Philosophy East and West

I. Introduction

In his splendid and provocative book Theorizing Confucian Virtue Politics: The Political Philosophy of Mencius and Xunzi, Sungmoon Kim proposes that we read the great classical Confucian philosophers Mencius (Mengzi 孟子, fourth century b.c.e.) and Xunzi 荀子 (third century b.c.e.) as constitutionalists. As I read Kim, he understands constitutionalism as [End Page 506] something like a commitment to creating durable institutions, one of whose primary aims is to constrain the exercise of legitimate political authority and facilitate its good and proper uses. Mencius’ constitutionalism appears primarily in his arguments for making it customary to appoint virtuous ministers or advisors. Insofar as a non-ideal ruler might be tempted or inclined to exercise his authority wrongly, the virtue of those ministers should help to minimize abuses, blunt the effects of bad or narrowly self-serving decisions, and incentivize decisions that provide for the material needs and moral development of the populace. Since the virtue of particular subordinates does much of the relevant work, Kim appropriately calls Mencius a “virtue constitutionalist” (Kim 2020, pp. 63–75). In contrast, Xunzi’s constitutionalism appears primarily in his remarks about the importance of fa 法 (institutional rules), chief among these being the ritual models or standards by which social distinctions are recognized and cemented and civic responsibilities are defined. Moreover, Xunzi has a great deal of concern for the continuity of a government’s fa from one regime to the next, perhaps suggesting that so long as the fa are stable and effective, one ruler can be replaced by another and the government for all intents and purposes will remain unchanged.¹ Because rituals do much of the relevant work of constraining abuses of power and facilitating good governance, Kim terms Xunzi’s variant of constitutionalism “ritual constitutionalism.”

“Constitutionalism” can be understood in many different ways. But when people nowadays use the term in their accounts of the history of political thought, they tend to have in mind a sense of “constitutionalism” that presupposes that constitutional constraints on political authority come with constitutional remedies. Roughly, a constitutional remedy is some sanctioned means of enforcing constraints or correcting political authorities who fail to abide by them. Moreover, it is often thought that the remedies should be entrenched—that is, widely recognized and regarded as beyond the legitimate power of the political authorities to change easily.

Entrenched remedies are important for a number of reasons. First, constraints on political power would be relatively meaningless if the person that they are meant to constrain can easily amend or jettison them. If there is a rule or established custom that requires a monarch to be instructed on humane governance on the classics mat, or to perform a certain ritual before determining whether to go to war, or prohibiting him from issuing laws or policies that punish innocent people ex post facto, and if the monarch is free to modify a rule or custom at a whim, then the rule or custom will have very little bite.

Second, constitutional remedies help to distinguish constitutional norms from other political norms. Most anyone with a minimal sense of decency believes that political authorities ought to provide ways of meeting the basic needs of their subjects, that they ought not to punish innocent people, and that they ought to deliberate carefully and solicit the views of an informed [End Page 507] commentariat or public before going to war. The difference between constitutionalist political thinkers and the other minimally decent ones is that the constitutionalists also say that vested parties have some sort of recourse available when their leaders fail to observe such norms. This is roughly the difference between a mere ideal of good governance and enforceable power or right.

Finally, at least on many recent tellings of political history, constitutional regimes with entrenched remedies are the sorts of constitutional regimes that matter most. They were hard-fought and hard-won by peoples in all parts of the world, and it is by virtue of flouting or ignoring certain entrenched rules or customs that a merely imprudent or bad political leader becomes an autocrat. For ease of reference, I will refer to the...