Jiang Shigong: Constitutional Authority in Ukraine's Transition (2004 Interview)
An English Translation
Note: The following is a translation of a Chinese-language interview with Peking University professor Jiang Shigong, from the Hong Kong magazine 21st Century. Jiang is often cited as a major proponent and translator of the works of German jurist and Nazi party member Carl Schmitt within China. This interview, printed on December 9 and December 15, 2004 following the “Orange Revolution” in Ukraine, serves as a common reference for those seeking to understand the reception of Schmitt’s ideas within China. Translation is mine, so please forgive any clunkiness or incorrect turns of phrase (and feel free to comment with any suggestions for alternate language).
Political Authority and the Paradox of Democracy
21st Century: What are your thoughts on the General Election crisis within Ukraine right now?
Jiang: Ukraine’s current political crisis, despite having its own particular characteristics, embodies some universal factors that are important to understand. To me, the Ukrainian crisis is that of a country in the transition to democracy. This crisis manifests itself differently in different countries going through that process.
In the democratization process, there exists an easy-to-overlook paradox, which I call the “The Political Authority Paradox of Democracy.”
On one hand, elections are held because the current regime has lost its authority, that is to say its political legitimacy; at this moment the election is how you restore political legitimacy once again. In other words, the goal of democratic elections lies in restoring political authority, which, lacking political authority, political order cannot be formed. This is the true meaning of the social contract theory, the process of renewing the social contract to create a new political order (a process which we refer to as an election).
But on the other hand, democratic elections are performed through a single vote, or maybe through votes organized by party. In this sense, the political ideology of “sovereignty of the people” is manifested via “sovereignty of the voters” or “sovereignty of the political parties.” If the outcome of the election is not in line with the will of some people or political parties within the process, they aren’t going to accept the results and the resulting leader is unable to establish political authority. This resulting factional debate fractures political authority. This is also why the Federalists were skeptical of political parties and elections. They preferred a Republic for America, not a Democracy.
In the case of Ukraine, we see a prime example of this paradox. When the results came out, the opposing faction didn’t support them and they believed there was election fraud. So even though democratized Ukraine wanted to go through a transition in political authority with its presidential election, the currently-elected leader is now the one with the least authority.
21st Century: Is the “election paradox” you’re talking about because the election in Ukraine has had issues with malpractice? If the election didn’t have these issues, then people wouldn’t be able to deny the election results?
Jiang: Your question can be confusing, because it assumes political questions are principally about “truth.” This might lead you to believe that if there “wasn’t election fraud,” then people would automatically accept the election results. But in fact, this belief clouds our understanding of the true nature of politics.
The heart of politics lies not in right or wrong, but in questions of obedience and disobedience. If you do not submit to my political authority and I have the power in this situation, then when I say you’re wrong, that’s the final word, even if you’re right. Therefore, so-called ‘election fraud’ is often nothing but an excuse or rationalization for disobeying results you disagree with. And the key question is not whether there was or wasn’t election fraud, but whether the results of the election end up sticking.
Three Laws of Democratic Transition
21st Century: But Ukraine’s situation is somewhat special, mainly because of the heavy interference from the U.S. and Russia.
Jiang: Very much so. However, the more complex the situation, the more we can come to recognize the essence of democratic politics, nothing more than the domination of the weak by the strong. Ukraine is in the position of a weaker country. The Balkan and Persian Gulf countries face the same fate, that is, to be dominated by larger countries.
Throughout history, the domination of larger powers by smaller ones has ordinarily occurred via open warfare, colonialism and empire. But now, this happens via economic trade and political democratization. Under the backdrop of globalization, democratization is a legal means to dominate and even divide a country. By empowering different political factions within a country, international powers can reach their tentacles into its internal affairs. Traditionally, Ukraine was considered to be within Russia’s sphere of influence or among its allies. But the United States is using the democratization process to develop its own proxy forces and bring the country into the American orbit.
In this kind of situation, democratization is beneficial for larger countries who seek to reorder the political situation within smaller ones. In Afghanistan and Iraq, the U.S. did not hesitate to use military force to bring about democratization because the Taliban and Saddam Hussein’s regime resisted the U.S.’ desire for political transformation. As far as America is concerned, the first concern is not “dictatorship or democracy”, but obedience or disobedience. If the target country disobeys, then democratization is the most effective manner to increase their influence in the country.
Therefore, in small countries going through the process of democratization, if there are no outside forces meddling or this process happens under the protection of a single larger country, then we might be able to say they can experience a peaceful transition. However, if there are two or a few evenly matched large countries, then this country will face the danger of division. We can call this the first law of democratic transition. North Korea and Germany are examples of this process of division following the Second World War. During the Cold War the democratization of East Asian countries and after the Cold War the democratization of Eastern Europe and the division of Yugoslavia are further examples.
21st Century: In this way you could say the situation of division in Ukraine is further evidence for this first law of democratic transition?
Very much so. Ukraine’s future will be determined by the wrestling match between the United States and Russia. But there is also a key factor that is easy to overlook: the internal cultural and ethnic differences between Ukraine’s Eastern and Western regions.
Democratization can easily induce the process of regional separation, especially when regional referenda are adopted the area is more open to splits via democratization. Currently the Eastern separatist movement in Ukraine is associated with the “South-East Republic referendum” or “autonomy movement.”
As the process of democratization pushes towards regionalism, then those regions with large differences in ethnic, religious, and cultural groupings are most likely to be divided. In contrast, those regions of the country with historically integrated traditional cultures are difficult to separate, or if separated, are easily re-integrated. We can call this the second law of democratic transition.
The breakup of the Soviet Union and the reunification of post-war Germany perfectly illustrate this point. Similarly, calls for “Taiwanese Independence” are also part of the democratization movement’s push for regionalization, ultimately aimed at separation from China culturally and ethnically.
21st Century: So then what is the third law of democratic transition?
Jiang: The third law is the familiar theory of Peaceful Evolution (ed: a political theory that the United States is attempting to influence China and Vietnam to “peacefully evolve” out of their socialist paths). Since larger countries hope to use the power of democratization to control the development of the country, then the larger country must dress itself up as a supporter of democracy and peacefully disintegrate the country. Generally speaking, there are three methods.
The first is the long-term cultural strategy. In academic and cultural exchange, establish a hierarchy of culture that venerates Western cultural forms as first-class and disparages the culture of other countries as inferior or even barbarous. In this way, history, philosophy, and social sciences are all battlefields at the center of a strategy which we call “soft power.” As part of this strategy, ceaselessly proclaim the importance of democracy, autonomy, humanitarianism, human rights, and other concepts in order to turn other nations docile and remove their political agency.
Next is the medium-term strategy of democratization. Here is where you subsidize and support the target country’s “civil society,” consisting of cultural institutions, research organizations, and non-governmental organizations. With the help of the cultural and media groups that make up the country’s public life, “soft power” can be transformed into hard power. Among them the most crucial is to control television and newspaper outlets.
And finally, there are a set of specialized tactics, such as those used to stage the “Rose Revolution” in the country of Georgia and repeatedly being deployed in Eastern Europe. First, establish peaceful protests and assemblies, and with the media you control you transform the event into a public festival in order to attract more ordinary people and paralyze the opponent. Hold negotiations, dialogues, and even judicial proceedings, and in this process turn international opinion towards the demonstrators to increase public pressure to bring in all kinds of political figures to mediate. Finally, if the targeted country refuses to submit or mediate, be prepared for them to carry out violent actions to maintain order. Using elderly people, women, and children holding red roses to take the lead in the demonstrations to break down the violence and create the “soldier who can be defeated without a fight.”
Today. Ukraine’s situation is precisely this: talks, negotiation, and reconciliation are in progress, while in the public square orange balloons fly as rock musicians play to keep things lively and police guard the doors of the Verkhovna Rada. In this kind of situation, the victorious Victor Yanukovich, without an iron will to defend political order, will have no choice but to lay down his arms and surrender.
In Ukraine’s situation, the key point lies in whether the political regime is in its own hands or the hands of its opponents. In the contest for power between America and Russia, we see a life-or-death struggle. If you can’t see this contest’s cruel nature, then you can’t see the true nature of politics or the importance of the Weberian “ethics of responsibility” for political figures.
Ukraine’s Constitutional Crisis and Political Decision
21st Century: If we don’t consider the external forces in democratization, only internal factors, doesn’t this mean that the prerequisite for democratization is to establish an electoral system recognized and accepted by all, so that all will accept the results of an election?
Jiang: What you’re describing is a question of constitutionalism. In other words, obedience to a country’s constitution, including the political and electoral procedures stipulated in the Constitution, are the prerequisites for democratic elections. This is actually what we call constitutional democracy, and constitutional structure is a precondition for democracy. Without constitutional structure, democratic elections can only cause factionalism, conflict, and division.
21st Century: In this way, a constitutional order is vital for a country’s democratization.
Jiang: That’s true. But we must not look at a constitution merely as a legal document. Because a constitutional order cannot defend itself! A constitutional order relies on an outside force in order to defend it. This question was the point of departure between Carl Schmitt’s and Hans Kelsen’s thought. In Kelsen’s view, all of politics is incorporated into the system of legal provisions and norms under a constitution. That is, to say, all democratic politics must obey the constitution, and the actions taken outside of a constitutional order are automatically invalid.
But in Schmitt’s opinion, this concept of “constitutional supremacy” masks a profound political crisis. Because when a political force is prepared to destroy the system of constitutional democracy, that is, when politics falls into a “state of exception,” and there is no legitimate force able to protect the system of constitutional democracy — then any dialogue or democratic consultation that conforms to the constitution will inevitably destroy the system of constitutional democracy. This is precisely the lesson of the demise of the Weimar constitution, famous for its strong democratic and deliberative structures: Democratization itself destroys constitutional democracy.
It's in the face of this critical political situation that the concept of sovereignty is most visible. In other words, sovereignty does not submit to the constitutional order but protects the constitutional order at a critical moment. Sovereignty does not rely on the constitution but on a decision higher than the constitution. Crises of political decisions follow the “will of God,” not the constitution.
Schmitt’s theory actually overcomes the inherent flaws of liberalism. Hayek believed that freedom is the nonexistence of coercion. But this is possible only in idealized conditions, like Newton’s laws, and it is a tautology. The largest question for freedom is indeed how to face coercion. But in order to protect your definition of freedom, you need a force that is strong enough to suppress the forces that seek to coerce against that freedom.
So, as Schmitt said, the first question in politics is how to define your friends and enemies when making those decisions. Between enemies and friends, there are no questions of freedom, only force and subjugation. This is the essence of politics, an essence which liberals are often afraid to confront.
Today, Ukraine faces precisely this problem. With opponents challenging the country’s whole constitutional order, the political leaders lack the power to make decisions. The president and the elected prime minister lack the power to make political decisions, the power to enforce the constitutional system, and are caught up in political dialogue, negotiation, and legal fights. As a result, all they can do is hand over power and sovereignty to the opposition. The root of this lies in losing what Max Weber called the “political instinct” to defend democratic norms and procedure. It’s at the crucial point of this life-or-death struggle we can come to understand why Schmitt so detested the “endless dialogue” of the political romantics.
The Supreme Court as a Political Institution
21st Century: However, the current situation in Ukraine is being resolved through the Supreme Court, that is to say the crisis of constitutionalism can be solved through the Supreme Court.
Jiang: Yes. The Supreme Court or Constitutional Court is now being used to resolve the crisis of constitutional democracy, a mechanism from within constitutional democracy itself just like the process of constitutional amendments. But such efforts do not resolve the contradiction that Schmitt outlines: who will enforce the decision made by the Supreme Court? Supreme Court decisions and a constitutional order are the same, both need a political force to defend them.
At one point, when America faced internal divisions over slavery, Congress passed the buck to the Supreme Court. The Chief Justice of the Supreme Court made what was in essence a political decision to uphold the constitutionality of slavery in the Dredd Scott decision. But this decision led to the Civil War between the North and the South because the Northern abolitionists did not want to enter the “contract with the devil” that the current constitutional order represented and the Southern states did not want to accept the restrictions of the constitutional order and demanded Southern independence. So it was inevitable that military force would be needed to protect the constitution.
Besides, even if political force complies with the decision of the Supreme Court, the Supreme Court must be thought of as a political institution and not just as a neutral judiciary. The Supreme Court is not making an ordinary decision of pure judgment but a political decision.
In the case of Bush v. Gore, the deciding vote was cast by Justice Kennedy. Later, when explaining his reasons for supporting Bush, he pointed out: “at this point you have to take responsibility for history.” To him, if Gore won the case then the Florida legislature would need to continue counting votes, which might delay the election. That would mean that when Clinton’s term expired, there would not be a new president, a constitutional crisis that would be difficult for America to bear. Kennedy’s decision was surely one of a visionary statesman and not simply a legal functionary. The attacks of September 11th also proved the appropriateness of this decision.
So if we look at this as a political decision, Ukraine’s supreme court should rule that the election is valid in order to preserve political stability and unity within the country. If they rule that the election is invalid, this will only intensify division, even potentially leading to the breakup of the country. Even if the results are overturned, if there is a second election and there are continued claims of fraud, will a third election be held? But I suspect Ukraine’s Supreme Court is already under the control of pro-American forces.
Political Education and Weber’s Ethics of Responsibility
21st Century: What lessons can the democratization of Ukraine, or even the whole regions of Eastern Europe and Central Asia, teach China?
Jiang: I think we can’t take their experience wholesale, but they do have some lessons to teach us. A fundamental lesson is that the Peaceful Evolution in the Western world has led to the breakup of many countries. This means we must have a clear-eyed understanding of political realities, including the cruel nature of geopolitical development. As a large country, China will undoubtedly be a target for division and containment and we must have a sober awareness of the challenges we’ll face.
Of course, in order to prevent the constitutional crisis that has befallen many of these countries in democratic transition, we have a lot of work to do. For example, we should use economic and cultural means to resolve regional differences and imbalances in development, strengthen ties between various ethnic groups, increase state capacity, and so on.
But I think the most pressing need is for political education. Comrade Deng Xiaoping has pointed out that the greatest mistake since the Reform and Opening Up period has been in our commitment to education. I think he spoke well to the heart of the matter: of course, we are not talking about education in knowledge and facts, but cultural and ideological education, what we might call general or political education. Most important for this is education on socialist values with patriotism at the core. Without this kind of education, national culture will lack self-esteem and self confidence. Facing the crisis of confidence within Western countries, how could China hope to resist Peaceful Evolution?
21st Century: So what can we learn from the process of democratization?
I think China’s lessons are to be found in its own history and the history of America, because these are two large political powers with profound political experience. Political will and political decision are the two most important things in the handling of affairs for large countries.
President Bush publicly declared on the issue of the “War on Terror” that the world would either be with the United States represented by liberalism as a friend or against it as an enemy. This is the reality of politics and Bush needs political courage to be able to make these claims, a powerful lesson from American conservatives. In fact, we should have the courage to say: the world is either on the side of China’s peaceful rise as a friend, or an enemy with the goal of containing and dismembering China. Without that political will, China cannot become a great power but can only become a vassal state for other countries.
As Weber said, mature politicians need to have hardened political will and the political instinct to pursue power. This is what we mean with the question of in whose hands a given “regime” of power is in - its own or the enemy’s. Effective politicians do not make decisions based on beautiful moral preaching, but take on the responsibility to act for the benefit of their entire nationality and the good of global history. This is what Weber referred to as the “ethics of responsibility.”