Eric X. Li recently interviewed Francis Fukuyama on Political Systems, Political Legitimacy, Political Renewal and Decays for his Guancha views. The interview (about 53 minutes) is carried out in English with Chinese subtitles. A link to the video on youtube can be found here. A link to the video on tudou can be found here. A transcript of the interview on gunacha in Chinese can be found here.
The interview covers a lot and it is not my intention to discuss everything about it. However, one thing I do like is the tone it sets. For example, it doesn’t pose the questions such as whether electoral democracy or meritocratic democracy is superior. Instead, it poses question that ask what are the benefits and risks of each.
It is also witty. For example, there is a segment where Fukuyama exemplifies the respect for “rule of law” in terms of rulers not able to take things away from the citizens arbitrarily. Eric wittily retorted something to the effect: “or to get permission to get a divorce!” Laws are but a tool: it can “protect” while at the same time also invade. Ah … the double edge sword of law.
Nevertheless, there are several things I don’t like though.
Bad Emperor Problem
One is the notion that both Eric and Fukuyama both seems to agree that meritocratic democracies like China’s 1 requires the emperor to be “good” while electoral democracies such as those practiced in the West don’t. This is the “bad emperor problem” that Fukuyama has famously raised about authoritarian governments for some time.
The problem is that in my opinion the “bad emperor problem” exists in democracies just as much as in “authoritarian” governments. Fukuyama has conceded elsewhere that when democracies are captured by “special interests,” it is very very difficult for the people to spontaneously re-capture the government. Few would argue with that. Just look for example at the money being thrown at elections these days.
According to opensecrets.org, the cost of the total U.S. election in 2012 exceed $6B U.S., with the Presidential election costing almost $2.5B U.S.
Some are estimating the cost of the U.S. presidential election in 2016 alone to cost more than double that – at $5B U.S. (note a large amount being spent is not per se indicative of “special interest” money, if it does truly inform the people. The problem is that what this bought was not that, but mostly sensationalistic stories, negative campaigning meant to confuse rather than enlighten, feel-good one-liners, punchlines, and emotional grabbers!) When so much is spent at spins and counter-spins, when individuals have so little resources to separate the wheat from the chaff of the constant misinformation and disinformation, it is hard to imagine “the people” ever overturning the system.
To Eric’s credit, in addressing the “Bad Emperor problem,” Eric did note that emperors in Imperial China rarely held absolute power. Emperors are greatly constrained by bureaucrats, mandarins, if not Confucian ethics. Thus the “Bad Emperor problem” is still fundamentally at best a misnomer as “bad emperors” were traditionally easily controlled. The real problem relates to the decay of dynasties that ultimately come in Ancient China every few hundred years. But that is not a problem of “bad emperors” but of institutional or systematic decadence.
Through the annals of history, we’ve seen that when polities decay, they decay. Has electoral democracies really escaped this fundamental problem? I don’t think history has given any answer. Eric should have pushed back harder on this point.
“Democratic Capture” by “Special Interests”
Another problem I have is with the fact that Eric seems also to buy into blindly Fukuyama’s notion that “capture” by “special interests” is the Achilles heel of democracies – a disease that come to prey on healthy democracies. But the truth is that democracies have always been about the capture of government by various special interests. The founders of U.S. understood that democracies was forever be about a power grab by an ever shifting alliances of special interests. Thus there has never been a democratic principle that says that citizens have a duty to be principled in how they vote – or to vote for the good of society. People don’t lose their right to vote even when they consistently vote irresponsibly or selfishly. The saving grace of democracies is not the good heart of individuals, but a continued vigorous competition among selfish interests. 2
It is almost hip for left-leaning intellectuals in America to complain how democracies have been “captured” by “special interests” these days – to lament how the dream of one man one vote has turned to a nightmare of one dollar one vote. Almost invariably, these will assail the U.S. Supreme Court’s recent Citizens United v. FEC decision, in which the United States Supreme Court held that the First Amendment prohibited the government from restricting independent political expenditures by a nonprofit corporation. (The principles articulated by the Supreme Court in the case have also been extended to for-profit corporations, labor unions and other associations.) 3 Fukuyama did the same here and Eric seemed to accept the broad premise that money have somehow crippled the electoral process. But the truth is that electoral democracies have always been depended on the resources of well endowed individuals to function. In early U.S. history for example, democratic discourse was carried over newspaper by the wealthy, educated few – the few with an education and sufficient leisure and resources to articulate their political preferences.
As the “middle class” grew, people did get more leisure. But few used leisure to participate in politics with a critical eye. For the average Joe, his outlook and attitude was still shaped by the packaged ideas and ideology put out by the elite few. Even today, most people act like sheep, voting based on the latest quips and one-liners and popularity gossips than any deep understanding of the issues. Democracy has never been about ordinary uneducated normal individual somehow coalescing and finding a voice. Even as the middle class grew, most individuals found themselves needing to toil most their waking hours, constantly worried about feeding his family or about their future. If true communism was doomed by human nature (few is going to give all he could and take only what he needed), so is true democracy (the mass simply don’t have the resources to participate fully in democratic discourse).
Those who criticize Citizens United v. FEC have not come to terms how inequality in wealth fundamentally defines inequality in politics. Even if the Supreme Court would have limited campaign contribution, the candidates – I posit – will simply outsource the expensive parts of the campaigns (say TV ads) to “nonprofit” “educational” outreach programs supported directly by wealthy individuals. Talented politicians will still have to learn to be successful at seeking the support of the rich before they can successfully pitch to “the people.” “The People” have never been an active participant of democracies, they have always been a passive umpire.
The problem with democracy today is not a capture by “special interests” per se, but that the interests of the “special interests” seem to be becoming more and more divergent from the general populace (e.g. top 1% vs. the rest). The choices offered to the “People” become less and less palatable even though few realizes it. Political decay inevitably occurs when the political elites cocoons and withdraw themselves farther and farther from the mainstream, whether they be Mayan, Egyptian, Persian, Chinese, or European. Again, the fundamental problem again is decay, not democracy per se.
Rule of Law
Another problem I have is with the discussion of “rule of law.” Eric did right to stress that there is no agreed definition of what “rule of law” is even as he distinguished between “rule of law” vs. “rule by law.” He also did very well in questioning whether “rule of law” truly constrained the “sovereign” as most Western intellectuals presume … when the “sovereign” through the “democratic process” can always enact any laws it wish. Still Eric seems to have bought into the notion that “rule of law” confers at least “order” – in the sense that their applications are predefined, systematic, and determinative.
This is a misconception.
As the “legal realist” scholars of the last half a century have proven time and time again, law is rarely if ever determinative. This is because for any sets of laws to be robust, to have enough legs to be applied to a variety of situations, the laws must recognize sufficiently many principles (e.g. doctrines) that are fundamentally opposed. Consider for example contract law.
It is a generally recognized principle under contract law that where a terms of a contract is clearly defined within the “four corners” of the document on which it is written, the contract should be defined by those terms. The rule seems pretty straight-forward. Yet, in opposition to the principle is also the principle that says that when any ambiguity arise (and in practice, there are always elements of ambiguity in one digs deep enough), one must look beyond the document to verbal words, acts committed, or unique circumstances (in real life, circumstances are always “unique”) to fill in the ambiguities, or to alter the terms of the contract. This means in reality, how a contract case will turn out will depend on a judge’s sympathy rather than the law per se. Even if you have a slam dunk case with no ambiguities, there is also the generally recognized principle that societal norms can be appealed to legally invalidate the contract even community norms (this is where hiring a good lawyer helps, to cast your case as an exemplar case that calls out to community “norms” – to justice) . Thus for example when the terms “shock the conscience” of a judge, or when circumstances change to beyond what “a reasonable person” might have expected when the contract is made, a judge could invalidate what is otherwise a perfectly good contract.
Contract is considered a least political area of law, yet even here it is still not determinative. It gets even more pronounced in other areas of law. Have you ever wondered for example why was slavery ever tolerated, even accepted? It’s not as if people were so prejudiced as to be blind to the fact that black people are not people. It’s actually the notion that black people were bought as “property.” If you want to free slaves, you could – but you need buy them to set them free! You couldn’t just “free” them from people who paid honest money for their slaves. Here we have an instance of a dispute taht pitted the sanctimonious principles of Property vs. Freedom. Perfectly noble and righteous people can apply (and had applied) the same laws can reach very different conclusions about the legality of slavery.
In the area of Constitutional Law in the U.S., one often sees a similar lack of determinative tussle between “equality” and “freedom.” Looking at the Citizens United case above, for example, one could reasonably argue that “freedom” of speech and assembly requires the result the Supreme Court gave – that every individual be allowed the freedom to muscle all resources he can muscle to articulate a point of view. On the other hand, a reasonable person might also rationally emphasize that the principle one man one vote is among the most sanctimonious value of any democratic society and that when that notion is jeopardized, individual freedom of speech and assembly must be sacrificed to ensure that the principle of equality be preserved. There are always inherent contradictions. How one comes down on applying the rules and resolving the contradictions does not depend on the rules per se, but something beyond.
In the interview, Fukuyama intoned that China’s current infatuation with “rule by law” arises from its experiences of lawlessness in the cultural revolution. There is an element of truth there, but I’d also argue that the problem was not with a lack of “laws” or “rules” (for average Joe, those principles laid down in say Mao’s Little Red Book constituted sufficient principles and rules if applied “correctly”).
One of the biggest puzzles for those studying Western law is how notions of “freedom” and “equality”can change so much over a span of only a few hundred years, when the fundamental principles law (say Bill of Rights) is the same. The answer, it turns out, is that the law is a but a tool, and what the tool articulates depends not on the law per se, but on the preferences, norms and worldviews of the one exercising the law. What makes “law” in the West orderly in the last few hundred years is the continuation of cultural values and norms and morals – not “rules” or “laws” per se. As the people fighting the system – historically feminists and civil rights advocates – have learned, the “determinative” and orderly aspects of the “law” have nothing to do with “rule of law” per se, but with the small group of people (e.g., traditionally wealthy, white, Christian men) applying the laws.
The real problem in the cultural revolution was that in a society where traditional values and norms had been washed away, people applied the principles of the Mao’s Red Book haphazardly and non-systematically. In Ancient China, people didn’t “misapply” rules left and right – for personal vendetta, political revenge or otherwise – because their actions were constrained by traditional ethos and values and morals. When these fall away, as they did in the cultural revolution in China, things fall apart. When that happens, the mere application of laws and rules is not going to bring order.
Despite my “criticisms” above, I personally thoroughly enjoyed watching the interview. If you have time to watch and think through it, what are your thoughts?
- China is “democratic” in the sense that the government exists to serve the people; it is meritocratic in the sense that those who rule are placed there by their proven merits, not by blood, relationship, “guanxi,” or their ability to win popularity contests (as in, for example, electoral democracies) ↩
- See, e.g., http://xroads.virginia.edu/~MA98/pollklas/thesis/documents/federalistX.html ↩
- See e.g., http://en.wikipedia.org/wiki/Citizens_United_v._Federal_Election_Commission ↩