Leiden Law Blog

Where West Meets East: On Monistic Conceptions of Political Legitimacy

Posted on by Hans-Martien ten Napel in Public Law , 1
Where West Meets East: On Monistic Conceptions of Political Legitimacy

One of the underlying ideas of the current Chinese constitutional system is the concept of monism. This concept means that, as Rogier Creemers recently put it in a blogpost, ‘there is only one correct way to understand and evaluate systems in an epistemological and moral sense’.  In the case of China this evaluation takes place against the backdrop of notions such as Communism or, more recently, the Chinese Dream. As a result, government measures and rules are considered to be legitimate to the extent that they contribute to these general goals. The very idea that a conflict of different, equally legitimate interests could occur in society, to be solved for example by a delicate judicial balancing act is not easily compatible with the Chinese monist legal-political order.

At first sight, the contrast with contemporary Western constitutionalism could not be clearer. Yet, as Jiang Qing points out in his recent book A Confucian Constitutional Order. How China’s Ancient Past Can Shape Its Political Future (2013), the West paradoxically adheres to an at least equally monistic conception of political legitimacy. In liberal democracies, political legitimacy is ultimately based on the notion of the sovereignty of the people, which is widely considered to be ‘unique, supreme, absolute, exclusive, and inalienable. From a political point of view there is nothing that can keep it in check.’  According to Jiang, this results in ‘extreme secularization, contractualism, utilitarianism, selfishness, commercialism, capitalization, vulgarization, hedonism, mediocritization, this-worldliness, lack of ecology, lack of history, and lack of morality’.

Going through this list, many in the West will no doubt be inclined to point to the central role that fundamental rights play, in particular since World War II. Jiang admits that rights have indeed become ‘the transcendent moral foundations of Western constitutionalism’. Yet, for him, rights and morality are of a very different order. While morality is about one’s responsibility towards others, rights concern duties that others have towards oneself. Compared to morality, rights are therefore ‘very selfish and very low-down’.

In the book, Jiang calls the legitimacy of the constitutional order ‘the biggest and most urgent question’ that Chinese politics faces today. His alternative of Confucian constitutionalism holds that political legitimacy has to be balanced, and that the different sources of political legitimacy work together in a harmonious manner. More specifically, in order to be legal and justified, political power needs the legitimacy of heaven, earth and the human. As Jiang explains, ‘[t]he legitimacy of “heaven” refers to transcendent, sacred legitimacy. (…) The legitimacy of “earth” refers to the legitimacy that comes from history and culture because cultures are formed through history in particular places. The legitimacy of the “human” refers to the legitimacy of the will of the people because conformity to the will of the people directly determines whether or not people will obey political authorities.’

In so far as the legitimacy of the constitutional order is also a big and urgent question in the West today, the intriguing question is whether this distinctive Confucian notion of equilibrium, not just in the sense of the existence of a separation of powers but also with respect to the ultimate sources of legitimacy, perhaps holds a message for liberal democracies as well. 

1 Comment

Rogier Creemers
Posted by Rogier Creemers on June 29, 2013 at 13:17

Interesting analysis. Perhaps we need to recognise from the start that in the organisation of any polity or society, at some point, a certain degree of monism is inevitable. In the end, law and politics reflect the essential human condition that we all cohabit in the same space, and some rules of the road to which everyone subscribes, are necessary. A way out could be to look at different levels of law or policy, or the relationship between political necessity and normative desirability. Let’s take traffic as a starting point: we all agree that, in order for everyone to be able to drive safely, we must subject ourselves to minimum standards about traffic behaviour that are binding upon all. Most of us also agree that there is such a thing as good driving or considerate driving, but that it is very hard to force individuals in that direction, even with the use of law. However, these rules may tell us how to drive, but not where to drive, which still remains within the domain of our own individual autonomy.

I think this is the central weakness of Jiang Qing’s argument in that sense. He conceives of popular sovereignty as one indivisible whole, with “nothing to keep it in check”. This ignores one of the most central points of pluralist theory, that the population keeps itself in check. Of course, in practice, certain interests in our political systems have gained an inordinate amount of power, but the exact same problem occurs in Chinese society. Equally, many of the social problems to which Jiang refers, are very much lamented among Chinese commentators, even in a country that could neither be described as liberal or democratic.

In the end: Jiang suffers from the same problem that afflicts many human rights theorists, economists and social scientists: the idea that it is somehow possible to transform the human condition through the top-down application of theoretical knowledge, and therefore make social and political life more harmonious and less messy. The result, however, often is the depoliticisation of political debate, and the exclusion of legitimate concern, rather than its inclusion. It also leads to the creation of large ‘rational’ bureaucracies, with all the Weberian consequences that entails.

Jiang, in my view, is right when he argues that we need different kinds of thinking: historical, other-directed and self-directed, but he is wrong in his teleological assumption of harmony. Human societies are messy things. The only thing we may hope to achieve is a limitation of the impact of damage that is caused through such damage, not its elimination.

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