affiliated to the International Association of Constitutional Law
I was listening to the radio a little while ago, and heard Martin Jacques talking about China. I listened with renewed concentration. Jacques was formerly editor of Marxism Today, so he is a man who knows a thing or two about oppressive pseudo-socialist regimes. Much of what Jacques had to say was insightful, but one of his claims seemed surprising. Warning his audience he was about to shock them, Jacques asserted that ‘the Chinese state enjoys greater legitimacy than any Western state’. This is, by any standards, a courageous claim to make. Jacques advanced three, connected, arguments to support it. First, he drew our attention to the support expressed by China’s people for their government. In recent surveys it seems that between 80 and 95% of Chinese citizens were either relatively or extremely satisfied with central government. Secondly, he pointed to the stunning economic success that China has enjoyed over the last thirty years, enjoying a growth rate of about 10% per year. And this success has not just caused the rich to get richer: Jacques could also have pointed to China’s remarkable success in lifting its people out of poverty. Allied to these claims, Jacques argued that the Chinese have a different conception of the state to that found in the West: for the Chinese, the state is viewed in terms of the family. Under this conception of the state, the leadership stands as the head of the family, intimately connected to, and entitled to exercise authority over, the people.
Each of these three claims deserves further reflection.
Jacques’ first point, resting on statistics that quantified the satisfaction of the Chinese people with their state, may demonstrate rather less than he hopes. In Thinking, Fast and Slow, the psychologist Daniel Kahneman warns of a trick that our minds tend to play on us. When faced with a difficult question we are tempted to unknowingly substitute an easier question, and answer that instead. So, a question about the importance of preserving an animal species or, perhaps, the effectiveness of the market in the NHS, is transmuted into a question about the cuteness of the animal or our how we feel about people making money from healthcare. Similarly, in presenting this poll as a test of legitimacy, Jacques has shifted from examining the legitimacy of the government to assessing the perception of the legitimacy of the state. Just because people believe that a government is entitled to rule, this thought alone does not make it so. Given the control China exercises over its media, and the absence of any real opposition to the government, a general belief in the legitimacy of the government might not be all that surprising.
Indeed, it is even possible that the questions asked by Jacques’ surveys were directed towards something other than the legitimacy of the government. The surveys appear to have asked after people’s satisfaction with the state, or their assessment of the government’s handling of the economy. This is a very different thing to the entitlement of the government to rule. It is easy to imagine a person – perhaps a subject in an imperial territory – admitting that the dominating power was competent, but still challenging its right to rule. The Romans are still Romans, no matter how well they govern. On the other hand, a citizen might regard her government as poor, on the verge of incompetence, but still endorse its legitimacy. Many Labour Party supporters would bitterly criticise the Coalition’s policies, but still recognise that the United Kingdom possesses a legitimate government.
This is not just a semantic quibble. Political scientists distinguish between two forms of legitimacy: input legitimacy and output legitimacy. Jacques has focused almost exclusively on output legitimacy in his talk. Output legitimacy is a function of the competency of the state. People do, or should, support the state and comply with its commands because doing so will make their community a better place to live. Input legitimacy, in contrast, is a function of the way decisions are made. People do, or should, support the state and comply with its commands because of the way the government has been formed and the way the commands have been produced. Ordinarily, some form of democracy is at the heart of input legitimacy. These two forms of legitimacy are complementary and interconnected. Perhaps one form of legitimacy is valueless without at least an element of the other. That the people of China are satisfied with their government, coupled with the strong economic success of that country, shows that China has a plausible case to make in terms of output legitimacy. The lack of input legitimacy may, though, still throw into question the broader entitlement of the Chinese government to rule.
Jacques’ third point – about the Chinese conception of the state as a family – might be an indirect response to this point. In the family, the authority parents enjoy over their children, especially young children, rests on their ability to make decisions in the best interests of their child. Parents’ right to tell their children what to do does not rest on a vote or even on consent. Perhaps Western preconceptions of legitimacy cannot be applied in the context of China?
The difficulty with this reply is that China does have democratic structures in its Constitution. These are just not very effective.
In a valuable recent book, Professor Qianfan Zhang explains the structures and operation of the Chinese Constitution. The Constitution asserts that China should be governed democratically. It sets out a bottom-up structure of democratic control. The people elect representatives to the lowest levels of assembly at town and county levels. These assemblies then elect deputies to sit in Local People’s Congress that, in their turn, elect deputies to sit in the Congress at the next level up. The process continues all the way to the National People’s Congress, which is the highest representative body. In reality, though, the Communist Party exercises control over every stage of the process: the bottom-up approach of the Constitution is, as Zhang explains, countered by a top-down system of Party control. Party committees, controlled from the centre, are able to vet candidates standing for election. In effect, the appointment of representatives at each level of legislature is subject to the review, or even control, of the Party committee that sits at a governmental level one stage higher than that body. The 1982 Constitution calls for a system that starts with the citizen and works up to the NPC, with each deputy accountable to the lower body that elected her. The constitution with a small ‘c’, in contrast, starts with power vested at the top of the Party and then devolves power down to the regions, with each deputy accountable to the higher body that selected her.
Jeff King has written of constitutions as mission statements, as declarations of the type of polity the state wishes to be. In China’s case there is a sharp contrast between this declaration and the realities of state power. China’s government fails to achieve legitimacy even in the terms set by its own Constitution. This creates a sort of constitutional cognitive dissonance: a discomfort caused by the gap between peoples’ actions and the way they think they ought to behave. It is a discomfiture that is very evident amongst Chinese public law scholars who struggle to connect the Constitution with the actual rules that structure the state. It is also evident in the speeches of China’s leaders, whose rhetorical exhortations sometimes seem remote from the state they have fashioned.
Trying to ground a polity largely or entirely in terms of its competency is a dangerous business. It may prove successful whilst the economy is booming, but economic success never lasts forever. And the stability it brings can be quite shallow. After the defenestration of Bo Xilai tanks were seen on the streets. If this had occurred in London, people would have thought it was the start of a parade. In Beijing, people thought it was the beginnings of a coup. Chinese people’s satisfaction in the conduct of their state may be high, but their faith in their leaders, and their confidence in the stability of their country, may be less buoyant.
Nick Barber is a Fellow of Trinity College, Oxford, and, in 2012, Visiting Professor at Renmin University, Beijing.
Suggested citation: N. W. Barber, ‘Does China Enjoy Greater Legitimacy Than Any Western State?’ UK Const. L. Blog (28th November 2012) (available at http://ukconstitutionallaw.org).