Who is “Distorting Chinese History and Chinese Philosophy”: 
The New Legalists or Prof. Sam Crane

Part II: LEGALIST QIN AND CHINESE FORM OF GOVERNMENT

EDITOR’S NOTE: The author says “The purpose of this debate is not to decide who wins or loses but to draw the right lessons from history.” And to draw the right lessons from history, participants in this debate from different cultural backgrounds need to guard against ethnocentic sentiments and get rid of consciously or unconsciously adopted ethnocentric perspectives, such as xenophobia or Eurocentrism. We understand that Prof. Crane is friendly to the Chinese people and Chinese culture just as the New Legalists regard the majority of the world’s peoples as their friends and are ready to learn from Western culture. Therefore, we are sure that this debate will help “elicit new light to illuminate the future of mankind” as a reader of our writing named Liang hopes.

Updated Brief history of the debate so far:
(Abbr.:
C1=Prof. Crane’ 1st article, etc.
L1=New Legalists’ 1st article, etc.
YZ=By Yuzhong Zhai, general editor of The New Legalist website (Chinese and English)
SL=By Sherwin Lu, editor of this English section of the website
to=in response to)

C1: The New Legalists: Distorting Chinese History and Chinese Philosophy for Nationalist Ends
C2: More on the New Legalists: The Philosophical Problems
C3: Once More Into the Breach: The New Legalists and the Tao Te Ching

L1:  An Apology for New Legalism in Reply to Prof. Sam Crane (YZ, to C1)

C4:  New Legalists, Again (to L1)

L2:  Who is “Distorting Chinese History and Chinese Philosophy”: The New Legalists or Prof. Sam Crane, Part I: THE CHINESE NATION AND NATIONALISM (SL, to C1-C4)

C5: The New Legalists respond, again (to L2)

L3: The following (SL, to C1-C4)

THE TEXT

 Prof. Crane depicts Qin dynasty as “an ugly history” and accuses the New Legalists of “trying to prettify” it. Is this allegation justifiable? No. It is Qin with its Legalist practice, not its indiscriminate critic, who is justifiable.

 
JUSTIFICATION FOR THE UNIFICATION OF CHINA UNDER LEGALIST QIN

What was Achieved by Qin

 Qin was originally the name of one of the seven Warring States before the unification of China. Qin’s unifying China and its governing practice after that were the continuation of its policies in governing the state (a dukedom) before. Therefore, to make a sound judgment of Qin’s rule over the whole Chinese empire, one needs to look at how Qin had previously governed the feudal state.
 Starting from 359 B.C., Qin implemented a reform directed by the famous Legalist Shang Yang with the support of Duke Xiao. Among the major measures were:

 1. Abolished the old land system (Jingtian, 井田) based on aristocratic ownership and endorsed private land ownership.

 2. Abolished the hereditary system of aristocratic privileges and established the social merit system, basing peerage entitlements and official appointments on merits in farming, military and administrative services.

 3. Abolished the system of enfeoffment and established the system of prefectures and counties.

 4. Standardized measurements to follow up on the above anti-feudal measures.

 5. To thwart sabotage activities and subversive conspiracies by the resistant old aristocracy, established an all-society mutual supervision system, which was based on equality before the law between commoners and aristocrats in crime reporting, legal prosecution and due punishment.

Winning the support of the majority of people, the reform successfully made Qin a morally and physically powerful state in the following 140 years leading to the unification of China.

And after that, the reformatory measures of the Qin state were extended throughout the empire, making it possible politically, economically, and culturally to accomplish so many huge projects for the improvement of water control and agricultural irrigation, national transportation and communication, and national defense against nomadic tribes encroaching on the borders. All this combined to lay the foundation for the succeeding hundreds of years long golden era spanning the Qin and Han dynasties, the foundation for the succeeding 2000 years long history of China as a great unified nation with a vast expanse of territory, a large population and a high degree of prosperity unsurpassed in the world till the 18th century, and the foundation for carrying on one of the oldest but the only one civilization still surviving today. All this was made possible in that great era related with the name of Qin.  Without Qin there would not have been China, just as, etymologically, without the name “Chin” (the old spelling for Qin) for that state and dynasty there would not have been the name “China” and “Chinese” for today’s nation-state with its unique tradition of civilization. Therefore, that great Qin era will shine over China’s and the world’s history forever without the need for anybody “prettifying” it.

Who should be Held Responsible for Cost and Destruction

 In spite of the above, however, Prof. Crane sees nothing but “brutality”, “human cost”, and “cultural destruction” in the Legalist practice of Qin. He chooses, for what ends we do not know for sure, to blame the party pursuing greater social justice for cost and destruction incurred by stubborn resistances from the unjust and reactionary forces.

 It is common sense that any cost and destruction caused by unjust endeavors are inexcusable, such as the modern colonization of other continents by Europeans, the colonists’ ownership and trade of Negro slaves, the slaughtering of North American Indians and destruction of their age long homes, the Opium War, the Eight Power Allied Force’s human costing and culturally destructive atrocities in China, the Viet Nam War, the Iraq War, and the global-scale continuation of all this -- the present-day U.S. military and non-military hegemonic presence all over the globe.

 But, when people are pursuing just causes, causes for the benefit of the majority against privileges of a minority, most of the cost and destruction are often induced by the resistance from the reactionary privileged minority. This has happened in all great revolutions or social changes of a revolutionary nature such as the French Revolution, the American War of Independence, the American Civil War, etc. This is also the case with the Chinese Revolution in modern times and Qin Legalist reform and unification of China in ancient times. Had such revolutions or reforms not been carried out, the majority of people would have suffered much more pains and deaths and for a much longer time.

In any case, revolutions and reforms or not, in every stage of human history, it is the handful of economically and politically privileged people, i.e., slave owners, serf owners, monopoly capitalists, colonialists and Imperialists old and new, hegemonists, etc. and their political and ideological agents, who should take the blame for most of the cost and destruction whether as consequences of their relentless oppression and exploitation of the majority or as consequences of their stubborn resistance against revolutions or reforms. Anybody who shifts the blame for such cost and destruction from the reactionary side onto the revolutionary side is, wittingly or unwittingly, risking the condemnation by the majority of mankind and of all posterity. I doubt, for instance, Prof. Crane would have the guts to accuse the “founding fathers” of the United States for the cost and destruction during the War of Independence or accuse President Lincoln for the cost and destruction during the American Civil War. Why, then, a different standard for a great reform in ancient China? Is this not ”nationalist”?

 Besides the above basic cause for human cost and suffering at all times, there might be other factors involved accounting for extra cost and destruction in times of radical social changes. There have been countless such cases throughout world history, not limited to ancient China, but here we can illustrate the point by citing the palace coup with its serious consequences that happened toward the end of Qin dynasty.

 On the death of Qin Shi Huang (the First Emperor), Zhao Gao  (one of the highest-ranking officials who had been promoted and trusted by the First Emperor for his mastery of the law), by falsifying the First Emperor’s will and installing a puppet Second Emperor, usurped the state power, first to take personal revenge on a law official for having attemped to punish him for his crime and then to cover up all the conspiracy. He indulged the puppet emperor in luxury and sensuality, imposed much heavier taxes and labor and military services on the population, indiscriminately killed innumerous innocent people to suppress popular discontent, all this in the name of executing the law but actually distorting and betraying the Legalist policies implemented under the First Emperor. He also killed his collaborators as well as many opponent officials, forced the puppet Second Emperor to commit suicide, and was finally killed by the Third Emperor, who later surrendered to the first rebel leader to enter the capital, thus paving the way for the succeeding Han dynasty to restore and carry on the political practice of Legalist Qin. (汉承秦制).

 From this historical fact we can discern two factors leading to the setback:

 (1) Alien elements involved in a just cause, that is, people with personal ambition or other selfish motives who have sneaked into the ranks of reformers or have betrayed one’s own original intention for justice. Such things may happen in every revolution or social reform, some times even leading to the restoration of the old pre-revolution/reform social order. There are plenty of such instances readily citable from history, both in China and in the West, about which there is no need to go into more details. The point to make here is: This factor is, in its very nature, the same as the basic cause for social cost and destruction, i.e., a minority of people pursuing and defending their privileges and unjust gains at the expense of the majority of a population. And it is unfair and unjust for anybody, especially for a scholar, to blame the revolutionaries or reformers for the cost and destruction imposed by such alien elements in their ranks. 

 (2) Inadequacy in the cognition of revolutionaries or reformers due to the limitation by historical conditions. In the above instance, Zhao Gao took advantage of the loophole in the legal system: The social merit system and the all society mutual supervision system, though bringing about greater justice as compared with other political practices of the same historical age in China or in the West, were not, however, perfect enough to ensure that the selection of the top ruler be also based on his merits (worthiness and capability) and the highest-ranking officials also placed under effective supervision by all officials and common people below them. But limitations and loopholes have existed in all political theories and governmental and legal systems, East or West, ancient or modern, including Western democracy (see below), only in different forms. And they cannot be mended until human collective wisdom reaches a new height.

Therefore, it is unfair and unjust for anybody, especially for a scholar, to take a part (the loophole in the Qin Legalist system) for the whole (a system with greater justice and effectiveness) and deny the great contribution of Qin Legalist reform to the development of Chinese civilization, just as Prof. Crane would not, this author is sure, deny the contribution to the American nation made by the founding fathers just because some of them were once black slave owners and/or colonial army officers slaughtering American Indians. Why, then, a different standard for a great reform in ancient China? Is this not ”nationalist”?
 

CHINESE FORM OF GOVERNMENT VS. WESTERN DEMOCRACY

 Prof. Crane might not agree with the author’s statement made above that Qin Legalist practice brought about greater justice as compared with other political practices of the same historical age in China or in the West – he may say that, at the time when Qin unified China under a monarchic government, there was already existing the Roman Republic on the other side of Eurasia based on the principles of a separation of powers and checks and balances, with organized free citizens electing some government officials and balancing the power of aristocracy, thus embodying greater justice than a monarchic government with absolute power. This author does not deny that there is some merit in the republican democratic form of government, which should be assimilated into the government of today’s China and world. But at the same time we should not be blind to the other side of the story: While democratic republicanism in the Western form has its merit and the traditional Chinese form of government its problems, the former still has its limitations and the latter its superiority.

Western democracy

 First about Western democracy. The separation of powers with mutual checks and balances would be a good and effective mechanism for bringing about social justice and long-lasting peace and prosperity if two basic conditions (see below) are satisfied; but unfortunately, this has not been the case throughout the history of the development of Western democracy from the time of ancient Greek city-states till the present time, a time of on-going “globalization”.

I. Exclusion or Not: Principle vs. Reality

In principle, all interest groups affected by the operation of a government should have their equal share in the governmental power and, more than that, should have equally sufficient resources for both translating their interests and aspirations through organized researches into sound political views and policy opinions and putting their views and opinions across to the public. This is the first basic condition for an effective democracy.

But in reality, take ancient Rome first for instance, all the slaves and peoples in the areas conquered through wars, as the major sources of slaves, in North Africa, Iberia, Greece, France, South-Western Europe/Balkans and West Asia, i.e., the majority of the total population whose fate were decided by the government in Rome,  were excluded from sharing the power of that government. Without this majority in the picture, how much justice was left in that democracy?

And the situation with contemporary Western democracy is not essentially different. The only difference is in the means of conquest and control as part of that system, which is more extensive ( “globalized”), more omnifarious (see below), more brutal, and yet more subtle. While military force was almost the only means for the Romans, the Western powers today are using, besides military force, also the economic power of monopoly capital and the hypocritical ideology serving its selfish interests only, both latter are ultimately and brazen-facedly backed by the former.  To illustrate this point, we will look separately into, to use a Wallersteinian set of terms, the ”core” and the “periphery” areas of the Roman Republic/Empire and the Monopoly-Capitalistic World Empire today.

In the core areas/countries of Western democracy, the governmental power are actually shared only between different blocs of the most privileged at the top of the social hierarchy, people like the the fictional “big-endians” and ”little-endians”, two political parties of Lilliputians in Jonathan Swift’s Gulliver’s Travels, who share the same pleasure of enjoying eating soft-boiled eggs and are different only in the way to crack them open, i.e., whether from the little end or from the big end. Their counterparts in real life were, in the Roman case, the slave-owners and, in the present-day West, are monopoly capitalists. They did not or do not only monopolize most of the natural and human resources for social production but also most of the resouces for research and publicity, for shaping and swaying public opinion regarding important events, policy issues, elections, and everything. The majority of non-privileged people, i.e., the middle/professional- and lower/laboring-class “free citizens”, that is, the majority of the core population, did not or do not own slaves or other means of production but lived or are living from hand to mouth and, so, had or have no resources either to form their own sound opinions or to sway public opinion but to be swayed by the “-Endians” Big or Small and those behind them. In the present day, although almost all the citizens in the Western countries have the right to vote as if they can really share the governmental power, actually a large percentage of the electorate have been disillusioned and are indifferent non-voting on-lookers while the rest are but blind followers of either “-Endians”, the latter and those behind them being the leading actors or string-pullers in and real co-beneficiaries from the political show. So, the democracy practiced in the already limited area of the core is still more limited in its effect in terms of bringing about social justice, though somewhat successful in terms of hoodwinking the ordinary people both in the core and in the periphery.

The periphery areas might be the outer provinces or other conquered areas in the case of ancient Rome, or countries or regions under the core nation’s military or/and economic or/and political control as in the contemporary “globalized” world. In the case of Rome, the slaves, though living at the core, and people in the periphery were not citizens at all; they were denied any power over their own fate. In the latter case, people in many African, Latin American and Asian countries which make up the majoprity of the world’s population, have no say in such economic instituions as the IMF and the World Bank, which affect their livelihood but are controlled by the capitalist “democracies”; and their voices in the UN have no binding power at all over the unilateral actions of the superpower U.S.A. With the majority of the world’s peoples as “free” slaves of Western monopoly capital out of the picture, how much justice is left in Western democracy?

II. Lack of Integration of Diverse Interests: the Self-Defeating Gene in Western Democracy

The recognition of differences or even conflicts in their interests and aspirations between different social groups should not imply that people are entitled to take into consideration only their own self-interests when making political decisions, but the principle of conscientiouly balancing and integrating one’s own interests with those of others and of the whole community (local, national, and global) be followed, because, in any community small or large, all different groups also share a great deal of common interests. This relates to the second basic condition for an effective democracy.

But a balance and integration of diverse interests has never been consciously advocated and promoted as an ethical principle to guide the individual “political animals” in the Western tradition. On the contrary, even the religious commandment “Love thy neighbor” has never been supposed to reach beyond the limited circle of the “chosen people” out to the world of “pagans”; and the “maximization of self-interests” has been touted as an infallible law guiding social-economic-political relationships. The jungle law of “war of everyone against everyone”, “the strong preying upon the weak”, “survival of the fittest”, or “everyone for himself and the devil takes the hindmost” has been taken as the ultimate reality of the human society. Competition and rivalry between individuals, businesses, interest groups, and nation-states is of primary concern while co-operation, “team work” and unity only second, i.e., subject to the need of competition and rivalry with “outsiders”, because in that perspective there are always new “outside” rivals appearing on the ever-expanding horizon. Therefore, the existence of the periphery is the lifeline for order and peace at the core. Once domination over the periphery is threatened, order and peace at the core would also be in danger, because the top handful of privileged gangs at the core would try to compensate for the loss of gains they would have made from the periphery by grabbing more from the less advantaged majority at the core (e.g. cutting all payments and benefits the working people deserve). When social conflicts at the core come to a head, threatening the established socio-politico-economic order, fascist or similar extremist maniacs would discard the “democratic” mask and openly resort to naked violence and despotism. This is not a groundless assumption, but was once witnessed in ancient Roman history.

Not incidentally, the 5th century B.C. marked the beginning of two trends developing simultaneously in the history of Rome: going Republican (democratic) while expanding its domination around the Mediterranean Sea. This is the evidence positively showing that its democracy at the core depended for its life on the undemocratic practice of military conquests of and domination over a much larger periphery area. Then, starting from the 2nd century B.C., people in the periphery rose against Rome in one after another uprisings (the three Servile Wars -- slave revolts -- in Cicily, the third one also called the War of Spartacus, and the Social War, also called the Italian War),  and the antagonisms with the periphery aggravated class conflicts between the patricians and plebeians and other classes in Rome (the core), which led to the civil war between Marius and his protegé Sulla, and culminated in the latter’s dictatorship of 81–79 BC. And after more strife and wars involving both the periphery and the core, the Roman Republic finally metamorphosed into an Empire in the first century B.C., casting away the mask of democracy. This shows from the negative side that domination over and exploitation of a much larger periphery area is the lifeline for stability and democracy, even though limited, at the core. Without the former, the latter can easily collapse.

 In a word, a democracy which fails to include all interest groups or integrate all diverse interests can neither bring about justice nor last long.

Traditional Chinese Form of Government

 The dynamic balance and integration of diverse interests of all social classes (peasants, cratsmen, merchants, scholar-officials) has been a goal in traditional Chinese political economy and in much of the governmental practice. This goal was to be realized in a large degree by the rule of law and constant adjustments of social relationships by the central authority.

It is true that traditional Chinese government was monarchic in form, and yet the monarch was theoretically supposed to serve as an agent (Son of Heaven, 天子) for Heaven’s way (the Dao). According to the Huang-Lao (Daoist-Legalist) school of thought, the law for governing the society should always follow the Dao and have binding power over everybody including the monarch. So, the king or the emperor did not have absolute power as those monarchs in middle-ages Europe, or as Prof. Crane alleges; their power was restricted by the law, and balanced and checked by the ministers, scholar-officials, and other social institutions. And this theory was actually carried out by not a few wise kings and emperors, usually the founders and earlier successors of a new dynasty, who tended to restore or adopt Daoist-Legalist policies rejected by the corrupted monarchs, usually the later generations, and those pedant Confuianist scholar-officials of the preceeding dynasty.

It is imposible to go into details of the whole Chinese history here, but what we have discussed above about the Legalist Qin reform, its merits and inadequacies as well, is sufficient to show that it is not doing history justice for Prof. Crane to make or imply a sweeping statement that all traditional Chinese monarchical governments were autocratic and ruthless. 

Here we just cite some quotes from or about a few well-known European scholars’s comments on traditional Chinese form of government, comments based on long years of personal experiences and observations or on accounts given by such witnesses, serving as a sort of conclusion as to who is distorting Chinese history and Chinese philosophy:

“We should not be fanatical about the merits of the Chinese: the constitution of their empire is in fact the best in the world, … the only one in which the governor of a province is punished when he fails to win the acclamation of the people upon leaving office; the only one that has instituted prizes for virtue, while everywhere else the laws are restricted to punishing crime; the only one that has made its conquerors adopt its laws, while we are still subject to the customs of the Burgundians, the Franks, and the Goths, who subjugated us.” 

        –  Voltaire, the 18th century French Enlightenment philosopher-writer, from his Philosophical Dictionary of 1764, (from the website for Center for History and New Media, George Mason University)

 “Though we have already stated that the Chinese form of government is monarchical, it must be evident from what has been said, and it will be made clearer by what is to come, that it is to some extent an aristocracy. Although all legal statutes inaugurated by magistrates must be confirmed by the King in writing on the written petition presented to him, the King himself makes no final decision in important matters of state without consulting the magistrates or considering their advice.... 

“Tax returns, impost, and other tribute, which undoubtedly exceed a hundred and fifty million a year, as is commonly said, do not go into the Imperial Exchequer, nor can the king dispose of this income as he pleases. The silver, which is the common currency, is placed in the public treasuries, and the returns paid in rice are placed in the warehouses belonging to the government. The generous allowance made for the support of the royal family and their relatives, for the palace eunuchs and the royal household, is drawn from the national treasury. In keeping with the regal splendor and dignity of the crown, these annuities are large, but each individual account is determined and regulated by law.

“To begin with, it seems to be quite remarkable when we stop to consider it, that in a kingdom of almost limitless expanse and innumerable population and abounding in copious supplies of every description, though they have a well-equipped army and navy that could easily conquer the neighboring nations, neither the King nor his people ever think of waging a war of aggression They are quite content with what they have and are not ambitious of conquest. In this respect they are much different from the people of Europe, who are frequently discontent with their own governments and covetous of what others enjoy. While the nations of the West seem to be entirely consumed with the idea of supreme domination, they cannot even preserve what their ancestors have bequeathed them, as the Chinese have done through a period of some thousand of years....

“Another remarkable fact and quite worthy of note as marking a difference from the West, is that the entire kingdom is administered by the Order of the Learned, commonly known as The Philosophers. The responsibility for the orderly management of the entire realm is wholly and completely committed to their charge and care. The army, both officers and soldiers, hold them in high respect and show them the promptest obedience and deference, and not infrequently the military are disciplined by them as a schoolboy might be punished by his master. Policies of war are formulated and military  questions are decided by the Philosophers only, and their advice and counsel has more weight with the King than that of the military leaders. In fact very few of these and only on rare occasions, are admitted to war consultations. Hence it follows that those who aspire to be cultured frown upon war and would prefer the lowest rank in the philosophical order to the highest in the military, realizing that the Philosophers far excel military leaders in the good will and the respect of the people and in opportunities of acquiring wealth.”

         -- Matteo Ricci, 16th-17th century Italian Jesuit priest, born in 1552, came to China in 1582, traveled widely all over the country, settled in Beijing the capital in 1598 till his death in 1610; from The Diary of Matthew Ricci, in Matthew Ricci, China in the Sixteenth Century, trans Louis Gallagher, (New York: Random House, 1942, 1970), as excerpted in Mark A. Kishlansky, Sources of World History, Vol. 1 (New York: Harper Collins, 1995), p. 269-273 (from Matteo Ricci: On Chinese Government)

 "… François Quesay, [the 18th century] leader of the philosophical school called the Physiocrats. His primary interest was in the economy, and specifically agriculture, and the model he chose was China. His main work, Le despotisme de la Chine (1767; Despotism in China), shows that he regarded that country as an example of despotism. However, it was an enlightened despotism, with the emperor governing according to natural laws both he and all his subjects must obey.”

       -- Science Encyclopedia

 WHAT HISTORY TEACHES

 The purpose of this debate is not to decide who wins or loses but to draw the right lessons from history. One of the important issues facing China and also the world today is about the right form of government. From the above discussion, we can see that the metaphysical-moral principle underlying the Chinese political traditon is sound and the Daoist-Legalist political practices were constructive on the whole for the realization of this principle, though some important improvement is needed to avoid the repeated cycles of dynastic changes between golden ages of peace and prosperity under enlightened centralized authority and those of corrupted despotism triggering bloody rebelion or revolution. Here the modern idea of democracy as a form of procedural justice applies. But we have also seen from the above that the Western version of democracy is not thoroughgoing, as it has always been based on the economic, political, and even military domination of a privileged minority over the underprivileged majority both at the core and at the periphery. If we base political democracy on economic equality between all relevant interest groups and thus make it possible to extend the actual application of the idea of democracy from the limited circle of that privileged few further downward to the relationship between just capital and labor and upward to that between all nation-states, then we can bring to full play what is still applicable in traditional Chinese political tradition so as to gradually realize the underlying moral principle of social justice. Social justice can be realized only through shared responsibility of all the worthy and capable representing the integrated interests of all instead of alternately running the show by top plutocrats. This is what we have learned from history, Chinese and Western as a whole. All this is, of course, still open to discussion.