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Published online by Cambridge University Press: 13 June 2019
This article explores the Chinese cognition of democracy in accordance with ancient Chinese political philosophy and modern constitutional jurisprudence. It argues that the classical Chinese cognition of democracy, i.e., demo-orientation, does not consist of any sense of equality and procedure, by which the Chinese people easily confuse democracy by the people with democracy for the people, thinking that China’s democracy subsists when the Chinese Government decides in favour of their interests. Moreover, the lack of sense of procedure produces inadequate means against tyranny, that the Chinese people can either admonish the ruler when he or she is still tolerable, or rebel when he or she is unbearable. Neither means serves institutionally.
Visiting Fellow in Constitutional Law.
Professor of Law and Chairman of Lee and Li, Attorneys-at-Law.
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4 Mao certainly is not an ordinary Chinese person in terms of either political sophistication or political sensitivity, which makes our puzzle even more puzzling: why could the Chinese people not do anything when he turned against democracy?
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14 (n 13) (authors’ translation).
15 See generally (n 10) 117–28.
16 (n 10) 117–24.
17 (n 13) (authors’ translation).
20 (n 10) 120–1.
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29 (n 13) (authors’ translation).
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31 See generally (n 10) 128–35.
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34 (n 11) 191–3.
35 United States Declaration of Independence (1776).
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39 (n 10) 3–8 (interpreting that the Confucian concept of ‘Li’ is the rules in accordance with relationship, and only the rules governing the relationship between friends are equal).
40 See generally (n 10) 3–186 (indicating that equality, if anything foreign to Confucianism, is not at all a denial of the significance of human relationships, but a new conceptual element to, at least some of the social bonding, such as the relationship between the ruler and the ruled, that traditional Confucianism emphasises as not ignorable by the individual human being for a peaceful living in the world).
42 (n 41) 17.
43 (n 10) 135 (authors’ translation).
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46 See generally (n 10) 99–186.
47 Compare Magna Carta (1215) with United States Declaration of Independence (1776) (providing that the consent of the governed is indispensable).
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51 Cf (n 41) 199 (arguing that ‘the classical ideas about human dignity require the establishment of a constitution’).
52 (n 41) 200.
53 See <https://ctext.org/shiji/ru-lin-lie-zhuan/zh> (implying the Chinese logic since the Grand Historian Sima Qian that a ruler is a tyrant when a revolution against him is successful).
54 (n 41) 199.
56 N NT Li, ‘“Min Zhi Fu Mu” Yu Xian Qin Ru Jia Gu Dai Xian Zheng Si Xiang Chu Tan: Cong Shang Bo Chu Zhu Shu Jian Wen Tan Qi [The First Exploration of the Concept of the “People’s Parent” and the Ancient Confucian Constitutionalism: From the Shanghai Museum Bamboo Slips]’ in H H-P Ma (ed), On Theories and Institutions of Law: In Honor of the 80th Birthday of Professor Herbert Han-Pao Ma: Public Law (Angle Press, Taipei, 2006) 1–47.
57 Ibid 1–47; see also (n 10) 9–55 (originally published by Angle Press in 2006 and re-published by San Min Books Co. and Lee and Li Foundation in 2012).
58 (n 10) 42–5.
59 See also Constitution of R.O.C. section 1 (1947) (stipulating that ‘[t]he Republic of China … shall be a democratic republic of the people, to be governed by the people and for the people’).
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62 Ibid 43 (supported by K-C Hsiao but disagreed with Sa M-W, who further indicated that the Chinese concept of democracy consists only of democracy for the people, but neither of the people nor by the people).
63 Ibid 43–4 (authors’ translation).
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67 Ibid 157.
68 (n 10) 43.
69 (n 64) 1–424.
70 Ibid 144–51.
71 Ibid 63.
72 Compare (n 10) 42–5 with (n 64) 59–67.
73 (n 10) 45–9.
74 (n 64) 67–75.
75 Ibid 63.
76 See Gehrig, L and Hirt, T, Rechtskunde: Grundlagen mit Beispielen und Repetitionsfragen mit Antworten [Law: Fundamentals with Examples and Repetitive Questions with Answers] (Compendio Bildungsmedien, Zürich, 2002) 193.Google Scholar
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79 For example, we consider the pursuit of human rights a form of substantive democracy. However, it is obvious that the contemporary Western democracy rests on the pursuit of procedural democracy and we particularly appreciate this character.
80 See generally (n 10) 9–55.
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84 See generally (n 10) 38–54.
85 Compare (n 10) 38–54 with (n 64) 59–67.
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87 One of our co-authors confronted with a challenge based upon elitism held by a Chinese student, who held that all the Chinese people should comply with the decisions made by elites. He responded: I am sure that you agree you are not an elite in front of me. Suppose that your argument is correct, what gives you the position to challenge an elite like me? Why cannot you just comply in accordance with your own argument? Or, you just prove your argument wrong?
88 Youngs, Cf R, The Puzzle of Non-Western Democracy (Carnegie Endowment for International Peace, Washington DC, 2015) 88–90.Google Scholar
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90 Ibid, col 206.
91 See (n 81) 1–12.
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93 (n 10) 45–49.
94 See generally (n 83) 3–9.
95 King, Cf A Y-C, Zhong Guo Min Ben Si Xiang Shi [The Intellectual History of China’s Demo-orientation] (Commercial Press, Taipei, 1993) 47–50.Google Scholar
96 (n 10) 11–38.
97 Ibid 38–54.
98 SM Lipset and JM Lakin, The Democratic Century (University of Oklahoma Press, Norman, OK, 2004) 19 (defining the minimal definition of democracy as ‘[a]n institutional arrangement in which all adult individuals have the power to vote, through free and fair competitive elections, for their chief executive and national legislature’).
100 See generally Habermas, J, The Theory of Communicative Action, volume 2: Lifeworld and System: A Critique of Functionalist Reason, translated by McCarthy, Thomas (Beacon Press, Boston, MA, 1987) 360–3.Google Scholar
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109 See generally Gardner, DK, The Four Books: The Basic Teachings of the Later Confucian Tradition (Hackett Publishing, Indianapolis, IN, 2007) XIII–XXX.Google Scholar
110 (n 107) (authors’ translation).
111 See generally Tan, S-H, Confucian Democracy: A Deweyan Reconstruction (State University of New York Press, Albany, NY, 2003) 132–6.Google Scholar
112 E.g., (n 8) 115; (n 104) 8.
113 (n 107) (authors’ translation).
114 See (n 107).
116 See <https://ctext.org/shiji/chen-she-shi-jia/zh> (Shi Ji [the Records of the Grand Historian] recording that the first citizen’s revolution against tyranny in China occurred in 209BCE).
117 According to Shuo Wen Jie Zi (Explaining and Analysing Characters) published around 30–124CE, the Chinese character ‘Ben’ is a word to depict the part of a tree buried in the ground. Hence, ‘Ben’ can be translated either as root or basis. See <https://ctext.org/shuo-wen-jie-zi/mu-bu1/zh>.
119 This is figuratively an ancient Chinese concept which is very similar to the British ‘Rule Britannia! Britannia rules the waves’. See <https://ctext.org/guanzi/ba-yan/zh> (authors’ translation).
120 See generally (n 10) 9–55.
121 (n 118).
122 Cf (n 118).
123 (n 119).
125 Reddall, HF and Buck, D, Songs that Never Die: Being a Collection of the Most Famous Words and Melodies (B.F. Johnson & Co., Richmond, VA, 1892) 97.Google Scholar
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130 (n 64) 145.
131 (n 10) 44 (authors’ translation).
132 Jellinek, G, System der subjektiven öffentlichen Recht [System of Subjective Public Law] (JCB Mohr, Freiburg im Breisgau, 1892) 63–76.Google Scholar
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135 See generally (n 10) 9–55.
137 In terms of the origin of the concept of the people’s parent, there are opinions because China is an old civilisation so that it is not easy to identify the origin of an archive which was produced more than 3000 years ago. See also (n 10) 57 (holding that the concept originated in multiple resources other than the Book of Poetry).
138 (n 136).
139 The concept originated in the Book of Poetry; hence, it is originally no more than the ancient Chinese ‘God Save the Queen’ or ‘Kaiserhymnen’. However, Confucius had transformed ‘God Save the Queen’ or ‘Kaiserhymnen’ into the king’s regulatory law (Aufsichtsrecht), limiting the king to behave like what the ode is chanted in politics – we once again appreciate his wisdom.
140 See generally (n 10) 15–21.
141 Ibid 23–38.
142 See Douglas, JD, ‘Cooperative Paternalism versus Conflictful Paternalism’ in Sartorius, R (ed), Paternalism (University of Minnesota Press, Minneapolis, MN, 1983) 198.Google Scholar
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144 See (n 10) 45–9.
145 (n 10) 21–3.
147 Compare (n 48) 27–42, with Su L, The Constitution of Ancient China, edited by Zhang Y and DA Bell and translated by E Ryden (Princeton University Press, Princeton, NJ, 2018) 178 (holding that ‘[a]ncient China was a despotic regime: no rights were protected; no powers constrained).
148 See generally (n 48) 27–57.
150 (n 10) 35.
151 Ibid 31–38.
152 (n 23) 24.
154 (n 11) 193 (authors’ translation).
155 Ibid 191–211.
156 Ibid 19 (authors’ translation).
157 Ibid 17–19.
158 Ibid 19.
159 Ibid 19.
160 Ibid 19 (authors’ translation).
162 (n 161) 23 (indicating that democracy is ‘a Greek word with no Latin equivalent, stands for direct rule (“getting things done”) by the people’).
163 Cf (n 76) 193 (distinguishing substantive law from procedural law).
164 (n 8) 115.
165 (n 161) 23.
166 See generally Hurley, PJ, A Concise Introduction to Logic (Wadsworth Publishing, Boston, MA, 2012) 88–92.Google Scholar
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170 (n 64) 144–51 (defining the legitimacy of demo-orientation as indirect democratic legitimacy).
171 (n 64) 47.
172 See (n 169) 95–115.
173 (n 64) 63.
174 Tsai, KS, Capitalism Without Democracy: The Private Sector in Contemporary China (Cornell University Press, Ithaca, NY, 2007) 200.Google Scholar
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182 (n 181) 109.
183 See (n 101); (n 115).
184 See (n 95) 17 (holding that demo-orientation is only a theory which has never been institutionalised as a political system, i.e., it is not legally binding).
185 Cf (n 181) 109 (meaning that democracy consists of remedy and redress such as hierarchy of law, by which a rule that is in contradiction with the constitution is invalid; election/recall, by which a ruler who fails to satisfy the people will leave office).
186 Cf D KC Huang, The Rule of Law with Chinese Characteristics: An Analysis of China’s Administrative Law. Conference Paper, 7th Annual International Conference on Law, Regulations and Public Policy, 25 June 2018 (GSTF, Singapore, 2018) 15 (holding in accordance with Blackstone that ‘if the law provides legal rights without a pertinent procedure for relief, then the law provides nothing at all’).
187 (n 98) 19.
188 See T Paine, The Writings of Thomas Paine, Volume III, edited by MD Conway (G.P. Putnam’s Sons, New York, 1895) 4 (claiming himself as ‘a Citizen of a country which knows no other Majesty than that of the People; no other Government than that of the Representative body; no other sovereignty than that of the Laws’).
189 See Fleiner, T and Fleiner, LR Basta, Constitutional Democracy in a Multicultural and Globalised World, translated by Roy, K Le (Springer, Berlin, 2009) 400–6.Google Scholar
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192 (n 23) 24.
193 (n 11) 250–4.
194 Ibid 253 (authors’ translation).
195 Cf L Baum, Judges and Their Audiences (Princeton University Press, Princeton, NJ, 2006) 25 (formulising the audience theory of judges from a social psychological perspective which is also applicable to administrative decision-makers).
196 Please be aware that moral duty and legal duty are different. Confucius attempted to burden the rulers with the people’s parents as their moral duty, but this never reaches to the level of legal duty.
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202 (n 13) (implying that the Chinese Magna Carta was probably a direction rather than a code).
203 Cf De Freitas v Benny  AC 239 (Lord Diplock holding in the Privy Council that ‘[m]ercy is not the subject of legal rights. It begins where legal rights end’).
204 Cf ibid (applying Lord Diplock’s obiter dictum that a request for decision-making where the ruler is not obliged to decide by law is merely a request for mercy).
205 Cf ibid (applying Lord Diplock’s obiter dictum that mercy cannot be requested because it not a legal right).
206 Cf ibid.
207 Ching C-J, Zhong Guo Li Xian Shi [The History of Chinese Constitutionalism] (Linking, Taipei, 1984) 67 (authors’ translation).
208 Nineteen Main Articles of the Imperial Constitution (1911) (providing China’s first constitutional monarchy between 3 November 1911 and 12 February 1912, but it did not prevent the Qing Empire from collapsing).
209 (n 207) 67.
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212 (n 10) 45–9.
213 (n 11) 252–3.
214 See generally (n 78) 55–7.
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