An exploration of the roots of Chinese political history to understand China’s bumpy road towards constitutionalism
In many ways, China’s authoritarian way of exerting power seems incompatible with constitutionalism. A constitutional state follows an established pattern of governing principles and laws as defined in a constitution; and the concept of constitutionalism more generally encompasses the idea that institutions are to a certain degree democratic in their functioning, and that the state ensures the protection of basic rights. Keeping these definitions in mind, one will quickly conclude that China is a far cry from being constitutional, as there are indeed serious flaws to its political and legal systems: the unique party system, widespread corruption, the unachieved recognition and implementation of basic liberties, to name just a few.
Yet, if we believe that a democratic and constitutional China could ever see the light of day, one needs to start looking for constitutionalism in all the forms it may take, and that a western-biased mind may conceal. The good news is: China is more and more drawn towards political reforms, as society begins to be more aware of the political situation, although the economic sphere remains the fundamental concern of a population that primarily wants to improve its living conditions and standard of living. Indeed, a public opinion has re-emerged in the previous decade through the media, public demonstrations and the publicized activities of high-profile dissidents. In this context, the Chinese government has had to make concessions in order to maintain its legitimacy and a certain control over the fringe of its population that is likely to contest certain political decisions.
What has also been interesting in recent years is that courts of justice have tended to gain importance within the political system and have occasionally shown that they are ready to use their power to interpret the actual Constitution in a way that may be beneficial to citizens.
This movement to build the Chinese state on more rational and legitimizing foundations is an ongoing process. But beyond its immediate consequences on the Chinese polity, it also highlighted debates concerning the possibility for China to become a democratic state because of its very essence, which stems from a culture far removed from the Western civilization in which democracy arose. And indeed, in the current democratization process of many states, it is undeniable that western democracies play an important part both as a model to follow and because of the classical theories that have shaped the face of democracy.
However, China’s efforts towards constitutionalism cannot be reduced to the sole importation of a ‘Western’ democratic model superimposed onto local practices; if a constitutional state is to be built in China, it will need to reconcile the Western scheme with Chinese culture and with the Chinese perceptions of the idea of the State and of the position of Law within society.
In fact, from its Confucian origins to the end of the Qing Empire, some specific features have deeply marked China’s possibility to develop a balanced and fair state; the chaotic past of China throughout the twentieth century partly follow on from this perpetual tension between something that can be defined as “Chinese essence” and the necessity to modernize; the modern period also itself induced particular approaches to constitutionalism as it emerged in China.
The origins of the Chinese state: Confucianism and Daoism
Confucius and his fellow thinkers, also called the ritualists, have had considerable influence throughout the centuries in China, whether they were praised or criticized, concealed or consecrated to the highest level of value by the Emperor himself. Today, Confucianism seems to witness a new growing infatuation, after it was castigated by the Maoist regime. Confucianism is a wide term that actually encompasses Confucius’s heirs and their thinking. From a little group of disciples gathered around ‘master’ (Fuzi, 夫子) Kong (孔), it became a school of thought based on Confucius’s teachings, and then a state ideology under the Han dynasty (206 BC-200 AC). It is precisely during the Han period that Confucianism really anchored itself into Chinese society, and also that it began permeating Chinese culture in such a way that it would later be seen as indissociable from Chinese civilization.
Confucianism is of utmost importance when speaking about the premises of constitutionalism in classical China, as its conception of the individual is not distinct from the conception of society as a whole. That is to say that the public and private spheres are not separated, and that the state is dealing with citizens without distinguishing individuals. What is more, the foundation of the Confucian system is based on virtue (ren, 仁), which is the core element in the harmonization of the self, and consequently on the interactions that tie human beings together. The same way, the King or Emperor should govern by exerting his virtue and practicing to become a “man of good”, and the diffusion of this moral order through the Emperor’s personal example is, in Confucianism, the best way to ensure the coherence of society.
In his Analects (quoted by Theodor de Bary), Confucius says:
“If you try to lead the people by regulations and order them by punishments, the people will evade these and have no sense of shame [in doing so]. If you lead them by virtue and order them through the rites, they will have a sense of shame and will correct themselves.”
In this view, what is crucial in order to guarantee the functioning of a society (apart from virtue) are rites (li, 礼), which constitute a social transcription of the “natural” behaviours that each human being should stick to; rites are contingent upon the place and time, and the people they involve. Each type of human relation has its own codification, and by forcing oneself to accomplish again and again these well-defined attitudes, one integrates them into one’s inner self and finds natural harmony. In other words, rites are the seawalls that prevent social order from bursting into pieces. In this view, rites are not seen as exogenous rules that have been socially constructed, but rather as the adaptation of the harmonious interactions that prevail in the cosmos to the social context. This is a central notion in Confucianism. Rites have in fact been used as jurisprudence, allowing to judge people according to the social practice defined by rites.
Also important in connection to rites is the fundamental place of the family, and especially of the relationship between a son and his parents. With Confucianism, filial piety was elevated to a vital duty that was worth all the abnegations possible and even self-sacrifice. This relation is of particular interest to understand the development of the Chinese state because it extends to the bond between the subjects and their sovereign. The latter, in his quality of Son of Heaven, is to be respected faithfully and unquestionably as long as he does not turn into a tyrant. The political and legal pattern that emerged through these conceptions placed hierarchical order and self-regulation higher than a restrictive law and institutions that take for granted that an external constraint will regulate society.
The case of Daoism is also interesting even though it is a philosophy that never really had a political program. As it rose to prominence within Chinese society, Daoism was used to legitimize the power of the Emperor and chiefly the hierarchical social order: for example, body mechanisms were compared with the Chinese administration’s hierarchy, and Daoist practitioners were invited to understand and internalize guiding principles to find inner harmony, which in turn would lead to social harmonization. Similarly to Confucianism, in Daoism the organizational principle was that the sovereign should merge with the “Dao” (the original force of life) without trying to affect the way things naturally go. But contrary to Confucian ideology, the sovereign should not attempt to impose a moral law. His power of radiance is deemed more efficient than any political action that could try forcefully changing the natural course of things.
Besides, in Daoism the sovereign embodies the cosmic unity of the universe, which reaffirms the necessity of the unity of Chinese society. In Lao Zi’s view, the ideal society would be one constituted of small communities, isolated from one another, within which there would be not conflict and everybody would be in a state of peacefulness. The fundamental quest for unity in Daoism is all the more interesting as it is three-dimensional. Indeed it is said that there are three “One” in the universe: the female One, the male One, and the Emperor One. Those three are assimilated to primordial breathings in the body, whose mastery shows the way to harmony and immortality.
The legalist system and the 3 principles of government
Another significant political experience has shaped the way China has defined itself in its relation to the Law and the legal system: Legalism. The legalists were especially influential at a time when feudalism was on the verge of collapsing and when various sovereigns realized that there was a need for unity, but each of these lords wanted unity to be achieved under the aegis of his own realm.
One of the most famous legists is Hanfei (韩非) (290-234 BC), a thinker at the service of the sovereign of Qin, the realm that was to succeed in unifying China around 200 BC. Legists and Confucians do not share much when it comes to their conception of the state and of laws. Legists were troubled by the chaos that was ruining the country, and by the necessity to find a way to control the diverse populations in order to accomplish unity within a secured state. Law became their favoured tool to implement order after the multiple wars that had devastated what was then a parcelled-out China.
In the view of legalists, the central pillar that should hold the whole system together is the power of the Emperor, which has to be reinforced by any means. Law is thus used as the indispensable instrument to serve this power by exerting a very strong constraint upon all the Emperor’s subjects. The state, in its functioning, warrants everything. It is self-sufficient, and so is the law, which is disconnected from the citizens and from ideas of rights or duties. Nothing can distinguish the people’s interests from the State’s interests. Individuals are the flesh of the State that provides them the ability to live together, but that does not grant them any kind of proper existence.
Legalism is often seen as a harsh socio-political response to a troubled historical period. But legalists also laid out some fundamental notions that made China experiment with the implementation of laws that applied (at least in theory) to anyone equally. The three principles of government as theorized by Hanfei zi can be summed up as follows:
– The Emperor derives prestige from his very position, and this standing has to be reinforced: this position of power is called “shi” (勢).
– The second principle is “fa”（法), the law in its penal aspect.
– And eventually, the third principle is “shu” (術), which correspond to secret techniques to control the administration. Indeed emperors dreaded a possible treason from the administration and this paranoia led them to set up very many control institutions.
The legalists thus introduced the central idea that sovereignty is artificial, which is in opposition to Confucian and Daoist thought. From this resulted a conception of law as positive (defined for itself and not for what it is not), and for the first time the Chinese state was theoretically distinguished as an autonomous entity. In that sense, legalists allowed the decisive transition from feudal kingship, which was grounded on interpersonal relationships, to a theoretical conception of the State as a group of institutions, laws, measures, that operate in an automatic way and that remain indifferent to the nature and condition of the people it deals with.
What is also interesting with legalism is that it largely distrusted personal initiative; one should only do what one is requested to do. That is why the emperor needs to manipulate his subjects, and for that he has an “army” of civil servants that can relay his orders directly among the population.
The legalist system uses what can be called a “totalitarian Dao”: they try to show the administration’s constant objectivity through the automatic and objective instrument that the law constitutes. Thanks to this system, the sovereign is believed to be able to punish his subjects fairly. But although the law is a positive element detached from the past, it is still viewed as an emanation of cosmic laws in Legalism, which is a conception inherited from the Daoists. Likewise, the law is an imperial decision, but it has to be interiorized. Thus the aim of the legalists is to instate a very cruel variety of punishments so that people fear them so much that they do not attempt to breach the law. When one is accused, one is guilty. In fact, the real goal of such a terrifying cluster of laws is to render punishments useless, since the law is interiorized; consequently, when one thinks he/she acts according to his/her inner principles, they are respecting the law that has been mentally accepted as worthy of respect.
But although theoretically everyone has to abide by the law, there is one exception: the sovereign himself, who is beyond the laws since he is the one that makes them. The role of the sovereign is to remain omnipotent, impenetrable, feared. He is the hidden nucleus of the whole system; he needs a police state to secure this authoritarian state. In addition, he has to acquire knowledge of the state, because political power does not come from Heaven anymore; he has personal abilities and a political understanding of the state. This leads to an unprecedented relation between politics as a practice of power and politics as knowledge, whereas in the Confucian thought, the Emperor only had to be virtuous.
Eventually, legalist thought defines itself as a regulation of the opposite passions that are at work in human nature, which is reminiscent of what Thomas Hobbes would write centuries later in his Leviathan. In legalist Shang Yang’s book, it is said that “men are governable only because they have passions”. And in order to achieve this regulation of passions, legalists also advocate an alternation of wars and ploughing; this permanent occupation gives its pace to society and prevents people from bypassing the power of the state.
Understanding the quest for unity and its bearing on modern China
As discussed earlier, unity is paradigmatic to Chinese philosophy since feudalism began to appear as a serious threat to the possibility of a state. As feudalism resulted in wars and chaos, people and specially thinkers rallied behind the idea of a centralized and unitarian state. And soon enough the only solution seemed to be the military way to impose the unitarian state, as charisma and virtue had not done much to restore order. But how could a unity be conceived in spite of the apparent parcelling out of the various sovereignties? Notwithstanding the variations of dialects, the different states had the sense of a belonging to a common culture that developed under the Zhou (1122-256BC). Additionally, there was a commercial and social interdependence that tied together the various states before unification. Alongside the exaltation of unity, a parallel discourse expanded on the hatred of duality as a source of confusion and disorder.
As a result of this conception of unity, the idea of pluralism could only be understood as one component of the unitarian state. Thus, there never really was any theorisation of the participation of the people to political life, nor was there much importance given to the separation of powers or to checks and balances. The various school of thoughts were predominantly focused on how to achieve absolutism, whether as associated with the law or as the emanation of the Dao that transcends subjects and servants.
Therefore from its early history, one can find in Chinese history the idea of an analogy between cosmic order and political order. There has of course been a criticism of violent sovereigns, but the imperial principle was never contested per se up until the late 19th century. Even in Confucian and Daoist philosophies, the sage figure is not opposed to the King’s one, as the King is summoned to become a sage; thus there is never a coherent and long-lasting alternative model to absolute power. Besides, the other organization that prevailed in China was the patriarchal clan that was the sub-level of imperial power. This sub-unity was able to regulate the social body, each community leader acting as a sovereign over his clan.
What is to be understood from these primary theories and political experiences for the constitutional development of China in the twentieth century? Firstly, that the principle of unity alongside with the (somewhat paradoxical) historical importance of distinct provinces is key to China’s founding. Secondly the central role of the Emperor, Son of Heaven, and his absolute power upon his subjects, even though his power should not overpass some limits defined by a cosmic order. Thirdly, the ambiguity of the law as an exogenous means that in many cases took the aspect of a coercive and unfair constraint.
The collapse of the Empire and the chaotic journey towards political modernity
The nineteenth century introduced new elements to the imperial order, which were to force a new perspective on the way political power was conceived. The principal element was modernity, through the encroachments of Western and Japanese powers over the Chinese territory and state. The Qing dynasty (1644-1911), of Manchu origin, proved unable to cope with both the internal and external issues that were arising: rebellions in northern and western provinces seeking to obtain more autonomy, unequal treaties from western powers imposing trade conditions benefiting England and France especially, corruption and growing difficulty to implement the imperial decisions at a local scale.
Starting in the 1860s, the “Restoration” launched by Empress Cixi aimed at empowering the Qing dynasty with renewed capacities of control, through a rationalisation of practices, and at giving itself a new military force to restore territorial order. Yet the reforms failed to re-establish the supremacy of the Qing as their army was defeated by the Japanese fleet; at the same time, the dynasty had to face increasing political agitation resulting from the formation of political groups influenced by western ideas, or on the contrary fighting the importations of foreign ideas. The second major attempt to save the regime through reforms took place in 1901 and was consolidated in 1908. However, these very reforms also gave birth to intense intellectual debates that were to undermine the Qing Empire and ultimately contribute to its dissolution. Nationalism was an especially successful ideology because it managed to appeal to people’s fears and hopes, and fostered the rampant feeling of xenophobia against external powers. It then turned into a racial nationalism levelled against the Manchu’s dynasty, since it had failed to tackle the issues raised by modernity.
Throughout these attempts to establish a new leadership, diverse trends confronted each other: conservatism, reformism, radicalism. They all positioned themselves depending on the extent to which they accepted or rejected modernity and its implications. The other vital concern was to determine how to transcript the improvements that western techniques could bring along without expunging the Chinese “essence”. During the 19th century, it was consensual that the quintessential ‘chineseness’ was to remain the principal element of a restoration of power; western imports could solely be used as practical applications. The guiding principle in reforms was always Chinese culture and its way of perceiving the world. However, at the beginning of the twentieth century, thinkers from the reformist and radical wing reconsidered this position and examined western philosophies as valid principles that may be compared to the ‘Dao’, that is to say the power to ordinate things and particularly society. Nevertheless, the ‘chineseness’ topic did not disappear from the debates, and the necessity to adapt a modern state to ancestral practices and beliefs remained a burning issue.
The following decades were stained by the conflict between nationalists and communists, and subsequently by the victory of communism followed by Mao’s reign and inflection on power. Throughout this agitated period, problems emerged whose seeds can be found in China’s classical history, even though Chinese Marxism was a unique experience that instituted its own blueprint. For instance, the Cultural Revolution noticeably constituted an attempt to root the regime in Chinese culture and civilisation, while the inception of communism in 1949 was much more infused by Russia and more generally exogenous sources. Similarly to what the Imperial power had done for centuries, the Communist Party monopolized all powers, and tried to spread its authority through the different levels of administration, which depended on the central Party. There was very little degree of initiative allowed, and although law became related to a collectivist conception of society, the gap between the law and the application of individual rights lingered on.
The turning point within the history of Chinese communism took place in 1984 when Deng Xiaoping opened an area of unmatched economic reforms; yet the political status quo persisted, and the brief hope that China could also become more constitutional were brutally quelled after the Tiananmen protests were violently crushed in 1989. In exchange for allowing people to get rich and improving their living-conditions, Deng imposed social and political stability by forbidding contestation and social unrest. Law was therefore the party’s privilege and the legal system beneath the party’s heels. Citizens were to be consumers kept aside from the political and constitutional functioning of the state.
Today, the question remains for China: how to balance becoming a major player on the international scene while refusing to play by the rules that the international community has set up? How to preserve the essence of Chinese civilization when modernization seems to lead to an inexorable alteration of a culture’s identity and to uniformity? How to reconcile the absolute power of the central committee of the CPC with the difficulty to implement its decisions in the municipalities? How to ensure the coherence of the nation when it is threatened by the rebellious impulses of remote provinces? In fact, these are enduring issues that China needs to face if she wants to carry on its development on lasting foundations.
Chinese constitutionalism carries in itself the contradictions of centuries-old conceptions of power and law, alongside with the demands of modernity and a globalized world. China struggles with its Chinese quintessential definition and its desire to become more like western industrialized societies. Chinese leaders attempt to convince themselves and the world that China has already become a superpower, while its bases are still shaky and often a mere imitation of a successful exogenous model. There is still a long way to constitutionalism in China, and the country will have to deal with its past to reinvent its own way of organizing political power in conjunction with social rights and duties.
 Lao Zi is the master whose teachings are behind Daoism.
 For the recruitment of civil servants, there has to be an evaluation system that can judge objective capacities and intelligence, which is partly why imperial examinations became so prominent during the Han.
 The Book of Lord Shang, 商君書 (Shang jun shu), written during the 4th century BC.
 The reinforcement of the state’s power also has to do with historical antecedents according to which a ‘bad’ emperor would end up overthrown. At the time of the Shang dynasty (1766-1122 BC), the supreme power held concurrently all socio-political functions: culture, religion, politics, judiciary power, and so on… This absolute power was even physically represented by the emperor’s palace, which stood at the centre of the capital city which literally revolved around it. When the Shang dynasty collapsed, it was interpreted as the heavenly will to end the Shang’s reign, as the dynasty proved not worthy of it anymore. The celestial mandate entitling a family to rule needed to be attributed to another imperial family. In this conception, we see the teleological notion that was used to read political events: history brings an end to evil bad regimes and facilitates the ascent of the good ones.
– YU, Xingzhong, “Western Constitutional Ideas and Constitutional Discourse in China, 1978-2005”, in Stephanie Balme and Michael W. Dowdle, eds., Constitutional Politics in China, Paris: Pagrave, forthcoming
– XIAO-PLANES, Xiaohong, “Constitutions and Constitutionalism: Trying to Build a New Political Order (1908-1949)”, in Balme & Dowdle, op cit.
– DE BARY, Theodor, “The ‘Constitutional Tradition’ in China”, in Journal of Chinese Law. Volume 9, Spring 2005
– WILL, Pierre-Etienne, “Virtual Constitutionalism in Late Imperial China: The Case of the Ming dynasty”, in Balme & Dowdle, op cit.
– GERNET, Jacques, Le Monde Chinois, tome 1, Armand Colin, Paris, 2005