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Published online by Cambridge University Press: 13 June 2019
This article explores the Chinese cognition of democracy in accordance with ancient Chinese political philosophy and modern constitutional jurisprudence. It argues that the classical Chinese cognition of democracy, i.e., demo-orientation, does not consist of any sense of equality and procedure, by which the Chinese people easily confuse democracy by the people with democracy for the people, thinking that China’s democracy subsists when the Chinese Government decides in favour of their interests. Moreover, the lack of sense of procedure produces inadequate means against tyranny, that the Chinese people can either admonish the ruler when he or she is still tolerable, or rebel when he or she is unbearable. Neither means serves institutionally.
Visiting Fellow in Constitutional Law.
Professor of Law and Chairman of Lee and Li, Attorneys-at-Law.
1 Zheng, Y, Discovering Chinese Nationalism in China: Modernization, Identity, and International Relations (Cambridge University Press, Hong Kong, 1999) 65.Google Scholar
2 Xiao, S, Li Shi De Xian Sheng: Ban Ge Shi Ji Qian De Zhuang Yan Cheng Nuo: Xin Hua Ri Bao, Ren Min Ri Bao She Lun Xuan [The Herald in History: The Solemn Oaths of the Communists in 50 Years Ago: The Selected Editorials of Xinhua Daily and Jiefang Daily] (Shantou University Press, Shantou, 1999) 3–5.Google Scholar
3 (n 2) 73 (authors’ translation).
4 Mao certainly is not an ordinary Chinese person in terms of either political sophistication or political sensitivity, which makes our puzzle even more puzzling: why could the Chinese people not do anything when he turned against democracy?
5 See generally Siew-Chey, O, China Condensed: 5000 Years of History and Culture (Marshall Cavendish, Singapore, 2005) 1–108.Google Scholar
6 See Zhang, SN, Confucianism in Contemporary Chinese Politics: An Actionable Account of Authoritarian Political Culture (Lexington Books, Lanham, MD, 2015) 1–15.Google Scholar
7 See generally Fu, Z, Autocratic Tradition and Chinese Politics (Cambridge University Press, New York, 1993) 15–169.Google Scholar
8 See generally Shin, DC, Confucianism and Democratization in East Asia (Cambridge University Press, New York, NY, 2012) 115–23.Google Scholar
9 Contra (n 6) 17–52.
10 Li, N NT, Ren Guo Zhi Li: Xian Fa Bian Qian De Kua Yue [The Classical Chinese ‘Li (Charter)’ of the Land and the People: The Transition of China’s Constitutionalism] (San Min Books, Taipei, 2012) 45–9.Google Scholar
11 Shuming, L, Zhong Guo Wen Hua Yao Yi [The Essential Thoughts of the Chinese Civilisation] (Shanghai People’s Publishing, Shanghai, 2005) 252–3.Google Scholar
12 It is noteworthy that the concepts of separation of powers and checks and balances were unknown to Confucianism or other school of thoughts before both were introduced into China from the West. It has been a foreign idea which is not grounded in political reality even today in mainland China. Hence, it cannot fill the mechanism devoid of some moderate approach next to the final resort of rebellion as suggested by Confucianism in the extreme case of tyranny.
14 (n 13) (authors’ translation).
15 See generally (n 10) 117–28.
16 (n 10) 117–24.
17 (n 13) (authors’ translation).
18 Hsu, C-Y, China: A New Cultural History, translated by Baker, TD Jr. and Duke, MS (Columbia University Press, New York, NY, 2012) 91.CrossRefGoogle Scholar
19 Shaughnessy, EL, ‘Western Zhou History’ in Loewe, M and Shaughnessy, EL (eds), The Cambridge History of Ancient China: From the Origins of Civilization to 221 B.C. (Cambridge University Press, New York, NY, 1999) 292.CrossRefGoogle Scholar
20 (n 10) 120–1.
21 Major, JS and Cook, CA, Ancient China: A History (Routledge, Abingdon, 2017) 121.Google Scholar
22 Bao, E, China’s Child Contracts: A Philosophy of Child Rights in Twenty-First Century China (Blue Mountains Legal Research Centre, Blaxland, New South Wales, 2008) 141.Google Scholar
23 Meadows, Cf TT, The Chinese and Their Rebellions: Viewed in Connection with Their National Philosophy, Ethics, Legislation, and Administration (Cambridge University Press, Cambridge, 1856/2015) 24.CrossRefGoogle Scholar
24 (n 22) 141.
25 See (n 21) 121.
26 Compare (n 21) 121 with (n 22) 141.
28 Ibid.
29 (n 13) (authors’ translation).
30 See generally (n 10) 118–19 (indicating that the King Wen of Zhou’s Victory against Li shows that the mandate of heaven was a political theory developed by Shang originally, but it was adjusted and modified by the Zhou people in line with their need of a way to justify Zhou overtaking Shang).
31 See generally (n 10) 128–35.
32 E.g., Bodde, D and Morris, C, Zhong Hua Di Guo De Fa Lu [Law in Imperial China], translated by Zhu, Y (Jiangsu People’s Publishing House, Nanjing, 2008) 163Google Scholar (providing a criminal case in which Emperor Qianlong overruled the nulla poena sine lege principle, and the judges could only comply with the Emperor’s order).
33 See generally (n 10) 135–50.
34 (n 11) 191–3.
35 United States Declaration of Independence (1776).
36 See generally Shenefelt, M and White, H, If A, Then B: How the World Discovered Logic (Columbia University Press, New York, NY, 2013) 88–91 (indicating the law of non-contradiction, i.e., LNC).Google Scholar
37 See generally (n 10) 135–50.
38 See generally Brande, WT (ed), 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, London, 1842) 342Google Scholar (indicating that ‘Dieu et mon droit has always formed the royal motto of England’).
39 (n 10) 3–8 (interpreting that the Confucian concept of ‘Li’ is the rules in accordance with relationship, and only the rules governing the relationship between friends are equal).
40 See generally (n 10) 3–186 (indicating that equality, if anything foreign to Confucianism, is not at all a denial of the significance of human relationships, but a new conceptual element to, at least some of the social bonding, such as the relationship between the ruler and the ruled, that traditional Confucianism emphasises as not ignorable by the individual human being for a peaceful living in the world).
41 See generally Zhang, Q, Human Dignity in Classical Chinese Philosophy: Confucianism, Mohism, and Daoism (Palgrave Macmillan, New York, NY, 2016) 17–142.CrossRefGoogle Scholar
42 (n 41) 17.
43 (n 10) 135 (authors’ translation).
44 Li, N NT, ‘Cong Ping Deng Dao Xian He: Ping Deng Tiao Kuan Ru Xian Shi Tan Pian [From Obscurity to Light: Tracking Equality’s Rise in the Making of Chinese Constitutions]’ (2013) 24 Fa Zhi Shi Yan Jiu [Journal for Legal History Studies] 263, 286.Google Scholar
45 (n 44) 265–6 (explaining that the term ping dung was initially created for the use of translation of Buddhism, which implies the concept of equality in afterlife, and so remained mainly a term of religious nature without carrying any secular meaning to affect or to challenge the ideological foundation of Confucianism in prevailing social, ethical and political norms).
46 See generally (n 10) 99–186.
47 Compare Magna Carta (1215) with United States Declaration of Independence (1776) (providing that the consent of the governed is indispensable).
48 Cf H H-P Ma, Law and Traditions in Contemporary Chinese Society (National Taiwan University, Taipei, 1999) 43–57.Google Scholar
49 Ibid 50.
50 (n 10) 3–8.
51 Cf (n 41) 199 (arguing that ‘the classical ideas about human dignity require the establishment of a constitution’).
52 (n 41) 200.
53 See <https://ctext.org/shiji/ru-lin-lie-zhuan/zh> (implying the Chinese logic since the Grand Historian Sima Qian that a ruler is a tyrant when a revolution against him is successful).
54 (n 41) 199.
55 Ibid.
56 N NT Li, ‘“Min Zhi Fu Mu” Yu Xian Qin Ru Jia Gu Dai Xian Zheng Si Xiang Chu Tan: Cong Shang Bo Chu Zhu Shu Jian Wen Tan Qi [The First Exploration of the Concept of the “People’s Parent” and the Ancient Confucian Constitutionalism: From the Shanghai Museum Bamboo Slips]’ in H H-P Ma (ed), On Theories and Institutions of Law: In Honor of the 80th Birthday of Professor Herbert Han-Pao Ma: Public Law (Angle Press, Taipei, 2006) 1–47.
57 Ibid 1–47; see also (n 10) 9–55 (originally published by Angle Press in 2006 and re-published by San Min Books Co. and Lee and Li Foundation in 2012).
58 (n 10) 42–5.
59 See also Constitution of R.O.C. section 1 (1947) (stipulating that ‘[t]he Republic of China … shall be a democratic republic of the people, to be governed by the people and for the people’).
60 Keyes, R, The Quote Verifier: Who Said What, Where and When (St. Martin’s Griffin, New York, NY, 2006) 83.Google Scholar
61 (n 10) 43 (supported by A Y-C King and some Japanese sinologists).
62 Ibid 43 (supported by K-C Hsiao but disagreed with Sa M-W, who further indicated that the Chinese concept of democracy consists only of democracy for the people, but neither of the people nor by the people).
63 Ibid 43–4 (authors’ translation).
64 Huang, D KC, Judicial Supremacy in Taiwan: Strategic Models and the Judicial Yuan, 1990–1999. PhD dissertation in constitutional law, SOAS, University of London, 2016 (Angle Thesis & Dissertation Submission Programme, Taipei, 2018) 1–424.Google Scholar
65 Ibid.
66 Ibid 59–67.
67 Ibid 157.
68 (n 10) 43.
69 (n 64) 1–424.
70 Ibid 144–51.
71 Ibid 63.
72 Compare (n 10) 42–5 with (n 64) 59–67.
73 (n 10) 45–9.
74 (n 64) 67–75.
75 Ibid 63.
76 See Gehrig, L and Hirt, T, Rechtskunde: Grundlagen mit Beispielen und Repetitionsfragen mit Antworten [Law: Fundamentals with Examples and Repetitive Questions with Answers] (Compendio Bildungsmedien, Zürich, 2002) 193.Google Scholar
77 E.g., Krey, V, German Criminal Procedure Law: Vol 1 (W Kohlhammer, Stuttgart, 2009) 1.Google Scholar
78 E.g., Van Dervort, TR, American Law and the Legal System: Equal Justice under the Law (Thomson Learning, Albany, NY, 2000) 55–7.Google Scholar
79 For example, we consider the pursuit of human rights a form of substantive democracy. However, it is obvious that the contemporary Western democracy rests on the pursuit of procedural democracy and we particularly appreciate this character.
80 See generally (n 10) 9–55.
81 See Fang, N, China’s Democracy Path, translated by Y, Wu and A, Liu (Springer, Berlin, 2015) 1–12.CrossRefGoogle Scholar
82 Storey, Cf L, Humanity or Sovereignty: A Political Roadmap for the 21st Century (Peter Lang, New York, NY, 2006) 22–3Google ScholarPubMed (indicating that, in China, ‘the only legitimate government was one that offered good government to all humans’ in accordance with Mencius; vice versa, procedural democracy such as elections is completely not the core); see also Perry, EJ, ‘Chinese Conception of “Rights”: From Mencius to Mao – and Now’ (2008) 6(1) Perspectives on Politics 37, 37–47 (holding that the Chinese political ‘rights’ only lie in the development of ‘an economically comfortable society’).CrossRefGoogle Scholar
83 See generally Katz, RS, Democracy and Elections (Oxford University Press, New York, NY, 1997) 3–9.CrossRefGoogle Scholar
84 See generally (n 10) 38–54.
85 Compare (n 10) 38–54 with (n 64) 59–67.
86 See generally Kelsen, H, Pure Theory of Law, translated by Knight, M (University of California Press, Berkeley, CA, 1967) 158–63.Google Scholar
87 One of our co-authors confronted with a challenge based upon elitism held by a Chinese student, who held that all the Chinese people should comply with the decisions made by elites. He responded: I am sure that you agree you are not an elite in front of me. Suppose that your argument is correct, what gives you the position to challenge an elite like me? Why cannot you just comply in accordance with your own argument? Or, you just prove your argument wrong?
88 Youngs, Cf R, The Puzzle of Non-Western Democracy (Carnegie Endowment for International Peace, Washington DC, 2015) 88–90.Google Scholar
89 HC Deb 11 November 1947, vol 444, col 207.
90 Ibid, col 206.
91 See (n 81) 1–12.
92 Talmon, Cf JL, The Origins of Totalitarian Democracy (Mercury Books, London, 1961) 1–13; contra (n 88) 90 (indicating that ‘China’s supporters say it has learned responsiveness and self-correction better than Western democracies’).Google Scholar
93 (n 10) 45–49.
94 See generally (n 83) 3–9.
95 King, Cf A Y-C, Zhong Guo Min Ben Si Xiang Shi [The Intellectual History of China’s Demo-orientation] (Commercial Press, Taipei, 1993) 47–50.Google Scholar
96 (n 10) 11–38.
97 Ibid 38–54.
98 SM Lipset and JM Lakin, The Democratic Century (University of Oklahoma Press, Norman, OK, 2004) 19 (defining the minimal definition of democracy as ‘[a]n institutional arrangement in which all adult individuals have the power to vote, through free and fair competitive elections, for their chief executive and national legislature’).
99 See generally Perry, EJ, ‘Chinese Conception of “Rights”: From Mencius to Mao – and Now’ (2008) 6(1) Perspectives on Politics 37, 37–47.CrossRefGoogle Scholar
100 See generally Habermas, J, The Theory of Communicative Action, volume 2: Lifeworld and System: A Critique of Functionalist Reason, translated by McCarthy, Thomas (Beacon Press, Boston, MA, 1987) 360–3.Google Scholar
101 See <https://ctext.org/xunzi/wang-zhi/zh> (authors’ translation).
102 (n 8) 115–23.
103 Ibid 115.
104 Guo, B, China’s Quest for Political Legitimacy: The New Equity-Enhancing Politics (Lexington Books, Lanham, MD, 2010) 8.Google Scholar
105 See generally Li, C, The Tao Encounters the West: Explorations in Comparative Philosophy (State University of New York Press, Albany, NY, 1999) 169–72.Google Scholar
106 Sa, M-W, Ru Jia Zheng Lun Yan Yi [The Interpretation of the Confucian Political Thoughts] (Great East, Taipei, 1982) 576–7.Google Scholar
107 See <https://ctext.org/mengzi/jin-xin-ii/zh> (authors’ translation).
108 E.g., (n 8) 115; (n 104) 8.
109 See generally Gardner, DK, The Four Books: The Basic Teachings of the Later Confucian Tradition (Hackett Publishing, Indianapolis, IN, 2007) XIII–XXX.Google Scholar
110 (n 107) (authors’ translation).
111 See generally Tan, S-H, Confucian Democracy: A Deweyan Reconstruction (State University of New York Press, Albany, NY, 2003) 132–6.Google Scholar
112 E.g., (n 8) 115; (n 104) 8.
113 (n 107) (authors’ translation).
114 See (n 107).
115 See <https://ctext.org/mengzi/liang-hui-wang-ii/zh> (authors’ translation).
116 See <https://ctext.org/shiji/chen-she-shi-jia/zh> (Shi Ji [the Records of the Grand Historian] recording that the first citizen’s revolution against tyranny in China occurred in 209BCE).
117 According to Shuo Wen Jie Zi (Explaining and Analysing Characters) published around 30–124CE, the Chinese character ‘Ben’ is a word to depict the part of a tree buried in the ground. Hence, ‘Ben’ can be translated either as root or basis. See <https://ctext.org/shuo-wen-jie-zi/mu-bu1/zh>.
118 See <https://ctext.org/shang-shu/songs-of-the-five-sons/zh> (authors’ translation).
119 This is figuratively an ancient Chinese concept which is very similar to the British ‘Rule Britannia! Britannia rules the waves’. See <https://ctext.org/guanzi/ba-yan/zh> (authors’ translation).
120 See generally (n 10) 9–55.
121 (n 118).
122 Cf (n 118).
123 (n 119).
124 Ibid.
125 Reddall, HF and Buck, D, Songs that Never Die: Being a Collection of the Most Famous Words and Melodies (B.F. Johnson & Co., Richmond, VA, 1892) 97.Google Scholar
126 See (n 119).
127 See T Jefferson, The United States Declaration of Independence (Wildside Press, Rockville, MD, 1776/2009) 19 (asserting that ‘[w]e hold these truths to be self-evident, that all men are created equal, that they are endowed … with certain unalienable rights, that among these are life, liberty and the pursuit of happiness’).
128 Kim, S, Confucian Democracy in East Asia: Theory and Practice (Cambridge University Press, New York, NY, 2014) 79.CrossRefGoogle Scholar
129 Grimm, Cf D, Constitutionalism: Past, Present, and Future (Oxford University Press, Oxford, 2016) 171–2.CrossRefGoogle Scholar
130 (n 64) 145.
131 (n 10) 44 (authors’ translation).
132 Jellinek, G, System der subjektiven öffentlichen Recht [System of Subjective Public Law] (JCB Mohr, Freiburg im Breisgau, 1892) 63–76.Google Scholar
133 Ibid.
134 De Freitas v Benny [1976] AC 239 (Lord Diplock holding in the Privy Council that ‘[m]ercy is not the subject of legal rights. It begins where legal rights end’).
135 See generally (n 10) 9–55.
136 See <https://ctext.org/book-of-poetry/jiong-zhuo/zh> (authors’ translation).
137 In terms of the origin of the concept of the people’s parent, there are opinions because China is an old civilisation so that it is not easy to identify the origin of an archive which was produced more than 3000 years ago. See also (n 10) 57 (holding that the concept originated in multiple resources other than the Book of Poetry).
138 (n 136).
139 The concept originated in the Book of Poetry; hence, it is originally no more than the ancient Chinese ‘God Save the Queen’ or ‘Kaiserhymnen’. However, Confucius had transformed ‘God Save the Queen’ or ‘Kaiserhymnen’ into the king’s regulatory law (Aufsichtsrecht), limiting the king to behave like what the ode is chanted in politics – we once again appreciate his wisdom.
140 See generally (n 10) 15–21.
141 Ibid 23–38.
142 See Douglas, JD, ‘Cooperative Paternalism versus Conflictful Paternalism’ in Sartorius, R (ed), Paternalism (University of Minnesota Press, Minneapolis, MN, 1983) 198.Google Scholar
143 See Ma, L, Leading Schools of Thought in Contemporary China, translated by Liu, J L (World Scientific Publishing, Singapore, 2013) 181 (indicating that ‘[t]he Chinese system is sustained by the ruler having absolute power and the ruled being ruled absolutely’).Google Scholar
144 See (n 10) 45–9.
145 (n 10) 21–3.
146 See <https://ctext.org/mengzi/liang-hui-wang-i/zh> (authors’ translation).
147 Compare (n 48) 27–42, with Su L, The Constitution of Ancient China, edited by Zhang Y and DA Bell and translated by E Ryden (Princeton University Press, Princeton, NJ, 2018) 178 (holding that ‘[a]ncient China was a despotic regime: no rights were protected; no powers constrained).
148 See generally (n 48) 27–57.
149 See generally Pines, Y, The Everlasting Empire: The Political Culture of Ancient China and Its Imperial Legacy (Princeton University Press, Princeton, NJ, 2012) 134–61.CrossRefGoogle Scholar
150 (n 10) 35.
151 Ibid 31–38.
152 (n 23) 24.
153 Ibid.
154 (n 11) 193 (authors’ translation).
155 Ibid 191–211.
156 Ibid 19 (authors’ translation).
157 Ibid 17–19.
158 Ibid 19.
159 Ibid 19.
160 Ibid 19 (authors’ translation).
161 Urbinati, N, ‘Representative Democracy and Its Critics’ in Alonso, S, Keane, J and Merkel, W (eds), The Future of Representative Democracy (Cambridge University Press, Cambridge, 2011) 23.CrossRefGoogle Scholar
162 (n 161) 23 (indicating that democracy is ‘a Greek word with no Latin equivalent, stands for direct rule (“getting things done”) by the people’).
163 Cf (n 76) 193 (distinguishing substantive law from procedural law).
164 (n 8) 115.
165 (n 161) 23.
166 See generally Hurley, PJ, A Concise Introduction to Logic (Wadsworth Publishing, Boston, MA, 2012) 88–92.Google Scholar
167 See generally (n 166) 88–92.
168 See (n 8) 115; (n 104) 8.
169 See generally Vanberg, GS, The Politics of Constitutional Review in Germany (Cambridge University Press, Cambridge, 2005) 1–178.Google Scholar
170 (n 64) 144–51 (defining the legitimacy of demo-orientation as indirect democratic legitimacy).
171 (n 64) 47.
172 See (n 169) 95–115.
173 (n 64) 63.
174 Tsai, KS, Capitalism Without Democracy: The Private Sector in Contemporary China (Cornell University Press, Ithaca, NY, 2007) 200.Google Scholar
175 Cf Xiang, P, Zhong Guo Da Luo Ji: Mei You Gong Chan Dang, Wei She Me Bu Xing? [China’s Great Logic: Why China Needs the Communist Party?] (Taihai Publishing, Beijing, 2012) 131–52 (holding firmly that democratic procedure does not have to exist in China).Google Scholar
176 See Han, D-Q, Zhu, Min: Cheng Xu Hai Shi Shi Zhi [Democracy: Procedure or Substance], available at <http://npc.people.com.cn/GB/28320/160692/166630/9897875.html#>..>Google Scholar
177 See Woo, M YK and Gallagher, ME, Chinese Justice: Civil Dispute Resolution in Contemporary China (Cambridge University Press, Cambridge, 2011) 13.CrossRefGoogle Scholar
178 Wang, C, ‘From the Rule of Man to the Rule of Law’ in Cai, D and Wang, C (eds), China’s Journey toward the Rule of Law (Brill, Leiden, 2010) 38 (holding that the Chinese people care only for the substance and that it becomes a barricade of the Chinese rule of law).Google Scholar
179 Huang, D KC, ‘Different Patterns of Applying Transitional Constitutionalism between the Nationalists and the Communists’ in Lo, C-F, Li, N NT and Lin, T-Y (eds), Legal Thoughts between the East and the West in the Multilevel Legal Order: A Liber Amicorum in Honour of Professor Herbert Han-Pao Ma (Springer, Singapore 2016) 127–45.CrossRefGoogle Scholar
180 (n 179) 133.
181 Blackstone, W, Commentaries on the laws of England: Book the Third (Clarendon Press, Oxford, 1768) 109.Google Scholar
182 (n 181) 109.
183 See (n 101); (n 115).
184 See (n 95) 17 (holding that demo-orientation is only a theory which has never been institutionalised as a political system, i.e., it is not legally binding).
185 Cf (n 181) 109 (meaning that democracy consists of remedy and redress such as hierarchy of law, by which a rule that is in contradiction with the constitution is invalid; election/recall, by which a ruler who fails to satisfy the people will leave office).
186 Cf D KC Huang, The Rule of Law with Chinese Characteristics: An Analysis of China’s Administrative Law. Conference Paper, 7th Annual International Conference on Law, Regulations and Public Policy, 25 June 2018 (GSTF, Singapore, 2018) 15 (holding in accordance with Blackstone that ‘if the law provides legal rights without a pertinent procedure for relief, then the law provides nothing at all’).
187 (n 98) 19.
188 See T Paine, The Writings of Thomas Paine, Volume III, edited by MD Conway (G.P. Putnam’s Sons, New York, 1895) 4 (claiming himself as ‘a Citizen of a country which knows no other Majesty than that of the People; no other Government than that of the Representative body; no other sovereignty than that of the Laws’).
189 See Fleiner, T and Fleiner, LR Basta, Constitutional Democracy in a Multicultural and Globalised World, translated by Roy, K Le (Springer, Berlin, 2009) 400–6.Google Scholar
190 See generally (n 10) 9–55.
191 Yeh, H-Y, ‘Xian Qin De Zheng Zhi Zhe Xue [The Political Philosophy in Ancient China]’ in Tseng, C-H (ed), Zhong Guo Zhe Xue Gai Lun [Introduction to Chinese Philosophy] (Wu-Nan, Taipei, 2005) 361.Google Scholar
192 (n 23) 24.
193 (n 11) 250–4.
194 Ibid 253 (authors’ translation).
195 Cf L Baum, Judges and Their Audiences (Princeton University Press, Princeton, NJ, 2006) 25 (formulising the audience theory of judges from a social psychological perspective which is also applicable to administrative decision-makers).
196 Please be aware that moral duty and legal duty are different. Confucius attempted to burden the rulers with the people’s parents as their moral duty, but this never reaches to the level of legal duty.
197 See generally Holmes, C, Why Was Charles I Executed? (Hambledon Continuum, London, 2006) 1–201.Google Scholar
198 See generally Caiani, AA, Louis XVI and the French Revolution, 1789–1792 (Cambridge University Press, New York, NY, 2012) 1–25.CrossRefGoogle Scholar
199 See generally Walker, M, Metternich’s Europe (Palgrave Macmillan, London, 1968) 323–46.CrossRefGoogle Scholar
200 See generally Daniell, C, From Norman Conquest to Magna Carta: England 1066–1215 (Routledge, London, 2003) 50–2.Google Scholar
201 See (n 13).
202 (n 13) (implying that the Chinese Magna Carta was probably a direction rather than a code).
203 Cf De Freitas v Benny [1976] AC 239 (Lord Diplock holding in the Privy Council that ‘[m]ercy is not the subject of legal rights. It begins where legal rights end’).
204 Cf ibid (applying Lord Diplock’s obiter dictum that a request for decision-making where the ruler is not obliged to decide by law is merely a request for mercy).
205 Cf ibid (applying Lord Diplock’s obiter dictum that mercy cannot be requested because it not a legal right).
206 Cf ibid.
207 Ching C-J, Zhong Guo Li Xian Shi [The History of Chinese Constitutionalism] (Linking, Taipei, 1984) 67 (authors’ translation).
208 Nineteen Main Articles of the Imperial Constitution (1911) (providing China’s first constitutional monarchy between 3 November 1911 and 12 February 1912, but it did not prevent the Qing Empire from collapsing).
209 (n 207) 67.
210 Ibid.
211 Cole, JH, ‘Competition and Cooperation in Late Imperial China as Reflected the Native Place and Ethnicity’ in Hershatter, G, Honig, E, Lipman, JN and Stross, R (eds), Remapping China: Fissures in Historical Terrain (Stanford University Press, Stanford, CA, 1996) 162.Google Scholar
212 (n 10) 45–9.
213 (n 11) 252–3.
214 See generally (n 78) 55–7.
215 Ibid.