|
Translated from Chinese by Sherwin Lu (Incl. quotations from classics)
EDITOR’S NOTE: The following abstract provided by the author has said what this editor would like to say about his article –
Abstract
While it has been a consensus in both Western and Eastern academic circles that constitutional government originated in modern England’s constitutional monarchy, this article proves that it had existed much earlier in ancient China, i.e., in the state of Qi in the Spring and Autumn period over 2600 years ago in the form of constitutional monarchy. What was different in Qi constitutionalism from the modern Western version was that the former was people-oriented, protecting not only individual human rights but also the interests of the state, i.e., shared interests of the whole population; that it restricts not only the monarch’s and the government’s power but also that of the capitalist class; and that it adopted the rule of law and virtue combined, incorporating the principle of selecting the morally worthy and intellectually capable for government positions. That was a most nearly perfect version of constitutionalism in human history, which made it possible for Qi to quickly become the No. 1 superpower, a leading force for one time among the Chinese states in their efforts to maintain peace in that chaotic era.
China’s Constitutional Revolution Two Millennia Ago (I-III): Introduction / Ancient Qi (齐) State
China’s Constitutional Revolution Two Millennia Ago (IV): Qi’s constitutional monarchy (1-7)
THE TEXT
IV. Qi’s People-Oriented Constitutional Government under Rule of Virtue and Law (continued)
IV-8. Rejection of the monarch’s claim for “calling the shots in my own state”: Strict implementation of constitutionalism
In general, those who have power would not like to yield it and Duke Huan was no exception. He always liked to act as the policeman for all under heaven and often proposed to launch military crusades against aggressive states, but was always vetoed by Guan Zhong –
“We have enough supplies of armors and weapons now. So, I plan to start implementing your non-hegemonic principle and intervene between the vassal states. Don’t you think it’s the right time?” asked the Duke.
“Not yet,” replied Guan Zhong. “We do not have enough people to run domestic affairs, nor enough to handle inter-state diplomatic relations.”
(Then Guan Zhong appointed Bao Shuya as court adviser, Wangzi Chengfu as the military commander, Ning Qi as minister of agriculture and Xi Peng as diplomatic officer, and made overall arrangements regarding external affairs. After that, the Duke proposed to launch military crusades again --)
“Since preparations have been made in both domestic and diplomatic affairs, is it time now?”
“No,” said Guan Zhong, “because our relationship with neighbors need to be improved.”
“How to improve?” asked the Duke.
“Check our borders, return lands we took from our neighboring states, and make corrections on the boundaries. Do not take wealth from them, but use our leather currency to entertain the dukes and princes from other states so that our neighbors will be pacified and on good terms with us.”
(When Guan Zhong succeeded in achieving better relations with Qi’s neighbors, the Duke pushed for military action again and again, though mildly, but were repeatedly turned down by Guan Zhong --)
“… I would like to start a military expedition to the south. Which state should we mainly rely on?” asked the Duke.
“Mainly Lu,” replied Guan Zhong, “We should first return the two regions Chang and Qian, which we took from it, so that our ocean coast can be shielded and water spaces and hills walled.”
“I would like to fight to the west. Which state should we mainly rely on?” asked the Duke again.
“Mainly Wei (卫),” replied Guan Zhong, “We should first return the two regions Tai, Yuan, Gu and Qili, which we took from it, so that our ocean coast can be shielded and water spaces and hills walled.”
“I would like to fight to the north. Which state should we mainly rely on?” asked the Duke again.
“Mainly Yan,” replied Guan Zhong, “We should first return the two regions Caifu and Feigou, which we took from it, so that our ocean coast can be shielded and water spaces and hills walled.”
(It was not until the state had restored order three years later and the army had been well trained four years later that Qi sent out troops…) (《管子》小匡第二十)
and “met with other vassal states for nine times to put all under heaven in good order” without using military force, which won high praise from Confucius as a “great feat of benevolence” (《论语‧宪问》).
Thus, Guan Zhong had again and again turned down the Monarch’s proposal for military actions – a sharp contrast to what had happened before the division of power between the monarch and the prime minister, when the Duke could do whatever he liked, totally ignoring what Guan Zhong might think. Now, with the cabinet holding real executive power, the monarch could no more do as he pleased thinking he was “calling the shots in my own state”.
IV-9. The law as guarantee for human rights
IV-9a. Protection of people’s right to property
According to Guan Zhong, it was human nature to seek benefits and avoid harms:
“All humans have the same disposition: they are happy when their desires are satisfied and unhappy when confronted with what they dislike, no matter whether they are noble or humble in their social positions.” (《管子》禁藏第五十三 )
“No human beings would not like benefits and hate harmful things.” (《管子》版法第六十六 )
Therefore,
“Robbing people of their gains will trigger their anger while giving them benefits make them happy. This is human nature.” (《管子》轻重乙第八十一 )
Since it is human nature to seek benefits and avoid harms, orientation towards the people means to meet their needs as called for by human nature, and to meet their needs, of course, means to secure their rights as human beings.
As the right to property is the fundamental prerequisite for people’s livelihood, the most important human right to be secured is that to property. Hence Guan Zhong’s policy to encourage people to start an undertaking and possess fixed property for the family:
“People need a ‘regular business’…. What is a ‘regular business’? Animal husbandry, planting, keeping pace with the seasons to increase grain production, and reclaiming waste land for farming – doing all this while keeping from production and exchange of luxury goods – these belong to people’s regular business…. If people do not do such things, the warehouses would be empty and financial resources deficient.” (《管子》重令第十五)
Guan Zhong also warned that
“…[if] the government does not implement consistent decrees and no distinction is made between those meriting rewards and those deserving punishments, then people will not work hard at their productive enterprise.” (《管子》兵法第十七)
For people to maintain productive enterprises means that they need to have rights to property. Therefore, Guan Zhong insisted that the state should clearly define and firmly protect property rights. When affirming that running commercial businesses for reasonable profits facilitated economic development, he compared protection of property rights to
“…female birds incubating their eggs, sitting there without stirring or making a sound, only waiting to see the result… ” (《管子》禁藏五十三)
He also said:
“Let people live where they like to and do what benefit them; Give rewards for what they think is good and administer punishments for what they hate; Assure them that their extra wealth would not be taken away and work hard to see that they would do nothing punishable.” (Ibid.)
Since property ownership was protected, so were gains from investments of such property. Hence Guan Zhong stressed:
“Profits should not be prohibited, so that people would like to engage themselves in commodity circulation.” (《管子》侈靡第三十五)
Moreover, Guan Zhong went on, while encouraging ownership of fixed property, to insist on not allowing those who just idle about, with neither property nor working skills, from lobbying around:
“Presenting oneself as poor but not willing to work hard, just muddling along in poverty without a regular profession nor fixed family property while maneuvering among high and low social circles under the pretence of pleading for the people – this is what the sage-king would prohibit. ” (《管子》法禁第十四)
How, then, did the state of Qi protect people’s right to property? The answer is “The law”. Take commodity exchange for instance. Whether it was private exchanges or purchases by the state for public use, all were conducted through the use of contracts or agreements. So were investment or loan transactions, for the sake of protection. According to Guan Zhong:
IV-9b. Protection of people’s right to freedom: How to be guaranteed with monarch as legislator
In the state of Qi, the monarch was the leading agent for making the law. What was the basis for legislation, then? Guan Zhong’s position was that, although the monarch was the leading agent for law-making, it should not be based on subjective assumptions but that good and practicable law should be based on an understanding of the conditions of the state and of the will of the people through investigations and studies:
“The constitutional law must conform to the right way of governing a state. Decrees should be impartial and strict and rewards and punishments well-grounded and unquestionable. These are the cardinal principles for governing the people.” (《管子》法法第十六)
“In antiquity, those who intended to remedy the times and cure social evils would, before proceeding, invariably first study the conditions of the state and the government, find out what needed to be done, get to know folk customs and habits, identify the causes for good or bad social order, and locate the origins of gains and losses. Only thus could the legal system be established and government agenda carried through.” (《管子》正世第四十七)
IV-10. Popular self-government at grassroots
Qi’s orientation towards the people in protecting people’s right to property was not only a theoretical but also an actual realization of the people’s power. Besides, in Qi, the people’s power was also embodied in popular self-government
The popular self-government of Qi was not, however, established through democratic election as in modern West, but by gradual progression from self-government within the family through that in the local community to that within a profession.
IV-10a. “Shu in charge of military affairs and Xiang of civil ones”
As was different from the subinfeudation dependent on a feudal lord, the state system of social organization set up by Guan Zhong was a three-in-one system which integrated farming, military and administrative functions, with military affairs directed from the level of Shu and civil ones from that of Xiang. According to him:
“…five families make one Gui with a leader; six Guis make one Yi, with its leader called Yisi; ten Yis make one Zu, also with a leader; ten Zus make one Xiang, with its leader called Liangren; three Xiangs make one Shu, with its leader called Daifu… All military affairs are directed from Shu while civil ones managed by Xiang, each being responsible for its own duties and no negligence being allowed.” (《管子·小匡第二十》)
IV-10b. Four occupational groups: scholar-officials, peasants, craftsmen, and merchants
In a higher dimension than the self-government at grassroots Xiang and Shu etc., there was in Qi also self-government within each of the four occupational groups:
“The four groups of people, i.e., scholar-officials, peasants, craftsmen, and merchants are the mainstay of the state. They should not be made to live together, as they differ from each other in what they talk about and do. Therefore, sage-kings would always arrange for scholar-officials to stay in secluded areas, for peasants to live by farm fields, for craftsmen to settle near government seats and merchants close to market places.” (《管子》小匡第二十)
Such arrangements facilitated popular self-government, besides in the families and residential communities, also in occupational communities and areas of vocational education and employment. Take that of the scholar-officials for instance:
“The scholar-officials were made to live together in concentrated communities, so that fathers talk about principles for managing family affairs, sons about filial duties, those serving the sovereign about paying due respect, elder siblings about love for younger ones, younger ones about respect and affection for elder ones. All the children are educated in such an environment day in and day out that they become habituated from their childhood and, so, stay unchanged and single-minded.” (Ibid.)
Such was also the case with peasants, craftsmen, and merchants, all self-governed in family education and management, occupational education, employment, and management in occupational communities.
IV-11. Regulation of capital power to protect public interests
One characteristic of Qi’s constitutionalism as distinguished from that of modern Europe and America was that it did not only restrict the monarch’s power but that of capital as well. From his observation of Qi’s market economy, Guan Zhong found that capital, while playing a positive role in promoting economy to help ensure people’s livelihood, that is, benefiting others while pursuing self-interest, also had a negative side if not regulated, that is, a tendency to manipulate the market for its own benefit at other people’s expense, to seek to enslave others and to encroach on public interest, thus posing a threat to the state power represented by the sovereign. What worried him was:
“… the situation nowadays: When merchants sell dear, the sovereign follows suit and would not lower the prices; When merchants sell cheap, the sovereign also follows suit and would not raise the prices.” (《管子》揆度第七十八)
How, then, did private capital manipulate the market? Among the many ways, a major one was its collaboration with government officials in betraying the interests of the state, as revealed by Guan Zhong:
“For instance, if the prices of grains have gone up ten times while other prices are still at a low level, the official would summon the merchants and tell them, ‘Please sell grains while buy other commodities for me.’ If the original price of grains was one, now the profit would be nine times. As grain prices are high while those of others low, the official purchased nine times the quantity of other commodities. When grain prices drop to the original level, he would sell all those other products in nine times the original quantity at higher prices. When those products are sold out on the market, he would pocket nine times more cash for himself, so that all the profits made through the circulation of money and commodity go to the official, whereas the Son of Heaven becomes irrelevant while his subordinate official running the show. Then, those officials proficient in grain business flee to other states and are appointed official posts serving other vassals. They would form factional groups, control market prices and make an entire monopoly of all popular necessities. As a result, domestically, officials betray the state for selfish interests while between states vassals gang up into evil-doing cliques… so that the Son of Heaven virtually loses his power.” (《管子》山至数第七十六)
Thus appeared the situation in which the market in the state was controlled by capital, described by Guan Zhong as “one state with two kings”:
“The formation of big capital would create a situation in which one state is ruled by two kings. If state policy is inappropriate, big capital as the ‘king without a crown’ will take advantage of the state’s policy failure to make huge profits at the expense of all other people, reducing the poor to abject poverty…” (《管子》轻重甲第八十)
Therefore, Guan Zhong’s constitutionalism, while on the one hand protecting people’s right to property and profit-making through normal trade, on the other hand set limits to the power of capital to prevent it from benefiting itself at the expense of others and encroaching on the power of the state, so as to safeguard the interests of the public.
IV-12. Rule of law for people-orientated government
Since the people is the basic concern in state affairs, or in other words, both the beneficiaries and guarantors of all political-economic activities should be the whole population of the state, the essential task of the government should be to secure for them all human rights, that is, not only being benevolent in meeting their basic human needs but also being constitutional in the rule of law. Therefore, Guan Zhong, stressing the equal importance of morality and law, repeatedly preached the rule of law:
“Ancient sage-kings did not, in governing a state, waste their efforts on petty tricks circumventing the law, nor bestow petty personal favors allowed by the law. They followed the rules of law in all their actions, so as to prevent faults and prohibit self-seeking. Sovereign authority should not be split and administrative decrees not originate in two sources. The rule of law is the right guarantee.” (《管子》明法第四十六)
IV-12a. Legislative justice and completeness of legal system
Guan Zhong’s purpose in pushing for the rule of law was to realize his political ideal of a people-oriented government bent on enriching the people, empowering the state and bringing about harmony under heaven. According to him, the people were the ultimate concern. Therefore, in making the law, justice and completeness should first of all be assured. He warned poignantly that, if the legal system did not embody justice or legal institutions were not complete, or if legislators and law enforcers flouted the law for private considerations and thus destroyed the effectiveness of the law, all these would become dangerous factors threatening the safety of the state and its sovereign:
“Lack of justice and completeness in the legal system is among the major causes leading to the loss of power and crown of the monarch. Hence, a wise monarch never allows himself to distort or ignore the law. Thus, he can never be blackmailed by anyone with a distinguished background, nor bribed by anyone with huge wealth, nor flattered by anyone of humble birth, nor wooed by those around him, nor charmed by attractive women. The will to enforce the law must be firm and unflinching, so that devious persons would naturally be daunted and, when such persons mend their way, decrees would be complied with as soon as publicized. Therefore, sage-kings, when they set up a system of rules, are as steadfast as Heaven and Earth, as unswerving as the stars, as brightly clear as the sun and the moon, and as unfailing as the change of seasons. Thus, orders would be obeyed as soon as issued.” (《管子》任法第四十五)
IV-12b. Prohibition of cruel law and torture: Penalty proportioned to crime
In pushing for constitutional rule of law and justice of the legal system, Guan Zhong stood for appropriate and humane measurement of penalty and against draconian statutes and punishments:
“Government decrees can be effectively executed only when they follow aspirations of the people and would fail if not… Mere reliance on punishments would not make people flinch; that on death penalty would not make them willingly submit. If people are not afraid of harsh punishments, laws and orders would not be enforceable; if people are not daunted at heart by threat of capital punishment, the throne would face danger.” (《管子》牧民第一)
“If measurement of penalty is not in line with the law, no matter how many death sentences are imposed, rebellions would not be possibly stopped.” (《管子》禁藏第五十三)
“The problem with oppressive government in troubled times was not that there were no laws or decrees but that rewards and punishments were rendered to wrong persons.” (《管子》七臣七主第五十二)
Therefore, Guan Zhong insisted that there must be limits to the monarch’s power, limits to the state’s taxation on people, and limits to prohibitions or orders issued by the government, otherwise there would be danger to the monarch and the state:
“The monarch usually demands three things from the people but, if his demands are not restricted, his throne would be in danger. What are the three things he demands? They are levies, prohibitions and orders. He expects to obtain what he levies, to stop what he prohibits, and to see executed what he orders. However, he will obtain less if he levies too much; he can stop fewer things if he prohibits too many; and he will have less executed if he issues too many orders. If he fails to acquire what he demands, he would suffer a drastic loss of prestige; if he fails to prohibit what he attempts to, legal penalties would not be taken seriously; and, if he fails to have his orders carried out, his authority would be ignored. It has never happened that more levies would bring in more gains; nor that more bans really prohibit unwanted things from happening; nor that more orders lead to more things accomplished. Hence it is said that, if the superior is too harsh, his subordinates would not obey; that, if punishments are imposed because of this, then the sovereign would be plotted against by all; and that, if he becomes the target of a widely supported murder plot, it would hardly be possible for him to escape the danger. If orders are issued and then recalled, or protocols are put into practice and then called off, or a uniform measuring system is instituted and then abolished, or a penal code is implemented and then repealed – in all these cases, people will be discouraged no matter how high the rewards, nor will they be intimidated no matter how frequent the threat of capital punishment.” (《管子》法法第十六)
Thus, Guan Zhong repeatedly warned against harsh laws and cruel punishments. The law he proposed was not like that advocated by Shen Buhai and Han Fei and practiced in the states of Zhao, Han and Wei at a later time, which was characterized by severe punishments for violations of the law, even for minor offences (“breaking a fly upon a wheel”, so to speak). Guan Zhong resorted to penalty as a means of government in the same way as he resorted to moral education and exhortation at the same time, with a view to advancing the society into such a state where
“Law is ready for use but not needed, and penalties set up but not used.” (《管子》禁藏第五十三)
“Hence the law is not trivialized, officials not worn out with work, injunctions not breached and, therefore, people will not complain against their sovereign.” (《管子》七臣七主第五十二)
V. The Constitution of Qi:
People-oriented, all being equal before the law
Although no code of laws named as “the constitution” of Qi has ever been discovered, its legal theory and system contained rich ideas and practices about restricting the power of the monarch and the government and the power of capital, about protecting the rights of the people and about administration under the rule of law. Therefore, Qi’s code of laws did have the basic qualities of a constitution:
a) Orientation towards the people as the basic principle of its laws: all -- the monarch and officials as well as the common people -- being equal before the law and obliged to obey the law without exception.
b) Rule of good law: penalties being proportionate to crimes; opposing harsh laws and cruel punishments.
c) Division of power for mutual check and balance between legislative, judicial, administrative and military agencies, and division of power inside the cabinet.
d) Restrictions on the monarch’s and officials’ luxury consumption, banning tyrannical government, and reducing taxes and conscript labor:
“… applying different tax rates to different kinds of land according to their fertility.” (《管子》小匡第二十)
e) State ownership of land and other natural resources and major means of production side by side with private operation of business enterprises.
f) People’s guaranteed right to freedom of expression on political affairs through established channels such as ‘the Counseling System’.
g) Just and fair protection of state and private properties by law.
h) State control of currency for rendering financial support to production by extending loans to privately-operated businesses, so as to help crack down on usury and prevent abuse of power by financial capital.
i) State control and two-way regulation of the market by means of currency and grains, in order to stabilize and protect it against control and manipulation by big capital, and to cut cycle peak and resolve economic crisis.
j) Establishment of a state military system with the army totally reserved in the civil population instead of keeping a standing army, in order to reduce state taxes and budget.
k) State monopoly of salt and iron businesses and use of the profits for state expenses and reduction of taxes on people.
l) Official appointments based on candidates’ moral and intellectual merits, in order to guard against criminal collaborations between domestic and foreign agents and between officials and merchants.
The implementation of the constitutional laws in Qi was strictly scheduled in the following steps: First, for the officials at all levels to study and comprehend; then, pass on to the common people for them to study; and finally put into effect:
“On the first day of the first month of the lunar year, when all officials gathered at the court, the monarch declared to the whole state to have the first constitutional law issued… Once issued, it became effective right away.” (《管仲》立政第四)
According to the detailed description of the whole process in the above quotation, if the order to pass down the law was blocked or delayed or the law documents tampered or the law not enforced at a certain administrative level, the related official(s) would be judged to have committed an unpardonable capital crime.
VI. Politics Means Being “Just Right”
What is politics?
According to Guan Zhong, in terms of political principle and practicality, it means being unbiased, and acting at the right moment and in a balanced way, or in a word, being just and appropriate, i.e., neither going to excess nor going not far enough. This is the secret of political wisdom for government officials. As Guan Zhong put it:
“Politics (政) means no other than ‘just right’ (正). [Translator’s note: ‘政’ and ‘正’ were etymologically related and pronounced the same.] ‘Just right’ is the principle with which to determine the course of all things. Therefore, sages make a point of refining virtue and developing a sense of the golden mean so as to cultivate the ‘just right’ awareness, and of making clear the ‘just right’ principle so as to govern the state well. Hence, the ‘just right’ principle is meant to avoid either going to excess or not going far enough, as neither extreme is right. Deviation from what is right, either way, hurts the state. Bravery not applied to the defense of justice hurts an army, and benevolence not embodied in the maintenance of justice impairs the rule of law. Defeat of an army is caused by the injustice of its own actions and corruption of the legal system by betrayal of justice. Eloquence may not serve justice and actions may show reverence but are not be out of good motives. Therefore, remarks should serve fairness and justice, not to be eloquent for eloquence’s sake, and acts be out of good motives, rather than showing reverence for reverence’s sake.” (《管子》法法第十六)
In line with the above “just right” principle embodying his political wisdom, Guan Zhong insisted that, while it was imperative to restrain the monarch’s and government’s power from inflating excessively, it was also a must that the monarch and his government were secured enough authority. Whereas for the government to have too much power was “going too far”, to have too little was the opposite extreme. Therefore, Restriction of the monarch’s and government’s power should not imply their lack of necessary authority needed for fulfilling their duties.
Likewise, the “just right” principle, while asserting the supremacy of the rule of law, did not mean to dismiss the importance of moral education and discipline in governing but to resort to both in a mutually interactive and complementary way.
It also suggested, besides setting limit to the monarch’s and government’s authority, to restrain capital from abusing its power as well.
It, too, implied that not only individuals’ human rights but also the public interests of the state and the civil society should be protected.
It is this political wisdom embodied in the “just right” principle with all the above connotations that cannot be found in today’s Western constitutionalism. |
