(Source: http://www.atimes.com/atimes/China/EG24Ad01.html)

Editor’s Note: This is a shortened text of Part 3 of the author’s 8-part series of articles under the general title of “THE ABDUCTION OF MODERNITY” The subheads of this text are ours.

China’s First Rule of Law Occurred 23 Centuries Ago

The rule of law has been touted frequently by Western scholars as a central aspect of modernity. According to that measure of periodization, since the rule of law was the basis of the first unification of China in the 2nd century BC, modernity occurred 23 centuries ago in China.

Researchers have pointed out that at the end of the 17th century, while the Chinese empire often appeared in English literature as a metaphor for "tyranny", such as in the works of Daniel Defoe, best known for his 1719 novel Robinson Crusoe, it was also at times praised for its legal code long established on ideals of order, morality, and good government, such as in the work of Lady Mary Chudleigh, to the more uniform perception of China's legal system at the turn of the century, when George Henry Mason published The Punishments of China (1801). Michel Foucault's analytical approach to history highlights the limitations of European efforts to comprehend China's moral, juridical and legal structures.

The promulgation of a new edition of law, known as the Tang Code of Perpetual Splendor (Tang Yonghui Lu), in the 10th lunar month in the fourth year of the reign of Perpetual Splendor (Yonghui) of the Tang Dynasty, in AD 653, was in reality just an update effort, based on the original Tang Code (Tang Lu), which in turn was based on the Sui Code (Sui Lu), which had initially been compiled 73 years earlier by the late founding Civil Emperor (Wendi) of the preceding Sui Dynasty and updated ever since by every succeeding sovereign. But the Tang Code of Perpetual Splendor is singled out by history, mostly because of its definitive comprehensiveness.

The original Tang Code was promulgated 29 years earlier, in 624, by the founding High Grand Emperor (Gaozu) of the Tang Dynasty. It would become in modern times the earliest fully preserved legal code in the history of Chinese law. It was endowed with a commentary, known as Tanglu Shuyi, incorporated in 653, the fourth year of the reign of Perpetual Splendor, as part of the Tang Code of Perpetual Splendor.

The Tang Code was based on the Code of Northern Zhou (Bei Zhou Lu, 557-581), promulgated 89 years earlier in 564, which was in turn based on the earlier, less comprehensive and less elaborate Code of Cao Wei (Cao Wei Lu, 220-265) and the Code of Western Jin (Xi Jin Lu, 265-317) promulgated almost four centuries earlier in 268.

Confucian Dismissal of the Rule of Law

Western perception on the alleged underdevelopment of law in Chinese civilization is based on both factual ignorance and cultural bias. Chinese dismissal of the rule of law is not a rejection of modernity, but a rejection of primitiveness. Confucian attitude places low reliance on law and punishment for maintaining social order. Evidence of this can be found in the Aspiration (Zhi) section of the 200-volume Old Book on Tang (Jiu Tang Shu), a magnum opus of Tang historiography. The history classic was compiled under official supervision in 945 during the Late Jin Dynasty (Hou Jin, 936-946) of the era of Five Generations (Wudai, 907-960), some three centuries after the actual events. A single chapter on Punishment and Law (Xingfa) places last after seven chapters on Rites (Liyi), after which come four chapters on Music (Yinyue), three chapters on Calendar (Li), two on Astronomy and Astrology (Tianwen), one on Physics (Wuheng), four on Geography (Dili), three on Hierarchy of Office (Zhiguan), one on Carriages and Costume (Yufu), two on Sutras and Books (Jingji), two on Commodities (Chihuo) and finally comes a single chapter Punishment and Law, in that order.

The Confucian Code of Rites (Liji) is expected to be the controlling document on civilized behavior, not law. In the Confucian world view, rule of law is applied only to those who have fallen beyond the bounds of civilized behavior. Civilized people are expected to observe proper rites. Only social outcasts are expected to have their actions controlled by law. Thus the rule of law is considered a state of barbaric primitiveness, prior to achieving the civilized state of voluntary observation of proper rites. What is legal is not necessarily moral or just.

Under the supervision of Tang Confucian minister Fang Xuanling, 500 sections of ancient laws were compiled into 12 volumes in the Tang Code, titled:
Vol 1: Term and Examples (Mingli)
Vol 2: Security and Forbiddance (Weijin)
Vol 3: Office and Hierarchy (Zhizhi)
Vol 4: Domestic Matters and Marriage (Huhun)
Vol 5: Stables and Storage (Jiuku)
Vol 6: Impeachment and Promotion (Shanxing)
Vol 7: Thievery and Robbery (Zeidao)
Vol 8: Contest and Litigation (Dousong)
Vol 9: Deceit and Falsehood (Zhawei)
Vol 10: Miscellaneous Regulation (Zalu)
Vol 11: Arrest and Escape (Buwang)
Vol 12: Judgment and Imprisonment (Duanyu)

The Tang Code lists five forms of corporal punishment:
1. Flogging (Chi)
2. Caning (Zhang)
3. Imprisonment (Tu)
4. Exile (Liu)
5. Death (Si)

Leniency is applied to Eight Considerations (Bayi):
1. Blood relation
2. Motive for the crime
3. Virtue of the culprit
4. Ability of the culprit
5. Past merits
6. Nobility status
7. Friendship
8. Diligent character

Criminals above age 90 and those under age seven received only suspended sentences. For others, sentences could be redeemed by cash payments. A death sentence was worth 120 catties of copper coins (1 catty = 1.33 pounds). Officials were entitled to discounts on sentences on private civil offenses: those of Fifth Ranks and above were entitled to a reduction of two years; those of ninth rank and above were entitled to one year; but for public crimes, an additional year was added to the sentence for all officials.

Exempt from leniency are 10 Categories of Wickedness (Shiwu): 1. Conspiratorial sedition (moufan) 2. Conspiratorial grand rebellion (moudani) 3. Conspiratorial insubordination (moupan) 4. Conspiratorial vicious rebelliousness (moueni) 5. Immorality (budao) 6. Disrespectfulness (bujing) 7. Deficiency in filial virtue (buxiao) 8. Antisocial behavior (bulu) 9. Unrighteousness and disloyalty (buyi) 10. Instigation of internal chaos (neiluan)

The Chinese term for "law" is fa-lu. The word fa means "method". The word lu means "standard". In other words, law is a methodical standard for behavior in society. A musical instrument with resonant tubes that form the basis of musical scales, the Chinese equivalent of the tuning fork, is also called lu. In law, the word lu implies a standard scale for measuring social behavior of civilized men.

Legalist Qin and Former Han Dynasties

The first comprehensive code of law in China had been compiled by the Origin Qin Emperor (Qin Shihuangdi, reigned 246-210 BC), unifier of China. Known as the Qin Code (Qin Lu), it was a political instrument as well as a legal one. It was the legislative manifestation of a Legalist political vision. It aimed at instituting uniform rules for prescribing appropriate social behavior in a newly unified social order. It sought to substitute fragmented traditional local practices, left from the ancient regime of privileged aristocratic lineages. It tried to dismantle Confucian exemptions accorded to special relationships based on social hierarchies and clan connections.

The pervasive growth of new institutions in the unifying Qin Dynasty (221-207 BC) was the result of objective needs of a rising civilization. Among these new institutions was a unified legal system of impartial rewards and punishments according to well-promulgated and clearly defined codes of prescribed behavior. The law was enforced through the practice of lianzuo (linked seats), a form of social control by imposing criminal liability on the perpetrator's clan members, associates and friends. Qin culture heralded the later emergence of a professional shidafu (literati-bureaucrat) based on meritocracy. It also introduced a uniform system of weights, measures and monetary instruments and it established standard trade practices for the smooth operation of a unified economic system for the whole empire. The effect of Qin Legalist governance on Chinese political culture pushed Chinese civilization a great step forward toward forging an unified nation and culture, but in the process lost much of the richness of its ancient, local traditions and rendered many details of its fragmented past incomprehensible to posterity.

In the first half of the Han Dynasty (206 BC-AD 220), the Han imperial government adopted the Legalist policies of the Qin Dynasty it had replaced. It systemically expanded its power over tribal guizu by wholesale adaptation of Legalist political structure from the brief (15 years) but consequential reign of the preceding Qin Dynasty.

Confucian Rejection of Legalist Equal Justice

Gradually, with persistent advice from Confucian ministers, in obsessive quest for dependable political loyalty to the Han dynastic house, Legalist policies of equal justice for all were abandoned in favor of Confucian tendencies of formalized exemptions from law, cemented with special relationships (guanxi) based on social positions and kinship. The Tang Code, promulgated in AD 624, institutionalized this Confucian trend by codifying it. It would lay the foundation for a hierarchal social structure that would generate a political culture that would resist the proposition that all men are created equal to mean similarity. In Confucian culture, civilized man is created as closely connected individuals to form building blocks of society. It is the universality of man that celebrates individualism, not the Western notion of alienation as individualism.

Elaborately varied degrees of punishment are accorded by the Tang Code to the same crime committed by persons of different social stations, just as Confucian rites ascribe varying lengths of mourning periods to the survivors of the deceased of various social ranks. According to Confucian logic, if the treatment for death, the most universal of fates, is not socially equal, why should it be for the treatment for crime? William Blake (1757-1827), born 23 centuries after Confucius (551-479 BC), would epitomize the problem of legal fairness in search for true justice, by his famous pronouncement: "One law for the lion and the ox is oppression." Confucians are not against the concept of equal justice for all; they merely have a sophisticated notion of the true meaning of justice.

In Chinese history, the entrenched political feudal order relies on the philosophical concepts of Confucianism (Ru Jia). The rising agricultural capitalistic order draws on the ideology of Legalism (Fa Jia). These two philosophical postures, Confucianism and Legalism, in turn construct alternative and opposing moral contexts, each providing rationalization for the ultimate triumph of its respective sponsoring social order.

The struggle between these two competing social orders has been going on, with alternating periods of triumph for each side, since the Legalist Qin Dynasty first united China in 221 BC, after 26 years of unification war. The effect of this struggle was still visible in the politics of contemporary China, particularly during the Great Proletariat Cultural Revolution of 1966-78, when the Gang of Four promoted Legalist concepts to attack the existing order, accusing it of being Confucian in philosophy and counterrevolutionary in ideology. To the extent that "left" and "right" convey meaningful images in modern political nomenclature, Taoism (Dao Jia) would be to the left of Confucianism as Legalism would be to the right.

Modern Legalists in China, such as the so-called Gang of Four, were the New Left, whose totalitarian zeal to promote social justice converged, in style if not in essence, with the New Right, or neo-conservatives of the West, in its reliance on authoritarian zeal to defend individualism. Thus the notion that modernity is a Western phenomenon is highly problematic.

The Emperor as Protector of Peasants against Aristocratic Abuse

The flowering of Chinese philosophy in the 5th century BC was not accidental. By that time, after the political disintegration of the ancient Xi Zhou Dynasty (Western Zhou, 1027-771 BC), Chinese society was at a crossroads in its historical development. Thus an eager market emerged for various rival philosophical underpinnings to rationalize a wide range of different, competing social systems. The likes of Confucius were crisscrossing the fragmented political landscape of petty independent kingdoms, seeking fame and fortune by hawking their moral precepts and political programs to ambitious and opportunistic monarchs.

Traditionally, members of the Chinese guizu (the aristocracy) were descendants of hero warriors who provided meritorious service to the founder of a dynasty. Relatives of huangdi (the emperor), provided they remained in political good graces, also became aristocrats by birthright, although technically they were members of huangzu (the imperial clan). The emperor lived in constant fear of this guizu class, more than he feared the peasants, for guizu members had the means and political ambition for successful coups. Peasant uprisings in Chinese history have been rare, only seven uprisings in 4,000 years of recorded history up to the modern time. Moreover, these uprisings have tended to aim at local abuse of power rather than at central authority. Aristocratic coups, on the other hand, have been countless and frequent.

In four millennia, Chinese history recorded 559 emperors. Approximately one-third of them suffered violent deaths from aristocratic plots, while none had been executed by rebelling peasants.

The political function of the emperor was to keep peace and order among contentious nobles and to protect peasants from aristocratic abuse. This was the basic rationale of government as sovereign. A sovereign, whether an emperor or a president, without the loyal support of peasants, euphemistically referred to as the Mandate of Heaven (Tianming), would soon find himself victim of a palace coup or aristocratic revolt. This is the socialist root of all governments. The neo-liberal claim of the proper role of government as ensuring a free market is a capitalist cooptation of government.

Confucianism as the Victim of its Own Success

The Code of Rites (Liji), the ritual compendium as defined by Confucius, circumscribed acceptable personal behavior for all in a hierarchical society. It established rules of appropriate socio-political conduct required in a feudal civilization. Unfortunately, ingrained conditioning by conservative Confucian teaching inevitably caused members of the aristocratic class to degenerate in time from truly superior stock into mediocre and decadent seekers of unearned privileges. Such degeneration was brought about by the nature of their privileged life and the false security derived from a Confucian superiority complex. Although the process might sometimes take centuries to take shape, some dynasties would crumble within decades through the unchecked excesses of their ruling classes.

Confucianism, by promoting unquestioning loyalty toward authority, encouraged the powerful to abuse their power, despite Confucianism's reliance on ritual morality as a mandate for power. Confucianism is therefore inescapably the victim of its own success, as Taoists are fond of pointing out.

Code of Rites as Governing Tool for a Sitting Ruler

Generally, those who feel they can achieve their political objectives without violence would support the Code of Rites. While those whose political objectives are beyond the reach of non-violent, moral persuasion would dismiss it as a tool of oppression. Often, those who attacked the Code of Rites during their rise to power would find it expedient to promote, after achieving power, the very code they belittled before, since they soon realized that the Code of Rites was the most effective governing tool for a sitting ruler.

To counter hostile tendencies toward feudal values and to ensure allegiance to the feudal system, keju (civil examinations), while providing equal opportunity to all talented, were designed to test candidates on their knowledge of a syllabus of Confucian doctrines contained in the Five Classics (Wujing). Confucian ethics were designed to buttress the terms of traditional social contract. They aimed to reduce potential for violent conflict between the arrived and the arriving. They aimed to channel the powerful energy of the arriving into a constructive force for social renewal. Confucian ethics aimed to forge in perpetuity a continuing non-violent dialectic eclecticism, to borrow a Hegelian term for the benefit of Western comprehension.

The violent overthrow of the government, a criminal offense in the United States, is a moral sin in Confucian ethics. It is therefore natural that budding revolutionaries should attack Confucian ethics as reactionary, and that those already in power should tirelessly promote Confucian ethics as the only proper code of behavior for a self-renewing, civilized socio-political order. In Chinese politics, Confucianism is based on a theory of rule by self-restraint. It advocates the sacredness of hierarchy and the virtue of loyalty. It is opposed by Legalism, which subscribes to a theory of rule by universal law and impartial enforcement. Again, the Western claim that the rule of law is a unique foundation of modernity peculiar to the West is historically unsubstantiated.

Cycles between Legalism and Confucianism

Legalism places importance on three aspects. The first is shi (authority), which is based on the legitimacy of the ruler and the doctrinal orthodoxy of his policies. The second is shu (skill) in manipulative exercise of power, and the third is fa (law), which, once publicly proclaimed, should govern universally without exceptions. These three aspects Legalists consider as three pillars of a well-governed society. If the rule of law is a characteristic of modernity, then modernity arrived in China in 3rd century BC.

According to Confucian political theory, the essential political function of all subjects is to serve the emperor, not personally, but as sovereign, who is the sole legitimate personification of the political order and sovereign of the political realm. Legalists argue that while all powers emanate by right from the Son of Heaven, the proper execution of these powers can take place only within an impartial system of law. While people should be taught their ritual responsibilities, they should at the same time be held responsible by law not only for each person's individual acts but also for one another's conducts, as an extensive form of social control within a good community. Therefore, punishment should be meted out to not only the culprit, but also to his relatives, friends, associates and neighbors, for negligence of their ritual duties in constraining the culprit. This is natural for a society in which the individual is inseparable from community.

Efficiency of government and equal justice for all are cardinal rules of good politics. Legalists believe that administration of the state should be entrusted to officials appointed according to merit, rather than to hereditary nobles or literati with irrelevant scholarship. Even granting validity to the extravagant Taoist claim that ideas, however radical, are inherently civilized and noble, Legalists insist that when ideas are transformed into unbridled action, terror, evil, vulgarity and destruction emerge. Freedom of thought must be balanced by rule of law to restrain the corruption of ideas by action.

Whereas being well versed in Confucianism bound the shidafu class culturally as faithful captives to the imperial system, such rigid mentality ironically also rendered its subscribers indifferent to objective problem-solving. Thus Confucianism, by its very nature, would ensure eventual breakdown of the established order, at which point Legalism would gain ascendancy for a period, to put in place new policies and laws that would be more responsive to objective conditions. But Confucians took comfort in the fact that, in time, the new establishment that Legalists put in charge would discover the utilitarian advantage of Confucianism to the ruling elite. And the cycle of conservative consolidation would start once again. Generally, periods of stability and steady decay would last longer than intervals of violent renewal through Legalist reform, so that Confucianism would become more ingrained after each cycle. Western capitalism is in essence a feudal system, supported by a legal system that legitimizes property rights and class distinction based on private capital ownership. In contemporary Chinese political nomenclature, the proletariat is defined not merely as workers, but the property-less class.

This perpetual, cyclical development proves to the Taoist mind that indeed "life goes in circles". It is an astute observation made by the ancient sage Laozi, father of Taoism, who lived during the 6th century BC and who was the alleged ancestor of the Tang imperial clan of 7th century AD.

The so-called Gang of Four promoted Legalist politics in China in the 1970s. They used Marxist orthodox doctrine, reinforced by the Maoist personality cult, as shi (influence), Communist party discipline as shu (skill) for exercising power, and dictatorial rule as fa (laws) to be obeyed with no exceptions allowed for tradition, ancient customs or special relationships and with little regard for human conditions. Legalists yearn for a perfectly administered state, even if the price is the unhappiness of its citizens. They seek an inviolable system of impartial justice, without extenuating allowances, even at the expense of the innocent. When a priori truth appears threatened by fidelity in logic, Confucians predictably always rely on faithful loyalty to tradition as a final argument.

The Search Goes On: The West Has Little to Contribute

The modern destruction of political feudalism produce administrative chaos and social instability in China until the founding of the People's Republic in 1949. But Confucianism still appeared alive and well as cultural feudalism, even under Communist rule. Almost a century of recurring cycles of modernization movements, either Nationalist or Marxist, did not manage even a slight dent in the all-controlling precepts of Confucianism in the Chinese mind. Worse, these movements often mistook Westernization as modernization, moving toward militant barbarism as the new civilization.

During the Great Proletariat Cultural Revolution of 1966, the debate between Confucianism and Legalism was resurrected as allegorical dialogue for contemporary political struggle. At the dawn of the 21st century, Confucianism remained alive and well under both governments on Chinese soil on both sides of the Taiwan Strait, regardless of political ideology. Modern China was still a society in search of an emperor figure and a country governed by feudal relationships, but devoid of a compatible political vehicle that could turn these tenacious, traditional social instincts toward constructive purposes, instead of allowing them to manifest themselves as practices of corruption. The Western notion of rule of law has little to contribute to that search.

General Douglas MacArthur presented post-World War II Japan, which has been seminally influenced by Chinese culture for 14 centuries, with the greatest gift a victor in war has ever presented the vanquished: the retention of its secularized emperor, despite the Japanese emperor's less-than-benign role in planning the war and in condoning war crimes. Thus MacArthur, in preserving a traditional cultural milieu in which democratic political processes could be adopted without the danger of a socio-cultural vacuum, laid the socio-political foundation for Japan as a postwar economic power. There is logic in observing that the aggressive expansion of Japan would not have occurred had the Meiji Restoration not adopted Western modernization as a path to power. It was Japan's aping of British imperialism that launched it toward its militarism that led to its role in World War II.

Of the three great revolutions in modern history - the French, the Chinese and the Russian - each overthrew feudal monarchial systems to introduce idealized Western democratic alternatives that would have difficulty holding the country together without periods of terror. The French and Russian Revolutions both made the fundamental and tragic error of revolutionary regicide and suffered decades of social and political dislocation as a result, with little if any socio-political benefit in return. In France, it would not even prevent eventual restoration imposed externally by foreign victors. The Chinese revolution in 1911 was not plagued by regicide, but it prematurely dismantled political feudalism before it had a chance to develop a workable alternative, plunging the country into decades of warlord rule.

Worse still, it left largely undisturbed a Confucian culture while it demolished its political vehicle. The result was that eight decades after the fall of the last dynastic house, the culture-bound nation would still be groping for an appropriate and workable political system, regardless of ideology. Mao Zedong understood this problem and tried to combat it by launching the Great Proletariat Cultural Revolution in 1966. But even after a decade of enormous social upheaval, tragic personal sufferings, fundamental economic dislocation and unparalleled diplomatic isolation, the Cultural Revolution would achieve little except serious damage to the nation's physical and socio-economic infrastructure, to the prestige of the Chinese Communist Party, not to mention the loss of popular support, and total bankruptcy of revolutionary zeal among even loyal party cadres.

It would be unrealistic to expect the revival of imperial monarchy in modern China. Once a political institution is overthrown, all the king's men cannot put it together again. Yet the modern political system in China, despite its revolutionary clothing and radical rhetoric, is still fundamentally feudal, both in the manner in which power is distributed and in its administrative structure. When it comes to succession politics, a process more orderly than the hereditary feudal tradition of primogeniture will have to be developed in China.

History has shown that the West can offer little to the non-Western world beyond rationalization of oppression and technologies of exploitation. If after four centuries of Western modernity the world is still beset with violence, hunger, exploitation and weapons of mass destruction on an unprecedented scale, it follows that its Mandate of Heaven is in jeopardy.

Henry C K Liu is chairman of the New York-based Liu Investment Group.

(Copyright 2003 Asia Times Online Co, Ltd.)