Recently, the issue of the extension of property rights on Chinese real estate has come to light, and many people have only then discovered that the so-called “automatic renewal” in the Property Law as they had understood it was merely a misunderstanding; “automatic,” it turns out, does not include the meaning of “free,” and moreover there is no fixed amount for how much one must pay to renew. Wenzhou said one would have to pay 30 percent of the housing price to renew, and then issued a clarification saying the matter was still under study. But the problem is: if the rules were already established long ago, why must the rules themselves be studied only when it comes time to apply them? What, then, was being done when the rules were being established?
Obviously, according to common sense, “automatic renewal” should include “free renewal.” If it merely said “free,” then perhaps you would still need to go through some formalities; if it is automatic, then in principle nothing should need to be done and it should renew by itself. Unless there is also a separate “automatic deduction” system, so that it can work like buying a mobile data plan—“automatic deduction renewal.” If one must manually pay money in order to renew, then how can one still speak of “automatic”?
But facts have shown that this obvious common-sense interpretation is invalid, because the right to interpret legal concepts is not in our hands. It is like how we still have the legally guaranteed “Four Freedoms,” yet as for what counts as “freedom,” you also have to obey the arrangements of the leadership; only after passing through layer upon layer of approval can you “freely” associate and so on.
This conflict between legal language and everyday language is itself not objectionable. In fact, legal language ought to be more precise and rigorous than everyday language, so one often cannot take the naive understanding of ordinary people as the standard for interpreting legal provisions. But the question is: whose interpretation counts? And when, and in what manner, should that person offer the interpretation?
In the West there is separation of powers, and ultimate interpretive authority belongs to the supreme court, whereas in China, at least nominally, it all belongs to the National People’s Congress. Exactly who is responsible for this is not something I will comment on here; I only want to say one thing: the people who formulate and interpret the law, and the people to whom these laws grant ruling power, ought to be two different groups. The referee should not step onto the field to play, or else the situation becomes one where “I am the law.”
More crucially, when is interpretation needed? Broadly speaking, it is needed at all times. At the stage of legislation, one ought to provide explanations for concepts that are prone to ambiguity, and as far as possible avoid using such concepts; and in the process of law enforcement, the application of the law itself is also interpretation. Whether a particular case falls under the relevant concept is itself an interpretation of that concept.
In the practice in Wenzhou of charging 30 percent of the housing price for the extension of expired property rights, we see that, first, at the time of legislation, the meaning of the key concepts was not made clear; second, when the law was being enforced, the enforcers themselves provided the interpretation, and the people collecting the money themselves decided how much should be collected.
The recent internet celebrity Papi Jiang, who was ordered to make corrections because of “profane language,” also involves a similar issue. We need not discuss whether censorship itself is reasonable; the key point is: if one is to implement a censorship system, what are the standards for censorship? For example, prohibiting vulgar language, prohibiting reactionary remarks—these prohibitions themselves may not be unreasonable, yet the question is what counts as “vulgar” and what counts as “reactionary.” These concepts are all rather vague. What should be done in such a case? A common Western approach is: for problems that are hard to define clearly from the concept itself, one establishes clear definers to take responsibility—for instance, parent committees, ethics committees, and so on—using clarity in procedure and personnel to make up for the lack of clarity in the meaning of the words themselves, thereby still restraining the abuse of power.
A good legal system, on the one hand, strives for precision in the selection of concepts themselves; on the other hand, it strives for precision in the personnel and institutions responsible for interpretation and judgment. This greatly compresses the space for the abuse of power. It is easy to imagine that the more ambiguous points a legal system has, the greater the arbitrariness of interpretation, and the easier the abuse of power becomes.
What is called “constitutionalism” is nothing more than respect for legal order. It is not that merely setting up a constitution means constitutionalism; rather, it means that between text and text, between interpretation and interpretation, there is some way to determine an order of authority, instead of treating legal texts as tools to be kneaded and reshaped at will, so long as one has enough power to interpret them however one likes.
Perhaps you think “constitutionalism” is some sort of Western cultural invasion, and that we must uphold cultural independence and so on. In fact, on this point we really ought to listen carefully to Confucius’s teachings.
The story goes that Zilu asked Confucius: if you were invited to govern the state of Wei, what would be the first thing you would do? Confucius said, “It would surely be to rectify names” (“必也正名乎”), and “If names are not correct, speech will not be in order; if speech is not in order, affairs will not be accomplished” (“名不正则言不顺，言不顺则事不行”).
When Confucius spoke of “the ruler should be a ruler, the minister a minister, the father a father, the son a son,” he was also expressing the idea of rectifying names. The ruler should look like a ruler, the minister should look like a minister—so what should the ruler be like? This is precisely a matter of correcting the ruler’s status as ruler. As for the concrete views about how rulers and ministers ought to relate to one another, the specific doctrines of Confucianism have their historical limitations, but the proposition “It would surely be to rectify names” remains valid. In fact, “the ruler should be a ruler, the minister a minister” corresponds to what Western philosophy calls “being what it is.” Chinese simply does not have a copula equivalent to “is,” so it cannot discuss this problem of “being what it is” in the manner of Greek philosophy, and therefore it is also impossible to have “ontology” or “metaphysics.” But we may as well understand “rectifying names” as a Chinese-style “metaphysics”: it is not “metaphysics” in the sense of “meta-physics,” but it is “meta-politics.”
So how does one “rectify names”? The answer Confucius himself actually gave is “history.” Confucius himself “transmitted rather than created”; the Analects is a collection of sayings compiled by his disciples, but what work was Confucius himself doing? It was the editing of texts. Confucius organized the “Six Classics” of the Odes, the Documents, the Rites, the Music, the Changes, and the Spring and Autumn Annals (with the Music lost, it became the “Five Classics”). None of these classics were composed by Confucius; they were works of editorial revision and textual collation.
As a record of a teacher’s words and deeds, the Analects naturally embodies the principle of teaching according to each student’s aptitude; interpretations of the same concept often differ from person to person. But Confucius of course also pursued certainty, or rather, the work he was actually devoted to was establishing the certainty that makes politics possible.
Western science from the very beginning took the path of “natural philosophy,” ultimately producing the tradition of the natural sciences, whereas Chinese thought took history as its distinctive feature, producing the twenty-four dynastic histories and the immensely rich tradition of local gazetteers.
But the problem of “politics,” and the ways in which people relate to and organize one another, is something every civilization must face. Westerners extended their political thought from concepts such as the theory of ideas and natural law, whereas Chinese politics revolves around historiographers and genealogies.
What I want to say is that, in fact, China’s intellectual tradition has unique strengths and a certain superiority over the Western tradition in solving the problem of “rectifying names.” Western constitutionalism originates in “natural law,” and some of its core concepts appeal to what is “given by nature.” Yet after God “died,” especially after various kinds of epistemological relativism arose, the concept of “the given by nature” itself became the most ambiguous thing of all. If constitutionalism itself also begins to be improper in name and unsound in speech at its root, then it is no wonder that in many cases democracy, freedom, and equality have all become nothing more than tools of hegemony.
And if, on the one hand, we must follow the trend of modern philosophy and abandon the foundationalist metaphysics that traditionally set the roots of concepts in a hollow world of Ideas, while on the other hand we still want to protect political certainty, then where should we seek foundations? From Marx to Kuhn, a clear path has already been indicated: move toward history. There is no eternal and unchanging certainty that stands outside history; rather, history itself provides certainty. Human beings cannot issue absolute laws transcending history in the name of God, but this does not mean that people may speak nonsense at will. On the contrary, it requires that people not abuse concepts outside their historical context. To investigate the history of concepts is precisely to seek a new way of securing certainty for concepts. On this road, the ancient Chinese had already gone ahead.
Ironically, some left-wing scholars today who claim to admire Chinese tradition and resist Western cultural invasion are single-mindedly eager to restore the ancient Chinese Three Bonds and Five Constant Virtues, yet they do not care about “rectifying names,” nor do they pay attention to the significance of the historiographers’ system. Historiographers were required to write with a straight brush and to render final judgment when the coffin was closed—using appropriate concepts to measure a person’s conduct; this is the power and mission of the historiographer. What held the power over concepts and their interpretation was the historiographical system independent of imperial authority. Now those people have introduced what Strauss called “esoteric writing,” and even interpret the subtle and profound meanings of the Spring and Autumn Annals as “esoteric writing,” turning the meaning of writing into a haze of smoke and fog. As for the independence of the historiographer, or rather the independence of writing, it has been cast aside like an old shoe.
It is not impossible to build a political system with Chinese characteristics that departs from the Western framework of “constitutionalism.” But the first thing that must be confronted is the need to attach importance to “rectifying names,” to respect the independence of writing and of writers, to respect history, to respect nouns, rather than allowing anyone who holds power to use any concept however they like.
I had originally only wanted to write a few hundred characters to poke fun at current affairs, but by the time I had written it out, it had become quite a lot. It seems my blog’s poor update rate is mainly a matter of execution. Many times I think I want to say something, but I feel I do not have much to say, so I do not write; in fact, once I actually start writing, I can often produce much more. My dissertation becoming increasingly difficult to bring forth is also a result of this problem: I read, I think, but I do not put pen to paper, so things cannot accumulate. I still need to work hard to recover the habit of writing~
Translated from the Chinese original with AI assistance. The original text is authoritative.
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