Traditional Confucian Constitutionalism: Current Explorations and Prospects

For a relatively long period of time, it has been widely thought that Confucianism and constitutionalism are incompatible, even antithetic. This view is a prominent feature of Chinese thought from the New Cultural Movement of the early 20th century to the “Asian Values” debates of recent decades. Even today, it still holds some currency among many intellectuals, both within and outside China. However, in recent years some intellectuals are breaking with this dominant view by exploring the constitutional resources within Confucianism and challenging previous conceptual frameworks. As we shall see, we can identify three main approaches to the issue of Confucian Constitutionalism in contemporary academia, namely, the institutional approach, the ritualistic approach, and the religious approach. This article will seek to review the respective contents of each approach to Confucian constitutionalism and discuss their main problems as well as examine the prospects of establishing a traditional Confucian/Chinese constitutionalism.     

论宪政的伦理之维

良好的宪政必然遵从和反映人类优良的伦理,这些伦理维度主要体现为：幸福是宪政的根本关怀,正义是宪政的永恒追求,博爱是宪政的核心价值,人权是宪政的终极目的,和谐是宪政的理想状态。高扬宪政的伦理精神对建设宪政中国具有重大的理论和现实意义。     

New Constitutionalism and the Social Reproduction of Caring Institutions

This essay analyzes neo-liberal economic agreements and legal and political frameworks or what has been called the “new constitutionalism,” a governance framework that empowers market forces to reshape economic and social development worldwide. The article highlights some consequences of new constitutionalism for caring institutions specifically, and for what feminists call social reproduction more generally: the biological reproduction of the species; the reproduction of labor power; and the reproduction of social institutions and processes associated with the creation and maintenance of communities. New constitutional governance frameworks fundamentally reshape conditions under which the care of human beings takes place. Caring institutions once governed by enabling professions geared to universal care are now determined increasingly by market values and private forces, and driven directly by the profit motive. This is one of the reasons why neo-liberalism is increasingly contested in both the North and the global South.     

The Constitutional Theatre

Constitutionalism is a typically modernist project in that it seeks to dictate social order by means of institutional design. This project, however, fails in two ways. Empirically, constitutionalism is confronted with the fact that constitutions have limited control over their social environment. Epistemologically, constitutionalism has great difficulty in finding a convincing foundational relation between abstract constitutional provisions and constitutional norms for concrete situations. On the basis of this poor record, it is hard to comprehend how constitutionalism remains such an influential factor in our polity. This article tries to explain our adherence to the philosophy of constitutional ordering by analysing its function in constitutional discourse. This revised version was published online in August 2006 with corrections to the Cover Date.     

Dialogue,Pluralism, and Change: The Intertextual Constitution of Bakhtin,Kristeva, and Derrida

In this article I show how the concept of intertextuality as developed by Mikhail Bakhtin, Julia Kristeva and Jacques Derrida can be applied to the political theory of constitutionalism. Such an approach carries with it the valuable democratic idea that all texts in society, including the political constitution, are in a dynamic relationship and reflect social pluralism. By analyzing and comparing intertextual theories, I develop the idea of the constitution as an open and emancipatory interpretative and textual category. I show how intertextual theorizing contributes significantly to the democratization of a modern liberal constitutional order, offering distinct strategies for progressive political and social transformation.     

THE ORIGINS AND GOVERNANCE OF COMPLEX SOCIAL SYSTEMS

The new science of Complexity explains that limited knowledge prevents societies from predicting and controlling their developments. But Complexity further suggests that nature uses the limits of knowledge to evolve, which turns an apparent obstacle into an opportunity to reevaluate governmental institutions. As in nature, the limits of knowledge lead social systems to evolve by individuating, liberating, and empowering their members. Societies individuate and liberate their members to probe environments and exploit opportunities. Societies empower individuals to globalize their findings which requires constitutionally constraining governmental powers. Societies that respect human rights thus gain selective advantage. Showing that what nature is models what societies ought to be, Complexity may finesse the “naturalistic fallacy” of Hume and Moore.     

从“行政主导”到“有限政府”——中国政府改革的方向与路径

政治理论和政治实践表明,"有限政府"作为"宪政"的核心概念,是善治良政的重要条件和原则。然而,行政主导下的全能政治一直被认为是中国政府政治的主要特点。本文在梳理"有限政府"理论的基础上,简要分析了中国宪政发展的历程,总结了中国法治建设的成就,指出了目前距离宪政目标的差距,从"有限政府"与"有效政府"的关系出发,论证了"有限政府"作为中国政府改革目标的合理性,并从限制政府自由裁量权、确立针对政府政治的有效监督、建立公共财政制度三个方面,说明了这一改革的基本路径。