¹ This introductory section has two parts. The first part, which is intended mainly for readers unfamiliar with Chinese political thought, outlines the Chinese Confucian political context in which the question of constitutionalism emerged in its own Confucian terms. The second part presents an argument focused on the issue of royal transmission and its Confucian constitutional implications.

² See, for instance, Balazs, Etienne, Chinese Civilization and Bureaucracy: Variations on a Theme, trans. Wright, H. M., ed. Wright, Arthur F. (New Haven: Yale University Press, 1964)Google Scholar; Wittfogel, Karl, Oriental Despotism: A Comparative Study of Total Power (New Haven: Yale University Press, 1957)Google Scholar; Weber, Max, The Religion of China: Confucianism and Taoism, trans. Gerth, Hans H. (New York: Free Press, 1951Google Scholar). On Chinese Legalism, see Fu, Zhengyuan, China's Legalists: The Earliest Totalitarians and Their Art of Ruling (Armonk, NY: M. E. Sharpe, 1996)Google Scholar.

³ The first “empire” in China was established when Qin unified the old territory of the Zhou dynasty (1045–256 BCE) called tianxia 天下 (literally, “all under heaven”), which was then divided into several states (guo 國), by means of supreme military force (221 BCE). However, this first empire undergirded by Legalism was destroyed in fifteen years by a peasant rebellion, and the Chinese empire was successsfully fortified only after the Han dynasty, which lasted several hundred years. China under control of the Zhou King, who was called the Son of Heaven (tianzi 天子), was not understood to be an empire, a unified or enlarged state (guo) under the rule of an emperor with supreme military force. Rather, the territory of the Son of Heaven was envisioned in terms of a moral-political and cultural boundary called tianxia that separates the Chinese people from barbarians. I am grateful to one of the anonymous reviewers for clarifying the difference between empire and tianxia in the context of Chinese political thought.

⁴ Though earlier emperors of Han adopted Huanglao (instrumentalized Daoism)—statecraft that aimed to minimize the ruler's purposeful political actions in the name of wuwei 無爲 (literally, “non-action”)— to appease the people who had been oppressed by the tyrannical rule during the Qin dynasty which lasted only fifteen years, Emperor Wu (r. 141–87 BCE) employed it as both ruling ideology and the official code of ethics for the empire. Through his efforts the Confucian bureaucratic system was firmly established. While Emperor Wu, an absolutist ruler, adopted Confucianism strictly for political purposes, Emperor Guanwu (r. 25–57 CE) was genuinely attracted to the Confucian ideal of rule by ritual and elevated it to the highest principle.

⁵ On the historic formation of Legalistic Confucianism and Legalism during the Han dynasty, see Levenson, Joseph R. and Schurmann, Franz, eds., China: An Interpretive History from the Begginings to the Fall of Han (Berkeley: University of California Press, 1971)Google Scholar. Weiming Tu calls Legalistic Confucianism a “politicized Confucianism,” and distinguishes it from original Confucianism advanced by thinkers before Qin (221–205 BCE) (especially Mencius). Tu, Wei-ming, “Probing the ‘Three Bonds’ and ‘Five Relationships’ in Confucian Humanism,” in Confucianism and the Family, ed. Slote, Walter H. and DeVos, George A. (Albany: SUNY Press, 1998)Google Scholar.

⁶ See Chaihark, Hahm, “Constitutionalism, Confucian Civic Virtue, and Ritual Propriety,” in Confucianism for the Modern World, ed. Bell, Daniel A. and Chaibong, Hahm (Cambridge: Cambridge University Press, 2003)Google Scholar, 31–53, and Song, Jaeyoon, “The Zhou Li and Constitutionalism: A Southern Song Political Theory,” Journal of Chinese Philosophy 36, no. 3 (2009): 423–38CrossRefGoogle Scholar.

⁷ Hahm, “Constitutionalism, Confucian Civic Virtue, and Ritual Propriety,” 43.

⁸ On Confucius's understanding of zheng 政 (politics or government) in terms of zheng 正 (literally, “correction,” but more accurately “moral rectification”), see Analects 12:17; 13:6. For Confucius's endorsement of the use of li as the primary sociopolitical mechanism of moral rectification of the people, see Analects 2:3.

⁹ Most notably, Fingarette, Herbert in his Confucius: The Secular as Sacred (New York: Harper and Row, 1972)Google Scholar reduces Confucian ethics to ritual ethics, or “role ethics,” as some recent Confucian scholars call it.

¹⁰ Zhou was the suzerain state directly under the rule of the Son of Heaven, and it allegedly created a highly humanistic civilization called wen 文 (as opposed to wu 武, the military force), which was organized by and operating on the li where the li mainly referred to the Clan Law (zongfa 宗法) that governed the moral and political relationship between the suzerain Zhou court and the feudal states (whose lords were often but not always related by blood to the Zhou King) and by extension all major moral and sociopolitical human relationships.

¹¹ In the Confucian political tradition, the Kingly Way (wang dao) refers to the mode of statecraft that the ancient sage-kings allegedly employed to serve the welfare of the people. It is often contrasted to “Hegemonic Rule” (ba dao 覇), which concentrated on political power and economic profit.

¹² On the way in which Mencius's political philosophy of kingship is internally connected to his moral cosmology of heaven, see Ching, Julia, Mysticism and Kingship in China: The Heart of Chinese Wisdom (Cambridge: Cambridge University Press, 1997), 99–102.CrossRefGoogle Scholar

¹³ In Confucian political tradition, the Li Yue Xing Zheng is an idiom that denotes the totality of the Confucian moral and political institution. This concept is most pronounced in Xunzi's political theory.

¹⁴ We can distinguish a politics to which morals are inextricably fused from Realpolitik which is absolutely unconstrained by moral concerns by calling the former Moralpolitik. See Kim, Sangjun, “The Genealogy of Confucian Moralpolitik and Its Implications for Modern Civil Society,” in Korean Society: Civil Society, Democracy, and the State, ed. Armstrong, Charles K. (London: Routledge, 2002)Google Scholar.

¹⁵ Song, “The Zhou Li and Constitutionalism,” 423.

¹⁶ See Hahm, Chaihark, “Ritual and Constitutionalism: Disputing the Ruler's Legitimacy in a Confucian Polity,” American Journal of Comparative Law 57 (2009): 135–41CrossRefGoogle Scholar.

¹⁷ As Song's essay, cited above, shows, among the ancient Confucian texts, Zhou Li 周 describes the institutional operation of Confucian constitutionalism.

¹⁸ One may wonder whether this broad understanding of constitution/constitutionalism presents Confucian constitutionalism in its own terms. After all, dezhi and lizhi were rarely discussed in an explicit manner by early Confucian thinkers as ways of governing or organizing the people. Their preferred word for zhi治, which I translate as constitutionalism, was “the Kingly Way” (wang dao), and the Confucian constitutional government operating on the Kingly Way was called “benevolent government” (ren zheng). My point is simply that dezhi and lizhi constituted the core of the wang dao (or ren zheng) and that it is possible to see a uniquely Confucian constitutional and political dynamic in those terms—a dynamic that can hardly be captured in Western constitutional/political terms such as “law,” “right,” or “Rechtsstaat.”

¹⁹ Though the English term “abdication” does not convey the Confucian moral ideal of “yielding to the worthy,” I nevertheless adopt this term for the Chinese concept of shanrang, following the conventional contrast between abdication and hereditary succession.

²⁰ de Bary, W. Theodore, The Trouble with Confucianism (Cambridge, MA: Harvard University Press, 1991), 1–2.Google Scholar

²¹ Mencius 4A:2

²² Xunzi 23:2a. All English translations of the text of the Xunzi are adopted from Knoblock, John, Xunzi: A Translation and Study of Complete Works, 3 vols. (Stanford: Stanford University Press, 1988–1994)Google Scholar.

²³ Mencius 5A:5.

²⁴ See Rosemont, Henry Jr., “State and Society in the : A Philosophical Commentary,” in Virtue, Nature, and Moral Agency in the “Xunzi,” ed. Kline, T. C. III and Ivanhoe, Philip J. (Indianapolis: Hackett, 2000), 6Google Scholar.

²⁵ It is true that Mencius and Xunzi presented different views of human nature, but this difference is only apparent. Mencius and Xunzi focus on different dimensions of human nature. Likewise, the difference between Mencius's political idealism and Xunzi's political realism has more to do with their different understandings of kingship.

²⁶ Both ideas attribute the essence of Confucian politics to the ruler's personal moral virtue.

²⁷ Analects 20:1. It is generally agreed that Book 20 of the Lunyu (“Yao yue” 堯曰) is a later interpolation, perhaps after the rise of Moism (墨家), which popularized the abdication legend (see Creel, H. G., Confucius and the Chinese Way [New York: Harper and Row, 1949], 182–210)Google Scholar. This philological issue, however, does not affect my claim that by the later Warring Sates period when Mencius and Xunzi were active, the abdication legend had become popular both in the Confucian school and with the general public.

²⁸ De Bary, The Trouble with Confucianism, 2.

²⁹ All English translations of the text of the Mengzi are adopted from Lau, D. C., trans., Mencius (New York: Penguin, 1971)Google Scholar, with one exception: whereas Lau translates the Chinese term “tianxia” as “empire,” I prefer to use the original Chinese term, for reasons explained above in note 3. Accordingly, “tianzi,” which Lau translates “emperor,” is here translated “king.”

³⁰ In later Confucianism, this idea was established in terms of Tianxia wei gong 天下爲公 (all under heaven belong to the general public).

³¹ Mencius 1B:11.

³² Bell, Daniel, “Just War and Confucianism: Implications for the Contemporary World,” in Beyond Liberal Democracy: Political Thinking for an East Asian Context (Princeton: Princeton University Press, 2006), 23–51CrossRefGoogle Scholar.

³³ Mencius 1B:11 (emphasis added).

³⁴ The trusted ministers of the noble families (shi chen 世臣) in the feudal states like Qi and Yan are equivalent to the feudal lords (zhu hou 諸侯) in the tianxia.

³⁵ Mencius 1B:7.

³⁶ Mencius 4A:6.

³⁷ Mencius 5A:6.

³⁸ However, Mencius sometimes unwittingly admits that the sage-king's pure (personal) charisma does get routinized and that the routinized charisma exerts traditional authority. For instance, when asked why Sage-King Wen (the cofounder of the Zhou dynasty with his son Sage-King Wu), despite his matchless moral virtue (and enthusiastic welcoming by the people of Shang), was not able to conquer Shang, then ruled by tyrant Zhou, and his punitive expedition was accomplished only by his son King Wu, Mencius points out the benevolent customs and mores that the rulers of Shang inherited from one another since its foundation by the sage-king Tang. According to Mencius, even Zhou, the tyrant, had the “traditionalized charisma” of the Shang dynasty, which made King Wen's expedition extremely difficult (Mencius 2A:1).

³⁹ According to Yuri Pines, Mencius had a particular reason for introducing the ruler's recommendation as the most crucial factor in deciding abdication. Having witnessed how the abdication legend could be taken advantage of by usurpers in the states like Qi and especially Yan, Mencius had to moderate the inherent radicalism of his earlier interpretation of the abdication legend, which made abdication doctrine vulnerable to usurpation by wicked ministers like Zi Zhi of Yan. See Pines, Yuri, “Disputers of Abdication: Zhanguo Egalitarianism and the Sovereign's Power,” T'oung Pao 91, no. 4 (2005): 268–271CrossRefGoogle Scholar, 275–280. I am grateful to one of the journal reviewers for bringing to my attention this important article.

⁴⁰ Tiwald, Justin, “A Right of Rebellion in the Mengzi?,” Dao 7, no. 3 (2008): 269–282CrossRefGoogle Scholar.

⁴¹ Mencius 2B:8.

⁴² Tiwald, “A Right of Rebellion in the Mengzi?,” 276.

⁴³ Yi Yin was one of the most sagacious ministers of Sage-King Tang, the founder of the Shang dynasty. According to Mencius, Yi Yin accepted the position of minister only after Tang cordially invited him three times.

⁴⁴ Mencius 7A:31 (also see 2A:2; 5A:7; 5B:1).

⁴⁵ Since he discusses the Tianli in the context of rebellion in the tianxia, the would-be Tianli Tiwald has in mind is the feudal lord who is loved and esteemed by the people. Since Yi Yin, the sage-minister, meets (substantially, if not perfectly) the procedural condition that designates a Tianli, Tiwald would not oppose my presentation of Yi Yin as the Tianli. According to Tiwald, procedural condition stipulates that (1) the would-be Tianli must have spent time in a position of political authority and his policies have earned the overwhelming approval and appreciation of the people; (2) if he happens to get such a position and the people do indeed overwhelmingly approve of him (as evidenced by singing songs in praise of him, taking his roads, etc.), this is heaven's sign that he is the next Tianli. See Tiwald, “A Right of Rebellion in the Mengzi?,” 277–78. The Mengzi does not document the people's reception of Yi Yin's regent rule, but considering his wide reputation as a sage and given his previous political performance in the court of Sage-King Tang, there is no reason to doubt that the people supported his regent rule.

⁴⁶ In fact, they possessed the territory of one thousand li or more, thus elevating them to the position of the Son of Heaven at least in terms of power.

⁴⁷ Mencius 3A:1.

⁴⁸ Mencius 6B:15. This is the only phrase where Mencius gives a positive evaluation of Guan Zhong, the minister of Duke Huan of Qi, who was one of the five Hegemons during the Warring States period.

⁴⁹ Mencius 3B:2.

⁵⁰ Xunzi 23:1c, 1d, 3a, 3b.

⁵¹ Xunzi 18:5a. Here and in the subsequent English translations of the text of the Xunzi I retain the original Chinese term “tianxia” that Knoblock translates “empire” for the reason offered above in note 3.

⁵² Xunzi 24:1.

⁵³ Mencius 5A:7.

⁵⁴ Liu, Qingping, “Family versus Sociality and Individuality: On Confucianism as ‘Consanguinitism,’” Philosophy East and West 5, no. 2 (2003): 234–50CrossRefGoogle Scholar.

⁵⁵ Mencius 5A:4. According to Confucian rituals, the ruler faces south and his subjects face toward him, that is, toward the north.

⁵⁶ Xunzi 18:5b.

⁵⁷ Mencius 5A:1–4.

⁵⁸ Mencius 3A:4.

⁵⁹ For instance, see Xunzi 21:5a and 21:7d.

⁶⁰ Xunzi 23:1a–2a.

⁶¹ Mencius 2A:6.

⁶² “The way the mouth is disposed towards tastes, the eye towards colors, the ear towards sounds, the nose towards smells, and the four limbs towards ease is human nature, yet therein also lies the Decree (ming 命). That is why the gentleman (junzi) does not describe it as nature. The way benevolence (ren) pertains to the relation between father and son, righteousness (yi) to the relation between prince and subject, the ritual propriety (li) to the relation between guest and host, wisdom (zhi) to the good and wise man, the sage to the Way of Heaven, is the Decree, but therein also lies human nature” (Mencius 7B:24). Also see Mencius 4B:19; 6A:6. For an excellent collection of essays on Mencius's idea of human nature and his moral philosophy, see Liu, Xiusheng and Ivanhoe, Philip J., eds., Essays on the Moral Philosophy of Mengzi (Indianapolis: Hackett, 2002)Google Scholar.

⁶³ Xunzi 23:5a.

⁶⁴ Ivanhoe, Philip J., Confucian Moral Self Cultivation (Indianapolis: Hackett, 2000), 101Google Scholar.

⁶⁵ Xunzi 23:1e. Ultimately, this difference between Mencius and Xunzi is attributable to their completely different understandings of Tian. On Xunzi's naturalistic understanding of Tian (as opposed to Mencius's moral-cosmic understanding of it), see Machle, Edward J., Nature and Heaven in the “Xunzi”: A Study of the Tian Lun (Albany: SUNY Press, 1993)Google Scholar and Lee, Janghee, Xunzi and Early Chinese Naturalism (Albany: SUNY Press, 2004), 19–32Google Scholar.

⁶⁶ For Xunzi's idea of human nature and his moral philosophy, see Stalnaker, Aaron, Overcoming Our Evil: Human Nature and Spiritual Exercises in Xunzi and Augustine (Washington, DC: Georgetown University Press, 2006), 56–84Google Scholar. For a comparison between Mencius and Xunzi on human nature, see Scarpari, Maurizio, “The Debate on Human Nature in Early Confucian Literature,” Philosophy East and West 53, no. 3 (2003): 323–39CrossRefGoogle Scholar, and Shun, Kwong-loi, Mencius and Early Chinese Thought (Stanford: Stanford University Press, 1997), 222–31Google Scholar, and the essays (particularly those by Bryan Van Norden and D. C. Lau) in T. C. Kline III and Philip J. Ivanhoe, eds., Virtue, Nature, and Moral Agency in the “Xunzi.”

⁶⁷ Cf. Xunzi 4:9; 4:10; 9:10; 10:1; 19:1a; 23:1a.

⁶⁸ Xunzi 23:2a. In Xunzi 16:4, Xunzi provides a more concrete and realistic description of the state of nature in the Confucian context. On the intrinsic connection of human nature and rituals in Xunzi's moral and political philosophy, see Cua, Antonio S., Human Nature, Ritual, and History: Studies in Xunzi and Chinese Philosophy (Washington, DC: Catholic University of America Press, 2005)Google Scholar and Hagen, Kurtis, The Philosophy of Xunzi: A Reconstruction (Chicago: Open Court, 2007)Google Scholar.

⁶⁹ Xunzi's notion of zuo zi wei zhi sheng 作者謂之聖 (“the Founder is a sage”)—which was dismissed by the Cheng-Zhu neo-Confucians—was rediscovered by Japanese political theorist Ogyu Sorai (荻生狙徠, 1666–1728) during the Tokugawa period. See Maruyama, Masao, Studies in the Intellectual History of Tokugawa Japan, trans. Hane, Mikiso (Tokyo: University of Tokyo Press, 1974), 69–134Google Scholar.

⁷⁰ Hagen captures Xunzi's ritualism in terms of “Confucian constructivism” and distinguishes it from mere conventionalism (Hagen, The Philosophy of Xunzi, 32–35). From a political perspective, Confucian constructivism is tantamount to Confucian constitutionalism.

⁷¹ Following in the footsteps of Confucius and Mencius, Xunzi understands politics or governing (zheng 政) in terms of “correcting [the ruler]” (zheng 正) (Xunzi 10:15). As a Confucian, Xunzi is convinced that governing begins with the ruler's moral self-cultivation (xiushen 修身) (Xunzi 14:5; also see 9:18; 12:4).

⁷² For example, see Mencius 1A:7; 4A:4; 4A:20; 7A:1; 7A:4. This, however, is not to argue that Mencius had no interest in actual sociopolitical and economic affairs that require active political engagement (youwei 有爲). Not only did Mencius propose to implement the well-field system as the socioeconomic backdrop of the Kingly Way, he also thought the disciplined use of coercion, punishment, or even (just) war was inevitable in the nonideal world. See Mencius 2A:4; 3A:3; 4A:14. Also see Bell, “Just War and Confucianism,” 24–31. For a discussion of the philosophical connection between self-cultivation and the political order in Mencius, see Shun, Mencius and Early Chinese Thought, 163–73.

⁷³ Xunzi 18:5c.

⁷⁴ Xunzi 12:1. In this respect, Xunzi seems not to dismiss “negative constitutionalism,” the constitutional constraint on political power.

⁷⁵ On the Daoist-Wuwei dimension in Xunzi's thought, see Slingerland, Edward, Effortless Action: Wu-wei as Conceptual Metaphor and Spiritual Ideal in Early China (Oxford: Oxford University Press, 2003), 246–64Google Scholar.

⁷⁶ Confucius, for example, extolled Shun's wuwei statecraft in the Analects 15:5.

⁷⁷ Analects 2:1.

⁷⁸ Mencius 7A:16.

⁷⁹ Nylan, Michael, “Boundaries of the Body and Body Politic in Early Confucian Thought,” in Boundaries and Justice: Diverse Ethical Perspectives, ed. Miller, David and Hashmi, Sohail H. (Princeton: Princeton University Press, 2001), 115Google Scholar.

⁸⁰ Xunzi 11:2b.

⁸¹ Barring some exceptional cases, for Xunzi the term “fa” means not so much the “law” narrowly conceived (as the Legalists later used it) but the “model” of social, political, and cultural institutions.

⁸² Mencius 5B:9: “If the prince made serious mistakes, they (ministers of royal blood) would remonstrate with him, but if repeated remonstrations fell on deaf ears, they would depose him. … If the prince made mistakes, they (ministers of families other than the royal house) would remonstrate with him, but if repeated remonstrations fell on deaf ears, they would leave him.”

⁸³ Xunzi 18:2.

⁸⁴ It is far from my intention to present Xunzi as a protodemocrat who proactively upholds the right to rebellion. I agree with Eric Hutton that Xunzi's political theory is undemocratic, to say the least. See Hutton, Eric L., “Un-Democratic Values in Plato and Xunzi,” in Polishing the Chinese Mirror, ed. Chandler, Marthe and Littlejohn, Ronnie (New York: Global Scholarly Publications, 2008)Google Scholar.

⁸⁵ Note that the Chinese characters 王 and 亡 have the same phonetic sound.

⁸⁶ Xunzi 13:9.

⁸⁷ One remaining question, though, is how dezhi and lizhi as the Confucian constitutional governance actually operate. For a more detailed discussion of the virtues of the ruler in Mencius's dezhi, see Kim, Sungmoon, “The Secret of Confucian Wuwei Statecraft: Mencius's Political Theory of Responsibility,” Asian Philosophy 20, no. 1 (2010): 27–42CrossRefGoogle Scholar. For more on the formation of civility in the Xuzian polity, see Sungmoon Kim, “From Desire to Civility: Is Xunzi a Hobbesian?,” Dao 10, no. 2 (forthcoming).

⁸⁸ Strauss, Leo, The City and Man (Chicago: University of Chicago Press, 1978)Google Scholar.