II. Historical insights

In 1046 BCE, Jizi presented King Wu of Zhou with the Chinese Magna (hong) Carta (fan),^{Footnote 13} whose Preamble reads, ‘Hong-Fan was recorded as a result of the return of Jizi, when King Wu of Zhou defeated the Shang dynasty, causing the death of King Zhòu of Shang but granting a peerage to [King Zhòu’s son], Wu-Geng’.^{Footnote 14} This passage is usually skimmed over when people study Hong-Fan as a source of the Chinese concept of ‘mandate of heaven’;^{Footnote 15} however, if we read between the lines, the Preamble actually hints that the political ground of discussing the mandate of heaven claimed by the Zhou Kingdom, i.e., why the Zhou dynasty could legitimately replace the Shang dynasty,^{Footnote 16} arose from the fact that ‘King Wu of Zhou defeated the Shang dynasty’.^{Footnote 17}

According to Hsu Cho-Yun, ‘the concept of the Mandate of Heaven [was] developed in the political context of the Zhou expansion’.^{Footnote 18} ‘The Zhou conquest of Shang … in 1045 B.C. represented at the time perhaps only the replacement – through force of arms – of one local power by another, but for later Chinese it came to illustrate the irrepressible will of Heaven turning its mandate from one state, the rulers of which had grown distant from the people, to another state blessed with virtuous rulers’.^{Footnote 19} In other words, the mandate of heaven was originally a theory which justified Zhou’s dominance created by the Zhou people,^{Footnote 20} asserting that ‘rulers are empowered by Heaven …. If Heaven is disgusted by immoral behavior or offended by inadequate or improper sacrifices it will transfer the authority to rule to another man.’^{Footnote 21} Nevertheless, ‘[o]n those occasions when the ruling imperial Dynasty lost the “mandate of heaven” (legitimate right to rule), the people looked for an individual to arise worthy of Heaven’s approval’,^{Footnote 22} i.e., rebellion.^{Footnote 23} ‘Normatively, over two millennia this was the method most favoured by the Chinese people for the resolution of crises concerning political legitimacy’.^{Footnote 24}

Hence, when we think it through, the mandate of heaven can be understood from two perspectives. First, the transfer of the mandate of heaven can be proved only by a successful rebellion or revolution,^{Footnote 25} otherwise it would be hard to imagine how the dethroned ruler could be compelled into accepting that the mandate of heaven had been transferred.^{Footnote 26} In King Wen of Zhou’s Victory against Li, Shang Book of the Book of Documents,^{Footnote 27} King Zhòu of Shang said that he was born to enjoy the mandate of heaven, so he rejected Zu Yi’s advice of not being an abusive ruler^{Footnote 28} – he was not aware of the transfer of the mandate of heaven until ‘King Wu of Zhou defeated the Shang dynasty’^{Footnote 29} per se.^{Footnote 30} Second, even if we have no doubt that a ruler will behave properly to avoid being overthrown,^{Footnote 31} as long as he remains the person with a lifelong mandate of heaven, he still enjoys full discretion in administration,^{Footnote 32} engendering power imbalances between the ruler and the ruled,^{Footnote 33} by which any attempt to restrict the power of the person with the mandate of heaven is finite – if he is chosen by heaven, how can people disagree with him where there is no obvious right or wrong but only preferences? When his decision is not doomy, why will people bear the risk of rebelling against him? Moreover, why did rebellion become historically inevitable from time to time in China^{Footnote 34} as a non-institutional mechanism and a de facto threat to political stability in order to ensure the rulers with the mandate of heaven behave properly? Lastly, is this political system democratic?

When ‘[w]e hold [this] truth[] to be self-evident that all men are created equal’,^{Footnote 35} our belief logically^{Footnote 36} implies that both mandate of heaven^{Footnote 37} from the East and Dieu et mon droit^{Footnote 38} from the West constitute inequality between the selected few (person or family) and the rest of the people in politics. Hence, Nigel NT Li argues that when it comes to the relationship (li) between the ruler and the ruled,^{Footnote 39} there was no sense of equality within Confucianism,^{Footnote 40} though the idea of human dignity such as Zhang Qianfan has argued^{Footnote 41} ‘is firmly rooted in Confucianism’.^{Footnote 42} Li states:

In other words, when read together, Zhang Qianfan and Nigel NT Li illuminate why China finds democracy difficult to appreciate from a historical perspective. The concept of the mandate of heaven narrowed the Chinese political system to an unequal system,^{Footnote 46} in which the ruler and the ruled are not one,^{Footnote 47} because ‘parents’ and ‘children’ can never switch positions,^{Footnote 48} so that the law in line with Confucianism ‘sanctioned the doctrine of superiority of the father, the husband and the senior over the son, the wife and the junior respectively’.^{Footnote 49} Hence, where the ‘Li’ governing the ruler and the ruled is inequal,^{Footnote 50} which forestalls a sufficient institutional mechanism checking and balancing the ruler’s powers,^{Footnote 51} the rules of the game between a parent and a tyrant will still amount to the flip of a coin, even though ‘[f]or Confucianism, human dignity is fully illustrated in the ideal personality of a gentleman who has cultivated innate virtue through learning and the practice of Li’.^{Footnote 52} When a ruler can claim powers and rights in line with ‘Li’, that he shall be respected as the people’s parent because the mandate of heaven is presumed to be with him as a ruler, what can the Chinese people do other than deviate from the ‘Li’ of respecting a lord-parent (jun fu) to spark a revolution to overthrow a lifelong emperor who was a tyrant?^{Footnote 53}

Nevertheless, Zhang Qianfan has keenly asserted that ‘the classical ideas about human dignity require the establishment of a constitution …’.^{Footnote 54} We would like to further point out that the core of constitutionalism does not rest on whether ‘the classical ideas about human dignity’^{Footnote 55} are constitutionalised. Many constitutions are not functioning. Hence, we pay more attention to the variables that guarantee the implementation of a constitution, and we hold that both equality and an institutional mechanism are essential.

III. Literature review

More than a decade ago, in a liber amicorum in honour of Professor and Justice Herbert Han-Pao Ma, Nigel NT Li published an essay containing various interpretations on the Chinese cognition of democracy in accordance with China’s ancient constitutionalism.^{Footnote 56} The essay is titled ‘The First Exploration of the Concept of the “People’s Parent” and the Ancient Confucian Constitutionalism: From Shanghai Museum Bamboo Slips’,^{Footnote 57} in which Li analyses how the Chinese people understand the modern concept of democracy^{Footnote 58} in accordance with^{Footnote 59} Richard Sheridan and Abraham Lincoln’s famous words, i.e. ‘government of the people, by the people, for the people’,^{Footnote 60} holding that either there is no concept of democracy but only the ideal of enlightened despotism in China,^{Footnote 61} or the Chinese concept of democracy consists only of democracy of the people as well as for the people, but not by the people.^{Footnote 62} Li states:

Li’s criticism has enlightened David KC Huang, who formularises the political ground of Taiwan’s judicial supremacy in his PhD thesis titled ‘Judicial Supremacy in Taiwan: Strategic Models and the Judicial Yuan, 1990–1999’^{Footnote 64} in September 2016. Huang argues in line with Li, holding that election is never the core of democracy in China,^{Footnote 65} because the Chinese people’s cognition of democracy is de facto not contemporary democracy, but rather ancient demo-orientation per se, which is better described as good governance.^{Footnote 66} Therefore, ‘[i]n contrast to other democracies in which the courts are regularly doubted and challenged by countermajoritarian difficulties, the Justices of Taiwan have few reasons to be criticised on the ground of legitimacy’^{Footnote 67} as long as they provide democracy for the people such as Sa Meng-Wu had indicated,^{Footnote 68} i.e., making demo-oriented decisions.^{Footnote 69} Accordingly, Huang defines this Chinese model as indirect democratic legitimacy,^{Footnote 70} but also places a careful academic ‘disclaimer’:

We find Huang falling into the trap of ancient Chinese political philosophy, though we know where he stands – where Li attempts to distinguish the concept of democracy from that of demo-orientation, Huang perfects the theory of demo-orientation for fear of its being misused by autocracies.^{Footnote 72} In contrast to Li who concludes from the Confucian philosophy that the Chinese difficulty in democratisation lies in the lack of a sense of equality,^{Footnote 73} Huang observes the Chinese poor sense of procedural justice and highlights it as a political ground for demo-orientation.^{Footnote 74} Though we have no intention to discard Huang’s subtle theory of demo-orientation for being incorrect, we read the worries in his academic ‘disclaimer’^{Footnote 75} and would like to bring the theory to the next stage in which both Li’s and Huang’s ideas about democracy and demo-orientation can be merged without conceptual contradictions.

We would like to build our new theory regarding the distinction between contemporary democracy and the ancient Chinese demo-orientation on the distinction between substantive law and procedural law (Materielles Recht und Verfahrensrecht^{Footnote 76}) applied permanently in both civil law^{Footnote 77} and common law^{Footnote 78} jurisdictions, and would define the ancient Chinese demo-orientation as a very matter of substantive democracy. However, contemporary democracy is not only a matter of substantive democracy but also a matter of procedural democracy.^{Footnote 79} In other words, we agree with the Chinese concept that democracy for the people, i.e. demo-orientation, is the substance of democracy; but we also agree with the Western model that democracy by the people denotes the necessary procedure of democracy. Though we do not deny that the ancient Confucian philosophy pursues a core value of democracy, namely for the people, it is obvious that the Chinese philosophy provides a poor mechanism for it.^{Footnote 80} Nevertheless, we take the view that only a combination of the substance and procedure will lead to genuine democracy of the people, and that is the ultimate form of government for all humankind.

We are aware of the present Chinese democracy with Chinese characteristics promoted in China,^{Footnote 81} in which democracy by the people (elections) is not taken as the core of the definition of democracy as long as the government provides what the Chinese people want.^{Footnote 82} Through our new theory, we would not define this model a democracy due to the lack of a democratic procedure.^{Footnote 83} Even though we do not choose to challenge that the Chinese government’s decisions are often made in line with the Chinese public interests, this does not change the fact that such a demo-oriented decision has been made in the absence of the democratic consent – public opinion is not a proper procedure. Moreover, we would not identify such a decision-making system as a political system that embraces a true sense of equality.^{Footnote 84} Hence, we would not hold that there is sensible democracy with Chinese characteristics; there is only Chinese demo-orientation when their government decides in accordance with the Chinese public interests.^{Footnote 85} An applicable analogy would be a political system that treats the people like juveniles without capacity^{Footnote 86} in politics, where decisions shall be made for the good of all the Chinese people without their consent.^{Footnote 87}

At the same time, we may agree with the argument that procedural democracy cannot guarantee substantive democracy in toto,^{Footnote 88} but we stand in line with Sir Winston Churchill, holding that ‘democracy is the worst form of government except for all those others forms that have been tried from time to time’.^{Footnote 89} In other words, we are not going to ‘pretend[] that democracy is perfect or all-wise’,^{Footnote 90} but we do believe that procedural democracy is one of the most important mechanisms of democracy that cannot be wiped out. Our argument is simple: if procedural democracy cannot guarantee substantive democracy in toto, neither can enlightened despotism or democracy with Chinese characteristics.^{Footnote 91} Moreover, we are not convinced why a political system with a democratic procedure is inferior to one without a democratic procedure in pursuit of democracy^{Footnote 92} – that is just illogical. Hence, even if we agree with the demo-orientation concept that originated in the Chinese philosophy and proposed by the People’s Republic of China, we are not certain about its feasibility in carrying out true democracy for the people.

In a nutshell, our new theory distinguishes the ancient Chinese demo-orientation from contemporary Western democracy through two crucial characters: equality^{Footnote 93} and democratic procedure.^{Footnote 94} We do agree that both demo-orientation and democracy pursue democracy for the people, but we find both have different attitudes towards equality and mechanism, that demo-orientation consists of inequality in politics and autocracy as the mechanism, whereas democracy embraces both equality and a democratic procedure. Accordingly, we do not deem genuine redefined democracy with Chinese characteristics as Ambrose YC King has put so well, it is a modern Chinese version of enlightened despotism^{Footnote 95} that has claimed to be a democracy. Moreover, we value our ancestors’ political thoughts regarding demo-orientation, with which Mencius indicated that democracy for the people shall be a moral obligation of the rulers;^{Footnote 96} but we must also admit that our ancestors provided us with not only an ineffective mechanism for China’s democracy, but also a political philosophy that tolerates inequality.^{Footnote 97}

V. Demo-Orientation: The substance

Demo-orientation is the ancient Chinese ideal political system promoted by the Confucian school.^{Footnote 102} Its Mandarin pronunciation is ‘Min-Ben’; and literarily it ‘means treating “people” (min) as “roots” (ben)’.^{Footnote 103} According to Baogang Guo, Min-Ben ‘can be translated as “regarding the people as the roots of the state” or simply “put the people first”’.^{Footnote 104} Many contemporary Chinese political scientists consider demo-orientation as the Chinese model of democracy;^{Footnote 105} however, Maestro Sa Meng-Wu not only disagreed but also held that demo-orientation consists only of democracy for the people but not democracy of the people and by the people,^{Footnote 106} by which demo-orientation can never be read as a form of democracy.

Almost every scholar referring to the concept of demo-orientation begins with the above quote from Chapter Jin-Xin II of Mencius,^{Footnote 108} the classical Four Books.^{Footnote 109} The first sentence, i.e., ‘The people are superior to the spirits of the land and grain, but the king is inferior to both the people and the spirits of the land and grain’,^{Footnote 110} is commonly quoted in support of the Chinese cognition of democracy.^{Footnote 111} The original term, ‘She Ji’, is more often translated as ‘the state’,^{Footnote 112} though its literal meaning is ‘the spirits of the land and grain’.^{Footnote 113} The above quote was very avant-garde when Mencius said it more than 2300 years ago, because he intended to link up a feudal ruler’s moral responsibility with democracy for the people, so he defined the order of legitimacy of both the feudal rulers and states (or the spirits of the land and grain) in line with his thought of demo-orientation and placed the people as the ultimate goal.^{Footnote 114} In other words, we consider Mencius’ demo-orientation a remarkable achievement, because he actually demanded that feudal rulers and states (or even spirits) take political responsibility for people’s welfare more than 2300 years ago. He even said:

Nevertheless, when we recall pre-Mencius literature regarding demo-orientation, it appears that demo-orientation may not necessarily link to the people directly, as it did not even justify citizens’ revolutions.^{Footnote 116} Unlike Mencius, who legitimised citizens’ revolution, demo-orientation in pre-Mencius times was no more than political advice suggesting that the Chinese feudal rulers make demo-oriented decisions in order to avoid an aristocratic revolution. Here are some examples:

We find no sense of equality in the ideal of demo-orientation^{Footnote 120} in toto in pre-Mencius times. In the Song of the Five Princes, Xia Book of the Book of Documents,^{Footnote 121} the first prince recalled an admonition regarding demo-orientation from his royal ancestor, Yu the Great, concluding with sorrow that the throne of his brother was taken away by another noble family because the people did not care.^{Footnote 122} In Guanzi, i.e., the Analects of Guan Zhong,^{Footnote 123} Guan Zhong expounded on how to build a superpower in accordance with demo-orientation;^{Footnote 124} however, in contrast to Rule Britannia, in which the British people proudly chant ‘Rule Britannia, Britannia rules the waves! And Britons never never never shall be slaves’,^{Footnote 125} we still find no sense of equality in Guan Zhong’s proposal.^{Footnote 126} Of course, these Chinese thinkers were all proto-democratic thinkers living more than 2000 years ago; we cannot blame them for not possessing any sense of equality. However, we must state clearly that it is not appropriate to apply their theories without modern sophistication accordingly, because we do not live in the ancient world, and equality is morality in our epoch.^{Footnote 127}

Though we do not blame these ancient Chinese thinkers for lacking a sense of equality, we hold that the methods they proposed for implementing demo-orientation are either inadequate or incompetent from the perspective of modern constitutionalism.^{Footnote 129} Due to the lack of a sense of equality, these thinkers ‘highlighted the need for interaction between the rulers and the ruled’^{Footnote 130} as the main and only method for demo-orientation because ‘demo-orientation [by its nature] is a dialogue between Confucianism and monarchy. It functions as a [moral] writ, that the people can plead for mercy … . It does not change the [absolute] monarchy’.^{Footnote 131} In other words, demo-orientation is not a legal right (subjektives Recht^{Footnote 132}) but only a reflex of interest (Reflexrecht^{Footnote 133}) in accordance with German jurisprudence; or by English jurisprudence, it is not a right but the Royal Prerogative.^{Footnote 134} However, we found that ancient Chinese demo-orientation lies in the theory of the ‘People’s Parents’,^{Footnote 135} which is obviously the Chinese version of reflex of interest or royal prerogative.

The concept of the king as the people’s parent originated^{Footnote 137} in the Book of Poetry,^{Footnote 138} and it has been figuratively transformed into the Confucian ideal of good governance, and the image of great ruler has been shaped accordingly.^{Footnote 139} In Shanghai Museum Bamboo Slips, Confucius enlightened Zixia on the concept of the king as the people’s parent, in which Confucius listed the terms by which a king can be honoured as the people’s parent.^{Footnote 140} That is, the original concept of the king as the people’s parent should be an honour the king has to earn, according to Confucius,^{Footnote 141} but this concept also implies not only hierarchy (paternalism^{Footnote 142}) but also inequality (dualism between the ruler and the ruled^{Footnote 143}) because parents and children can never switch positions.^{Footnote 144} It is even more problematic when the concept is applied unfairly, where the rulers claim powers and rights as the people’s parents without taking the corresponding responsibilities.^{Footnote 145} Unfortunately, we learn from history that it happens all the time:

When the positions of the rulers and the ruled are solidified like parents and children in politics, there will be more structural problems. Firstly, when a ruled subject makes a request to the ruler like a child making a request to the parent, it implies that there are no ‘rights’ but only ‘favours’ within,^{Footnote 147} because there were no children’s rights in pre-modern China.^{Footnote 148} Hence, there were no civil rights in pre-modern China^{Footnote 149} accordingly. Secondly, it is immoral to accuse parents of incompetence or evil in Chinese culture.^{Footnote 150} When the concept of the king as the people’s parent is applied, it becomes difficult to accuse the ruler of tyranny.^{Footnote 151} That is to say, though the Confucian thinkers attempted to build up a model of good governance through the concept of the people’s parent, the concept can lead to only one right the Chinese people actually have for thousands of years, i.e. the right of rebellion,^{Footnote 152} which is the worst democratic ‘procedure’ we have ever known.

VI. Democracy: The procedure

Maestro Liang Shuming, a Mongol-Chinese philosopher and sinologist, criticised the classical Chinese political civilisation of inadequacy,^{Footnote 155} because ‘the Chinese people had attempted to institutionalise their democracy of the people and for the people, but never considered democracy by the people such as voting or representative democracy as an institutional method’.^{Footnote 156} Liang satirised this as a ‘Chinese cultural characteristic’^{Footnote 157} in 1949, and he even remarked that ‘democracy defined by the East’^{Footnote 158} will be proposed in contrast to ‘democracy defined by the West’.^{Footnote 159} However, we appreciate Liang’s idea because he exposed the weakness of China’s classical demo-orientation – China ‘never considered democracy by the people such as voting or representative democracy as an institutional method’.^{Footnote 160}

Democracy comes from Greek,^{Footnote 161} i.e. δημοκρατία, which means ‘direct rule by the people’.^{Footnote 162} Hence, it is not so much a substantive concept as a procedural or methodological means^{Footnote 163} in accordance with its literal construction. In contrast with demo-orientation, which is originally a descriptive term profiling a substantive concept, i.e., ‘treating “people” (min) as “root” (ben)’,^{Footnote 164} democracy emphasises the procedure, where a decision shall be made by the people^{Footnote 165} more than made for the people. In other words, decision made for the people is only the logic extension^{Footnote 166} (goal) of democracy, but not its intension^{Footnote 167} (definition). Unlike demo-orientation, which describes decision made for the people as its definition,^{Footnote 168} demo-orientation is logically impossible to be read as a form of democracy, so that there is no democracy with Chinese characteristics per se.

When we juxtapose demo-orientation with democracy, we wonder whether any institutional method or due procedure exists. David KC Huang argues in his PhD thesis regarding judicial supremacy that public opinion can construct indirect democratic legitimacy for unelected judges, by which an indirect enforcement mechanism proposed by George Vanberg^{Footnote 169} can be developed as a method.^{Footnote 170} However, when we read Huang’s definition regarding public opinion, that it ‘represents political pressure from the public as it is received or inferred by the Justices in their examination of how the decision-making process influences eventual result’,^{Footnote 171} it becomes clear that this is not an effective institutional method or due procedure if it is applied beyond the judicial power, because an indirect enforcement mechanism, such as Georg Vanberg says, will simply be ineffective if the public is unaware of the situation.^{Footnote 172} Accordingly, Huang, like Vanberg, never agrees that this mechanism can replace electoral democracy – with his academic ‘disclaimer’, Huang indicates that he has no intention at all to ‘challenge electoral democracy’.^{Footnote 173}

Hence, it is reasonable to conclude that China’s common cognition of democracy is not so much democracy as demo-orientation, though it is often claimed to be democracy,^{Footnote 174} because democratic procedure in China’s decision-making process does not exist.^{Footnote 175} The Chinese people often confuse making decision for the people with that of by the people, thinking that China’s democracy subsists when the Chinese Government decides in favour of their interests.^{Footnote 176} As far as we are concerned, such misunderstanding is rooted in the Chinese poor sense of procedure,^{Footnote 177} because of which the Chinese people find it culturally difficult to distinguish demo-orientation from democracy – ‘as long as the result was favourable, there was no need to care about procedural details’.^{Footnote 178} We can also read this unique phenomenon through David KC Huang, who published an essay regarding China’s constitutionalism with an articulate profile of the Chinese poor sense of procedure in politics.^{Footnote 179} Huang writes:

VII. Democracy: Substance Is Rooted in Procedure

We quote this ‘settled and invariable principle in the laws of England’^{Footnote 182} and make our argument accordingly: what are supposed to be the remedy and redress of demo-orientation except rebellion^{Footnote 183} when the ruler refuses to comply with the Confucian political ideal of the people’s parent in accordance with the ancient thinkers? The truth is perhaps brutal – no remedy or redress because it is not binding in China.^{Footnote 184} Hence, demo-orientation as far as we are concerned cannot be read as China’s constitutional law in accordance with Blackstone,^{Footnote 185} though we can concede that it is part of the Chinese constitutionalism in ancient times.

The Blackstone quote embodies the spirit of substance being rooted in procedure,^{Footnote 186} by which we can distinguish political institution from political theory, where political institution subsists when a ruler is obliged to comply; vice versa, political theory guides the ruler when he or she is willing to be enlightened. However, when we examine democracy and demo-orientation together, we find democracy as Western constitutionalism is based upon various procedural means, such as election,^{Footnote 187} rule of law^{Footnote 188} and the separation of powers framework.^{Footnote 189} On the other hand, it is embarrassing that demo-orientation, which is supposed to be China’s constitutionalism,^{Footnote 190} provides only two inadequate means – either to admonish the ruler^{Footnote 191} when he or she is still tolerable, or to rebel^{Footnote 192} when he or she is unbearable. Neither means serves institutionally, as seen in Maestro Liang Shuming’s criticism, in which he critically diagnosed this phenomenon as a symptom in the Chinese civilisation^{Footnote 193} in 1949. Liang said:

If we were to take the perspective of the Chinese rulers, we would surely find demo-orientation not attractive^{Footnote 195} because making decisions for the people lies in their choice, not a legal duty.^{Footnote 196} In contrast to Western political history, European rulers from Charles I of England,^{Footnote 197} Louis XVI of France,^{Footnote 198} to Prince Klemens von Metternich^{Footnote 199} on behalf of Ferdinand I of Austria, also found making decisions for the people unattractive when they were not bound to do so. As a matter of fact, King John of England was compelled to ratify the Magna Carta ^{Footnote 200} in 1215; however, in 1046BCE, Jizi presented King Wu of Zhou with the Chinese Magna (hong) Carta (fan) because Jizi considered King Wu of Zhou a good king.^{Footnote 201} In other words, England’s first constitution already qualified as a court enforceable institution the king must comply with, but China’s first constitution remained an ideal that only the good kings are entitled to learn.^{Footnote 202} The lack of institutionalisation in Hong-Fan, the Magna Carta of China, had resulted in different consequences in contrast to England, where the English Magna Carta has built up England’s democracy with law.^{Footnote 203} But Hong-Fan as China’s Magna Carta has built up China’s demo-orientation only with mercy.^{Footnote 204} We appreciate the wisdom and contribution of these ancient Chinese thinkers to democracy, but the deficiencies in their theories are clear – even democracy for the people is mercy instead of right;^{Footnote 205} ‘it begins where legal rights end’.^{Footnote 206}