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”

Part III: Two kinds of Legislation Principle and a Mixed System

While a good law is formed naturally, a bad law is “legislated.” When law is formulated by those around us, legislation, law and rule will become one. The issue of “a good law” is replaced by that of “a good rule”. A good rule, as bound up with an appropriate legislation principle, will be closely related with government structure. In other words, a good rule depends on a good government structure, or appropriate government system or institutions.

Two Kinds of Basic Legislation Principle
There are two kinds of basic legislation principle: one is to prevent government monopoly of power, stressing the rule of law with check and balance of power; the other is to represent the people’s wishes and interests through administration, stressing parliamentary democracy with power vested in people’s deputies. The check and balance of power through power separation guarantees that the rulers follow the basic social ethical norms while the parliamentary system guarantees the immediate interests of certain interest groups. A government structure to which both of these two principles are applied in a mixed manner is a mixed government structure or system.

Even under a mixed system the basic function of law is to stop the government officials from acting irresponsibly according to their own will. The basis of a good law is still the basic social ethical norms shaped over a long period of time. A system that tolerates the sovereign or people’s deputies to administer at will is a bad system. A system that can compel the government to obey the basic law is a good system.

As far as their core principle is concerned, basic social ethical norms are generally speaking everlasting. Therefore the check and balance of power is basic to a good system. It guarantees the enforcement of the basic law. But in the long course of historical development some ethical principles may change. That is to say, the ethical norms may vary with the change of place and time. The Ten Commandments in the Holy Bible were once the pillar of Western law and its authority. While the first four of the Ten Commandments were the means for ensuring the other six, the other six Commandments essentially constitutes the basic law. Three of the six make up the core, i.e., Thou shall not kill; Thou shall not steal and Thou shall not cheat. The remaining three were: (a) Thou shall support thy parents; (b) Thou shall not commit adultery; and (c) Thou shall not infringe on others’ property. In the developed countries of today, these three latter Commandments are much discounted. There have been even greater changes in some more specific ethical norms, such as people’s attitude towards social hierarchy and slavery. Had the black slavery system been abolished two centuries ago, there would not have been the United States altogether? The civil war triggered by the slavery abolition issue fifty years later brought the United States to the brink of “abolition.” It was after another one hundred years that the United States established social ethical norm on black-white equality through the large-scale civil rights movement. Giving consideration to the immediate interests of different groups through parliamentary democracy may embody the change of basic ethical norms resulting from social changes and embody the different understandings of the public about the basic law on different specific issues and in different periods of time. But the prerequisite was still not to tolerate the substitution of immediate group interests for universal social justice. Otherwise, power politics would result, pure and simple.

If the law is supposedly not readily established, then it has to be formulated. Regarding the law as related to justice, there has been a conflict between two concepts of legislation principles. Some people hold that there would not be bad laws if the majority of the people are to formulate laws because the people would not harm their own interests. This concept is in support of the principle of “people’s sovereignty.” It embodies radicalism and tends to be revolutionary. Some people, however, hold that the basic law originates in the basic ethical norms regarding human relations. Everybody’s interests would be served if specific laws are formulated according to the basic law instead of “people’s interests” as represented by competing interest groups. Such a concept is in support of the principle of “constitutional authority.” It embodies conservatism and tends to be counter-revolutionary.

“Constitutional Sovereignty”: Strengths and Weaknesses
The principle of legislation according to the “basic law” has obvious strengths and weaknesses. The “basic law” generally refers to the “constitution,” or the basic principles commonly followed in the constitutions of different countries. It may also refer to the basic ethical norms articulating man’s handling of his “social relations.” The principle of making legislation according to the basic law refers to the following: while the basic law comes from the basic ethical norms on social relations, the common laws come from and comply with the basic law. The government’s social administration cannot go against the social consensus reached through ages on what is good and what is bad. This is the core of “constitutionalism” or the idea of “constitutional sovereignty”. Due to the worship of God in the West, there had been a long development of the concept of a higher-grade “natural law” holding sway over the regular legislation. Theoretically speaking, the basic law is “universal” and “forever” impartial without depending on provisional group interests. If the basic law provides the socially needed supreme authority of rule, but abolishes those who own the sovereignty, then the social relations will have to obey the natural ethical norms instead of one single individual, or a few individuals or a majority of “persons.” In modern revolutions, “people’s sovereignty” has replaced the “sovereign’s sovereignty.” If we hope for an end to the “revolutionary period,” we may opt for the substitution of people’s sovereignty with constitutional sovereignty and the substitution of the rule of man with to the rule of law, no matter it was the rule of the minority or the rule of the majority.

But constitutional sovereignty has three obvious defects: (a) it may evolve into the “rule of judges,” or the “rule of law-enforcers.” (b) It may lead to a rigid and conservative society. (c) It may be difficult to set up the authority of the basic law in the absence of a divine authority.

“People’s Sovereignty”: Two Major Defects
What will “people’s sovereignty” be like then? Compared with the sovereign’s sovereignty before the social revolution era, the principle of the majority is obviously much better with its abolition of the arbitrariness of the autocrat. Along with the development of the commercial society, the philosopher-kings imagined by Plato and the sage kings pursued after in China’s pre-Qin dynasties have become ever rarer. Like the common people, officials would make it their priority to seek private ends. It turns out to be a matter of daily practice for government officials to squeeze benefits from the people by abusing their power. “People’s sovereignty” was once a sharp weapon in opposing autocratic tyranny and a worldwide banner in popular revolutions in modern times. But when sovereign’s sovereignty was abolished and the revolutionary era was about to come to an end, the people’s sovereignty appeared to be highly defective. We have no way to prove that “people’s power” is positively related to “people’s welfare.” Logically speaking, abiding by decisions made by the majority would mean the cancellation of a “responsible government.” The infinite expansion of people’s power would mean the non-existence of the government. The majority of the people decided to sentence Socrates to death in Athens. They decided to set up the gallows in France. They recommended Hitler to be their top leader. It would be senseless to accuse the people of committing these blunders because it is absurd to punish the majority of the people. Unlike direct democracy, the parliamentary system turns the majority rule of direct democracy into the minority rule, but the ruling power of the minority rulers have to obtain the endorsement of the majority voters regularly -- the so-called “government being held accountable.” General elections do not decide on laws. They decide only the legislators or the “rulers.” It is up to the people to punish the rulers for their errors through elections held once in a few years. The American people were not responsible for the Vietnam War. The US President and Congress were responsible for it. The “people’s sovereignty” through the parliamentary system has two major defects:

(1) It embodies an institutionalized “power politics.” The more influential a social group is, the more it can win the parliamentary political power, and the loser in the political power contest has to accept defeat “elegantly.” What is wrong with “power politics” then? In a society there must be some groups better organized than others; hence, they are stronger. The parliamentary system would give them greater representation in the government and vest in them greater representation power that is incompatible with their size, such as the American Jews in the US government. The parliamentary government is highly sensitive of “people’s demands.” But “people’s demands” is a concept even more vague and fragmental than the concept of “the people” itself. It is a target manipulated by the politicians. Under a parliamentary system, “people’s demands” are mostly the demands of strong interest groups. In other words, the majority may not necessarily be the genuine majority; they are merely the stronger ones. The minority may not necessarily be the genuine minority; they are merely the weaker ones. Under the “majority” principle, the “minority” in democratic politics, especially the genuine minority, is hopeless. They can only subject themselves to others’ domination unless they resort to an undemocratic solution or an undemocratic means of solution. The US black civil rights movement did not conform to democratic principles. It did not send any candidate to the Congress to change the law, but rather resorted to street violence to press for a change of law because it was impossible for them to get a majority in the parliament. Some smaller states by threatening to split up the United States opted for a federal arrangement of rejecting one-man-one vote. The conflict between the “majority” principle and the “minority” interests shows us that the legitimacy of a democratic form of government is merely a matter of “faith,” the faith in strong power. Why should the person who gets a certain proportion of votes (say 39%) on a certain day dominate us for a number of years? Why should we be made to believe that an elected ruler is always more just in his action than a non-elected ruler? The opportunities of reshuffling the ruler regularly is often the justification offered for the belief. But career administrators are more dependent on regular and independent appraisal for their promotion and demotion, punishment or award. They are reshuffled at a usually higher frequency rate that the elected officials. So the proponents of the parliamentary system said the parliamentary democracy might not be the best democracy, but there could be no better democracy in the world. Back and forth, the parliamentary system was the “best,” with no alternative whatsoever.

There are alternatives in the world for sure. Under the concrete social conditions in many countries, the contemporary parliamentary democracy is helpless in settling corruption and social disorder problems. Autocracy is the direct, realistic and universal alternative. The rule of law is also a realistic alternative, such as the systems in Japan, Hong Kong and Singapore. The judges were not elected. But Western countries vested in them the tremendous power to make independent judicial decisions without challenging their “legitimacy.” They could even overturn the laws formulated by the parliament. The President and the Parliament Members must all pledge allegiance to the Constitution under the supervision of the Chief Judge before assuming offices. Otherwise they would be illegitimate, whatever majority they might have got in their elections. The existing system in the Western countries is nothing but an alternative to the “democratic system”. It is a form of government with a mixture of elected and non-elected officials. It is by no means a “legal” form of government led by the elected officials only. The US policies are most tinged with group interests, but the United States is not just dominated by interest groups alone. Just look at the esteem and awe the president and Congressmen hold for the Constitution and the judicial branch, and you will realize everything. Westerners have faith in democracy because they have faith in power politics. Political power to be vested in the stronger social groups is a “matter of course.” If you grumble about that, just go ahead and organize a powerful civil society of your own. Failing that, you have to admit defeat, and “elegantly” at that.

What to do if the society has no faith in power politics, and is not clearly divided into strong interest groups? What is to be done for example in China, where the demarcation line is vague even between the government and the society at large? (8) Under such circumstances, the democratic scramble for political power is a scramble of “all vs. all,” in which no influential group could ever take shape and nobody would ever admit defeat, still less “elegantly.” The purpose of the “Cultural Revolution” was obviously to prevent capitalist restoration. But it could not find the “class” which it was supposed to fight against; hence it was an all-vs.-all tangled warfare. Attackers of today were liable to become the attacked the next day. China was no longer a class society. Launching a democratic struggle in China would make no difference from the “Cultural Revolution.” The inevitable result would be politicians not representing any “class” but fishing in troubled water in the scramble. The Chinese civilization, which was born out of a classless society, did not believe in power politics either. Even we were in an absolutely minority of 1%, why should we be left to the discretion of the majority? Why should the Albanians bully the Serbians in Kosovo ? A majority may not always be correct. The “majority” principle is no “universal value”. There is no such a principle in the Chinese civilization, which now covers one fourth of the world’s population. Human education and S&T circles do not believe in such a “majority” principle either. How comes it is“universal” all of a sudden? We obey “justice.” We obey science. Occasionally we obey a “man.” But why should we obey the other party simply because they are in the majority?

(2) An open and regular contest for government power would cause politicization of social issues, leaving much chance for politicians to provoke and agitate social contradictions. Western countries feature stabilized class interests and clear-cut group interest boundaries. They feature the balance of strength among all large interest groups. They feature a general consensus of power politics. They feature a strong “middle class” consensus on the routine administrative issues. They also feature a profound tradition of respecting law and order with awe.

On the other hand, many non-Western countries lack European feudal traditions. A stabilized social hierarchy of classes simply did not exist. Interest groups are small in size and they are not stabilized either, with their interests widely divided. It would cost them too much to unite for the political power scramble. The government can easily induce them to betray and break up. So, the “correct” political consciousness of defending these interests through political power scrambles has not been popular. Proponents of such an ideology are mostly pedant scholars who are just dogmatically indulged in empty talks about Western politics.

Western scholars emphasize “civil society” as the basis for a democratic society. It seems that “civil society” should mean “civilized society” as it refers to an “association” or “group” organized spontaneously and voluntarily by the people to defend their group interests and to bargain with the government. If the association or group are not organized voluntarily and spontaneously, but organized under the inducement or coercion by the government or by social hooligans, or based on ethnicity, then the association and society could not possibly be “civil.” The democracy built on such a basis could never be “civilized.”

In an ethnic Chinese community, the “class struggle” waged to compete for majority votes often evolved into politician politics, vote-buying politics, or even Mafia politics. This would be the inevitable consequence from the social structure. More peculiar social structures would turn democratic politics into violence politics. When politicians failed to locate specific interest groups as their sources for votes, they would opt to make use of the most sensitive and explosive social issues to win votes, such as issues involving religious, racial, national and historical grievances. True, the civil wars in Russia, Indonesia, Yugoslavia and Rwanda did have historical roots, but the question is not how long the conflicts had originated. The issues were at least not so explosive before the process of democratization and never so sanguinary as today. Some people hold that a democratic system would play down these sensitive topics because politicians would tend to be neutral out of the wish to win the overwhelming majority. The crucial point of such an allegation is that they presume the majority vote would support the neutral stance and that the minority would certainly obey the majority. Should this have been true, there would not have been the civil war in Yugoslavia, not even the Civil War in the United States. If all politicians tend to be neutral, there would not have been any party- and faction-based democratic politics. The pursuit for social stability by a “strong middle class” is indeed a solid basis for the middle stance. But it may still fail to beat the politicians’ instigation on sensitive issues. The middle class in Singapore is strong enough; few developing countries have such a strong middle class. But the society there is composed of ethnic Chinese, which account for 70 % of the population, and other ethnic groups accounting for the remaining 30%. Can the parliament politics be relied on for maintaining harmony? It is the law that keeps the social harmony in Singapore. The law prohibits Parliament Members from instigating national conflicts. In developing countries like Yugoslavia, the middle class could well be considered strong enough, but it was still unable to resist the ethnic antagonisms instigated by the politicians. “A strong middle class” is pivotal if it can sustain a kind of consensus. In most developing countries, there was neither such a class nor such a consensus. Parliamentary politics would create neither a factual middle class nor a middle class consensus. Politicians would stop at nothing to locate all latent social antagonisms to grab more votes. Hence, in the newly emerging democratic countries, the free contest for government power led to the politicization of social issues, leaving much chance for politicians to instigate and aggravate social contradictions. Democracy unrestrained by the rule of law is the most important cause for social disorder.

A Mixed System
As both of the two theories about legislation principle are seriously defective so far as the prospect of avoiding a bad law is concerned, the realistic world tends to adopt the mixed system with people’s sovereignty and constitutional sovereignty combined.

Like all Western democracies, US democracy is based on the rule of law. It is conditional on the time-honored legalistic tradition in the West, known as the “free and democratic system.” The rule of law is already there, democracy can smoothly settle the balance of interests among large interest groups in the United States. As the rule of law is already there, democracy can smoothly settle the balance of the class interests in Western Europe. Democracy unrestrained by the rule of law is non-free democracy, and pure democracy, i.e., power politics simple and pure. Under the free and democratic system, the rule of law and freedom is a set of cause-effect relationship. “Freedom” means that the government is under legal regulation. No matter what the majority of voters support, no matter what bias the high officials have, nobody can deprive the individuals of any personal rights bestowed on them by the basic law. Therefore freedom and democracy is also known as “constitutional democracy”

The difference between different mixed systems lies in the different proportions in the mixture. A system extremely tending towards people’s sovereignty is said to be “purely democratic.” A system extremely tending towards constitutional sovereignty is said to be “stagnant.” This author is in favor of a “consultative rule of law” that leans towards the constitutional sovereignty while giving due consideration to people’s sovereignty. (9)

The Proper Proportions of Mixture for China
Different social structures and different basic contradictions require different proportions of system mixture. The main problem in China is a lack of basic system to compel the government to be law-abiding. “Just make a reshuffle and see what will happen” won’t solve the practical problem in China. Under China’s social structure, establishing a parliamentary system without the rule of law would lead to the rampage of shameless politicians and social disturbances. At the fall of the Qing Dynasty, assembly and association developed like mad and political parties grew in great profusion. The consequence was the 20 years of turmoil, a tangled warfare among warlords, the overall Japanese invasion, as well as the bloody civil wars between millions of soldiers, ending up in the “people’s democratic dictatorship.” Today’s Russia, which resulted from the disintegration of the former Soviet Union, experienced first the era of Yeltsin characterized by people’s suffering and then the Putin era characterized by all power concentrated on the “elected king.” Their experience of the cycle between aspiration for democracy and that for autocracy has made us Chinese somewhat cleverer and somewhat more practical. (For details see Part IV.)

Part IV: A Consultative Legal System for China

Conclusion (a summary for the whole series)

From Eastern Europe to Latin America, from Africa to Asia, the democratic system in most of the Third World countries has been mired in crisis. The ever-worsening corruption, social split and economic failure are seriously undermining people’s faith in the government. East Asia is no exception. In Mongolia, Japan, South Korea, Taiwan, Malaysia, Thailand, Philippines, and Indonesia, there are obvious signs of crises brought about by democracy.

The rule of law is a system which enables the authority of law to remain above the authority of government leaders and forces government officials to be law-abiding. The authority of law can be established only on the basis of the separation of powers and on the system of checks and balances. If institutionally one government power is used to check another government power, then the authority of law will remain above government officials.

The key to the separation of powers is the autonomy of the judicial departments and the independence of the law-enforcing system of the civil servants. Members of the ruling class will have to act according to law because all disputes will be referred to the arbitration of the neutral judicial departments and any violation of law will be severely penalized.

If law is arbitrarily changed according to the will of those in power, the independence of the judicial and law-enforcing departments will be totally meaningless. Therefore, the rule of law also means the absolute respect for the basic law. Legislation must be undertaken according to the Constitution and all the administrative activities carried out in strict accordance with the law.

It is necessary to introduce changes into the current political system because the rule of law would be absolutely impossible without the separation between the party and the administration and the independence of the judicial system. Some people might ask: without democratization, how can the party and the administration be separated and how can the judicial system become independent? We should realize that, even when there is democratization, the separation between the party and the administration and the independence of the judicial system are still impossible. At best, the ruling party is replaced by another ruling party, together with the change of the head of the government. The practice of “the newly-emerged democratic countries” in China’s neighboring areas has fully testified to this general tendency. Before the advent of democratization, there had already existed the legalist tradition on the European continent for over two thousand years, the judicial independence in England, and the system of judicial examination of the United States Supreme Court. The creation of a new system is a heroic deed and the reason why a person can become a hero is his ability to create a new system, making the impossible into a reality. The rule by people, the rule of law, and even the rule by the Communist Party, each of these are the creation of the people under the leadership of heroes.

Democracy is neither mysterious nor omnipotent. Democracy itself does not lead to the rule of law and the rule of law does not lead to democracy. They are different and even contradictory. The fact that they are contradictory makes it possible for them to neutralize their inherent deficiencies. The “system of free democracy” is not a pure democratic system but a combined system. Of course, democracy is easy; it can be carried out even in the most backward countries in the world whether they are big or small. It is not difficult to distribute polling boxes or to supervise the casting of votes. The rule of law is difficult. Except for the two small Chinese communities, the rule of law has not been successfully implemented in any developing countries because the establishment of autonomous courts and an autonomous system of civil servants is extremely difficult. It is not simply a matter of distributing some polling boxes.

Democracy is attractive because all the words related to democracy are full of charm and democracy has become a “universal value” like the painted dragon carved on the house of Master Ye (a classical Chinese allusion -- Editor). I once had the pleasure of reading an essay published in Hong Kong by one of China’s senior advocates of democracy which condemns Mao Tse-dong as a peasant who is inherently disposed toward autocracy because of his peasant ideas and character. However, it must be realized that true democracy in China naturally means rule by peasants, by the leader of the peasants who can manipulate the peasants. Why won’t the peasants welcome a leader who can enable them “to step onto and roll on the beds of the young ladies and mistresses of the local tyrants and evil gentry. Master Ye explains his fear of “the arrival of dragon” in this way: “Only the dragon painted on the roof beams is the true dragon and any dragon coming into my house must be a fake.”(10)

The pursuit of freedom by the democrats is praiseworthy but the democratic principle does not supply democracy. The liberties contained in the system of “free democracy” are the outcome of the restraint imposed on the democratic principle by the rule of law. The lack of this restraint will cause democracy to deteriorate into autocracy. The enemy of autocracy is not democracy, but the rule of law.
__________
Note:
(10) Mao Tsedong: Inspection Report of the Peasants Movement in Hunan Province, Selected Works of Mao Tsedong , Vol. I