zhen, ultimately one of the critical contributors to China?s 1982 constitution, is a metaphor for the approaches to party state and law in China through the early 1980s. ?The rehabilitation of Peng Zhen in 1979 after twelve years of disgrace and his subsequent rise to become one of the dozen top Party leaders and chairman of the National People's Congress Standing Committee represent one of the most significant turnabouts in the political history of the People's Republic of China.? (Porter 1986, 22) Stanley Lubman perhaps most pithily describes the ?great leap? into Chinese Constitutionalism in the post-Mao Zedong era.

Under Mao, policy alone as articulated and applied by the Chinese Communist Party ("CCP") had directed and guided the entire Chinese Party-state, and legislation had been used only formalistically to declare policy. It was imprecise, exhortational, tentative, and subject to unlegislated revision. The Constitution that was adopted in 1982 recognized promulgated laws enacted by the legislative organs of the state as the appropriate vehicles both for defining and implementing policy rather than CCP policy directives, even though the implementation of legislation still depends on CCP policies and changes in them. Reform has brought a fundamental new orientation toward governing China that has generally been followed, in which formal legislation has become the major framework for the organization and operation of the Chinese government. (Lubman 2000, 384).

The extraordinary innovation was grounded in the two decisions made by the CCP in the late 1970s. The first was to separate the Party apparatus from the State. The second was to formalize the relationship of apparatus?both state and Party apparatus?to law. Under this great ideological (and to use the language of Chinese theory?scientific) advance, both state and Party were to be grounded in rule beyond the whim of individuals under the reorientation of the post 1979 era. But the values basis of the rules based systems were to be developed and protected by the Party, and applied by the state apparatus. Both of these notions were expressed in the constitutions of the Nation (Constitution of China 1982) and the CCP (Constitution of the CCP), and in the formulation of the ideological foundations of the new political state-party construct.

The first of the two great principles came explicitly and early from Deng Xiaping. Though not well understood at the time?the contours of constitutionalist within stat-party context outlined by Deng in 1986. Separation of Party from government would provide the basis for separation of powers governance. But this separation of powers doctrine differs significantly form that understood in the West. ?The last time I talked with some comrades about economic work, I called their attention to the necessity of reforming the political structure, including the need to separate the functions of the Party and the government and to delegate powers to lower levels.? (Deng 1986). The state apparatus, the government, deals with the problems of oversight of the population. ?While we are correcting unhealthy tendencies and cracking down on crime, we must leave matters that fall within the scope of the law to judicial institutions; it is not appropriate for the Party to concern itself with such matters. The Party should concern itself with inner-Party discipline, leaving legal problems to the state and the government.? (Deng 1986). The Communist Party deals with the oversight of the government. ?We uphold the Party's leadership, but the problem is whether the Party is doing a good job of leading. It should give effective leadership and not intervene in too many matters. The Central Committee should take the lead in this regard. What I am proposing will not weaken the Party's leadership. On the contrary, its leadership will be weakened if it tries to take responsibility for too many areas.? (Deng 1986).

And rule of law issues are inextricably linked to state-Party governance. ?If the Party intervenes in everything, it will not help the people understand the importance of the rule of law. This is a question of the relations between the Party and the government, of the political structure of the country.? (Deng 1986). Thus critical to the first principal of separation of state from Party is the need to consolidate and institutionalize arty leadership in a system that leaves room for a state apparatus. That institutionalization was grounded in not the governmental role of the Party?but in its leadership role. That leadership role is a critical construct easy to misunderstand. No longer merely a bare knuckles control of all activity, the leadership suggested is ideological and political. The CCP is to provide a model for the society it is seeking to lead eventually to a pristine Marxist stateless system as well as serve as the source of those political values through which state action can be understood, applied and state power interpreted. In this context, Deng?s emphasis on both the Four Cardinal Principles ((the leading role of the CCP; adherence to socialism; dictatorship of the proletariat; and adherence to Marxist/Leninist/Mao/Deng Xiaoping/3 Represents Thought)) and on the separation of state from Party becomes more understandable. The state is to serve the people in their everyday affairs. But the Party is to serve the sate by providing it with the values system critical to a proper application of the rules of law through which it is to operate.

The second of the great post-Mao principles was realized through the adoption of a constitutional framework for the governance of state and Party. In that context it is important to understand the constitution as consisting of two documents?the Chinese Constitution of 1982 and the constitution of the party in power, that of the Chinese Communist Party. The former lays out the organization of the state and the relationship between the state apparatus to the party in power as the holder of supreme collective political authority. (Backer 2006). The constitution is meant to provide both a framework for the devolution of inferior governmental power to an apparatus of state organizations and for the constitution of the superior political authority in the apparatus of the Communist Party. The later organizes and institutionalizes the manifestation of political authority within the nation?the power is collective, corporate and is expressly bound by rules and norms that give character to that polity. What distinguishes both from the vanguard party governance prior to 1979 was the use of law as a mechanics of institutionalization and bureaucratization of political power. (Backer 2009a). But this difference is crucial from a constitutionalist perspective; the move from politics unbounded to a law bounded framework for governance represents a crucial step toward the adoption of a rule of law foundational framework for the organization of political power. This, of course, is the critical presumption of constitutionalist states. (Backer 2009).

The Chinese constitution attempts to establish the context on which these two aspects of government can come together?the formal institutions of the state and the oversight of values/governance role of the CCP. T

Full post as published by Law at the End of the Day on December 11, 2008 (boomark / email).

• Free US Law Dictionary
• Law Blogs
• Overtime Law Suits and Settlements
• AARP Insurance Law Suits and Settlements
• Springfield Car Accident Law Suits and Settlements
• DePuy Metal Hip Replacement Law Suits and Settlements
• Chantix Suicide Law Suits and Settlements
• Heparin Injections Law Suits and Settlements
• St. Louis Accident Law Suits and Settlements
• Springfield Truck Accident Law Suits and Settlements
• Similac Class Action Filed Against Abbot Law Suits and Settlements
• Granite Countertops Law Suits and Settlements
• LAWgical

• Legal Answer Now
• Law Answers
• More Law Answers
• Even More Law Answers

• Power of Attorney
• Lease Agreement
• Quitclaim Deed
• Auto Bill of Sale
• Advance Health Directive
• Wills for married people
• Promissory Notes
• Affidavits
• More Forms
• Law Blogs

• Divorce Lawyers
• Bankruptcy Lawyers
• Personal Injury Lawyers
• Criminal Defense Lawyers
• Heparin Lawyer
• NYC Landlord Tenant Lawyer
• Law Hacks

• Directory
• Law Links

• Drug & Medical Lawsuits
• Defective Product Lawsuits
• Investment Fraud Lawsuits
• Product Recall Lawsuits

• OJ Simpson

Your Blog Subscriptions Subscribe to blogs

10,000+ Law Job Listings
Lawyer . Police . Paralegal . Etc

---

Earn a law-related degree

Are you the author of this blog? Adding USLaw.com to your Blogroll increases relevance. You qualify to display a USLaw Network badge.

Suggest changes to this blog's description or nominate another for inclusion. Register for updates.

Practice Area Bankruptcy Business (General) Business Formations Civil Litigation Civil Rights Commercial Commercial Litigation Consumer Protection Contracts Copyright Corporations Creditor's Rights Criminal Divorce DUI Elder Law Employment- Employee Employment- Employer Entertainment/Sports Environment Family Health Care Immigration Insurance Claims Intellectual Property International Law Internet Law Medical Malpractice Medicare Patent Trademark Personal Injury Products Liability Real Estate Securities Small Claims Tax Traffic Wills Trusts Estates Workers Compensation Other (not listed)

Zip Code: Contact a Lawyer Now!

Chinese Communist Party Keeping Mao Zedong's Book Royalties

Former China Communist Party official convicted of corruption drops appeal

A blow to third party candidates.

China court finds former Communist Party official guilty of corruption

Workers Paradise: Chinese Communist Officials Under Fire For Frolic With State Funds

Party with Legal Literacy

zOnChange="location.href=formjump.formjumpbox.options[selectedIndex].value" Select Another Affidavits Bill of Sale Deeds Quitclaim Deed Divorce Petition Employment Family Law Health Care Landlord & Tenant Leases & Rentals Name Change Partnership Prenuptial Agreement Power of Attorney Promissory Notes