Regional Autonomy, Cultural Diversity and Differentiated Territorial Government

The Case of Tibet – Chinese and Comparative Perspectives

Roberto Toniatti, Jens Woelk, Roberto Toniatti, Jens Woelk

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781135070014
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Regional Autonomy, Cultural Diversity and Differentiated Territorial Government assesses the current state of the international theory and practice of autonomy in order to pursue the possibility of regional self-government in Tibet. Initiated by a workshop and roundtable with political representatives from different autonomous regions, including His Holiness the 14th Dalai Lama, this book brings together a group of distinguished international scholars to offer a much-needed enquiry into solutions to the Tibetan quest for 'genuine' autonomy. Examining the Chinese framework of regional self-government, along with key international cases of autonomy in Europe, North America and Asia, the contributors to this volume offer a comprehensive context for the consideration of both Tibetan demands and Chinese worries. Their insights will be invaluable to academics, practitioners, diplomats, civil servants, government representatives, international organisations and NGOs interested in the theory and practice of autonomy, as well as those concerned with the future of Tibet.

Part I
Differentiated territorial government in China: Potential for Tibet?

Chapter 1
Foreign influence and constitutionalism in the PRC

A Western perspective on change and uncertainty in contemporary Chinese legal culture

John W. Head

1. Introductory observations

1.1 Aims and limitations

My principal aim in this chapter is to help achieve the objective of the volume by offering some general observations about Chinese constitutionalism.¹ I note that the objective of the volume is to verify whether the areas of self-government (enumerated in the ‘Memorandum on Genuine Autonomy for the Tibetan People’) correspond to internationally and domestically consolidated good practices, as well as to the Chinese constitutional and legal system. Particular attention will be paid to the circulation and foreign influence of legal models and best practices in the examined systems.

I wish to focus my attention on two aspects of this statement of objective: (1) ‘the Chinese constitutional and legal system’; and (2) ‘foreign influence (in the PRC) of legal models’. In particular, I hope to throw some light on the concept of ‘constitutionalism’ as it operates in the contemporary legal system of the PRC. In doing so, I shall emphasise that despite a very substantial amount of ‘foreign influence’, most recently from the West, the Chinese concept of ‘constitutionalism’ differs importantly from the Western concept – and particularly from the American concept with which I am most familiar.

In a companion chapter to this one – see Chapter 2 – I shall try to illustrate these general points by focusing more detailed attention on how the notion of ‘rule of law’, as enshrined in the PRC Constitution for about a decade, carries a different meaning in China from the meaning(s) that it carries in the West.

This pair of contributions might be regarded as an exercise in helping to ‘decode’ certain concepts as they are used in the modern Chinese legal system. My idea of ‘decoding’ is a process of understanding the differences between the usage of similar or identical terms in radically different cultural contexts. I believe that by appreciating differences in such fundamental legal concepts as ‘constitutionalism’ (examined in this Chapter 1) and ‘rule of law’ (examined in Chapter 2), we might better understand differences that might also exist – and that other participants in this Conference have explored – in the meanings of more specific concepts such as self-government, regionalism, decentralisation, autonomy and the like, especially as those concepts might apply in the case of Tibet.

As I shall try to explain in the following pages, I believe there are substantial differences – I might even say dangerous differences – between the ‘Western meanings’ and the ‘Chinese meanings’ of such terms as these. Those differences in meaning result from differences in culture and language, which themselves result primarily from differences in history between the West and China.² The reason I say they might be dangerous differences in meaning is that unless thoughtful and influential people from these two different cultures can understand and use these terms and concepts in a cross-culturally sensitive way, conflict is likely to result. Expressed differently, we are faced with a choice: cross-cultural understanding or cross-cultural conflict. We must strive for the first of these.

I should hasten to acknowledge that I approach this ‘decoding’ exercise from a predominantly Western perspective myself. That is, my own ‘cross-cultural’ identity is an assumed one – not obtained at birth, but acquired over time. Nor do I speak or write Chinese, a shortcoming that embarrasses me. On the other hand, I have lived and taught in China and have written several books and articles on Chinese law. In these and other ways I have tried to escape the shackles of my own cultural limitations. I hope these efforts have given me a perspective on China – admittedly a Western perspective, but one that includes a deep respect for China’s history and culture – which can help me serve as a ‘translator’ for some other Westerners who might wish to apply Western terms and concepts to China.

Having said all this, I should also emphasise that, in my view, any attempts at ‘translation’ – or ‘decoding’ – of terms and concepts as fundamental as ‘constitutionalism’, or the more specific terms ‘autonomy’, ‘self-government’ and ‘decentralisation’, can never be fully successful. As linguistic experts know better than I do, there will always be unbridgeable gaps between the meanings ascribed to similar or identical terms as used in dissimilar cultures and languages. Indeed, I suppose no two people living in the same culture have precisely the same understanding of certain fundamental terms – which partly explains why we are unable to offer satisfying definitions of some of the most fundamental words in any language. Expressed differently: ultimately, words are simply not strong enough to carry themselves.

1.2 Other definitional considerations

Having identified certain aims and limitations of this undertaking, let me explain a phrase I have used in the subtitle to this chapter. That subtitle is ‘A Western perspective on change and uncertainty in contemporary Chinese legal culture’. I have already referred above to my own ‘Western perspective’. But what do I mean by ‘change and uncertainty in Chinese legal culture’? In researching and writing this chapter, I have drawn from several articles written recently by Chinese legal experts focusing their attention on matters of constitutional law. These views appear in the very valuable journal titled Frontiers of Law in China, which since 2006 has provided English translations of important articles written (originally in Chinese) by Chinese law professors.

That journal helps provide ‘inside insights’ into Chinese legal culture.³ As I hope will become clear in the pages that follow, those insights indicate that there is significant change and uncertainty among Chinese legal academics on issues relating to constitutionalism.

2. China’s receptiveness to foreign influence

Throughout its history, China has been subject to – sometimes buffeted by – foreign influences of various sorts, including foreign legal influences. As I describe in subsection 2.1 below, traditional dynastic China was often extraordinarily successful in either rejecting those foreign influences or absorbing them by ‘translating’ them in such a way as to make them compatible with Chinese values. In the post-dynastic period (that is, starting after the Qing collapse in the early twentieth century), China has been much more receptive to Western influence – including specifically legal influence – but this receptiveness is evident mainly ‘on the surface’ and, as explained in subsection 2.2 below, has not reflected as substantial a displacement of fundamental Chinese values as first impressions might suggest.

2.1 Dynastic China’s rejection of challengers⁴

Chinese history reveals many episodes in which serious challenges from outside China were made to the political, ideological, economic or social status quo inside the country. Several such challenges came, for example, in the form of military attack from outside China, especially from the north and west. Other challenges came in the form of new religious and cultural influences, as when Daoism and Buddhism were introduced. Still other challenges appeared in the form of European ideas and economic pressures.

Let us explore a few such episodes in an effort to generalise about how China reacted to these various types of influence and challenge.⁵ As we shall see, that reaction typically featured a cluster of elements, including arrogance, ignorance, disinterest, rejection and ‘filtering’ of foreign influences. In my view, China can be regarded as having enjoyed its long and glorious past partly because of the unusual – I would even say peculiar – way in which it has responded to outside influences.

2.1.1 Military and political challenges

A persistent theme in Chinese history revolves around military challenges from the north and west. To me, the best visual image of this theme comes in the form of a metaphor offered by Nelson Ikon Wu. Although the image Wu offers focuses on cultural influences, the same applies to military attacks:

The invisible continuity of the Chinese cultural metamorphosis always seems to me like a giant with his two feet firmly planted in the soil somewhere between Ch’ang-an and Loyang in the northern heartland where farther to the east continental Asia meets the Pacific Ocean. Seen from above and judged by the position of his broad shoulders, the giant appears to be facing south-southeast, with his back toward the desert plateau whose western limits border Asia Minor and point to Europe. Rising high over the terrain as he grows, he (…) does not enlarge his form in a radial-symmetrical way; [instead,] he moves forward and reaches to the left and to the right. The Himalayan Mountains block him from uniting with India, and invaders sneak up to enter him from behind.⁶

Harry Gelber, in his book The Dragon and the Foreign Devils, documents the many attacks that invaders have waged on China over the centuries but that the Chinese ultimately repelled or reversed. An abbreviated list of these would include the following:⁷

• the Xiongnu tribal attacks, beginning in the second century BCE and launched from their nomadic ranges in the steppes to the north and northwest of China in an effort to gain access to food sources, especially in winter;
• the Tubo Turks’ attacks in the early fourth century CE, resulting in the capture of the city of Loyang and then of the emperor himself;
• the Tibetans’ incursions in both the north and the south later in the fourth century CE; and
• the takeover of the northern part of China in the twelfth century CE by the Jin people, forcing the Song dynastic leaders south (thereby starting the so-called ‘Southern Song’ Dynasty).

Of course, the two most massive external military and political attacks came from the Mongols and the Manchus. These attacks – one occurring in the thirteenth century CE and the other occurring in the seventeenth century CE – resulted in ‘alien’ control of China for well over half of the last six centuries of its dynastic history.⁸ And yet the Chinese culture, and even the core of Chinese political integrity, may be said to have prevailed throughout those centuries. Why? Because in the first of these cases the foreign control was short-lived and left little imprint, and in the second of these cases the invaders were in a sense ‘converted’ to Chinese.

As for the Mongols, their Yüan Dynasty faced strong resistance at every attempt to replace Chinese values and institutions with Mongol values and institutions,⁹ including attempts to introduce legal enactments inconsistent with the codes that had emerged from the Song, Tang and Sui dynasties that preceded the Yüan. For example, the Yüan legal enactment of 1291 (Treatise of Yüan New Regulations, or Chih-yüan-hsin-ko) represented a sharp departure from the pattern of those earlier codes¹⁰ and had to be replaced just forty years later by a legal enactment (the 1331 Treatise of Punishment and Law, or Hsing-fa chih) that bore a remarkably close resemblance, both in structure and (especially) in content, to the Tang Code.¹¹ And of course it should be borne in mind that the Yüan Dynasty, partly for the very reason that it did not adapt well and quickly to many Chinese values and institutions, lasted for less than a century.

As for the Manchus, the fact that they enjoyed a much longer and stronger dynasty (the Qing Dynasty) than did the Mongols (the Yüan Dynasty) surely resulted in large part from the Manchus’ careful and thorough adoption of Chinese values and institutions. Indeed, the Manchus seem to have recognised immediately the importance of adopting Chinese culture as their own. Their conscious effort to do so appears in many of their actions just before and during their attempts to supplant Ming rule.

For example, in taking control of Beijing in June 1644, the Manchu leader Dorgon ‘rode in the imperial palanquin into the palace grounds’ and declared that because the Qing had driven away the rebels responsible for the Ming emperor’s suicide, ‘[n]one in history have ever more properly succeeded to the Mandate [of Heaven]’.¹² He also asserted that ‘the empire is a single whole. There are no distinctions between Manchus and Hans’.¹³ Similarly, the first Manchu emperor to occupy the capital in Beijing not only ‘worked hard to master Chinese’, but also ‘continued [his uncle] Dorgon’s practice of heeding the advice of senior Chinese advisors’ and ‘pointedly adhered to the institutional structure of the Ming dynasty’.¹⁴ Indeed, he saw to it that the civil service examination system was quickly resumed in 1646.¹⁵

In short, as one historian has remarked: ‘It was the Chinese system, Chinese officials, and Chinese ideas that enabled the Manchus to conquer China.’¹⁶

2.1.2 Religious and intellectual challenges

The same notion of ‘conquest by absorption’ or ‘conquest by translation’ also a...