This speech was given at the Department of Politics of National Taiwan University on 12 March 2026. It discussed the nature of the executive power in institutional terms and concluded that the title of the chief magistrate – either king, queen, chairman or president – would not alter the fact that he or she is always the most dangerous person in the country.
Dr Huang defined the person entitled to this dangerous power as the ruler and the supreme lawmaker as the sovereign owner, and warned that it would be naïve to say that the sovereign power cannot be transferred back to the ruler in practical terms in modern democracies. This could happen if people were careless or ignorant about the separation of powers doctrine, especially if they had no strong faith in democratism.
TABLE OF CONTENTS
Abstract
1. Introduction
2. The King: The Most Dangerous Creature
2.1 Sovereign, Sovereignty and Legal Positivism
2.2 Royal Prerogative and the Executive Power
2.3 Dieu et Mon Droit and the Mandate of Heaven
2.4 Chief Magistrates: From Rex and Imperator to King and President
2.5 The Ruler of the People: From Napoléon Bonaparte to Donald J. Trump
3. The Westminster System: Suppressing the King by Democracy
3.1 Magna Carta, Social Contract and Separation of Powers
3.2 Bill of Rights, Democracy and Parliamentary Sovereignty
3.3 The Fundamental Spirit of the Westminster System
3.4 Parliamentary Sovereignty in Legal and Political Terms
3.5 Fusion of Powers
4. The Presidential System: Hindering the King from Arbitrariness
4.1 The Myth of Written Constitution
4.2 The Origin of the American Presidential System
4.3 John Locke and the Separation of Powers
4.4 American Separation of Powers
4.5 The Uncrowned King with Real Power
5. Conclusion
ABSTRACT
This speech was given at the Department of Politics of National Taiwan University on 12 March 2026. It discussed the nature of the executive power in institutional terms and concluded that the title of the chief magistrate – either king, queen, chairman or president – would not alter the fact that he or she is always the most dangerous person in the country. Dr Huang defined the person entitled to this dangerous power as the ruler and the supreme lawmaker as the sovereign owner, and warned that it would be naïve to say that the sovereign power cannot be transferred back to the ruler in practical terms in modern democracies. This could happen if people were careless or ignorant about the separation of powers doctrine, especially if they had no strong faith in democratism.
1. INTRODUCTION
Before I begin my speech today, let me ask you a funny question: Who do you think the British and the Americans trust in terms of constitutionalism? I would say that the British trust democracy whilst the Americans trust their founding fathers, who are, as I would put it, a crowd of dead geezers.1 But we could also ask the same question from another angle: Who do you think the British and the Americans distrust ? I am quite sure that the British would distrust their King the most if he were to demand real power, whereas the Americans would distrust their President and democracy, but would still have great confidence in the judiciary.2 As you all know, I am generally not well-disposed towards American constitutionalism, even though I do not oppose it. I do not oppose it right now because the US Constitution, in the final analysis, distrusts their uncrowned king, viz the US President, which fits with the essential character of genuine constitutionalism. I want to emphasise that no genuine form of constitutionalism would trust the executive, be his (or her) title king (or queen), emperor (or empress), chairman or president. Never, ever!
In this speech, Kings of All Kinds, I will begin by looking at the nature of the executive power, and label the person entitled to such power ‘the ruler’. Meanwhile, I will also label the person who possesses the supreme lawmaking power as ‘the sovereign (owner)’. I am sure that you are all smart enough to perceive that in an autocracy the ruler and the sovereign owner are one, but in this speech, I want you to understand that in a democracy they may sometimes also be one in practice if the constitution is implemented wrongly, even though they are technically separate entities. I will explain the origin and philosophy of the parliamentary (or Westminster) and presidential systems. I admit in advance that I prefer the former and dislike the latter, but that does not mean that I oppose the latter. I will also show you the origin and philosophy of the separation of powers, and then I will conclude that both systems embrace the principle of separation of powers, but with quite different interpretations.
2. THE KING: THE MOST DANGEROUS CREATURE
If you think about the word ‘ruler’ in its full context, you will see that it has multiple meanings, depending on where you live. If you live in the United Kingdom, your present ruler is King Charles III – at least – in theory, because the UK Government administers the country by regal authority. However, you are the genuine ruler of this Kingdom because the immortal Bill of Rights 1689 declares that ‘the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal’.3 If you live in the Republic of China, your present ruler is President Lai Ching-Te. But I am really not sure that you are the genuine ruler of this Republic because the ROC Government can do whatever it wants without the consent of congress, as long as it violates neither the acts of the congress nor the constitution in theory. Do you know why I say ‘in theory’? Because my Government can administer the country in its own way when the law is silent or challenge any act it dislikes in the Judicial Yuan by asserting it to be unconstitutional.4 Now the Premier, a person who obtained an LLB degree, claimed that he was acting totally lawfully by refusing to countersign a bill passed by the Legislative Yuan in December 2025. Because of that, I am really not sure that you are still the ruler of this country, even though I have no doubt that it is still a democracy.
The demand for the ‘consent of Parliament’5 is very important in democracies because it guarantees that the ruler, when that definition is understood to be the person who is entitled to govern, is always under the control of the genuine sovereign owners, viz the people. As far as I am concerned, any institution that attempts to weaken the control of the people over the ruler will ultimately promote the transfer of the sovereignty in practical terms. This is a most important concept, and I want to underscore it before we talk about the true nature of the executive power.
2.1 Sovereign, Sovereignty and Legal Positivism
[T]he source of law is its direct or immediate author. For either directly or remotely, the sovereign, or supreme legislator, is the author of all law; and all laws are derived from the same source; but immediately and directly laws have different authors. […] Individuals or bodies legislating in subordination to the sovereign, are more properly reservoirs fed from the source of all law, the supreme legislature, and again emitting the borrowed waters which they receive from that Fountain of Law.6 – John Austin (1863)
The above quote from John Austin, an eminent British analytical legal philosopher who profoundly influenced modern Anglo-American jurisprudence through his ideas of legal positivism, provides us with a concrete concept of the sovereign, that he or she is the ‘supreme legislator’7 and the ‘author of all law’8 in his or her own jurisdiction. A couple of days before the Lunar New Year, I found a copy of Austin’s book Lectures on Jurisprudence or the Philosophy of Positive Law,9 in a Chinese translation at my parents’ flat. It appears that I bought it when I was your age, because no family member of mine would ever spend their money on such a boring book. However, I must admit that I was a fanboy of natural law before I studied English jurisprudence, and it was Albert Venn Dicey who converted me into an adherent of positive law via his textbook Introduction to the Study of the Law of the Constitution. Dicey wrote:
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.10 – Albert Venn Dicey (1915)
As you all probably know, I learned German law first and English law later. But it was British (or English) rather than German legal positivism that made the most sense to me. Dicey proposed the idea of democracy as the sovereign,11 and by that idea I have understood the genuine spirit and complete definition of the rule of law. If democracy really matters to you, you will see it as the ‘supreme legislator’12 and the ‘author of all law’,13 and you will logically find it unacceptable for any person or institution to defy the law of democracy, as that would be a contempt of democracy. The demand for absolute compliance to the law of democracy is thus indispensable in logical terms, and this exactly represents the complete definition of the rule of law,14 does it not? However, German legal positivists such as Hans Kelsen showed no interest in this area. Kelsen focused only on why moral norm is different from legal norm,15 and on the hierarchy of law, viz Stufenbau der Rechtsordnung,16 in terms of pure theory. I would say that it is dangerous to talk about law and its derivative concepts if we choose not to determine who (or which institution) shall be the ‘supreme legislator’17 and the ‘author of all law’18 in advance, for it would result in complete disaster to demand absolute compliance to law and rule in accordance with law if the sovereign of that jurisdiction was Adolf Hitler. That is why I find German legal positivism untrustworthy, even though I am very familiar with Kelsen’s Pure Theory of Law.19 By the way, Kelsen was a German legal positivist, but he was not a German in terms of nationality. He was an Austrian – a ‘German’ only from the perspective of Großdeutschland.
The fontes iuris or the sources of law can be understood as subsisting in two dimensions, namely the substantive and procedural sources of law. The enactment of an act may be inspired by other norms, namely the ratio legis of a law that may be rooted in culture, morality or something else, but it is identified as a law because it has been authorised by someone or some institution who or which has sovereign power to make laws. I am not saying that the ratio legis of a law, as I call it the substantive sources of law, is unworthy of deliberation. In the legislative process, it is always worth spending time debating which norm should become a law, and in such debates, you will see me behaving as an adherent of natural law. But laws are laws simply because they are authorised by the sovereign (or the ‘supreme legislator’20 ), which I call the procedural sources of law. No matter how just you think your argument is, it is not a law if it has not been authorised. The procedural character of law makes sense in terms of legal positivism, and any claim against it will ultimately open the path towards legal uncertainty (Rechtsunsicherheit)21 and dictatorship, including agitating to apply natural law.22 Since I have explained this philosophy to you in my previous speech, Judicial Activism and Minimalism, I will not repeat it here.
In a nutshell, sovereign or sovereignty is an extremely important legal concept because it acts as a constant reminder to us of the very nature of our rulers, be they king, queen or president. As such, it is therefore very dangerous if we choose the sovereign owners of our respective jurisdictions improperly. In this regard, I doubt we can find a better sovereign owner than democracy. Democracy is imperfect,23 but it is the best we have got.
2.2 Royal Prerogative and the Executive Power
In its, pre-1688 form, the ‘royal prerogative’ comprised the Monarch’s personal power. […] Seventeenth-century political history was marked by recurrent disputes between the King and Parliament over the distribution of governmental power. There was an ongoing struggle between the King’s effort to rule by prerogative powers or ‘proclamations’, and Parliament’s power to restrain the King’s autonomy through statute. And until that struggle degenerated into civil war, the courts were usually the site of the battle.24
If you are not a British citizen by birth, what was your first impression of prerogative power (or royal prerogative)? Let me share mine with you first: it seemed to refer to the powers and privileges that only the rulers are entitled to enjoy as far as I, as a foreign student, was concerned. But if that was the case, I wondered why this archaic term still appeared on a British textbook in the first decade of the 21st century. This archaic term somehow pushed me into philosophical reflection on the nature of the power we normally identify as the executive power today. Is it not true, I wondered, that the power to govern is just a prerogative that is reserved for the chosen persons, be they chosen by God, democracy or whatever. Is it not true that democracy can never change the nature of the executive power, but can only determine who should be chosen? Then I immediately understood the following philosophy I told you about in my previous speech:
I refuse to consider any elected executive official as my representative – I just grant consent to their ruling, so I always need my representative to monitor them on my behalf. That is why we need a democratic parliament or congress, because only our parliament or congress can represent us. […] No person in power deserves your trust, so they cannot represent you.25
Royal prerogative is the best legal-constitutional term to continually remind us of the danger of the executive power, even in a modern republic, because it makes us intuitively realise the origin and nature of this power in all nations. When I was a law school student in the United Kingdom, I misread it as the whole of the executive power of the United Kingdom. Because I obtained a law degree (LLB) in Taiwan first and studied English law (GDL) in the United Kingdom later, I could only understand royal prerogative in the light of my knowledge on German jurisprudence at that time. The correct understanding is that royal prerogative constitutes only the largest part of modern British executive power, because the UK Government still may, with the permission of Parliament, obtain new powers via parliamentary legislation, and these newly-created executive powers will not technically be royal prerogatives. British constitutional jurist Albert Venn Dicey wrote:
The discretionary authority of the Crown originates generally, not in Act of Parliament, but in the ‘prerogative’ – a term which has caused more perplexity to students than any other expression referring to the constitution. The ‘prerogative’ appears to be both historically and as a matter of actual fact nothing else than the residue of discretionary and arbitrary authority, which at any given time is legally left in the hands of the Crown. The King was originally in truth what he still is in name, ‘the sovereign’, or, if not strictly the ‘sovereign’ in the sense in which jurists use that word, at any rate by far the most powerful part of the sovereign power.26 – Albert Venn Dicey (1915)
Royal prerogative refers to the legal power held by the King and his government according to English common law.27 If common law is a difficult concept for you to understand because there is no such thing in your jurisdiction, please feel free to imagine common law as court-enforceable legal-political tradition. In the modern United Kingdom, however, royal prerogative can be deprived by Parliament via parliamentary legislation,28 and no new prerogative power for the King and his government would be recognised ever since the Glorious Revolution.29 In BBC v Jones Lord (Justice) Diplock ruled that:
[I]t is 350 years and a civil war too late for the Queen’s Courts to broaden the prerogative. The limits within which the executive government may impose obligations or restraints upon citizens of the United Kingdom without any statutory authority are now well settled and incapable of extension.30
If you consider this legal-political philosophy in greater depth, you will realise that it is futile for the UK Government to assert any executive power without the consent of Parliament, because Parliament can deprive the King and his government of prerogative powers even if they are affirmed by the courts.31 In this respect, the UK executive power can be thought of as being ultimately decided by Parliament. In Attorney-General v De Keyser’s Royal Hotel Ltd Lord Atkinson ruled that:
[W]hen […] a statute, expressing the will and intention of the King and of the three estates of the realm, is passed, it abridges the Royal Prerogative while it is in force to this extent: that the Crown can only do the particular thing under and in accordance with the statutory provisions, and that its prerogative power to do that thing is in abeyance.32
2.3 Dieu et Mon Droit and the Mandate of Heaven
A MODERN essayist has said with truth, that ‘never has there been a doctrine better written against than the Divine Right of Kings’. […] That the doctrine is absurd, when judged from the standpoint of modern political thought, is a statement that requires neither proof nor exposition.33 – John Neville Figgis (1896)
It is interesting to see British historian and political philosopher John Neville Figgis note that the divine right of kings or dieu et mon droit34 had already been regarded as nonsense (or to use his own word, absurd) in the United Kingdom by 1896. This is of course a major victory for democracy; however, I must remind you all that this archaic political nonsense still influences modern legal-political institutions in many ways. Figgis was a student of Lord Acton, and he keenly observed that:
The theory of the Divine Right of Kings in its completest form involves the following propositions:
1. Monarchy is a divinely ordained institution.
2. Hereditary right is indefeasible. […]
3. Kings are accountable to God alone. […]
4. Non-resistance and passive obedience are enjoyed by God.35
The divine right of kings or dieu et mon droit is a theory that aims to justify the rule of a monarch over his or her subjects. In the philosophical sense, the theory attempts to persuade people – as the ruled – to accept the monarch as their ruler and recognise his or her privilege, viz royal prerogative, to be the sovereign of their land. We see the divine right of kings or dieu et mon droit as nonsense in modern times simply because we have found a better sovereign owner, viz democracy, but in philosophical terms this does not mean that you should consider the demand for the legitimacy of government as an antiquated idea or as nonsense. As I have told you previously, the idea of the sovereign as the supreme lawmaker will last forever,36 but sovereignty may be transferred from one sovereign owner to another in practice. Please do not be so naïve as to think that what I am referring to is merely the outbreak of a revolution – sovereignty can be transferred when you implement a wrong constitution or amend an improper constitutional amendment. When you agree with an enabling act, you are no longer the sovereign of your land, and that is the most expensive lesson we must all learn from the German tragedy during the Third Reich.37 Now, if you recall what Lord Justice Laws taught us in Thoburn v Sunderland City Council, I am sure that you all fully understand why he insisted that being the genuine sovereigns of our respective democracies, we cannot abandon sovereignty in whatever form.38
We could say that the mandate of heaven39 (Tian-Ming) is the Chinese version of the divine right of kings or dieu et mon droit.40 However, it provides the possibility of sovereignty transfer (Tian-Ming-Zhuan-Yi). This ancient political philosophy alleges that ‘rulers are empowered by Heaven. … If Heaven is disgusted by immoral behavior or offended by inadequate or improper sacrifices it will transfer the authority to rule to another man’.41 In practice, we observe that the entire history of China is nothing more than the history of one autocracy replacing another, or the history of a new autocracy replacing the old. Because sovereignty or ‘Tian-Ming’ can be transferred, it would be more convenient to crown a new and open-minded dictator than to try to establish institutions against the old tyrant, right? And China has fallen into a vicious circle ever since, given that it cannot escape from tyranny because it always chooses autocracy, which means that it cannot prevent rebellion from happening again because rebellion is its cure for tyranny.42
Let us go back to the United Kingdom. The divine right of kings or dieu et mon droit is different from the Chinese mandate of heaven (Tian-Ming), because the sovereignty of England cannot be transferred in the legal sense.43 This simply means that no one can ascend to the throne unless he or she is a descendant of royalty, which forced the Englishmen to control the sovereign power by means of (social) contracts with their kings or queens in the form (in a broader sense) of law.44 As time went by, the sovereignty of the United Kingdom (or England before 1707,45 Great Britain before 180146 ) was transferred to Parliament through a series of constitutional documents,47 which made the monarch the nominal sovereign (in accordance with the divine right of kings or dieu et mon droit) and Parliament (or democracy) the genuine sovereign (in accordance with law). This is exactly where modern constitutionalism came from, and if you think about the logic behind it in greater depth, you will probably agree that the ancient Chinese political philosophy of the mandate of heaven has zero chance to develop any form of modern constitutionalism because its way of thinking is not pointed towards constitutionalism. I still consider myself as a kind of Chinese, by the way, so please do not label me as a Chinese hater.
2.4 Chief Magistrates: From Rex and Imperator to King and President
The Old English word for king, cyning, is of unknown provenance and etymology. Herwig Wolfram claims that it derives from a Germanic kuningaz and described the same phenomenon as the Gothic reiks, the magistrate of a small region, similar to the Irish r í, but there is little substantial evidence for this. In England the word does not appear in any useful context until well into the eighth century when social structures had undergone considerable change; and so, rather than waste time in speculation, it is probably best to ignore cyning and to concentrate, in the first instance, upon the Latin word rex.48
I used to think that English word king and German word König derived from the same Old Germanic word, kuningaz,49 though British historian Alex Woolf suggests that we pay more attention to the Latin word rex. As far as I am concerned, both words are worthy of our attention because the British monarch uses both titles. If you ever find a British coin from the period of King George VI, you will see the following legend inscribed upon it:
GEORGIVS VI D : G : BR : OMN : REX F : D : IND : IMP.
In its full text this legend reads: GEORGIVS VI DEI GRATIA BRITANNIARUM OMNIUM REX FIDEL DEFENSOR INDIAE IMPERATOR. It is written in Latin, so let me translate it into English: George VI, by the grace of God, King of all the Britons, Defender of the Faith, Emperor of India. Now I want you to pay more attention to his title, Britanniarum Omnium Rex, because that describes exactly what he was. His title was King (Rex) of all the Britons (Britanniarum Omnium) in Latin. In a nutshell, rex and king are synonyms, which is why criminal cases in the United Kingdom are R v X, in which the letter R stands for Rex or Regina. The legends on one-GBP coins minted during the reigns of Queen Elizabeth II and King Charles III read:
ELIZABETH II · D · G · REG · F · D
CHARLES III · DEI · GRA · REX · F · D
Rex (or regina) is a Roman title, whilst king (or queen) is likely to be a Germanic title. The chief magistrate of Rome during the regal period (753-509 BCE) was called Rex Romae, viz the King of Rome.50 Rex as the title of the chief magistrate of Rome was replaced by consul during the republican period (509-27 BCE)51 and then imperator when Gaius Octavius Thurinus established the Roman Empire in 27 BCE.52 Initially, imperator was ‘purely a military title; that it connoted military command, never civil authority’.53 But the political tradition of the Romans since Gaius Marius took power could be summarised by Mao Zedong’s words: ‘political power grows out of the barrel of a gun’ (Qiang-Gan-Zi-Li-Mian-Chu-Zheng-Quan),54 so it is no surprise that a title for field marshals would eventually become the title of the supreme rulers of the Roman Empire.55 Please allow me to remind you that Rome did not change its national name when it became an empire; its name remained the SPQR, viz Senatus Populusque Romanus, which means the ‘Senate and People of Rome’ – does that not sound ironic?
What is more ironic is that many Presidents of the United States claimed themselves to be the country’s chief magistrates. Look at the quotes from the inaugural addresses delivered by President George Washington in 1793 and President Abraham Lincoln in 1861 below, and try not to criticise them for telling you honestly what the true nature of the presidency is:
I am again called upon by the voice of my country to execute the functions of its Chief Magistrate.56 – George Washington (1793)
The Chief Magistrate derives all his authority from the people, and they have referred none upon him to fix terms for the separation of the States. The people themselves can do this if also they choose, but the Executive as such has nothing to do with it. His duty is to administer the present Government as it came to his hands and to transmit it unimpaired by him to his successor.57 – Abraham Lincoln (1861)
2.5 The Ruler of the People: From Napoléon Bonaparte to Donald J. Trump
French people had deposed them because of their inability to rule. From there it follows that if one dynasty was incapable of ruling then, as had occurred throughout the history of France, it would be replaced by another, in the same way that Clovis and Charlemagne came to the throne.58
If you replace the words French, Clovis and Charlemagne with Chinese, King Tang and King Wu, I would be misled into thinking that what Philip G. Dwyer wrote represented the ancient Chinese philosophy of mandate of heaven59 (Tian-Ming), which alleges that ‘rulers are empowered by Heaven. … If Heaven is disgusted by immoral behavior or offended by inadequate or improper sacrifices it will transfer the authority to rule to another man’.60 However, what Dwyer wrote is the French philosophy that supported Napoléon Bonaparte’s accession to the throne in 1804.61 The French version was, of course, more advanced, to the extent that it still makes sense to those with a limited knowledge of democracy in modern Taiwan, because it asserts that the powers of the Empereur des Français came directly from the French people instead of the divine right of kings.62 If you have studied Taiwan’s debate in the early 1990s about whether or not our President should be elected directly by the people,63 I bet you would laugh. American historian John Stevens Cabot Abbott once wrote:
‘I did not usurp the crown’, said Napoleon, proudly and justly. ‘It was lying in the mire. I picked it up. The people placed it on my head’. […] Louis was the king of the nobles, placed by the nobles upon the throne. He consulted for their interests. All the avenues of wealth and honor were open for them alone. The people were merely slaves, living in ignorance, poverty, obscurity, that the king and the nobles might dwell in voluptuousness. Napoleon was the ruler of the people. He was one of their own number. He was elevated to power by their choice. He spread out an unobstructed arena for the play of their energies. He opened before them the highways to fame and fortune. The only aristocracy which he favored was the aristocracy of intellect and industry.64
As far as I am concerned, ‘the ruler of the people ’65 is a dangerous concept, and I would uphold parliamentary sovereignty66 instead, because it represents the spirit of ‘the ruler is the people’. The concept of the ruler of the people will easily mislead people who believe that democracy subsists when the ruler decides in favour of the people’s interests,67 and the demand for due democratic procedure will be deemed dispensable. The sovereignty, though it is still in the hands of the people in nominal terms, would be transferred back to the ruler under such a political framework, and the situation would only get worse if he or she is directly elected by the people, because it is totally unrealistic to expect a ruler, be his or her title Empereur des Français or President of the Republic of China, to serve as a figurehead or mascot. To put it bluntly, we will strengthen the most dangerous creature with real power by laureling them ‘the ruler of the people ’68 and making them politically powerful enough to challenge our representatives in parliament. Well, this is not ‘democracy’ by my definition, as I do not even consider it democratic. Although many people in the world find it acceptable, I would try to convince you all not to be such a person.
I am willing to admit that we human beings have been caught in a political dilemma for thousands of years, because we need someone to administer our countries on our behalf, but it is impossible in toto for us to exercise our respective sovereign powers in person daily. The impracticability of direct democracy is one thing, but offering some kind of democratic legitimacy to a single person titled king, queen or president, and letting him or her challenge our representatives in parliament in our name when administering our own governments, is another. I see no reason why such an institution makes sense, even though it is usually regarded as a routine under the American separation of powers framework, which is, according to Paul D. Monero, merely an extreme version.69 That is why I asked you all the following question in my previous speech:
[W]hich country would you consider it to be a democracy; a country where there is no parliament but a president elected by the people democratically, or a country where there is a democratic parliament with a monarch who was not elected by the people?70
Now I want you to think about this question in greater depth: is it possible for a president with real power under a democratic constitution (presidential system) to use (executive) power without the consent of parliament in advance to claim his authority as lawful, constitutional and beneficial to the people? I am sure that you know who I am talking about, and I can guarantee you all that he is not the first nor will he be the last president with real power who uses (executive) power in such a way. Now I shall leave you all to think carefully whether it is still rational to support such a dangerous institution, especially when its personification is giving us a daily live show in the international community.
3. THE WESTMINSTER SYSTEM: SUPPRESSING THE KING BY DEMOCRACY
The British Westminster system is like a photo with bokeh to foreign constitutional scholars, in that it looks sophisticated, classic and elegant, but blurred. This is perhaps one of the reasons why it is difficult, if not almost impossible, to transplant British constitutionalism into another country. As a British-trained constitutional jurist and a native Taiwanese or Chinese (in a broader sense, if that definition does not only refer to ‘citizens of the People’s Republic of China’), I appreciate the British Westminster system because it recognises the supremacy of democracy, viz parliamentary sovereignty,71 in legal and constitutional terms, which is as far as I am concerned the greatest political heritage of all mankind and the ideal institution – albeit imperfect, but then nothing is perfect – for all free souls.
3.1 Magna Carta, Social Contract and Separation of Powers
Magna Carta is called […] the Charter of Liberty because it maketh freemen. When the King says he cannot allow our liberties of right, this strikes at the root. We serve here for thousands and tens of thousands.72 – Sir Edward Coke (1621)
There are few people in the world who have not heard of the immortal Magna Carta. However, I wonder how many people truly understand what it means to modern constitutionalism. Thomas Fleiner and Lidija R. Basta Fleiner regarded it to be the ‘[m]other of the modern state’73 because it ‘established … rights and freedoms’,74 and I cannot agree with them more. But how the immortal Magna Carta ‘established … rights and freedoms’75 is a question that can be answered in a very simple way: it ‘established … rights and freedoms’76 by taking away some of the powers of the ruler – instead of by persuading him or her to behave well – in the form of public deed.77 The immortal Magna Carta may thus be understood to be the oldest social contract (by the 16th century definition) that embodied the antique version of separation of powers. The early 20th century British political historian John Howard Bertram Masterman once argued:
I want to say a few words about the idea of the social contract. The idea, as I told you in my last lecture, comes down to us from the school-authors of the Middle Ages. I do not know that you will find it earlier than that; and in modern English history you will find it first of all in the work of [Richard] Hooker. Locke, for instance, quotes several passages from Hooker, in which he develops this idea of government as founded on social contract. […] It is an entire fallacy, if by the social contract theory you mean that the ordinary process by which states have come into existence has been mass meetings of a number of people who have agreed to start a thing called government. […] But, on the other hand, there have been cases where government has grown up out of a definite contract. […] And again, passing to the idea of an original contract between the governors and the governed, surely we can describe Magna Carta as in the strictest sense a contract between the king and the nobles; and that is shown by the fact that if the king broke any clause of Magna Carta, the nobles were to have the right to repudiate their allegiance to the king.78
Richard Hooker was a forerunner of the idea of social contract. In his book Of the Lawes of Ecclesiastical Politie, published in 1594 and 1597, Hooker said that political authority originated through the consent of the ruled, and 94 years later John Locke used Hooker’s idea to justify the Glorious Revolution of 168879 and developed his theory of the social contract (along with separation of powers). Richard Hooker and John Locke wrote:
[T]o be commanded we do consent, when that society, whereof we be a part, hath at any time before consented, without revoking the same after by the like universal agreement.80 – Richard Hooker (1594)
[T]he first and fundamental positive law of all commonwealths is the establishing of the legislative power: as the first and fundamental natural law, which is to govern even the legislative itself, is the preservation of the society, and (as far as will consist with the public good) of every person in it. This legislative is not only the supreme power of the commonwealth, but sacred and unalterable in the hands where the community have once placed it.81 – John Locke (1689)
Let me explain the link between the immortal Magna Carta and its logical extension to you all. If you were Richard Hooker, you would argue that the immortal Magna Carta showed that the English people accepted the authority of King John via a social contract, even though you might not refer to it as a social contract in the 16th century. In addition, it would be obvious to you that some powers had been taken away from the Crown and given to the nobles via the immortal Magna Carta, even though you had no concept of the separation of powers yet. And you would begin to realise that in fact the immortal Magna Carta founded an important legal-political principle, that no ruler should be deemed legitimate without the consent of the ruled, and that consent could not be a one-way ticket. At that point you would begin to construct the theories we now identify as social contract and parliamentary sovereignty, even though you might still be unaware of their modern names. Let me remind you that this was John Locke’s reasoning, and it took England another 94 years to attain it in reality.
3.2 Bill of Rights, Democracy and Parliamentary Sovereignty
There are three species of government: republican, monarchical, and despotic. In order to discover their nature, it is sufficient to recollect the common notion, which supposes three definitions, or rather three facts: that a republican government is that in which the body, or only a part of the people, is possessed of the supreme power; monarchy, that in which a single person governs by fixed and established laws; a despotic government, that in which a single person directs everything by his own will and caprice.82 – Baron de Montesquieu (1748)
When Baron de Montesquieu referred to the English Government in The Spirit of Laws, viz De l’esprit des loix, he defined it as a monarchical government. However, when you learn how he defined republican government, you may feel rather perplexed because by his definition it also appears reasonable to categorise the UK Government in the post-Glorious Revolution period as a republican government. Either it remained aristocratic (if you focus on the predominant role the House of Lords played in Parliament until the mid-19th century83 ) or democratic. In fact, Baron de Montesquieu defined two kinds of republican governments in The Spirit of Laws (De l’esprit des loix):
When the body of the people is possessed of the supreme power, it is called a democracy. When the supreme power is lodged in the hands of a part of the people, it is then an aristocracy. In a democracy the people are in some respects the sovereign, and in others the subject. There can be no exercise of sovereignty but by their suffrages, which are their own will; now, the sovereign’s will is the sovereign himself. The laws, therefore, which establish the right of suffrage are fundamental to this government.84 – Baron de Montesquieu (1748)
In the first place, let me remind you that a dictatorial republic – such as North Korea – is not a republic in the eyes of Baron de Montesquieu, because his republicanism is well defined as a regime in which the sovereign power is possessed by the whole people, viz democracy, or by a part of the people, viz aristocracy.85 I am happy if you want to claim that what he meant by supreme power is the executive power rather than the sovereign power, for your argument would make the immortal Bill of Rights 1689 an even greater document – when it comes to the control of the executive power (in order to make sure that it is always in the hands of the people), is there any form of government which is better than the British Westminster system? In terms of controlling governmental conduct, we can see that the US Congress simply cannot compare with the UK Parliament, can we not? In a nutshell, when you read Montesquieu’s republicanism in a substantive manner, you will conclude that the Westminster system of government is a more fitting institution in a republic, and it is perhaps inappropriate to identify a country as a republic by its name or the formal title of its head of state – such as the Democratic People’s Republic of Korea (as it might not be) and the United Kingdom (as it might be). The immortal Bill of Rights provided:
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; […]
That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal; […]
That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law; […]
That election of members of Parliament ought to be free;
That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament; […]
And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.86
Lastly, I will try to convince you that it is not particularly meaningful to distinguish parliamentary sovereignty from popular sovereignty. Direct democracy is not utopianism only if you are willing to pay attention to all public affairs, and then participate in all public debates, which is a mission impossible because most people need to work for a living, and that ugly fact simply makes representative democracy an inevitable institution. Can an example be given to prove that a democracy of popular sovereignty can operate without having a parliament or congress? Even Iceland has a parliament, viz Alþingi Íslendinga, right? How many people are there in Iceland now? That is, if representative democracy is something indispensable, there is little difference, if not completely no difference, between parliamentary sovereignty and popular sovereignty. By the way, Iceland has the world’s oldest parliament – it was established in 930 CE,87 before the Norman conquest of England in 1066.88
3.3 The Fundamental Spirit of the Westminster System
[A]n Act of Parliament can do no wrong, though it may do several things that look pretty odd.89
When I first read Lord Chief Justice Holt’s decision in City of London v Wood, I did my best not to laugh. But when I read Lord Hoffmann’s decision in R v SSHD ex p Simms,90 I immediately understood Lord Chief Justice Holt’s humour. Lord Hoffmann held that:
Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost.91
The true spirit of the Westminster system, if it is distinguished from other parliamentary systems under a written constitution, is that it recognises the supremacy (or sovereignty) of democracy, insofar as it recognises that Parliament as the people’s representative, is supreme in legal terms, but, in political terms, it should humble itself in the presence of the British people.92 Such logic does not pertain in countries with a written constitution, even if the form of government of that country is parliamentary, because the subsistence of a written (and rigid) constitution would hinder democracy from exercising legislative powers – and by the American theory this is exactly the purpose of establishing a written (and rigid) constitution,93 is it not? I understand that the Americans were bullied by the Parliament of Great Britain in the late 18th century, but it is simply naïve to think that there would be no price to pay for limiting or derogating from the dignity of democracy. Well, I think that the price is too high, and it is likely to be an overkill (or overcorrection) in institutional terms. Let me explain why I believe that.
It is uncertain whether an act of the legislature can be enforced in a nation with a written (and rigid) constitution even if its form of government is parliamentary, because all acts of the legislature – though they are the laws of democracy per se – can only be enforced if they are deemed constitutional in the eyes of the judiciary.94 This appears on the face of it to be a harmless institution, but it is actually not, because you give your judiciary the power to define what democracy is, by labelling a democratic decision as either a constitutional decision or the tyranny of the majority.95 However, this is not the case in the United Kingdom. Because the supremacy (or sovereignty) of democracy has already been settled via the immortal Bill of Rights 1689, the UK courts have no power to declare a democratic decision made by Parliament to be unconstitutional (or wrong), and this is what safeguards British democracy from being controlled by a specific minority, viz the judiciary. When ‘the Constitution is what the judges say it is’,96 democracy itself will ultimately become what the judges say it is too. This is dangerous as far as I am concerned, and I believe that it would be safer to let the majority reconsider the appropriateness of the disputed democratic decision through humorous (such as Lord Chief Justice Holt97 ) or respectful (such as Lord Hoffmann98 ) judicial advice. A proper example provided by Lord Hoffmann in A and Others v SSHD is as follows:
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.99
If you were President Lai Ching-Te or Premier Cho Jung-Tai, you would argue that your executive power is not only defined but also authorised by the written Constitution, and if the congressmen or congresswomen are not satisfied with how you exercise the executive power, it is their problem, because it is just their personal opinion. I must admit that I do not consider such a way of thinking inappropriate or wrong, for it is true that the executive power is defined and authorised by the written constitution, insofar as any claim against the constitutionally defined and authorised ruler of abuse of power must take legal action in court, and before President Lai or Premier Cho loses the case their ways of exercising power are still presumed lawful. This basic rule applies not only to ordinary citizens but also the legislature, does it not? If you were President Lai or Premier Cho, why should you bow to the Legislative Yuan, especially when you are a President who has been directly elected by the people? Is it not logical for you to think that compromise is not a must before lawsuits? But this is also not the case in the United Kingdom because this has already been settled by the immortal Bill of Rights 1689:
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.100
3.4 Parliamentary Sovereignty in Legal and Political Terms
That no persons […] that hold any new office under the crown created since 1705, are capable of being elected or sitting as members. […] That no person having a pension under the crown during pleasure, or for any term of years, is capable of being elected or sitting. […] That if any member accepts an office under the crown, except an officer in the army or navy accepting a new commission, his seat is void.101 – Sir William Blackstone (1768)
It is interesting to note that in the United Kingdom all Members of Parliament sitting in the House of Commons are technically not allowed to resign their seats.102 However, they can be voluntarily dismissed by accepting an ‘office of profit under the Crown’103 if they wish to resign,104 viz being appointed to be the Crown Steward and Bailiff of the Chiltern Hundreds, or the Crown Steward and Bailiff of the Manor of Northstead. I know that this institution ‘[looks] pretty odd’,105 and I cannot remember these ‘bizarre titles’ without checking references either, but the principle is essential to modern constitutionalism as it is designed to safeguard the people’s representatives from being influenced by the Crown ever since the Glorious Revolution.106 In a nutshell, it is crucial to accept that all members of the legislature are ultimately the people’s representatives and must have no connection with the ruler, be his or her title king, queen or president.
This is precisely the basis of parliamentary sovereignty.107 However, I must tell you that parliamentary sovereignty is a legal principle that carries a heavy political burden, namely that if parliament fails to represent democracy either substantively or procedurally – such as by passing a highly controversial bill without subsequently dissolving parliament to let the constituents confirm this is what they want by holding a prompt election – then nobody (including me) would uphold such a legal principle. It is in that sense that parliament is not, and will never be, supreme in actual terms, though it should be supreme in legal terms when it is fully backed up by the present democracy. No genuine democrat would accept that there is any authority superior to the present democracy because that would contradict what he or she asserts to believe by diminishing the legitimacy of democracy – and please note that what I mean by ‘authority’ should include the written constitution.108 I am aware that it is quite difficult for you to accept such a constitutional philosophy because of the American influence, so I would suggest that you all ask yourselves the following question every so often during your lives and your careers: is it worth derogating from the legitimacy of democracy, and what would the political price be for so doing? On 3 December 1858 Lord Lyndhurst made a speech in the House of Lords, and he said:
I never understood, nor could such a principle be acted upon, that we were to make a firm, determined, persevering stand against the opinion of the other House of Parliament, when that opinion is backed by the opinion of the people; and, least of all, on questions affecting, in a certain degree, the constitution of that House, and popular rights. If we do make such a stand, we ought to take care that we stand on a rock.109 – Lord Lyndhurst (1858)
I have already told you that it is not particularly meaningful to distinguish parliamentary sovereignty from popular sovereignty, and here is another reason why. As parliamentary sovereignty can last only for as long as parliament is fully backed up by the present democracy, it is hypocritical to insist that parliamentary sovereignty and popular sovereignty are distinguishable per se; and if parliament fails to represent the people – as in the scenario we customarily identify as the failure of representative democracy – there would be no parliamentary sovereignty to be recognised. I would suggest that you pay attention to how legislators should behave in order to bring the common will of their constituents to the legislature promptly, rather than wasting your time criticising British parliamentary sovereignty as something different to popular sovereignty, as the failure of representative democracy can occur in every country, and the assertion of popular sovereignty will not save you from that.
Now let me summarise this by telling you what parliamentary sovereignty means not only in legal terms but also in political terms: it means that parliament is the supreme lawmaker because it has the full support of the people, so no one – including the chief magistrate and the judges – should challenge the will of parliament, because that would constitute a contempt of democracy, viz the rule of law. And for the same reason, the constitution should be what parliament says it is110 – unless you are in doubt about the legitimacy of democracy, which shows you are an anti-democrat. However, parliamentary sovereignty in political terms is more likely a descriptive concept. It describes the absolute might of parliament in real politics when it is fully supported by the people. This is not something parliament deserves, it is the dignity and reputation parliament must do its best to earn. Now you can hopefully understand why I, as a British-trained constitutional jurist, will say a firm NO to my Legislative Yuan if it attempts to claim parliamentary sovereignty at this moment. I am afraid that the Legislative Yuan does not deserve it, do you not agree?
3.5 Fusion of Powers
The efficient secret of the English Constitution may be described as the close union, the nearly complete fusion of the executive and legislative powers. According to the traditional theory, as it exists in all the books, the goodness of our constitution consists in the entire separation of the legislative and executive authorities, but in truth its merit consists in their singular approximation. The connecting link is the cabinet. By that new word we mean a committee of the legislative body selected to be the executive body. The legislature has many committees, but this is its greatest. It chooses for this, its main committee, the men in whom it has most confidence.111 – Walter Bagehot (1867)
The fusion of powers is an idea developed by Walter Bagehot, a British jurist and economist who was the editor-in-chief of The Economist in the Victorian era. I can simply find no writer better than him in explaining the relation between parliament and its cabinet, and it is said that he wrote this book at the request of the UK Parliament, though I am unable to substantiate that rumour. Please pay attention to how he described the cabinet – it is precisely ‘the executive committee of the legislature’,112 such as the court of final appeal in the United Kingdom was ‘the Appellate Committee of the House of Lords’113 before 2009.114 Bagehot’s definition teaches us about the genuine roles of all ministers in a parliamentary system, that they are all legislative personnel rather than executive officials. Italian political scientist Sergio Fabbrini wrote:
The fusion of powers system is characterized by a political connection between the (majority) of the legislature and the executive. The latter may govern as long as the legislature supports it. The parliamentary system epitomizes historically the fusion of powers logic. Any parliamentary government requires the confidence (direct or indirect) of the legislature to operate.115
I mainly concur with what Fabbrini wrote, but I do not regard his writing as totally correct. He wrote that ‘[t]he [executive] may govern as long as the legislature supports it’,116 whereas I would put it more simply by saying that ‘the majority in the legislature shall rule because this is exactly what democracy means’. I would add one more sentence which some may consider provocative: ‘Those who challenge the legitimacy of majority rule are supporting minority rule in logical terms because there is no third option per se ’. Fabbrini wants you all to understand that those who exercise executive power under a parliamentary system should win the support of the majority in the legislature; he made this argument from the perspective of the executive. But I want you all to understand that democracy simply means majority rule, and you can only choose between majority rule and minority rule no matter how stupid majority rule is, because in purely logical terms no third option can subsist; I make this argument from the perspective of the legislature. In a nutshell, Fabbrini and I are describing the same thing from different standpoints, and we both want to let you know that the power base of the executive under a parliamentary system is the present and dynamic democracy. Only the ‘ present ’ and ‘ dynamic ’ majority in the legislature is entitled to rule (on a case-by-case basis, if that democracy is mature).
This is why I describe the parliamentary system – particularly the Westminster model as its prototype – as an institution that suppresses the ruler by democracy. As you are aware, King Charles III is still the ruler of the United Kingdom in theoretical terms, as modern UK Government governs the country by regal authority. However, the immortal Bill of Rights declares that ‘the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal’,117 which means that no one in the United Kingdom, including His Majesty himself, can lawfully use the executive power without the consent of democracy. In practical terms, the UK Parliament has already established ‘the executive committee’,118 viz the Cabinet, to administer the country in the name of the King for centuries, which makes His Majesty the King a nominal but sacred ruler. I would assert that under such a system the genuine ruler is either the people or the person who is under the dynamic control of the present democracy (if you define ruler in a narrow sense, as the person who uses the executive power in practice). This is the most logical and effective constitutional institution of democracy I have ever known, and that is why I doubt the effectiveness of an institution of democracy that implies any sense of anti-democratism – even if it asserts it for the sake of republicanism.119
4. THE PRESIDENTIAL SYSTEM: HINDERING THE KING FROM ARBITRARINESS
Before I begin the last part of my speech, I want to make it clear that I do not oppose American constitutionalism. I believe that it is not as good as its supporters claim, but it is still good enough, to the extent that I would definitely vote yes if my people decided to transplant American constitutionalism into my own country, especially if the decision was made on the grounds of the difficulty of adopting British constitutionalism at the present stage of our constitutional development.
One of the most important concepts in the way that federal government works is called separation of powers. That means that each of the three branches has different powers and responsibilities in running the government. The purpose of separation of powers is to prevent any one leader or branch of government from taking over the whole power of government. The power is divided among the branches in this way: the legislative branch (Congress) makes the laws, the executive branch (President) carries out the laws and the judicial branch (Supreme Court) interprets the laws.120
The above quote represents the common view of the American separation of powers in modern times. But that is just a theory, because all rulers carry out not only their laws but also executive discretions to administer their own countries. In most countries, it is accepted that these executive discretions are presumed legal until they are deemed illegal by the judiciary, because the executive powers in these countries are all said to be defined according to their respective constitutions, such as Article 2I(1) of the US Constitution. The denial of the supremacy of democracy under the American separation of powers framework is therefore fertile soil for executive power expansion, even though it is not as fertile as the soil of true despotism, because the people and their representatives in the legislature can only discourage the President from arbitrariness. As far as I am concerned, the presumption of all powers being granted by the constitution usually leads to arrogance on the part the ruler, that he or she may believe that he or she is protecting the executive power from being ‘stolen’ by the other branch of government, namely parliament or congress, rather than that he or she must bow before democracy.
4.1 The Myth of Written Constitution
Constitutions […] are never – to repeat, never – written down. They might possibly in principle be written down, but in practice they never are. There are, of course, written documents called Constitutions […] but they are never, ever coextensive with all of a country’s most important rules regulating the relations between different parts of the government and those between the government and the people.121
Professor Li and I had a series of discussions about the US Constitution many years ago. When he asked my opinion concerning the allegation that all powers of the United States had been settled by the US Constitution, my response was simple and direct, but a little bit discourteous: such an allegation, if it subsisted, was nonsense as far as I was concerned. I hope that you can all understand why I considered this allegation to be nonsense according to the above quote from British constitutional jurist Anthony S. King, and I would remind you all that if the problem of a civil law system (Da-Lu-Fa-Xi) lies in its overconfidence in the codification of laws, you would definitely have the same problem by believing the above allegation (if it truly subsisted) because they are the same in logical terms. To put it plainly, the written constitution (Cheng-Wen-Xian-Fa) is merely a product of the codification of laws (Cheng-Wen-Fa), and you will suffer if you think that all rules can be written down perfectly (and then codified, viz Cheng-Wen-Hua) if you uphold either a civil law system (Da-Lu-Fa-Xi) or a written constitutionalism (Cheng-Wen-Xian-Fa), because they are both the same in institutional terms.
Professor Li and I went on to talk about another myth – that the US Constitution was created by the most intelligent and prescient founding fathers or constitutional framers in human history, and they made it out of thin air (or ‘pure theory’), without referencing any institution in concreto. My answer on this occasion was simple, direct but also quite impolite: are we still talking about (social) science, or are we now talking about theology? Professor Li laughed and agreed that such allegation, if it subsisted, really went too far.
Our conversation continued. Professor Li asked me if it was possible to write down British constitutional conventions completely, and my answer was no. However, I also asked a question of my own: if the British constitution was a tangible institution that was set before us but it was impossible to write down the whole of it, how could it be possible to write down a constitution that was claimed to have been created out of thin air (or ‘pure theory’) completely? Then I told Professor Li that as far as I was concerned, the US Constitution was actually too valuable to need any myth, because it established a successful example of constitutionalisation for countries without a constitutional culture (such as our own country), albeit imperfect in terms of institutional design. But then nothing is perfect, right?
You all know that I am an advocate of parliamentary sovereignty,122 but that does not mean that I consider written (and rigid) constitutionalism useless – I am also an advocate of written (and rigid) constitutionalism even though I constantly criticise its institutional design. What I want you to know is that life is a matter of choice, and you must be aware of the price of your choice. I would never say that you cannot choose to kowtow to your rulers; I am a super odd constitutional law professor in this regard. But I do insist that you must know the consequences of making such a decision simply because you as human beings are entitled to know them. I cannot tolerate any attempt to conceal the institutional defects of either written or unwritten constitutionalism for that very reason, because it will prevent us from making the best possible choices all the time, which is a contempt of liberty, as well as a contempt of democracy.
The last part of our conversation was about super majority. I told Professor Li that I was (and still am) in favour of simple majority, but that I did not oppose a constitution with super majority rules if they were made democratically. Moreover, I said, these rules should be unleashed in line with established democratic procedures, viz by super majority votes, or they would constitute a contempt of the rule of law. As genuine believers in the rule of law, we can only change a rule in accordance with its due procedure, and the potential stupidity of the procedure is no excuse. He who advocates bypassing the established procedures on the pleas of clausula rebus sic stantibus or the bar being set too high, is simply acting like a rascal (Shua-Liu-Mang or Shua-Wu-Lai) and showing no respect for democracy or the rule of law – including to advocate for changing constitutional provisions through judicial decisions because the bar for amending the constitution is set too high, viz judicial activism.123 I also told Professor Li that only when we stick up for democracy and the rule of law are we truly motivated to make laws with deliberation, because we can only learn that making laws is no laughing matter when the time comes to enforce them, no matter how stupid they may be. Now, I expect that you are clever enough to realise the potential danger of applying super majority rule in democracies, so I would not repeat myself.
Rolls-Royce motor cars are nearly perfect, but they have a defect that cannot be ignored: they are too expensive. Parliamentary sovereignty is almost perfect constitutionalism as far as I am concerned, but it also has a defect: it is too difficult to transplant to other countries, or at least it is not possible for a country to learn it well within a relatively short time (please take India as an example). I believe that written (and rigid) constitutionalism is like a Ford motor car; you can complain all you like that it is not as good as a Rolls-Royce, and you would be right, but it is affordable and it gets the job done. I would laugh at those academics who hold that only parliamentary sovereignty deserves to be learnt, because what they are saying is that I can only choose between a Rolls-Royce and an oxcart. But I would also laugh at those who declare that written and (rigid) constitutionalism is a creation of a crowd of super-intelligent geezers, because it is hilarious, if not utterly ridiculous, to do so if you still consider yourself a serious social scientist. Creating myths about a written (and rigid) constitution is therefore unnecessary, but I still want you all to appreciate the value of written (and rigid) constitutionalism even though we learn and admit that it is far from perfect – indeed, most of us still need it unless we are British. So, please pay attention to Professor Li’s teaching and only consider mine as a supplement, because I teach you your ideal future whereas he teaches you about the unpleasant present that you have to confront now.
4.2 The Origin of the American Presidential System
In general, founding-era Americans associated executive power with the powers of the English monarch. […] [T]hey viewed the monarch as the executive branch of English government (Parliament being the legislative branch). This is not to say, it must be emphasized, that the powers of the English monarch can define the President’s constitutional powers: though the framers seemed to take the allocations of the English system as a baseline, they did not hesitate to alter them as they thought appropriate.124
For those who once believed in the American myth, can you tell me how you feel about the above quote from American jurist Michael D. Ramsey? I have no intention of ridiculing the American people, and I can also confirm that I have never heard of these ‘myths’ from any of my honourable American colleagues and friends (so I insist on repeating these words: if they subsist). However, these unfounded rumours are widespread, and they will simply mislead us into understanding the nature of the American presidential system. An anonymous article published in Volume 48 of the Albany Law Journal wrote that:
The Presidential system of the United States of America is however itself modelled on the English Constitution as it was in 1789. […] Mr. Bagehot insisted that the great neglected fact in the English political system was the government of England by a committee of the Legislature calling themselves the Cabinet. This is exactly the method of government to which George III refused to submit, and the framers of the American Constitution take George III’s view of the kingly office for granted. They give the whole executive government to the President, and they do not permit his ministers to have seat or speech in either branch of the Legislature.125
This article asserted that King George III was the model for the American President, and the American constitutional framers had no chance to see how Queen Victoria ruled the United Kingdom.126 I am not sure if King George III resisted the cabinet system or not, but at least this anonymous article – published in 1893 – asserted that in the eyes of the American constitutional framers it was their intention to prohibit the subordinates of their President ‘to have seat or speech in either branch of the Legislature’,127 because they assumed that was exactly how King George III corrupted the Parliament of Great Britain in the late 18th century.128 However, such an institutional design was still not their own unique creation – unless they were completely ignorant of what Sir William Blackstone wrote in the Commentaries on the Laws of England, which I doubt was the situation:
That no persons […] that hold any new office under the crown created since 1705, are capable of being elected or sitting as members. […] That no person having a pension under the crown during pleasure, or for any term of years, is capable of being elected or sitting. […] That if any member accepts an office under the crown, except an officer in the army or navy accepting a new commission, his seat is void.129 – Sir William Blackstone (1768)
Let me explain what I mean. If you claim that the American framers were ignorant of the Commentaries on the Laws of England, you are claiming that they were just a crowd of bumpkins instead of their country’s new elites. I would not make such a claim. Instead, I would argue that the American framers learned British constitutionalism well, but they obviously disliked it, because they had been bullied by the Parliament of Great Britain. I would say that they were probably suffering from PTSD, so their distrust of democracy was felt in the US Constitution, which has already become an open secret known to all. Let us read some comments about the American constitutionalism by American scholars:
The framers of our constitution in revolt from monarchy but in distrust of democracy devised our system of delegated or representative government over which the people have no legal or direct control.130
The roots of the American situation lie two centuries deep, in the Framers’ distrust of popular majorities. The delegates to the Philadelphia convention built significant antimajoritarian devices into the Constitution. In the Framers’ judgement, the great risk of popular government was tyranny of the majority.131
Tocqueville noticed early in American history that the power of judicial review was a special property of the American system of government. The political dimension of this power is rooted in the Framers’ distrust of democracy. This initial distrust makes democratic change to the document an extremely difficult process. The Founders put in sufficient amounts of poison pills to be sure to kill off any democratic overthrow of the Constitution and its aristocratic foundations. It was designed to serve aristocracy rather than democracy.132
Please understand that I do not have a medical degree, so my diagnosis of PTSD should be considered only as the conclusion of an amateur. However, we can still understand what kind of ruler the American founding fathers wanted their President to be after we learn their hostility towards democracy, regardless of whether they actually had PTSD or not. As far as I am concerned, they preferred a president who behaved like the British kings (or queens) of the pre-Glorious Revolution period133 to a figurehead president, because they expected that the US President would be able to say no to democracy one day, if he or she considered it to be the tyranny of the majority.134 However, they were also afraid of the US President, so they prohibited his or her subordinates ‘to have seat or speech in either branch of the Legislature’.135 American constitutional historian Paul D. Moreno wrote:
Eighteenth-century Americans adhered to the constitutional principles of 17th-century England, and the revolutionary and constitution-making period to a large degree repeated the history of 17th-century England. Especially notable was the resort to an extreme version of the separation of powers, due to the Americans’ belief that the influence of the king in Parliament had corrupted that body.136
4.3 John Locke and the Separation of Powers
The doctrine of the separation of powers dates back to John Locke. Writing in 1690, he recognised that if the same person has the power to make laws and to execute them, they may exempt themselves from the laws they make and use the law to their own private advantage. He therefore argued that there should be a separate legislature and executive.137
I told you earlier that it is incorrect to consider the American understanding of the separation of powers doctrine as the authoritative interpretation because the doctrine itself is neither a pure American nor a pure French philosophy, though I am not asserting it to be purely British (or English) either. The American version is ‘an extreme version of the separation of powers’138 in accordance with Paul D. Moreno, which leads us into to wonder what a moderate version might be. To answer this question, we should begin with John Locke, who wrote in Two Treatises of Government that:
[B]ecause the laws, that are at once, and in a short time made, have a constant and lasting force, and need a perpetual execution, or an attendance thereunto; therefore it is necessary there should be a power always in being, which should see to the execution of the laws that are made, and remain in force. And thus the legislative and executive power come often to be separated.139 – John Locke (1689)
When I first said to Professor Li that sovereign owner and ruler are conceptually different, as the former refers to the person who possesses supreme lawmaking power and the latter refers to the person who uses the executive power, he appreciated this idea immediately even though he was unaware of it being John Locke’s idea. This distinction helps us to understand the very nature of democracy, insofar as it should be a regime that recognises its people as the sovereign owners, viz parliamentary or popular sovereignty, and demands that its ruler – be his or her title king, queen or president – reigns over the country according to the common will of its sovereign owners. In order to stop advocates of the ancient Chinese political theory of demo-orientation140 (Min-Ben) – which I consider to be nonsense – from distorting or manipulating the definition of democratic regime, I should point out that some improper institutional designs (such as Chinese Min-Ben) will result in the transfer of sovereign power from the people to the ruler, forcing the people to become nominal sovereign owners in reality. Any country governed under this scenario is not a democratic regime, regardless of what its constitution says. Boasts (Chui-Niu) and facts are two different things.
Let us go back to John Locke, the founder of the separation of powers doctrine. What did he mean by separating the legislature and the executive? How would you understand his idea in line with the distinction between sovereign owner and ruler ? We should understand that he viewed the lawmaking power as the power of the sovereign owner and the executive power as the power of the ruler. However, it seems to me that his idea was a lot more than that, even though he wrote in an implicit approach:
[B]ecause it may be too great a temptation to human frailty, apt to grasp at power, for the same persons, who have the power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making, and execution, to their own private advantage, and thereby come to have a distinct interest from the rest of the community, contrary to the end of society and government.141 – John Locke (1689)
Two Treatises of Government was published anonymously in 1689, the same year that the immortal Bill of Rights was enacted. This means that it was likely that the book was drafted when King James II was the ruler of England. When you know the historical background, how do you understand the above quote now? Would you agree that Locke was implicitly arguing that the two powers must be separated in order to prevent the sovereign power or legislative power from being absorbed back to the ruling power or executive power? The trouble is that Locke never made this argument clear enough in Two Treatises of Government. We can argue that this argument and his thoughts are related in philosophical terms, but it is still possible that he was unaware of that. This gap in his teaching provides space for the British and the Americans to fit it around their preferred answers, and the British and American answers are both compatible with Locke’s thought as far as I am concerned, even though they are very different in institutional terms.
The answer given by the British is parliamentary sovereignty,142 whereas the American answer is to stick to ‘an extreme version of the separation of powers’,143 along with written (and rigid) constitutionalism. I would regard the British rather than the American answer to be ‘an extreme version of the separation of powers’144 because the de jure ruler under the British approach has become nominal, viz the King can do no wrong,145 and his executive power can only be exercised by the executive committee of the sovereign owners146 on his behalf (or in his name), thus making the sovereign owners the de facto rulers (or, at least making sure that the ruler, if he or she is defined as the person who administers the country, can use power only under the prompt consent of the sovereign owners). This institution is splendid per se, because its logic is that the best way to prevent the legislative power being absorbed into the executive power is to let the latter be absorbed by the former (fusion of powers), because the best way to prevent the ruler from becoming a tyrant is to compel him or her to bow before democracy. However, I still want to make a small dig at this British solution, in that it tells us that the best way to prevent yourself from being bitten by a dog is ‘to bite it until it dares not to bite you’. The reason why I make this joke is because I want you all to understand that sometimes the best answer lies in the logic you choose not to consider by instinct. If I were you, I would consider all possible answers even they sound hilarious; you would probably find it unnecessary to bite a dog, but I think it is necessary to at least growl at my ruler until he or she dares not to bite me.
4.4 American Separation of Powers
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.147 – Baron de Montesquieu (1748)
The above quote comes from Chapter XI of The Spirit of Laws, and I insist on using this English version exclusively because it is exactly the version used by the American constitutional framers Alexander Hamilton, John Jay and James Madison in The Federalist. Please be aware that I cannot read French, so I cannot comment on the accuracy of the translation. Now I want you to focus on comparing John Locke and Baron de Montesquieu, and when you do, you will realise that neither the executive nor the legislature deserves your trust in the eyes of Montesquieu, whereas we only know that the executive does not deserve your trust as far as Locke is concerned. Such a ‘minor difference’ in political philosophy not only distinguishes Baron de Montesquieu from Locke but also American constitutionalism from its British counterpart. In Chapter 48 of The Federalist, James Madison quoted Thomas Jefferson as follows:
All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands, is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one.148 – Thomas Jefferson (1785)
I must admit that I really cannot agree with Jefferson’s logic, because it leads to only one conclusion, that there would be no democracy in this world if majority rule is also identified as despotism. I agree that the majority rule may be awful or stupid, but it is still democratic. The nature of democracy will never – repeat, never – change because of quality, and with all due respect to those who allege that ‘a decision made democratically is undemocratic’, I can only comment that your logic is humorous. As to the issue of the tyranny of the majority,149 I have explained that many times before. I would not repeat it again, but I will ask a question instead: who determines which democratic decision shall be identified as the tyranny of the majority?
My PTSD argument continues. I completely understand that the Americans were bullied by the Parliament of Great Britain in the late 18th century, and I will also tell you that Jefferson’s logic is problematic. But I must inform you that his observation was TRUE in many democratic countries. In Introduction to the Study of the Law of the Constitution, British constitutional jurist Albert Venn Dicey wrote that Parliament, as the legal sovereign owner, was (and still is) bound by the political sovereign owners, viz the people, with two natural limits.150 One of the limits Dicey referred to can be understood as the limit that stops Parliament from making a specific decision because it makes no sense whatsoever for Parliament to make that decision in accordance with British culture, tradition, morality or philosophy.151 Dicey made the humorous observation that:
People sometimes ask the idle question why the Pope does not introduce this or that reform? The true answer is that a revolutionist is not the kind of man who becomes a Pope, and that the man who becomes a Pope has no wish to be a revolutionist.152 – Albert Venn Dicey (1915)
This is exactly why I always encourage my own people to think like the British and at the same time stop using the Chinese (or Taiwanese) way of thinking in institutional terms. As a British-trained constitutional jurist, I understand that many of our stupid choices – either in the field of law or politics – are totally beyond British consideration because these choices make no sense to them. It may always be essential to learn from (or imitate) the forerunner of constitutionalism in order to master crucial techniques and avoid the waste of effort. However, legal-constitutional transplant is something far more complex,153 because it is undemocratic or even anti-democratic for people who have already learned (as the minority) to force those who are still ignorant (as the majority) to make decisions in the light of British culture, tradition, morality or philosophy. It is very important to imitate (or to put it more plainly, Shan-Zhai) the way in which the British make legal and political decisions if we truly want to learn democracy and constitutionalism well, but it still contradicts the spirit of democracy if the majority of the populations of our respective countries are forced to do so.
It is not true to say that the American framers were all anti-democrats, but it is true that they had no faith in their own democracy,154 and it can even be said that their strong tendency towards scepticism about the supremacy of democracy was caused precisely by the Parliament of Great Britian of their era. Hence, they founded an uncrowned kingship and titled the chosen person the President, and ‘[gave] the whole executive government to [him], and … [did] not permit his ministers to have seat or speech in either branch of the Legislature’.155 They looked forward to seeing the US President and Congress fight each other endlessly,156 and they referred to an institution that expected the king (or queen) to fight their subjects as a system of ‘checks and balances’.157 This is the American solution provided by their founding fathers, and they even intended to stop any proposal to change this rule by setting an extremely difficult procedure for amending the constitution, viz the ‘rigid’ constitutionalism.
4.5 The Uncrowned King with Real Power
THE FRAMERS OF THE U.S. Constitution seem to have been remarkably wary of democratic government. Their principal concern was devising a strong central government with diffused power whose members would act on behalf of the body politic – a republic – rather than establishing popular supervision and control of public policymaking. To that end, the framers placed the federal government at a distance from its citizens.158
If you want to argue that the success of modern United States is rooted in their embrace of democracy, I am afraid that no American framer – neither Thomas Jefferson nor James Madison159 – would buy your argument. That does not mean that they were anti-democrats, but it is very clear that they were not democrats by modern standards – please be aware that many American framers, including the person who not only drafted the Declaration of Independence but also founded the Democratic Party (the Democratic-Republican Party in his time), were big slave owners before you choose to challenge this argument. I have no intention of embarrassing the Americans. All I mean to say is that the sense of democracy of their framers (which I do not regard it immoral or wrong because it was the late 18th century and therefore of its time) would make their constitutionalism undemocratic or even anti-democratic in some specific institutional designs.
If the American framers were ‘wary of democratic government’,160 it would be rational (and logical) for them to establish an executive branch that could say no to the American mobs institutionally, either by its own (executive) power or by the power of the judiciary (via judicial review). The power to say no to the mobs is exactly the power to say no to democracy in institutional terms, and the institution that is being awarded such a power is already the tyrant because it can decide who the mob is in practical terms by labelling a decision of democracy as the tyranny of the majority.161 If you believe that this is only the problem of the judiciary and is not the concern of the executive, you are being too naïve.
The Congress shall have Power […] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.162
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.163
Can anyone tell me how modern Americans understand the above two provisions of the US Constitution? Indeed that whilst only the US Congress has the power to declare war, it does not change the fact that the President has the (executive) power to use force against any country without declaring war, even though Congress has power to call off that war after any invasion. I wonder how Americans would feel about apologising to a country they had just invaded by telling that country: ‘Sorry! Our President invaded you without our advance consent’. Let us remember that the immortal Bill of Rights provided:
That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal.164
The power to say no to democracy can be understood in different ways, one of which is that the chief magistrate uses executive power in such a way that no one knows whether the people will consent or not. He who takes pre-emptive actions (Xian-Zhan-Hou-Zou) shows no respect of democracy, but his action may be legal (and therefore constitutional) when the following presumption states that:
The executive Power shall be vested in a President of the United States of America.165
The argument expressed in this article will lead to only one possible interpretation, that however the US President enjoys the executive power is presumed legal unless and until you win the related lawsuit against him or her in courts. You can argue that the US Congress can enact a specific act of Congress to limit the President from exercising executive power in a specific area, but how many acts are needed to remedy this legal presumption? I would rather adopt the legal presumption of the immortal Bill of Rights, would you not? When the Americans choose a strongman president, they will be tortured with endless lawsuits during his or her four-year presidency, and if this is not identified as despotism, then what is despotism? Please allow me to remind you all that this is part of the checks and balances routine under the American constitutional framework, because their framers did not buy the argument of parliamentary sovereignty,166 thereby demanding that their President not be a ‘yes-man’ before Congress. What is even worse is that you would never know whether or not an act of Congress against the President would be deemed unconstitutional before it went to the courts, because ‘the Constitution is what the judges say it is’.167 That surely means that you do not know whether you are an American mob in the eyes of the judges until they say so, does it not?
And for those who want me to talk about Article 2III(5) of the US Constitution, this is my answer: if I were the US President, I would tell you that I take the Take Care Clause seriously and firmly believe that my way of executing the law is correct. So, if you have a problem, that is just your own opinion; and if you truly think I am wrong, sue me!
5. CONCLUSION
Philosophy matters. The problem of modifying an institution without understanding the philosophy that underlies it is therefore quite a dangerous one because the way the butterfly effect might work is usually unpredictable. Constitutions are supposed to be developed to limit the ruler’s power, and this has been the case ever since the promulgation of the immortal Magna Carta. It is therefore logical to develop parliamentary sovereignty168 and the Westminster system further, because in philosophical terms it is ultimately an institution whereby the ruled (or the people) fight for their rights (and powers), and it is logically perfect to conclude that the end of this struggle must be the establishment of the supremacy of democracy. But if you adjust it a little and argue that the constitution must limit not only the power of the ruler, but also the power of the ruled (or the people), you provide the ruler with legal weapons that let him (or her) fight against the people via the constitution. In modern Taiwan and the United States you will find some ‘constitutional academics’ who defend the executive power, asserting that the ruler’s power cannot be touched because it is granted by the constitution, which means the people’s representatives have no power to intervene.169 As you know, I obtained a law degree in Taiwan (LLB) first and received a fundamental legal education (GDL) in the United Kingdom later, I, of course, understand how a written (and rigid) constitution works. But that system is still odd, if not downright hilarious, to me, because how can it be logical for King John of England to claim royal prerogative by referencing the immortal Magna Carta ? That is simply absurd!
The problem of American constitutionalism is that it refuses to accept the supremacy of democracy, though it is not fair to accuse it of being undemocratic or anti-democratic. The American framers thought about the price of embracing democracy completely, viz the tyranny of the majority,170 which is a valuable political heritage for all mankind. But it appears to me that they truly underestimated the price for distrusting, if not disdaining, democracy. Any institution that asserts it will redress the problem of democracy opens the door for dictatorship if it adopts undemocratic or anti-democratic means. The reason for that is simple: if we suggest or even teach people that the majority rule may be evil and can be revoked without a democratic decision, they will begin to tolerate (or justify) an undemocratic or anti-democratic administration when they consider it good, and no one would care about the inherent danger of the abuse of power, the due process of law or even the due procedure of lawmaking. Instead, they will believe that all majority decisions are wrong when they are the minority, and that their ruler’s unlawful behaviour just or understandable. They will even defend their ruler’s administration when it works in grey areas, especially when they have directly elected their ruler.
Please understand that I am not arguing that the American concern about the tyranny of the majority171 is nonsense – remember that I said that I would vote yes if my own people decided to transplant American constitutionalism into Taiwan. However, I really think that this dilemma is better not solved by legal-constitutional means, for it is too costly to distrust democracy. No one and no institution should have the power to say no to the present democracy, but the latest democracy should have the power to remedy the tyranny of the previous democracy. I want my countrymen to be wise and rational, so I accept ab invito the American institutional designs for redressing the tyranny of the majority172 before democracy in Taiwan becomes mature.
[...]
* David KC Huang has been a visiting fellow in constitutional law at the O.P. Jindal Global Law School in Delhi, India since 2018. He is a Taiwanese scholar specialising in constitutional law, administrative law, judicial politics and behaviourism, philosophy, sinology and mathematics. He received fundamental legal education in both civil law (Taiwan) and common law (England and Wales) jurisdictions, by which he can compare civil law jurisprudence with that of common law in detail. He also majored in philosophy and can read any classical Chinese literature within the past four millennia without a dictionary. He obtained his Ph.D. degree in constitutional law at SOAS Law School, University of London, with a thesis about Taiwan’s judicial supremacy through strategic decision-making in the 1990s. Email: dr.david.kc.huang@gmail.com
1 David K.C. Huang, The Spirit of Democracy: A Speech at Department of Politics, National Taiwan University (GRIN 2025) 39-41.
2 See generally Gregory A. Caldeira and Kevin T. McGuire, ‘What Americans Know about the Courts and Why It Matters’ in Kermit L. Hall and Kevin T. McGuire (eds), The Judicial Branch (Oxford University Press 2005) 262-279.
3 Bill of Rights 1689.
4 Constitutional Court Procedure Act § 47 (1958/2025).
5 Bill of Rights 1689.
6 John Austin, Lectures on Jurisprudence or the Philosophy of Positive Law, Vol II (Robert Campbell ed, John Murray Press 1885) 510.
7 Ibid.
8 Ibid.
9 John Austin, Fa Li Xue De Fan Wei [Lectures on Jurisprudence or the Philosophy of Positive Law] (Liu Xing tr, China Legal Publishing 2001) 1-385.
10 Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan Press 1915) 70.
11 See ibid; see also David K.C. Huang, The Spirit of Democracy: A Speech at Department of Politics, National Taiwan University (GRIN 2025) 23-25.
12 John Austin, Lectures on Jurisprudence or the Philosophy of Positive Law, Vol II (Robert Campbell ed, John Murray Press 1885) 510.
13 Ibid.
14 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.
15 Hans Kelsen, Pure Theory of Law (Max Knight tr, University of California Press 1967) 66-67.
16 Hans Kelsen, General Theory of Law and State (Anders Wedberg tr, Harvard University Press 1949) 124-135.
17 John Austin, Lectures on Jurisprudence or the Philosophy of Positive Law, Vol II (Robert Campbell ed, John Murray Press 1885) 510.
18 Ibid.
19 E.g., David K.C. Huang and Nigel N.T. Li, ‘Hans Kelsen and Court-Ordered Apology in Taiwan: A Critical Analysis of Judicial Yuan Interpretation No.656 [2009]’ (2020) 21(2) Asia Pac J HR & L 270, 270-297.
20 John Austin, Lectures on Jurisprudence or the Philosophy of Positive Law, Vol II (Robert Campbell ed, John Murray Press 1885) 510.
21 David K.C. Huang, Judicial Activism and Minimalism: A Speech at Department of Politics, National Taiwan University (GRIN 2025) 52.
22 David K.C. Huang, The Spirit of Democracy: A Speech at Department of Politics, National Taiwan University (GRIN 2025) 21.
23 HC Deb 11 November 1947, vol 444, cols 206-207.
24 Ian Loveland, Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction (Oxford University Press 2021) 76-77.
25 David K.C. Huang, Judicial Activism and Minimalism: A Speech at Department of Politics, National Taiwan University (GRIN 2025) 39.
26 Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan Press 1915) 420.
27 William Blackstone, Commentaries on the Laws of England: Book the First (Clarendon Press 1768) 239.
28 Colin Faragher, Public Law Concentrate (Oxford University Press 2012) 43 (indicating that ‘AV Dicey defined the Royal Prerogative as the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown. The Royal Prerogative is “residual” in the sense that the judges will not add to the monarch’s powers and that these powers can be taken away by statute, “arbitrary” and “discretionary” meaning that the monarch cannot be held accountable in the courts for the exercise of these powers, and applicable to the “the Crown” meaning either the monarch or the executive’).
29 BBC v Jones [1965] Ch 32, 79 (Diplock LJ).
30 Ibid.
31 Colin Faragher, Public Law Concentrate (Oxford University Press 2012) 43.
32 Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508, 539-540 (Lord Atkinson).
33 John N. Figgis, The Theory of the Divine Right of Kings (Cambridge University Press 1896) 1.
34 William T. Brande, A Dictionary of Science, Literature, and Art: Comprising the History, Description, and Scientific Principles of Every Branch of Human Knowledge; with the Derivation and Definition of All the Terms in General Use (Longman, Brown, Green and Longmans 1842) 342.
35 John N. Figgis, The Theory of the Divine Right of Kings (Cambridge University Press 1896) 5-6.
36 See Herbert L.A. Hart, The Concept of Law (Oxford University Press 2012) 66.
37 Stephen Lee, Weimar and Nazi Germany (Heinemann 1996) 41 (indicating that ‘[w]ith his two-thirds majority guaranteed, Hitler was now in a position to bring about his first change to the Constitution. In March 1933 he introduced the Enabling Act. This made it possible for the government to introduce its own laws and to by-pass the Reichstag if it wished. In July 1933 the Enabling Act was used to introduce the Law against the New Formation of Parties. Germany had now officially become a one-party state – and all through the use of the Constitution’).
38 Thoburn v Sunderland City Council [2003] QB 151 [59] (Laws LJ) (holding that Parliament ‘[b]eing sovereign, it cannot abandon its sovereignty’).
39 See generally Hsu Cho-Yun, China: A New Cultural History (Timothy D. Baker Jr. and Michael S. Duke tr, Columbia University Press 2012) 90.
40 William T. Brande, A Dictionary of Science, Literature, and Art: Comprising the History, Description, and Scientific Principles of Every Branch of Human Knowledge; with the Derivation and Definition of All the Terms in General Use (Longman, Brown, Green and Longmans 1842) 342.
41 John S. Major and Constance A. Cook, Ancient China: A History (Routledge 2017) 121.
42 Thomas T. Meadows, The Chinese and Their Rebellions: Viewed in Connection with Their National Philosophy, Ethics, Legislation, and Administration (Cambridge University Press 2015) 24 (indicating that ‘[t]he Chinese people have no right of legislation, they have no right of self-taxation, they have not the power of voting out their rulers or of limiting or stopping supplies. They have therefore the right of rebellion. Rebellion is in China the old, often exercised, legitimate, and constitutional means of stopping arbitrary and vicious legislation and administration’).
43 William T. Brande, A Dictionary of Science, Literature, and Art: Comprising the History, Description, and Scientific Principles of Every Branch of Human Knowledge; with the Derivation and Definition of All the Terms in General Use (Longman, Brown, Green and Longmans 1842) 342.
44 Magna Carta 1215.
45 Compare Union with Scotland Act 1706, with Union with England Act 1707.
46 Compare Union with Ireland Act 1800, with Act of Union (Ireland) 1800.
47 Bill of Rights 1689; see also Act of Settlement 1701.
48 Alex Woolf, ‘Community, Identity and Kingship in Early England’ in William O. Frazer and Andrew Tyrrell (eds), Social Identity in Early Medieval Britain (Leicester University Press 2000) 93.
49 Accord Sirkku Latomaa and Pirkko Nuolijärvi, ‘The Language Situation in Finland’ in Robert B. Kaplan and Richard B. Baldauf Jr (eds), Language Planning and Policy in Europe, Vol 1: Hungary, Finland and Sweden (Multilingual Matters 2005) 130 (indicating that ‘Finnish has even preserved some Indo-European loanwords in a nearly original form: Fi. kuningas is closer to Old Germanic kuningaz than its modern descendants, English king, German König or Swedish k(on)ung ’).
50 Frank F. Abbott, A Short History of Rome (Scott Foresman 1906) 287.
51 Ibid.
52 See generally Evelyn S. Shuckburgh, Augustus: The Life and Times of the Founder of the Roman Empire (BC 63 – AD 14) (T Fisher Unwin 1903) 1-301.
53 Donald McFayden, The History of the Title Imperator under the Roman Empire (University of Chicago Press 1920) 10.
54 Mao Zedong, Mao Ze Dong Yu Lu [Quotations from Chairman Mao Tse-Tung] (Dong-Guan 2005) 50 (a better translation might be: ‘the one who has military power shall have the regime’).
55 See generally Donald McFayden, The History of the Title Imperator under the Roman Empire (University of Chicago Press 1920) 1-67.
56 James D. Richardson (ed), A Compilation of the Messages and Papers of the Presidents, 1789-1897, Vol I (Authority of Congress 1900) 138.
57 James D. Richardson (ed), A Compilation of the Messages and Papers of the Presidents, 1789-1897, Vol VI (Authority of Congress 1898) 11.
58 Philip G. Dwyer, Citizen Emperor: Napoleon in Power (Yale University Press 2013) 129.
59 See generally Hsu Cho-Yun, China: A New Cultural History (Timothy D. Baker Jr. and Michael S. Duke tr, Columbia University Press 2012) 90.
60 John S. Major and Constance A. Cook, Ancient China: A History (Routledge 2017) 121.
61 Philip G. Dwyer, Citizen Emperor: Napoleon in Power (Yale University Press 2013) 129.
62 See ibid.
63 See generally David K.C. Huang and Nigel N.T. Li, ‘Mr. President Democracy: A Political Life in Modern Constitutionalism’ in Caleb M. Clark, Karl Ho and Alexander C. Tan (eds), Taiwan: Environmental, Political and Social Issues (Nova Science 2021) 281-282.
64 John S.C. Abbott, The History of Napoleon Bonaparte, Vol I (Harper and Brothers 1883) 280.
65 Ibid.
66 See generally Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan Press 1915) 37-82.
67 See generally 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.
68 John S.C. Abbott, The History of Napoleon Bonaparte, Vol I (Harper and Brothers 1883) 280.
69 Paul D. Monero, The Bureaucrat Kings: The Origins and Underpinnings of America’s Bureaucratic State (ABC-CLIO LLC 2017) 7.
70 David K.C. Huang, Judicial Activism and Minimalism: A Speech at Department of Politics, National Taiwan University (GRIN 2025) 39.
71 See generally Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan Press 1915) 37-82.
72 Mary A. Glendon, The Forum and the Tower: How Scholars and Politicians Have Imagined the World, from Plato to Eleanor Roosevelt (Oxford University Press 2011) 83.
73 Thomas Fleiner and Lidija R. Basta Fleiner, Constitutional Democracy in a Multicultural and Globalised World (Kate Le Roy tr, Springer 2009) 223.
74 Ibid.
75 Ibid.
76 Ibid.
77 See generally 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, 4-40.
78 John H.B. Masterman, Parliament and the People: A Course of Lectures Delivered in the Royal Gallery of the House of Lords in May 1909 (Headley Brothers 1909) 33-35.
79 Ibid 34.
80 Richard Hooker, Of the Lawes of Ecclesiastical Politie (William Stansby 1611) 29.
81 John Locke, Two Treatises of Government (Whitmore Fenn and C. Brown 1821) 302.
82 Charles L. de Secondat, The Spirit of Laws (Thomas Nugent tr, Cosimo 2011) 8.
83 See also Thomas P. Taswell-Langmead, English Constitutional History: From the Teutonic Conquest to the Present Time (Stevens and Haynes 1881) 716-717 (Lord Lyndhurst speaking in the House of Lords in 1858 that ‘It is part of our duty to originate legislation; but it is also a most important part of our duty to check the inconsiderate, rash, hasty, and undigested legislation of the other House; – to give time for consideration; and for consulting or perhaps modifying the opinions of the constituencies; but I never understood, nor could such a principle be acted upon, that we were to make a firm, determined, persevering stand against the opinion of the other House of Parliament, when that opinion is backed by the opinion of the people; and, least of all, on questions affecting, in a certain degree, the constitution of that House, and popular rights. If we do make such a stand, we ought to take care that we stand on a rock’).
84 Charles L. de Secondat, The Spirit of Laws (Thomas Nugent tr, Cosimo 2011) 8.
85 Ibid.
86 Bill of Rights 1689.
87 Hélène Landemore, Open Democracy: Reinventing Popular Rule for the Twenty-First Century (Princeton University Press 2020) 154.
88 See generally Ann Williams, The English and the Norman Conquest (Boydell Press 1995) 1-219.
89 City of London v Wood [1701] 12 Mod Rep 669, 688 (Lord Holt CJ).
90 See also A and Others v Secretary of State for the Home Department [2004] UKHL 56 [97] (Lord Hoffmann); David K.C. Huang, The Spirit of Democracy: A Speech at Department of Politics, National Taiwan University (GRIN 2025) 34.
91 R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115, 131 (Lord Hoffmann).
92 Ibid.
93 Julia Hargrove, Judicial Branch of the Government (Teaching and Learning 2000) 8.
94 Marbury v. Madison, 5 U.S. 137 (1803).
95 See generally Donald L. Beahm, Conceptions of and Corrections to Majoritarian Tyranny (Lexington Books 2002) 1-102.
96 Charles E. Hughes, Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906-1908 (G.P. Putnam’s Sons 1908) 139.
97 City of London v Wood [1701] 12 Mod Rep 669, 688 (Lord Holt CJ).
98 R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115, 131 (Lord Hoffmann).
99 A and Others v Secretary of State for the Home Department [2004] UKHL 56 [97] (Lord Hoffmann).
100 Bill of Rights 1689.
101 William Blackstone, Commentaries on the Laws of England: Book the First (Clarendon Press 1768) 175.
102 John Hatsell, Precedents of Proceedings in the House of Commons, vol 2 (Luke Hansard and Sons 1818) 78 (recording that ‘[o]n the 2nd of March 1623, it is agreed, That a man, after he is duly chosen, cannot relinquish’).
103 Samuel Warren, A Manuel of the Parliamentary Election Law of the United Kingdom of Great Britain and Ireland (Butterworths 1852) 188-191.
104 Duncan Watts, A Glossary of UK Government and Politics (Edinburgh University Press 2007) 35 (indicating that ‘[o]nce elected to Parliament, MPs cannot technically resign, but upon their appointment to this fictional office [i.e. Chiltern Hundreds] they cease to be eligible for Commons membership because they are holding “an office of profit under the Crown” – even if its tangible rewards are negligible’).
105 City of London v Wood [1701] 12 Mod Rep 669, 688 (Lord Holt CJ).
106 Samuel Warren, A Manuel of the Parliamentary Election Law of the United Kingdom of Great Britain and Ireland (Butterworths 1852) 188-189.
107 See generally Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan Press 1915) 37-82.
108 David K.C. Huang, The Spirit of Democracy: A Speech at Department of Politics, National Taiwan University (GRIN 2025) 39-41.
109 Thomas P. Taswell-Langmead, English Constitutional History: From the Teutonic Conquest to the Present Time (Stevens and Haynes 1881) 717.
110 Contra Charles E. Hughes, Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906-1908 (G.P. Putnam’s Sons 1908) 139.
111 Walter Bagehot, The English Constitution (Chapman and Hall 1867) 12.
112 Ibid.
113 Ministry of Justice, The Governance of Britain: Judicial Appointments (Consultation Paper Code No CP 25/07, 2007) 14 (indicating that ‘[a]nother example concerns the dual role of the House of Lords, as second chamber of the legislature, and as the highest appeal court in the UK. The Law Lords (Lords of Appeal in Ordinary), whose primary function is to sit as judges in the Appellate Committee of the House of Lords, are also able to sit in the House of Lords in its legislative capacity. The Law Lords adopted a statement of principles in June 2000 restricting their ability to take part in debates’).
114 Ibid 14-15.
115 Sergio Fabbrini, Which European Union?: Europe after the Euro Crisis (Cambridge University Press 2015) 296.
116 Ibid.
117 Bill of Rights 1689.
118 Walter Bagehot, The English Constitution (Chapman and Hall 1867) 12.
119 See generally Mortimer N.S. Sellers, American Republicanism: Roman Ideology in the United States Constitution (Macmillan Press 1994) 1-246.
120 Julia Hargrove, Judicial Branch of the Government (Teaching and Learning 2000) 8.
121 Anthony S. King, Does the United Kingdom Still Have a Constitution? (Sweet and Maxwell 2001) 3.
122 See generally Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan Press 1915) 37-82.
123 David K.C. Huang, Judicial Activism and Minimalism: A Speech at Department of Politics, National Taiwan University (GRIN 2025) 33.
124 Michael D. Ramsey, The Constitution’s Text in Foreign Affairs (Harvard University Press 2007) 97.
125 Sine Nomine, ‘The Presidential and the Cabinet Systems: Relation of Members of the Government to the Cabinet in England’ (1893) 48 Alb LJ 235, 236.
126 Ibid.
127 Ibid.
128 Ibid.
129 William Blackstone, Commentaries on the Laws of England: Book the First (Clarendon Press 1768) 175.
130 Herman L. Fairchild, ‘Commission Government for Rochester’ (1910) 4 The Common-Good of Civic and Social Rochester 16, 16.
131 Thomas E. Patterson, The American Democracy (McGraw Hill 1990) 65.
132 George Skouras, Constitutionalism and Democracy: The Supreme Court Power of Judicial Review v. We the People (Springer 2024) 31.
133 See generally Paul D. Moreno, The Bureaucrat Kings: The Origins and Underpinnings of America’s Bureaucratic State (ABC-CLIO 2017) 1-18.
134 See generally Donald L. Beahm, Conceptions of and Corrections to Majoritarian Tyranny (Lexington Books 2002) 1-102.
135 Sine Nomine, ‘The Presidential and the Cabinet Systems: Relation of Members of the Government to the Cabinet in England’ (1893) 48 Alb LJ 235, 236.
136 Paul D. Moreno, The Bureaucrat Kings: The Origins and Underpinnings of America’s Bureaucratic State (ABC-CLIO 2017) 7.
137 Ministry of Justice, The Governance of Britain: Judicial Appointments (Consultation Paper Code No CP 25/07, 2007) 13.
138 Paul D. Moreno, The Bureaucrat Kings: The Origins and Underpinnings of America’s Bureaucratic State (ABC-CLIO 2017) 7.
139 John Locke, Two Treatises of Government (Whitmore Fenn and C. Brown 1821) 314.
140 See generally 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.
141 John Locke, Two Treatises of Government (Whitmore Fenn and C. Brown 1821) 313.
142 See generally Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan Press 1915) 37-82.
143 Paul D. Moreno, The Bureaucrat Kings: The Origins and Underpinnings of America’s Bureaucratic State (ABC-CLIO 2017) 7.
144 Ibid.
145 See George Bowyer, Commentaries of the Constitutional Law of England (V and R Stevens and GS Norton 1846) 136 (indicating that ‘[t]he constitution therefore establishes the maxim, that the king can do no wrong. But the constitution requires that every act of the royal authority should be performed by the advice of councillors, who are responsible to parliament and to the law of the land’).
146 Walter Bagehot, The English Constitution (Chapman and Hall 1867) 12.
147 Charles L. de Secondat, The Spirit of Laws (Thomas Nugent tr, Cosimo 2011) 151-152.
148 Alexander Hamilton, John Jay and James Madison, The Federalist (George W. Carey and James McClellan eds, Liberty Fund 2001) 258.
149 See generally Donald L. Beahm, Conceptions of and Corrections to Majoritarian Tyranny (Lexington Books 2002) 1-102.
150 Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan Press 1915) 74-82.
151 See ibid 77-79.
152 Ibid 78.
153 See generally Pierre Legrand, ‘The Impossibility of “Legal Transplants”’ (1997) 4 Maastricht J Eur & Comp L 111, 111-124.
154 See generally Gregory A. Caldeira and Kevin T. McGuire, ‘What Americans Know about the Courts and Why It Matters’ in Kermit L. Hall and Kevin T. McGuire (eds), The Judicial Branch (Oxford University Press 2005) 262-279.
155 Sine Nomine, ‘The Presidential and the Cabinet Systems: Relation of Members of the Government to the Cabinet in England’ (1893) 48 Alb LJ 235, 236.
156 David K.C. Huang, Judicial Activism and Minimalism: A Speech at Department of Politics, National Taiwan University (GRIN 2025) 29.
157 Alpheus T. Mason and Donald G. Stephenson Jr., American Constitutional Law: Introductory Essays and Selected Cases (Pearson 2009) 82.
158 Gregory A. Caldeira and Kevin T. McGuire, ‘What Americans Know about the Courts and Why It Matters’ in Kermit L. Hall and Kevin T. McGuire (eds), The Judicial Branch (Oxford University Press 2005) 262.
159 Alexander Hamilton, John Jay and James Madison, The Federalist (George W. Carey and James McClellan eds, Liberty Fund 2001) 256-260.
160 Gregory A. Caldeira and Kevin T. McGuire, ‘What Americans Know about the Courts and Why It Matters’ in Kermit L. Hall and Kevin T. McGuire (eds), The Judicial Branch (Oxford University Press 2005) 262.
161 See generally Donald L. Beahm, Conceptions of and Corrections to Majoritarian Tyranny (Lexington Books 2002) 1-102.
162 U.S. Const. art. I, § 8, cl. 1 (1789).
163 U.S. Const. art. II, § 2, cl. 1 (1789).
164 Bill of Rights 1689.
165 U.S. Const. art. II, § 1, cl. 1 (1789).
166 E.g., Alexander Hamilton, John Jay and James Madison, The Federalist (George W. Carey and James McClellan eds, Liberty Fund 2001) 380 (indicating that ‘[t]he propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments, has been already more than once suggested; the insufficiency of a mere parchment delineation of the boundaries of each, has also been remarked upon; and the necessity of furnishing each with constitutional arms for its own defence, has been inferred and proved. From these clear and indubitable principles results the propriety of a negative, either absolute or qualified, in the executive, upon the acts of the legislative branches. Without the one or the other, the former would be absolutely unable to defend himself against the depredations of the latter’).
167 Charles E. Hughes, Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906-1908 (G.P. Putnam’s Sons 1908) 139.
168 See generally Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan Press 1915) 37-82.
169 E.g., Constitution of R.O.C. § 70 (1947).
170 See generally Donald L. Beahm, Conceptions of and Corrections to Majoritarian Tyranny (Lexington Books 2002) 1-102.
171 See generally ibid.
172 See generally ibid.
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