This op-ed by legal scholar Yu Zhong was published originally in the Global Times, on 7 January 2013.
During this heated debate on political structural reform, constitutionalism has again become a focus. The “dream of constitutionalism” has now also become a hot term online. There is one viewpoint that hols that our objective is constitutionalist Socialism. There is also a viewpoint that holds that Confucian constitutionalism merits to be pursued more. There is yet another viewpoint that holds that constitutionalist democracy is the highest national interest. Even though these various kinds of viewpoints are not quite similar, they have a largest common denominator, which is the pursuit of constitutionalism
Since constitutionalism is a political objective to be pursued, what is constitutionalism in fact? One sort of representative answer is: the core content of constitutionalism is freedom, democracy and human rights. In a general understanding, democracy, human rights and freedom are good things. Then the constitutionalism that contains these three naturally is an even better thing. There is no need to doubt that we cannot reject this. Looking from the level of practice, looking from actions and processes, either freedom, democracy or human rights, and especially constitutionalism, are dynamic processes, and there are no fixed models. This is to say, the practical processes of constitutionalism are pluralist and diverse.
As early as the beginning of the 20th Century, the doctoral thesis of the political scholar Mr Xiao Gongquan was entitled “a theory of political pluralism”. According to this logic, ” a theory of constitutionalist pluralism” is an inference that follows as a matter of course. Furthermore, “a theory of constitutionalist pluralism” is a realistic description of the practical ecology of constitutionalism. Looking at a global scope, the practice of constitutionalism can absolutely not be singular. Any country’s constitutionalist practice must start from that country’s real situation, and corresponding institutional arrangements are to be made according to concrete conditions in specific contexts. It cannot be as simple as drawing pictures on a white sheet of paper, it cannot be [simply] following one’s wishes, so unconstrained, or so smooth and unimpeded.
The building of constitutionalism is a sort of optimization and adjustment of the relationships between various kinds of subjects. The constitutionalist situation of a country is the outcome of the mutual association between, mutual effects of and even mutual games among all sorts of subjects, it is determined by a country’s historical traditions, its scale, the size of its population, its economic situation, beliefs and methods and many other such factors. Therefore, strictly speaking, the concrete mode of a country’s constitutionalism can only be expressed step by step in the processes of interaction between various kinds of subjects. On the question of building constitutionalism, trying ludicrous attempts to imitate and copy other countries is rarely successful; this is especially the case with regards to a large country such as China.
In the present public opinion discourse, constitutionalist democracy expressed writers’ yearnings for ideal politics. The existence of such yearnings is beneficial as a spiritual driver for upgrading and enhancing political civilization. But yearning is one thing, the process of realization is another thing. In the pens of some writers, as long as a U.S.-style judicial review system is established, checks and balances of power can be realized, and the corruption of power dispelled; as long as direct elections are established for county heads, province heads and the head of state, democratic politics can be realized, etc. This sort of “as long as this, we can do that” speak is an oversimplified way of dealing with a complex issue. Just think, even if our constitution clearly provides for a system of constitutional review, could our courts, judicial system, political structures and political concepts support the courts against overrule by People’s Congress legislation? In the end, in any reform of political structures, one slight move might affect the whole situation, careful planning is needed, so that factors in all areas are considered. That sort of thinking model of success at the first try, where yearnings substitute action, however bright and delightful it is, very possibly misses the main point.
In a pluralized time, we should consider the plurality and diversity of constitutionalist practice, and we should consider the different meanings of democracy and freedom in different contexts. Under the banner of democracy, there is representative democracy, but also consultative democracy, there is direct democracy, but also indirect democracy, and there are other kinds of democracy still; under the banner of freedom, there are positive freedoms, there are also negative freedoms. These different guises of democracy and freedom can remind us that we must deal with our building of constitutionalism, as well as political structural reform, with thoughts of differentiation and coexistence. On this issue, it is still Mr Fei Xiaotong who put it best: “If people appreciate their own beauty and that of others, and work together to create beauty in the world, the world will be a harmonious place”. (The author is the Dean and a Professor of the Capital University of Economics and Trade School of Law)