Common Good Constitutionalism in China?

Guest Blogger

For the Balkinization symposium on Adrian Vermeule, Common Good Constitutionalism (Polity Press 2022). 

Daniel Bell

            Professor Vermuele is clear that his intended audience “is neither the student of first-order policy questions, nor the professional student of jurisprudence.” Rather, his audience “is the intelligent observer of the law, whether or not a lawyer, who intuits that something has gone very wrong with our law and our legal academy, but isn’t sure exactly how or why” (p. 25). I’m a direct fit: I’m neither a policy analyst nor a lawyer but I’m genuinely puzzled by debates in American jurisprudence. In 1994-95, I was a research fellow at Princeton University’s Center for Human Values and witnessed the now famous exchange between Ronald Dworkin and Justice Antonin Scalia on constitutional interpretation. At the time, I thought both “sides” has serious problems. Justice Scalia argued that Supreme Court judges need to stick to the original meaning of the constitution, but I was persuaded by Dworkin’s response that they could not avoid invoking some moral principles from “outside.” On the other hand, I was also persuaded by Judge Scalia’s critique that Dworkin’s own constitutional interpretation is deeply worrisome because he always seems to conclude with the value judgments of the modern-day liberal left that stray far beyond the original meaning of the constitution and seem to give too much discretionary power to judges. Vermuele’s book has cleared away my confusion. Dworkin method of interpretation is largely correct – the judge should be open about the need for “moral readings of the constitution”, implemented through the method of fit and justification. But the principles of political morality that inform constitutional interpretation in the American context should be rooted in the (Roman and European) classical legal tradition of “common good constitutionalism” that not only influenced the founding fathers but can and should continue to be influential today. With this political morality in mind, application of the law may not always lead to results that favor one “side” in today’s constitutional debates. Sometimes, they will lead to results favorable to the political left (especially regarding economic and environmental justice), and sometimes to the political right (especially on cultural issues regarding the family and sexuality). I’m not entirely persuaded by the applications (especially regarding same-sex marriage)[1] but I’m almost entirely persuaded by Vermuele’s method of constitutional interpretation for an American context.[2] 

          But I want to comment on something different: the possibility of extending “common good constitutionalism” to the Chinese context. The challenges are obvious. The term itself, if directly translated as 共同善宪法主义, sounds strange if not foreign. China’s legal system was influenced by Germany’s legal system (via Japan) but the classical European legal tradition and ideas of the common good do not, to my knowledge, have much influence on past and present constitutional interpretation in China.[3] Not to mention that the Christian morality Vermuele occasionally invokes has negligible impact on China’s public culture. China’s own legal tradition known as Legalism (法家) strongly promotes aggressive warfare and emphasizes the need to enhance state power by means of harsh punishments that generate fear and obedience in the people, values that seems directly at odds with the (European-style) common good’s “famous trinity, peace, justice, and abundance” (p. 7).

            Still, I want to suggest that China’s legal community has a lot to learn from Vermuele’s book (and I hope it’s translated and published in China).[4] Confucianism is the dominant political morality in China and it continues to shape its legal system.[5] The Confucian tradition has a lot in common with “the general principles of [European-style] common good constitutionalism” (p.5) and let me note some of them here. As a method, Confucians would wholeheartedly endorse Vermuele’s claim that “the best way forward is to look backward for inspiration” (p. 183), though Confucians would look to the (idealized?) Zhou dynasty rather than the Roman legal tradition and Christian morality. Confucianism, similar to common good constitutionalism, “does not suffer from a horror of legitimate hierarchy” (p. 38) and would endorse hierarchies the promote the well-being of those on the bottom of social hierarchies.[6]  In terms of substance, Confucians would endorse Vermuele’s claim that “law flourishes as law when it incorporates, not liberationism whether of the economic or sexual varieties, but genuine concern for the common good at higher levels – individual, family, city, nation, and commonwealth of nations” (p. 23): the passage in the Great Leaning (大学) that through self-cultivation one can widen one’s heart and bring order and harmony to the family, the country, and the world as whole is one of the most famous and frequently cited passages in the Confucian corpus.[7] Confucians strongly emphasize that policy priority should be given to the most vulnerable members of the community such as needy individuals who cannot rely on family support for help (鳏寡孤独).[8] Hence, they would agree that “constitutional law will define in broad terms the authority of the state to protect the public’s health and well-being, protecting the weak from pandemics, and scourges of many kinds – biological , social, and economic – even when doing so requires overriding the selfish claims of individuals to private “rights” conceived as trumps protecting a zone of autonomy, rather than ordered to the common good” (p. 43). Finally, Confucians, for whom serving the political community is the highest good in the temporal world (Confucians are agnostic about the transcendental world), would endorse the common good idea that a flourishing political community is “the highest good for individuals as such” (p. 14). In short, there is much overlap between the political morality of European-style “common good constitutionalism” and the political morality of Confucianism. Vermuele is explicit that electoral democracy is only one possible way of institutionalizing “common good constitutionalism” (pp. 47-8) and might be open to the possibility that Chinese-style political meritocracy (贤能政治) can serve as a guiding ideal for “common good constitutionalism” in China. Confucians would agree that “bureaucracy will be seen not as an enemy, but as the strong hand of legitimate rule” (p.42), adding that all public officials should be promoted on the basis of ability and commitment to “serve the people.” Still, it should be recognized that the implications of Confucian political morality for jurisprudence are not always so clear. Confucian-inspired lawyers and judges can look to the more well-developed European classical legal tradition for systematic legal reasoning and ideas for limiting state power that infringes upon the common good.

            But the learning can go both ways. China’s political traditions can enrich “common good constitutionalism” in ways that may be appropriate for China and the rest of the world. For one thing, Confucians would endorse Vermuele’s argument that “morality is obviously a sound and, indeed, an unavoidable basis for public lawmaking” (p. 68), though they would add that it’s more effective to promote moral behavior by such informal means of rituals (礼) that generate a sense of community and care among participants, with legal means as a last resort.[9] So Confucians would want to avoid the proliferation of laws and regulations that inform excessively litigious societies such as the United States. Second, what we may call “common good Confucianism” would include “diversity in harmony” as a central value. The Confucian idea of harmony famously tolerates if not celebrates pluralism – one of the most famous sayings in the Analects of Confucius is that exemplary persons value “diversity in harmony” whereas petty people value sameness/uniformity/conformity. Vermuele seems to adapt “common good” theorizing to “contemporary conditions of extreme economic and social complexity” (p. 135), but it is also important to adapt theorizing to contemporary conditions of extreme pluralism (or what Rawls famously termed “the fact of pluralism) and here the value of “diversity in harmony” may be particularly relevant.[10] Finally, Confucianism can explain why the good of “abundance” should be so important.[11] Confucius said that the government should first “enrich” (富) the people and then educate (教) them[12] and his most influential interpreter Mencius explained why: a few sages (or saints) can be moral even in conditions of extreme poverty, but most people can only extend love and care beyond the family if they have basic material well-being and they’re not worried about getting their next meal.[13] Let me add that Marxists put forward another reason to value abundance: people can only be freed from drudge labor and able to exercise their creative talents if they live in a society where advanced machinery does most of the necessary labor.[14] I share Vermuele’s worry about an extreme “liberationist” agenda that undermines valued social ties, but hopefully he’d agree that a relatively wealthy society where people are freed from the need to engage in dirty, dangerous, mind-dulling and low-paying work would constitute an advance regarding what we might term the “level of civilization.”[15]  

Daniel A. Bell is Dean of the School of Political Science and Public Administration at Shandong University (Qingdao) and Chair Professor at Fudan University’s Institute for Advanced Study in Social Sciences (Shanghai). Email: daniel.a.bell@gmail.com.