Confucian Constitutionalism in East Asia

Bui Ngoc Son

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317529057
• Edition: 1
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

Western liberal constitutionalism has expanded recently, with, in East Asia, the constitutional systems of Japan, South Korea and Taiwan based on Western principles, and with even the socialist polities of China and Vietnam having some regard to such principles. Despite the alleged universal applicability of Western constitutionalism, however, the success of any constitutional system depends in part on the cultural values, customs and traditions of the country into which the constitutional system is planted. This book explains how the values, customs and traditions of East Asian countries are Confucian, and discusses how this is relevant to constitutional practice in the region. The book outlines how constitutionalism has developed in East Asia over a long period, considers different scholarly work on the ease or difficulty of integrating Western constitutionalism into countries with a Confucian outlook, and examines the prospects for such integration going forward. Throughout, the book covers detailed aspects of Confucianism and the workings of constitutions in practice.

1 Classical Confucian constitutionalism

DOI: 10.4324/9781315723808-2

Introduction

“Constitutionalism” is a modern term but the notion is traceable back to classical antiquity.¹ Some western constitutional theorists and historians have explored constitutionalist ideas in the writings of Hellenistic and Roman ancient intellectuals, such as Plato’s Republic, Aristotle’s Politics, Polybius’ The Histories, and Cicero’s works.² Western scholars, however, tend to consider the origins of constitutionalism to be endemic to the western cradle. Are there constitutionalist wisdoms in the repository of Oriental ancient lore? In particular, are there any ideas of constitutionalism in Confucian political philosophy? This question is important not only for a better understanding of Oriental legal-political thinking but also for the development of constitutionalism in contemporary East Asian nations (China, Japan, Korea, and Vietnam) where the influence of Confucianism has remained. If there exist Confucian constitutionalist ideas, Confucianism will not be a cultural impediment and can even be integrated into the modern projects for developing constitutionalism in East Asia.

There is no scantiness of people who believe that Confucianism is the proponent of despotism – the antithesis of constitutionalism. As Xinzhong Yao points out, modern critics of Confucianism tend to conclude that: “Confucianism has no positive role to play in modern life because it is related, as it always was, to political despotism.”³ Shaohua Hu also notes that “some regard Confucianism as the ideological underpinning of ‘Oriental despotism.’ ”⁴ The credence is traceable to the iconoclasts of the May Four Movement. In opposing Confucianism and expediting for human rights, science, and democracy, Chen Duxiu and his supporters connected Confucianism to despotism.⁵

In fact, those who believe that Confucianism underpins despotism fail to differentiate Confucianism as the tradition of philosophy from Confucianism as the orthodoxy of the imperial states. As noted by Sor-hoon Tan,

since its establishment as the orthodoxy of the Chinese empire in the Han dynasty, Confucianism frequently has been misappropriated by those in power for their own selfish interests at the expense of those they ruled, so much so that many have viewed those distortions as constituting Confucianism itself.⁶

When Confucianism has been misused for the egoistic purposes of despots, people have been belied that Confucianism is supportive of despotic government.

Therefore, in order to answer the question of whether there are constitutionalist ideas in Confucianism, it is proper to return to consider classical Confucianism as a philosophy, or pre-Qin Confucianism established by Confupre-Confucius (551–479 bc) and developed by Mencius (372–289 bc) and Xunzi (312–230 bc) during the late Spring and Autumn Period (770–476 bc) and Warring States Period (475–221 bc) in the history of China. This consideration relies on original work of Confucianism which includes the Four Books (The Analects of Confucius, The Mencius, The Great Learning, and The Doctrine of the Mean) and Five Classics (the I Ching or Book of Changes, the Shu Ching or Book of History, the Shih Ching or Book of Poetry), and the Yi Li or Book of Rites and the Chunqiu or Spring and Autumn Annals), in addition to Xunzi’s writings.

In fact, Chaihark Hahm, Sungmoon Kim, and other scholars have investigated Confucian constitutionalism in classical philosophy.⁷ Hahm accentuates the Confucian concept of li (ritual), while Kim is more concerned with the Mencian concept of virtue. These studies are creditable but incomplete, as they ignore the constitutionalist importance of other Confucian concepts, such as minben, the doctrine of rectification of names, and the concomitant Spring and Autumn Annals. I therefore propose a more systematic and integrative generalization of classical philosophical foundations of Confucian constitutionalism.

I agree with Hahm and other scholars that to understand Confucian constitutionalism, we must take the idea of li into account, but I do not think that li is the central concept of Confucian constitutionalism. From my point of view, li as well as virtue is just a practical continuation of another consequential doctrine in Confucianism, namely zheng ming (rectification of names). Hence, I alternatively suggest that to comprehend the philosophy of Confucian constitutionalism we must pay special attention to the doctrine of zheng ming. My argument runs as follows. Like any other intellectual projects of constitutionalism, Confucian constitutionalism is generated due to the apprehensiveness of despotic government. In searching for an antidote to despotic government, the classical Confucians suggest a zheng ming government which can be understood as a constitutional government. The purpose of this government is to ensure governmental responsibility for public good, which is encapsulated in the concept of minben (people as basis). The Confucians then propose articulation of standards for rectifying the governmental power, named as li – a variant of unwritten constitution. To enforce the li, they anticipate the practice of moral self-rectification by the ruler and the external rectification of the ruler by wise and virtuous scholars.

However, to understand classical philosophy of Confucian constitutionalism, it is important to clarify the meaning of constitutionalism because misconceptualizing constitutionalism will result in misunderstanding its relationship with Confucianism. This chapter is, therefore, structured as follows. The first section clarifies the concept of constitutionalism. On that ground, the second section systematically explores classical intellectual foundations of Confucian constitutionalism. The third section concludes the chapter with some further discussion.

Constitutionalism

Louis Henkin states that constitutionalism “is nowhere defined.”⁸ However, as Thomas C. Grey suggests,

there is no reason to suppose that an adequate conceptual analysis of constitutionalism must produce a definition.... The group of ideas, institutions, and practices gathered under the terminological umbrella of the term “constitution” may bear “familiar resemblances” to each other without necessarily sharing any single quality or small group of quality as their common essence.⁹

So, rather than pursing an authoritative definition, I will elucidate a group of ideas that are instrumental to the recognition of whether a polity is a constitutionalism or not.

What is constitutionalism?

As it is commonly understood, constitutionalism is associated with the idea “that government can and should be legally limited in its powers, and that its authority or legitimacy depends on its observing these limitations.”¹⁰ This understanding was at an early stage developed by Harvard constitutional historian CH. McIlwain, who asserts that: “Constitutionalism has one essential quality: it is a legal limitation on government; it is the antithesis of arbitrary rule; its opposite is despotic government, the government of will instead of law.”¹¹ Carl J. Friedrich, McIlwain’s successor at Harvard, shares the view that constitutionalism is principally concerned with the limitation of government and is a contrast to arbitrary government. He defines constitutionalism as “an institutionalized system of effective restraints upon governmental action.”¹² Put simply: in a constitutionalist polity, political leaders cannot act as they want but are bound by pre-established rules and principles. Constitutionalism subordinates political leaders to pre-established legal rules and principles which limit the public power.

I distinguish two dimensions of constitutional limitations, which are teleological and functional. Teleological limitations denote the idea that the public power is used for general public standards, not for private interests of power holders. Functional limitations concern certain political actions that power holders must do and must not do so as to ensure general public standards. So, functional limitations enable proper use of power and disable arbitrary use of power.

Teleological and functional limitations are articulated in constitutional norms. Constitutional norms can be written and unwritten and they can derive from formal enactment, reason and truth, and usage and acceptance.¹³ While McIlwain conceptualizes constitutionalism as the government under law or legal limitation of the government, what he means by “law” or “legal” is not exclusively positive law but

may be unwritten and entirely customary, as it has been for the greater part of its history; or it may be set forth in a single official document as in our state and federal constitutions, but in every case it is a law that puts bounds to arbitrary will.¹⁴

In similar vein, conceiving constitutionalism as the effective restraints of government action, Friedrich underlines that the effectiveness of the restraints does not depend on the legal formality: “It should be evident that the existence of formally legal restraints is in no wise an indication of the existence of a constitutional order in the political sense.”¹⁵ Rather, “a restraint may be very effective and thoroughly regularized, without necessarily being embodied in positive law unless law is very broadly defined as including all custom.”¹⁶

Understood in that sense, constitutionalism must be distinguished from constitution, albeit the etymological genealogy. Craham Walker asserts: “Constitutionalism requires a certain kind of constitution: one that is self-limiting in character.”¹⁷ A “constitutionalist constitution” must be the one that comprises certain fundamental norms which not merely constitute but restrain governmental power. “Sham constitutions,” for example, which fail to constrain the power, are irrelevant to constitutionalism.¹⁸ Moreover, while a constitutional text may have multiple functions (restraining state power, organizing state, distributing...

Table of contents

• Cover Page
• Halftitle Page
• Series Page
• Title Page
• Copyright Page
• Table Of Contents
• Acknowledgments
• Introduction
• 1 Classical Confucian constitutionalism
• 2 Imperial Confucian constitutionalism
• 3 Modern Confucian constitutionalism
• 4 Toward an East Asian model of constitutionalism
• Index