Which Confucian Constitutionalism?

The Struggle for A Constitutional Model for East Asian Societies of Confucian Traditions

The New Digest is delighted to feature this guest essay by Dr Elena Ziliotti. Dr Ziliotti is an Assistant Professor of Ethics and Political Philosophy at the Delft University of Technology. She specialises in Comparative political theory, focusing on contemporary Confucian and Western political theory. She completed her PhD in political philosophy at King’s College London and the National University of Singapore Joint PhD program in 2018. After her PhD, Elena worked as an International Postdoctoral Fellow at the School of Philosophy at Wuhan University and was a recipient of the 2019 China International Postdoctoral Exchange Fellowship. Her first book, Meritocratic Democracy: A Cross-Cultural Political Theory (Oxford University Press 2024), combines insights from two parallel debates in contemporary Western democratic theory and Confucian political theory to open the path for a global debate on democracy.

In the past decade, Anglophone Confucian political theory has been dominated by heated debates between two groups of scholars: the so-called ‘Confucian democrats’ and the ‘Confucian meritocrats’. These two groups share a similar aim: to develop normative political models that could offer guidance to the future of East Asian societies as well as novel perspectives in international academic debates. They also share fundamental beliefs about Confucianism: that Confucian moral and political ideas still have an important role to play in contemporary philosophical theorising. So, as self-proclaimed ‘Confucian’ scholars, these two groups are profoundly committed to the progress of the Confucian intellectual tradition.  

However, sharp intellectual differences separate the Confucian democrats from the Confucian meritocrats. Besides exegetic disagreements on how historical Confucian texts should be interpreted, they also hold very different views on the future of Confucianism as a political doctrine. For the Confucian democrats, Confucianism should embrace democratic principles. However, as the ancient Confucian masters never alluded to democratic principles, the Confucian democrats have so far worked hard on democratic reconstructions of Confucian ideas. Developing multiple and sophisticated philosophical works, they have presented intriguing political models for contemporary societies that could arguably be considered both Confucian and democratic.  

On the other hand, Confucian meritocrats deem full democracy as problematic. They tend to lean towards more conservative readings of the Confucian classics. Against Confucian democrats’ reconstructions of Confucian justification of full democracy, they often point to passages of the ancient texts expressing scepticism towards people’s ability to contribute to political affairs. Their contemporary normative models downplay the value of the democratic principle of ‘one person, one vote’, and defend the principle of political meritocracy—the idea that political leaders should be selected based on their virtue and expertise. The Confucian meritocrats assert that this new ideal of political meritocracy is consistent with the ancient Confucian belief that virtuous people should be elevated to government positions.   

In my recent book, Meritocratic Democracy: A Cross-Cultural Political Theory (Oxford University Press 2024), I show how the debates between Confucian democrats and meritocrats could be an infinite source of inspiration for contemporary Western democratic theory. I also invite my colleagues working in this field to study the work of Confucian political theorists closely to counter the parochialism and Westercentrism that affect the discipline of democratic theory.  Furthermore, it can also be an asset for developing better theories of democracy. For instance, while most Western democracies have witnessed the so-called personalisation of politics, with political leaders gaining unprecedented power and influence, most debates in Western democratic theories are carrying on in complete denial of this political agency. On the other hand, Confucian political philosophy has generated many ideas about the functions of political leaders in complex societies, their key virtues, and the ideal relationship political leaders should have with other political agents. Confucian models of democracy and political meritocracy can be a major source of inspiration to understand how political leaders work for democracy and not against it.   

In the past decade, democracy has been the main subject of debate between Confucian democrats and Confucian meritocrats. However, Sungmoon Kim’s recently published book, Confucian Constitutionalism: Dignity, Rights, and Democracy (Oxford University Press 2023), promises to shift the focus of the debate to new territories. The book offers a prescriptive constitutional model for contemporary East Asian societies of Confucian heritage that is genuinely democratic. This ambitious project aims to situate itself in the scholarly debate on constitutional theory as an alternative to democratic constitutional theories in the Western tradition, as well as alternative interpretations of Confucian constitutionalism.  

For Kim, Confucian democratic constitutionalism is a novel model of constitutional democracy. At the value level, it upholds a different concept of equal human dignity rooted in the Mencian and Xunzian belief in the equal moral potential of individuals. It supports the institutions most Western constitutional theorists cherish and shares relevant features with liberal and political forms of Western democratic constitutionalism that characterised contemporary East Asian democratic societies. However, it places constitutional institutions in a cooperative relationship based on the Confucian idea of ‘deep harmony’ and promotes deliberative inter-institutional dialogue between the judiciary, the legislative, and the people. 

According to Kim, Confucian democratic constitutionalism outweighs Confucian meritocratic constitutionalism, its main Confucian counterpart. Both these constitutional theories adhere to the fundamental Confucian principle that the people's well-being is the government's ultimate objective. However, unlike Confucian meritocratic constitutionalism, Confucian democratic constitutionalism rejects political inequality and Confucian meritocrats’ instrumental approach to governance by defending citizens’ equal right to political participation and equal right to the constitutional protection of civil and political rights. While Confucian meritocratic constitutionalism views government as the leading actor in achieving people’s well-being, Confucian democratic constitutionalism contends that, under the value of pluralism, people’s well-being can be better protected if citizens have the right to pursue their own conception of the good and they have the ultimate say on what their well-being consists of. Furthermore, if Confucian meritocratic constitutionalism ignores constitutional questions, such as the justification for an independent judiciary and a separation of powers, Confucian democratic constitutionalism grounds the dignity of the judiciary on the citizens’ equal right to the constitutional protection of civil and political rights and the dignity of the legislature on the citizens’ equal right to political participation. 

I am sympathetic to Confucian democratic constitutionalism and believe it is uniquely equipped to provide the East Asian people with constitutional means to reconceptualise rights and democratic practices. However, Confucian meritocratic constitutionalism can potentially be a more coherent alternative to Confucian democratic constitutionalism than Kim gives it credit for. So,  in a Critical Exchange on Kim’s monograph, which recently appeared in the journal Contemporary Political Theory, I take issue with the latest part of Kim’s objection to Confucian meritocratic constitutionalism.  

The gist of my argument is that Confucian meritocratic constitutionalism can be considered a Confucian version of Common good constitutionalism. This is a viable proposition if we consider common good constitutionalism not as a specific constitutional theory, as Adrian Vermeule first formulated it in his influential 2022 book Common Good Constitutionalism: Recovering the Classical Legal Tradition, but rather as a constitutional model that includes more than one variety. From this perspective, there can be multiple versions of common good constitutionalism. All these theories are grounded on an instrumental approach to institutional design; they agree that constitutionalism is for central goods. They also share a perfectionist approach, such that the common good is the ultimate telos, which is the basis on which principles governing society should aim for and justify their authority. In other words, common good constitutionalism can be considered an umbrella term for a family of constitutional theories that share fundamental traits. Yet, if all versions of common good constitutionalism agree that promoting a substantive version of the good justifies rulers, they would hold different conceptions of the common good and what is required in practice to ensure that central goods are attained. It is in virtue of these differences that they would represent different tokens of common good constitutionalism. Seeing it in this way, Confucian meritocratic constitutionalism is an instance of common good constitutionalism because it shares all the features I have described above. And because of this, it is more coherent than what its critics have objected to.  

However, Confucian meritocratic constitutionalism differs from Vermeule’s idea of common good constitutionalism because it promotes a conception of the common good that is ultimately Confucian. This is the idea that the government’s ultimate objective is people’s moral cultivation, and political authority is justified based on its ability to ensure citizens' moral cultivation. This reveals another similarity between Confucian meritocratic constitutionalism and Vermeule’s theory: they both based their conception of the common good for present societies on intellectual traditions of the past. Confucian meritocrats based their understanding of the good on Classical Confucian tradition, while Vermeule bases his theory of common goods on Western classical legal traditions, which revolve around achieving social goals, such as peace and justice. Achieving the Confucian common good requires the government to provide for the material and moral well-being of the people, as very few individuals would be able to develop the character traits that Confucians deem desirable without decent socio-economic conditions. The emphasis on material well-being may bring the Confucian meritocrats to stress the realisation of similar political objectives to Vermeule’s, such as health, safety, and economic security. However, the weight of moral cultivation and their relational understanding of the person would lead them to stress the importance of other values, such as education and family relationships.  

Rethinking Confucian meritocratic constitutionalism as a form of common good constitutionalism shows Constitutional theorists that, as a conceptual category, the ideal of common good constitutionalism can cover more normative space than its creators initially thought. It also indicates to Confucian theorists that the battle between the Confucian democrats and the Confucian meritocrats may be more pertinacious than what Kim suspects, and the debate between these two groups, which has dominated Anglophone Confucian political theory for over a decade, is far from over. 

My point is not to defend Confucian meritocratic constitutionalism. As I will explain later, I believe that Kim’s democratic constitutional proposal is grounded on much more solid premises, and it is much more suitable for contemporary East Asian societies. So, in the battle between the Confucian democrats and the Confucian meritocrats, I side with the Confucian democrats. However, my point is that if Confucian meritocratic constitutionalism was articulated through the normative framework of Common good constitutionalism, it would be much more coherent than it is now.  

Now, with all things considered, why do I still consider Kim’s Confucian democratic constitutionalism superior to Confucian meritocratic constitutionalism? Like Kim, I believe Confucian meritocratic constitutionalism suffers from a critical flaw. Confucian meritocratic constitutionalism should explain how it can remain faithful to its Confucian understanding of the common good while respecting pluralism. I doubt that this balance is achievable. As of today, very few East Asians self-identify as Confucian. Furthermore, contemporary East Asian societies are pluralistic, with citizens endorsing and practising different and sometimes multiple ethical and religious doctrines simultaneously. So, any plausible Confucian theory for contemporary East Asia should accept that the notion of the common good is contested in present-day East Asian societies of the Confucian heritage. 

The problem of pluralism is not new to debates in Western constitutional theory, and it has already impinged on Common good constitutionalism. However, in the East Asian context, this problem assumes a totally new dimension. This is because, in most East Asian democracies, liberal political and legal institutions were imposed by Western countries or local elites with very little input from the citizens. As Kim points out: “[V]irtually all civil and political rights have been introduced from the West, not only by Western intellectuals, missionaries, and politicians but also by the progressive local elites” (p. 197). So, if we consider the recent history of Westernization and colonisation of this region, the imposition of a Confucian conception of a common good would have the opposite effect than the one wished for by its supporters. Instead of revealing the potential for a constitutional theory that is (finally) for East Asians, it would represent nothing less than the perpetuation of historical injustice over East Asians.  

Considering all of these factors, Kim’s suggestion for a more bottom-up democratic process in which the citizens of East Asian countries are co-creators in the conceptualisation of their own rights and political institutions seems to be a more suitable way to break with the past and ensure East Asian people’s constitutional self-government. In the context of value pluralism, this appears to be the only process that could break the cycle of historical injustices and empower East Asian societies to truly craft their own conceptions of the common good.