China and Magna Carta-How Chinese view the historic document – and their own Constitution

China and Magna Carta

How Chinese view the historic document – and their own Constitution.

This year is the 800th anniversary of the issuing of Magna Carta, a milestone that has been marked around the world. Instead of merely watching from the sidelines, China has had its fair share of the jubilee: A series of conferences, seminars and talks have been organized across the country, numerous commentaries and papers have been written, and a commemoration ceremony is to be held at Renmin University this September.

Perhaps unsurprisingly, none of these activities is official. Although modern Chinese constitution-making started in the early 1900s, what is now officially and publicly honored only includes the 1954 PRC Constitution and the 1982 PRC Constitution. Even the other two PRC Constitutions enacted in 1975 and 1978 are no longer celebrated; they are considered to have been born out of the now discredited Cultural Revolution. It is hardly surprising then that the Chinese Communist Party and the government feel little affinity with the archaic English document. Indeed, unlike many other countries in the world – Britain and America are just two of the more prominent examples – the PRC never refers explicitly to Magna Carta in its official narrative, even though in 1949 Zhang Lan, the leader of the Democratic League and participant in the first People’s Political Consultative Conference, praised the then imminent Common Program as the “People’s Great Charter.”

The Common Program was the constitutional document drafted by the Communist Party and collectively signed by other major Chinese political parties (apparently excluding the rival KMT) in September 1949. It is widely considered the written Constitution for the People’s Republic prior to the 1954 one. When Zhang Lan called it the “People’s Great Charter,” what he most likely meant is that in Articles 1-6 the Common Program proclaims the principle of people’s sovereignty, abolishes the privileges of foreign imperialists in China, and guarantees electoral rights, the freedom of thought, speech, association, communication, person, movement, religion, and protest, as well as the equality of the sexes. Whether these words on paper were or are realized in reality is a separate matter – to name China’s own Constitution the “great charter” is in and of itself a powerful symbol, which at least conveys the expectation on the part of the Chinese people that a Constitution ought to honor rights and liberties.

And that is also the way in which many Chinese view Magna Carta today. To be clear: Since most ordinary Chinese have not even heard of the document, nor do they care much about it, what follows is in no way a representation of overall public sentiment in China nowadays. Rather, it is a snapshot of how Chinese intellectuals think about Magna Carta. And there are two kinds of perspectives.

On the one hand, Magna Carta is seen to be primarily, if not all, about individual rights and freedoms, especially those against the ever intrusive government/state. As in many other countries, this has long been the mainstream position in China. On this front, Zhang Junmai’s translation-commentary of Magna Carta in 1944 is most revealing. Zhang (1887-1969) was a law graduate from Waseda University in Japan and the University of Berlin in Germany. An eminent scholar-statesman of his time, he drafted the 1946 Republic of China Constitution, which still provides the foundation for the constitutional regime in Taiwan today. Zhang distilled Magna Carta down to two mutually reinforcing things: limitation of the supreme power and the protection of human rights. To most this is no surprise; after all, for centuries Magna Carta has been widely held aloft as a beacon of limited government and human rights. Zhang’s introduction and analysis of Magna Carta is just an early epitome of this fairly universal experience in China. However, he was by no means portraying an anachronistic and therefore over-simplified picture. He rightly pointed out that Magna Carta was no more than a covenant between the nobility and the King that guaranteed the then already existing privileges of an extreme minority of society. It had nothing to do with modern democratic government, characterized by separation of powers and election. What England was very good at though, in Zhang’s opinion, was to stealthily transform traditional rules and institutions – to “pour new wine into the old bottle.” Over time, the absolute monarch became a parliamentary monarchy, parliament went from representing various estates to speak for the entire nation, and the electoral franchise became much broader. On this, Zhang Junmai obviously fell under the spell of what is known as the “Whig Tradition,” which conceptualizes English history as a linear progress towards democracy and freedom.

A Myth Worth Believing

Such Whig historiography has lost much of its currency among professional historians today. A New Yorker piece by Harvard historian Jill Lepore published on April 20 was translated into Chinese two days later and has since been broadly disseminated over the Chinese online press: “It would not be quite right to say that Magna Carta has withstood the ravages of time. It would be fairer to say that…it is on occasion taken out of the closet, dusted off, and put on display to answer a need. Such needs are generally political.” Therefore, Magna Carta as a “single, stable, unchanged document” is a constructed myth. Yet to many Chinese intellectuals that does not negate the contemporary relevance and significance of Magna Carta to China – even if it is myth, it is one that is worthy of believing in. He Weifang, a leading legal scholar at Peking University famous for his outspoken criticism of the government from time to time, wrote in June that “the value of Magna Carta lies not in what exactly was expressed in the articles or how it was understood by the original drafters and signatories. What’s important is how it is interpreted by readers of later generations.” Pointing out that it was Magna Carta that first sowed the seed of due process of law, He emphasized that this venerable English document remains an inspiration to the development of rule of law in China today. Another Chinese commentator opined that the true value of Magna Carta is to be found in its somewhat accidental yet fortunate implementation in practice – “the English people have luckily seized the opportunity to realize one possibility embedded in haphazard events to the fullest extent.” As a result, what Chinese need to pay attention to today is not the mythical document per se, but how and why it got enforced and reinforced over time.

But there is always more than one way to read a myth. An alternative view has been put forth recently in a Chinese article titled “Two Fates of the Great Charters,” which introduces to the Chinese readers a newly published book called Magna Carta: Central & East European Perspectives. In that article, based on the findings of the book, the author highlighted the fact that historic documents containing privileges of the nobility vis-à-vis the king were also present in many East European countries. For instance, the Golden Bull of 1222 in Hungary and the Pact of Koszyci of 1370 in Poland were both covenants rebel nobles forced out of militarily defeated kings. But why is the English Magna Carta alone still remembered today? What caused the starkly divergent fates of those great charters in Europe? The key insight of the book, represented in the article to the Chinese readership, is that when the nobility becomes too powerful compared with the monarch, it tends to degenerate into an irresponsible and unrestrained group interested only in its own privileges, weakening state capacity in its struggle against the monarch and ultimately leading to the failure of the entire state. This is exactly what happened in Eastern Europe. In contrast, the U.K. consistently had a strong monarch able to balance the nobility, preventing the latter from turning into a narrow-minded group pursuing its own interests at the expense of the country. Yes, the Magna Carta did noticeably impose both substantive and procedural constraints on the monarchical power of taxation – but at the same time, it also confirmed the fundamental legitimacy of such power. In other words, setting up boundaries for the king’s power actually sets it free – as long as it is wielded within those boundaries. The Chinese author therefore concluded: The success of Magna Carta is rooted not in the document itself, but in the strengthening of state capacity with a strong monarch at its core. While constituting a check on the absolute power of the king, with equal if not more significance, Magna Carta served to facilitate state-building and enhance state capacity, too.

Chinese Parallels

This is how Chinese view Magna Carta today. For one thing, there is the familiar story that Magna Carta is an icon of limited government and individual freedom; for another, there is this emerging narrative that it is also about strong government and state capacity. In fact, one may well find intellectual parallels in how Chinese academics view their own Constitution. The mainstream standpoint, propagated by such esteemed constitutional lawyers as Professor Zhang Qianfan at Peking University, is that the Chinese Constitution should focus on and lags behind in checking the party-state’s power and protecting rights and freedom. His famous motto is that China has “a Constitution without constitutionalism.” This strand of thought has been well manifested in the widespread call for “judicialization” of the Chinese Constitution, the heated academic debate following the 2001 Qi Yulin case, as well as the public enthusiasm sparked by the 2003 Sun Zhigang incident. Seen in this light, it is no accident that Professor He Weifang considered Magna Carta a source of inspiration to the development of rule of law, and indeed constitutionalism in China.

Alternatively, in recent years, a group of Chinese political and constitutional scholars started to look beyond the dominant paradigm and pay attention to the “realities” of the existing constitutional order in China: how the Chinese polity is actually “constituted.” For instance, with a coolheaded reading of the constitutional text, Professor Chen Duanhong from Peking University suggested that there are five fundamental political principles embedded in and enshrined by the current PRC Constitution. Apart from protecting the basic rights of individuals, listed as the last principle, the other four principles are, in sequence: Chinese people under the leadership of the Chinese Communist Party, socialism, democratic centralism, and modernization. What’s particularly revealing here is that Chen attaches higher priority to elements at the macro level than individual rights when describing the present Chinese constitutional order. Professor Jiang Shigong, also from Peking University Law School, urges that more attention be paid to China’s unwritten constitution, which takes the forms of the party’s constitution, constitutional conventions, and constitutional doctrine, enshrining such principles as party leadership, the trinity rule system under which the CCP general secretary is also the commander in chief and state president, the dynamic central-local relationship, as well as “one country, two systems.” Professor Larry Catá Backer from Penn State University proposes that it is possible to theorize a state-party model of state organization that remains true to the ideals of constitutionalism grounded in the core postulate of rule of law governance. To achieve that one needs to see the CCP not as a political party or as a private actor, but as an integral part of the institutional structure of government, and more importantly, as the holder of political citizenship. Backer then concludes that even state-party systems can claim a certain legitimacy as a constitutionalist system, albeit one whose substantive values are inconsistent with those of secular transnationalist constitutionalist states, represented, perhaps most notably, by his own country. In other words, China is still a constitutional state, although it is constituted in a different way.

The above are two abstracted ideal types representing contrasting views in Chinese academic literature and popular discourses. While the first position can be called the Liberal standpoint of view, the second view is often labeled New Left thinking. Since China remains a socialist party-state, the “Left” carries different connotations than it does in the West: Instead of standing for progressive anti-establishment proclivity, being leftist in China actually means being pro-establishment and status quo. Seen in this light, the rights-oriented reading of Magna Carta is ultimately underlain by a deep-seated dissatisfaction with constitutionalism (or the lack thereof) in China, especially its human rights conditions. By liberal standards, China’s own Constitution is yet to be fully implemented. The state capacity-centered reading of Magna Carta, by way of contrast, calls for a more careful look at what is indeed included in the written PRC Constitution and to what extent that has already been realized in practice. This shift in analytical unit from individuals’ rights to the role of a strong and special Party in the overall constitutional structure demonstrates the methodological difference between the two divergent ways in which Chinese view Magna Carta and their own Constitution today: On one end stands methodological individualism, on the other methodological holism.

Whether or not such methodological disagreement amounts to any difference at the axiological level is a matter of debate. Whereas some criticize the New Leftist constitutional thinking for having abandoned its critical stance towards the status quo, that is not necessarily the case. This is because recognizing and describing the existing realities of constitutional order in China is not by definition to accept it. For instance, whilst acknowledging that party leadership is essential in constituting the Chinese state, Professor Chen Duanhong also stressed that the Party needs to be democratized and become more transparent in order to truly and better conform to the principle of people’s sovereignty, which is enshrined precisely in the name of the PRC. A fine distinction has been made by political science scholar Li Qiang from Peking University between state capacity and concentration of power: The former may in fact be undermined if power is too centralized and concentrated; human history has repeatedly witnessed weak despotic regimes.

In March this year, Chinese Ambassador to the U.K. Liu Xiaoming delivered a speech in London commemorating the 800th anniversary of Magna Carta. Besides paying homage, he stressed that the Chinese Communist Party is genuinely committed to the core value represented by Magna Carta, the rule of law. Perhaps not by accident, the ambassador avoided such expressions as “human rights” and “liberties.” But he did mention explicitly that the Communist Party itself must be bound by the Constitution and law, which are in turn made by the Chinese people under the leadership of the Communist Party. Therefore, there is no inherent contradiction between rule of the Party and rule of law. In fact, this is the line trodden by President Xi Jinping time and again in recent years. Ultimately, it can be seen as an attempt by an ancient civilization to meld in the 21st century different elements contained in Magna Carta and the divergent expectations the Chinese have for their own Constitution. Whether that will succeed or not, only time can tell.

Chun Peng is a Postdoctoral Fellow at Peking University Law School. He has a DPhil in Law from the University of Oxford.