Yu Zhong: The Route of Reform Cannot Be Singular

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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)

喻中:改革的路径不可能是单一的
在关于政治体制改革的热议中,宪政再次成为焦点。“宪政梦”也成为当下网络热词。有一种观点认为,我们的目标是宪政社会主义。也有观点认为,儒家宪政更值得追求。还有一种观点认为,宪政民主是最高的国家利益。各类观点虽然不尽相同,但它们都有一个最大公约数,那就是对宪政的追求。

既然宪政是一个值得追求的政治目标,那么,宪政又是什么呢?一种代表性的回答是:宪政的核心内容就是自由、民主、人权。从一般意义上看,民主、人权、自由都是好东西。至于集合这三者的宪政,当然更是好东西。毋庸置疑我们不能拒绝。从实践的层面上看,从行为、过程来看,无论是自由、民主还是人权,特别是宪政,都是一个动态过程,都没有固定模式。这就是说,宪政的实践过程是多元性和多样化的。

早在20世纪初期,一代政治学名家萧公权先生的博士论文题为“政治多元论”。按照这样的逻辑,“宪政多元论”就是一个顺理成章的推论。其实,“宪政多元论”是对宪政实践生态的一种写实性描述。就世界范围来看,宪政的实践绝不可能是单一的。任何国家的宪政实践,都必须从本国的实际情况出发,根据特定语境下的具体情况做出相应的制度安排。它不可能像在白纸上画图那样简单、那样随心所欲、那样天马行空、那样无羁无绊。

宪政建设是对各类主体之间相互关系的一种优化和调整。一个国家宪政状况,是各种主体之间相互交往、相互作用甚至是相互博弈的产物,它受制于一个国家的历史传统、规模大小、人口多少、经济状况、信仰方式等诸多因素。因此,严格说来,一国宪政的具体样态只能在各种主体相互交往的过程中循序渐进地达致。在宪政建设问题上,试图东施效颦地模仿他国,很少有成功的;对中国这样大国来说,尤其如此。

在当前的舆论话语中,宪政民主表达了立言者对于理想政治的憧憬。这种憧憬的存在,有助于为政治文明的提升增添精神动力。但憧憬是一回事,实践过程是另一回事。在一些立言者的笔下,只要建立了美国式的司法审查制度,就可以实现权力制衡、消除权力腐败;只要建立了县长、省长以及国家元首的直选,就可以实现民主政治,等等。这种“只要如何,就能怎样”之论,是将一个复杂问题过于简单化的处理。试想,即使我们的宪法明文规定了违宪审查制度,那么,我们的法院、司法体制、政治结构、政治观念就能够支持法院对于人大立法的否决吗?说到底,政治体制的任何改革,都牵一发而动全身,需要仔细谋划,考虑方方面面的因素。那种一蹴而就、以憧憬代替行动的思维模式,虽然很明快,也很痛快,很可能是不得要领的。

在一个多元化的时代,应当看到宪政实践的多元化、多样化,应当看到民主、自由在不同语境下的不同含义。在民主的旗帜下,有代议民主,也有协商民主,有直接民主,也有间接民主,还有其他类型的民主;在自由的旗帜下,有积极自由,也有消极自由。对民主、自由的这些不同修饰,都可以提醒我们,要以差异、共存的思维看待我们的宪政建设,以及政治体制改革。在这个问题上,还是费孝通先生说得好:“各美其美,美人之美,美美与共,天下大同”。
(作者是首都经济贸易大学法学院院长、教授)

 

 

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