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China's Legalist Revival

April 20, 2016 Topic: Politics Region: Asia Tags: ChinaPhilosophyHistoryConfucianismLaw

China's Legalist Revival

Forget Confucianism: this ancient philosophy is driving China today.

HOW DOES culture shape politics? In her classic book Strategic Intelligence and Statecraft, Adda B. Bozeman argues that “American citizens must be fully aware of non-American approaches to statecraft if they are to render informed judgments on the merits or demerits of their own government’s foreign policies . . . ” Her study amounts to a cogent call for cultural realism, a realism that entails an effort to understand the political cultures of our allies and adversaries and how those cultures might influence their internal and external behavior. This is a vital enterprise now as Western political ideas have been largely discredited, or at least are in significant decline, in much of Asia, the Middle East and Africa. The response has been a resurgence of ancient, indigenous political ideas and movements now redefined in modern terms. The cataclysmic rise of political Islam in the Middle East is clear to all. Equally consequential over the long term are an emerging national Hinduism in India and the reassertion of Great Russian power in Moscow and Eastern Europe.

In East Asia, the major question is China. There are many factions in the Chinese political debate: New Left intellectuals, neo-Maoists, Westernized reformist liberals, nationalists and militarists. There is also a great deal of talk of a “New Confucianism” promoted in Chinese official discourse as a form of soft authoritarianism that emphasizes harmony, stability, benevolence and avoidance of conflict.

Recent trends in Chinese politics, however, argue for a new look at an ancient political philosophy that has never been far from the center of Chinese political thought and practice—Legalism. Indeed, we are now seeing a resurgence of Legalist discourse and methods in the presidency of Xi Jinping. Journalists have reported on Xi’s fondness for the Chinese classics, including the Legalist writers. But much more significant signs of a move toward a modernized Legalism are clearly evident in recent CCP Central Committee communiqués, internal CCP documents leaked or discussed in the press, and in the speeches of Xi Jinping collected in his book The Governance of China.

Despite talk of grassroots democracy and official accountability at the Third Plenum of the Eighteenth CCP Central Committee held in November 2013, the real news was a move toward greater centralization of power in Xi himself and in the new institution of the National Security Committee. The Fourth Plenum held in October 2014 represents a further development in the same direction. The official communiqué especially emphasized legal reform, the foundation of the anticorruption drive. One of the main sources of social unrest in China is the tendency of officials to coopt the law and make it a tool of personal profit. The reform is designed to take the law out of the hands of local officials with private interest and institute it in a system of impartial regulations, founded in China’s constitution. But this is not a move toward “constitutionalism,” which Xi and the CCP have explicitly rejected. It is rather a move to strengthen the law as a method of political rule and governance. The key phrase, “govern the state according to law” (yi fa zhi guo), means enforcing discipline from the top down on party and government officials first, and then, by the party, on the population.

These measures are much more than a means to restore the moral authority of the CCP. They represent a fundamental shift from a discredited Communism and tentative flirtations with limited Westernization—both foreign imports—to a greater reliance on political thought and practice deeply rooted in China’s own traditions. All of these reforms and trends in recent Chinese politics are thoroughly consistent with Legalist thought and practice.

 

LEGALISM HAS for centuries been the center of gravity of Chinese political culture. Even Confucianism, commonly believed to be China’s ruling ethos, was first articulated in the sixth through third centuries BC in opposition to the practice of establishing legal codes. The earliest of these were inscribed on bronze vessels in the sixth century BC in the states of Zheng and Jin. Confucius’s (551–479 BC) classic argument against this use of law as a tool of statecraft is recorded in the Analects: “When you govern them by means of administration and punishments, the people evade these measures and are without shame. When you govern them by means of virtue and ritual, they have shame and reform themselves.”

Confucius advocates royal power based in morality and tradition. Moral education and self-cultivation would bring a restoration of the good society. These ideas are framed in direct opposition to the Legalist measures of bureaucratic administration and punishment, the political instruments most favored by the rulers of Confucius’s time. The Legalist answer to this argument is powerful. Han Fei (280–33 BC), one of Legalism’s foremost voices, posed the example of a recalcitrant boy. All the admonitions toward goodness by his parents, neighbors and teachers fail. But, once the district magistrate sends soldiers to enforce the law, he is brought by the sheer force of terror to reform his conduct. What all the moral suasion of a loving family and tradition could not achieve, the bureaucratic state brings about at a stroke.

The vigorous debate between advocates of legal codes and followers of Confucius brought forth both the Confucian and Legalist schools of philosophy during the Warring States period (475–221 BC). Legalist thought received a full philosophical articulation in the writings of statesmen such as Shang Yang (fourth century BC) and Han Fei, both associated with the state of Qin, which succeeded in the military conquest of all the Warring States and the founding of the first Chinese empire in 221 BC. It was Legalist thought and practice that propelled the centralization of power in the hands of a single monarch, laid the foundations for the state bureaucracy and established the efficient and effective legal codes that became the pattern for Chinese politics for the next two millennia. No subsequent dynasty ever dismantled the Qin bureaucratic-Legalist state. In the second century BC, Legalist methods were used by the succeeding Han dynasty Emperor Wu to consolidate the power and authority of the Han government, which lasted from the third century BC to the third century AD. The Tang dynasty (618–907) implemented Legalist ideas again in the early seventh century with the promulgation of the Great Tang Legal Code, which served as the foundation of Chinese law through the rest of its dynastic history, into the twentieth century. Zhu Yuanzhang, founder of the Ming dynasty (1368–644), and known to posterity as Ming Taizu, left detailed instructions to his successors that attempted to make permanent for all time his code of laws and regulations. He also famously abolished the office of the prime minister in a move to concentrate all power in the hands of the emperor himself and a secretariat that worked closely with him, a reenactment of the centralization of the Qin state and an anticipation of Xi Jinping’s successful accumulation of political and military authority with the establishment of the National Security Committee.

 

Legalist thought provided the intellectual foundations for Peng Dehuai, Liu Shaoqi and Deng Xiaoping’s opposition to the ideological excesses of Maoist rule during the Great Leap Forward in the late 1950s and the ten-year Cultural Revolution in the 1960s and 1970s. Peng’s trenchant critique of the Great Leap Forward emphasized the pragmatic manipulation of real circumstances and rational state planning over the imperatives of ideology, both hallmarks of Legalism. These are also the guiding ideas of Deng’s reform program, the reforms that brought about the spectacular rise of the Chinese economy and state to its present emergence as a major world power. In the light of long-term history (longue durée), Xi Jinping’s political consolidations, legal reforms and policies are just the most recent expression of China’s perennial Legalist political culture.

In Legalist thought, the purpose of government is twofold: on the positive side it is the accumulation of wealth and power to ensure that the king rules supreme both at home and abroad; on the negative side it is to avoid internal weakness and instability and to prevent annexation and dismemberment by other states in the system. Xi Jinping’s articulation of the “Chinese Dream” is thoroughly consistent with the Legalist ideal. In the speeches collected in his book, Xi promotes the dream of the rejuvenation of the Chinese nation—internally strong, unified and prosperous, and therefore invulnerable to attack and dismemberment from abroad. The intellectual wellspring of Legalism plays directly to the Chinese historical experience of weakness and dismemberment in the nineteenth and twentieth centuries. Legalism provides both a compelling political explanation for that history and a Chinese way to turn China’s “century of humiliation” into a Chinese century. From these objectives flow the other principles of government, all of which are informed by a distinctive view of history and human nature.

 

 

THE CONFUCIAN argument is that history exhibits certain moral patterns stemming from heaven and human nature. If the king would only cleave the political order to these eternal patterns, the natural order of man and nature would thrive. The Legalists mocked this idea. History for Shang Yang and Han Fei was a never-ending progression of changing circumstances to which kings had to respond correctly in order to survive. Each age has its own dynamic that must be clearly understood and dealt with. No abstract, metaphysical notions of a transcendent morality or constant pattern of history could or should act as a guide to statecraft. In the time of Shang Yang and Han Fei, Legalism opposed the Confucians’ moral assumptions. Legalism in the present opposes the Maoist emphasis on ideological purity and the ideological mass campaigns used by Mao as an instrument of rule in the early years of the People’s Republic. Deng’s famous slogan, “seek truth from facts,” and his notorious justification of capitalist political economy in socialist China, “It doesn’t matter whether the cat is black or white; as long as it catches mice it is a good cat,” are modern expressions of very ancient Legalist ideas about the uniqueness of historical moment and circumstance.

As a consequence of this philosophy of history, Legalism is very adept at coopting other philosophical and political ideas, redefining itself in various historical and social circumstances. The great crisis of Legalism was the fall of the Qin Empire after only fifteen years. Many assume that Legalism, at that point, was discredited and replaced in Han political thought with Confucianism. But this is a distorted reading of history. The major architect of a new Legalism was a scholar named Jia Yi (200–168 BC), who wrote a very influential essay called “Criticizing Qin.” His critique was not that the use of law or administrative bureaucracy was wrong. It was that the law as conceived by Qin Legalists had been amoral. He argued that if Qin had enforced the social values that the Confucians were advocating, without a return to ancient feudal rule, the Qin would have been far less harsh in its methods and might have lasted much longer. Subsequent Han scholars then forged a political synthesis that blended Legalist methods of statecraft with Confucian moral education. This synthesis continued through later dynasties and found one of its most influential expressions in the Tang dynasty Legal Code. The Preface to the Code asserts that legal punishments were used by the sage kings of antiquity and that no state may dispense with them. Listed among the “ten abominations” that warrant punishment is the failure to practice filial piety and righteousness, two of the cardinal Confucian virtues.

In its modern form, the Legalist philosophy of history is the intellectual ground upon which the CCP is presently redefining itself as a socialist party with Chinese characteristics, a marvelously open term that allows for the flexible adaptation of capitalist economics, the formation of a legal and constitutional system that contrasts sharply with the Enlightenment ideas that underlie Western notions of these same terms, and the promotion in recent years of Confucian moral values. In a move strongly reminiscent of the Han Emperor Wu and the Ming Emperor Taizu, the language of Jia Yi and the Tang Code are clearly echoed in the Fourth Plenum Communiqué’s admonition to “strengthen the combination of governing the country by law and by virtue.”

 

THE SECOND guiding philosophical idea of Legalism concerns human nature. Confucius argued that human goodness is achieved by moral self-cultivation, internal transformation of the mind in the context of family and social tradition. The Legalist Shang Yang maintained that “the reality of human beings is that they have things they love and things they hate; therefore they can be governed.” Human behavior is to be transformed not by inner cultivation but by external manipulation by political authority of love and fear, pleasure and pain. These are the political tools of the ruler, not restrictions on the ruler himself. Law is applied first to the king’s own ministers. The Qin Legal Code was devoted largely to laws that govern the conduct of government officials. Han Fei argued that the monarch must exercise his powers of reward and punishment himself—he must not delegate such authority to his ministers because they will end up ruling over the monarch. Thus, one of the most important functions of Chinese law is to give the ruler the instruments of power to keep his ministers loyal to him and to control the corrosive effects of corruption. The exercise of such personal power leads to two results. The first is the suppression of factional powers with economic resources that can challenge or diminish the power of the ruler. The second is the elimination of corrupt officials who enrich themselves and stir the resentments of the people, thereby destroying the loyalty of the population to the state and leading to rebellion and the possible overthrow of the king.

Modern Legalism opposes analogous views of human nature that prevailed during the high tide of Maoist Communism. For all the vitriol poured over Confucius in the early years of the PRC, Maoism and Confucianism had one thing in common. Both argued for the internal transformation of the individual—Confucius through moral cultivation in culture, and Mao through ideological indoctrination designed to purge the individual of bourgeois vestiges, a process that would bring about the utopian Communist state. The turn toward the suppression of foreign and subversive political ideas under Xi Jinping is not, as many have argued in the press, a return to Maoist methods. Rather, it is a reversion to perennial patterns of Chinese political culture, a return to Legalist methods that emphasize control of human behavior by means of reward and punishment administered by the state. These are the exact motives and reasoning behind the anticorruption campaign and the related move toward the promotion of clear and impersonal laws as a method of control over party and government officials. According to the official communiqué of the Fourth Plenum in 2014, the purpose of the reforms is to shape a complete system of legal standards to govern the party itself, strengthen government administration over the people and the economy according to the rule of law and promote the modernization of the legal system of the entire polity. This is the context for the anticorruption drive, which has had the dual effect of uprooting factionalism in the party and moving toward the objective of an efficient, rationally ordered state capable of implementing the economic reforms required by present conditions, a result that both Shang Yang and Han Fei would applaud.

 

THE MANIPULATION of rewards and punishments alone is not sufficient for the necessary control of both government officials and the population. This mode of rule must work in concert with a second essential measure: the elimination of political ideas and groups of people not consistent with Legalist methods and objectives. Shang Yang advocated purging the political system of all superfluous activities that divert individuals from the pursuit of agriculture and war, the government’s core objectives. This applies particularly to the fostering of literary and philosophical pursuits; the cultivation of the Confucian practices of the rites and music; and the promotion of virtues such as filial and fraternal piety. Should these be the main pursuits of the government, the result would be defeat in war and poverty in peace. Chief among the five “vermin” that Han Fei identified as forces that undermine the state are scholars and speechmakers. They are insidious in that they introduce a multiplicity of subversive ideas into political discourse and promote the notion that the path to social advancement is through the clever use of arguments. Both undermine the ruler’s ability to maintain single-minded devotion to the state and to productive work that advances its interests.

In his “Chinese Dream” speeches, Xi repeatedly invokes these Legalist doctrines: “Empty talk harms the country, while hard work makes it flourish.” The people should concentrate not on political debate but on the hard work of building a modern economy; and they should enjoy the benefits of the prosperity that economy is meant to deliver. The ideal is the model worker, not the sharp-tongued political orator. This is the reward side of the Legalist mode of statecraft. The punishment side has taken legal form in two internal party documents that have recently come to light: Document No. 9 and Document No. 30. Both represent a modernized version of Han Fei’s “five vermin.” Document No. 30, which has not been leaked, appears to be a development of the policies set forth earlier in Document No. 9, which has become public. It identifies “Seven Un-Discussables” that harm the state because they hinder the unification of thought and are to be targeted for suppression. The document is structured exactly like a Legalist treatise, following closely the literary form of parts of Shang Yang’s Book of Lord Shang. It enumerates the seven pernicious ideas—constitutionalism, universal values, civil society, neoliberalism, press freedom and questioning the socialist nature of the economic reforms—with a comment attached to each that warns of its specific harm to the state. The unifying thread that runs through all of them—eerily similar to the harm of the “five vermin”—is that they introduce a multiplicity of ideas that distract from the national drive toward socialism with Chinese characteristics and undermine the singular authority of the CCP as the unchallenged sovereign.

The new Legalism is not the only current of thought informing Chinese domestic and foreign policies. There are many factional alignments in the party and government, and many strains of thought and tradition coming together to shape the present reality. Moreover, the economic reform program, which is consistent with a modernized Legalist emphasis on building the economic foundations of a strong military state, has opened China to economic and political ideas never dreamed of by the ancient philosophers. What is important to understand about Legalism in the present age is that it will inform the foreign and domestic statecraft of the CCP, shape the definition of what law is and how it will work in Chinese politics, and thus will constrain the scope of how far Chinese political and legal reform can go toward Western-led globalization. It will also, as it has for centuries, provide many of the underlying patterns of thought and practice that will shape fundamentally the Chinese understanding and adaptation of all other political and economic models both of native origin, such as Confucianism, and imported, such as free-market economics. Beijing may speak the modern language of political and diplomatic discourse derived from Western Enlightenment thinkers, but its understanding of those terms will be determined by an interaction between their meanings in the West and their meanings to the Chinese as mediated by an indigenous political culture shaped by centuries of Legalist thought and experience.

David K. Schneider is associate professor of Chinese at University of Massachusetts Amherst, author of Confucian Prophet: Political Thought in Du Fu’s Poetry (752–57) (Cambria Press, 2012), and a Wikistrat senior analyst. His present research is on war and diplomacy in Chinese political thought and culture.

Image: Wikimedia Commons/@Gremelm