CHINA NEEDS A CONSULTATIVE LEGAL SYSTEM

Introduction: Misunderstanding of China’s Problem
Part I: Rule of Law or Democracy: the Issue for China Today

Part II: “Good Laws” vs. “Bad Laws”

A legal code demanding that the government exercise power according to basic social ethics is a “good” code. A code vesting the government with unrestricted power is a “bad” one.

Basic Social Ethics – the Basic Law
Law has a dual purpose: order and justice. To be secure, the people allow the government to control all means of violence so as to stop the disorder characterized by the jungle law. Order is the basis of civilization and government is the hallmark of it. Once there is a government, people will find that those in power naturally tend to infinitely expand their power and act as they please. Power is a kind of enjoyment. Holding sway over others is one of the sources of joy. An official within the term of office may issue an order and change it instantly in the name of order and act as he pleases. He may possibly bully others by means of public power vested in him. If he is not restricted, this possibility may easily turn out to be a reality. Hence, a government, once established, may constitute the gravest threat to social justice. If the government exercises its power according to basic social ethics, the threat to the people may be alleviated. Only when it is so that the people can enjoy the proper order as a result of government administration. Only in this way can there be any just order. Order comes from governance. And a just order comes from governance according to social consensus on what is good and what is bad, which has been forged through the ages. Hence a code regulating governance according to basic social ethics must be a “good” code. A good code demands that the government should penalize the wicked and never punish the good. We refer to the basic social ethics as the basic law, which is defined as a “good” code. Of course, a good code may not necessarily lead to a good rule. Stipulating how an official should act is one thing, while how he will actually behave himself is quite another. A code does not mean the rule of law.

Originally, the basic law was the “code.” Therefore the code was bound to be “good.” Without a bad code in contrast, there should be no “good” code to speak of. From the Roman era to the end of the Middle Ages, the law was considered as embodiment of “justice”; hence the term “divine law” or “natural law.” In Latin, “law” and “justice” were one and the same word. “Justice” was the universal ethical norm at the time. In other words, “law” in the past was not only a matter of form, but also had definite contents, i.e., the standards for social “justice.” It was based on the Ten Commandments as articulated in the Bible. This was how the supremacy of law became a principle in Middle Ages Europe. Law was something readily established and existed as a matter of course. It survived in the form of continuation of traditions. Therefore it was not necessary to make legislation, still less to follow any procedure of legislation. Laws were discovered or promulgated by law experts, but not “formulated.” The role of “legislatures” was mainly confined to compiling and annotating the unwritten conventions. Over a long period of time the British Parliament was a “law-finding body.”(6) In such an era a bad code was not acknowledged as “the law”. People revolted against a wicked “law” on the most justifiable ground that it “violates ‘the law’”.

“Bad Law” Came with “Legislation”
The concept of “bad law” came along with that of “legislation.” Social changes led to important changes in political ethics. For example, slavery in farming and social hierarchy had to be abolished. Hence, a social revolution broke out on the European continent. The French revolutionaries boasted of making a “thorough” break with the society and substituted the old concept of values with the new concept of “people’s sovereignty.” From then on, the elected Parliament members were vested with the “legislative power.” As a result, “laws” were no longer a “discovery” of the judges, or a product of rational inference. They were no longer connected with the contents. They developed into only a form. The rulers could “formulate” them at will. As the rule of law turned out to be PM rule, the three concepts of “law”, “legislation” and “rule” evolved into a synonym. Laws were “legislated” by the rulers, namely the “people’s deputies” who live with us day in and day out. Legislation meant rule and vice versa. If the “rule” was bad, the “law” enacted must have been bad. When the great French Revolution finally came full circle, facts proved that the rule of people’s deputies was almost as bad as the sovereign rule. The question of bad “legislation” began to bother us.

The Basic Law not Generated through Democracy
While the basic law was not democratically formulated, the basic social ethical norms took shape in the long practice of human society. Some countries, for example, Britain, have no written constitutions. The grounds of law there were the judgments passed previously. So the people there had nowhere to start off if they ever wanted to alter the judgments passed on previous cases, which embodied the spirit of the basic law. Inheriting the Anglo-Saxon traditions, the US Constitution could not be altered either. The only option left was to add amendments to it. The US Constitution is one of the most famous “good” laws in the world. In the United States, the Constitution is looked upon as the Holy Bible in the secular world. But just like the Holy Bible, it is hard to speak of the Constitution as a product of democracy. It was discussed and approved by 55 self-styled gentlemen in 1787, the 52nd year of Emperor Qianlong of the Qing Dynasty in China. Only 37 of them voted for it and most of them were owners of large manors using slaves to till their land. Later the parliament of the 13 states approved the Constitution, but no more than 2000 people took part in the deliberations and voting. And perhaps those people were the only ones who knew how they became the deputies. Although these two thousand deputies died long time ago and had nothing to do with the lives of the people today, yet in the past two centuries or more, no resolutions have ever been made by the people about the Constitution. Compared with the US Constitution, the Constitution of the People’s Republic of China was formulated in a much more democratic process. Even if we presume that the US Constitution was generated democratically, yet the world had undergone a tremendous change. How can a code supposedly produced “democratically” in the same era as China’s “Emperor Qianlong” be used to regulate people’s life today in the 21st century? And how can this be called “democratic”? Nevertheless, the US Constitution remains a “good law.” It is also common knowledge where the current German Basic Law and the current Japanese Constitution came from. It is also well known where the Hong Basic Law until 1997, i.e., the Royal Decree of the British Throne, had come from. If these basic laws were listed among the “good laws,” then it was clear that democracy was not the main means for generating them. The reasons why the US Constitution was considered as a good law were that it had the following special features: (a) those who enacted it were political philosophers with the greatest vision in the world. (b) It embraced all social basic ethical norms. (c) It was formulated according to “the law”, i.e., inheriting the main contents of Britain’s judgment cases. (d) Through a strict check and balance mechanism it restricted government power and actually rejected the power of PM to revise the basic law at their free will.

A code vesting the government with unrestricted power is a “bad” code. Like the rule of the sovereign, the rule of people’s deputies must also be restricted. They should be compelled to enact according to the basic law and to exercise their power of rule according to basic social ethical norms. Like the sovereign, people’s deputies are also human beings who may abuse power, become corrupt and bully weak groups and individuals. That is why a good code requires people’s deputies to obey the fundamental law and deny them absolute power.

One-Man-One-Vote Democracy is Not a Reality
Lee Kuang Yew once thought of giving somewhat greater weight to the adult votes than to the votes from the young. But the practice was considered as undemocratic. Democracy cannot possibly reject the one-man-one-vote principle. But the US Constitution stipulates the one-man-one-vote system shall not be practiced in the Senate elections. At present, one vote among the Alaskans and Wyoming residents is roughly equivalent to 48 and 68 votes among the Californians respectively. Nor is the one-man-one-vote system practiced in presidential elections. The president is indirectly elected with the state as a unit for vote counting. The number of votes in each state is the sum total of the Federal Senators and House Representatives. The winner gets the sum total and the loser will get zero votes, known as the zero-all system. So the presidential candidate who gets the majority vote may lose to the one who gets the minority vote. Such a constitutional stipulation is much more undemocratic than the idea of Lee Kuang Yew. It aims at nothing but to restrict the power of people’s deputies. The Chief Judge of the US Supreme Court is not elected. But the judges of the Supreme Court alone are vested with the power of interpreting the Constitution. And they are the only persons who are empowered to ascertain whether the laws that have been signed by the President to take effect after their adoption by the bicameral US Congress are unconstitutional or not, and thus to be abolished or not. The US President must pledge allegiance under the supervision of the Chief Judge of the Supreme Court before he can assume his office as president. Otherwise, it will be of no use, no matter how many voters voted for him. The system under the German “Basic Law” is even less democratic. The upper house of Germany not only participates in approving legislation, but also monopolizes the power to make legislation proposals. But the upper house is not democratically elected, but composed of the technocrats appointed by the various state governments.

“Legislation” by the Elected is the Source of Bad Laws
If all power were really to belong to the people, this would be tantamount to pursuing the jungle law in the whole society. The realistic “all power to the people” approach could only be “all power to the elected Parliament” and to delegate all the legislative, administrative and judicial power to the hundreds of people’s deputies. When the immediate interests of the deputies become the apparent basis for legislation, the basic social ethical norms established over centuries would no longer be anything important. Law is nothing but the pronoun for short-term group and individual interests. “All power to the Parliament” and “all power to the sovereign” are essentially the same. The demarcation line between majority and minority autocracies is very vague. It is a minority of career politicians that manipulate the majority. The majority rule, the minority rule or the one-man rule, is the rule of man all the same. The rule of man in different categories is easily mutable. It is a commonplace to cycle from democracy to autocracy. The French Revolution boiled down to another launch of such a cycle in modern history. The most thoroughgoing democracy is the starting point of autocracy. On the eve of the 80th anniversary of the founding of the Communist Party of China (CPC), there appeared in the press a very terse official interpretation of the Chinese system. I would like to quote it here to show how close the rule of people’s deputies is to the rule of a political party:

“The principle of separation of power is no democratic principle. It is rather the elite politics vs. popular politics. China does not practice the principle of power separation because the people’s democracy we practice is extensive and thoroughgoing. All power to the people and all state power must be exercised in a unified manner by the people’s congress as the people’s parliament, and must never be shared by any other organs. The people’s congress as the people’s parliament is the organ of state power. All other state organs, judicial organs and inspection organs are generated by the people’s congress and are responsible to it, placed under its supervision. There is division of work, but no separation of power among the various organs.” (7)

Lee Teng-hui made a speech in Cornell University entitled “The desire of the people is always cherished in my heart.” The speech was well received in Taiwan. On a second thought, “The desire of the people is always cherished in my heart” implies both democracy and autocracy. Unlike democracy, the rule of law demands checks and balance of power and places no trust in anybody’s “heart.” Hence, it is the deadly enemy of autocracy. Many fascists came to power through fair and democratic elections. The most important signal of their rise was to stop enforcing the constitution in the name of “people’s desire.”

“Legislation” is the source of bad laws. A code by which the rulers vest themselves with infinite power is a vicious code. In modern times, legislation, law and rule have come to be integrated as one. An appropriate legislation principle has become crucial to a “good rule.” Since then, the issue of government system and that of legislation principle have virtually become the same thing. 

Part III: Two kinds of Legislation Principle and Mixed System
Part IV: A Consultative Legal System for China
Conclusion (a summary for the whole series)

Note:
(6) Hayek: Principles of Free Order”, translated by Deng Zhenglai, Beijing Sanlian Bookstore, 1997 Volume 1 , p. 205
(7) Beijing Evening News, June 29, 2001, p. 3