This speech was given at the Department of Politics of National Taiwan University on 29 May 2025. It aims to discuss the genuine spirit of democracy from the perspective of legal philosophy, and its relationship with the rule of law and constitutionalism. Most academics prefer to discuss democracy as a substantive concept.
Dr Huang as a constitutional jurist, however, regards democracy only as a procedure, viz a mechanism. He argues that we only know how to use a mechanism well if we learn how it works. Democracy in his eyes is merely a procedure which lets citizens make political decisions; however, this procedure establishes the most righteous sovereignty in a nation, which not only justifies the constitution but also makes sense the rule of law.
TABLE OF CONTENTS
1. Introduction
2. The Philosophy of Democracy
2.1 Democracy Is a Procedure
2.2 Demo-Orientation Is Not Democracy
2.3 Democracy and Justice
2.4 Democracy and Elites
2.5 Democratic Manner
3. Democracy and the Rule of Law
3.1 What Is Law?
3.2 Who Should Be Entitled to Make Laws?
3.3 The Problem of Universals
3.4 Rule of Law Versus Rule by Law
3.5 The Presumption of Liberty
4. Democracy and Constitutionalism
4.1 Why Constitution Is Needed?
4.2 If the Constitution Does Not Represent the Will of the People
4.3 What and Who Can Justify the Constitution?
4.4 If the Constitution Does Not Limit the Power of the Ruler
4.5 Can We Have a Constitution without Democracy?
5. Conclusion
ABSTRACT
This speech was given at the Department of Politics of National Taiwan University on 29 May 2025. It aims to discuss the genuine spirit of democracy from the perspective of legal philosophy, and its relationship with the rule of law and constitutionalism. Most academics prefer to discuss democracy as a substantive concept. Dr Huang as a constitutional jurist, however, regards democracy only as a procedure, viz a mechanism. He argues that we only know how to use a mechanism well if we learn how it works. Democracy in his eyes is merely a procedure which lets citizens make political decisions; however, this procedure establishes the most righteous sovereignty in a nation, which not only justifies the constitution but also makes sense the rule of law.
1. INTRODUCTION
I have received diverse feedback from my honourable colleagues regarding my thoughts about democracy ever since I started sharing them, so let me start by giving you two examples which I found particularly significant. When I told Professor and Dr Alexander C. Fischer that democracy is not so much a substantive concept as a procedural concept in June 2018 in Seoul, South Korea, his response was: ‘Ja! I have never thought about it, but I agree in toto ’. However, when I told Professor Li the same thing in July 2016, I bought myself a ticket for an unforgettable six-year debate. His response was a concurring opinion in general, and you might not believe in this but what followed was a six-year debate on the subsistence of democracy as a substantive concept. I will not tell you who won this debate, but I am here to thank Professor Li for it because without this crazy six-year debate, this lecture would not have subsisted.
Democracy is a super complicated concept, and its relationship with the rule of law and constitutionalism is even more complex. Even autocratic regimes talk about democracy – but why? My brief answer is that democracy is politically too attractive to be abused or overlooked. No dictator on earth can assert publicly that democracy is unnecessary; all he or she can do is to play with phrases that conceptualise democracy, such as ‘democracy with Chinese characteristics’. As long as they can alter the concept of democracy, both the rule of law and constitutionalism can be conceptually tailored in line with their political needs, which is why we are living in a world where even the most notorious autocracies have constitutions, in which you can also find the subsistence of fundamental chapters on rights – if you look hard enough! What is even stranger is that they may rule country by law too, though some laws may seem quite odd from our point of view. If democracy as a concept is allowed to be redefined without limit, we must accept that strange things may happen, and for those who uphold democracy, the rule of law and constitutionalism please allow me to raise a pertinent question: are you sure that your tolerance towards the manipulation of its definition is always good for the spread of democracy as gospel? I am not, and I must warn you that I am not interested in spreading democracy, the rule of law or constitutionalism at all.
Perhaps Professor and Dr Alexander C. Fischer agreed with me because he was partially British-trained. As British-trained jurists we are both at ease with the importance of procedure. In this lecture I am going to encourage you all to learn about democracy and its relationship with the rule of law and constitutionalism. I hear that you as foreign students are learning my constitution now, and I am touched. For this reason, may I offer you the genuine spirit of democratism I learned from the United Kingdom as a theoretical supplementary for studying my constitution. God save you all – but long live my Republic.
2. THE PHILOSOPHY OF DEMOCRACY
Democracy is a word all public men use and none understand.1 – George Bernard Shaw (1856-1950)
I like George Bernard Shaw as much as I like Irish whiskey and Guinness: I simply love their unique Irish bitterness. Please order yourself a pint of Guinness, or a shot of whiskey – both, even – and then ask yourself whether you really understand the genuine spirit of democracy. I rather think you would agree with George Bernard Shaw. Democracy sounds noble, to the extent that even a notorious authoritarian regime such as that of the People’s Republic of China always talks about it, albeit with an abstract adjective phrase ‘Chinese characteristics’ affixed to the concept.2 Have you noticed that the official name of Kim Jong-Un’s Korea is ‘the Democratic People’s Republic of Korea’? Why do they not tell you that democracy is worthless? Why do they prefer to create a new form of democracy for the sake of propaganda? As far as I am concerned, the reason is simple: democracy is too noble and too attractive. But to paraphrase Shaw, it ‘is a word all public men use [ but only few ] understand’.3 Today, I will encourage you to become some of those the few who understand what democracy is. I will tell you all that democracy in my eyes is imperfect, but compared to all other forms of rule it is the best. I am not a normal professor of constitutional law who sees democracy as an almighty political institution. I therefore look forward to seeing you to learn the limits of democracy as well as its merits.
2.1 Democracy Is a Procedure
Democracy is a form of government whose citizens have complete freedom to choose which candidate they prefer to mess things up for them.4
I have always been a naughty individual, from an odd boy to a proper geezer. My friends have concluded that they love me because of my unique sense of humour, especially those friends who are jurists. So, my definition of democracy echoes the classic English quip above, and I disagree with any assertion that claims democracy as a ‘perfect or all-wise’5 institution. I would remind you all by the words of British philosopher Bertrand Russell (or to address him more formally, the Earl Russell), who opined that ‘a fanatical belief in democracy makes democratic institutions impossible’.6 Please do not trouble yourselves with too much substantive or even metaphysical thought about democracy in this lecture, and please do not show me how morally upright you are either; I have no doubt that you are all noble people. Let us be realistic and consider democracy only as a tool, through which I shall lead you to learn the genuine spirit of democratism. My definition – along with a supplementary observation on democracy – is as follows:
Democracy is no more than a procedure which lets citizens make political decisions by majority vote, and it is simply impossible to guarantee any decision made by human beings as correct or just, be it made in accordance with democratic procedure or by a dictator.7
Please do not be downhearted to learn that we human beings are imperfect. Our imperfection or even our stupidity makes us who we are. I am not promoting Catholic theology here. On the contrary, I am persuading you to give up perfectionism for life and make realistic choices by acknowledging that people are always making mistakes. By answering the following questions in relation to democracy versus autocracy, I believe that you all will appreciate democracy as an indispensable procedure for governance:
- Is it logical to argue that a political decision made by the people using democratic procedure would be more likely to be detrimental to the interests of the people than one made by a dictator (or oligarch) without the permission of the people? Are you sure that no decision your parents ever made was against your will?
- What is the procedure for correcting inappropriate political decisions in a non-democracy? If there is no such a procedure in an autocracy, how can the will of the people be respected and easily materialised? Are you sure that your parents can always be easily persuaded?
I am aware that some people believe that elites make fewer mistakes.8 I do not challenge that argument, but I must remind you that any so-called correct or wise decision made by the political elite may not be in your best interest unless the person who made it is under your control through a democratic procedure which is usually identified as an election – including recall as another form of election per se.9 No slave owner would make bad or stupid decision for his or her estate; however, this so-called correct or wise decision is usually correct or wise only if it is judged from the perspective of slave owner, not that of the slaves. It is sometimes true that the slave owner’s decisions may be in the slaves’ best interests, but it is always true that no slave is entitled to ask because no slave owner is obliged to give. By the same token no slave owner can be forced to alter his or her decision until the Spartacus moment,10 for no right to redress the wrongs and the due procedure that leads to the outcome of the said decision has been given to the slaves. If you agree with that kind of governance, you are no different than a slave of your government, and all you can do is to plead for your ruler’s mercy.11 On 11 November 1947 Sir Winston Churchill argued in the House of Commons of the United Kingdom that:
Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time; but there is the broad feeling in our country that the people should rule, continuously rule, and that public opinion, expressed by all constitutional means, should shape, guide, and control the actions of Ministers who are their servants and not their masters.12 – Sir Winston Churchill (1947)
2.2 Demo-Orientation Is Not Democracy
There is a kind of cold called your mother thinks that you should feel cold.13
I suppose that we have all experienced times when our mothers asked us to wear more clothes because they themselves felt cold. Whether we felt cold or not is irrelevant in such situations because mothers believe that we should feel cold when they do. We may make a caustic response to such a phenomenon in Chinese, but our mothers’ maternal behaviour reminds us that there will always be a gap between what the people need and what the decision-maker thinks that the people should need. At this point I should perhaps tell you that my mother still tells me to wrap up warm even though her son is a 45-year-old constitutional jurist. She is aware that she has no chance of defeating me in debates, but she still dares to infuriate her unbeatable son in various small ways, and I know better than to question her motives. Debating with a constitutional jurist is no laughing matter, even though my mother is a Chinese linguist. In this respect, she can put forward quite a persuasive argument that she knows what is best for her son, even though that is obviously not what her son wants.
The people are superior to the spirits of the land and grain, but the king is inferior to both the people and the spirits of the land and grain.14 – Mencius (372-289BCE)
The above quote from Chapter Jin-Xin II of Mencius, the classical Four Books of China, shapes traditional Chinese understanding of governance into demo-orientation (Min-Ben), a political thought which misleads people into thinking that democracy still subsists when rulers decide in favour of the people’s interests without their consent.15 I find this hilarious, if not downright ridiculous, because that political thought assumes that we must feel cold when our mothers think that we should feel cold. To put it more plainly, this is nothing more than a theory of ‘democracy’ which regards your mother’s opinion as being yours. What kind of simpleton would consider this theory, which is based on illogical presumption, as a form of democracy?
Democracy and demo-orientation (Min-Ben) are two different things. Democracy is just a tool for achieving rule (-cracy) by the people (demo-). It is a set of procedures that prevents the farcical notion that we must feel cold when our mothers think that we should feel cold from happening in governance. We use democratic procedure to ensure that officials remain under control through election and recall.16 We also use democratic procedure to inform them of the will of the people via parliamentary legislation,17 and order them to administer in accordance with our common will, by law.18 In genuine democracies, law is regarded as the formalised will of the people because it is set in place by the people or their representatives via democratic procedure. For this reason, law is supreme19 and the demand for the rule of law20 makes sense.
I do not contend that all decisions made by democratic governments are good or pro bono publico decisions, nor do I argue that autocratic governments cannot make good or pro bono publico decisions. In fact, my mother has made many good decisions for me throughout my life, whilst I myself have made many decisions that simply messed things up. But problems happen when things go wrong, not when they go right. If there is no procedure – apart from rebellion,21 which is merely a reprisal against procedure – to protect the people against the decisions made by their government, or that procedure is too difficult to initiate (such as enacting an inordinately difficult procedure to initiate a recall election), the people are toast because they have no legal right to force their government to withdraw inappropriate decisions, thus rendering all decision-makers in such cases morally encouraged instead of legally bound to decide in favour of the interests of the people. This unfortunately is the problem with demo-orientation (Min-Ben), which means that it can never be identified as another form of democracy.22 I can yell at my mother when she makes an inappropriate decision for me, but this is apparently not the due process. But do you have the courage to shout at your decision-maker when he or she is a dictator? Democracy subsists when there is a procedure for the people to call off any government action they dislike. British constitutional jurist Albert Venn Dicey wrote:
The fact that the most arbitrary powers of the English executive must always be exercised under Act of Parliament places the government, even when armed with the widest authority, under the supervision, so to speak, of the Courts.23 – Albert Venn Dicey (1915)
2.3 Democracy and Justice
Democracy is a slow process of stumbling to the right decision instead of going straight forward to the wrong one.24
I agree in principle with the above English saying. However, as a constitutional jurist who also majored in philosophy at the university level (BA in Philosophy), a set of questions I must raise right now are: What is meant by a right or good decision? How do you identify it? By what (substantive justice) and whose (procedural justice) standards do you measure it?
Let us look at the substantive justice issue first – and let me start by picking a fight: is a decision that reflects the interests of 51% of the people at the cost of harming the remaining 49% a right or good decision? Given that it is de facto impossible to pay no price for making any decision, this question cannot be evaded. When a policy of reducing property speculation is enacted, landlords will be harmed, and when a quantitative easing25 (QE) policy is made, consumers will need more money to buy houses. It is extremely naïve to think that nobody will be harmed when a policy is made, and even if it is true, are you sure that you are going to accept a policy which only responds to the interests of 51% of the citizens as a right or good decision? If you declare that 51% is insufficient, to what percentage does it take for a decision be identified as right or good ? In other words, by what substantive standard can a right or good decision be defined? In fact, if you insist on the subsistence of right or good decision, I will salute you. However, I must remind you that substantive justice is something we all can feel, but no one knows what it is substantively. Feeling is one of the most unreliable things you can do, because everyone feels differently. What you think is just is neither substantive justice nor justice of the majority, but only your personal thoughts about what is right.
I am sorry to tell you that no one really knows what substantive justice is about. But it is possible to know what justice of the majority is about via democratic procedure. Please understand that I am not saying that justice of the majority is substantively just; if that is true, no amendment of law would ever be needed. What I am trying to say is that we can only make a choice between justice of the majority and that of the minority, and I am not convinced that choosing justice of the minority is smart. Democracy is superior to autocracy (and oligarchy) for this reason, because it determines what justice is according to the sense of justice of the majority, and sets it into law. Though it is philosophically impossible to be perfect, it is still better than determining what justice is in line with the will of the ruler(s) as the few by whatever ruling mechanism, including by law. One’s own imperfections does not perfect the alternative, so even the occasional26 tyranny of the majority27 would never make dictatorship an ideal institution.
It is true that democracy considers the sense of justice of the majority to be just, but that so-called justice is only just in the sense of procedural justice. As it is impossible for us to know what substantive justice is, we are left with no alternative but to make a choice between the sense of justice of the majority and that of the minority. The sense of justice of a great man is, by nature, his or her personal and subjective faith in justice, be that great man a political leader, judge, scholar or even religious or moral leader. You can choose to believe in whatever they said, but you should do it voluntarily, because your opinions are equal to theirs. This is the genuine spirit of democratism. Lastly, I will remind you of the danger of personal or hero worship according to Lord Acton’s maxim, and ask you to make choices by and for yourselves from this point on:
Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority.28 – Lord Acton (1887)
2.4 Democracy and Elites
Democracy is a form of government where you can say what you think even if you don’t think.29
I was a student of Professor Li 27 years ago. Though I stole a lot of ideas from him, we still read the above English quip differently, and I am sure that he will develop his argument of equality as the substance of democracy in line with it. You should consider accepting his noble argument. But I see democracy as a right-based institution and nothing more, so in my opinion the quip only tells that democracy must tolerate all opinions – including insane ones – because all citizens are granted the right to make political decisions according to their respective will. I agree that this is equality, but the focus should be more on right rather than on equality, for there would have been no equality had there been no right. We sense the subsistence of equality only when we all are granted the same rights under the law, viz equality before the law,30 and it is generally meaningless to talk about equality beyond the law because that is something you can do nothing about. I might be smarter or more stupid than you, but that is of no concern to equality; that is merely a fact, unless you intend to care to use it to eliminate anyone different from you. I should remind you all that being different does not inevitably constitute inequality.
To put it plainly, democracy means that we are legally entitled to make decisions through majority vote. Given that such an entitlement also means that we have the right to be foolish, no one should be legally punished for advocating insane proposals. That is why freedom of thought, conscience and speech are fundamental precepts of democracy.31 We should therefore tolerate ridiculous ideas, because legal entitlement is not determined according to a person’s intelligence. We weed out insane or ridiculous ideas by majority vote, not through violence. I know that you are elites from your societies. So am I. But being an elite does not entitle you to more legal rights; you are still one of the common people of your nation. We as elites lead our people by persuading them to support our smart ideas through the electoral system, not by asking them to subsume their actions to our greater ability. Please understand that democracy means that our people offer us a job, that all public services are jobs rather than statuses, and our social statuses shall always remain as citizens, even if you become the president of your country.
It is ridiculous to claim that democracy does not pursue elite politics,32 because that is no different from claiming that people in democracies prefer to vote for simpletons. People may vote for simpletons, but they will not vote for candidates who they themselves believe to be simpletons. There is always a gap between subjectivity and objectivity, so it is logically erroneous to identify subjectivity according to unsatisfactory results. I would claim that all political institutions – including democracy and autocracy – pursue elite politics, and what really matters is which institution has the better chance of achieving the goal. Would that be autocracy? I doubt it.
Let us be super realistic again by admitting that nepotism33 is something that cannot be entirely eradicated from democracies or autocracies. If it can only be controlled, which institution would have better chance to keep nepotism under control? Would it be easier to control nepotism through an institution that requires only the consent of the few? If we all agree that nepotism is poisonous to elite politics, and it stands a better chance of being controlled by the consent of the many, would it therefore be logical to argue that autocracy would have better chance of achieving the goal of elite politics?
2.5 Democratic Manner
Democracy means, not ‘I am as good as you are’, but ‘you’re as good as I am’.34 – Theodore Parker (1810-1860)
I am very curious to know if hara-kiri or seppuku is the price of misjudgement. Is there anyone in our class here who dares to insist that his or her idea is unchallengeable? This is a funny but philosophical question, because it reveals an embarrassing fact, that no one knows what the eternal truth is.35 What we consider right or just is in fact nothing more than our respective subjectivity, and we do not actually know whether our subjective opinion is objectively correct. Professor Li would tell you that I am an analytic philosopher, but I am actually here to tell you what the fundamental attitude of a democrat should be.
If you are a genuine democrat, you must accept that your idea may be wrong even whilst you are advocating it. What I mean is that you should realise that your idea may not be the best solution. Why is it so important for a genuine democrat to think this way? Because you would only be motivated to listen to and then accept other proposals if you did not insist that your idea is the eternal truth or the best solution. If you consider your idea on a subject to be morally right or objectively correct, you would consider my idea as either immoral or wrong if I was against your opinion, so how could you have a motive to consider my proposal? Why would anybody be interested in a proposal suggested by an immoral person or a fool? Democracy demands rational discussion, and how can you discuss anything with me rationally when you consider me as morally a bastard or practically an idiot?
Please accept my apology for using unparliamentary language. If I could persuade you all without using profanities that it is essential not to judge the opposition by your own moral standards, nor to insist that you are objectively correct, I would choose better words. But you will never fully realise how your substantivity – especially your moral standards – becomes an obstacle to your democratic temperament if I do not puncture the herd mentality that we always use to hypnotise ourselves into believing that our respective standards or sense of justice should be universal. This kind of self-hypnosis makes us believe that we are right to judge people according to our subjective standards, and any person who holds different opinions runs counter to the universe or the eternal truth, thus making him or her a bad figure. I must warn you all that anybody who regards his or her substantivity to be the eternal truth is a potential dictator. I must also warn you all that we probably all have a tendency towards dictatorship unless we learn to isolate our respective substantivity from the law of democracy as a form of objectivity.
Like I said before, it is wrong to claim that democracy can bring us the eternal truth. However, it can tell us what the sense of justice of the majority is, which is a form of objectivity per se, or as close as we can get to it. Even though such objectivity is far from the eternal truth, it is a lot better than self-hypnosis. It is indispensable to our political system because it is almost the only form of objectivity we can access in practice, and I might suggest that the word ‘almost’ in this sentence is completely redundant.
Once we know the nature of democracy, we know its limits and the manner in which it is used. Democracy is a procedure which lets citizens define the sense of justice of the majority, and no one can really guarantee that it will bring us the eternal truth. We wish it could, but we know that it may not produce what we wish it would. However, a good approach to using democracy as a tool can increase the quality of this form of objectivity, and if my sincere advice is needed, I would suggest you all that:
- Rational discussion would make the sense of justice of the majority more just, even if no one knows whether a decision made under rational discussion is the eternal truth or not. Maybe it is a wise idea to give up pursuing the eternal truth in legal-political science, as it is an overly subjective concept. It reads nobly, but is too abstract.
- Politeness is crucial to democracy because it advances rational discussion. No one can make a rational decision after a fierce fight.
3. DEMOCRACY AND THE RULE OF LAW
[W]herever law ends, tyranny begins.36 – John Locke (1689)
John Locke published Two Treaties of Government in the same year that the immortal Bill of Rights 1689 was passed. It can be said that the book represents English political thought during the Glorious Revolution. I would say that the Glorious Revolution is the most important constitutional moment,37 not only of England but also of all mankind, because it was the first time in human history that the laws of democracy prevailed over the powers of the crown.38 It is no exaggeration to say that the first constitutional nation in the modern sense was created by the immortal Bill of Rights 1689 because it declares:
That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;
That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal.39
Most of Taiwan’s legal scholars see no relevance between constitutionalism and the rule of law. They also do not see any relevance between democracy and the rule of law. But the prime British (or English) constitutionalism is the rule of law,40 in which democracy plays the most important role, because there would have been no rule of law had there been no democracy.41 Today, I will try to explain the theoretical linkage between democracy and the rule of law, and I would sincerely recommend all of you to read the immortal Bill of Rights 1689 again after class. Through the text of the immortal Bill of Rights 1689, I am sure that you will learn the genuine spirit of the rule of law.
3.1 What Is Law?
It is the essence of a legal order that it tries to bring about lawful and to prevent unlawful behavior by coercive measures – that is, by the forcible deprivation of life, freedom, property or other values as a reaction against a violation of the order. The coercive character of the measures concerned is established by the fact that they are applied without or even against the will of the person against whom they are directed and that physical force may be used in case of resistance. In this sense, legal sanctions are coercive reactions against a violation of the law.42 – Hans Kelsen (1954)
The first thing that needs to be understood is that law, including the constitution as a superior or ad hoc law,43 is a coercive norm44 created by the sovereign.45 Though its creation may be inspired by other kinds of norms, such as morality or ius naturale,46 law is by nature a man-made norm established under the authority of the sovereign owner, in accordance with his, her or their will.47 I expect that some of you may have heard of the argument of natural law, viz ius naturale,48 but there is a question that must not be evaded before advocating natural law: who is entitled to decide what is supposed to be natural law? If your answer is the same as mine, which is that neither your subjectivity nor mine can decide what natural law is in democracies, you affirm the following two arguments:
- Ius naturale is overly subjective, and can only become more objective if it is agreed by the majority. The procedure that helps us to identify what is natural law more objectively is exactly the procedure of democratic lawmaking, which makes natural laws positive laws once they have been identified as laws in practice.
- You agree that only the sovereign owner can decide what is law by accepting that neither you nor I as individuals can decide what is law in democracies. People as a collective can decide what is law, because we as a whole are sovereign owners. However, neither you nor I as an individual am the sovereign owner.
In a nutshell, I am not arguing that natural law is useless or nonsense. What I am arguing is that the role of natural law would be clearer if the question of what natural law is could be considered simultaneously. This is epistemologically crucial because if any one person was entitled to unilaterally determine what natural law is supposed to be, there would be no rule of law. If a judge is allowed to decide what is natural law, he or she would be able to create a new and ex post facto law in court, which would surprise you as either a claimant or a defendant because it would be impossible for you to be aware of that so-called natural law in advance. In other words, if what is natural law is not procedurally determined in advance, it would be no different from accepting the abuse of authority – even if that authority referred to the courts; and if what is natural law were to be procedurally determined in advance, could anyone tell me the difference between natural laws and positive laws? Please allow me to clarify my stand on the issue of ius naturale. I sincerely believe that all parliaments should make laws in line with natural law, but I am bitterly opposed to any assertion of natural law in the process of law enforcement. Law is not a sweet girl who can be dressed up at will, it must be seen for what it is, bitter or sweet, because it is very dangerous.49 Sir Francis Bacon wrote:
Judges ought to remember that their office is jus dicere and not jus dare; to interpret law and not to make or give law.50 – Sir Francis Bacon (1612)
You did not hear me wrong. I, as a constitutional jurist, am trying to persuade you all that law is a very dangerous norm in nature because it is coercive.51 We cannot therefore allow it to be created randomly, such as by an official or a judge (through jus dare interpretation, which is usually called ‘judicial activism’). I expect that some of you would argue that it is impossible to give decision-makers absolutely no discretion, and I would agree. But the following question is equally important: should a decision-maker be permitted to enjoy ultimate discretionary power when the law is silent, to the extent that he or she is de facto creating a new law? Please think carefully before allowing anyone such a power, for it is no different from returning sovereign power (the power to make laws is sovereign power52 ) to the king. Anyone who enjoys unlimited power alone is already the king of that specific realm, be his or her title king, president or judge. Considering how dangerous the law can be, I am not sure this is a good idea, nor is accepting it as the practice of the rule of law. You may be interested to know that I earned my doctorate (PhD) by studying judicial activism, but I am here to persuade you not to believe in judicial activism as a flawless institution. Lord Bingham of Cornhill held:
The rule of law does not require that official or judicial decision-makers should be deprived of all discretion, but it does require that no discretion should be unconstrained so as to be potentially arbitrary. No discretion may be legally unfettered.53 – Lord Bingham of Cornhill (2010)
3.2 Who Should Be Entitled to Make Laws?
In England we are accustomed to the existence of a supreme legislative body, i.e. a body which can make or unmake every law; and which, therefore, cannot be bound by any law. This is, from a legal point of view, the true conception of a sovereign.54 – Albert Venn Dicey (1915)
Sovereignty is a concept Professor Li disapproves of because it obstructs the development of international law. I, however, believe in it because the genuine spirit of democratism can be learned from understanding sovereignty. That is not to say that Professor Li is not so much a constitutional jurist as an international law jurist, but it is true that I am a pure constitutional jurist who considers the modern Westphalian international law system as an international moral system at most. Please consider my opinions only in the realm of constitutionalism and feel free to ignore my legal-professional bias against international law. That is not to say that my bias is nonsense, but it is not a good starting position to study international law and international relations from if you are a beginner. Let us begin with British legal philosopher Herbert L.A. Hart, who claimed in The Concept of Law in 1961 that:
[T]here could only be legal limits on legislative power if the legislator were under the orders of another legislator be sovereign. If he is sovereign he does not obey any other legislator and hence there can be no legal limits on his legislative power. […] The theory does not merely state that there are some societies where a sovereign subject to no legal limits is to be found, but that everywhere the existence of law implies the existence of such a sovereign. On the other hand the theory does not insist that there are no limits on the sovereign’s power but only that there are no legal limits on it.55 – Herbert L.A. Hart (1961)
What Herbert L.A. Hart is saying is that there ought to be a supreme lawgiver in a society, and we customarily address that person or body as the sovereign. Unless you are crazy enough to believe that people can survive without law in a state of anarchism,56 the very subsistence of a supreme lawgiver is just something that is unavoidable. As far as I am concerned, the problem does not lie in the subsistence of a supreme lawgiver; the problem lies in who – the monarch, the dictator, the oligarchs, the aristocrats or the people – should be in that position. In a nutshell, it is philosophically not ‘being’ that matters, it is ‘who is that being’ that matters. Please allow me to persuade you all by quoting William Shakespeare (with minor changes):
To be, or not to be; that is [not] the question [right here].57 – Hamlet (1599-1601)
I am now asking you to make a very pragmatic choice as to who should be the sovereign of your country. Would you choose the monarch, the dictator, the oligarchs or the aristocrats if it was up to you to decide? Considering that law is a very dangerous norm because it is coercive, would it be a realistic choice to give the supreme lawmaking power to the few, and let them decide the coercive norm of society? I sincerely recommend you all to consider the following theoretical situations, because they have all happened to us, in our respective countries, during our history:
- It is impossible to enact a law under which no one would be harmed. If I were the exclusive supreme lawmaker, I would make sure that my private interests would never be harmed by any laws I made.
- If my private interests were harmed by a law, I would change that law either ex ante or ex post if I were the exclusive supreme lawmaker.
- If I were the exclusive supreme lawmaker, I would change morality by lawmaking. For example, I would legally define patriotism as the unconditional support of my regime.
- Have you ever thought about how dangerous it would be if you had to comply unconditionally with laws enacted by me exclusively?
I expect that some of you would argue with me that no democracy on earth could make a hundred percent sure that people would never be betrayed by their representatives. Since we have talked about the nature of democracy as merely a tool, my answer to this question is that you should not hesitate to punish your representative using democracy if you think he or she has betrayed you, even if you are overly sensitive. In a genuine democracy, it is your representative’s responsibility to ensure that you feel you are not being betrayed. It will never be your responsibility to be a voter who is as well-read as a constitutional jurist, though I do not intend to advise anyone not to develop their democratic temperament. There is no fundamental distinction between being your legal counsel and being your representative in parliament; both are jobs that you have given them, not statuses they have earned.
3.3 The Problem of Universals
The problem of universals58 is a classic philosophical debate that aims to explore the subsistence of universal facts. It has been applied since ancient Greek times to help us learn the very nature of a concept, though it may itself appear to be difficult to understand. For example, you may agree that Jaguars and Land Rovers are both cars. Your thought here is categorised as ‘realism’ in philosophical terms. This means that you believe that there is a universal fact, viz car, that applies to a Jaguar and a Land Rover. However, it may feel strange trying to assert that living people and dead people are both people in many circumstances. For example, you may believe that as far as the protection of women is concerned, it would be insane to argue that dead women are included. Does your former opinion contradict your latter opinion? The answer is no in philosophical terms, because what you are arguing in the latter case is that it is insane to claim that there is a universal fact connecting the living with the dead. Such way of thinking is categorised philosophically as ‘nominalism’, which claims that both realism and nominalism make sense and only someone who inappropriately applies either philosophy is crazy. Here I should let you know that realism was mainly developed by Plato, and nominalism by Aristotle: which of the two would you consider a simpleton?
Let us continue our legal-philosophical debate concerning the problem of universals by asking whether there a universal fact connecting the laws of democracies and those of autocracies? Is it true that all laws are the same in nature, regardless of whether they are enacted in accordance with democratic procedure or by the authorities unilaterally and arbitrarily? Which philosophy – realism or nominalism – will you side with? As far as I am concerned, deciding what philosophy should be applied must be determined by the topic, because all arguments are made with premises. It is inappropriate to make an argument without mentioning the premise first, and it is also incorrect to consider another person’s argument without knowing the premise of that argument first, because it would lead to constant misreading and overinterpretation. If the topic concerns ‘the law as a coercive norm’, I will side with realism because both kinds of laws are coercive. However, if the topic asks ‘shall rule by the laws of autocracies be regarded as another form of the rule of law?’, I will side with nominalism and reiterate that the two kinds of laws are different in nature because of entirely different lawmaking processes and purposes.
The law shall be legislated [only] by the monarch and obeyed by [all the] subjects.59 – Guan Zhong (720-645BCE)
As I have already said, law is very dangerous because it is a coercive norm. Its control can be divided into two categories: legal control over the authority (Yu-Wang) and legal control over the society (Yu-Min). So, can any one of you tell me what kind of legal control was Guan Zhong talking about? Apparently he was talking about the control over the society (Yu-Min) by law only. This is a common way of thinking in autocracies; when the supreme lawmaking power of a nation lies in the hands of the absolute monarch, the dictator or the oligarchs, what kind of law would you expect him, her or them to make? Let me give you a vivid but modern example:
The socialist system is the fundamental system of the People’s Republic of China. Leadership by the Communist Party of China is the defining feature of socialism with Chinese characteristics. It is prohibited for any organization or individual to damage the socialist system.60
It is not my intention to claim that legal control over the society (Yu-Min) lies outside the purpose of lawmaking in democracies. However, it is not its only purpose. What makes a democracy so different from an autocracy is that the laws of a democracy are mainly aimed at controlling the power of the authority by law,61 whereas the laws of autocracies only aim to control the society, such as Guan Zhong’s above comment. The laws of democracies not only bring us state order but also prevent the abuse of power, whereas the only function of the laws of autocracies is to provide state order in line with the will of the rulers.62 Now, please answer my question seriously: are you sure that the laws of democracies and those of autocracies are conceptually identical as far as the rule of law is concerned? Let Lord Bingham of Cornhill guide you all to the genuine spirit of the rule of law:
[T]he core of the existing principle of the rule of law: that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.63 – Lord Bingham of Cornhill (2010)
3.4 Rule of Law Versus Rule by Law
Though I obtained my doctorate (PhD) at the University of London, my PhD supervisor, Professor and Dr Alexander C. Fischer, was a German from only Baden (not Baden-Württemberg). Rule of law versus rule by law has always been the subject of the first class of his constitutional law course. I accept his idea, but with some minor amendments. Like Professor Li, Professor and Dr Fischer is also a judicial activist, whereas I am apparently an inactivist because I have also been influenced by Lord Bingham of Cornhill. Teachers would always influence us, but it is impossible that we will all hold identical opinions. The reason why we may hold different opinions from our PhD supervisors without being butchered is mainly because of their democratic temperament, which states that no self-respecting teacher would ever insist that he or she represented the eternal truth. Professors Li and Fischer tolerated my aberrant opinions, just like Lord Keynes (John Maynard Keynes) tolerated different opinions from Fridrich August von Hayek. The democratic manner makes us powerful because it gives us freedom of thought.
However, it is less well-known that the key ingredient of the rule of law is democracy, which fundamentally distinguishes the rule of law from the rule by law. If we consider the idea of law as a coercive norm only and disregard any discrepancy in lawmaking between democracies and non-democracies, we might be surprised to learn that there is no difference between legal rule (Fa-Zhi) in democracies and in non-democracies when they all administer completely according to law. We do not even need to create two different terminologies, viz rule of law and rule by law, to distinguish one from the other. There is only one fundamental ingredient that makes the rule of law distinguishable, and I shall define that as follows:
- The rule of law is a legal system whose citizens have the right to choose what social value shall become law, whereas citizens under rule by law have no such rights because lawmaking powers in these countries are a privilege of the ruling class, not a right of the people.
- Nominalism should be applied because the above distinction makes rule of law and rule by law completely different in nature. It is naïve to assume that the demand for absolute compliance with laws under the rule of law is the same as it is under the rule by law.
Let us go back to what Professor and Dr Fischer taught me concerning rule of law versus rule by law in his constitutional law course. I have no intention of claiming that his teaching is of no value; on the contrary, I must inform you that my thoughts on the subject is rooted in his teaching, and that my opinion is just an upgrade of his. His teaching can be understood according to the following quotes:
The most narrow, formal definition of the rule of law is sometimes described as ‘rule by law’. The requirement that law must be abided by forms the narrowest rule of law concept. This demand shapes the first element of legality, to which other elements can be added. ‘Rule by law’ is necessary in order to fulfil the first aim of the rule of law: to provide order in society. However, since the rule by law is perfectly compatible with nepotism, it hardly counts as a definition of the rule of law.64
For the rule of law to flourish in a policy, it is not enough that those in power rule by law – exercise their power for the most part through the instrumentality of the law – because the rule of law demands reflexivity: those who use law in their exercise of power must likewise be subject to it. The rule of law obtains in a community just when law rules.65
The first question we should answer is: if the rule by law is considered as ‘the narrowest rule of law concept’66 because it ‘[fulfils] the first aim of the rule of law’,67 what value is provided by the complete rule of law in its own right? Professor and Dr Fischer failed to answer this question when he taught me, and it took me years to realise that the ultimate value the rule of law provides is the power (and right) to ‘make or unmake every law’.68 When people are entitled to possess lawmaking power, the problem of reflexivity 69 will automatically be solved, because the ruler and the ruled are already one under such a legal framework. Let us now go on to the second question – and I am confident that you all know the right answer: what key ingredient ultimately distinguishes the rule of law from the rule by law?
3.5 The Presumption of Liberty
[T]he end of law is not to abolish or restrain, but to preserve and enlarge freedom.70 – John Locke (1689)
The relationship between laws and individual freedom can be understood in two opposite ways. John Locke represented the first approach, arguing that everything which is not legally prohibited is legally allowed (or simply, lawful). The second approach was observed by Sir John Laws, late Lord Justice of Appeal of the United Kingdom. He held in his last book The Constitutional Balance that the second approach not only represents how laws are viewed in the eyes of non-democracies but also shows how non-democracies deprive people of freedom through law enforcement:
It is notable that in totalitarian regimes these positions are generally reversed: for the individual citizen, everything that is not allowed is forbidden (or liable to be forbidden).71 – Sir John G.M. Laws (2021)
Of course, Sir John Laws stood with John Locke by giving Locke’s position a significant name: the presumption of liberty.72 I like that very much, because the name itself represents the genuine spirit of the rule of law. If we consider ourselves to be free, no one’s freedom shall be limited without law. No authority is therefore entitled to forbid anything without law. Law may therefore be considered as the guardian of our freedom under the presumption of liberty, and that is why John Locke wrote in Two Treaties of Government that:
[W]here there is no law, there is no freedom.73 – John Locke (1689)
Though I have no doubt that the presumption of liberty is essential to the rule of law, it is still worth pointing out that John Locke underestimated the problem of legal rule (Fa-Zhi). If law can be enacted by any person alone, be that person an absolute monarch, a dictator, an official or a judge, there would be no difference between rule of man and rule of law. He who has power to create law alone and instantly destroys the rule of law, because he makes legal rule (Fa-Zhi) and man rule (Ren-Zhi) identical in practice when whatever he says is law. I argue that John Locke underestimated the problem, because whoever can decide what is law – including what defines the due procedure of lawmaking – really matters. John Locke and most British jurists are accustomed to having an assembly that makes law in line with due procedure for them. They probably considered it unnecessary to reiterate how important the subsistence of Parliament to the rule of law is for this very reason. But we are not British, so we must reaffirm it again and again.
I can use a personal story as a good example to explain why my argument is crucial to the rule of law. I was once asked by a security official not to take any photos on the public street in front of the law school of the Ateneo de Manila University, because all the buildings around me were private properties. His approach to law enforcement was absurd, because most buildings in the world are privately owned. If there is such a law in the Philippines, it would mean that no photo could be legally taken on any public street in Manila. How could that be possible? I therefore demanded to see his supervisor and asked the supervisor to show me the law. I told the supervisor that I had no intention of breaking the laws of the Philippines. However, the fundamental principle of the rule of law is that no single person has the power to decide what is law on their own. Anyone who tries to do so must show me the subsistence of the law, or there is no law on which to base their illegal administration. My request was denied, in exchange for the permission to take photos only on my mobile phone, and not using my digital camera – what a bargain! Of course, I rejected the idea. That supervisor was not a legal professional, so he made the worst possible decision and told me that he was offering the bargain because there was no such a law in the country, which meant that his bargain was directly against the law. That meant that he could not bargain if the law subsisted, and he could not order me not to take any photo on the street if there was no law to back him up. Neither of his approaches was legal.
In a nutshell, the presumption of liberty indicates that it is illegal to deprive us of our freedom without law. No government should be allowed to do that. However, it is equally important that no person should be entitled to make laws on their own, and only parliament (as opposed to government) can decide what is law, using due democratic lawmaking procedure. Remember that story of mine about what happened in the Philippines, as it tells you how to deal with illegal administration in line with the genuine spirit of the rule of law.
4. DEMOCRACY AND CONSTITUTIONALISM
The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.74
In A and Others v SSHD, Lord Hoffmann offered the above obiter dictum, through which he provided multiple aspects for us to understand the genuine spirit of constitutionalism. This case concerns Section 21 of the Anti-terrorism, Crime and Security Act 2001, which was a discriminatory provision targeting foreigners enacted by the UK Parliament. I shall not go into detail, you can find the case online if you are interested. The key point is how Lord Hoffmann handled the case in line with the genuine spirit of constitutionalism. The first aspect of his opinion is that it should be for the present democracy to determine what is the constitution, so he claimed that ‘[i]t is for Parliament to decide whether to give the terrorists such a victory’.75 But he also reminded the democracy of the time that the case would override the principle of equality as one of the constitutional values of the United Kingdom if Parliament insisted on passing such a law, possibly doing more harm than good. He therefore urged Parliament to reconsider its decision, saying that ‘[i]t is for Parliament to decide whether to give the terrorists such a victory’.76 This approach is rarely seen in most of the world’s countries, but as far as I am concerned it represents the most mature level of constitutionalism. Let me help you to learn the spirit behind Lord Hoffmann’s remarkable decision in the final part of our lecture.
4.1 Why Constitution Is Needed?
Considering, to begin with, only a national legal order, the constitution represents the highest level of positive law. ‘Constitution’ is understood here in its material sense, that is, we understand by constitution the positive norm or norms which regulate the creation of general legal norms. The constitution may be created by custom or by a specific act performed by one or several individuals, that is, by a legislative act. In the latter case it is always formulated in a document and hence called a ‘written’ constitution, in contradistinction to the ‘unwritten’ constitution brought about by custom. The material constitution may consist partly of norms of written and partly of unwritten law. The unwritten norms of the constitution may be codified; and if this codification is the work of a law-creating organ and therefore acquires binding force, it becomes a written constitution.77 – Hans Kelsen (1967)
Before we discuss Hans Kelsen, I should let you know that I am not interested in talking about ‘what is constitution’. Many German and Austrian constitutional jurists like the topic, but I think it is more meaningful to talk about ‘why constitution is needed’ and I do not accept overly general answers from bookworms. Again, this is only my prejudice, and I have no intention to assert that the study of ‘what is constitution’ is worthless. If you are interested in learning ‘what is constitution’, I would recommend the book Verfassungslehre by Carl Schmitt.78 However, I should warn you that Schmitt was not a positive character, so please do not accept all his opinions as representing the genuine spirit of constitutionalism. This warning originated from Professor and Dr Alexander C. Fischer, who always asked ‘Schmitt of when’ before talking about Schmitt with me. He was conscientious about his teaching by always asking this question, because Schmitt changed positions from time to time throughout his life.
The above Hans Kelsen quote comes from his book Pure Theory of Law. It was originally written in German, but it is very odd that the German copy of the book, Reine Rechtslehre, is not easily found these days. Should we blame the Führer for this? In Pure Theory of Law, Kelsen defined constitution as ‘the highest level of positive law’,79 which implies that it is a man-made norm established under the authority of the sovereign owner. As far as I am concerned, this is an important concept and it leads us to rethink the question of who the sovereign owner of a country ought to be. If your answer is the same as mine, that only the people should be the sovereign owner, you will realise that parliamentary supremacy80 is the only logical institution because it is contradictory to claim that parliament, as the people’s representative, is subject to the constitution if you claim that the sovereign owner ought to be the people. If the constitution represents the highest level of the will of the people, it is worthless if it contradicts the common will of the people. As such, it is totally illogical to bind parliament constitutionally. In R v Secretary of State for the Home Department ex p Simms, Lord Hoffmann held that:
Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. […] The constraints upon its exercise by Parliament are ultimately political, not legal.81
I know what you want to ask: does Dr Huang advocate an unwritten (and soft) constitution? The proper answer to that question is yes and no. I advocate it only when a country’s democracy is mature enough to have an unwritten (and soft) constitution. As far as I am concerned, an unwritten (and soft) constitution is a more advanced form of constitutionalism, as it perfectly represents the ultimate supremacy of democracy, which is the unchallengeable cornerstone of modern constitutionalism. I strongly suggest that all democracies worldwide should develop their respective constitutionalism(s) to such a level. However, I support having a written (and rigid) constitution at the same time. If we regard the limits of a written (and rigid) constitution only as special procedural arrangements that are designed to prevent our democracy from going insane, then they are not bad institutional designs at all, even though they are logically paradoxical. In a nutshell, I would tell you that I disagree that parliament, as ultimate representatives of the people, ought to be bound by the constitution because it should be for parliament to decide what the constitution is. However, I would agree that a more difficult democratic procedure can be settled for the sake of security, and parliament should follow that due procedure before it is abolished. This is why constitution is necessary, because it tells us what the due procedure is.
4.2 If the Constitution Does Not Represent the Will of the People
If I ask you whether it is acceptable to misrepresent or violate the law in a situation where the law is procedurally too difficult to modify, what will you say? The answer to this question determines whether you regard the compliance to law to be conditional or not. I can tell you my answer: I will not comply fully with the law unless it is the law of democracy, but I demand the unconditional compliance of the law of democracy, and do not support judicial activism in principle, other than in extreme and exceptional cases. I can tell you that such cases are ones like Judicial Yuan Interpretation No.261 [1990] and Judicial Yuan Interpretation No.499 [1999]. I am sure that you will all have learned about those two cases from Professor Li. In fact, I would hesitate to go into judicial activism unless there was no alternative, even if there was a lawsuit like the above two kinds in my hands. In this regard, I am apparently a British-trained jurist, so please feel free to label me as a conservative.
But why do I insist on doing this? Because I am a free man with rights. I can amend the law only because I have the right to do so, and no one in a democracy should be granted the power to determine what is law alone, even if they were an official or a judge. The correct constitutional mechanism to amend or abolish a law is to initiate a legislative procedure, and no one shall change any law by bypassing this due procedure, or the new law will not be a law of democracy. We have discussed why the law of democracy should be supreme, so I will not repeat it again. However, I must repeat again and again that it is anti-democratic to misrepresent or violate the law for any reason. We can only amend the law if we can persuade the majority of the people to change it, so attempting to bypass due legislative procedure is in fact attempting to bypass the procedure of persuasion. I simply cannot accept such behaviour because it is extremely anti-democratic.
As Hans Kelsen indicated in Pure Theory of Law, the constitution is merely ‘the highest level of positive law’.82 This means that the constitution is ultimately a kind of superior law in nature, rendering the description of nominalism – namely that the constitution is not law – debatable. Anyone who refers the argument that the constitution is not law to the Constitution of the United States 1789 should read Article 6(2) of that constitution again, because it noticeably defines not only the US Constitution but also ‘the laws of the United States’83 as the concurrent ‘supreme law of the land’.84 Please also refer to Kelsen’s view about the difference between written and unwritten constitutions, in which he addressed written constitution only as ‘a special … legislative act’.85 The reasons why I encourage you all to think that way are as follows:
- You will never be able to imagine how dangerous it can be to allow any authority to interpret the constitution in an arbitrary manner if you continue to see the constitution as being something different from law. Authorities may de facto create new laws by bypassing the democratic lawmaking procedure in the name of constitutional interpretation. If the idea that everything that is not legally prohibited is legally allowed is the fundamental principle of the rule of law, how can you accept the authority to make up something that is not written in the constitution, even if it is pro bono publico in practice? Do you not sense that such a thing would constitute a deprivation of our lawmaking power?
- It is debatable, if not purely wrong, to support constitutional interpretation to the extent that it can de facto create new laws whenever, and the excuse that amending a written (and rigid) constitution is a difficult task cannot in any circumstances justify the misrepresentation of constitutional law. There is only one due procedure provided by the constitution that can amend the constitution, and it is contempt of constitution to bypass this due procedure. Having a written (and rigid) constitution is never perfect per se. It may be able to prevent an immature democracy from self-destruction, but it may also persuade a democracy to violate the rule of law and disregard democratic procedure because it is too difficult to initiate a constitutional amending procedure. This is the paradox of having a written (and rigid) constitution. No institution is perfect.
4.3 What and Who Can Justify the Constitution?
Have you ever noticed that most American jurists like to lecture on the supremacy of the constitution, but few of them are interested in discussing why it must be supreme? With all due respect to the American people, I simply cannot accept that my own constitution is supreme only because it was enacted by a crowd of dead geezers in Nanjing, mainland China, on 25 December 1946. In the meantime, I strongly oppose to the claim that my constitutional framers are described as super geniuses of the like that has never been seen before in history, to the extent that their creation of genius, viz the Constitution of the Republic of China 1947, can never be challenged under any circumstances. To put it in plain words, I cannot accept that the legitimacy of my constitution comes from a crowd of dead geezers to the extent that I had better apotheosise them. This is just too absurd, because it constitutes a religious approach as far as I am concerned, which is not a manner of democracy.
Nullus constabularius, vel alius ballivus noster, capiat blada vel alia catalla alicujus, nisi statim inde reddat denarios, aut respectum inde habere possit de voluntate venditoris.86
(No constable or any other of our bailiffs will take any man’s corn or other chattels unless he pays cash for them at once or can delay payment with the agreement of the seller.87 )
Please do not be frightened by Latin – if I as a native Taiwanese or Chinese can learn it, you can too. What Section 28 of the immortal Magna Carta 1215 provided is quite funny in the modern sense, because it focuses only on corn and other chattels (blada vel alia catalla). However, the immortal Magna Carta 1215 was a deal between the English people and their King in the early 13th century, and what would you expect them to ask for from their King? Is it a shame that English farmers in 1215 asked for only blada vel alia catalla rather than bitcoin? Is it necessary to assert that what English farmers asked for in 1215 includes bitcoin because they were all genius farmers who could foresee its creation? How could you know about something created on 3 January 2009 when you were making a deal with Johannes Dei gracia Rex Anglie on 15 June 1215?
Another more vital question is why must today’s democracy be bound by the democracy of the constitutional framers? To put it more plainly, why should current democratic decisions be bound by the decisions made by a crowd of dead geezers? I am not arguing this question in the procedural sense, and I do not oppose having a special lawmaking procedure for amending the constitution. What I am arguing is why the constitution cannot be substantively amended – be that amendment good or bad – in accordance with our current democratic decisions? Please be assured that I would disagree with any constitutional amendment that may lead to the destruction of constitutionalism. I would vote against the Enabling Act 1933 if I were a German citizen, but I must disagree with any assertion that says that I have no right to commit suicide. Though it is insane to ruin democracy through democratic means, self-destruction is still our right. In this regard, I am obviously a British-trained jurist. You may reconsider my label if you consider me a conservative jurist due to my tendency towards judicial inactivism. Am I conservative? Or am I protecting our rights to the extent that I may be overly liberal?
So, what and who can justify the constitution? My answer is: we the present democracy. Neither the gods nor a crowd of dead geezers can justify the constitution, which means that no absolute monarch or dictator can justify any constitution. We always choose to cherish our respective constitutionalism(s) when our freedom is under constitutional protection. But we appreciate our constitutional framers only if we cherish their values, and we are not bound to accept what they told us, unless we unconditionally accept strange values such as racism, gender discrimination, patriarchism or capital punishment, if we are constitutionalists. In other words, we the living people instead of we the dead geezers from the greatest generation justify the constitution. We decide what the constitution is according to our present democracy, viz parliamentary supremacy.88
I believe that this is a useful way of letting you think about your respective constitutions: would you comply with a constitution because it says it is a constitution? My suggestion is that you should comply with a constitution and swear to defend it only if you believe that it represents the genuine spirit of constitutionalism, and never surrender yourselves to an act just because it claims to be a constitution. No government will tell you honestly that ‘[y]ou don’t know the power of the dark side’.89
4.4 If the Constitution Does Not Limit the Power of the Ruler
If Louis XIV (le Roi Soleil) had written down all the powers he possessed on a piece of paper and labelled it ‘La Constitution de la France’, would it be a constitution?90
The most important ingredient that ultimately distinguishes genuine constitutionalism from false constitutionalism is whether or not the constitution concerned seeks to control the power of the ruler. This fundamental principle of constitutionalism originated in the immortal Magna Carta 1215, which defined constitutionalism in its modern sense ever since. As Professor Li and I wrote in the article The Irony in the Lineage of Modern Chinese Constitutions and Constitutionalism, it is nonsensical to regard a piece of paper as a constitution just because it says it is. In fact, the first time I made such an argument was in Singapore on 25 June 2018. I asserted at the 7th Annual International Conference on Law, Regulations and Public Policy that if a document is considered to be a constitution only by denotation, a piece of toilet paper may be a constitution. All I need to do is to write down the word ‘constitution’ on it.
[F]acimus et concedimus eis securitatem subscriptam; videlicet quod barones eligant viginti quinque barones de regno quos voluerint, qui debeant pro totis viribus suis observare, tenere, et facere observari, pacem et libertates quas eis concessimus, et hac presenti carta nostra confirmavimus […]91
([W]e give and grant them the following security, namely that the barons will choose any twenty-five barons of the realm they wish, who with all their might ought to observe, maintain and cause to be observed the peace and liberties that we have granted and confirmed to them by this our present charter […]92 )
Section 61 of the immortal Magna Carta 1215 provided a sanction against the monarch, which is something that had never been seen before. As I preciously explained to you all, law is a coercive norm,93 and a piece of paper which simply lists all the powers the ruler possesses without sanctions is not a law. If it is not a law, it is not a constitution. Whoever promises something colourful without a coercive mechanism to materialise it does not promise a contract at all, so whatever the ruler promised us without coercive measures to cash out was not a constitutional law. Coercion is a factor that distinguishes legal norms from non-legal norms, and if you identify constitution as either a superior law or a contract between the ruler and the ruled, it must be a document that clearly indicates the consequences of violation. For example, my Constitution provides that:
Laws that are in conflict with the Constitution shall be null and void.94
Ordinances that are in conflict with the Constitution or with laws shall be null and void.95
This is why I suggest that you do not regard the constitution as something different from law, and this is also why the Magna Carta 1215 is immortal. The Magna Carta 1215 defined constitution in its modern sense by providing a sanction against King John of England,96 and the English further declared what conducts of the King or on behalf of the King were illegal after the Glorious Revolution of 1688, via the immortal Bill of Rights 1689. When rulers are forced to deliver what they promise, their powers are restricted. In modern days, we describe the aforesaid phenomenon as the government being legally bound, and we identify the laws that provide such binding force as constitutions. In fact, this explains why fundamental rights can bind only governments. They are by nature all coercive promises the rulers have made, and it would be illogical to claim fundamental rights against other civilians in a lawsuit because they failed to promise you your fundamental rights in any contract before. Only the ruler did that, via the document we customarily address as the constitution. Dieter Grimm wrote:
[F]undamental rights bind all state powers – but only state power, not individuals. Fundamental rights lead to an asymmetric legal relationship. They give rights to individuals, and they bind the state. They form restrictions on state conduct, and give individuals a remedy against such conduct.97
Lastly, I would invite you to review your respective constitutions. Are they legal documents that restrict the powers of your governments by binding them to deliver what they promise you? Or are they just ordinary government documents that list all the powers your respective rulers possess? Or are they historical and political documents with plenty of colourful words that provide no coercive mechanism to carry out these beautiful promises? What does constitution mean to you?
4.5 Can We Have a Constitution without Democracy?
King Henry I’s Coronation Charter, or Charter of Liberties, […] said that the king would not extract excessive penalties. […] Once King Henry got settled in his monarchy, he largely ignored the promises he made in his charter. Perhaps this was not surprising. […] Without more specific limits on royal power, the Coronation Charter practically invited King Henry I to continue to conduct business as usual.98
The Coronation Charter of 1100 was a document issued by King Henry I of England. However, this document was never identified as the origin of modern constitutionalism because of the lack of coercion. ‘This historical volte-face indicates a truth, that whatever Henry I of England had promised in the Coronation Charter (1100) would be honoured only if he was bound to deliver on his word’.99 As I have said so many times, the law must be a coercive norm100 created by the sovereign,101 so let us talk about the relationship between the constitution and its sovereign as the final part of this lecture.
The first thing you should note is that King Henry I of England was the absolute sovereign of England during his reign. So whatever he decided would be law if that decision was coercive. In this regard, the Coronation Charter of 1100 was not a law simply because he was never actually bound by it. If it was not a law, then it was not a constitution. So no reasonable person would consider the Coronation Charter of 1100 as the first constitution of England. The immortal Magna Carta 1215 was!
After learning the story of King Henry I’s Coronation Charter, I suppose that you will sense the importance of democracy over constitutionalism. When King Henry I was the sole sovereign of England, he could not establish a constitution for England because he was unable to create a coercive norm against himself. Please be aware that there is difference between voluntary compliance and coercion, and what he could achieve at most was merely voluntary compliance.102 Unfortunately, when there is no coercion, there is no law, and when it is not a law, it is not a constitution. This means that there would have been no constitution had there been no democracy. This principle may explain why there are ineffective constitutions in the world: these documents are in fact not genuine constitutions in nature because they create no coercive norm against their sovereigns. I might be the first constitutional jurist in the world who says so, but I learned this concept from the legal and constitutional history of the United Kingdom.
But things are totally different in democracies. As I have explained to you all that neither you nor I as individuals are the sovereign owner; we, the people as a whole, are the sovereign owner. Such a framework can give birth to a genuine constitution, because we, the people as a whole, determine what the constitution is, and this constitution binds you and I as individuals. We, the people as a whole, also decide what is law, and neither you nor I as individuals are above our law. The only difference is that we are bound by our respective constitutions only when we are chosen by our people to rule our countries in line with democratic procedure, but we are bound by our respective laws at all times. This means that the distinction between constitution and law is that the former is enacted to bind any person who rules (Yu-Wang), whereas the latter is enacted to bind everybody in our societies (Yu-Min). The former intends to control the authority by law, whereas the latter intends to control society by law. I am not going to claim that legal control over the society is evil – to a certain extent I think it is necessary, for no one can survive without law. However, my last warm reminder in this lecture is that legal control over the authority is more important than legal control over the society, and I will refuse to talk about legal control over the society whilst legal control over the authority remains unsettled, because that kind of discussion is purely evil as far as I am concerned.
5. CONCLUSION
These two problems, mutually complementary, arise in the history of every nation, and in every age: the problem of order, or how to found a central government strong enough to suppress anarchy, and the problem of freedom, or how to set limits to an autocracy threatening to overshadow individual liberty. […] All nations in their early efforts to obtain an effective government have to choose between these two types of ruler – between an executive, harmless but weak; and one powerful to direct the business of government at home and abroad, but ready to use powers entrusted him for the good of all, for his own selfish aims and the trampling out of his subjects’ liberties.103 – William Sharp McKechnie (1914)
William Sharp McKechnie was an eminent British (or Scottish) constitutional jurist and a historian at the University of Glasgow more than a century ago. He passed away in 1930, but I recommend his book Magna Carta: A Commentary on the Great Charter of King John with an Historical Introduction, which was published in 1905 and revised in 1914. The above quote from him encourages us to rethink what constitutionalism really means, for as originally an English creation it was never produced to serve the interests of the Crown. You can clearly read what McKechnie concluded, that all rulers seduce us away from our liberties in favour of order. The English were the first people in the world who saw through this paradox, and they developed an institution we customarily address as constitutionalism today. Please understand that I never regard constitutionalism as the ultimate answer of human political civilisation – if you are unhappy to become a free man and prefer to kowtow to your ruler, go for it; I would not care unless you ask me to follow you. What I truly care about is that if you sincerely want a genuine constitutionalism, you must not create something contrary to the general constitutional principles established by the English. Chinese characteristics is therefore the stupidest excuse I have ever heard. Professor Li and I once argued that:
Though ‘constitution’ is a notion exotic to China, it does not mean a Chinese constitution cannot feature ‘Chinese characteristics’; it is just that the ‘Chinese characteristics’ should not contradict the fundamentals of a constitution, or the document would not be a constitution. If the American Constitution is like a horse, then the French Constitution is probably a unicorn. Kirin (Qi-Lin) is acceptable as the Chinese Constitution because it is still a kind of horse, but never a dragon.104
Democracy and the rule of law are essential to British or English constitutionalism; therefore, they cannot be wiped out by any genuine constitutionalism. Democracy is the core of constitutionalism because it provides supreme legitimacy. Nothing is better than democracy when it comes to serve as the sovereign lawgiver, though it is imperfect. And no one should be required to fully comply with the law if that law is not the law of democracy, though the law of democracy is also imperfect. We prefer democracy simply because it is the best possible institution, not because it is a perfect one. Nothing is perfect.
[...]
1 Charles Derber, People Before Profit: The New Globalization in an Age of Terror, Big Money, and Economic Crisis (Picador 2003) 59.
2 Xiang Ping, Zhong Guo Da Luo Ji: Mei You Gong Chan Dang, Wei She Me Bu Xing? [China’s Great Logic: Why China Needs the Communist Party?] (Taihai Publishing 2012) 131-152; see also Zhang Shi-Xin, Xian Fa Xue [Constitutional Jurisprudence] (Fudan University Press 2002) 115-140.
3 Charles Derber, People Before Profit: The New Globalization in an Age of Terror, Big Money, and Economic Crisis (Picador 2003) 59.
4 Evan Esar, 20,000 Quips and Quotes (Barnes and Noble Books 1995) 212.
5 HC Deb 11 November 1947, vol 444, col 207.
6 Bertrand Russell, Unpopular Essays (Routledge 1996) 26.
7 See also David K.C. Huang and Nigel N.T. Li, ‘Why China Finds It Difficult to Appreciate Democracy’ (2019) 8(2) Global Constitutionalism 332, 332-356.
8 E.g., Judicial Yuan Interpretation No.290 [1992] (indicating that the law ‘with regard to the restrictions on educational background and working experience of candidates for all levels of elected representatives, does not contradict the Constitution’).
9 Constitution of R.O.C. § 17 (1947).
10 See generally Barry Strauss, The Spartacus War (Simon and Schuster 2009) 1-212.
11 De Freitas v Benny [1976] AC 239, 247 (Lord Diplock) (Lord Diplock indicating that ‘[m]ercy is not the subject of legal rights. It begins where legal rights end’.
12 HC Deb 11 November 1947, vol 444, cols 206-207.
13 David K.C. Huang and Nigel N.T. Li, ‘The Irony in the Lineage of Modern Chinese Constitutions and Constitutionalism’ (2023) 12(3) Global J Comp L 225, 252.
14 Mencius, Meng Zi Yi Zhu [Interpretation: Mencius] (Yang Bo-Jun ed, Wu-Nan Books 1992) (372-289BCE) 460-461 (Author’s translation).
15 David K.C. Huang and Nigel N.T. Li, ‘Why China Finds It Difficult to Appreciate Democracy’ (2019) 8(2) Global Constitutionalism 332, 344-349.
16 Sun Yat-Sen, San Min Chu I: The Three Principles of the People (Frank W. Price tr, China Committee, Institute of Pacific Relations 1927) 350.
17 Cheney v Conn [1968] 1 All ER 779, 782 (Ungoed-Thomas J) (indicating that ‘what the statute itself enacts cannot be unlawful, because what the statute says is itself the law, and the highest form of law that is known to this country. It is the law which prevails over every other form of law, and it is not for the court to say that a parliamentary enactment, the highest law in this country, is illegal’).
18 Cf. Sun Yat-Sen, San Min Chu I: The Three Principles of the People (Frank W. Price tr, China Committee, Institute of Pacific Relations 1927) 352.
19 Cf. Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan Press 1915) 37-38.
20 See generally Thomas H. Bingham, The Rule of Law (Penguin Books 2011) 160-170.
21 See David K.C. Huang and Nigel N.T. Li, ‘Limiting Absolute Monarchy without Coercion: A Chinese Political Miracle or Wishful Thinking?’ (2020) 17(2) Soochow LJ 135, 156-161.
22 David K.C. Huang and Nigel N.T. Li, ‘Why China Finds It Difficult to Appreciate Democracy’ (2019) 8(2) Global Constitutionalism 332, 349.
23 Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan Press 1915) 409.
24 Evan Esar, 20,000 Quips and Quotes (Barnes and Noble Books 1995) 212.
25 David A. Dieterle (ed), Economics: The Definitive Encyclopedia from Theory to Practice, vol 2 (Bloomsbury 2017) 343-344.
26 Trevor R.S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford University Press 2001) 231 (indicating that ‘[o]ccasional injustice is the price that must be paid for democracy’).
27 See generally Donald L. Beahm, Conceptions of and Corrections to Majoritarian Tyranny (Lexington Books 2002) 1-102.
28 John E.M. Dalberg-Acton, ‘Letters to Archbishop Mandell Creighton’ in John N. Figgis and Reginald V. Laurence (eds), Historical Essays and Studies (Macmillan Press 1907) 504.
29 Evan Esar, 20,000 Quips and Quotes (Barnes and Noble Books 1995) 213.
30 Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan Press 1915) 189-190.
31 See Jonathan D. Casper, The Politics of Civil Liberties (Harper and Row 1972) 18 (indicating that ‘the freedom to express varying and often opposing ideas is essential to variety of conceptions of democracy. If democracy is viewed as essentially a process – a way in which collective decisions for a society are made – free expression is crucial to the openness of the process and to such characteristics as elections, representation of interests, and the like’).
32 See generally Saskia P. Ruth-Lovell, Rosa Kindt, Joep van Lit and Marie-Isabel Theuwis, ‘Populism and Democracy’ in Robert A. Huber and Michael Jankowski (eds), Populism: An Introduction (SAGE 2025) 50-51.
33 See generally Adam Bellow, In Praise of Nepotism: A History of Family Enterprise from King David to George W. Bush (Anchor Books 2003) 1-25.
34 Lucy M. Salmon, History and Texture of Modern Life: Selected Essays (Nicholas Adams and Bonnie G. Smith eds, University of Pennsylvania Press 2001) 144.
35 Brandon Russell, Burden of Proof: Using Known Concepts to Reveal Eternal Truths (Burden of Proof Publications 2017) 9 (indicating that ‘there is at least one absolute truth, “that there are absolutely no absolute truths”’).
36 John Locke, Two Treaties of Government (Whitmore Fenn and C. Brown 1821) 362.
37 Bruce Ackerman, We the People, Volume II: Transformations (Harvard University Press 1998) 93-94.
38 Bill of Rights 1689.
39 Ibid.
40 See generally Thomas H. Bingham, The Rule of Law (Penguin Books 2011) 3-174.
41 See generally David K.C. Huang and Nigel N.T. Li, ‘Why China Finds It Difficult to Enable the Rule of Law’ (2020) 38 Chinese (Taiwan) YB Int’l L & Aff 42, 42-62.
42 Hans Kelsen, Collective Security under International Law (US Naval War College 1957) 101.
43 Compare U.S. Const. art. VI, cl.2 (1789), with Constitution of R.O.C. §§ 171-172 (1947).
44 Hans Kelsen, Collective Security under International Law (US Naval War College 1957) 101.
45 James B. Murphy, The Philosophy of Positive Law: Foundations of Jurisprudence (Yale University Press 2005) 192 (indicating that ‘in legal philosophy, some theorists understand law in terms of an implicit covenant between the lawgiver and the citizen, while other theorists understand law simply in terms of the will of the lawgiver’).
46 E.g., U.S. Declaration of Independence (1776) (claiming that ‘[w]e hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness’).
47 James B. Murphy, The Philosophy of Positive Law: Foundations of Jurisprudence (Yale University Press 2005) 192 (indicating that ‘in legal philosophy, some theorists understand law in terms of an implicit covenant between the lawgiver and the citizen, while other theorists understand law simply in terms of the will of the lawgiver’).
48 See generally Lloyd L. Weinreb, Natural Law and Justice (Harvard University Press 1987) 15-126.
49 Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford University Press 2009) 224 (indicating that ‘[t]he law inevitably creates a great danger of arbitrary power – the rule of law is designed to minimize the danger created by the law itself’).
50 Graham L. Hammill, Sexuality and Form: Caravaggio, Marlowe, and Bacon (University of Chicago Press 2000) 149.
51 Compare Hans Kelsen, Collective Security under International Law (US Naval War College 1957) 101, with Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford University Press 2009) 224.
52 Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan Press 1915) 70.
53 Thomas H. Bingham, The Rule of Law (Penguin Books 2011) 54.
54 Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan Press 1915) 70.
55 Herbert L.A. Hart, The Concept of Law (Oxford University Press 2012) 66.
56 See generally Paul McLaughlin, Anarchism and Authority: A Philosophical Introduction to Classical Anarchism (Ashgate 2007) 1-183.
57 William Shakespeare, The Tragedy of Hamlet, Prince of Denmark (Barse and Hopkins 1897) 112.
58 See generally David M. Armstrong, Nominalism and Realism: Volume I: Universals and Scientific Realism (Cambridge University Press 1978) 11-88.
59 Guan Zhong, Xin Yi Guan Zi Du Ben [New Interpretation: Guanzi] (Tang Hsiao-Chun ed, San Min Books 1995) 781 (Author’s translation).
60 Constitution of P.R.C. § 1II (1982/2018) (Official translation).
61 See Geranne Lautenbach, The Concept of the Rule of Law and the European Court of Human Rights (Oxford University Press 2013) 22.
62 See ibid 21.
63 Thomas H. Bingham, The Rule of Law (Penguin Books 2011) 37.
64 Geranne Lautenbach, The Concept of the Rule of Law and the European Court of Human Rights (Oxford University Press 2013) 21.
65 Gerald Postema, ‘Fidelity in Law’s Commonwealth’ in Lisa M. Austin and Dennis Klimchuk (eds), Private Law and the Rule of Law (Oxford University Press 2014) 20.
66 Geranne Lautenbach, The Concept of the Rule of Law and the European Court of Human Rights (Oxford University Press 2013) 21.
67 Ibid.
68 Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan Press 1915) 70.
69 Gerald Postema, ‘Fidelity in Law’s Commonwealth’ in Lisa M. Austin and Dennis Klimchuk (eds), Private Law and the Rule of Law (Oxford University Press 2014) 20.
70 John Locke, Two Treaties of Government (Whitmore Fenn and C. Brown 1821) 234.
71 John Laws, The Constitutional Balance (Hart Publishing 2021) 81.
72 See generally ibid: 80-83.
73 John Locke, Two Treaties of Government (Whitmore Fenn and C. Brown 1821) 234.
74 A and Others v Secretary of State for the Home Department [2004] UKHL 56 [97] (Lord Hoffmann).
75 Ibid.
76 Ibid.
77 Hans Kelsen, Pure Theory of Law (Max Knight tr, University of California Press 1967) 222.
78 See generally Carl Schmitt, Verfassungslehre [Constitutional Theory] (Duncker und Humblot 1928) 1-121.
79 Hans Kelsen, Pure Theory of Law (Max Knight tr, University of California Press 1967) 222.
80 R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115, 131 (Lord Hoffmann).
81 Ibid.
82 Hans Kelsen, Pure Theory of Law (Max Knight tr, University of California Press 1967) 222.
83 U.S. Const. art. VI, cl.2 (1789).
84 Ibid.
85 Hans Kelsen, Pure Theory of Law (Max Knight tr, University of California Press 1967) 222.
86 Magna Carta 1215, s28.
87 Nicholas Vincent, Magna Carta: A Very Short Introduction (Oxford University Press 2012) 117.
88 See generally Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan Press 1915) 37-82.
89 John C. McDowell, The Gospel according to Star Wars: Faith, Hope, and the Force (Westminster John Knox Press 2007) 160.
90 David K.C. Huang and Nigel N.T. Li, ‘The Irony in the Lineage of Modern Chinese Constitutions and Constitutionalism’ (2023) 12(3) Global J Comp L 225, 245.
91 Magna Carta 1215, s61.
92 Nicholas Vincent, Magna Carta: A Very Short Introduction (Oxford University Press 2012) 122.
93 Hans Kelsen, Collective Security under International Law (US Naval War College 1957) 101.
94 Constitution of R.O.C. § 171I (1947) (Official translation).
95 Constitution of R.O.C. § 172 (1947) (Official translation).
96 Magna Carta 1215, s61.
97 Dieter Grimm, Constitutionalism: Past, Present, and Future (Oxford University Press 2016) 173-174.
98 Debbie Levy, The Signing of the Magna Carta (Twenty-First Century Books 2008) 34.
99 David K.C. Huang and Nigel N.T. Li, ‘Magna Carta and Hong (Magna) Fan (Carta): A Comparison of Their Nature and Institutions’ (2020) 7(2) SOAS LJ 4, 10.
100 Hans Kelsen, Collective Security under International Law (US Naval War College 1957) 101.
101 James B. Murphy, The Philosophy of Positive Law: Foundations of Jurisprudence (Yale University Press 2005) 192 (indicating that ‘in legal philosophy, some theorists understand law in terms of an implicit covenant between the lawgiver and the citizen, while other theorists understand law simply in terms of the will of the lawgiver’).
102 See generally David K.C. Huang and Nigel N.T. Li, ‘Limiting Absolute Monarchy without Coercion: A Chinese Political Miracle or Wishful Thinking?’ (2020) 17(2) Soochow LJ 135, 135-162.
103 William S. McKechnie, Magna Carta: A Commentary on the Great Charter of King John with an Historical Introduction (Burt Franklin 1914) 4.
104 David K.C. Huang and Nigel N.T. Li, ‘The Irony in the Lineage of Modern Chinese Constitutions and Constitutionalism’ (2023) 12(3) Global J Comp L 225, 236.
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