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Why China finds it difficult to appreciate democracy
Published online by Cambridge University Press: 13 June 2019
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.
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Footnotes
*
Visiting Fellow in Constitutional Law.
**
Professor of Law and Chairman of Lee and Li, Attorneys-at-Law.
References
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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.
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158 Ibid 19.
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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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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.
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214 See generally (n 78) 55–7.
215 Ibid.