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Why China finds it difficult to appreciate democracy

Published online by Cambridge University Press:  13 June 2019

DAVID KC HUANG*
Affiliation:
O.P. Jindal Global Law School, Sonipat, Narela Road Near Jagdishpur village Sonipat, Haryana-131001, NCR of Delhi, India
NIGEL NT LI*
Affiliation:
Soochow University and National Taiwan University, 56 Kueiyang Street Section 1, Chungcheng District, Taipei, Taiwan10048, Republic of China

Abstract:

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.

Type
Articles
Copyright
Copyright © Cambridge University Press 2019 

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Footnotes

*

Visiting Fellow in Constitutional Law.

**

Professor of Law and Chairman of Lee and Li, Attorneys-at-Law.

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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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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.

55 Ibid.

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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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66 Ibid 59–67.

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.

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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?

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90 Ibid, col 206.

91 See (n 81) 1–12.

92 Talmon, Cf JL, The Origins of Totalitarian Democracy (Mercury Books, London, 1961) 1–13; contra (n 88) 90 (indicating that ‘China’s supporters say it has learned responsiveness and self-correction better than Western democracies’).Google Scholar

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) 4750.Google Scholar

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97 Ibid 38–54.

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102 (n 8) 115–23.

103 Ibid 115.

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108 E.g., (n 8) 115; (n 104) 8.

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113 (n 107) (authors’ translation).

114 See (n 107).

115 See <https://ctext.org/mengzi/liang-hui-wang-ii/zh> (authors’ translation).

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>.

118 See <https://ctext.org/shang-shu/songs-of-the-five-sons/zh> (authors’ translation).

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).

124 Ibid.

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127 See T Jefferson, The United States Declaration of Independence (Wildside Press, Rockville, MD, 1776/2009) 19 (asserting that ‘[w]e hold these truths to be self-evident, that all men are created equal, that they are endowed … with certain unalienable rights, that among these are life, liberty and the pursuit of happiness’).

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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

133 Ibid.

134 De Freitas v Benny [1976] 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’).

135 See generally (n 10) 9–55.

136 See <https://ctext.org/book-of-poetry/jiong-zhuo/zh> (authors’ translation).

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.

146 See <https://ctext.org/mengzi/liang-hui-wang-i/zh> (authors’ translation).

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.

149 See generally Pines, Y, The Everlasting Empire: The Political Culture of Ancient China and Its Imperial Legacy (Princeton University Press, Princeton, NJ, 2012) 134–61.CrossRefGoogle Scholar

150 (n 10) 35.

151 Ibid 31–38.

152 (n 23) 24.

153 Ibid.

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).

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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) 8892.Google Scholar

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168 See (n 8) 115; (n 104) 8.

169 See generally Vanberg, GS, The Politics of Constitutional Review in Germany (Cambridge University Press, Cambridge, 2005) 1178.Google Scholar

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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181 Blackstone, W, Commentaries on the laws of England: Book the Third (Clarendon Press, Oxford, 1768) 109.Google Scholar

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

190 See generally (n 10) 9–55.

191 Yeh, H-Y, ‘Xian Qin De Zheng Zhi Zhe Xue [The Political Philosophy in Ancient China]’ in Tseng, C-H (ed), Zhong Guo Zhe Xue Gai Lun [Introduction to Chinese Philosophy] (Wu-Nan, Taipei, 2005) 361.Google Scholar

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.

197 See generally Holmes, C, Why Was Charles I Executed? (Hambledon Continuum, London, 2006) 1201.Google Scholar

198 See generally Caiani, AA, Louis XVI and the French Revolution, 1789–1792 (Cambridge University Press, New York, NY, 2012) 125.CrossRefGoogle Scholar

199 See generally Walker, M, Metternich’s Europe (Palgrave Macmillan, London, 1968) 323–46.CrossRefGoogle Scholar

200 See generally Daniell, C, From Norman Conquest to Magna Carta: England 1066–1215 (Routledge, London, 2003) 50–2.Google Scholar

201 See (n 13).

202 (n 13) (implying that the Chinese Magna Carta was probably a direction rather than a code).

203 Cf De Freitas v Benny [1976] 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.

210 Ibid.

211 Cole, JH, ‘Competition and Cooperation in Late Imperial China as Reflected the Native Place and Ethnicity’ in Hershatter, G, Honig, E, Lipman, JN and Stross, R (eds), Remapping China: Fissures in Historical Terrain (Stanford University Press, Stanford, CA, 1996) 162.Google Scholar

212 (n 10) 45–9.

213 (n 11) 252–3.

214 See generally (n 78) 55–7.

215 Ibid.

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