China’s Constitutional Revolution Two Millennia Ago (VII – VIII-5): Rule of law & virtue combined.

EDITOR’S NOTE: The following abstract provided by the author has said what this editor would like to say about his article –

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.

VII. Double-Track Support for State Government: Guidance of Morality as Well as Rule of Law

Western constitutionalism advocates the supremacy of law, judging everything by law but dismissing public virtue cultivation and moral exhortation as the other guidance of government work. This is the other extreme far from the golden mean, which would require the rule of law and virtue combined, just as a healthy person has to walk on two legs. The consequences of “walking on one leg” have been self-evident.

In Western constitutionalism, from the principle of the supremacy of law has been deduced the conduct code of “one can do anything not prohibited by the law”. As legal codes cannot avoid loopholes and legislation always lags behind, self-seeking people can still do immoral but “not illegal” things with an easy conscience and, if such things cannot be checked, more and more people would be encouraged to take advantage of such loopholes to benefit themselves at the expense of others with an easy conscience. When such acts spread and accumulate for some time, they would amount to a serious problem that is destructive to social life.

For instance, the financiers on Wall Street have always been taking advantage of the loopholes in the law and done so many evil things in “legally” plundering other people’s wealth that, after their evil acts engendered the 2008 global economic crisis while successfully taking hostage of the macro economy, they did not only escape punishment but further impelled the U.S. government to bail them out. Thus those CEOs have not taken any pains to mend their ways but on the contrary rewarded themselves with big bonuses. How absurd that was but all that is “legal”!

Mere reliance on laws cannot prevent serious irremediable consequences from violations of law, with nothing else to be done except punishment after that, as is evident in the 2008 financial crisis, from which the world is still suffering now.

Though loopholes in the law might be closed by a later legislation, it would not be able to reverse the situation nor call the earlier culprit to account. That is why financiers on Wall Street have almost remained at large so far. Even if you take away the matches from those who play with fire, just because they lack moral self–discipline, they will be able to find lighters, so to speak. This kind of precedents can only induce more and more people to follow suit and do immoral things “safely” so long as they do not go against the law in letter, that is, violate the law in spirit but be able to escape punishment, thus making it a universal social behavioral pattern. Under the social conditions today, with property rights clearly defined as belonging to single individuals, endless and relentless competition and rivalry are driving people and the whole society down the road towards selfish cold-bloodedness. This is why those countries practicing constitutional politics today are the ones with highest crime rates.

The most cold-blooded crimes are seen in murders by means of broad-daylight shooting in public places. So long as one wants to kill, he can kill anybody innocent, anybody not in conflict of interest with him, anybody he does or does not have grudges against, including children and elderly people, friends and relatives and even parents, without exception. In the 2011 Norway massacre, 77 people were killed and 209 wounded. In the year of 2004, nearly 30,000 were killed in shooting incidents in the U.S., or an average of 81 per day.

Thus, the societies run by such constitutional governments became not only spiritual hells where “L'enfer, c'est les autres”, as Sartre summarized, but living hells in reality. Such terrible consequences run unexpectedly and diabolically counter to the supposed intension of constitutional rule of law, i.e., to prevent evil-doings.

Obviously, rule of law is no panacea but might have flaws that cannot be mended by the law itself. Therefore, emphasizing the importance of law should not mean to dismiss or ignore moral education and exhortation.

VII-2. Advocacy for virtue helps cultivate universal benevolence and social harmony

Moral education and exhortation aims at encouraging goodness and admonishing against evil-doings. The fundamental principle should be: All that goes against human ethics and human conscience about social justice should be prohibited, even if it does not violate the law in letter. Moral exhortation means to prohibit evil-doings through social disciplining, or moral censure by public opinion, and through self-disciplining, or censure by one’s own moral conscience. In other words, people have to listen to what public opinion and one’s own conscience would say before doing anything.

In a society with a tradition of social moral cultivation and exhortation, public moral disciplining and self-disciplining carries much weight and compels people to be good and do good. People would not fail to do good just because it is too trivial, nor venture to commit evil acts, not even minor misconducts, thus promoting social atmosphere into one of universal harmony.

Why was it possible traditionally for most Chinese intellectuals maintain moral integrity and develop a “gentleman personality”? It was just because the traditional Chinese society, especially the Confucian school of thought, emphasized the importance of moral education in governing the country and, in that society, people with moral integrity won highest social respect and admiration while morally mean ones were held in contempt by the general public. For instance, law-abiding and morally conscious merchants, or so-called “Confucian businessmen”, have been respected as well while law-breaking and virtueless profiteers despised. Therefore, with the government playing a major role in social moral education, the whole population would be guided towards goodness and moral uplifting, and the society filled with spiritual warmth so that, instead of a hell, a real paradise could be realized on earth.

Of course, merely relying on moral education and exhortation is no panacea, either. The selfishness in human nature, if not restrained, would drive people to commit crimes against the law, against ethical principles and against one’s own conscience in reckless pursuit of one’s own benefits. Moral restraint by others and by one’s own conscience without the enforcement of law would not work effectively enough on potential criminals. Only the threat of severe punishment by law might be able to make them think twice before doing evil things. Therefore, Guan Zhong insisted on both rule of law and moral exhortation.

VIII. Moral Guidance in Qi’s Constitutionalism: Imperatives for all people and government

Qi’s moral guidance system was stratified, complete and practicable so that law and morality worked side by side in a mutually complementary way.

In Guan Zhong’s view, an ideal society was one in which people were happy and harmonious with each other under the rule of law and guidance of morality:

“Educate the people in the principle of the Dao and they will live in peace with each other; Regulate people with moral principles and they will be united. When people are peaceful and united, there will be harmony in the whole society. When harmony reigns, no force can harm it.” (《管子》兵法第十七)

The very first chapter of Guanzi, when stressing the importance of moral cultivation and guidance, proposed the four principles of propriety, justice, integrity and sense of shame as the moral standard for all members of the society:

“A state should have four moral pillars. Short of one, it will slant; short of two, it will be in danger of falling; short of three, it will break down; and short of all four, it will be extinguished. If slanting, it can still be made straight; If in danger of falling, it can still be rescued; if broken down, it can still be restored; but if extinguished, it will be no more.

“What are the four pillars, then? First is propriety; second, justice, third, integrity, and fourth, sense of shame. With a sense of propriety, people will not overstep moral limits; with that of justice, they will not seek gains for themselves at the expense of others; with moral integrity, they will not try to cover up their own errors; and with a sense of shame, they will not follow a wicked few in doing evil things. With people acting within limits, the sovereign would be in a safe position; if people are not self-seeking, there would be no frauds or conspiracies; with no attempt to cover up errors, people would behave uprightly; with nobody following a wicked few, evil things would not happen.” (《管子》牧民第一)

How, then, was the cultivation of and guidance by the above four moral principles related to punishment by law? Here it is:

“With sufficient supplies in store, people will behave in line with propriety rules; with basic necessities secured, they will have a good sense of shame; with the sovereign sticking to rules for expenditure, his close relatives will live together peacefully; with the four principles practiced, decrees will be carried out unhindered. Therefore, the key to reducing penalty is to prohibit luxuries; that to strengthening the state is to promote the four moral principles… If the four principles are not practiced, the state will perish.” (Ibid.)

Thus, with the four ethic rules implemented, an effective social administrative mechanism for public- and self-discipline was established. The four moral norms proposed by Guan Zhong were later inherited and developed by Confucianists and became China’s national tradition for over 2000 years.

VIII-2. Moral discipline for the monarch: Taking public interests as the only concern in law-making and being exemplary in law-abiding

Besides general moral norms, there were also specific ethical rules for people in different social positions. The moral conditions of the monarch, as head of the state, determined in a large degree the fate of the state:

“No state has ever been weakened and extinguished just because of its small-size and bad luck; it must be the monarch and ministers first losing moral integrity in themselves, and then making wrong decisions about government appointments, legal institutions and political education at home and wrong moves in handling relations with other states that could cause the loss of a state’s territories and its final extinction. Nor has a state ever achieved success and won recognition just because of its large-size and good luck; it must be the monarch and ministers first maintaining moral integrity in themselves, and then making right decisions about government appointments, legal institutions and political education at home and right moves in handling relations with other states that led to a state’s success and recognition.

“Hence, how can a state be governed without following the Dao? How can one afford not to appoint persons of virtue as government officials? Follow the Dao as soon as being enlightened about it and appoint persons of virtue as officials once recognizing them, then one can well expect harms to be removed and benefits realized. To have harms removed and benefits realized, nothing is more imperative than setting oneself forth as an example, especially for the sovereign. If the state suffers loss, it must have resulted from inadequacies in government decrees. The sovereign would be misled if decrees are faulty; once misled, he would be hampered; and once hampered, killed. ” (《管子》法法第十六)

Since the monarch’s moral attainment is of such vital importance, the society-wide moral cultivation and discipline should begin with him. What, then, are the specific moral norms for a monarch?

According to Qi’s division of power between the monarch and the prime minister, the former was the legislator. Therefore, the core moral quality for a monarch as Guan Zhong saw it should be taking public interests only into consideration when making laws:

“A wise monarch would count on laws instead of resourcefulness, and on policies instead of preaching, on public support instead of personal relationships, and on principle instead of petty tricks, so that he himself could be carefree while all under heaven peaceful.

“A monarch who lost his state must have been doing the contrary – turning away from the law to count on resourcefulness so that his people neglected productive work in pursuit of empty reputation, away from policies to count on preaching so that his people did not care about practical business while indulged in idle talk, away from public support to count on personal relationships so that his people acted recklessly in violation of the law, and away from principle to count on petty tricks so that he himself got into trouble while his people were at a loss and the state in chaos.

“A wise monarch would do otherwise – he just firmly holds onto the major principle… while taking everything else easy, and he will see peace reign all over the land.” (《管子》任法第四十五)

The above indicates Guan Zhong’s view of the core moral qualities required of a monarch as being concerned for public interests only when making the law and taking the lead in abiding by the law.

VIII-3. Moral discipline for officials: Requirement for both integrity and ability

While the monarch made the law, the officials should execute the law. When a humane, fair and just law was ready, the effect of constitutional politics would depend on those who execute the law. Hence, moral discipline for officials became another key factor determining the fate of constitutionalism.

Guan Zhong insisted on appointing those noble and selfless in moral character and outstanding in ability as state officials for carrying out the law in administrative work:

“What needs to be concerned about is not that worthy and able men are not to be found but that they are not employed by a monarch; What needs to be worried about is not that the world is void of wealth but that no one is there to manage and distribute it. Therefore, those who know the change of seasons can be appointed as officials; those who are not self-seeking can be trusted with governing power; those who are aware of the seasons, good at managing wealth and capable of selecting officials can be crowned as the monarch. In contrast, those who are dull cannot keep up with the development of things; those who are stingy with wealth can find no one close to him; those who only listen to mean persons will always miss the worthy and capable. ” (《管子》牧民第一)

“The monarch needs to check about three aspects regarding the officials’ qualification:

“These are the three basic concerns for the head of the state in managing its officials.

“Therefore, in the management of a state, no high-ranking titles should be conferred on anybody who has not shown high moral qualifications at the royal court; No generous salaries be paid to anybody who has not made remarkable contributions to the state; No high positions be granted to anybody who has not won confidence from the people by their performance. Thus, not to confer noble titles to those with high moral integrity is negligence, while to do such to those without is an error. One would rather misjudge the virtuous than the wicked, because the former is less likely than the latter to resent so much as to be subversive.

“Therefore, if in a state those who do not show high moral qualifications at the royal court are conferred high social status, the virtuous officials will not get promoted; if those who have not made remarkable contributions to the state are paid high salaries, the diligent ones will not be encouraged; if those who have not won confidence from the people by their performance are granted high government positions, the able ones will not possibly give full play to their abilities.

“Only if all officials have been examined in all these three aspects, would they not dare to covet for high positions and handsome salaries they are not worthy of. If not, treacherous officials will get close to the sovereign, and those already close will grab all the power. Then, information about the real situations at lower levels will not be able to reach the monarch at the top, nor will government decrees to lower levels. And the right principle will be rejected while evil things keep happening.

“If the three aspects are well scrutinized, then no official can get close to the monarch as a favorite courtier and usurp the state power; no criminals under arrest will be seen on the roads; no common people at distances from government seats will suffer from unjust verdicts; no widows or widowers will be wrongly treated. This can be summarized as: ‘Penalties are reduced; administrative affairs simplified; and even the monarch does not need to summon the ministers to court for discussion.’ ” (《管子》立政第四)

For the above purpose, Guan Zhong further put forward four more specific criteria for distinguishing good from bad officials:

“First, do not grant state power to those who talks about but do not practice benevolence.

“Second, do not confer noble titles on those who do not yield their positions to the worthy and capable.

“Third, do not put those in command of troops who protect their criminal relatives from legal punishments.

“Fourth, do not entrust those with city management who neglect farming and land management but rashly levy taxes.

In order to select both worthy and able candidates for government positions, Guan Zhong Also instituted a three-step selection procedure (see VIII-6 and X-5 below in the next installment.)

VIII-4. Moral requirements for scholar-officials: Use power for the people while in office, and keep concerned about the state and people’s safety when not

Besides the three-step procedure for selecting officials, Qi also did a good job of cultivating scholar-officials’ virtue and ability in such a way:

“Teachers are provided for each Xiang (administrative unit – Trans.), so that potential scholars can get educated; then the latter are assigned official posts according to their ability, to be promoted on recommendation in a fixed number of years, thus progressing on the way towards moral perfection. Later, after being examined in their moral conduct and actual contributions and weighed for their ability, both with reference from public opinion, they may be entrusted with important government positions, thus fulfilling themselves as expected.” (Ibid.)

The series of measures taken by Qi for the high-standard cultivation of scholars in virtue and ability and selection from among them of outstanding ones for official posts started a tradition for the fostering of social elites with unique and noble scholar-gentleman personality. This tradition was later inherited and carried on by Confucianists, so that there has ever since been a genuine elite class in China, or scholars with gentleman personality, i.e., with the moral courage to face up to their social responsibility. Of them there have been two major sub-groups: men of letters who managed the state/country and man of prowess who defended it.

This can be explained by what Guan Zhong replied to Duke Huan as to what made a good official:

“I heard Xu Bo said that a principled official in ancient times, since he committed himself to serving the state, would never fawn upon the monarch’s courtiers. If the monarch knew about and selected him, he would accept a government post; if not, he would remain contented with a life out of office. If the state was in trouble, he would be concerned about its fate and do his best to help. Inheriting the moral tradition from his ancestors, he would distinguish the loyal from the treacherous and recommend the virtuous while making sure that the wicked could not have their way.

“He would be faithful when serving the monarch, mannerly when ordering about his underlings, warm-hearted to both superiors and subordinates just like brothers, devoted to his state and see to it that everybody high and low were playing their proper roles.

“He would be diligent in thinking at ordinary times, resourceful when talking, and effective when acting. When administering a state, he could make it prosperous and, when managing an army, make it a victor in wars and, at times of crisis and danger, he was always ready to sacrifice himself.

“Whether or not close by the monarch, he was assisting him all the time; he was loyal in social relationships and honest in handling affairs. He never failed to fulfill his duty while in office and always declined invitations to fancy eating and drinking. He never spoke ill of the monarch, nor of his views either. When the monarch was at fault, he never hesitated to speak his mind; when the monarch had something to worry about, he would take it upon himself to tackle it. This was a principled official in ancient times. ” (《管子》四称第三十三)

This kind of scholar-official was not only like what Mencius said: “If poor, they attended to their own virtue in solitude; if advanced to dignity, they made the whole kingdom virtuous as well.” (《孟子.尽心章句上》Translation by James Legge: Mencius, Chap. 25.) More than that, when holdingpower he used it for the people and, when out of office, he kept concerned about the safety and wellbeing of the state and its people.

VIII-5. Moral discipline in economic affairs: “Whatever benefit is against moral conscience should not be accepted”

Since Qi was first founded, it had developed a market economy and adopted a liberalist policy towards it. While people’s pursuit for profits might benefit the public as well as oneself in promoting a brisk market and economic growth, oftentimes they “forsook good for the sake of gold” and benefited themselves at the expense of others. Especially, the control and manipulation of the market by big capital and that of finance by financial capital used to result in the extreme disparity between the rich and the poor.

In order to restrain people from greediness and protect a healthy development of the market, Guan Zhong, besides instituting a series of laws, proposed a morality-based principle regarding economic interests and profit-making as guidance for a non-hegemonic market and for institutional design:

“In stipulating laws and regulations, the purpose should be to curb excessive desire; what is precious is to grasp the right time; and the yardstick should be impartiality. If these three conditions are met, what are stipulated will last long.

“Whatever is in violation of laws and regulations, even if profitable, should not be done; Whatever is against the norm, even if advantageous, should not be engaged in; whatever is against moral conscience, even if beneficial, should not be accepted.

“First follow the way of nature and then the will of the people. Do not initiate anything that harms public interests, nor follow any course not taken by nature. Then, what one says will not lose efficacy; what one is engaged in will not fail.” (《管子》）白心第三十八)

“Whatever is in violation… should not be accepted” – this was the principle regarding economic interests and profit-making for the market economy under Qi’s constitutionalism: All profit-making and pursuit for economic interests must conform to human moral conscience, social norm, and the laws and regulations of the state. Qi’s laws and regulations were the results of a system design guided by Guan Zhong’s non-hegemonic political-economic philosophy, whose core idea was “First follow the way of nature and then the will of the people”, that is, to comply with the way of nature, with human ethics, and with humanity.

The two factors of nature’s way and social ethics in Guan Zhong’s principle for profit-making and pursuit for economic interests are just what are lacking in modern Western constitutionalism, in Western economics and in Western liberalist market economy. They need to be added to a new economics for humanity, which was called for by Peter F. Drucker(1909-2005)on criticizing modern Western economics for its lack of moral spirit that it should have: “An economics based on productivity would probably become what many great economists have been pursuing, that is, a kind of ‘humanness’, a ‘moral philosophy’, a ‘spiritual science’ while also a ‘rigorous science’.” (A back translation from a Chinese version ofToward the Next Economics and Other Essays 1981, New York, Harper & Row – Trans.).

Unfortunately, “the next economics” he hoped for has not come out so far, and he had never known that such economic thoughts were already existing in China’s Spring and Autumn period over 2000 years ago. Qi’s constitutionalism and Guan Zhong’s political economy were already embodiments of what Drucker called for: “humanity”, “moral philosophy” and “spiritual science”. The sad thing about the present situation is: Western constitutional theorists and economistsare still not aware so far of Guan Zhong’s great theories on constitutionalism and on a humane market economy, and such is also the case with many Chinese scholars in these fields.