China no longer a law unto itself

2009-10-30Asia Times

BEIJING - The legal traditions of China and those of ancient Rome and Greece have very different origins. They grew out of different social needs and political requirements, reflecting the varied natures of the civilizations that created the laws.

In ancient China, three words covered the modern meaning of the Latin word lex (law): xing (punishment), fa (norm, standard), and li (ritualistic behavior). As the Lun Yu (the ancient collections of the sayings attributed to Confucius) told us, the aristocracy, the junzi, was to be managed through li, whereas for common people, xing was more appropriate.

The word xing, punishment, indicated corporal punishment, as suggested by the radical "knife" in the character. This could be cutting off the nose or the ears, or the fingers - or a branding on the forehead. Such marks showed clearly to everybody the criminal record of the individual. In this sense, xing, by cutting, gave a new shape to the culprit, it adapted the object, the person. A thief, thus, would be punished by having to take on the shape of a thief - that is, for example, without a hand.

In a sense, the punishment of xing was to correct a person by changing his name from the one given to the one that was appropriate for him. This was a practical and concrete application of the Confucian principle, "The father must be a father; the son, son; the king, king; the minister, minister."

The ritualistic li, was a complex system of education and etiquette for people with access to higher social positions, covering how to behave in different circumstances and with different people. A lack of etiquette, as it is today, is not punished by torture or corporal punishment, but simply by subjecting the guilty to a humiliating lack of etiquette in response. The "impolite" person loses face, is demeaned, and thus is already punished enough. This system assumes a society split in two, between the educated and the uneducated or the underprivileged. They are different, behave differently, and should be treated differently.

The word fa gave its name to a whole philosophical school in the 3rd century BC, called in English "legalism". Because of this, the word today usually translates into the English word "law", or the Latin "lex". But actually it indicates a very different thing.

In the Tianzhi of philosopher Mozi (470 BCE - ca 391 BCE), we can see it:
Therefore the will of Heaven is like the compasses to the wheelwright and the square to the carpenter. The wheelwright tests the circularity of every object in the world with his compasses, saying: "That which satisfies my compasses is circular. That which does not is not circular." Therefore whether an object is circular or not is all known because the standard (fa) of circularity is all established. The carpenter also tests the squareness of every object in the world with his square, saying: "That which satisfies my square is square; that which does not is not square."

Therefore whether any object is square or not is all known. Why so? Because the standard of squareness is established. Similarly, with the will of Heaven, Mozi will measure the jurisdiction and government of the lords in the empire on the one hand, and the doctrines and teachings of the multitudes in the empire on the other. If some conduct is observed to be in accordance with the will of Heaven, it is called good conduct; if it is in opposition to the will of Heaven it is called bad conduct. If a teaching is observed to be in accordance with the will of Heaven it is called good teaching; if it is in opposition to the will of Heaven it is called bad teaching. And if a government is observed to be in accordance with the will of Heaven it is called good government; if it is in opposition to the will of Heaven it is called bad government. With this as the model and with this as the standard, whether the lords and the ministers are magnanimous or not can be measured as (easily as) to distinguish black and white. Therefore Mozi said: If the rulers and the gentlemen of the world really desire to follow the way and benefit the people they have only to obey the will of Heaven, the origin of magnanimity and righteousness. Obedience to the will of Heaven is the standard of righteousness.[1]

In this passage, fa is a standard, a model of behavior that men should take from the sky. Here Mozi marks a profound innovation: he breaks the social difference marked by the two sets of "laws" - those for the inferiors, xing, and the superiors, li - and says that all men are equal, and there is no li or xing but fa, taken from the will (zhi) and intention (yi) of Heaven. That is, there must be a standard for social behavior, like that of a carpenter's. In this sense, Mozi introduces a concept that is actually similar to that of a neutral aspect of law of the first century BC - Chinese "Legalism" - and the concept of law in the West.

But it is also clear that Chinese law at this point is already very different from Western legal tradition.

Furthermore, using fa, Mozi is also very careful to think in strategic military terms. A crucial part of his thinking focuses on fei gong, a theory commonly translated as against "offensive war". This is no trivial pacifism, but claims that small states must oppose aggressive wars of larger states.

In fact, as Lu Xiang has shown in a forthcoming essay on Sunzi, gong in pre-Qin China meant war of a strong state and army against a minor state and army. Incidentally, zhan (the word now commonly translated as "war") meant war between states with armies of similar sizes, usually large states. We also know, through fragments of chapters on military techniques of defense, that the Mohists (followers of a philosophical and religious movement during the Warring States era - 479–221 BCE) were warriors with a clear ideology - the protection and defense of smaller states against larger ones. The fa was not a law applied and used in each state individually; it was a general principle that came from the "will of Heaven" and had to be used identically in each state. This idea contrasted with a trend of the time, when larger states were conquering and annihilating (mie) smaller ones.

In short, we see that the fate of the theories of law and war were linked and mutually reinforced each other in pre-Qin times. We find the same ideas in the text Guanjun, attributed to Shang Guan, prime minister of the state of Qin in the 3rd century BC. In the text, the application of new laws, fa, aims to strengthen the state to deal with wars - this time clearly offensive, against smaller states (gong) or with states of equal size (zhan) that are thus more threatening for one's survival.

Law, fa, was an important element in strengthening the structure of the state in order to win the warring competition in the central plain. From Guanjun to Hanfei (about 280 to 233 BCE), zi legalist philosophers created an efficient, orderly state ready for war, and the instruments to increase this efficiency were laws and standardization, as we can see from the following passage from Hanfei zi you du :

1. A country's strength depends on law, fa.

No country is permanently strong. Nor is any country permanently weak. If conformers to law are strong, the country is strong; if conformers to law are weak, the country is weak.

2. Promote followers of the law

Therefore, at present, any ruler able to expel private crookedness and uphold public law, finds the people safe and the state in order; and any ruler able to expunge private action and act on public law, finds his army strong and his enemy weak. So, find out men following the discipline of laws and regulations, and place them above the body of officials. Then the sovereign cannot be deceived by anybody with fraud and falsehood. Find out men able to weigh different situations, and put them in charge of distant affairs. Then the sovereign cannot be deceived by anybody in matters of world politics.

3. Beware of promotion by reputation or partisanship

Now, supposing promotions were made because of mere reputations, then ministers would be estranged from the sovereign and all officials would associate for treasonable purposes. Supposing officials were appointed on account of their partisanship, then the people would strive to cultivate friendships and never seek employment in accordance with the law. Thus, if the government lacks able men, the state will fall into confusion.

If rewards are bestowed according to mere reputation, and punishments are inflicted according to mere defamation, then men who love rewards and hate punishments will discard the law of the public and practice self-seeking tricks and associate for wicked purposes. If ministers forget the interest of the sovereign, make friends with outside people, and thereby promote their adherents, then their inferiors will be in low spirits to serve the sovereign. Their friends are many; their adherents, numerous. When they form juntas in and out, then though they have great faults, their ways of disguise will be innumerable.

4. Civil decay follows punishment of the innocent

For such reasons, loyal ministers, innocent as they are, are always facing danger and the death penalty, whereas wicked ministers, though of no merit, always enjoy security and prosperity. Should loyal ministers meet danger and death without committing any crime, good ministers would withdraw. Should wicked ministers enjoy security and prosperity without rendering any meritorious service, villainous ministers would advance. This is the beginning of decay.

Were such the case, all officials would discard legalism, practicing favoritism and despising public law. They would frequent the gates of the residences of cunning men, but never once would they visit the court of the sovereign. For one hundred times they would ponder the interests of private families, but never once would they scheme for the state welfare of the sovereign.

5. Efficient administration depends on upholding the law

The law of the early kings said: "Every minister shall not exercise his authority nor shall he scheme for his own advantage but shall follow his majesty's instructions. He shall not do evil but shall follow his majesty's path." Thus, in antiquity the people of an orderly age abode by the public law, discarded all self-seeking tricks, devoted their attention and united their actions to wait for employment by their superiors.

Indeed, the lord of men, if he has to inspect all officials himself, finds the day not long enough and his energy not great enough. Moreover, if the superior uses his eyes, the inferior ornaments his looks; if the superior uses his ears, the inferior ornaments his voice; and, if the superior uses his mind, the inferior twists his sentences. Regarding these three faculties as insufficient, the early kings left aside their own talents and relied on laws and numbers and acted carefully on the principles of reward and punishment.

Thus, what the early kings did was to the purpose of political order. Their laws, however simplified, were not violated. Despite the autocratic rule within the four seas, the cunning could not apply their fabrications; the deceitful could not practice their plausibilities; and the wicked found no means to resort to, so that, though as far away from His Majesty as beyond a thousand li, they dared not change their words, and though as near by His Majesty as the courtiers, they dared not cover the good and disguise the wrong. The officials in the court, high and low, never trespassed against each other nor did they ever override their posts. Accordingly the sovereign's administrative routine did not take up all his time while each day afforded enough leisure. Such was due to the way the ruler trusted to his position.

6. Let the law select leaders

Therefore, the intelligent sovereign makes the law select men and makes no arbitrary promotion himself. He makes the law measure merits and makes no arbitrary regulation himself. In consequence, able men cannot be obscured, bad characters cannot be disguised; falsely praised fellows cannot be advanced, wrongly defamed people cannot be degraded. Accordingly, between ruler and minister distinction becomes clear and order is attained. Thus it suffices only if the sovereign can scrutinize laws.

7. The law treats all alike

The law does not fawn on the noble; the string does not yield to the crooked. Whatever the law applies to, the wise cannot reject nor can the brave defy. Punishment for fault never skips ministers, reward for good never misses commoners. Therefore, to correct the faults of the high, to rebuke the vices of the low, to suppress disorders, to decide against mistakes, to subdue the arrogant, to straighten the crooked, and to unify the folkways of the masses, nothing could match the law. To warn the officials and overawe the people, to rebuke obscenity and danger, and to forbid falsehood and deceit, nothing could match penalty. If penalty is severe, the noble cannot discriminate against the humble. If law is definite, the superiors are esteemed and not violated. If the superiors are not violated, the sovereign will become strong and able to maintain the proper course of government. Such was the reason why the early kings esteemed legalism and handed it down to posterity. Should the lord of men discard law and practice selfishness, high and low would have no distinction.

Hence to govern the state by law is to praise the right and blame the wrong. [2]
In fact, there is broad consensus among historians that the legal reforms in the state of Qin, which used Hanfei's zi theories, made possible the accumulation of wealth, social cohesion and massive mobilization of resources that fueled and produced the unification campaigns of the first Chinese emperor. The law, fa, served the purpose of the sovereign, which at that time was victory in wars against all enemies. Victory in war ultimately achieved through the proper use of fa has left a feeling of nostalgia in China's strategic thinking for inflexible law that permits the organization of the state along almost military lines.

This creates a mental continuum between war and peace, which runs very deep in the tradition of Chinese thought [3]. The state is organized so that it can efficiently deal with war. Indeed, it is so strong and ready that it is able to defeat the enemy before it even intends to attack or that its demands are met immediately, without a fight, because just the possibility of conflict scares potential enemies.

The emergence of the value and efficiency of fa in strengthening the pre-Qin state went hand-in-hand with profound social changes. The aristocrats surrounding the monarch, who were treated according to li, were wiped out. An idea of "social equality" blossomed, holding that ministers and monarchs were to be selected and chosen for their abilities and not because of their lineage. These abilities ensured the ultimate success of the state. (See for example the Shang Xian chapters in Mozi.)

This was also accompanied by a major transformation of the army. The virtues of an individual combatant, requiring years of specific training, such as in archery or driving a chariot, become much less important after the introduction of the mass infantry. The individual soldier or infantryman was, though, willing to risk his life in war if in return he received a chance of social advancement.

But in pre-Qin China, the road to the top echelons of the state was not that of military virtue. No "government leaders" came to the top because of their merits in battle. Promotion within the state (which was organized for military purposes) was by merit of "civilian" virtues, by the ability to administer the state. This was the case with two prime ministers who contributed much to the strengthening of the state administration - Guang Zhong (mythical author of Guanzi) and Shang Guan (legendary author of Guanjun).

This transformation canceled the powerful old aristocracies and concentrated power in the hands of the sovereign (the guarantor of the interests of the state) and his ministers; "managers" of the state chosen by the sovereign from a large mass of citizens, in theory all equal and different only on the basis of individual merit.

Also during the five centuries passing from the collapse of the Zhou king's power until the unification of the Qin Empire in 221 BCE, the fortunes of the individual states were ephemeral. Large and small states were destroyed (mie), some states managed to assert their "hegemony" (ba) in the central plains, but this hegemony did not last long - it changed hands if a rival state adopted more effective domestic policies.

In short, there was a situation of great competition between rival states, and everyone was fighting life-or-death - something that required the adoption of policies for ruthless efficiency. Otherwise, the state and all its population faced a death penalty. Yet, lasting success came not really from victory in the battlefield, but from a "domestic resilience/endurance" created by an efficient administrative and political system, which delivered the conditions for overwhelming victory in war.

In this situation, internal resistance from the elites in each state weakened, even if there were many aristocratic conspiracies against efficient ministers; the constant threat of external danger ultimately suppressed internal resistance.

The situation of lex in ancient Rome and ancient Greece was very different. Whereas Chinese tradition cultivated the idea of continuity between war and peace by strengthening the state with the idea of fa, Rome and Athens separated times of war and times of peace.

However, in Greece, there was a tradition of continuity between war and peace - that of Sparta, where in times of war, the tough lives of the warriors, almost paradoxically, were easier than in peace. But even here, power was not concentrated in the hands of one person, but divided between two kings, who, even in times of war, took turns commanding the army. This cultural tradition was a "minority" and was eventually abandoned.

Athens and Rome, which shaped Western tradition, moved differently. In Athens, in the 5th century BC, Themistocles defeated the Persians, and in return for his good services to the city he was ousted from his post and even expelled from the city.

In theory, a city, thinking about its destiny, was supposed to protect and treasure Themistocles. However the Athenians - in reality, to be more precise, the most powerful families in Athens - feared that Themistocles, with his success, would become "tyrannos", the undisputed leader of Athens, a practice that was taking root in many cities in the Greek colonies in southern Italy.

There were many differences between the Greek city-states and the Chinese state. Above all with the Greeks, we see the strong enduring internal power of the elites who used a single head, one with value, only when needed. Once the critical moment had passed, they feared for their own internal power and tried to protect it rather than striving for the political advancement of the city.

This domestic competition in Greek cities opened the way for Macedonians Philip and Alexander when they conquered Greece. But we see the same consistency of competition within the aristocracy when, at the death of Alexander, his generals and friends fought one another and split the empire. The interests of individual chieftains were greater than the desire for a territorial unit that could have guaranteed greater power to the unified state.

We find a similar division of power in Rome between the two consuls. This served to protect the power of the aristocracy against the excessive concentration of power in the hands of one man. Only in times of war did the republican laws provide for a concentration of power in the hands of a "dictator", a word that after those times became derogatory.

In short, both in Greece and in Rome, there was a difference in political organization between times of war and times of peace. In war, the state gave power to one man, but after the period of war, the state took back the power and distributed it among different people, in competition with each other, just for fear of a concentration of power.

The provision for a "dictator" was applied with great caution, even during the wars against Carthage, which were the biggest challenge to Rome's rise to power. Even then, against the fearsome Hannibal, at many times two consuls took charge of the army and the city.

The process of concentrating power in Rome was slow. The city had to go through the civil wars between Marius and Sulla, the civil war against Catiline, the conflict between Julius Caesar and Pompey, and later the one between Octavian and Anthony. But even after the establishment of an "emperor" (the "commander"), there was a lingering role for other powers - the senate and the Praetorians (the imperial body guard, responsible for security in Rome). Here we see a fundamental difference in the formation of the two empires.

In China, competition between the states in the central plain in life-and-death wars forced the absolute concentration of power within the state. This concentration of power in turn ultimately provided muscle to a state, qin, which allowed it to conquer and annihilate all other states. The law was the instrument used to give power to the sovereign, but the sovereign was in reality not subject to the law. There was no power above him or one that limited him, even though to maintain social harmony the sovereign at times endeavored to do things according to the law.

In Rome, in the absence of real external challenges, the concentration of power in the emperor occurred through fierce internal political struggles, and it took place after the defeat of Carthage, which was the only power that could have eliminated or challenged Rome. The civil war commanders, in need of ideological justification, did not radically eliminate all the previous divisions of powers, but kept the institutions that shaped former Roman politics. The influence of the senate rose and fell almost cyclically during the imperial period, but the institution remained. In theory, even the command of the emperor was subject to the law, although the emperor could in reality escape the rigors of the law.

In China, the concentration of power was a driving force behind the survival and victory of one state over another. Indeed, with the revolution of the Han, the new dynasty tried to mitigate the concentration of power attained by the Qin, but it retained basically the same political structure. Moreover, in China, power came from efficient political administration, providing wealth and social cohesion, thus endurance and resources to the state before a war. The heroes were the wise ministers, who might have had a keen interest in military affairs, but who reputedly were rarely generals commanding troops in battle.

In Rome, power came from successful battles that thrashed the enemy. The heroes were the generals who were also politicians - like Caesar, or all the other commanders in the civil wars - but they had to prove their mettle by fighting shoulder-to-shoulder with their legionnaires.

The principles and histories of the two civilizations are very different, and as a result inspired different conceptions of law.

The traditional division of powers in the Roman empire was, for example, the theoretical ideological argument that allowed the church to establish itself as another power, the religious one, limiting and competing with the power of the emperor. It was almost as if it were a kind of later personification of the earlier will of the common people, previously embodied by the Greek agora (market square) and the plebeians and patricians facing the power of the emperor.

The principle of the gospel, "to God what is of God, to Caesar what is of Caesar", was accepted by the Roman Empire (Pontius Pilate, we know, did not move against Christ), and was used to justify some "division of power".

But in China, similar principles were harder to digest as there was a tradition of the concentration of power in the hands of the emperor. (Incidentally, this Chinese concentration is also very different from the Caesar-Papism of the Byzantine tradition, but here we depart from the issue of this essay.)

A second important element in the evolution of the concept of law in the West came from Italy during the Renaissance period, which began at the end of the 13th century. At that point, for the first time in history, merchants and businessmen took direct power into their hands and defended their interests with weapons.

These people were interested in enriching themselves - earning money and commodities - more than in gaining territory, as in previous European history. They discovered that money was much more powerful than territory, and thus small states, like Florence and Venice, for centuries ruled the destinies of Europe. This pushed larger, but far poorer and weaker states (for instance, Spain) to seek alternative routes to the Indies - just to avoid the hegemony of the Italian city-states.

Those with power and wealth wanted to reduce the costs of transactions, and thus they needed a system of law that would guarantee (cheaper) peaceful trading. This could not occur through the threat of the sword (which was costly), even if that threat was important to induce loyalty to pacts. They needed a system of rules for commercial transactions, and these rules became "laws".

Furthermore, the "merchant" state and its laws was structurally designed to provide benefits to merchants and the market, from which came common wealth and power. This attention by the state to the needs of the free market was a constant element of the modern world.

The calibration of the state according to the needs of the free market was based on a state tradition attentive to preventing the concentration of power, as we saw in the traditions of ancient Roman.

Markets and merchants existed in China, but the state was not organized according to their needs, and the state did not expect to have to be organized to serve the well-being of markets and merchants. Indeed, the success of a merchant could be considered a threat to social order, and therefore his funds could be seized for this reason.

It was this Western tradition that influenced China, with its fully fledged affirmation coming in the 1990s. This swept aside centuries of tradition in which power had been concentrated on the basis of a strategic vision for the state. But looking at the experiences of the past 150 years, it is clear to China that the power and the wealth of the state can only be achieved if the interests of the market and the merchants are well protected. The state in a sense puts itself at the service of the market. It regulates the market, to protect it, but not to destroy it. Indeed, the destruction of merchants and the market would be the seed that would grow to ruin the state.

This has practical implications. China will have to import from the West not only laws, but a whole - and very different - Western legal tradition that needs to be adapted and somehow reconciled with Chinese traditions. This is a huge challenge China is just beginning to face, even as it is already at the forefront of the international arena.

(A Chinese version of this article was presented at a seminar on Comparative Law organized by Professor Fei Anling of Zhengfa University in Beijing. I am also grateful to Lorenzo Infantino and Edward Luttwak for discussion on the subject.)

1. Translation by Y-pao Mei "Mo-tse" 1934. (Mozi, 470 BCE–ca to 391 BCE was a philosopher who lived in China during the Hundred Schools of Thought period (early Warring States Period).
2. Translation from "Having Regulations - A Memorandum" in The Complete Works of Han Fei Tzu, Volume I. Translated by W K Liao. Arthur Probsthain, London. 1939.
3. See also Mark Edward Lewis The Early Chinese Empires: Qin and Han, Belknap Press - April 2007. (2009-10-30 Asia Times)


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