一. 序言

　　官场盛行以公权谋私利，学界关心如何制约之。学究们告诉学生们“法制”和“法治”有本质的不同，可老百姓弄不明白这两个词儿有什么不一样。法是人来制定和执行的，世上哪里有什么“法律治国”？如果没有严厉的惩罚机制，谁会不滥用权力而去“依法治国”？真正的问题是，怎样才能迫使官吏守法？

　　常有人以为中华有政府腐败的深厚传统。这是个很片面的看法。中华传统文官体制是东亚政治文明的灯塔，其主流是廉洁，赞美的是“清官”，信奉的是“公正廉明” 和“两袖清风”。廉洁是“王道”，是我国政治文明的正统。我国的王朝走到穷途末路之际才盛行腐败。港新两地的政府是廉明的，中国共产党政府也曾属世界上最廉洁的政府之列。我们没有理由认为华人的政府必然腐败。我国人民痛恨腐败，以公平和公正来评价政府的质量。人民支持政府是因为政府廉洁，不是因为政府代表了本集团的利益。人民反对政府是因为政府腐败，不是因为政府不代表自己所属的利益集团。只要有效，举报腐败是华人市民非常热衷的事情。有了好的制度，腐败在我国无处藏身。

　　对人民自由的威胁莫过于政府肆行妄为，不遵守法律。由于“主义迷信”的惯性，我国颇有些人认定只有民主才能迫使政府守法，才有“好”的法律，才有法治。这是个误解，而且是个有害的误解。民之治从未曾导致过法之治，民之治也不会增加法之治。代议制民主能改变法律的内容，但法律内容的变化并不是法治。西方政治文明里的法治不是民主的结果，而在其源远流长的法律主义传统（legalism, 即强调法律和法职业的独立）。日本的法治亦非民主的结果，而是“明治维新”奠定的。 非西方世界里的代议制几乎没有不欠缺法治的。看看被卷人“第三次民主浪潮”的国家，那里的法治是增加了还是大大减少了？再看看我们眼皮底下的香港，基本没有民主，可世上有几个国家的官员比香港官员更畏惧法律？

　　若干年一次的民主选举不能保证总统和议员们不胡作非为。为了提醒我们警惕从专政迷信的陷阱跳入选举迷信的陷阱，笔者在此企图解释怎样的制度才能迫使政府守法，即什么导致“法之治”。

二．法治的内容和中国政体

　　在一本题为《民主之战》的书里，格莱海姆写道：“直到18世纪，所有人都清楚地知道民主是什么，可几乎没人支持民主制。现在则倒了过来，所有人都支持民主制，可再也没人知道民主是什么。” 民主是全体成年公民定期选举本国最高层领导人的制度。 法治指法的权威高于政府权威，迫使领导人服从法律的制度。“民”既然不是“法”，“民治”与“法治”就不可能是一回事。近代兴起了代议制，变古雅典的多数人民之直接民主为少数民选代表之间接民主，即“议会之治”。代议制与法治也不是一回事。法治与民主有四项基本差异。

　　第一 法治与民主的权力理念不同。民主将正义寄托在人民参与政府的程度上。“主权在民”，“议会主权”，“人民代表大会是最高权力机关”等表述均体现这种理念。实行人民参政的主要方法是普选最高层领导人和公决重要的政府决策。民主主义者认为，普选和人民公决的频率越高，参与普选和公决的人数越多，人民的福利就越能得到保障。法治则将正义寄托在政府权力受法律约束的程度上，寄托在个人的自由权利上。“法律至上”，“宪法主权”，“法律面前人人平等”，等表述均体现这种理念。与实施民主的方法不同，树立法律权威的主要方法是分权制衡，即规定政府不同功能的机构各自独立，权力界限清楚，不可相互侵扰。法治主义者认为，法律对各类政府职能界限的规定越清晰，对政府违规的惩罚越严厉，个人的自由就越能得到保障。分权制衡减少领导人对利益集团负责或独断专行，使之尊重法律规定的权力界限。制衡的关键是司法独立，司法不对选民和执政者负责。有了独立的司法机构，就有了惩罚执政者违法的手段，执政者就受约束。概言之，民主强调通过人民的参政权来实现集团的福利，法治强调通过限制政府的权力来保障个人的权利（即自由）。

　　第二，因为理念不同，法治与民主的权力功能不同。代议制民主授予人民代表统治权，建立人民多数认可的政府。出于这样的目标，代议制民主重在立法，只有人民代表之多数所同意的规矩才是正当的，否则就没有理由服从。法治的主要职能不是建立政府，而是管理政府。无论法从何来，无论政府是否经普选产生，只要是有效合“基本法”的法，政府就必须执行，不给执政者自由裁量权。因此，法治重在执法，要求政府官员依法办事。政府只能作法律明文规定的事，人民则可以作一切法律没有明文禁止的事。近代以来的基本法特别保护人民的言论、出版、集会、和结社权，政府侵犯这些权利要受司法部门的惩罚。法治还要求，无论人民代表的意愿如何，无论基本法是怎么来的，人民代表的立法必须符合基本法。基本法不可依着“人民代表”的意愿任意制定、变更、和解释，否则法的权威将被“人民代表”的权威淹没。当法的权威被人民代表的权力淹没了，政府就不受限制。概言之，民主的职能是为政府的管理权辩护，以立法为要。法治的职能是以分权来限制政府的立法和管理权，以执法为要。

　　第三，因为功能不同，民主与法治的权力机构不同。民选的立法机构是民主的权力基地，主要是议会和根据占有议席数量决定的（或民选的）最高行政首长，还包括由最高行政首长推举，与其共进退的政务官。非民选的执法机构是法治的权力基地，主要是不受政务官更迭干扰的职业文官系统和中立的法院系统。公务员系统不经民主选出，人事上不受政务官左右，职责主要是以法律为准绳行使日常行政权。法院系统更非民选，职业法官的职责主要是中立地判断执政者的行政是否违法。例如政府欲惩罚某个罪犯，犯人依然有权通过律师和法庭来抵抗政府的惩罚，使政府不能随意作讨好选民的处置。没有那个国家的文官系统和法院能完全独立于政治大局，但有没有独立的权力基地是质的区别。

　　第四，因为机构不同，民主与法治的权力规则也不同。民主的规则是选举加（相对）多数决；法治的规则是考试加独立的考绩（meritocracy）。前者靠票数，与党派利益紧密结合；后者依赖成绩和考绩，以对法律的理解和忠诚为准绳。职业的公务员和法官不是生活在真空里，只要食人间烟火，他们就不可能“完全”中立。然而他们比利益集团的公开代表要中立得多，他们不必向选民负责，不对执政者负责，只对法律负责，所以相对公正。

　　总之，代议制民主相信人民终能选出好的领导人，认为数年一次“换人做做看”的机会能保证人民的福利。法治不相信任何人，相信独立的惩罚机制能制止政府胡作非为，因此强调政府内部分权制衡 -- 司法独立，强调基本法的稳定 -- 依法立法。

　　国人因缺少对制衡理论的理解，经常误以选举为制衡。如果我们相信“权力只能被权力来制约”，那么，只有政府的权力才能制约政府的权力。民主能产生政府权力，但并不制约政府权力。

　　法治与民主在理念、功能、机构、和规则上都不同，甚至相互矛盾，所以两种制度能解决的问题也各不相同。民主能迫使政府开放，杜绝某个社会集团对政权的垄断，让利益集团自由竞争政府权力，从而保障主流集团的利益在立法中得到代表。法治以政府的权力来制约政府的权力，迫使政府循规蹈矩地行政，能保障个人的自由以及自由的秩序。

　　我国的主要问题是什么？是政府官员无视法律，肆行妄为，以公权谋私利。产生这样的问题不是因为我国的法律不好，我国与发达国家的差别主要不在法律条文上，而在法的实际效用上。尽管我国的法律有很多缺陷，但制定出好的法律并不难，而且很多现有的法律已经非常好，就是让官员守法难。自从市场经济结构出现，我国的政治制度就不再能控制腐败的蔓延，甚至现行制度本身就构成腐败源。这个制度曾经取得震惊世界的伟大成就，而今却颓势昭然，所以需要鼎力革新。只有政府行为受制度限制，透明守规矩，才能出现稳定的“善治”。因此，本文倡导的政治改革不是法律内容的改革，是政治体制的改革。透明守法的政府使公众信任，使人民对正义有信心，能让人民紧密团结在政府周围。对中国而言，这是消弭内忧外患的最有效手段。

　　我国的政府官员为什么有法不依？因为公务员系统和司法系统都不独立，各地、各行业的“第一把手”一统天下。没有分权就没有“治官”的独立机构，法不“治官”，官员便由着自己的性子去“治民”，去折腾老百姓，折腾企业，折腾大学。老百姓和大学生闹了事，就有人指为“暴民传统”，殊不知世上只有“暴吏”，并无“暴民”。韩非子（约前280-前233）讲，“闻有吏虽乱而有独善之民，不闻有乱民而有独治之吏。故明主治吏不治民。”

　　市场经济兴起之后，我国的现行政体呈现两大问题，导致“乱吏”。（1）权力下放衍变为“权力的封建化”，改革前原有的一些制衡机制消失了。原先的主管官员用公家信纸写私信都可能遭惩罚；而今的“第一把手”垄断其一亩三分地的全部人财物权，把对官吏甚至法官的升贬奖惩都捏在自己的手心里。权力的集中直弄得公产等同私产，官场拍马屁成风，裙带关系盛行于世，因循苟且，粉饰虚张，阿谀奉承之徒竞相登场。（2）经济市场化衍生出“权力的商品化”，败坏了原有的政府纲维。官员们热衷于“搞经济”，商人们当然竞相“搞官员”。当官场市场混然一体，.缺规范的市场盛行骗术，缺制衡的官场就骗术盛行。低一等的骗术是台前讲为人民服务的道德，台后谈出售公权的价码。高一等的骗术是暴炒“概念”，以虚报政绩，讲假、大、空、话来骗更大的乌纱。

　　市场经济兴起之后，我国的现行政体呈现两大问题，导致“乱吏”。（1）权力下放衍变为“权力的封建化”，改革前原有的一些制衡机制消失了。原先的主管官员用公家信纸写私信都可能遭惩罚；而今的“第一把手”垄断其一亩三分地的全部人财物权，把对官吏甚至法官的升贬奖惩都捏在自己的手心里。权力的集中直弄得公产等同私产，官场拍马屁成风，裙带关系盛行于世，因循苟且，粉饰虚张，阿谀奉承之徒竞相登场。（2）经济市场化衍生出“权力的商品化”，败坏了原有的政府纲维。官员们热衷于“搞经济”，商人们当然竞相“搞官员”。当官场市场混然一体，.缺规范的市场盛行骗术，缺制衡的官场就骗术盛行。低一等的骗术是台前讲为人民服务的道德，台后谈出售公权的价码。高一等的骗术是暴炒“概念”，以虚报政绩，讲假、大、空、话来骗更大的乌纱。

　　有人试图以“民主”的方法“制约”不法官员，搞“民主评议”之类，结果贪官得好评，清官受怀疑。最好的情形是经“评议”后清官上台。但没有独立的惩罚机制，清官上台后也会变成贪官。旧官已然贪得盆满钵满，四年一换届，老百姓迎来一任捧着空盆空钵的新贪。大陆如此，民主的台湾如此，民主的印度如此，民主的菲律宾还是如此。中外古今，缺少法治的社会无一例外。在市场条件下，仅靠自律，不受制衡的权力怎能使官员不腐败？若以为印度、菲律宾、和台湾的选举和言论不够自由，那就大错特错了。那里的选举竞争比美国要激烈得多，政治立场也远远更多元化，言论更自由。官员民选与官员守法没有必然关联。

　　在我国的“市场经济”里，善治的关键是让法的权威高于官员的权威，让法律被严格执行。如果政府的行政无时不受法律限制，人民就不会被政府肆意暴虐。当人民服从的是法律而不是个人，人民才是自由的。潘恩写到：“在自由的国土上，政府不依赖大人物，而是依赖法律。”卢梭说：“没有什么能比这一点更使我深信不疑：自由与法律同命运，要么因法律而兴，要么随法律而亡。” 洛克更指出，“法律失效之处乃暴政的起点。”

　　在什么条件下政府会敬畏和遵守法律？如果政府违法会遭到严厉惩罚，政府就会敬畏和遵守法律。可谁来判定政府违法以及惩罚违法的政府呢？如果在政府里设立独立的司法部门和中立执法系统，不受制于执政者，法院就可以相对独立地判定政府的立法和行政是否违（宪）法，司法机构就可以随时随地将违法的政府官员“绳之以法”。

　　司法独立，以政府权力来约束政府权力！这个出色的想法可以追溯到两千五百年前的古希腊以及两千年前的古罗马，但司法独立真正成为制度还要首推英国。美国把这种制度变得非常精致，首创最高法院的“司法复审”（judicial review）权，给最高法院依宪法否决立法和行机构政决议的权力。司法独立包括三个基本原则。（1）独立原则。要求司法不受行政左右。（2）中立原则。法官是终身职，是一种专门职业，不受社会利益集团左右。（3）基本法至上原则。基本法不可由着民选或非民选的执政者任意改动。

　　当独立和职业的法律专家来裁判政府与人民的争议以及政府部门之间的争议，法权就高于执政者的权力，执政者就会被迫依法行政。没有让法律高于执政者的意愿，没有法律面前人人平等的原则，没有法律的尊严和司法独立，谈法律的好坏是没有意义的。好的法律并不导致“善治”或法治。举目四望，良法下的人治和恶治遍地都是。

　　在我国，重要的事不是立法，而是严格执法，让法律真正“生效”。如果执政者不畏惧司法权，居于法律之上，再好的法律也不能阻止“恶治”。分权，用政府权力来限制政府权力，才能迫使政府官员每日每时都尊重和畏惧法律。概言之，解决中国的主要问题要靠法治化，不是民主化。然而，没有“好”法，法治岂非“恶法”治国？没有民主制怎么可能有“好”法？

三．“良法” 与“恶法”

　　要求政府依照社会之基本道德准则来行使权力的规矩是“良”法；赋予政府不受约束之权力的规矩是“恶”法。

　　法律有双重目的：秩序和正义。为了获得安全，人民让政府掌握所有的暴力手段，从而制止弱肉强食的无序状态。秩序是文明的基础，政府是文明的标志。一旦有了政府，人们发现掌握政府权力的人天然倾向于无限扩大自己的权力，为一己之便而为所欲为。权力是一种享受，支配他人是快乐的源泉之一。在任期内官员可能会以秩序的名义朝令夕改，随心所欲，用公权欺辱他人。若不受限制，这种可能很容易变成现实。因此，有了政府，政府便构成对社会正义的最严重威胁。如果政府依照社会之基本道德准则来行使权力，人民遭受的威胁就能缓解，才能享受政府管理带来的秩序，才有正义的秩序。秩序来自政府，正义的秩序来源于政府依照社会长期形成的善恶共识来行使权力。因此，要求政府依社会之基本道德准则来行使权力的规矩必然是“良”法。良法要求政府“惩恶”，不得“惩善”。我们把“社会之基本道德准则”称为“基本法”。从定义上讲，基本法就是“良”法。当然，“良法”不一定导致“善治”，要求官员怎样做和官员实际怎样做并不是一回事。法律并非法治。

　　原先，基本法就是“法律”。因此，法律当然是“良”法。没有“恶法”，也就无所谓“良法”。自罗马时代直至中世纪末期，人们认为法律就是“正义”，就是“神圣法”（divine law）或称“自然法” (natural law)。拉丁文的“法律”与“正义”是同一个词。“正义”就是当时的普遍道德准则。换言之，“法律”在过去不仅是形式，而且有确定的内容，即关于社会“正义”的规范，表述在《圣经》之中，以“十戒”为基础。这是欧洲中世纪盛行“法律至上原则”的背景。法律是既定的，是天然存在的，以继承传统的形式生存，因此无需“立法”，更不需要立法程序。法律能被法律专家发现或宣布，但不能被“制定”。当时“立法机关”的作用主要局限于编注非成文的惯例。英国的议会长期就是个“发现法律”的机构（A law-finding body）。 在这样的时代，“恶法”并不被承认为“法”。人们造恶“法”的反，最正当的理由乃是其“违法”。

　　“恶法”是跟着“立法”概念一起出现的。社会的变迁导致政治道德观发生了重要的变化，如使用农奴耕作和等级社会都需要被废弃，所以欧洲大陆上发生了社会革命。法国的革命者自诩要和旧社会“彻底”决裂，以全新的法律价值观念取代旧观念，以“人民主权”取而代之。从此，被人民选举产生的代议者有了“立法权”。“法律”不复是法官“发现”的、合法推理的产物，不再与内容相关，仅仅是形式，可以由着执政者的性子“制定”。随着法治成了代议者的统治，法律、立法、统治，这三个概念就演变成了同义词。法律是生活在我们眼前的执政者“人民代表”给“立”出来的。立法就是统治，统治就是立法。若其“统治”不善，其所立之“法”当然不善。

　　当法国的大革命绕了一圈又回到原地，当事实证明人民代表的统治几与君主的统治同等恶劣，“立”恶法问题就开始困扰我们。 基本法不是民主制定的，社会的基本道德准则是人类社会的长期实践形成的。有的国家，如英国，没有成文的宪法，法律的依据就是以前的判例，人民无从改变构成以往判例的基本法精神。承继盎格鲁-撒克逊的传统，美国宪法也几乎无从改变，只能附加修正案。《美国宪法》是世界上著名的“良法”之一。在美国，《美国宪法》是俗世的《圣经》，但却如《圣经》一般，谈不上是民主的产物。《美国宪法》是乾隆52年（1787年）由美国55个自称“人民代表”的绅士讨论通过的，其中仅39人投了赞成票，多半还是使用奴隶耕作的大庄园主。后来十三个州的议会批准了该宪法，但参与讨论和投票的人总共不超过两千，那两千个代表的产生方式大约只有他们自己知道。虽然这两千人早已做古，和当代人的生活毫无干系，两百多年里却从未有过针对宪法的人民公决。比较《美国宪法》的产生，制定《中华人民共和国宪法》的过程要民主得多。即便美国宪法算是民主产生的，世事沧桑，以乾隆时代“民主”定的规矩来规范21世纪的今人能算民主？然而，《美国宪法》依然是“良法”。大家还知道而今的《德国基本法》和《日本宪法》从何而来，也清楚到97年为止的香港基本法《英王制诰》从何而来。如果上述基本法属“良法”之列，民主显然不是产生这些法律的主要手段。《美国宪法》之所以成为良法，乃是因为其四大特点。（1）制定这部基本法的人属世界上最有见识的政治哲学家。（2）包含了社会的基本道德准则。（3）是依法立法，继承了英国判例法的主要内容。（4）通过严密的制衡机制限制了政府权力，实际上拒绝了由议员任意修改基本法的权力。

　　赋予政府不受约束之权力的规矩是“恶”法。与君主一样，人民代表的统治权也必须受到约束，迫使他们依基本法立法，依基本法行政，依社会的基本道德准则行使统治权。人民代表与君主一样都是人，都会滥用权力，会腐败，会欺负弱势的群体和个人。因此“良法”要求人民代表必须服从基本法，不可享有绝对权力。

　　李光耀曾一度设想让成年人票比年轻人票分量重一点点，但大家认为不民主，民主不能拒绝一人一票。《美国宪法》却规定，参议院选举不实行一人一票制。目前，阿拉斯加居民的一票相当于一个加利福尼亚州居民的48票，怀俄明居民的一票等于加州居民的68票。总统选举也不实行一人一票制。总统以州为计票单位间接选出，各州选举人团的票数是各州联邦参议员和众议员之和，而且赢家通吃，不再计算输家的选票。因此，得大众票多的总统候选人可能输给得票少的。这种宪法规定比李光耀的设想不民主得多，目的就是限制人民代表的权力。美国最高法院的大法官不是民选的，但只有最高法院的法官有权解释宪法，还有权判定美国国会两院通过并经总统签署生效的法律违宪作废。美国总统须在最高法院大法官的监督下宣誓忠于宪法方能就职，否则多少人选他也无用。德国《基本法》规定的制度比美国制度的民主程度还低。德国的上院不仅参与立法批准，还垄断立法建议权。但上院不实行民选，而是由各州政府委派的技术官僚组成。

　　若真的实行“一切权力归人民”，无异于让社会实行弱肉强食。现实的“一切权力归人民”只能是一切权力归民选的议会，让立法，行政，司法等权力都归了那几百个人民代表。当代表们的眼前利益成了光明正大的立法根据，千百年来形成的“社会基本道德准则”就不复是重要的事情了，法律就成了集团和个人临时利益的代名词。一切权力归议会和一切权力归君王没有本质的区别。多数专制与少数专制的界限非常模糊，操纵多数是少数政客的职业。多数人治，少数人治，一人之治，都是人治。不同类型的人治转化起来很容易，民主与专制的循环乃是寻常之事，法国革命不过是在近代重开了这个循环而已。最彻底的民主就是回归专制的起点。在中国共产党诞生80周年纪念日的前夕，报上载有一段对我国制度的官版解释，非常精炼。引用在此，说明“人代之治”与“党治”多么接近。

　　“分权原则并不是民主原则，而是以精英政治对抗民众政治。我国不实行分权原则，因为我们实行的人民民主追求广泛和彻底的民主。一切权力归人民，国家权力只能由作为人民代议机构的人民代表大会来统一行使，决不能由其他机构分享。作为人民代议机构的人民代表大会是国家的权力机关，其他国家机关、审判机关、检查机关都由人民代表大会产生，对它负责，受它监督。各机构之间实行分工不分权。”

　　李登辉在康奈尔大学做过一次演讲，题目是“民之所欲，长在我心”，在台湾颇得好评。仔细想想，“民之所欲，长在我心”既有民主意味，又有专制含义。与民主不同，法治要求分权制衡，不相信任何人的“心”，所以是专制的死敌。法西斯主义者多在公平的民主选举中上台，他们上台的最重要表征就是以“民之所欲”的名义停止执行宪法。

　　“立法”是立“恶法”的源泉。执政者赋予自己无限的权力，这种规矩就是“恶法”。近代以来，立法、法律、统治逐渐合为一体，恰当的立法原则就成了“善治”的关键。从此，政府体制就是立法原则，立法原则就是政府体制。

四．立法原则之争与混合制

　　“良法”是自然形成的，“恶法”是“立”出来的。当法律由眼前的那些人来制定，立法、法律、统治三位一体，良法问题就转化为“善治”问题。“善治”与立法原则连在了一起，与政府体制紧密相关。换言之，“善治”取决于“善制”，即恰当的政府制度。基本的立法原则分成两类：一是防止政府专权的手段，即强调分权制衡的法治；二是行政体现人民意愿和利益的手段，即强调人民代表权力的代议制民主。分权制衡保障执政者遵循社会基本道德准则；代议制保障集团的即时利益。混合使用两类原则的政府体制就是混合制。

　　即便是混合制，法的基本功能依然是制止政府肆意妄为，“良法”的基础依然是社会长期形成的基本道德准则。容许君主或人民代表自由行政的制度是“恶制”，能够迫使政府服从基本法的制度是“良制”

　　就核心原则而言，社会基本道德准则大体上是永恒的。因此，“良制”的根本在于分权制衡，保障基本法得以实现。但在漫长的历史长河中，有些道德原则会出现变化，也就是说道德准则因时因地有所不同。《圣经》中的“十戒”曾是西方法律和法律权威的支柱。十戒的前四戒讲保障后六戒的手段，后六戒是实质性的“基本法”。六戒有三戒是核心，即不得杀人、偷窃、和欺骗。另外三戒是，必须赡养父母，不得奸淫，不得侵犯他人的财产。在今天发达的“福利社会”，这后三戒要打些折扣了。更具体一些的道德准则变化更大些，如对等级社会和奴隶制的看法。若两百年前废除黑奴制，这世界上就根本不会有“美国”。五十年后的废奴之议引发了内战，差点把美国给“废”了。又过了一百年，经历了大规模的民权抗争，美国才确立了黑白平等的社会道德准则。通过议会民主来照顾集团的即时利益可以体现社会变迁带来的道德准则变化，体现不同时期和在不同的具体问题上公众对基本法的不同理解。但前提依然是不能让即时利益取代社会的普遍正义，否则就是纯粹的强权政治了。

　　法律既非既定，就必须被制定。为了维持法律与正义的联系，近代以来的立法原则之争主要是两种观念之争。一些人认为，由人民的多数来制定法律将不会出现“恶法”，因为人民不会去伤害自己的利益。这种观念支持“人民主权”原则，体现激进主义，倾向革命。另一些人认为，基本法来源于人类社会关系的基本道德准则，依据基本法来制定具体的法律符合所有人的利益，而不是分裂成集团的“人民利益”。这种观念支持“宪法主权”原则，体现保守主义，倾向反革命。

　　依“基本法”立法的原则有明显的优点和缺陷。“基本法”大体指的是“宪法”，或者说是各国宪法共同遵循的基本原则，表达人类处理“社会关系”的基本道德准则。依基本法立法的原则指的是：基本法来自社会关系的基本道德准则，一般的法律来自基本法，服从基本法。政府对社会的管理不得违反社会长期形成的善恶共识。这就是“宪法主义”或“宪法主权”思想的核心。在西方，因为对神的信仰，一项更高级的“自然法”支配常规立法的观念源远流长。理论上说，基本法是“普遍”和“永久”公正的，不取决于临时的集团利益。如果基本法提供社会所需要的至高统治权威，但又废除了主权“者”，社会关系服从的就不是一个、数个、或大多数的“人”，而是自然的道德准则。在近代革命中，“人民主权”取代了“君王主权”。如果我们希望结束“革命的时代”，我们可以选择让“宪法主权”取代“人民主权”，让人之治让位于法之治，终结无论是少数人还是多数人的统治。然而，“宪法主权”有三个明显的缺陷。（1）有可能变成“法官之治”或“执法者之治”。（2）有可能导致僵硬保守的社会。（3）缺少了神权，基本法的权威难以确立。

　　“人民主权”又如何呢？较之社会革命时代以前的“君王主权”，人民多数的原则有很明显的优点：人民主权废除了专制者的专断。随着商业社会的发展，柏拉图设想的“哲君”以及我国先秦时代追求的“圣王”越来越鲜见。官员和普通百姓一样会以谋私利为要务，利用公权与民争利的情形愈来愈成为寻常之事。于是君权成了暴政的代名词。“人民主权”是反抗专制暴政的利器，近代以来一直是大众革命的世界性旗帜。然而，当君王的主权被废除，革命的时代进入尾声，人民主权就显现出重大缺陷。我们无法证明“人民的权力”和“人民的福利”正相关。从逻辑上说，多数决定意味着取消“责任政府”，人民的权力无限扩大，政府就没有了。人民的多数决定在雅典判决苏格拉底死刑，在法国设立断头台，在德国推举希特勒做领袖，但指责人民犯这些错误是没有意义的，因为企图惩罚人民的多数是荒唐的。与直接民主不同，代议制把直接民主的多数统治变为少数统治，但少数执政者的执政权要定期得到“多数”选民的同意，于是就有了“责任政府”。普选并不决定法律，只决定立法者，或曰“执政者”。执政者的错误由人民数年一度的选举予以惩罚。美国人民并不对越南战争负责，为之负责的是总统和国会。通过代议制实现的“人民主权”有两类大的缺陷。

　　第一，代议制体现制度化了的“强权政治”。越有势力的社会集团就越能赢得代议制政权，而政权竞争的失败者则应当“优雅地”接受失败。强权政治有什么问题呢？社会里必然有一些集团比其他集团组织得更好，因而更强大。代议制使他们的要求在政府里得到更多的代表，获得与其人数不相称的利益代表权，例如美国政府里的犹太裔。代议制政府对“人民”的要求高度敏感，但“人民的要求”比“人民”本身还含混，还分裂，是政客操纵的对象。在代议制下，“人民的要求”大多是强大利益集团的要求。换言之，多数未必是真正的多数，他们只是强者；少数也未必是真正的少数，他们只是弱者。在多数原则下，民主政治里的“少数”，特别是真正的少数，是无望的，只能任人处置，除非诉诸非民主的解决手段或非民主的解决方案。美国黑人的民权运动不符合民主原则，不是靠推出自己的候选人到议会去改变法律，而是靠街头暴力来改变法律，因为他们不可能在议会占居多数。美国人数少的小州以分裂美国来威胁中央，获得了拒绝一人一票的联邦制安排。多数原则与“少数”利益的冲突向我们展示，民主政体之“合法”，根据不过是 “信仰”，是对强权的信仰。为什么在某一日赢得一定比例选票（如39%）的人应当统治我们好几年？我们凭什么相信普选出的统治者比非普选出的统治者行事更正义？定期更换执政者的机会常常是主要的辩护词。然而，职业行政官的升调奖惩决定于定期和独立的评议，更迭频率经常高于普选的官员。于是代议制的支持者们说：代议制民主不是最好的，但世界上没有更好的。说来说去还是代议制 “最好”，没有替代方案。世界上当然有替代方案。在众多国家的具体社会条件下，当代议制民主无力解决腐败和社会失序问题，专制便是直接、现实、和普遍的替代方案。法治也是一种现实的替代方案，如日本、香港、和新加坡的制度。法官不是民选的，但西方国家给了法官做独立司法决定的巨大权力，不挑战其“合法性”，甚至连议会制定的法也可由其推翻。总统和议员们必须在大法官的监督下宣誓忠于宪法才能就职，否则多少人选他也无用。西方国家的现行制度本身就是民主制的替代方案，是民选官员和非民选官员共治的混合政体，绝非是只有民选官员“合法”的政体。美国政策中的利益集团色彩是明显的，但美国又不仅仅由利益集团统治，看看议员和总统对宪法和司法部门的尊重和畏惧就明白了。西人信仰民主制，因为他们信仰强权政治，政权归于强大的社会集团乃属“理所当然”，谁不服气，谁就去组织属于自己的强大“公民社会”（civil society）。组织不起来你就认输，而且应当“优雅地”认输。如果一个社会并不信仰强权政治，也不分成界限清楚的强大利益集团怎么办？如果像中国这样连政府和社会的分际都模糊不清又如何？ 在这种情形下，对政权的民主争夺是“所有人对所有人”的混战，形不成势力均衡，而且谁也不认输，更不会“优雅”地认输。文革进行“阶级斗争”的目的很清楚，是防止资本主义复辟，却找不到进行斗争的“阶级”。于是所有人和所有人“斗”，今天斗人的明天被人斗。中国原本就不是阶级的社会，发动民主斗争的结果与文革不可能是两样，必然是什么“阶级”也不代表的政客在混战中浑水摸鱼。在没有阶级的社会里发展出的中华文明也不信奉强权政治，即便仅属于1 %的绝对少数，我们凭什么受多数任意处置？科索沃的塞尔维亚人就应当受阿尔巴尼亚人任意欺负？多数不一定就正确。多数原则也不是“普世价值”。涵盖世界四分之一人口的中华文明里没这一条，人类的教育和科技界也从未信奉过“多数原则”，怎么就“普世”了呢？我们服从“正义”，服从科学，偶尔也服从“人”，但凭什么因为对方“人多”就必须服从？

　　第二，对政府权力的公开和定期竞争导致社会议题的泛政治化，给政客以挑动和激化社会矛盾的经常机会。西方国家有稳定的阶级利益和清晰的集团利益界限，有大型利益集团之间的实力均衡，有对强权政治的普遍认同，有对日常行政议题的强大“中产阶级”共识，也有敬畏法律秩序的深厚传统。许多非西方国家缺少欧洲式的封建传统，稳定的社会等级和阶级几乎不存在，利益集团规模不大，也不稳定，利益高度分散。要他们团结起来，以争夺政权来维护自己的利益代价太高，政府很容易引诱背叛行为，将其各个击破。所以，通过争夺政权来维护利益这种“正确的”政治意识也就不普遍，太半是书生食洋不化的空谈。西方学者强调民主的“公民社会”（civil society）基础。“公民社会”大约译作“文明会社”更妥贴，指的是人民自发和自愿组成的“会” 和“社”，就维护自己集团的利益与政府讨价还价。如果社团不是自发自愿地组织起来的，而是靠族群分际，靠政府或社会流氓威逼利诱组织起来，我们的“会”和“社”不可能“civil”，在此基础上建构的民主不可能“文明”。在华人社会，为争夺票源进行的“阶级斗争”经常演变为政客政治，买票政治，甚至黑手党政治。这是社会结构使然。更特殊些的社会结构还可能使民主政治沦落为暴力政治。政客找不到固定的利益集团票源，为了当选，只好去利用社会里最敏感，最具爆炸性的问题，如宗教、种族、民族、以及历史仇恨。俄国、印尼、南斯拉夫、卢旺达等国的内战当然有历史根源。问题不在于冲突的根源有多久远，而在于民主化之前这些问题并不具有爆炸性，没有如今这样血腥。一些人认为民主制度有能力淡化敏感话题，因为政客想获得最大多数的选票，立场自然向中间靠拢。这种说法的关键在于假设多数票支持中间立场，而且少数必然服从多数。倘若真如此，南斯拉夫的内战，甚至美国的内战根本打不起来。如果政客都倾向中间立场，世界上就没有以党派为基础的民主政治了。“强大的中产阶级”对社会稳定的诉求的确是中间立场的坚实基础，但仍可能不敌政客挑动敏感问题。新加坡的“中产阶级”算得上强大了，绝大多数发展中国家没有这么强大的“中产阶级”。但是，那里的社会由70%的华人和30%的少数民族组成，能靠议会政治维持和谐？维持新加坡社会和谐的是法律，法律禁止民意代表挑动民族冲突。在发展中国家里，南斯拉夫的中产阶级不可谓不强大，但禁不住政客对族群的挑动。“强大的中产阶级”与其说是事实不如说是一种“共识”。大多数发展中国家既不存在这种事实也不存在这种共识。议会政治既不创造“中产阶级”的事实也不创造中产阶级的共识。政客们会不择手段，发掘一切潜在的社会裂痕去赢得选票。因此，在新兴民主国家里，对政府权力的自由竞争导致社会议题的泛政治化，给政客以挑动和激化社会矛盾的经常机会。没有法治来制约的民主是社会失序的最重要原因。

　　因为两种避免“恶法”的理论性立法原则都有重大缺陷，现实世界里多采用人民主权和宪法主权的混合制。

　　同所有的西方民主国家，美国的民主是建立在法治基础上的，是以西方悠久的法律主义传统为条件的，故称“自由民主制”。法治已然存在，民主就能顺畅地解决美国大型集团利益的平衡。法治已然存在，民主就能顺畅地解决西欧阶级利益的平衡。不受法治约束的民主是“非自由”的民主，是纯粹民主，也是彻底的强权政治。在“自由民主制”里，法治与自由是因果关系。“自由”意味着（政府）受法律规范。无论选民的多数支持什么，无论高官倾向什么，谁也不能剥夺基本法赋予个人的权利。因此，自由民主又称“宪法民主”（constitutional democracy）。

　　各种混合制的差异在于混合的比例不同。极度偏向人民主权的制度为“纯粹民主”。极度偏向宪法主　　权的制度是“停滞”。偏重人民主权但兼顾宪法主权的制度是“自由民主”，亦称西方民主。偏重宪法主权但兼顾人民主权的制度是笔者主张的“咨询型法治”。

　　不同的社会结构和不同的基本矛盾要求不同的制度混合比例。中国的主要问题是缺少基本的迫使政府守法的制度。“换人做做看”不解决中国的实际问题。在中国的社会结构下，建立缺少法治的代议制会导致无耻政客的泛滥和社会动荡。满清覆灭之际，“集会结社犹如疯狂，政党之名如春草怒生”，结果是二十年军阀混战的动荡，日本的全面入侵，直至千万大军之间的血腥内战，最后成就了“人民民主专政”。在我们眼前的俄国，前有叶利钦时代苏联解体，民不聊生；后有普京时代权力集中于“民选的国王”。希望民主与专制周而复始的经验，能让我们中国人聪明一些，实际一些。

五．咨询型法制：偏向法治的混合制

　　务虚之后还须务实，我们面临两个实际的问题。第一是做什么，建立什么样的混合制才解决我国的问题？第二是怎么做，怎样才能从“人治”或“党治”转变为法治？

　　1．笔者以香港和新加坡政体为蓝本，曾提出一个由五大支柱构成的新型政体的设想，称为“咨询型法治”。这五大支柱是：（1）中立的文官系统；（2）自主的司法系统；（3）独立的反贪机构；（4）以人大为核心的广泛的社会咨询系统；（5）言论、出版、集会、和结社自由。四大自由不是政府体制的一部分，却是所有政府系统必须倾心维护的基本原则，所以构成政治体制的一部分。

　　咨询型法制明显偏向执法和制衡。体制以中立的文官执法系统为核心，以独立的反贪机构直接对付腐败，强调司法独立的决定性作用，并发动四大支柱一起来制衡文官。咨询型法治以其强烈的咨询特性包容了民主因素，不是纯粹的法治体制。民主在体制里起辅助作用，旨在因应社会变迁，使执法机关倾听社会不同利益者的呼声，防止法治成为“法官之治”或“执法者之治”。这些民主因素包括：（1）四大自由；（2）民选的人民代表拥有立法批准权，行政调查权和建议权；（3）各层级的社会咨询委员会也拥有行政调查权和建议权。

　　咨询型法治与绝大多数发展中国家的体制不同，因其有法治，所以不是专制；因其以法治制度为主体，所以不同于纯粹民主制。这个体制与西方的“自由民主制”也不同，自由民主制以民主为主，法治为辅；咨询型法制以法治为主，民主为辅。咨询型法治是特殊的，因为中国的问题是特殊的，由中国特殊历史环境造成的社会条件是特殊的。咨询型法治的基本目标是解决腐败问题，迫使政府守法，迫使政府行政透明，建立公众对正义秩序的信心。

　　这个制度体现对已有政治文明的扬弃和创新：一方面恢复了中国悠久的文官制度传统，另一方面又弱化传统制度里强调的道德说教和君主核心；一方面汲取了西方的法治文明，另一方面又弱化了西方社会革命所创造的代议制民主，拒绝了流行于今的议会之治。在今日的新“春秋战国”世界，咨询型法治强烈要求变法求新，体现一种“新法家”式的强国主张。任何一个伟大的文明都以一个独特和杰出的政治文明为核心。亦步亦趋跟在别人后头学步，效果大多与东施效颦无异。制度创新才是中华文明复兴的希望，因应中国的实际需要和社会历史条件才能有制度创新。

　　2．怎样才能在中国建立咨询型法治呢？制度是用来约束人的，但制度永远是人来创造的，创造新制度是“英雄”的事业。如果我们假设中国的最高层领导人有意愿并且有决心推行以法治为导向，以吏治为核心的体制改革，随后的措施不难想象。然而，产生这种意向和决心并非必然。社会问题的堆积使内部压力增大，国际格局的变化使外部压力增大。对此，不同的领袖会作出完全不同的判断和决策。因此，战略眼光和魄力是影响高层领导人意愿和决心的根本因素。政治改革的选择余地并不大，无非是三种：（1）以不变应万变，不作实质性的变革。这是最容易，也是常人最可能的选择。（2）以法治为导向，以变革吏制为核心。这是最困难的，是冒着风险主动变法求新。（3）以民主为导向，以扩大“人民权力”为核心。这不大可能是“选择”的结果，而是第一种选择归于失败的后果。这种制度也说不上“新”，大多数第三世界国家都有了。中国的领袖们不会愚蠢到去模仿戈尔巴乔夫，除非像台湾那样党内冒出个以搞垮本党为己任的“主席”。

　　如果中国的领袖们下决心推行法之治，建立法治的制度，让法的权威从制度上高于政府领导人，下面的六件事是早晚要做的。

　　第一是执政党的工作重心从“搞经济”转移到法治建设上来。工作重心的转移会减缓经济发展吗？工作中心的转变会带来国内投资环境实质的和普遍的改善。在法规面前，所有的商人、实业家、平民百姓一律平等，不容许任何党政官员给任何人特权。凡私相授受成为某些“老板”之“后台”者，凡敢于为裙带关系违反正规程序办事者，一经举报被发现，涉案官员就受降职甚至免职的惩罚。这将使企业、商家、和普通民众感受到秩序，感受到法律面前人人平等的公平正义，也使政府官员认识法律的威严。

　　第二是真正落实十一届三中全会制定的“党政分开”原则，逐步撤销现行的双行政体制。从此，党库和国库不再相通，专职党工的职务和报酬也不同政府职务和工资挂钩。党通过自己在政府里的党员，特别是政务官，来实现自己的大政方针。这首先要求精简各省市县党的机构，让大量的党的工作人员转入行政部门，特别是执法部门。其次要求各地党委的工作重心转移到下面两个方面：一是教育党员遵纪守法，在人民中宣传执政党的依法治国政策；二是争取在各级人民代表的选举中获胜，获得任命政务官的权力。

　　第三是按照文官制度的原则改造政府，使公务员的升调奖惩和录用退休都严格按照精密的公务员法规进行，由独立于行政长官的人事机构依法规操作。行政长官只能负责行政，不能干预人事。政务官规定行政的重点和方向，但不能干涉日常事务，更不能干涉文官系统的人事。香港和新加坡的华人社会已经积累了丰富的约束文官的经验，许多具体的规定导致了世界上最廉洁的文官系统。不少人误以为新加坡和香港公务员的廉洁在于高薪，其实高薪并不养廉，公务员薪水无法与贿赂比高，公务员的数量决定他们的平均工资只可能是社会中上水平。严厉的惩罚导致廉洁，高薪导致高质量的服务。

　　第四是确立法院系统和反贪系统的独立。县法院院长由县党委讨论通过，县政府提名，人大批准，如此法院怎么会不搞官官相护，怎么能制衡政府权力？党政分开是法治的核心措施，法院系统的独立是法治成败的关键。为建立一个干净的政府，我们还需要保证反贪体系的独立。全世界到处都有反贪机构，但唯有香港和新加坡的反贪机构最为有效。原因无他，在反贪机构特别调查权之上只有最高行政长官一人，而且该长官不得干涉反贪机构的日常工作。香港和新加坡两地反贪机构的威严还在于拥有特殊司法权，唯反贪机构可以不遵循普通法无罪推论原则，实行有罪推论，官员不能说清财产来源者即为有罪，举证责任在当事人而非公诉方。官员手握公权，可以支配老百姓生活，所以隐私权和无罪推论权不属于政府官员。

　　第五是由独立的司法机构保障人民代表大会的立法批准权和行政调查权、建议权。文官系统和政务官必须定期接受人民代表的公开质询和听证，满足人民代表调阅有关档案的要求。行政调查权是特别重要的，意义是行政透明，接受人民和舆论的监督。搞黑箱操作的政府官员应当受到严厉惩罚。台湾的议会看上去很热闹，但议员们并不拥有行政调查权，如行政档案调阅权。同时，我们还应当在政府的各层级，各部门都设立大量无薪给的“咨询委员会”，由退休公务员，专家，有关的利益团体共同组成，并且拥有行政调查和建议权。只要行政透明，人民对政府守法就有信心。阳光能消毒，在阳光照射下的政府才会是干净的政府。

　　最后是开放言论、出版、集会、和结社等四大自由。当我们建立起了法治政府的框架，四大自由就不会成为利益集团争夺政权的工具，也就不会构成对社会秩序的威胁。相反，四大自由将成为人民监督和评议政府的手段，成为表达各类公众意愿的主渠道。必须指出：没有司法独立，维护四大自由是句空话。

六.结论

　　从东欧到拉美，从非洲到亚洲，第三世界的民主制大多陷入了危机。恶化中的腐败，社会分裂及经济失败在吞噬着人民对政府的信念。东亚地区并不例外。从蒙古、日本到韩国，从台湾、马来西亚、泰国、菲律宾、到印度尼西亚，我们都能看到民主带来的危机。

　　法治是使法律的权威高于政府领导人权威，迫使政府官员守法的制度。法的权威能够建立，原因在于分权制衡。在制度上以政府的权力制约政府权力，法的权威就高于政府官员。

　　分权的关键是司法系统的自主和文官执法系统的独立。执政者会依法办事，因为一切争议都必须接受中立的司法部门裁判，违法要付沉重代价。

　　如果法律可以由着执政者任意变更，司法和执法的独立当然就失去了意义。所以，法治还意味着对基本法的绝对尊重，必须依（宪）法立法，依法行政。

　　没有党政分开，没有司法独立，法治无从讲起，因此才要政治体制改革。有人问：没有民主化，党政怎么可能分开，司法怎么可能独立？然而，有了民主化，党政依然分不开，司法也不会独立，至多是换个“党”或者换个“领袖”来领导。我们周边的“新兴民主国家”已经检验过这个道理了。欧洲大陆上两千年的法律主义传统，英国的司法独立，美国最高法院的司法审议制，这些都是民主化以前的事情。创立新制度是英雄的事业。英雄之所以成为英雄，因为他有能力创制，变不可能为现实。民之治，法之治，乃至共产党之治，那一种制度不是英雄领导着人民创造的？

　　民主没什么神秘的，并不万能，正如法治之并不万能。民主并不导致法治，法治也不导致民主。两者是不同的，甚至相互矛盾。正因为其矛盾，法治可以弥补民主的缺陷，民主也可以弥补法治的缺陷。“自由民主制” 　　其实是混合制而非纯粹民主制。然而，民主是容易的，世界上最落后的大国和小国都能做成，散发票箱和监督投票并不难。法治是困难的，除了两个小型的华人社会，迄今没有那个发展中国家做成，因为建立自主的法院和独立的文官系统很不容易，靠散发选票箱子作不到。

　　民主是迷人的，因为民主使用的词汇很漂亮，像叶公家里雕画的龙，是“普世价值”。笔者有幸亲聆我国一位资深民主派在香港发表论文，痛斥毛泽东，指其为农民，有农民思想，农民性格，故必然倾向专制。君不知，真正的民主在中国当然意味着农民作主，而且当然是有能力操纵农民的农民领袖来作主。“土豪劣绅的小姐和少奶奶的牙床上也可以踏上去滚一滚”，凭什么农民们不欢迎这样的领袖？ 　　叶公好龙的续集很容易写。叶公对众人如此解释自己对“龙来了”的恐惧，“房梁上画的才是真龙，进得我屋来的乃是冒牌的假龙”。

　　民主主义者对自由的追求是值得颂扬的。但民主原则并不提供自由。“自由民主制”里的自由是法治限制和约束了民主原则的结果。缺少了这种约束，民主就走向专制。专制的敌人不是民主，是法治。

I. Introduction

Scholars concern themselves with ways and means to restrain abuse of power for private ends, a phenomenon very rampant in the officialdom. Some pedants tell their students that the “legal system” is essentially different from the “rule of law.” But ordinary people do not understand what difference on earth there is between the two terms. Law is promulgated and enforced by man. Where on earth has the rule of law been found? Who would ever refrain from abusing power and rule the country by law but for a severe punishment mechanism? The crux of the problem is how to compel government officials to become law-abiding.

It is very one-sided to presume that China has a profound tradition of government corruption. The traditional Chinese civil servant system is a lighthouse for East Asian political civilization. The main stream is honesty. Honest officials were lauded. Impartiality and honesty was worshiped. Uncorrupted officials were esteemed. Honesty was esteemed as the “kingly way” and was the orthodox of Chinese political civilization. It was only when Chinese dynasties were heading for doom that corruption became rampant. Hong Kong and Singapore are honest and uncorrupted. The government under the Chinese Communist Party was also one of the most honest governments in the world. We have no reason to consider all governments run by Chinese as corrupt. The Chinese people cherish great hatred for corruption and judge the quality of their government by the yardstick of impartiality and justice. People support the government because of its honesty, not because of its support for their group interests. They would oppose their government if it became corrupt, not because it did not represent their group interests. Chinese urban residents are very enthusiastic about reporting corruption cases so far as the practice proves effective. Provided with a good system, China will leave no room for any corruption cover up.

Nothing is more threatening to the people’s freedom than governmental abuse of power and governmental disobedience to law. Due to the conventional doctrinal cult, quite a number of people in China argue that only when there is democracy can the government be compelled to be law-abiding. Only “good” laws can lead to the rule of law. This was a misunderstanding, and a harmful misunderstanding at that. Good rule over the people never led to the rule of law. Nor did it improve the rule of law either. Parliamentary democracy can change the contents of law, but the change of law contents did not mean the rule of law. The rule of law in Western political civilization was not an outcome of democracy, but rather originated in the long-standing legalism (or the emphasis on the independence of law and law career). The rule of law in Japan was not a product of democracy either. It was founded in the Reformation Movement instead. (1) Almost all non-Western parliamentary systems fell short of the rule of law. Just look at those countries that had just got involved in the “third democratic wave” and you will see if they have increased or sharply decreased the elements of rule of law. And then have a look at Hong Kong just under our very noses, where there was basically no democracy. But how many countries’ government officials were more fearful of law than those of Hong Kong?

Democratic elections at an interval of several years cannot guarantee the President and parliamentary members against misconduct. To warn against our jumping from the mire of superstition in dictatorship to the quagmire of election superstition, this author is trying here to explain what sort of a system would be successful in compelling government observance of law, or what sort of “rule of law” should be enforced for this purpose.

II. Contents of Rule of Law and the Form of Government in China

In a book entitled “The Battle of Democracy,” Graham wrote, “Until the 18th century everybody had been aware what democracy was.” (2) Democracy was a system under which all adult citizens regularly elected their national top leaders. (3) The rule of law referred to a system whereby the authority of law was higher than that of the government, compelling the leaders to obey the law. Since the people were not the “law,” so the rule of the people could not possibly the rule of law. In modern times a parliamentary system emerged replacing the direct democracy for the majority of the people in ancient Greece with indirect democracy for a small number of elected representatives, i.e., the “Rule of Parliament.” But the parliamentary system was not the same thing as the rule of law either. The rule of law is different from democracy in four basic aspects.

1. It is different in the concept of power. Democracy places the hope of justice on the extent of people’s participation in the government. “People’s sovereignty,” “parliamentary sovereignty,” “The People’s Congress is the supreme power organ” are all manifestations of such an ideal. The main method to practice people’s participation in government is to hold general elections of the top leaders and to pass resolutions by the majority on important government policy decisions. Democracy holds that the more frequent the general elections and resolutions by the majority, the more people who take part in the general elections and resolutions, the more guaranteed the people’s welfare would be. On the other hand, the proponents of the rule of law pin their hope of justice on the extent of government power under the restraint of law, on the freedoms of the individuals. “Law is supreme,” “sovereignty of the constitution,” “Everybody is equal before the law” are all expressions embodying this ideal. Unlike the democratic method, the main method of setting up the authority of law is to institute a system of check and balance of powers. That is, it is stipulated that the different governmental functional organs shall be independent of each other, their powers are clearly defined and no mutual transgression is permitted. The proponents consider that the more clearly the law defines the functions of the government, the more severe the punishment dealt to government offense of law, the more the freedoms of the individuals will be guaranteed. The check and balance of powers reduces the responsibility or the monopolistic power of the top leaders for interest groups. It obliges them to respect the law-stipulated power limits. The key to the system lies in judicial independence. The judicial branch is not responsible to the voters or the executive. Since the judicial organ is independent, it will have the means to penalize the executive for law offense and the executive is brought under control. In short, while democracy stresses on realizing group welfare through people’s rights to participate in political power, the rule of law emphasizes the guarantee of individual rights (or freedoms) through restricting the power of the government.

2. Since they are different in concept, the rule of law and democracy have different powers and functions. Parliamentary democracy grants the people’s deputies the power to rule and the power to set up a government approved by the majority of the people. Due to such an objective, parliamentary democracy stresses on legislation. Only rules endorsed by the majority of the people’s deputies are legitimate. Otherwise there is no reason for compliance. Instead of setting up a government, the principal function of the rule of law is to administer it. Wherever the laws may come from, no matter whether the government is elected or not, so long as the laws are valid and conform to the “basic law,” the government must enforce them without fail. The executive is given no discretion rights. Thus the rule of law emphasizes law enforcement and demands that government officials act according to law. The government can only do what the law stipulates explicitly while the people are permitted to do anything unless explicitly prohibited by law. Especially in modern times, the judicial branch has been vested with the power to punish the executive branch for violations of the basic law especially the laws protecting popular rights to articulation, publishing, assembly and association. The rule of law also demands that, no matter what the people’s will is, no matter where the basic law comes from, legislation by the people’s deputies must conform to the basic law. The basic law is not subject to formulation, change or interpretation according to the will of people's deputies. Otherwise the authority of people’s deputies will overshadow the authority of law. If this is the case, then the government will be unrestricted. In short, the function of democracy is to defend the government’s power to govern, and legislation is of paramount importance. On the other hand, the function of the rule of law is to restrict the legislation and administrative power of the executive branch. Law enforcement is of paramount importance.

3. Since they have different functions, democracy and the rule of law have different power organs. Elected legislatures are the bases of democratic power. They are mainly the Parliament and the chief executive either elected or decided upon by the number of seats in the Parliament. They also include the political office holders that are recommended by the chief executive or are in or out of power together with the chief executive. Non-elected law enforcement organs are the power bases of the rule of law. They are mainly the career civil service system and the neutral law court system that are free from the interference of the political officers. The civil service system is not elected. It does not come under the influence of political officers. Its responsibility is mainly to perform routine administrative power according to the criterion of law. Still less is the law court system elected. The responsibility of a career judge is mainly to judge neutrally whether the executive has offended law in his administration or not. For example, if an executive wants to punish a criminal, that criminal still has the right to resist the punishment through a lawyer and the court, and prevent the executive from making any discretion to woo his constituency. No civil system or court in any country is completely independent of the general political situation. But it is essentially different to have or not to have an independent power base.

4.Since they have different organs, democracy and the rule of law have different power regulations too. While democracy regulations are elections plus (relatively majority decision; those of the rule of law are examinations plus independent meritocracy. While the former relies on the number of votes in close combination with factional interest, the latter relies on merits and meritocracy, taking comprehension and loyalty as the criterion. No career civil servants and judges live in vacuum. They can never be “absolutely” neutral unless they live without human food and lodgings. But they are much more neutral than the open representatives of interest groups are. They are not responsible to the voters or to the executives. They are only liable to law and are therefore relatively impartial.

In short parliamentary democracy believes that the people will eventually be able to elect good leaders, assuming that a reshuffle once in several years will guarantee welfare for the people. The rule of law does not believe in anybody, assuming that only independent punishment mechanism can stop the executives from misdeeds. Hence, it emphasizes the check and balance of government power--- judicial independence, emphasizing the stability of the basic law and the legislation according to law.

Due to lack of understanding about the check and balance theory, Chinese fellow nationals often mistake elections as the check and balance. If we believe power can only be controlled by power, then government power must be controlled by government power. Democracy can generate government power, but it cannot restrain government power.

Rule of law and democracy are different from each other in concept, functioning, organs and regulations, and even at odds with each other. So the problems they are fit to resolve are different too. Democracy can force the government to open up and stop a certain social group from monopolizing political power and make it possible for interest groups to compete for government power freely, thus guaranteeing the interests of the main stream groups will be represented in legislation. The rule of law checks government power with government power, and compels the government to administer according to regulations and thus to guarantee personal freedoms and a free order.

What is the main problem in our country? It is government officers’ contempt for law and unscrupulous misconduct and their abuse of government power for private ends. The reason accountable for such a problem is not that the Chinese laws are bad. The gap between our country and the developed countries does not lie in the gap between their legal stipulations, but in the gap between actual efficacy of the laws. Although there are many deficiencies in Chinese laws, it is not difficult to formulate good ones. Furthermore, many current laws are good enough. The problem is that it is difficult to make officials abide by them. Since the emergence of market economic structure, the Chinese political system can no longer control the spread of corruption. Even the current system itself is the very origin of corruption. This system had once won world-shocking achievements, but now it shows an evident degenerating tendency. It is in bad need of vigorous reforms. Only when government behavior is restricted by the institutions, becomes transparent and subject to rules and regulations can there be any stable “good rule.” That is why the political reform advocated in this article is a reform of the political system, and not a reform of the legal contents. A transparent, law-abiding government commands public trust, arouses confidence among the people in justice and unites the people closely around the government. As far as China is concerned, this is the most effective means to eliminate domestic trouble and foreign aggression.

Why are Chinese government officials disobedient to the laws under enforcement? This is because neither of the civil service nor the judicial system is independent. The No. 1 man in all localities and sectors rules supreme. Without power separation there will be no independent organs ruling the officials. Without laws ruling the officials, the officials are free to rule the people as they please. They are free to make trouble for the people, for the enterprise, for the university. When the common people and university students make disturbances, some would say these are the “conventional traditions of a mob.” But in the world there are only “outrageous officials,” and never any “mob.” Han Fei Zi (c 280 BC ~ 233 BC) said, “I have only heard of good common people independent of chaotic officialdom. I have never heard of any self-ruled officialdom independent of a mob. That was why a wise sovereign always rules his ministers instead of his common people.”(4)

After the emergence of market economy, there emerged two big issues in the current form of government, which led to “chaotic officialdom.” 1. The decentralized power was turned into feudal power. The check and balance mechanism that had existed before the reform disappeared. While former officials in charge might have been punished because of using public letter paper to write private letters, the No. 1 man of today has the monopolistic right to all the staff, wealth and materials of the whole plot of land. He makes the firmest grasp of the right to promote or demote, to reward or to punish the officials and even judges under him. The power is so centralized that he takes public property as if his own private property. Flattery is rife and nepotism is rampant in the officialdom, with those who keep idle and loathe, talk big and exaggerate and lick boots being all promoted one after another. 2. From market economy derives “commercialized power,” degenerating the original government austerity. Officials are enthusiastic about “commercial activity” and merchants are of course vying to “corrupt officials.” When officialdom is blended with the market, the irregular market will infest with deceptions, so will be the officialdom that lacks check and balance. A lower-grade deception consists in talking about serving the people in your face while bickering over the chips in selling government power behind your back. A higher-grade deception would consist in speculating on “concepts,” bloating political performance, trading false, big and empty words for higher positions.

Lacking an independent organ to rule the officials, the officialdom will be rife with practices of exploiting the people and robbing them of their land. The bureaucracy will be rife with selling of official ranks and posts and even open bribery and graft. Gone is the “kingly way” that once prevailed, when officials were strictly self-disciplined, treating the world honestly and sincerely, preferring justice to proceeds, and preferring death to slavish survival. As the kingly way declined, a wicked way sneaked in and ran wild as a matter of course.

Some people tried to “restrain” the unlawful officials by means of “democracy,” resorting to such recourses as “democratic appraisal.” The result was that corrupt officials were commended while honest ones were subject to suspicion. The best thing would be that honest officials got promoted after “appraisal.” But without an independent penalty mechanism, even honest officials would become corrupted after assuming power. When an official is about to leave his post, his riches have already piled up. A reshuffle every four years would bring nothing but an upcoming new official hungry for corruption. This has been the case in the mainland as well as in “democratic Taiwan,” in democratic India and in the democratic Philippines. Actually there has been no exception in a society without the rule of law, Chinese and foreign, past and present. Under market economy, how could it be possible to keep officials uncorrupted merely by means of self-discipline without check and balance of power? It would be a great blunder to presume that India, the Philippines and Taiwan were not free enough in speech and elections. The election contests there were much more intense than those in the United States, the political stances articulated far more pluralistic, and freedom of speech much more extensive. But there is no necessary relationship between democratic elections of officials and a law-abiding bureaucracy.

Under China’s “market economy,” the key to a “good rule” lies in making the authority of law more authoritative than that of the officials and in strictly enforcing what the law regulates. Provided government administration is placed under constant law restrictions, the people will be free from unscrupulous tyranny. The people are free only when they obey the law and not the individual. Pan wrote, “On a free land, the government depends on law instead of any big shot.” Henri Rousseau said, “Nothing is more convincing to me than the fact that freedom has the same fate as the law. It flourishes as law flourishes and varnishes as law varnishes too. ” John Locke even pointed out, “Where the law fails is the starting point of tyranny.” (5)

Judicial independence, a means of restraining government power with government power! Such a brilliant idea can be traced back to ancient Greece 2500 years ago and ancient RomaWhen will a government revere the laws with awe and readily comply with them? It will do so when it is subjected to severe punishment when going against them. But who is to ascertain that the government has violated laws and to punish it accordingly? If there is an independent judicial branch and a neutral law enforcement system in the government, the law court may relatively independently judge whether the government is lawful or constitutional or not in its legislation and administration. The judicial branch is on this account entitled to “penalize” law-offending bureaucrats “according to law.”

In 2000 years back. But Britain was the first to practice it as a genuine system. The United States made the system more delicate. It first vested the judicial review power in the Supreme Court, empowering the Supreme Court to veto a legislature or executive resolution according to the Constitution. Judicial independence embraces three basic principles: (a) the principle of independence, demanding the judicial branch is free from executive interference and (b) the principle of neutrality. Judges are life professionals free from interest group ifluences and (c) the principle of upholding the basic law as of supreme importance. The basic law is not subject to any change by elected or non-elected executives at will.

When independent and career law experts are empowered to judge the disputes between the executive branch of the government and the people, and between the government branches, the authority of law will prevail over the power of the executives. And the executives will be compelled to administer according to law. It would be meaningless to discuss whether the laws are good or bad without making the law more important than the executive’s will, without implementing the principle of everybody being equal before the law, and without the dignity of law and judicial independence. Good laws do not necessarily lead to “good rule” or the rule of law. Just take a glimpse into what is around, and you will find the rule of man and bad rule everywhere under good laws.

In our country, it is not legislation, but rigid enforcement of laws that is more important. Make the laws really “effective.” If the executives are not fearful of judicial power, but predominate over the law, even the best law will fail to stop a “bad rule.” Separation of power and restriction of government power with government power, that is the only way to compel government officials to respect laws with awe day in and day out. In a word, it is the rule of law, and not democracy that can solve the main problem in China. But without “good” laws, would the rule of law not turn out to be the rule of “bad laws”? How could there be “good” laws without a democratic system?

III. “Good Laws” and “Bad Laws”

The code to demand government to exercise power according to basic social ethics is a “good” code. The code to vest the government with unrestricted power is a “bad” code.

Law has a dual purpose: order and justice. To be secure, the people allow the government to grasp all means of violence so as to stop the disorder characterized by the jungle law. Order is the basis of civilization and government is the hallmark of it. Once there is a government, people will find those in power will naturally tend to infinitely expand their power and act as they please. Power is a kind of enjoyment. Holding sway over others is one of the sources of joy. An official within the term of office may issue an order and change it instantly in the name of order and act as he pleases. He may possibly bully others by means of public power vested in him. If he is not restricted, this possibility may easily turn out to be a reality. Hence, a government, once established, may constitute the gravest threat to social justice. If the government exercises its power according to basic social ethics, the threat to the people may be alleviated. Only when it is so that the people can enjoy the proper order as a result of government administration. Only in this way can there be any just order. Order comes from governance. And a just order comes from governance according to the social consensus on good and bad reached through the ages. Hence the code to demand governance according to basic social ethics must be a “good” code. A good code demands that the government should penalize the wicked and never punish the good. We refer to the basic social ethics as the basic law, which is defined as a “good” code. Of course, a good code may not necessarily lead to a good rule. Requiring an official how to act is one thing. How he will actually behave himself is quite another. A code does not mean the rule of law.

Originally, the basic law was the “code.” Therefore the code was bound to be “good.” Without a bad code, a good code would be out of the question. From the Roman era to the end of the Middle Ages, laws were considered to be “justice;” hence, the term “divine law” or “natural law.” In Latin, “law” and “justice” were one and the same word. “Justice” was the universal ethical norm at the time. In other words, “law” in the past was not only a matter of form, but also had definite contents, i.e., the standards for social “justice.” Articulated in the Bible, it was based on the Ten Commandments. This was the context of the principle of law supremacy in the Middle Ages in Europe. Law was fixed and existed as a matter of course. It survived in the form of inheritance of traditions. Therefore it was not necessary to make legislation, still less to follow any procedure of legislation. Laws were discovered or promulgated by law experts, but not “formulated.” The role of “legislatures” was mainly confined to compiling and annotating the unwritten conventions. Over a long period of time the British Parliament was a “law-finding body.” (6) In such an era a bad code was not recognized as the law. People revolted against the wicked “law” on the most justified ground of its “law violation.”

The concept of “bad law” came along with that of “legislation.” Social changes led to important changes in political integrity outlook. For example, tilling by farm slaves and hierarchy had all to be abolished. Hence, a social revolution broke out on the European continent. The French revolutionaries boasted of making a “thorough” break with the society and substituted the old concept of values with the new concept of “people’s sovereignty.” From then on, the elected Parliament members were vested with the “legislation power.” As a result, “laws” were no longer a “discovery” of the judges, or a product of rational inference. They were no longer connected with the contents. They developed into only a form. The rulers could “formulate” them at will. As the rule of law turned out to be PM rule, the three concepts of law, legislation and rule evolved into a synonym. Laws were “legislated” by the rulers, namely the “people’s deputies” who live with us day in and day out. Legislation meant rule and vice versa. If the “rule” was bad, the “law” enacted must have been bad. When the great French Revolution landed where it was after travelling a circle, facts proved that the rule of people’s deputies was almost as bad as the sovereign rule. The question of bad “legislation” began to bother us.

While the basic law was not democratically formulated, the basic social ethical norm took shape in the long practice of human society. Some countries, for example, Britain, have no written constitutions. The grounds of law there were the previous judgements passed. So the people there had nowhere to start off with if they wanted to alter the judgments passed on previous cases constituting the basic law spirit. Inheriting the Anglo-Saxon traditions, the US Constitution could not be altered either. The only option left was to add amendments to it. The US Constitution is one of the most famous “good” laws in the world. In the United States, the Constitution is looked upon as the Holy Bible in the secular world. But just like the Holy Bible, it is hard of to speak of the Constitution as a product of democracy. It was discussed and approved by 55 self-styled gentlemen in 1787, the 52nd year of Emperor Qianlong during the Qing Dynasty. Only 37 of them voted for it and most of them were owners of large manors using slaves to till their land. Later the parliament of the 13 states approved the Constitution, but no more than 2000 people took part in the deliberations and voting. And perhaps those people were the only ones who knew how they became the deputies. Although these two thousand deputies died long time ago and had nothing to do with the lives of the contemporaries, yet in the two centuries or more, no people’s resolutions have ever been made about the Constitution. Compared with the US Constitution, the Constitution of the People’s Republic of China was formulated in a much more democratic process. Even if we presume that the US Constitution was generated democratically, yet the world had undergone a tremendous change. How can a code “democratically” produced in the era of “Emperor Qianlong” be considered a democratic means to standardize the contemporaries in the 21st century? Nevertheless, the US Constitution remains a “good law.” It is also common knowledge where the current German Basic Law and the current Japanese Constitution came from. It is also known where the Hong Basic Law until 1997, i.e., the Royal Decree of the British Throne, came from. If these basic laws were listed among the “good laws,” then it was clear that democracy was not the main means to generate them. The reasons why the US Constitution was considered as a good law were that it had the following special features: (a) those who enacted it were political philosophers of the greatest vision in the world. (b) It embraced all social basic ethical norms. (c) It was enacted according to law and inherited the main contents of Britain’s judgment cases. (d) Through strict check and balance mechanism it restricted government power and actually rejected the power of PM to revise the basic law at their free will.

A code to vest the government with unrestricted power is a “bad” code. Like the rule of the sovereign, the rule of people’s deputies must also be restricted. They should be compelled to enact according to the basic law and to exercise their power of rule according to basic social ethic norms. Like the sovereign, people’s deputies are also human being who may abuse power, become corrupt and bully weak groups and individuals. That is why a good code requires people’s deputies to obey the fundamental law and deny them absolute power.

Lee Kuang Yew once thought of giving somewhat greater weight to the adult votes than to the votes from the young. But the practice was considered as undemocratic. Democracy cannot possibly reject the system of one voter one vote. But the US Constitution stipulates the one-voter-one-vote system shall not be practiced in the Senate elections. At present, one vote among the Alaskans and Wyoming residents is roughly equivalent to 48 and 68 votes among the Californians respectively. Nor is the one-voter-one-vote system is practiced in presidential elections. The president is indirectly elected with the state as a unit for vote counting. The number of votes in each state college is the sum total of the Federal Senators and House Representatives. The winner gets the sum total and the loser will get zero votes, known as the zero-all system. So the candidate president who gets the majority vote may lose to the one who gets the minority vote. Such a constitutional stipulation is much more undemocratic than the idea of Lee Kuang Yew. It aims at nothing but to restrict the power of people’s deputies. The Chief Judge of the US Supreme Court is not elected. But the judges of the Supreme Court alone are vested with the power of interpreting the Constitution. And they are the only persons who are empowered to ascertain whether the laws that have been signed by the President to take effect after their adoption by the bicameral US Congress are unconstitutional or not, and thus to be abolished or not. The US President must pledge allegiance under the supervision of the Chief Judge of the Supreme Court before he can assume his office as president. Otherwise, it will be of no use, no matter how many voters voted for him. The system under the German “Basic Law” is even less democratic. The upper house of Germany not only participates in approving legislation, but also monopolizes the power to make legislation proposals. But the upper house is not democratically elected, but composed of the technocrats appointed by the various state governments.

If all power were really to belong to the people, this would be tantamount to pursuing the jungle law in the whole society. The realistic all power to the people approach could be only all power to the elected Parliament, and delegate all the legislation, administrative and judicial power to the hundreds of people’s deputies. When the immediate interests of the deputies become the upright basis for legislation, the basic social ethical norms established over centuries would no longer be anything important. Law is nothing but the pronoun for group and individual interests at interim. All power to the Parliament and all power to the sovereign are essentially the same. The demarcation line between majority and minority autocracies is very vague. It is a minority of career politicians that manipulate the majority. The majority rule, the minority rule or the one-man rule, is the rule of man all the same. The rule of man in different categories is easily mutable. It is a commonplace to cycle from democracy to autocracy. The French Revolution boiled down to another launch of such a cycle in modern history. The most thoroughgoing democracy is the starting point of autocracy. On the eve of the 80th anniversary of the founding of the Communist Party of China (CPC), there was a very terse press passage that gave an official interpretation of the Chinese system. I would like to quote it here to show how close the rule of people’s deputies is to the rule of political party:

“The principle of separation of power is no democratic principle. It is rather the elite politics vs. popular politics. China does not practice the principle of power separation because the people’s democracy we practice is extensive and thoroughgoing. All power to the people and all state power must be exercised in a unified manner by the people’s congress as the people’s parliament, and must never be shared by any other organs. The people’s congress as the people’s parliament is the organ of state power. All other state organs, judicial organs and inspection organs are generated by the people’s congress and are responsible to it, placed under its supervision. There is division of work, but no separation of power among the various organs.” (7)

Lee Teng-hui made a speech in Cornell University entitled “The desire of the people is always cherished in my heart.” The speech was well received in Taiwan. On second thought, “The desire of the people is always cherished in my heart” implies both democracy and autocracy. Unlike democracy, the rule of law demands checks and balance of power and places no trust in anybody’s “heart.” Hence, it is the deadly enemy of autocracy. Many fascists came to power through fair and democratic elections. The most important signal of their rise was to stop enforcing the constitution in the name of “people’s desire.”

“Legislation” is the source of wicked laws enacted. The code for the rulers to vest the rulers with infinite power is a wicked code. In modern times, legislation, law and rule tend to merge into one integrated whole, Appropriate legislation principles have become crucial to a “good rule.” From then on, the government structure will be the legislation principles and vice versa.

IV. Polemics on Legislation Principles and the Mixed System

While a good law is formed naturally, a bad law is “legislated.” When law is formulated by those around us, legislation, law and rule will become a trinity. A good law will become a good rule. The good rule and legislation principles will be bound up together and closely connected with government structure. In other words, a good rule depended on a good government structure, or appropriate government system or institutions. The basic legislation principles are divided into two categories: one is the means to prevent government monopoly of power, stressing the rule of law with check and balance of power; the other is the means to manifest the people’s wishes and interests through administration, stressing parliamentary democracy with power vested in people’s deputies. The check and balance of power through power separation guarantees the rulers follow the basic social ethical norms while the parliamentary system guarantees the immediate group interests. A government structure that applies both of these two principles in a mixed manner is a mixed government structure or system.

Even under a mixed system the basic function of law is to stop the government from acting according to its free will. The basis of a good law remains the basic social ethical norms shaped over a long period of time. A system that tolerates the sovereign or people’s deputies to administer at will is a bad system. A system that can compel the government to obey the basic law is a good system.

As far as the core principle is concerned, basic social ethical norms are generally speaking everlasting. Therefore the check and balance of power is basic to a good system. It guarantees the enforcement of the basic law. But in the long course of historical development some ethical principles may change. That is to say, the ethical norms may vary according to place and time. The Ten Commandments in the Holy Bible were once the pillar of Western law and law authority. The first four of the Ten Commandments were the means to guarantee the remaining six Commandments, while the other six Commandments were the substantial basic law. Three of the six Commandments were the core, i.e., Thou shall not kill; Thou shall not steal and Thou shall not cheat. The other three Commandments were (a) Thou shall support thy parents; (b) Thou shall not commit adultery; and (c) Thou shall not infringe on others’ property. In the developed countries of today, these three latter Commandments are much discounted. There are even greater changes in some more specific ethical norms, such as the viewpoints on hierarchy society and the slavery system. Had the black slavery system been abolished two centuries ago, there would not have been the United States altogether? The civil war triggered by the slavery abolition struggle fifty years later brought the United States to the brink of “abolition.” It was after another one hundred years that the United States established the black-white equality social ethical norms through large-scale civil rights struggle. Giving consideration to the immediate interests of different groups through parliamentary democracy may embody the change of basic ethical norms resulting from social changes and embody the different understandings of the public about the basic law on different specific issues and in different periods of time. But the prerequisite was still not to tolerate the substitution of immediate group interests for universal social justice. Otherwise power politics pure and simple would result

Since laws were fixed, they had to be formulated. To maintain the relations between laws and justice, there had been a struggle between two concepts of legislation principles. Some people held that there would not be bad laws if the majority of the people were to formulate laws because the people would not harm their own interests. This concept was in support of the principle of “people’s sovereignty.” It embodied radicalism and tended to be revolutionary. Some people, however, held that the basic law originated from the basic ethical norms among human social relations. It would conform to everybody’s interests to formulate concrete laws according to the basic law instead of separating them into “group interests.” Such concept was in support of the “constitutional principle.” It embodied conservatism and tended to be counter-revolutionary

The principle of legislation according to the “basic law” has obvious strong points and defects. The “basic law” generally refers to the “constitution,” or the basic principles commonly followed in the constitutions of different countries. It may also refer to the basic ethical norms articulating man’s handling of his “social relations.” The principle of making legislation according to the basic law refers to the following: while the basic law comes from the basic ethical norms on social relations, the common laws come from and comply with the basic law. The government’s social administration can not go against the social consensus reached on the good and the bad through ages. This is the core of the “constitutional doctrine” or the “constitutional sovereignty” ideology. Due to the worship of God in the West, there had been a long development of the concept of a higher-grade “natural law” holding sway over the regular legislation. Theoretically speaking, the basic law is “universal” and “forever” impartial without depending on provisional group interests. If the basic law provides the socially-needed supreme authority of rule, but abolishes those who own the sovereignty, then the social relations will have to obey the natural ethical norms instead of one single individual, or a few individuals or a majority of “persons.” In the modern revolutions, “people’s sovereignty” has replaced the “sovereign’s sovereignty.” If we hope for an end to the “revolutionary period,” we may opt for the substitution of people’s sovereignty with constitutional sovereignty and the substitution of the rule of man with to the rule of law, no matter it was the rule of the minority or the rule of the majority. But constitutional sovereignty has three obvious defects: (a) it may evolve into the “rule of judges,” or the “rule of rulers.” (b) It may lead to rigid and conservative society. (c) It may be difficult to set up the authority of the basic law in the absence of divine authority.

What will “people’s sovereignty” be like then? Compared with the sovereign’s sovereignty before the social revolution era, the principle of the majority is obviously much better with its abolition of the arbitrariness of the autocrat. Along with the development of the commercial society, the prophets imagined by Plato and the sage kings pursued after in China’s pre-Qin dynasties had become ever rarer. Like the common people officials would make it their priority to seek private ends. It turned out to be an ever more rampant commonplace for government officials to squeeze benefits from the people by abusing their power. “People’s sovereignty” was once a sharp weapon against autocratic tyranny and a worldwide banner in massive struggle in modern times. But when sovereign’s sovereignty was abolished and the revolutionary era was about to come to an end, the people’s sovereignty appeared to be highly defective. We have no way to prove that “people’s power” is positively related to “people’s welfare.” Logically speaking, the decision by the majority would mean the cancellation of the “responsible government.” The infinite expansion of people’s power would mean the non-existence of the government. The majority of the people decided to sentence Socrates to death in Athens. They decided to set up the gallows in France. They recommended Hitler to be their top leader. It would be senseless to accuse the people of committing these blunders because it is absurd to punish the majority of the people. Unlike direct democracy, the parliamentary system turned the majority rule of direct democracy into the minority rule, but the ruling power of the minority rulers had to obtain the endorsement of the majority voters regularly; hence: the “responsible government.” General elections do not decide on laws. They decide only the legislators or the “rulers.” It is up to the people to punish the rulers for their errors through elections held once in a few years. The American people were not responsible for the Vietnam War. The US President and Congress were responsible for it. The “people’s sovereignty” through the parliamentary system has two major defects:

(a) It embodies an institutionalized “power politics.” The more influential a social group is, the more it can win the parliamentary political power, and the loser in the political power contest has to accept defeat “elegantly.” So where is the alleged “power politics”? In society there must be some groups better organized than others; hence, they are stronger. The parliamentary system would give them greater representation in the government and vest in them greater representation power that is incompatible with their size, such as the American Jews in the US government. The parliamentary government is highly sensitive of “people’s demands.” But “people’s demands” is a concept even more vague and fragmental than the concept of “the people” itself. It is a target manipulated by the politicians. Under a parliamentary system, “people’s demands” are mostly the demands of strong interest groups. In other words, the majority may not necessarily be the genuine majority; they are merely the stronger ones. The minority may not necessarily be the genuine minority; they are merely the weaker ones. Under the “majority” principle, the “minority” in democratic politics, especially the genuine minority, is hopeless. They can only subject themselves to others’ domination unless they resort to an undemocratic solution or an undemocratic means of solution. The US black civil rights movement did not conform to democratic principles. It did not send any candidate to the Congress to change the law, but rather resorted to street violence to press for a change of law because it was impossible for them to get a majority in the parliament. Some smaller states by threatening to split up the United States opted for a federal arrangement of rejecting one vote for one voter. The conflict between the “majority” principle and the “minority” interests shows us that the legitimacy of a democratic form of government is merely a matter of “faith,” the faith in strong power. Why should the person who gets a certain proportion of votes (say 39%) on a certain day dominate us for a number of years? Why should we be made to believe that an elected ruler is always more just in his action than a non-elected ruler? The opportunities of reshuffling the ruler regularly is often the plea offered for the belief. But career administrators are more dependent on regular and independent appraisal for their promotion and demotion, punishment or award. They are reshuffled at a usually higher frequency rate that the elected officials. So the proponents of the parliamentary system said the parliamentary democracy might not be the best democracy, but there could be no better democracy in the world. Back and forth, the parliamentary system was the “best,” with no alternative whatsoever. There are alternatives in the world for sure. Under the concrete social conditions in many countries, the contemporary parliamentary democracy was helpless in settling corruption and social disorder problems. Autocracy was the direct, realistic and universal alternative. The rule of law was also a realistic alternative, such as the Japan, Hong Kong and Singapore systems. The judges were not elected. But Western countries vested in them the tremendous power to make independent judicial decisions without challenging their “legitimacy.” They could even overturn the laws formulated by the parliament. The President and the Parliament Members must all pledge allegiance to the Constitution under the supervision of the Chief Judge before assuming offices. Otherwise they would be illegitimate, whatever majority they might have got in their elections. The existing system in the Western countries is nothing but an alternative of the democratic system. It is a form of government mixing the elected and the non-elected officials. It is by no means a “legal” form of government led by the elected officials only. The US policies are most tinged with group interests, but the United States is not just dominated by interest groups alone. Just look at the esteem and awe the president and Congressmen hold for the Constitution and the judicial branch, and you will realize everything. Westerners have faith in democracy because they have faith in power politics. Political power to the strong social groups is a “matter of course.” If you grumble about that, just go ahead and organize a powerful civil society of your own. Failing that, you have to admit defeat, and “elegantly” at that. What to do if the society has no faith in power politics, and is not clearly divided into strong interest groups? What is to be done for example in China, where the demarcation line is vague even between the government and the society at large? (8) Under such circumstances, the democratic scramble for political power is a scramble of “all vs. all,” in which no influential group could ever take shape and nobody would ever admit defeat, still less “elegantly.” The purpose of the “Cultural Revolution” was obviously to prevent capitalist restoration. But it could not find the “class” which it was supposed to fight against; hence it was an all- vs.- all tangled warfare. Attackers of today were liable to beccme the attacked the next day. China was no longer a class society. Launching a democratic struggle in China would make no difference from the “Cultural Revolution.” The inevitable result would be politicians not representing any ‘class” fishing in troubled water in the scramble. The Chinese civilization, which was born out of a classless society, did not believe in power politics either. Even we were in an absolutely minority of 1%, why should we be left to the discretion of the majority? Why should the Albanians bully the Serbians in Kosovo ? A majority may not always be correct. The “majority” principle is no “universal values.” There is no such a principle in the Chinese civilization, which covered one fourth of the world’s population. Human education and S&T circles did not believe in such a “majority” principle either. How came it becomes “universal” all of a sudden? We obey “justice.” We obey science. Occasionally we obey a “man.” But why should we obey the other party simply because they are in the majority?

(b) An open and regular contest in government power would cause pan-politicization of social issues, leaving much chance for politicians to provoke and agitate social contradictions. Western countries feature stabilized class interests and clear-cut group interest boundaries. They feature the balance of strength among all large interest groups. They feature a general consensus of power politics. They feature a strong “middle class” consensus on the routine administrative issues. They also feature a profound tradition of respecting law order with awe. On the other hand, many non-Western countries lack European feudal traditions. A stabilized social hierarchy and classes simply did not exist. Interest groups are small in size and they are not stabilized either, with their interests widely scattered. It would cost them too much to unite for the political power scramble. The government can easily induce them to revolt and split up. So it has not been universal to defend the “correct” political ideology of these interests through political power scrambles. Proponents were mostly scholars who suffered indigestion of Western doctrines and indulged in empty talk. Western scholars emphasized the basis of democratic civil society. It seems that “civil society” should mean “civilized society” as it refers to an “asociation” and “society” organized spontaneously and voluntarily by the people to defend their group interests and to bargain with the government. If the association and society were not organized voluntarily and spontaneously, but organized under the induction or coercion of the government or social hooligans, then the association or society could not possibly be “civil.” The democracy built on such a basis could never be “civilized.” In a community of Chinese nationals the “class struggle” carried out for vote sources often evolved into politician politics, vote-buying politics, or even Mafia politics. This would be the inevitable consequence from the social structure. More peculiar social structures would turn democratic politics into violence politics. When politicians failed to find fixed interest group voting resources, they would opt to use the most sensitive and explosive social issues to get elected, such as religious, racial, national and historical hatreds. True, the civil wars in Russia, Indonesia, Yugoslavia and Rwanda did have historical roots, but the question is not how long the conflicts had originated. The issues were at least not so explosive before the process of democratization and never so sanguinary as today. Some people held that a democratic system would play down these sensitive topics because politicians would tend to be neutral out of the wish to win the overwhelming majority. The critical point with such allegation is that they presume the majority vote would support the neutral stance and that the minority would certainly obey the majority. Should this have been true, there would not have been the civil war in Yugoslavia, not even the Civil War in the United States. If politicians all tended to be neutral, there would not have been any party- and faction-based democratic politics. A so-called strong middle class is indeed a solid basis for the middle stance pursued after for social stability. But it may still fail to match the politicians’ instigation on sensitive issues. The middle class in Singapore is strong enough, few developing countries have such a strong middle class. But the society there is composed of ethnic Chinese accounting for 70 % of the population and other ethnic groups accounting for the remaining 30%. Can the parliament politics be relied on for maintaining harmony? It is the law that keeps the social harmony in Singapore. The law prohibits Parliament Members from instigating national conflicts. In developing countries like Yugoslavia, the middle class could well be considered strong enough, but it was still unable to resist the ethnic group instigation from the politicians. A strong middle class was rather a kind of consensus instead of being a fact. In most developing countries, there was neither such a fact nor such a consensus. Parliamentary political system would create neither a factual middle class nor a middle class consensus. Politicians would stop at nothing to excavate all latent social creaks to get more votes. Hence, in the newly emerging democratic countries, the free contest for government power led to the pan politicization of social issues, leaving much chance for politicians to instigate and sharpen social contractions. Democracy unrestrained by the rule of law was the most important reason accountable for social disorder.

As both of the theoretical legislation principles to avoid bad laws are seriously defective, the realistic world tends to adopt the mixed system of people’s sovereignty and constitutional sovereignty.

Like all Western democracies, US democracy is based on the rule of law. It is conditional on the time-honored legalistic tradition in the West, known as the “free and democratic system.” The rule of law is already there, democracy can smoothly settle the balance of interests among large interest groups in the United States. As the rule of law is already there, democracy can smoothly settle the balance of the class interests in Western Europe. Democracy unrestrained by the rule of law is non-free democracy, and pure democracy, i.e., power politics simple and pure. Under the free and democratic system, the rule of law and freedom is a set of cause-effect relationship. “Freedom” means that the (government) is under legal regulation. No matter what the majority voter’s support, no matter what tendency the high officials have, nobody can deprive the individuals of any personal rights bestowed on them by the basic law. Therefore freedom and democracy is also known as “constitutional democracy”

The difference between different mixed systems lies in the different proportions of the mixture. A system extremely tending towards people’s sovereignty is said to be “purely democratic.” A system extremely tending towards constitutional sovereignty is said to be “stagnant.” This author is in favor of a “consultative rule of law” that leans towards the constitutional sovereignty while giving due consideration to people’s sovereignty. (9)

Different social structures and different basic contradictions require different proportions of system mixture. The main problem in China is a lack of basic system to compel the government to be law-abiding. “Just make a reshuffle and see what will happen” won’t solve the practical problem in China. Under China’s social structure, establishing a parliamentary system without the rule of law would lead to the rampage of shameless politicians and social disturbances. At the fall of the Qing Dynasty, assembly and association developed like mad and political parties grew in great profusion. The consequence was the 20-year-old turmoil of a tangled warfare among warlords, the overall Japanese invasion, as well as the bloody civil wars between millions of soldiers, ending up in the “people’s democratic dictatorship.” In front of us is Russia, which resulted from the disintegration of the former Soviet Union and experienced first the era of Yeltsin characterized by people’s suffering and then the Putin era characterized by all power concentrated on the “elected king.” The experience of hoping for a recycling of democracy and autocracy has made us Chinese somewhat cleverer and somewhat more practical.

Ⅴ. Consultative Legal System

After much theoretical formulation, we have to come to the solution of practical issues. But when we attempt to seek pragmatic solutions, we will have to confront two basic questions. The first is what we should do, that is, what kind of mixed system should be established that is capable of solving China’s problems? The second is how to proceed, how can we switch from the “rule by men” and “rule by party” into the “rule by law’?

1. I once formulated the concept of a totally new type of political system founded on five pillars, with the political systems in Hong Kong and Singapore as a model. The five pillars are: (1) a system of neutral civil servants; (2) an autonomous judicial system; (3) an independent anti-corruption organization; (4) a broad social consultation system centered around the People’s Congress; (5) four freedoms of speech, press, assembly and association. Though the four freedoms are not part of the government system, they are the fundamental principles that all the government organizations should safeguard, therefore they can constitute part of the political system.

The consultative legal system obviously emphasizes on the execution of law and on the check-and-balance. The system centers around the system of neutral civil servants who are responsible for the execution of law. The independent anti-corruption organization is used for direct combat against corruption, with emphasis on the decisive role of the judiciary independence. The other four major pillars are also called upon to provide check-and-balance on the civil servants. The consultative legal system incorporates elements of democracy with its strong consultative nature, hence it is not purely a system of rule by law. Democracy plays a subsidiary role within this system, designed to respond to the changing situations of society, enabling the enforcer of law to hear the voices from people of all walks of life and preventing the rule by law from deteriorating into “rule by the judge” or the “rule by the enforcer of law”. The democratic elements include: (1) the four fundamental freedoms as mentioned above; (2) the possession by popularly-elected people’s representatives of the authority to ratify legislation, the right to administrative investigation and the right to proposing suggestions; (3) the possession by the consultative committees at various social levels of the right to administrative investigation and the right to proposing suggestions.

This consultative system differs importantly from the political systems in most developing countries. The rule by law prescribed in this system prevents it from being a form dictatorship; the fact that its main body consists of the system of rule by law prevents it from being a purely democratic system. Such a system also remains distinct from the Western model of “free democratic system” which is dominated by democracy and supported by the rule of law. By contrast, the consultative judicial system is dominated by the legal system and supported by democracy. The consultative judicial system is unique because the problems inherent in China are totally special and because the social conditions created by China’s particular historical circumstances are special. The fundamental objective of this consultative legal system is to solve the problem of corruption, to force the government to abide by law, to establish administrative transparency of government practices, and to strengthen the general public’s confidence in a just order.

This system is an improvement and an innovation on the existing political civilization. On one hand, China’s ancient tradition of the system of civil servants is re-established, on the other hand, the moral doctrine and the centralization of monarch inherent in this ancient tradition are undermined. On one hand, the rule by law in Western civilization is incorporated into the system, one the other hand, the representative democracy created by the Western social revolutions is weakened, and the rule by congress prevalent nowadays is rejected. In today’s new world of “the Spring and Autumn and the Warring States”, the consultative rule of law strongly demands change and innovation in the legal system and to incorporate “Legalist” ideas of strengthening the nation. All great civilizations are built around a distinctive and outstanding political civilization and any mechanical imitation of foreign models would inevitably result in failure. To introduce changes and innovations into the existing system is the hope for the rejuvenation of the Chinese civilization, and China’s realistic situation and its socio-political conditions require institutional transformation and innovation.

2. How can the consultative legal system be established in China? All systems are established for the purpose of governing people, but at the same time all systems are created by man and the creation of a new system is a heroic cause. If we suppose that China’s top leadership is willing and determined to undertake institutional reform directed toward the rule by law and centered around the system of civil servants, it is not difficult to imagine the subsequent measures. However, the generation of such an intention and determination is by no means inevitable. The domestic pressure significantly increases as a result of the accumulation of social problems and external pressure grows as a result of the rapidly changing international pattern. Under such circumstances, different leaders would produce totally different judgments and decisions. Therefore, strategic vision and the boldness become two fundamental factors affecting the intention and the decisions of the top leadership. There are three possible choices for undertaking political reform: (1) to take non-action or to introduce only minor changes which is the easiest way and also the most common practice for ordinary leaders; (2) reform which is directed toward the rule by law and centered around the system of civil servants, which is the most difficult and hazardous but the most active; (3) reform which is directed toward democracy and centered around “popular sovereignty” which cannot very well be the result of “making a choice” but rather the result due to the failure of the first choice. The system born out the third choice cannot be labeled as “new”, since many third-world countries have already adopted it. Chinese leaders would not be foolish enough to imitate Gobachove, unless a “president” would emerge from within the party, like what has happened in Taiwan, who regards the destruction of his party as his primary responsibility.

If Chinese leaders are determined to carry out the “rule by law”, to establish a system in which to enforce the “rule by law”, to allow the authority of law prevail over the authority of the government, the following six steps must be taken sooner or later.

(1) The focus of the work of the ruling party should be shifted from “economic construction” to the construction of the “rule by law”. Will this shift produce harmful effect on economic development? Not at all, such a shift was only lead to the essential and the general improvement of the environment of the domestic investment. In the presence of law, all businessmen, industrialists, and the general public are equal, allowing no privilege to any party or government officials. Any government official who acts as the behind-the-scenes backer for illegal employers or practices nepotism would be severely punished once his malpractice is reported. This will enable enterprises, businessmen and the general public to realize a sense of order, a sense of fairness and justice when everybody is regarded as equal in the of law and the government officials will also come to understand the dignity of law.

2) It is important to take concrete measures to carry out the principle of “Party-government separation” as formulated by the 3rd Plenary Session of the 11th National People’s Congress and to gradually abolish the existing parallel political systems. The party treasury and the national treasury would no longer be linked and, likewise, the positions and the salaries of the professional party workers would no longer be connected with their government positions and salaries. The party implements its major policies and guidelines through its members within the government, especially through those government administrators. This requires, first of all, the streamlining the party organizations at provincial, municipal and county levels and transferring large number of party personnel to administrative departments, especially to those law-enforcing departments. Secondly, it is necessary for various party committees to shift their focus of their work to two areas: 1. educating the party members to abide by disciplines and laws and publicizing among the general public the policies of the ruling party; 2. endeavoring to win the elections of people’s representative at various levels and to obtain the power to appoint government administrators.

(3) Actions should be taken to reform the government according to the principle of the system of civil servants. In this way, the promotion, transfer, award, recruitment, and retirement of civil servants would be conducted strictly according to rigorous regulations of the system of civil servants by the personnel department independent of the chief administrator. The chief administrator is only responsible for executive affairs and must not interfere in personnel affairs. Government administrators formulate main executive objectives and directions and must not intervene into the daily affairs or even the personnel affairs of the system of the civil servants. The Chinese communities in Hong Kong and Singapore have accumulated abundant experiences in governing the civil servants and many specific provisions have created the cleanest system of civil servants in the world. Many people have the mistaken notion that the cleanness of the civil servants in Singapore and Hong Kong is the result of high salary. As a matter of fact, high salary cannot guarantee the cleanness of the government because the salary, however high it is, can never be comparable to bribes. The number of the civil servants determines that their average salary can only reach the middle or above-middle level in the entire society. It is the possibility of severe punishment that leads to the cleanness of government, and the high salary of the civil servants brings about superior service.

4) It is necessary to create the separation between the judiciary system and the anti-corruption system. If the head of the county court is nominated by the county government, the nomination is passed by the county’s party committee and ratified by the people’s congress of the county, it is certain that the county court will conspire with the local government officials and the authority of the local government will incur no checks and balances. The separation between the party and the government is the central measure in carrying out the rule by law and the independence of the judiciary system is the key to the success of the rule by law. In order to establish a clean government, we must also ensure the independence of the anti-corruption system. There are many anti-corruption systems in the world and the most effective anti-corruption organizations are in Hong Kong and Singapore. There is no other reason except the fact that in Hong Kong and in Singapore only the highest chief administrators are above the special right of investigation of the anti-corruption organizations and the highest chief administrators are not allowed to interfere in the daily activities of the anti-corruption organizations. The authority of the anti-corruption organizations in Hong Kong and Singapore also lies in the special right to enforce law. Only the anti-corruption organizations are allowed not to act on the usual principle of non-criminal inference. Instead, they act upon the principle of criminal inference. Any government official who fails to produce an account of the legitimate source of his or her property is automatically deemed guilty and the responsibility to produce convincing evidence rests with the accused instead of with the prosecutor. Since government officials are entrusted with public power which enables them to influence the life of the ordinary people, they do not enjoy privacy and the right to non-criminal inference.

(5) Independent law-enforcing organizations must guarantee the right of the people’s representative congress to ratify legislation, the right to administrative investigation and the right to propose suggestions. All the civil servants and government administrators should be subjected to regular inquiries and hearings by the people’s representatives and the demands raised by the people’s representatives to consult relevant files must be satisfied. The right to administrative investigation is especially important and its significance lies in the creation of administrative transparency and in the supervision by the people and the public opinion. All politicians involved in illegal activities will be severely punished. The congress in Taiwan looks rather active, but none of the congressmen has the right to administrative investigation, including the right to consult administrative files. At the same time, we should try to establish a large number of “consultative committees” at various levels and in various departments. Those committees shall consist of retired civil servants, experts and people representing different interests who do not receive any payment for their voluntary work but enjoy the right to administrative investigation and to making suggestions. As long as there is administrative transparency, the general public would have confidence in a law-abiding government.

Finally, we come to the four freedoms of speech, publication, assembly and association. As long as we set up a framework of a government prepared for the rule by law, the four freedoms will not be used by interest groups as instruments to fight for political power and they will not constitute threats to social order. Instead, those four major freedoms will become tools used by the general public to supervise and to evaluate the performance of the government and become the primary channel for expressing all kinds of public opinion. It should be pointed out that, without judicial independence, there will be none of the four freedoms.

Ⅵ. Conclusion

From Eastern Europe to Latin America, from Africa to Asia, the democratic system in most of the Third World countries has been mired in crisis. The deteriorating corruption, social split and economic failure are seriously undermining people’s faith in the government. East Asia is no exception. In Mongolia, Japan, South Korea, Taiwan, Malaysia, Thailand, Philippines, and Indonesia, there are obvious signs of crises brought about by democracy.

The rule by law is a system which enables the authority of law to remain above the authority of government leaders and forces government officials to be law-abiding. The authority of law can be established only on the basis of the separation of powers and on the system of checks and balances. If institutionally one government power is used to check another government power, then the authority of law will remain above government officials.

The key to the separation of powers is the autonomy of the judicial departments and the independence of the law-enforcing system of the civil servants. Members of the ruling class will have to act according to law because all disputes will be referred to the arbitration of the neutral judicial departments and any violation of law will be severely penalized.

If law is randomly changed according to the will of those in power, the independence of the judicial and law-enforcing departments will be totally meaningless. Therefore, the rule by law also means the absolute respect for the basic law. Legislation must be undertaken according to the Constitution and all the administrative activities carried out in strong accordance with law.

It is necessary to introduce changes into the current political system because the rule by law would be absolutely impossible without the separation between the party and the government and the independence of the judicial system. Some people might ask: without democratization, how can the party and the government be separated and how can the judicial system become independent? We should realize that even when there is democratization, the separation between the party and the government, and the independence of the judicial system are still impossible. At best, the ruling party is replaced by another ruling party, together with the change of the head of the government. The practice of “the newly-emerged democratic countries” in China’s peripheral regions has fully testified to this general rule. Before the advent of democratization, there had already existed the legalist tradition on the European continent for over two thousand years, the judicial independence in England, and the system of judicial examination of the United States Supreme Court. The creation of a new system is a heroic deed and the reason why a person can become a hero is his ability to create a new system, making the impossible into a reality. The rule by people, the rule by law, and even the rule by the Communist Party, each of these are the creation of the people under the leadership of heroes.

Democracy is neither mysterious nor omnipotent. Democracy itself does not lead to the rule by law and the rule by law does not lead to democracy. They are different and even contradictory. The fact that they are contradictory makes it possible for them to neutralize their inherent deficiencies. The “system of free democracy” is not a pure democratic system but a combined system. Of course, democracy is easy; it can be carried out even in the most backward countries in the world whether they are big or small. It is not difficult to distribute polling boxes or to supervise the casting of votes. The rule by law is difficult. Except for the two small Chinese communities, the rule by law has not been successfully implemented in any developing countries because the establishment of autonomous courts and an autonomous system of civil servants is extremely difficult. It is not simply a matter of distributing some polling boxes.

Democracy is attractive because all the words related to democracy are full of charm and democracy has become a “universal value” like the painted dragon carved on the house of Master Ye. I once had the honor of reading an essay published in Hong Kong by one of China’s senior advocates of democracy which condemns Mao Tsedong as a peasant who is inherently disposed toward autocracy because of his peasant ideas and character. However, it must be realized that true democracy in China naturally means rule by peasants, by the leader of the peasants who can manipulate the peasants. Why won’t the peasants welcome a leader who can enable them “to step onto and roll on the beds of the young ladies and mistresses of the local tyrants and evil gentry. Master Ye explains his fear of “the arrival of dragon” in this way: “Only the dragon painted on the roof beams is the true dragon and any dragon coming into my house must be a fake.”(20)

The pursuit of freedom by the democrats is praiseworthy but the democratic principle does not supply democracy. The liberties contained in the system of “free democracy” are the outcome of the restraint imposed on the democratic principle by the rule of law. The lack of this restraint will cause democracy to deteriorate into autocracy. The enemy of autocracy is not democracy, but the rule by law.