THE CONSTITUTION OF CHINA

This book on Chinas constitution and its tradition of constitutionalism is one of the first in theEnglish language and as such provides a much needed overview of Chinas constitutional history andpresent arrangements. The nine chapters are divided into three parts. The first part (chapters one andtwo) deals with Chinas constitutional history, its indigenous and Confucian antecedents, as well asthe turbulent century that led up to the 1982 Constitution and the new order that this ushered in. Thesecond chapter deals with the distinctive features of its current constitution. The second part of thebook (chapters three through six) introduces the institutional structure defined in the currentconstitution the relationships between the Central government and the regions, the role of the Partyand the Peoples Congress, the meaning of the socialist rule of law, and the independence of thejudiciary. The third part of the book (chapters seven through nine) discusses the major developmentsin human rights and their deficiencies the protection offered to life, liberty, property and equalityand, at the same time, the currently dormant areas of political and religious freedom. The bookconcludes with a chapter looking forward to the future of the Peoples Congress and Chineseconstitutionalism. In sum, the book offers a readable account of the salient features of Chineseconstitutional developments in all major areas.

Constitutional Systems of the WorldGeneral Editors: Peter Leyland and

Andrew HardingAssociate Editors: Benjamin L Berger,

Gregoire WebberIn the era of globalisation, issues of constitutional law and good governance are being seenincreasingly as vital issues in all types of society. Since the end of the Cold War, there have beendramatic developments in democratic and legal reform, and post-conflict societies are also in thethroes of reconstructing their governance systems. Even societies already firmly based onconstitutional governance and the rule of law have undergone constitutional change andexperimentation with new forms of governance; and their constitutional systems are increasinglysubjected to comparative analysis and transplantation. Constitutional texts for practically everycountry in the world are now easily available on the Internet. However, texts which enable one tounderstand the true context, purposes, interpretation and incidents of a constitutional system are muchharder to locate, and are often extremely detailed and descriptive. This series seeks to providescholars and students with accessible introductions to the constitutional systems of the world,supplying both a road map for the novice and, at the same time, a deeper understanding of the keyhistorical, political and legal events that have shaped the constitutional landscape of each country.Each book in this series deals with a single country or a group of countries with a commonconstitutional history, and each author is an expert in their field.

Published volumesThe Constitution of the United Kingdom

The Constitution of the United StatesThe Constitution of Vietnam

The Constitution of South AfricaThe Constitution of Japan

The Constitution of GermanyThe Constitution of Finland

The Constitution of AustraliaThe Constitutional System of Thailand

The Constitution of the Russian FederationThe Constitution of the Republic of Austria

Link to series websitehttp://www.hartpub.co.uk/series/csw

The Constitution of ChinaA Contextual Analysis

Qianfan Zhang

OXFORD AND PORTLAND, OREGON 2012

Published in the United Kingdom by Hart Publishing Ltd16C Worcester Place, Oxford, OX1 2JW

Telephone: +44 (0)1865 517530Fax: +44 (0)1865 510710

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Qianfan Zhang 2012

Qianfan Zhang has asserted his right under the Copyright, Designs and Patents Act 1988 to be identified as the author of this work.

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by anymeans, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriatereprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart

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ISBN: 978-1-84113-740-7

Typeset by Hope Services Ltd, AbingdonPrinted and bound in Great Britain by

TJ International Ltd, Padstow, Cornwall

Preface

This book aims to produce a readable narrative and analysis of Chinese constitutional developmentsin all major areas. It contains nine chapters that can be roughly divided into three parts. The first part(chapters one and two) deals with Chinas constitutional history and the distinctive features of thecurrent constitution. The second part (chapters three through six) introduces the institutional structuredefined in the current constitution, and the third part (chapters seven through nine) discusses the majordevelopments in human rights and their deficiencies.

In the course of writing this book, I received much help and support for which I am grateful. I firstthank Professor Andrew Harding for inviting me to write the book and providing me with theopportunity to think through some of the Chinese constitutional problems in a different language. Ithank Andrew, Professor Benjamin Berger and the Hart editor Ms Lisa Gourd, for spending muchtime editing the manuscript and making it a better book, and Ms Putachad Leyland for her wonderfuldesign of the cover and the Hart Publishing team for their elegant and efficient handling of themanuscript. I thank Professor Jeremy Webber for graciously sponsoring my visit to the beautifulUniversity of Victoria between September 2009 and January 2011, during which the main body of thisbook was completed. I thank Dean Donna Greschner, Associate Deans Cheryl Crane, Heather Ravenand Elizabeth Adjin-Tettey, and former Dean Andrew Petter, who made my visit possible and myteaching experience at UVic Law Faculty both enjoyable and rewarding. Last but far from least, Ithank my wife, Maria Xiaoyang Wei, who shared much happy time with me during our Victoria visit.

This book is dedicated to my friend and colleague, Professor Cai Dingjian (19552010), whofought tirelessly for Chinas constitutionalism till the very end of his life.

Table of Contents

PrefaceGlossary of TermsTable of AcronymsTable of CasesTable of Legislation

1 A Century of Turmoil: An Overview of Chinas Constitutional Reform and RevolutionsI. Introduction: The Dawn of a Constitutional MomentII. Constitutional Elements in the Ancient Regime and Their LimitationsIII. The First Republic: The Nationalist Revolution of 1911IV. Why Revolutions Fail to Bring about Constitutionalism

Further Reading

2 The New Constitutional Order of the Peoples RepublicI. The Second Republic: The Communist Revolution of 1949II. The 1982 ConstitutionIII. Constitutional AmendmentsIV. Constitutional Transformations

Further Reading

3 Governing the Goliath: Chinas Central and Local RelationsI. Introduction: The Sun Zhigang TragedyII. The Constitutional LandscapeIII. Keeping Laws in OrderIV. Bottom-Up or Top-Down? Rule of the Party ReinforcedV. Pluralism within a Unitary System

Further Reading

4 Democracy with Chinese Characteristics? The Role of the Peoples CongressesI. Introduction: Supremacy by Rubber Stamp?II. The National Peoples Congress (NPC)III. The NPC Standing Committee (NPCSC)IV. Local Peoples Congresses (LPCs)V. How to Make Democracy Work

Further Reading

5 Administration of the State According to LawI. The Central GovernmentII. Local GovernmentIII. Toward Administrative Rule of Law?

Further Reading

6 De-politicising the JudiciaryI. Introduction: Establishing Judicial Review?II. Judicial Structure and FunctionsIII. Judicial Reform: Necessities, Possibilities, Limits

Further Reading

7 The Contemporary Rights Revolution: Life, Liberty, Property and EqualityI. Introduction: Back to the Sun Zhigang ModelII. EqualityIII LibertyIV. Property

Further Reading

8 Still Dormant: Political and Religious RightsI. Introduction: What the Sun Zhigang Model Cannot DoII. Freedom of SpeechIII. Freedom of ReligionIV The Right to Election

Further Reading

9 Conclusion: The Future of Chinas ConstitutionalismI. Back to 1911? The On-going Saga of Chinas Constitutional JourneyII. Toward the Third Republic? The Future of Chinas Constitutionalism

Further Reading

Index

Glossary of Terms

Pinyin OriginalChinese Translation

bairi weixin Hundred Days Reform

beifa Northern Expedition

bumen guizhang departmental rule

buwei ministries and commissions

chengshi fangwo Regulation on Management of

chaiqian guanli tiaoli Urban House Demolition

Chiang Ching-kuo

Chiang Kai-shek

zhanguo shidai Warring States Period

Cixi Empress Dowager

cunmin weiyuanhui villagers committees

dangzhang Charter of the Chinese Communist Party (CCP)

dangzhi rule of the party

dezhi rule of virtue

defang guizhang local rule

difangxing fagui local regulations

dijishi Prefecture-level cities

duli pinglun Independence Review

fa law

fagongwei Legal Affairs Commission (LAC)

fagui shencha beian shi Office for Regulatory Review and Records

fal laws

fal weiyuanhui Legislative Committee

fal yiju legal grounds

fazhi rule of law

gaige kaifang open-door reform

gonggong zhishi fenzi public intellectuals

gongqingtuan Communist Youth League

Guangxu Emperor Guangxu

guifanxing wenjian, normative documents with binding force

guojia zhuxi State President

guomindang Nationalist Party

guowuyuan State Council

guoying jingji state-operated economy

hanzu Han ethnicity

hongtou wenjian red tape

Hu Shih

Hu Yaobang

huanzheng yumin return political power to the people

jiandu supervision

jiaoda shi relatively large cities

jiating lianchan chengbaozerenzhi household responsibility system

jiceng qunzhong zizhizuzhi grassroots mass self-organisations

jigou jingjian institutional streamlining

jijian Discipline Inspection Commission

jingji tequ Special Economic Zone (SEZ)

jiti sanbu collective walk

jundui guojia hua nationalisation of the military

junzheng military politics

Kang Youwei

Liang Qichao

liangxing weixian benign violation

liansheng zizhi provincial autonomy

lifa yuan Legislative Council

lingdao lead; leader

liufa Six Basic Laws

liusi shijian Tiananmen Protests

luan shoufei unauthorised fees

mangliu blind migrations

manzu Manchu ethnicity

Mao Zedong

minzhu dangpai democratic parties

minzhu jizhong zhi democratic centralism

minzu quyu zizhi nationality regional autonomy

minzu Nation; race; the collective

nanfang dushi bao South Metropolitan Daily

nongmin gong peasant workers

qian guize latent rules

Qin Shihuang The First Emperor

qinding xianfa dagang Outline of Imperial Constitution

qu district

ren humanity

renmin people

renmin daibiao dahui Peoples Congress

renmin gongshe Peoples Commune

renmin minzhuzhuanzheng peoples democratic dictatorship

renmin tuanti Peoples organisation

rujia hua Confucianisation

sange daibiao the three represents

sangong xiaofei three public expenditures

sanmin zhuyi The Three Peoples Principles

sanse xianfa tricolour constitution

shangyou zhengce, For every national policy made

xiayou duice above, there are local countermeasures from below

shaoshu minzu zizhiqu ethnic autonomous region

shehui hexie social harmony

shehui zhuyi socialism

sheng province

sheng guan xian direct provincial control over counties

shi city

shijiu xintiao Doctrine of Nineteen Articles

shiyijie sanzhong quanhui Third Plenum of the 11th Congress

shourong qiansong Custody and Repatriation (CR)

Sirenbang Gang of Four

sixiang jiben yuanze Four Cardinal Principles

Sun Yat-sen

Sun Zhigang

tebie xingzheng qu Special Administrative Region (SAR)

tiandao Way of Heaven

tongyi zhanxian United Front

Wei Yuan

weiwen maintenance of stability

weiyuanzhang huiyi Session of Chairpersons (of the NPCSC)

Wen Jiabao

Wuchangqiyi WuchangUprising

wuquan xianfa five-power constitution

wuwu xiancao Draft Constitution of May Fifth

xian countyXian shibian Xian Incident

xianfa constitutional law

xianfa sifa hua constitutional judicialisation

xiangpi tuzhang rubber stamp

xiang township

xianzheng constitutional politics

Xiaogang cun Xiaogang Village

xingzheng administrative

xingzheng fagui administrative regulations

xingzheng fuyi administrative reconsideration

xingzheng susong administrative litigation

xinwenhua yundong New Culture Movement

xunzheng tutelage politics

yangwu yundong Westernisation Movement

yi, righteousness

yidao qie cutting uniformly with one knife

yide zhiguo governing the state with virtue

yifa zhiguo governing the state according to law

yifu liangyuan one government and two chambers

yiguo liangzhi onecountry, two systems

Yuan Shikai

zhen town

zhengzhi ju Politburo

zhengzhi xieshang huiyi Political Consultative Committee (PCC)

zhixiashi municipality

zhonggong zhongyang Central Committee of the CCP

zhongguo tese Chinese characteristics

zhonghua minguo Republic of China (ROC)zhongti xiyong Chinese scholarship as the foundation, Westernscholarship for application

zhongyang junwen Central Military Commission (CMC)

zhongyang renmin zhengfu Central Peoples Government

zhuxi tuan Presidium

zizhengyuan Consultative Council

zonggang General Principles

zuigao renmin fayuan Supreme Peoples Court (SPC)

zuigao renminjianchayuan Supreme Peoples Procuratorate (SPP)

zuqun ethnic group

zuzhi bu Organisation Department

Table of Acronyms

ALL Administrative Litigation LawAPL Administrative Penalty LawARL Administrative Reconsideration LawCCP Chinese Communist PartyCMC Central Military CommissionDPP Democratic Progressive Party (of Taiwan)HKBL Hong Kong Basic LawLAC Legislative Affairs CommitteeLAO Legislative Affairs OfficeLL Law on LegislationLPC Local Peoples CongressLPCSC Local Peoples Congress Standing CommitteeLPG Local Peoples GovernmentNAR nationality autonomous regionNPC National Peoples CongressNPCC National Political Consultative CommitteeOLVC Organic Law on the Villagers CommitteesPLA Peoples Liberation ArmyPRC Peoples Republic of ChinaPSB public security bureauPSC Politburo Standing CommitteeROC Republic of ChinaSAPP State Administration of Press and PublicationsSAR Special Administrative RegionSEZ Special Economic ZoneSPC Supreme Peoples CourtSPP Supreme Peoples Procuratorate

Table of Cases

China

Bank Employment Advertisement Case see Jiang Taov Peoples Bank of China, Chengdu Branch

Deng Yujiao Case (2009) 193Hepatitis-B Virus Case (2004) 206Jiang Tao v Peoples Bank of China, Chengdu

Branch (2002)205

Luoyang Seed Case (2003) 96, 180Pengshui Poem Case (2006) 227Qi Yuling v Chen Xiaoqi et al (2001) 66, 106, 17376, 191She Xianglin Case (1994) 208, 210, 221

Sun Zhigang Case (2003) 57, 70, 72, 7582, 88, 91, 93, 97, 105, 107,11718, 123, 135, 147, 161, 192, 195,197200, 2078, 21316, 219, 221, 22325, 23334, 236, 250, 262, 264Tang Fuzhen Incident (2009) 91, 21521, 225, 256, 264Xu Ting Case (2008) 192

Hong Kong

Ng Ka Ling v Director of Immigration (1999) 1 HKC291

115

United States

Brown v Board of Education of Topeka 347 US 483(1954)

60, 110

Marbury v Madison 5 US 137 (1803) 20, 9596, 174Martin v Hunters Lessee 14 US 304 (1816) 104Morrison v Olson 487 US 654 (1988) 184Reynolds v Sims 377 US 533 (1964) 114Roe v Wade 410 US 113 (1973) 60United States v Carolene Products Co 304 US 144

(1938)89

Table of Legislation

Constitutions of China

Constitution 1923 2425, 33Chap V 24Chap XII 25Art 1 24Art 23 24Art 24 25Art 25 25Art 128 25

Constitution 1946 116Constitution 1954 4445, 50, 54, 55, 65, 151

Ch II 44Ch III 45, 197Art 2 44Art 6 44Arts 4043 45

Constitution 1975 46, 47, 239Art 13 46Art 15 46Art 22 46Art 23 46Art 28 46

Constitution 1978 47, 60, 239Art 7 47, 60Art 34 47

Constitution 1982 1264Preamble 50, 55, 56, 57, 110, 122, 164Chap II 197Chap III 51, 111s 7 184Art 1 50, 65Art 2 50, 66, 74, 12122, 264Art 3 51, 65, 91, 122Art 4 11011, 198Art 5 50, 56, 85, 149, 198Art 6 56Art 9 86Art 10 216, 220Art 10.4 55Art 11 55, 56Art 12 57, 65, 217Art 12.2 57Art 13 57, 58, 72, 217

Arts 1821 126Art 25 125Art 28 56Art 33 51, 57, 198, 199, 205, 206, 246, 254Art 34 51, 128, 198, 251, 255Art 35 51, 64, 225, 230, 242, 251, 258Art 36 51, 24243, 245, 247Art 36.3 52Art 37 51, 72Art 38 51Art 39 51Art 40 51, 208Art 41 131Art 41.1 52Art 46 107, 173, 202Art 48 198Art 57 124Art 58 131Art 59 124, 126, 134Art 60 124, 134Art 61 125, 128, 13435Art 62 53, 127, 129Art 62.1 127Art 62.2 127Art 62.3 127, 132Art 62.4 127Art 62.5 127Art 62.6 127Art 62.7 127Art 62.8 127Art 62.962.14 128Art 62.11 132Art 62.15 129Art 63 12728Art 65 132Art 67 136Art 67.1 52, 85, 135Art 67.2 132Art 67.3 132Art 67.4 135Art 67.5 136Art 67.6 136Art 67.767.8 136Art 67.967.12 136Art 67.14 136Art 67.18 136Art 67.19 136

Art 67.20 58, 136Art 67.21 137Art 69 132Art 70 126Art 73 87Art 74 143Art 75 143Art 79 151Art 80 151Art 81 58, 151Art 85 153Art 89 155Art 89.1 155Art 89.2 155Art 89.3 155Art 89.4 155Art 89.5 156Art 89.689.8 156Art 89.9 156Art 89.1089.11 156Art 89.13 155Art 89.14 155Art 89.15 155Art 89.17 155, 156Art 89.18 156Art 90 156Art 91 154Art 93 152Art 94 152Art 95 82Art 96 138Art 97 102, 138Art 98 56, 139Art 99 103, 138, 140Art 101 63, 104, 113, 139Art 102 139Art 103 141Art 104 103Art 105 156Art 107 157Art 108 103Art 110 103, 15657Art 111 158Art 112 111Art 113 111Art 114 111Art 116 112Art 117 111

Art 123 178

Art 126 17879Art 127 104, 181Art 128 178Art 129 54, 184Art 131 184Art 132 104Art 135 185

Doctrine of Nineteen Articles 1911 1314Art 1 13Art 2 13Art 3 13Art 5 14Art 8 14Art 10 14Art 14 14Art 15 14Art 16 14

Outline of Imperial Constitution 1908 4Provisional Constitution of the Republic of China 1912 2021, 23

Art 2 20Art 4 20Art 11 20Art 31 20Art 34 20Art 45 21Art 51 20

National Law of China

Administrative License Law 2004 167Art 12 167Art 13 167

Administrative Litigation Law 1990 65, 95, 16268Chap 1 162Art 1 162Art 2 162, 163, 244Art 5 164Art 7 163Art 11 163, 164, 244Art 12 163, 164, 183Art 12.2 183Art 14 182Arts 1416 182Art 16 182Art 25 183Art 32 163

Art 33 163Art 37 244Art 50 168Art 51 95Art 52 164Art 53 164Art 54 164

Administrative Penalty Law 166Art 9 166Art 31 166Art 42 166

Administrative Reconsideration Law 1999 163, 165Assemblies, Processions and Demonstrations Law 1989 23334

Art 7 233Art 9 23334Art 12 234Art 12.4 234Art 13 234

Criminal Law 133, 192Art 3 133Art 48 211Art 54 251Art 55 251Art 121 133Art 291 133Art 294 135Art 296 233Art 300 246Art 300.1 246

Criminal Procedure Law 208, 209Art 69 209Art 124 209Art 126 209Art 127 209Art 144 211

Deputies to the National Peoples Congress Law 133Education Law 107Election Law 12527

Art 6 126Art 14 250Art 16 125, 250Art 29 251Art 31 251Art 44 253Art 45 253

Judges Law 17980Art 8 179

Art 8.2 180Art 19 180

Art 48 180Art 49 180

Labour Law 206Labour Contract Law 108Land Administration Law 221Legislation Law 2000 7778, 8589, 9197, 137, 166

Chap 2 129Art 8 72, 80, 86, 89, 213Art 8.5 77, 89Art 9 77Art 12 129Art 13 130Art 15 130Art 18 130Art 19 130Art 22 130Art 23 130Art 25 137Art 27 137Art 28 137Art 31 137Art 40 137Art 42 183Art 44 103Art 59 103Art 63 87, 88Art 64.1 88Art 64.2 88Art 64.3 88Art 66.2 112Art 73 88Art 82 87Art 86.2 92Art 86.3 92Art 88 92Art 88.1 92Art 88.2 92Art 88.3 92Art 88.6 92Art 88.7 92Art 89 92Art 90 78, 93, 95Art 90.2 93

Local Organic Law 1023Art 8 139

Art 8.88.9 140Art 8.10 140Art 9 139Art 11 139Art 18 140Art 26 140Art 28 140Art 30 139Art 36 146Art 41 141Art 44 142Art 44.2 141Art 44.3 141Art 45 142Art 46 142Art 52 142Art 59 103Art 68 157

National Peoples Congress Rules of Procedure Art 2 125Art 8 126

National Flag Law 113Nationality Regional Autonomy Law 1984 110, 113, 127Organic Law of the National Peoples Congress

Art 16 128Art 19 143Art 21 144Art 29 143Art 30 143Art 31 145Art 32 145Art 33 136, 145

Organic Law of the Peoples Courts 179, 182Art 13 211Art 11 179Art 13 211Art 14 179Art 18 182Art 21 182Art 23 182Art 25 182Art 26 182

Organic Law of the Peoples Procuratorates 18485Art 5 184Art 5.2 184Art 5.3 184Art 5.4 185

185

Art 17Organic Law of the State Council Art 4 153Art 6 153

Organic Law of the Urban Residents Committee 202Organic Law of the Villagers Committee 1998 15960

Art 2 159Art 4 104, 160Art 5 160, 255Art 13 255Art 15 255Art 16 255Art 17 255Art 21 159Art 22 159Art 23 159Art 24 159Art 25 159

Presidential Election Law 1913 22Property Law 72, 217, 219

Art 42 217Art 66 72

Registration and Administration of Social Organisations Regulation 1998 23739, 243Art 3 238Art 4 238Art 6 238Art 10 238Art 13 238Art 14 238Art 27 238Art 33 238Art 34 238

Seed Law 96State Compensation Law 1994 16667

Art 2 166Art 3 166Art 4 166

State Secrets Law 1988 231Art 9 231Art 9.1 231Art 9.4 231Art 11 231Art 12 231Art 13 231

State Security Law 23031Art 8 231

Administrative Legislation of China

Administration of Publications Regulation 2001 230Art 5 230Art 11 230Art 19 230Art 25 230

Administrative Penalties for Public Security Regulation 213

Custody and Repatriation Measures 1982 7780, 95, 106, 118, 195, 199, 200, 213,219, 224Art 37 77

Detention Centre Regulation 1990 20910Art 3 210Art 33 210Art 34 210

Disclosure of Government Information Regulation 2007 87, 167, 231Art 1 231Art 5 167Art 6 167Art 6 87

Household Residence Registration Regulation 1958 200Religious Affairs Regulation 2005 24344

Art 6 243Art 40 244Art 45 244Art 46 244

Urban Demolition Regulation 1056, 215, 219Working Regulation on Selections and Appointments of the Party and Government Leading

Cadres 20021002

Chap 3 101Chaps 47 101Art 6 101Art 7 101Art 17 102Art 45 102Art 48 102

Local Legislation of China

Henan Provincial Regulation on Crop Seeds Art 36 96

Hunan Constitution 1922 2324

Organic Law of the Nationalist Government 1925 Art 1 26

Special Administrative Regions Legislation

Hong Kong Basic Law (Special Administrative Region) 84, 11215, 127

Art 2 112

Art 11 112Art 12 113

Art 15 113Art 17 113, 115Art 31 109Art 47.5 113Arts 8893 115Art 158 115Art 159 11415Annex I 113Annex II 113Annex III 113

Macao Basic Law (Special Administrative Region) 84, 11215, 127

Art 2 112Art 12 113Annex III 113

Foreign Legislation

Japan Meiji Constitution 1889 2

Mexico Federal Constitution 100

United States Constitution 60, 91, 98, 100, 150, 207

Art 6 94, 113

Vietnam Constitution

Art 91.4 131

International Legislation

International Covenant for Economic, Social and Cultural Rights 1966Art 8 239

Treaty of Shimonoseki with Japan 1895 1, 41, 116Treaty of Versailles 1919 41

1A Century of Turmoil: An Overview of Chinas Constitutional Reform and

Revolutions

INTRODUCTION: THE DAWN OF A CONSTITUTIONAL MOMENT CONSTITUTIONAL ELEMENTS IN THE ANCIENT REGIME AND THEIR LIMITATIONS Confucian Li as a Social Constitution? Imperial Constitutional Reforms under WesternInfluence Lessons to be Learned: The Dilemma of Constitutional Reform in an AuthoritarianState THE FIRST REPUBLIC: THE NATIONALIST REVOLUTION OF 1911 The Clashof Regimes within the First Republic An Interlude for Warlords: The Provincial AutonomyMovement and the Experiment with Federalism The Northern Expedition, Reunification andthe Ascendance of Party Rule Limitations in the Nationalist One-Party Monopoly WHYREVOLUTIONS FAIL TO BRING ABOUT CONSTITUTIONALISM

I. INTRODUCTION: THE DAWN OF A CONSTITUTIONAL MOMENT

IT WAS THE last day of April 1895. In a mansion outside the inner Capital city, Kang Youwei (), who shortly became Chinas most influential constitutional entrepreneur, gathered more than a

thousand Confucian scholars ( , juren) participating in the annual imperial examination andprepared to petition the Emperor against signing the Treaty of Shimonoseki with Japan. In mostChinese minds, Japan was but a tiny, peripheral, barbarian island ( , zuierdao); but to theirsurprise and humiliation, this barbarian island had eliminated Chinas entire fleet in a decisivebattle on a single day in 1894 and forced its giant neighbour to relinquish sovereignty over Taiwanand the Liaodong peninsula. To be sure, the Sino-Japanese War was not the only humiliating defeatfrom which China suffered in the nineteenth century; as early as 1840, China had lost the first OpiumWar to Great Britain, to which China ceded Hong Kong, and had since been defeated in a series ofbattles by the Western powers and signed a number of unequal treaties. But this time the damage wasdone by a tiny island that had historically relied on China for its language and cultural heritage and,like China, had undergone centuries of seclusion, until the Meiji Reformation of 1868. What had lentthis island such magical power as to defeat an empire many times its size? What did China lack thathad enabled Japan to attain such great achievements within such a short period? Ever since the veryfirst defeat, Chinese intellectuals had been searching for ways to strengthen their country. First theysaw the immediate necessity of building sturdier warships and more powerful cannons; next theyrealised the need to establish modern industry as the basis for military power.1 For almost half acentury, they had been preoccupied with the Westernisation Movement ( , yangwu yundong),which introduced new science, technologies and manufacturing to revitalise the ancient country, butthe sad fact that the giant fleet they had studiously built for decades disappeared in a single day beforea seemingly tiny rival could not have failed to shock them and raise a far-reaching question: what else

had been missing?The nineteenth-century Chinese were nationalists, proud of their cultural tradition, but they were

not blind chauvinists who refuses to learn from their rivals. In fact, Japan had become an object ofadmiration and imitation for the ordinary Chinese; it had been admired not only for its economic andmilitary achievements but also for its achievements in legal and institutional reforms. During merelytwo decades following the Meiji Reformation, Japan transplanted the entire body of civil, criminaland administrative law from Western legal systems, before it eventually succeeded in adopting theMeiji Constitution in 1889.2 Constitutional reformers like Kang Youwei and his prominent disciple,Liang Qichao ( ), could not fail to seize the chance and make Japan a persuasive case for theirown constitutional cause: Japan succeeded because it was a stronger military power, but it was ableto build up a strong military and economy only because it had undertaken constitutional and legalreforms as the necessary institutional precondition to its success. It was precisely the lack of aconstitution and, together with it, a parliamentary system and rule of law that ultimately accounted forChinas failures. It thus became widely accepted that if China was to part with its disgraceful recentpast and join the world as a major power, as Japan had successfully done, the most urgent thing wasnot to build more warships and set up more factories but to prepare for constitutional reforms thatwould essentially replace the institutional structure of the ancient Chinese state. And this wasprecisely what Kang and Liang proposed in their petition to the Emperor: strength throughinstitutional reform ( , bianfa tuqiang).3 While the petition ultimately failed to prevent theEmperor from signing the Treaty (just as the many other official petitions on the matter had), thescholarly gathering that day symbolised the first organised constitutional movement in modern Chinainitiated from below.

The impact of the civic constitutional movement proved to be far-reaching. In the span of severalyears civic associations sprang up across China, and private newspapers thrived. As early as August1896, Kang and Liang established in Shanghai an influential newspaper, Current Affairs ( ),which soon became the major mouthpiece for constitutional reforms. During the next two years, over300 associations and news agencies were established across China. Under the persistent influence ofthis reformist enlightenment, Emperor Guangxu ( ) finally issued an edict on 11 June 1898,declaring the inauguration of constitutional reform. The next 100 days saw the introduction of ChinasNew Deal ( , bairi weixin). The Emperor, following the teachings of Kang and Liang, issuedover a hundred directives covering a wide range of initiatives from the right to petition to freedom ofthe press; from educational reforms to streamlining of bureaucratic structures; from centralisation offinance to modernisation of the army; and above all, the repeal of special privileges enjoyed by thesmall minority ruling class, the Manchu ethnic group ( ), which had managed to maintaindominance over the Han ( ) population for nearly 300 years. Although the imperial edicts fellshort of bringing onto the agenda the more grandiose issues of constitutional monarchy and theestablishment of a parliament, these reforms seemed to lay a political and legal foundation for thesustainable modernisation of China, just as they had for Japan.

Unfortunately, the reformist momentum was not sustained for long before it was stalled by thethreatened underlying status quo. On 21 September, the Empress Dowager ( , Cixi, EmperorGuangxus mother) took over control, put the Emperor under house arrest, repealed all reformmeasures and executed the six gentlemen high officials in the reform camp. Kang and Liangmanaged to flee to Japan and continued to try to muster support for constitutional monarchy overseas.

Despite this seemingly fatal conservative backlash, the domestic constitutional movement did notsimply fail, since the intellectual elites after 1894 had generally agreed that constitutional reform wasnecessary for Chinas modernisation. Shocked by both Chinas weakness when faced with Westernintruders, who overtook the capital and ransacked the imperial Yuanming Park in 1900, andparticularly by the Japanese defeat of the Russian fleet in 1904, even the Dowager realised theinevitability of reform and revived the process of constitutional drafting by sending several high-ranking officials overseas to study the constitutional systems of Western countries.4 An Outline of theImperial Constitution ( , qinding xianfa dagang) was finally promulgated in 1908.Despite its many defects, even vices, it is commonly regarded as the first written constitution inChinese history and as a convenient point of departure for Chinas modern constitutional movement.

I shall begin the book with a brief introduction to Chinas constitutional history, since it not onlyprovides the reader with an important historical perspective and explains why we are where we arenow, but also illustrates the basic dilemma that China faces in modernising its constitution andembracing constitutionalism. Some of the historical themes simply recur in a transitional society likeChina. For example, it is difficult to ascertain why the ruling regime has any interest in fulfilling thepromises it made in the Constitution by sharing its powers and making itself accountable to thepeople, when it has managed to concentrate all powers in its own hands; those within the ruling circlecan derive tremendous personal profit from the traditional system, and power-sharing means they willlose at least some of their means for making personal profit. The lessons China learned (or shouldhave learned) from the imperial and Nationalist failures should shed some light on how to transcendChinas constitutional predicaments today.

With that in mind, I divide this chapter into several periods, beginning with a short account ofindigenous resources for constitutionalism in China. The Confucian concept of li ( , sometimestranslated as rites or propriety) can be fairly characterised as a social constitution that hadgoverned traditional Chinese society for over 2000 years, but when China was confronted by theWestern powers as early as the seventeenth century, the incompatibilities of li with modern societybecame obvious and eventually led to the demise of the traditional institutions. The chapter will thendeal with the efforts to modernise these institutions, and it will end with an explanation of theinstitutional and cultural causes for the repeated failures to establish a stable constitutional state.

II. CONSTITUTIONAL ELEMENTS IN THE ANCIENT REGIME AND THEIR LIMITATIONS

A. Confucian Li as a Social Constitution?

That Chinas constitutional movement did not begin until near the end of the nineteenth century doesnot imply, of course, that pre-modern China had no conception of constitution or fundamental laws. Itis true that the word corresponding nowadays to constitution ( , xian) meant in ancient times nomore than laws or edicts in their ordinary senses5 and was made to designate a constitution only whenChina imported such meaning from Japan at the turn of the twentieth century. But the Confuciancultural tradition that dominated China for over 2000 was certainly versed in strong normativelanguage and took for granted a few moral precepts as the Way of Heaven ( tiandao), the

application of which to the human world constituted the Way of Man ( rendao). The mostfundamental precepts at the core of Confucianism are humanity ( ren) and righteousness ( yi),around which an elaborate body of rules on rites, ceremonies, etiquette and other aspects of humanbehaviour were developed. This body of rules was specific, complex and all-inclusive, coveringmatters ranging from local festivals to state ceremonies; from specific procedures of marriage to theminute rituals for mourning the dead; from the manner in which children must treat their parents to theeducation programme for producing social elites. Taken together, they formed a vast normativesystem of propriety (li),6 which, as its etymology suggests, was a set of customs, conventions andprocedures to be practised in daily life for the purposes of cultivating moral virtue, directing andcontaining human passions, preserving a well-ordered society, and bringing the social lives ofordinary men and women into accord with the basic principles of humanity and righteousness.

According to the Book of Rites ( liji), a comprehensive collection of rules and their exegesis, liwas supposed to serve as the basis of every human law and govern every moral aspect of humanrelationships. It furnished the means of determining (the observance towards) relatives, as near andremote; of settling points which may cause suspicion or doubt; of distinguishing where there shouldbe agreement, and where difference; and of making clear what is right and what is wrong.7 Similarly,the great Confucian scholar Xunzi ( ) accorded supreme importance to propriety when heremarked that it deals with the great distinction of society through rules and is the unifying principleof general classes of things.8 Its chief function was to maintain the proper distinction of differentclasses of people by treating people differently according to their moral, social and familial statusand to lay down for each separate instructions of proper conduct:

The ancient kings invented the rules of proper conduct (li) and justice (yi) for men in order to divide them; causing them to have theclasses of noble and base, the disparity between the aged and the young, and the distinction between the wise and the stupid, the ableand the powerless; and to cause men to assume their duties and each one to get his proper position.9

Although rules of propriety, established and maintained by human beings, were never characterisedas natural law, neither can they be characterised as ordinary human laws. For several reasons,Confucians had consistently accorded li with a status higher than the rules and conventions formallyenforced by particular states or societies. Indeed, li as higher law was supposedly taken by thelegendary sage-kings from the eternal operations of Heaven, giving rise to the durability if not eternityof its binding force.10 Of course, not every rule of propriety carried supreme significance; the bulk ofspecific rules played only minor roles, but they served to realise the core Confucian values ofhumanity and righteousness, which supposedly defined the very essence of being human. Thesefeatures make the Confucian system of propriety similar to a modern constitution, marked essentiallyas it was by its supremacy, durability and the hierarchical structure of norms. Thus, although li wasmanmade (as distinguished from natural) law, it did contain those fundamental precepts that imitatethe laws of nature. It had been the fundamental law of the land, supposedly framed as it were by thelegendary sage-kings that had governed Chinese society until the early twentieth century.

From this perspective, the traditional debate between rule of virtue ( dezhi) and rule of law ( fazhi) was a mischaracterisation.11 This debate was initiated between Confucians and classical

Legalists during the Warring States Period ( zhanguo shidai) (475-221 BC), which ended witha massive persecution of the Confucians by the First Emperor ( Qin Shihuang), who succeededin vanquishing the warring states and establishing a united China with military power gained through

practising Legalist policies. The debate carried on through a large part of Chinese history, however,after the Confucian doctrine managed to regain orthodoxy after the quick fall of the Qin dynasty. Thedebate was revived once again in the early twentieth century, when li, as the moral tradition that hadreigned over China for two millennia, was held responsible for the countrys weaknesses and failurein confronting Western powers, and was to be replaced by Western political and legal traditions,which were introduced to China together with modern science, artillery and opium. But truly fatalblows against the Confucian tradition arrived only after the Communist takeover in 1949, and itsdemise culminated in the great devastation of the Cultural Revolution (196676) initiated by MaoZedong ( ), who exhibited a clear personal Legalist inclination when he launched an ideologicalcampaign against Lin Biao and Confucius ( pilin pikong). The moral and cultural vacuumleft after the destruction prepared the way for the reintroduction of the Western conception of the ruleof law, the Chinese variant of which became codified in the Constitution in 2004. Yet thesevicissitudes of law, virtue and li constituted parts of political fights for governing principles, andsuggested little, if anything, of the nature of the concepts themselves.

To be sure, li differs from law in important aspects, but in essence the two concepts belong to thesame type of social norms. They differ in scope of coverage: li covered almost the whole of humansocial life, while law in Chinas Warring States was limited to penal regulations; yet many of theselaws had been transcribed from li through a process of so-called Confucianisation ( rujiahua) of laws since the early Han dynasty.12 Far from being its antagonist, li had been the very sourceand justification of law in imperial China, just as moral or customary principles were the foundationof modern Western laws. Li and law also differ in the modes of implementation: while laws relies oncompulsory enforcement by the state, the uncodified parts of li were enforced only through socialmechanisms, without the direct aid of the state. Social enforcement could be defective, but that did notabrogate li of theoretical or practical binding effect. Partly for this reason, Confucians like Xunzi hadalways advocated social distinctions and a hierarchical structure in which the parents were todominate over the children, husbands over wives, the nobles over the common and the superiors overthe inferiors, in order to enforce rules of propriety that they believed to be quintessential to a goodsocial order.13 In contrast, the Legalists, usually ascending from inferior ranks against the status quo,advocated for the equal application of laws to all classes. These social differences were a validground for rival policy platforms, but not for making li and law fundamentally different governingmechanisms. In other words, there were tensions between them, just as there are tensions between themodern laws of a state and its constitution, but these tensions hardly negate the fact that li was notonly one type of social norm but the ultimate source from which imperial laws and edicts derived. Itwas, virtually, a constitution for pre-modern China.14

In substance, of course, Confucian li was anything but a modern liberal constitution. It was centredon humanity and righteousness, precepts that still govern the world today, but it was clothed in aterribly dogmatic straightjacket, as traditional doctrines usually were. That straightjacket not onlydeprived individuals of any space for free development but also inculcated a stiflingly intolerantinclination, with lasting influence even today, to readily identify one doctrine as the sole and absolutetruth. It prevented li itself from evolving over the centuries, during which it grew into an ossifiedmummy governing a stagnant society. When Confucian li was blamed for Chinas weaknesses andunending failures and was systematically attacked around the time of the May Fourth Movement (

wusi yundong) in 1919, it was to be cast aside altogether and replaced by another orthodoxy,

this time imported from the West, and the dogmatic tradition was to perpetuate itself although thatbanner was flown by Marxists.

B. Imperial Constitutional Reforms under Western Influence

The Opium Wars of 1840 and 1860 marked the beginning of modern China and initiated a cascade ofmovements that ultimately toppled the theretofore dominant Confucian cultural and political tradition.This is not to say that China had been governed under li without interruptions; near the end of almostevery dynasty, when courts became hopelessly corrupt and law enforcement was relaxed to the pointof bankruptcy, the moral principles implied in li obviously fell into disuse. But when society regainedits legal order and moral vigour in a new dynasty, everything would be restored to its normal positionas dictated by li. The only exception was perhaps the Yuan dynasty (15781665), during which Chinawas ruled by the Mongols under Genghis Khan and Kublai Khan, who defied the Confucian traditionafter they ascended to the throne and maintained their relatively egalitarian nomadic way of life. Butto their sorrow, their reign lasted for a mere 87 years, one of the shortest in Chinese history. Therulers of the last dynasty, the Qing (16441911), were also a minority (Manchus from northern China)but learned a lesson from their predecessors and completely abandoned their customs, baptisingthemselves in Confucian culture. Take a look at the Dowagers painting and calligraphy, you cannotfail to be impressed that these were the products of a well-educated Confucian woman. And thatmade the obvious difference: their dynasty lasted for 267 years, three times as long as that of thebarbarous Mongols, and it was brought to an end only by a challenge that China had never met before.

The long record of successful Chinese cultural dominance inspired feelings of confidence,contentedness and pride among pre-modern Chinese. Unlike their contemporary counterparts, theywere immensely proud of their cultural tradition, embodied in the unchanging li, perhaps even moreproud than Americans are of their 200-year-old Constitution. And they felt this way for good reasons.Take a look at Chinas poetry, literature, arts, the elaborate social etiquette and bureaucraticstructure, even its relatively weak scientific inventions. It can hardly be denied that it was asophisticated civilisation that enabled high personal achievements. The rules in li are largelyanachronistic today, but even a modern person cannot fail to be struck by the comprehensive design ofthe education programme and the civility (even some romance) of the marriage ceremony that tookplace at dusk. It was true that li was anything but egalitarian and could be repressive, and perhapsonly a small minority of ruling elites had the leisure to practice the full panoply of its rules anyway,the vast majority of population being at all times kept in ignorance and illiteracy;15 but when itscritics imputed to it every failure and backwardness from which China had suffered, as if li weremonstrous enough to devour personality ( , lijiao chiren), a now famous quip from a radicalnovelist,16 they were simply exaggerating its vice, having determined to make it a scapegoat. At thevery least, the conservative ruling elites were deeply convinced that li was the very core of Chinesecivilisation that made it superior to any foreign civilisation, and the excessive pride they took in theircultural heritage cost them much time in finding the root cause for Chinas weaknesses and failures.

When China received the first blows from the Western powers, hardly anyone related them tocultural or institutional problems. Initially, intellectuals, both in and out of office, thought the Westernpowers were just other Mongolian-type barbarians, only this time from the sea and with superiorweaponry. Once China had learnt and mastered military techniques from these barbarians, then it

would be able grow strong enough to bring the same barbarians to its feet ( , yiyi zhiyi). Aninfluential reformist thinker, Wei Yuan ( , 17941857), who edited a 50-volume GeographicRecords of Sea Countries ( , haiguo tuzhi) within two years after Chinas defeat in the firstOpium War, explained famously that the purpose of this comprehensive multi-volume work waslearning from the advantageous techniques of the barbarians in order to subdue the barbarians. Eventhough the book did touch upon Western legal and political institutions, the crux of theseadvantageous techniques, he summarised, was warships, gunpowder and methods of maintainingand training soldiers.17 A few prospective thinkers did advocate the learning of Westernconstitutional systems, but their opinions failed to attract sufficient attention among officials andintellectuals. It was not until the Sino-Japanese War that Chinese were convinced that they needed tolearn from the West not only the hard science of making more powerful weapons and strongerindustry but also the soft science of designing a modern legal and constitutional framework, whichwas critical for the overall modernisation of this ancient civilisation. National arrogance not onlyimpeded the modernisation efforts and caused China to lag far behind Japan during the firstconfrontation with Western civilisation, but continues to play a role even today in resistingconstitutional reforms inspired by Western models.

Since the very beginning, Chinese officials and mainstream intellectuals were primarily concernedwith how to preserve the core of Chinese culture while allowing the peripheries to change asexpedience required, with the result being a compromise between native and foreign elements. In1898 a mixed notion of lasting influence was forged: Chinese scholarship being the foundation,Western scholarship being the application ( , zhongti xiyong),18 which was shortly developedinto a systematic theory in an influential pamphlet by Zhang Zhidong ( ), On Encouragement ofLearning ( , quanxue pian), which essentially argued that the core of Confucian moral teachingsshould remain untouched, while arts, techniques, even laws and the legal system, could beWesternised.19 And one can still see the same mentality today, when such notions of Western originas market economy and rule of law are prefixed by socialist ( , shehui zhuyi) in Chineseconstitutional amendments, and even the notion of socialist road is modified by Chinesecharacteristics ( , zhongguo tese) to distinguish it from other (say, the more orthodox Soviet orNorth Korean) types of socialism. In retrospect, under the mixed theory of Chinese foundation withWestern applications, the space for imperial constitutional reform was quite considerable, since allof the superstructures beyond the moral core could be changed. Presumably, even the politicalsystem was amenable to democratic transformation.

Ideological constraints retarded but fell short of stalling sorely needed constitutional reform. Whatultimately halted the reform was the threatened interests of the status quo, whose powers would beimpaired and privileges be repealed had the reform gone through as planned. This led to, as we haveseen, the abortion of the Hundred Days Reform. Even though the Dowager restored the reform aftera forced evacuation from the capital and promulgated the Outline of Imperial Constitution in 1908, theconstitutional reform went nowhere in substance. Copied from Japans authoritarian MeijiConstitution and opening with a pompous, self-perpetuating clause (The Great Qing will perpetuatefor ten thousand generations, and be loved and respected forever), the Outline itself was a paragonof despotic monarchy with substantive supreme power, a model so familiar to Chinese politicaltradition, as opposed to the British model of constitutional monarchy with nominal supremacy. Thingsworsened when the Qing came to reform the bureaucratic structure. While the early rulers of the

Qing dynasty, conscious of their own predicament as a minority regime, maintained a balance ofopportunities by designing a dual leadership mechanism for each province and major department one reserved for the Manchu minority and the other for the Han majority the reform ostensibly maderace an irrelevant issue but in effect allowed the Manchu minority to dominate the cabinet by a two-thirds majority; it was aptly nicknamed the cabinet of imperial siblings ( , qingui neige).20These unpopular measures necessarily alienated the majority Han population even further and pavedthe way for deeper social crisis when the unwise minority regime indulged itself in dangerousvictories.

Before long, a mutiny broke out, putting an abrupt end to the disappointing imperial reform. On 10October 1911, now celebrated annually in Taiwan as the national holiday for the Republic of China,revolutionaries initiated an uprising in Wuchang ( , wuchang qiyi). The imperial housepanicked and, under the imminent political pressure, quickly promulgated the Doctrine of NineteenArticles ( , shijiu xintiao) as a new constitutional document. Contrary to the earlier Outline,the Doctrine envisioned a constitutional monarchy borrowed from the British model. Although theQing regime was still supposed to be everlasting (Article 1), and the Emperor maintained sacred,inviolable dignity (Article 2), his powers were limited to those laid out in this constitutionaldocument (Article 3) and were reduced in substance to no more than that of the nominal StatePresident in China today.21 The text of the Doctrine itself was discussed and decided by theConsultative Council ( , zizhengyuan); the Emperor simply promulgated it (Article 5), and thepower of amendment belonged to the Congress ( , guohui). The Congress was also to elect thePrime Minister and other ministers upon his recommendation, and imperial members were excludedfrom these positions for incompatibility; the Emperor was, again, simply to affirm the appointments(Article 8). He was the commander-in-chief, but domestic forces had to be deployed under specialconditions decided by the Congress (Article 10). The Congress was to decide not only the annualbudget for the state but also remuneration for the imperial house (Articles 14 and 15); and theimperial regulation governing its own operation had to be compatible with the Constitution (Article16). Had this soft Doctrine been put into practice, China would have embarked on the gradualistBritish approach and avoided a century of revolutionary tumult. Unfortunately, the rescue came toolate; the long deprived and oppressed populace, having lost its last bit of confidence in the regimeand having little patience with anything like a mild reform, found much more appeal in therevolutionary rhetoric of Dr Sun Yat-sen ( ), who vowed to drive out the Manchu convicts (

, quchu dalu). And that summon rang the death-knell of Chinas last dynasty.

C. Lessons to be Learned: The Dilemma of Constitutional Reform in an Authoritarian State

The failure of the imperial constitutional reforms, beginning with the Hundred Days Reform, provedto be ominous for Chinas next century. Far from a single incident of bad luck, it portended thatprogressive reform in an authoritarian state was almost doomed to fail. A reform, by definition, is tomake changes within the existing political framework rather than outside it; while a revolution aims toforcefully wipe out current institutions together with the persons filling its offices, a reform seeksrather to cope with the current institutions and use the channels they provide to remedy existingwrongs. Reformist strategies usually result in a gradualist approach that is not only less costly tosociety as a whole but often optimal to all major factions having regard to their long-term interests,

including the ruling class, whose legitimacy may be recognised by other groups as long as it iswilling to go along with a reform that will accommodate their interests and maintain a minimal degreeof confidence in the existing regime. Thus, it seems to be in the best interest of an enlightened ruler todo everything to promote reform, if only to avoid a revolution that is likely to break out once theoppressed groups have lost hope that the existing regime can do any good for their concerns. And thiswas precisely the argument that some of the high officials in the Qing dynasty used to dissuade thecourt from resisting reform before the rising pressure of revolution gathered both domestically andfrom overseas under the leadership of Sun Yat-sen, among others. 22 Unfortunately this seeminglypersuasive argument failed to work for several reasons.

First and foremost, in contrast to Tocquevilles thesis that an enlightened despot, like Louis XVI ofFrance, may adopt certain salutary reforms on his own initiative, only to be overwhelmed by therising expectation of the populace,23 most authoritarian regimes are naturally opposed to any changeof the status quo. Although reform is premised on recognising the legitimacy of the ruling regime andstops short of tossing the regime completely out of office, it nevertheless usually requires it torelinquish some of its privileges and, more often than not, the political power necessary to maintainthe privileges, thus directly running counter to at least the short-term interests of the regime andeveryone under its patronage. This was most obvious for the Manchu notables of the Qing regime, asmall minority that reigned over the dominant Han population for nearly three centuries, during whichit monopolised the maintenance of army and enjoyed numerous political, legal and judicialprivileges.24 This privileged ruling clique was instinctively opposed to any social, and particularlypolitical, reform that tended to diminish its ability to maintain its own privileges. In fact, the cabinetreform near the end of the Qing dynasty indicated that a reform might not only fail to achieve itsoriginal purpose but positively make things worse by relaxing the previous constraints on the rulingregime, thus creating even more opportunities for exploiting social and political resources.

Second, it is true that progressive reform usually serves the long-term interest of a regime, but itsrulers may simply fail to see such interest and mistakenly adopt myopic measures. It is also true that,unlike a modern authoritarian regime with a democratic faade, whose interest in good governance isdiscounted by the term of appointments that may often be expressly provided in its constitution (andthus difficult to circumscribe), a traditional hereditary regime should find it easier to perceive itslong-term interest in the perpetuity of its reign. But most conservative power-holders in the lastdynasty, represented best by the Dowager, were mediocre, blinded by their immediate self-interestand lacking in vision for the future of the alien country over which they ruled. Even if a few top rulersare farsighted enough to propose a progressive reform, it is likely to remain an individual proposalthat will fail to arouse enough sympathy among the ruling clique. Above all, a despotic regime is usedto commanding by brute force and maintains excessive confidence in its power and capacity to keepeverything in order by suppression rather than negotiation. If one can simply retain all goods withsuch power, what can be the rationale for giving it up? In a democracy majority, votes decide everychange, against which neither personal nor institutional impediments can stand in the way apartfrom such mechanisms as presidential veto or judicial review, which serve to check against thearbitrary exercise of majoritarian power and may delay the execution of majority will.25 But anauthoritarian regime will come to the same table with its opponents only when it has used up itspower, and by that time, the chance may have well passed for reaching a credible agreement that allsides are willing to accept. And this was precisely what happened to the rulers of the last dynasty.

Even with the belated beginning of the Hundred Days Reform, it had plenty of chances to reform andthus help to perpetuate itself, but every time, astonishingly, it rejected its own opportunity andforcefully suppressed reform efforts. Indeed, when the chance for change arrived under the banner ofconstitutional reform, it positively manipulated it for the sake of its own privileges and aggravatedthe discrimination against the dominant population. At last, when the latter resorted to mutiny againsta regime in which their confidence had long expired, it suddenly found itself in a feeble position andquickly enacted a progressive constitutional document to save its own fate. But by then it was toolate.

Finally, added to the difficulty, if not impossibility, of sustaining constitutional reform in anordinary authoritarian regime, the Qing reform was further complicated by the very fact of its minorityrule, which made it a vulnerable target of nationalist attacks and, at the same time, further diminishedits confidence in peaceful reform for the mutual benefits of itself and of the nation as a whole. Fromthe very beginning, when the minority regime was vigorous, powerful, competent and confidentenough to keep things in control, the Qing rulers took positive cautions in reconciling the thornyrelationship between the Manchu and Han peoples; by the end of the dynasty, the regime had grownincreasingly defensive against any proposal that tended to threaten its status quo. The repressive andregressive measures it took against the Han population could only, of course, further degrade itsimage, fuel more resentment against itself and make the revolutionary cause against the oppression ofan incorrigible minority clique even more appealing to the general population. Thus, although Kangand Liang did their utmost to promote constitutional monarchy even during their exile, their moderatereformist appeal was eventually defeated by Sun Yat-sens radical call for revolution based on thepremise that genuine reform was impossible under a corrupted monarchic regime, andconstitutionalism was to be realised only by establishing a brand new democratic republic.26

Most fundamentally, of course, the Manchu minority rule merely illustrated the conspicuous lack ofpopular participation in critical decision-making processes in an authoritarian state, where policyconflicts between reformists and conservatives were invariably carried out in the form of courtstruggles. Since reformists usually represented the more conscientious but politically weaker strain ofthe ruling regime and pitted themselves against the more powerful conservatives, who represented thestatus quo under that regime and were ultimately backed up by the state machinery, their reformistcause necessarily failed. If a reform is for the good of the majority people, then the people themselvesmust stand up and step in to carry out the reform;27 otherwise, if they are missing in the political arenaand stay out as bystanders, having relegated their own cause to certain benevolent elites, then theycannot help but witness the failure of reform. Even the Emperor himself was put under house arrestwhen he and his reformist mentors failed to bring constitutionalism to China without the peoplessupport. The people were likewise missing when Yuan Shikai committed numeroustreacheries against the Nationalists ( , guomindang) after the establishment of the FirstRepublic, as well as when the Nationalists embarked on the Northern Expedition and began toslaughter the Communists ( , gongchandang) soon after its success in 1927.

The repeated failures of Chinas constitutional reforms (and revolutions) illustrate the samemodernisation difficulty experienced by all nations that are unfortunately trapped in authoritarianmodels of governance: in such cases, a small group of political elites maintains the monopoly of allpowers properly belong to the people and is thus capable of exploiting them to its advantage. Theauthoritarian regime thus creates its own defenders and perpetuators, who will use the entire state

machinery at their disposal to protect their own interests against any reform that threatens to disturbthe distribution of powers, until the state becomes so corrupt and notorious as to be incapable oflending them any support, by which time a revolution is bound to break out. In the century followingfrom the Hundred Days Reform of 1898, this same pattern simply perpetuated itself. When armouredvehicles marched toward Tiananmen Square amid protesting crowds on the fateful eve of 4 June1989, it merely recurred in another social and political context.

III. THE FIRST REPUBLIC: THE NATIONALIST REVOLUTION OF 1911

A. The Clash of Regimes within the First Republic

The republican revolution led by Sun Yat-sen and his Nationalist Party ended the imperial rule ofmore than two millennia and opened a completely new republican epoch in China. Radical as it mightseem, however, the 1911 Revolution did not really end the old regime at one stroke. In many ways theQing regime was defeated more by its own feebleness than by the strength of the Nationalists, aloosely organised alliance of factions that came under the mantle of Suns Three PeoplesPrinciples

( , sanmin zhuyi),28 virtually without its own army. They could have been easily defeatedand eliminated by the well-trained army ( , beiyang jun) maintained by Yuan Shikai, a shrewdpolitician and general who had been appointed to the position of Prime Minister near the end of thelast dynasty. This able and ambitious man turned out to be an opportunist, however, and changedChinas history more than once in his political and military career. He was commonly regarded as thetraitor who sold out Kang, Liang and Emperor Guangxu to the Dowager during the Hundred DaysReform, when they solicited his help to initiate a coup against the conservative forces, thus bringing apremature death to the constitutional reform movement.29 When it became rather obvious that the Qingregime was a lost enterprise, Yuan betrayed his masters once again, this time to facilitate therepublican revolution; twelve years later, he was to turn his back against the republican cause, revertto monarchism and claim throne for himself, only to be overwhelmed by rebellious nationwidecensure and suffer a melancholy death.30 At the critical juncture of 1911, Yuan reached a covertagreement with the Nationalists that he would withhold the army if the latter supported him as thepresident of the new republic. Shortly after the First Republic was established, Sun fulfilled hispromise and yielded the presidency to Yuan.

With Yuan Shikai on its side, the Nationalist revolution was able to sustain its initial victory andestablish a new republic, but the Republic of China ( , zhonghua minguo) was anything but acomplete departure from its imperial past. Just as public sentiment in 1911 was at most a mixture ofmonarchic and democratic elements, with many a loyalist nostalgic about the immediate past, therepublican government retained a considerable portion of the old regime. Indeed, the presidency washeld by the same man who had been Prime Minister of the last dynasty, and though he was nodogmatic monarchist, he nevertheless inherited the spirit of a power-craving despot from the oldregime. The Nationalists, moreover, were equally determined to gain a grip on power, whethersimply out of their self-interest or out of firm conviction of what they believed to be a politically

correct and morally superior ideology. A new strain of blood was fused with the old in the samebody, as it were, and conflicts were bound to multiply. Political conflicts in themselves, however, areno enemy to institution-building if they are contained in civilised procedures; both the bicameralsystem and judicial review,31 two of the Americans ingenious constitutional inventions with lastingsignificance, were created out of political conflicts as mechanisms to resolve them. But theconstructive use of conflicts does presuppose a common recognition of basic rules of political gamesto be shared and observed by rival groups, which were simply not there for the Nationalists and YuanShikai in the early twentieth century. It was only a matter of time before their joint venture wouldfracture and fall apart.

In fact, interesting institutional products did emerge from the political struggles of the FirstRepublics initial phase. Anticipating Yuans presidency, the Nationalist-dominated Senate, the soleand supreme legislative body, promulgated in a month the first republican constitutional document, theProvisional Constitution ( , linshi yuefa). The system it outlined was based on theWestminster parliamentary model in order to restrict presidential power, even though Sun Yat-senhimself had been influenced by the American institutions during his prolonged stay in the UnitedStates and was an admirer of the presidential system.

The Provisional Constitution renounced the monarchy by establishing the republican principle inthe opening chapter (Article 2): The sovereign power of the Republic of China belongs to allcitizens. The governing framework was a mixture of a presidential system and a parliamentarydemocracy, consisting of a Senate, an interim President, councillors and courts (Article 4). Theinterim President wielded substantial power, not only as commander-in-chief (Article 31) but alsothrough the appointment and removal of civil officers, although the appointment of councillors andambassadors required the Senates consent (Article 34). The Senate could, with a majority of threequarters among the voting members, who must meet the four-fifths quorum, impeach the President fortreason (Article 11). The Provisional Constitution also expressly provided for judicial independenceand impartiality: The independent adjudication of judges is not to be interfered with by theexecutive (Article 51).

The Provisional Constitution was Chinas first effort to transplant the Western constitutional modelwholesale. Despite its hasty drafting and immature structure, which left out such key parliamentarymachineries as confidence voting and dismissal of the cabinet, it was a admirable design for a freshrepublic that hitherto had experienced only courtly debates and impeachments before anunchallengeable Emperor. It was also among the first experiments worldwide with an institution thatmixed presidentialism and parliamentarism, arguably the best arrangement from the contemporaryperspective and suitable for a transitional state like China in the early twentieth century. While thepresidency resembled imperial supremacy, gratifying the political ambition of such monarchicremnants as Yuan Shikai and persuading them to live with republicanism, an active parliament wouldfacilitate popular engagement and keep the strongmen in check.

That the Provisional Constitution was accepted by both the Nationalists and Yuan Shikai was byitself a remarkable achievement and a good beginning for practising checks and balances.Unfortunately, to manage such a complicated institution requires both experience and moderation,which neither side in the political arena of twentieth-century China could claim. What ought to havebeen power skirmishes governed by constitutional rules soon turned into unlimited warfare guided bypersonal ambitions, sometimes aggravated by loopholes in the constitutional text. In June 1912, for

example, Yuan Shikai quarrelled with the Nationalists over the appointment of the governor ofnortheastern China. While the Provisional Constitution required that the appointment becountersigned by the Premier (Article 45), Yuan interpreted the clause as a requirement for thePremier to concur rather than as a description of his right to decide upon independent judgment. Whenthe Premier refused to countersign the appointment, he was accused of violating the constitution andforced to resign.32 When the Nationalist allies subsequently left out of anger, the new cabinet wascomposed of Yuans protgs, and they were soon vetoed by the Senate. The struggles escalatedwhen Yuan sought to hire police to harass the senators, thus creating a dangerous precedent ofmilitary interference in domestic politics.

The rivalries continued to intensify and eventually reached the climactic point of civil war whenSong Jiaoren was assassinated during his campaign for the premiership in March 1913. Apersistent, staunch advocate for parliamentary democracy, who vowed to establish a constitution witha strong cabinet and a weak president, Song orchestrated the reorganisation of Sun Sat-sens CommonLeague ( . tongmenghui), upon which the Nationalist Party was formed, and he was generallyrecognised as the de facto Nationalist leader. His assassination, widely suspected to be part ofYuans plot, was tantamount to a declaration of war against the Nationalists and was bound to triggerfierce Nationalist reactions.33 Seven provinces under Nationalist control declared independencefrom the central government in Beijing and initiated the second revolution, an armed uprisingagainst Yuan. The rebellion was quickly put out, and Sun Yat-sen and the major organisers had toseek asylum in Japan.

The Nationalist failure provided Yuan with the opportunity to arrest and execute severalNationalist activists and to expand his own partys role in the government. Eager to become apermanent rather than interim President, Yuan pushed Congress, now with diminished Nationalistinfluence, into promulgating the Presidential Election Law, by which the President was to be electedby parliamentary members rather than the electorate in general. On 6 October 1913, a mere two daysafter that law went into effect, Yuan held a presidential election for the first time in Chinese history.He was duly elected after thousands of military policemen, disguised as voluntary citizens,surrounded the poor representatives from 8 am to 10 pm on the election day, until they succeeded inreaching the legally required three-quarter majority vote.34 The Nationalists managed to fight back bypromulgating a Draft Constitution ( , tiantan xiancao), which overtly adopted Song Jiaorensstrong parliamentary model at the expense of presidential power. Yuan was so offended by the Draftthat he ordered, within three days of its publication and without any legal ground, the disbanding ofthe Nationalist Party and the disqualification of the Nationalist members of Congress, resulting in acrippled body that was unable to meet its quorum, as well as the irrevocable break of Yuans tie withthe Nationalists.

B. An Interlude for Warlords: The Provincial Autonomy Movement and the Experiment withFederalism

Yuan Shikai committed political suicide when he cheerfully followed the recommendation of hisAmerican adviser, Professor Frank Goodnow, that China would do better by reverting back tomonarchy than by putting up with republican chaos. The demise of this grand warlord plunged Chinastraight into a short period of political chaos dominated by a dozen petty warlords, each successively

coming into power and enacting a constitution of his own, which was only to be discarded by hissuccessor. Nothing of this period is worthy of elaboration except the ephemeral provincialautonomy ( liansheng zizhi) movements during early 1920s. Since the process of drafting acentral constitution was stalled by Yuans destruction of the Congress and the miring of the entirecountry in tangled warfare, the warlords of those provinces caught in and devastated by the crossfiredesired to adopt provincial constitutions for their own protection and the consolidation of localpowers. In fact, some of these warlords were revolutionaries during the Wuchang uprising andestablished military governments based on local organisational laws, providing for cabinetresponsibility and the separation of powers, even before the Provisional Constitution. Among theseprovinces, Hunan, which was seriously damaged by the War to Protect the Constitution ( ,hufa zhanzheng) waged by Sun Yat-sens Nationalist army in the south with the northern warlords,was the most active advocate of provincial autonomy, and initiated the drafting process of aprovincial constitution in November 1920. The draft constitution was revised by a review committeeof 150 elected members and ratified in a popular referendum by the citizens of that province inDecember 1921. Both in procedure and in substance, the Hunan Constitution lived up to thecontemporary standard. Most notably, it provided for universal suffrage for all men and womenwithin the province and direct election of the governor by citizens, who enjoyed even rights toreferendum and popular initiative.

The Hunan experience inspired other (mostly southern) provinces to initiate their own constitution-making processes, even though they failed to promulgate effective constitutions within the shortperiod of time available, and even the Hunan Constitution itself was not practised effectively enoughto change the basic structure of warlord domination. Nevertheless, the provincial movements vividlyillustrated Chinas potential for federalism and local democracy at the grassroots level. After themilitary government of Zhejiang province declared a draft constitution and solicited private drafts in1922, Zhejiang citizens exhibited such enormous enthusiasm that they proposed over 100 versions,which, in order to facilitate voting in popular referendum, had to be sorted into three categoriesaccording to the nature of their designs and labelled with red, yellow and white colours hence thedistinctive name tri-colour constitutions ( , sanse xianfa). The draft constitutions in Zhejiang,Sichuan and Guangdong provinces resembled the Hunan Constitution in that they all provided forextensive civil and political rights, particularly equality of men and women, direct elections ofgovernors and provincial parliaments, and parliamentary democracy with the right to question andeven remove the cabinet by vote of no-confidence.

By 1923, the nominal president of the Republic, Li Yuanhong , had returned to Beijing underthe auspices of the victorious warlord Cao Kun and reassembled the Congress he had dissolvedfive years ago. Coveting the presidency himself, Cao soon forced Li to leave the post. He bribednearly 200 representatives to return to Congress in order to attain a quorum and in October 1923 gothimself enough votes to be elected President.35 The reassembled Congress quickly passed theConstitution of the Republic of China , zhonghua minguo xianfa), which unfortunately wastinged by the slur of the bought election. Judging from its provisions, however, the 1923 Constitutionwas the closest that China has ever achieved to a federal constitution. With 13 chapters and 141articles, the Constitution provided in appearance a unitary framework for the country, proclaimingthat China will forever remain a united democratic state (Article 1) but outlined in essence a federalstructure. Chapter V of the Constitution explicitly demarcated the boundary between the central and

lower powers, which was not to be amended by ordinary central laws or regulations. Article 23enumerated 15 items that were in the competence of the central legislature to enact and implement,including defence, diplomacy, citizenship, civil and criminal laws, coins and balances, taxation,postal service and communication, national railways and highways, civil and military appointments,amongst others. Article 24 listed 13 areas in which the national legislature could requireimplementation by the local governments, whereas Article 25 listed 11 areas of exclusive provincialcompetence; disputes with regard to the boundaries of central power arising from uncertainties inthese Articles were to be adjudicated by the Supreme Court according to the nature of the powersinvolved, and disputes among provinces were to be resolved by the Senate. Chapter XII on localinstitutions further authorised provinces to enact provincial autonomy laws ( , sheng zizhifa), provided that they were consistent with the Constitution and national laws; and Article 128provided for the autonomous areas properly belonging to county legislatures and not to be interferedwith by the provincial governments above them.

C. The Northern Expedition, Reunification and the Ascendance of Party Rule

The federalist experiments proved to be short-lived in China, a country governed under a unitaryscheme for over two millennia. Sun Yat-sen, had become a frustrated revolutionary seeking refuge inGuangdong province, but he soon broke with Chen Jiongming , his protector and a warlordcontrolling Guangdong. Their split was over the Northern Expedition ( , beifa), a military push todrive out all warlords and reunite China under a single regime. For years the Nationalist Party wasbut a loose coalition of petty bourgeois, who were infinitely better at parliamentary feuds thanfighting in the fields, and Sun was tired of having to constantly shift his alliance to one warlord tofight off the others. He was convinced that constitutionalism would be an impossibility in China aslong as it was divided among these barbarous warlords, whose sole interest was to protect andexpand their own turfs. To realise constitutionalism, the Nationalists had to establish a strong army oftheir own that would wipe out all warlord resistance and establish a genuine republic underNationalist leadership. To accomplish that, Sun set out to reorganise the Nationalist Party andstrengthen its internal discipline, this time not along liberal Western lines but on the Leninist modelthat had succeeded in building a party machine strong enough to seize power in Russia in 1917.

In 1924, Sun published an Outline for Founding the Nationalist Government ( , guominzhengfu jiangguo dagang), which delineated an elaborate progressive strategy for achievingconstitutionalism in three stages: military politics ( , junzheng), tutelage politics ( , xunzheng)and constitutional politics ( , xianzheng). In Suns design, constitutionalism was to be preceded bya military phase, during which domestic impediments would be wiped out by armed forces inorder to establish a united republic. This would be followed by a second phase, during which thecentral government under the Nationalist leadership would provide the Chinese people with guidanceand training for practising democratic self-governance, beginning at the county level, mainly theexercise of rights to election, initiative, referendum and recall of corrupt or incompetent officials.When the people of a county had learned to exercise these rights after adequate training, it wouldbecome a county with complete autonomy; when all the counties within a province had achievedautonomous rule, that province would be deemed as having completed the tutelage stage and enteredthe beginning stage of constitutionalism; it would then be entitled to popular election of its

governor. When over half of the provinces had achieved autonomous rule, the Nationalist Party wassupposed to return political power to the people ( , huanzheng yumin) and call the nationalassembly to enact a constitution, which would bring China into the final stage of constitutionalpolitics.

In the same year, Sun Yat-sen adopted the recommendations of his Soviet adviser and completedthe reorganisation of the Nationalist Party according to the Leninist model, which was marked bymonopolistic dominance by a single ruling party over the government and the entire nation. The veryfirst article of the Organic Law of the Nationalist Government guomin zhengfu zuzhifa)dictated that the national government was to be in charge of national affairs under the direction andsupervision the Nationalist Party. As explained by Hu Hanmin ( ), a right-wing Nationalistleader and theorist,

All powers are to be concentrated in this party, [since] only the party can undertake the great task of founding the republic on behalfof the people of the entire nation, and only the party can lead the people of the entire nation to march towards the objective of realizingthe three-peoples doctrine Neither is there a single (legitimate) party outside this party, nor any (legitimate) politics outside theparty, nor any party outside the politics (dominated by the Nationalist Party).36

Under the logic of tutelage, the Nationalist reorganisation initiated Chinas first experiment with ruleof the party ( , dangzhi), as opposed to both the modern rule of law and the ancient rule of virtue.In effect, the government was merely a mouthpiece that would reflect the will of and exercise thepowers properly belonging to the party; all major laws and policies were decided by the NationalistParty before they were passed to the national government for promulgation and implementation. Thus,when the Communists came to amend their party charter before they amended the Constitution andmajor laws several decades later, they were following the precedent of party rule as pioneered bytheir Nationalist predecessors.

Sun Yat-sen died the following year, shortly after the reorganisation of his party, which was nowready to embark upon its first stage of constitutionalism. And this task fell naturally on the shouldersof his follower and personal guard, General Chiang Kai-shek ( ). In 1926, Chiang called for theNorthern Expedition, which, with the assistance of the Communists under the first cooperation of thetwo revolutionary parties, quickly drove out most of the warlords and reunited a large part of Chinaby 1927. The cooperation with the Communists was out of both strategic necessity and Sunsideological sympathy with them, given the Soviet realignment of the Nationalist Party; but each party,aiming to gain exclusive control over the state against all opposition, was inherently opposed to theother. With their common enemies defeated near the end of the Northern Expedition, conflictsinevitably arose when neither party was prepared to share power with the other. The aggressiveCommunist infiltration of the Nationalist Party during this short-lived cooperation necessarily invitedheavy suspicion and reaction on the part of the Nationalists, who soon initiated a movement tocleanse the party ( , qingdang), and the result was the disarming and execution of manyCommunist members. Having suppressed the Communists and eliminated most warlords, theNationalists had accomplished their military politics and entered the stage of tutelage politics, thecompletion of which was supposed to eventually bring constitutionalism to China. Once again, Chinawas by and large under a unitary order, this time under a supreme party rather than a supreme person,though both prohibited any challenge to its supremacy and its monopolistic exercise of power.

D. Limitations in the Nationalist One-Party Monopoly

From its political programme, the Nationalist monopoly over power was meant to be more rigorouseven than its Communist counterpart; yet in effect, its one-party rule was limited by a number offactors beyond its control at the time. First, the Communists were not eliminated but merely drivenunderground in the cities and expelled to the remote rural areas; in both cases they remained the majorpolitical rival that openly challenged the Nationalists domination. Second and perhaps moresignificant, the Nationalist new order was fatally broken by the Japanese invasion from the 1930s to1945, which greatly emasculated the strength of its army and diverted its focus away from crushingthe Communists. In fact, following the Xian Incident ( , Xian shibian) in 1936, Chiang Kai-shek was compelled by public pressure to set aside past feuds and cooperate with the Communistsagain, this time to fight against the Japanese as the common enemy and save the nation from crisis.Third, although the Nationalist reorganisation aimed to establish a monolithic party under the uniformcontrol of a supreme party leader, the reality was quite the otherwise. After its spiritual leader, SunYat-sen, passed away, the party split into at least three major factions the left, the right and themilitary faction headed by Chiang Kai-shek. Although Chiang managed to maintain an upper hand as aresult of constant national exigencies that demanded a military strongman, he was unable to claimunconditional dominance over other factions and quash intra-party rivalries. In 1931, for example,after placing the right-wing leader Hu Hanmin under house arrest, Chiang was openly condemned bythe partys Central Supervision Committee as having committed an illegal act. Under mountingpressures from both the right and the left, particularly from the young college students who frequentlytook to the streets, Chiang relinquished all official posts, including the chairmanship of the NationalistGovernment and commander-in-chief, and he did not resume these positions until the Japanesetakeover of the northeast provinces the following year created such national crisis as to demand hisreturn.

The fracturing of the Nationalist Party from within, as well as open challenges from varioussources without, helped to reduce the degree of Chiangs personal dominance over the party as wellas the partys dominance over the entire country, thus allowing a limited space for dissentingopinions. By the mid-1930s, when the deadline for entering the last stage of constitutional politics asdefined in Suns Outline was approaching and there was obviously no hope of meeting such deadline,serious constitutional debates were held both in and outside the Nationalist Party.

The rationale behind tutelage politics, which was supposed to provide legitimacy for theNationalist monopoly over political power was a natural development of the traditional Confuciandoctrine that divided the people into the dichotomy of gentlemen ( , junzi), a small minority ofelites with high morals, and small men ( , xiaoren), who constituted the vast majority of th