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.