Ancient Chinese Way of Governing: By Law, by All, by Selves-Classical Chinese Politics--新法家

EDITOR’S NOTE: The currently on-going financial crisis that originated in the West and has wreaked havoc on the whole world has revealed systemic inadequacies in Western economic and political thought and practice. In contrast, China has emerged soonest from the influence of the crisis the least scathed, in spite of her own serious problems mainly due to blindly copying from the West in many ways, especially in the economic field. What has saved her from sinking deeper and longer in the crisis? As today’s China is the result of two things combined -- thousands of years of national tradition and one hundred years of learning from the West, we would naturally ask: Can we find anything in Chinese tradition that might have helped and may help more in dealing with the challenges facing China and the world today? This article might provide some clue as to the answer to the above question. We hope more people will think about it and join the discussion.

1. Though there is the idea of “natural law” or “natural order” underlying some of the Western theories of “rule of law”, their understanding of “natural order” varies widely between “all men are equal before God” and “war of everyone with everyone else” – both are philosophically atomistic and not true to reality, while traditional Chinese understanding of the Way of Nature is totally different (see other New Legalist articles). Therefore, to translate the Chinese idea as “rule of law” would be confusing and misleading.

2. Semantically, “rule/governing by law” should not necessarily suggest the use of law as an instrument for “rule of man”, because the preposition “by” can also be understood as introducing an agent of the action (“rule” or “govern” in this case), not necessarily an instrument. The distinction in academic meaning between “rule of law” and “rule by law” has been established by usage, i.e., totally arbitrary, not semantically logical.

b) Human law does not have the ultimate authority – it can only have historically relative authority: its authority should come from its conformity with the objective way of nature that is independent of man’s will, or the Dao. Conformity or not should be tested through (the successes or failures of) all mankind’s total historical practice (subjective-objective, or mind-matter, unity). Only the Dao, that shows itself in all the changes in human and non-human world, is the absolute, ultimate authority.

If we notice that America adopted from ancient China the principle of appointing officials on their merits to partly replace their original spoils system in 1882, i.e., two millennia after the Chinese first established the Social Merit System, we cannot but think that the Eurocentric perspective needs to be changed;

If we notice thatMatteo Ricci, the 16^th-17^th century Italian Jesuit priest who had stayed in China for 28 years, once wrote “the King himself makes no final decision in important matters of state without consulting the magistrates or considering their advice...”(The Diary of Matthew Ricci, fromMark A. Kishlansky, Sources of World History, Vol. 1, New York, Harper Collins, 1995, p. 269-273), we cannot but think that the Eurocentric perspective needs to be changed;

If we notice that Francois Quesnay（1694~1774）, French economist of the Physiocratic school and known as the founder of political economy, once wrote “The Constitution of the government of China is based upon Natural Law in such an irrefutable and so emphatic a manner that it deters the sovereign from doing evil and assures him in his legitimate administration supreme power in doing good…” (Despotism in China, 1767; from Michael O.Billington, The European ‘Enlightemnet’ & The Middle Kingdom,), we cannot but think that the Eurocentric perspective needs to be changed;

If we notice that Voltaire, the 18th century French Enlightenment philosopher-writer, once wrote “We should not be fanatical about the merits of the Chinese: the constitution of their empire is in fact the best in the world …” (from his Philosophical Dictionary of 1764), we cannot but think that the Eurocentric perspective needs to be changed.

When we change our perspective, we find that the ancient Chinese way of government was not personal, autocratic or despotic; it was governing by law, by all, by selves, a way of government rooted in a more profound base, politically and philosophically, than American President Lincoln’s “of the people, by the people, for the people”. Traditional Chinese thought and practice regarding the way of government has not only laid a solid cultural basis for China’s future political development, but also provides some important source of reference for mankind to build a new world community.

In ancient Chinese political life, the law was regarded as the direct embodiment in human society of the Way of the universe (Dao). Yellow Emperor’s Four Canons, the classic of the Huang-Lao (Daoist-Legalist) school and for Western Han politics, states at the very beginning: “From the Dao comes the law. The law is the yardstick by which to judge whatever is achieved and not achieved to see if it is in the right or in the wrong. Those who have grasped the Dao develop the law without violating the Dao. Once the law is formed, they do not dare to ignore it. Using it as the yardstick, they can understand and judge everything in the world without being confused.”

Han Fei regarded “the Dao as the constant standard and the law as the basis of government” because “the true path [the Dao] and the law are absolutely reliable, [whereas] wisdom and ability are liable to errors.” (The Complete Works Of Han Fei Tzǔ (《韩非子》), Chap XIX, On Pretensions and Heresies: A Memorial. Trans. by W. K. Liao -- same below.)

Emphasis is also placed on the rule of law in The Book Of Lord Shang (《商君书》): “[A wise ruler] does not hearken to words which are not in accordance with the law; he does not exalt actions which are not in accordance with the law; he does not perform deeds which are not in accordance with the law. But he hearkens to words which are in accordance with the law; he exalts actions which are in accordance with the law; he performs deeds which are in accordance with the law. Thus the state will enjoy order, the land will be wide, the army will be strong, and the ruler will be honored. This is the climax of good government”. (Para. 23, Prince and Minister. Trans. by J. J.-L. Duyvendak -- same below.)

Guanzi, an ancient master of political economy, also pointed out that the law must be adhered to all the time, because it guarantees order and survival and avoids chaos and destruction, and that, when all people, the sovereign and the ministers, officials and civilians, abide by the law, then great order is realized. (Guanzi, Chap. 45, 《管子·任法第四十五》)

(1) Our contemporaries artificially pit law against power, taking for granted that ancient Chinese monarchs, since they had the supreme power, must have done everything as they personally wished, totally devoid of conscience and respect for the law, just like the medieval European feudal lords. But this is not true to fact. Even in today’s world, as we can see, governing power is still in the hands of a few persons, but they need to conform to the law as all others. And this is also what the ancient Chinese Legalists pushed for. For instances:

The Book of Lord Shang says: “Orderly government is brought about in a state by three things. The first is law, the second good faith, and the third [power]. Law is exercised in common by the prince and his ministers. Good faith is established in common by the prince and his ministers. [The power is controlled by the prince alone]. If a ruler of men fails to [control] it, there is danger; if prince and ministers neglect the law and act according to their own self-interest, disorder is the inevitable result. Therefore if law is established, rights and duties are made clear, and self-interest does not harm the law, then there is orderly government. If the [power is controlled] by the prince alone, there is prestige. If the people have faith in his rewards, then their activities will achieve results, and if they have faith in his penalties, then wickedness will have no starting point. Only an intelligent ruler [uses power responsibly] and values good faith, and will not, for the sake of self-interest, harm the law.” (Para. 14, [The Regulation of Power”], words in square brackets are my revisions of J. J.-L. Duyvendak’s translation. – Lu.)

Guanzi says: “The law is instituted jointly by the prince and his ministers; power is controlled by the prince alone. If the prince fails to control, there will be danger; if the ministers fail their duties, there will be chaos. If punishments for crimes are measured out by officials, order will be established; If power is controlled by the prince, he will have prestige; if the people have confidence in the law, they will hold the state dear Therefore, a wise ruler would be prudent in executing the law and exercising his power, so that everybody, superior or inferior, plays his own part properly.” (《管子·七臣七主第五十二》)

(2) Since Confucianism became the dominating ideology in Song dynasty, one-sided emphasis on the importance of individual officials’ moral integrity to state politics has weakened the rule of law. This is the second factor that has further distorted people’s perception of traditional Chinese government. But actually, one cannot say that the Chinese society was no longer based on the rule of law. This assumption is not supported by Western scholars’ first-hand observations and comments based on their first-hand reports:

Matteo Ricci observed that China’s political and economic life of late Ming dynasty was still ruled by law, as he wrote in his diary: The emperor did not have the power to promote any officials unless proposed by his ministers; also, any gifts from the emperor to his relatives or to anybody else cannot be reimbursed from the state treasury. He also wrote: “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.” (China in the Sixteenth Century)

François Quesay, the 18th century leader of the French Physiocrats and called by Marx as the inaugurator of Western political economy, concluded from reports made by Western missionaries that Chinese monarchs were not like Western European despotic rulers but were statesmen exercising power as stipulated by law. He said Chinese institutions were established on wise and unambiguous laws and the emperor, while enforcing such laws, also prudently follow these laws himself. (Despotism in China)

As a matter of fact, China remained for a considerably long period of time a society under a kind of rule of law that was different from the Western tradition. The Chinese legal tradition did not originate in any divine law, or covenant with God, as that in the Christian world, but in the awareness of the Way of Nature as expressed in the above-mentioned classical statement: “From the Dao comes the law”.

Actually, the idea of governing by a law that is in alignment with the natural Way did not only determine the form of traditional Chinese government, but has also left deep impact on modern Western politico-economic system through the work of the French Physiocrats. G.F. Hudson, a British scholar, once said about François Quesay: He thinks that an enlightened ruler is one who recognizes the principles of the natural order and has laws formulated in line with such principles; that, once the king has legislation reformed, he should “let the law rule and do nothing himself”. (.Europe & China: a survey of their relations from the earliest times to 1800, from《东方有圣人——中国文化影响欧洲思想家》，线装书局，2008年7月，第37页,Zheng Hangen, The Eastern Sages: Influence of Chinese Culture on European Thinkers.)

Here Hudson touches the idea of “wu wei”. “Wu Wei government” (无为而治) is just the core conception of Chinese Daoist-Legalist (Huang-Lao) political thought, though the then Europeans had the misunderstanding that all Chinese culture had originated with Confucius. Stephen R. L. Clark, a contemporary British philosopher, has rightly pointed out that Quesay’s idea had come from Dao De Jing, though the French translation of Laozi’s idea as “laissez-faire” is not accurate but misleading. Quesay learned from reports about China that she was a highly organized country with little intervention from the government into its economic activities. Quesay was also well aware, however, that all this was possible just because the whole population, including the monarch and all officials, were ruled by the law which was formulated after the Dao, or the Way of Nature.

It is understandable that Westerners made the mistake of attributing everything Chinese to Confucianism as China had already been much “Confucianized” when they first got to know about her. This mistake, however, has impeded not only Westerners but also Chinese themselves to obtain true wisdom from the rich cultural resources of the remote past. As a matter of fact, Classical Chinese political and economic thought had originated, for the most part, with the Legalist school, while Confucianism limited itself mainly to education and morality issues for quite a long time.

Besides the above, also because of the difference in cultural background, there have been differences in some legal principles, too. For examples, traditional Chinese law paid due attention to joint responsibilities while Western law sticks to the self-responsibility principle; and Chinese law applied heavier punishments to light crimes while Western law emphasizes the punishment-suiting-crime principle. But the differences between China and the West in legal thought and practice are no reasons for denying traditional China’s rule of law and copying everything from the West.

In ancient China, the royal house only held limited power, while co-governance by worthy persons was the typical feature of classical Chinese government. In contrast to the spoils system characteristic of modern Western democracy, which is manipulated by special interests through money power, selecting officials for their political allegiance, Chinese co-governance was based on the Social Merit System, selecting officials for their military or civil service merits, i.e., for their virtue and capability.

Prof. Kaiyuan Li, historian of Shujitsu University, Japan, found that the imperial power of the Han dynasty was limited and not absolute, because the group of Liu Bang believed consistently in “co-governing, or sharing, all-under-heaven with all-under-heaven” – a conclusion based on the following historical fact: In 202 b.c., when the war between Liu Bang and Xiang Yu reached a critical moment, Zhang Liang, a follower of the Huang-Lao school, advised Liu that victory of the war against Xiang would not be possible unless he should promise to share the power for governing all-under-heaven with other vassals and make an alliance with them. Liu took his advice and defeated Xiang. When summing up the experience of victory and also stated in Liu Bang’s imperial edict before death, both his ministers and himself had the same conviction that sharing power and benefits with all-under-heaven was the foundation for the empire. (The Establishment of the Han Empire and the Group of Liu Bang - Studies on the Military Meritocracy, Sanlian Publications, Inc., 2000.)

Where did the idea of co-governance come from? Prof. Li found later that It had originated with the Huang-Lao school, which was adopted as the guiding thought system for Western Han. Specifically, it was in the book Six Strategies (《六韬·文韬·文师篇》, 《六韬·武韬·发启篇》) that he came across the famous saying that “All-under-heaven does not belong to one person; it belongs to all-under-heaven.” It was this idea of “sharing all-under-heaven with all-under-heaven” that helped Liu Bang and his group develop a system of government different from Emperor Qin Shi Huang’s absolute imperial autocracy, that is, a new type of government with limited imperial power.

According to Records of the Grand Historian (《史记·留侯世家》), Zhang Liang, after obtaining a copy of the Six Strategies from Huang Shigong, a Daoist hermit,, had tried to persuade several others to adopt the ideas in the book but always failed before he met Liu Bang. Here we see again that a great idea played a decisive role at a critical moment of history.

The Lüshi Chunqiu ("Mister Lü’s Spring and Autumn [Annals]", 《吕氏春秋·孟春纪第一·贵公》):All-under-heaven does not belong to one person; it belongs to all-under-heaven. The moderation between Yin and Yang does not favor any one kind of being; Timely rain from heaven does not favor any one species; A noble king does not favor any one person.

Shenzi (《慎子·威德》): In ancient times, an emperor was enthroned and invested with authority but not to benefit just one person. As the saying goes, justice cannot prevail under heaven without authority. The purpose for justice to prevail is to benefit all-under-heaven; so, it is for the good of all-under-heaven, not for that of the emperor himself, to have him enthroned.

The Book of Lord Shang (《商君书·修权第十四》): “If public and private interests are clearly distinguished, then even small-minded men do not hate men of worth, nor do worthless men envy those of merit. For when Yao and Shun established their rule over the empire, they did not keep the benefits of the empire for themselves, but it was for the sake of the empire that they established their rule. In making the imperial succession dependent on worth and ability, they did not intend to alienate fathers and sons from one another, and to conciliate distant people, but they did it because they had a true insight into the ways of order and disorder.” (Trans. J. J.-L. Duyvendak.)

Guanzi (《管子·版法解第六十六》): All people tend to look for advantage and evade disadvantage. Therefore, those who share benefits with all-under-heaven win support from all-under-heaven; those who arrogate all-under-heaven to themselves would be plotted against by all-under-heaven. When plotted against by all-under-heaven, one is sure to fall from the top; when supported by all-under-heaven, one is safe high up. So the saying goes: “Safety in a high position lies in sharing benefits with all others.”

Guanzi (《管子·霸言第二十三》): One who wins support from all-under-heaven is a sage-king; one who is supported by half the population only rules by force. Therefore, a sage-king always pays respect to all the worthy people under heaven and put them in responsible positions, and spreads wealth equally among all people under heaven as willing subjects. Hence, even though enjoying high respect as the Son of Heaven and having access to all wealth under heaven, the emperor is still not considered as greedy, because he is executing a noblest plan -- to use all wealth under heaven to benefit all people under heaven…

This idea of co-governance, as Prof. Li has rightly pointed out, has influenced the two millennia of Chinese history since then. Take the Song dynasty for instance. According to Prof. Minsheng Chen of Henan University and Prof. Qifan Zhang of Jinan University, China, there was both theory and practice for the emperor to share power with scholar-bureaucrats for “co-governing all-under-heaven” through the mutually restricting and supporting trilateral relationship between the emperor, the prime minister and the censoring officer. (程民生，《论宋代士大夫政治对皇权的限制》，《河南大学学报》，1999年3期; 张其凡，《“皇帝与士大夫共治天下”试析——北宋政治架构探微》，《暨南学报》，2001年6期.)

Matthew Ricci also observed that the emperor of Ming dynasty did not have absolute power but had to take advice from his ministers even against his own will. For example, the Wanli Emperor meant to replace his crown prince to please his favorite concubine but had to yield to his ministers’ opposition. (The Diary of Matthew Ricci)

“All-under-heaven does not belong to one person; it belongs to all-under-heaven.” This simple but noble idea has been a guiding principle in Chinese politics for thousands of years. Today, with the globalization of all human activities, “all-under-heaven” does not only refer to the continental East Asia – it should embrace the whole world. “All-under-heaven is for all-under-heaven” (天下为公) – this principle from traditional China is much better suited to the world than the national interests-oriented Western political tradition.

“Governing by selves” as an important aspect of classical Chinese political life is totally different from the idea of “self-rule” in Western political discourse -- it did not mean to divide up sovereignty but signifies the self-organization of the society on each of its various levels based on a dynamic balance under the rule of law. This was called by ancient Chinese sage-philosophers as “wu wei government” (无为而治), just as Guanzi pointed out: A wise king “would institute law for self governance and establish etiquette for self-discipline” (《管子·法法第十六》).

Wu wei government was advocated by all major Chinese schools of thought. Confucius once said: "May not Shun be instanced as having governed efficiently without exertion? What did he do? He did nothing but gravely and reverently occupy his royal seat." (《论语·卫灵公篇第十五》, Trans. by James Legge.) This belief in wu wei, however, was the core principle of Daoist and Legalist political thought, a guiding principle for human life on all levels from personal cultivation through social management.

Wu wei, or “governing by selves”is closely related to “governing by law”. Yang Xiong, a Western Han man of letters, wrote: In old times, when Shun and Yu inherited Yao’s office and carried on his tradition, law was effective and etiquette observed so that they had nothing to worry about, seeing that all people under heaven were prosperous – this is wu wei. But after Jie and Zhou succeeded to the throne, law became lax and etiquette no longer observed and they sat on the throne cold and indifferent, turning a blind eye to people dying everywhere under heaven – Is this wu wei?

Laozi talked about people being able to become “transformed of themselves”, ”become correct of themselves”, ”become rich of themselves”, ”attain to the primitive simplicity of themselves” if only there is rule of law while the ruler himself “manifest[s] no ambition” but “keeping still” (Dao De Jing, 56, Trans. by J. J.-L. Duyvendak. Boldface is mine – Lu. Same below.). He said: “The Tao in its regular course does nothing (for the sake of doing it), and so there is nothing which it does not do. If princes and kings were able to maintain it, all things would of themselves be transformed by them.” (Dao De Jing, 37.) According to him, the best government shows itself in the existence of a good social order under heaven without people being aware of the existence of the government but taking the good order for granted: “In the highest antiquity, (the people) did not know that there were (their rulers). In the next age they loved them and praised them. In the next they feared them; in the next they despised them. Thus it was that when faith (in the Tao) was deficient (in the rulers) a want of faith in them ensued (in the people). How irresolute did those (earliest rulers) appear, showing (by their reticence) the importance which they set upon their words! Their work was done and their undertakings successful, while the people all said, ’We are as we are, of ourselves!’” (Dao De Jing, 17.)

As Laozi viewed it, the above way of governing should result in such an ideal society: “small states with small populations” with no need for the use of huge appliances, carriages, boats, armors, where people would not risk their lives to move out but are satisfied with coarse food, plain clothes, crude shelters, and a simple way of life, never bothering a neighboring state till death, from where the voices of fowls and dogs can be heard. (Dao De Jing, 80.) This is not an idyllic ideal of the Tao Yuanming type, as many commentators have mistakenly interpreted, but is Laozi’s political ideal of a Dao- and law-abiding and self-governed society. This interpretation is supported by Records of the Grand Historian (《史记·货殖列传第六十九》) and by Shou Fa Shou Lin Shi San Pian inscribed on Yinqueshan bamboo strips excavated from Han tombs in 1972 (银雀山汉简《守法守令十三篇·王法》).

Laozi’s ideas were adopted by Western Han political elites, who took Huang-Lao system of thought as their guiding principles and brought about the historically-known great era of prosperity under the Emperors Wen and Jing. Huang-Lao thought, however, is far from just “keeping still and doing nothing”, so to speak, -- it actually presupposes the governments on all levels doing everything by themselves according to the law.(Xing Han, Confucianism and Legalism Integrated: Qin and Han Political Culture, 韩星，《儒法——秦汉政治文化论》，中国社会科学出版社，2004年6月，第145页)

The Huang-Lao school also took over the Legalists’ policy of heavy punishment for light crimes in order to create conditions for stopping punishment. (Ibid, and Book of Han, 《汉书·刑法志》). This Legalist idea of using heavy punishments to eliminate future need for punishments was clearly understood by a Qing scholar called Chen Lan Fu (陈兰甫, seeSelected Historiography Theses by Liu Shi Pei,《刘师培史学论著选集》，上海古籍出版社，2006年12月，第115页).

Yin Wen Zi pointed out that the purpose of punishment and reward is to guide people to do things by themselves according to the law, or to govern by themselves, that is, to do what is good for the public and also good for themselves at the same time but not specifically for the personal good of the emperor (《尹文子·大道下》).

Shang Yang’s followers even believed that, the higher the degree of self-government of a society, the less need for the ruler to intervene, the more powerful the state. The Book of Lord Shang says: “Those who administer a country deem it important that inferiors should give judgments; therefore, when ten hamlets are the unit for making judgments, there will be weakness; whereas when five hamlets are the unit for making judgments, there will be strength. If it is the family that gives judgments, there will be abundance. Therefore, of such a country it is said: He who creates order in one day will attain supremacy. If it is the officials who give judgments, the order will not be sufficient; therefore of such a country it is said: He who creates order in a night will merely be strong. But if it is the prince who gives judgments, there will be disorder; therefore of such a country it is said: He who procrastinates in creating order will be dismembered. Therefore in a country that has the true way, order does not depend on the prince, and the people do not merely follow the officials.” (Para. 5, Discussion about the People, Trans. J. J.-L Duyvendak.) Similar discussions can also be found in the same book, Para. 4, The Elimination of Strength and Para, 13, Making Orders Strict.

The self-governed Chinese people in ancient times enjoyed great equality and freedom. Voltaire, the 18^th century French philosopher, noticed that Chinese emperors had no way to abuse his power and harm his subjects whom they did not know personally and were protected by the law. (Essay on the Manners of Nations, 《风俗论》下册，商务印书馆，2000年，第461页.) According to Mu Qian (钱穆), a Chinese scholar, the reason why the Chinese could enjoy equality and freedom in history is because of the long-lasting governmental policy of regulating capital. He wrote: “Traditional Chinese government used to pay much attention to the regulation of capital. With feudal lords toppled and capital not monopolized, the society became a flat world, so to speak. Speaking of equality, it existed in the highest degree among the Chinese; Speaking of freedom, it existed in the highest degree also among the Chinese.” (《中国历代政治得失》，生活·读书·新知三联书店，2001年6月，第172页。)

In Chinese history, except for the Yuan and Qing dynasties, the government could hardly be considered as rule of man, as autocratic and despotic. Even the Yuan and Qing governments, as pointed out by Mr. Qian, can be called “tyranny of a tribe”, but not “tyranny of the emperor” (Ibid. P. 145.)

The Chinese political system had its own historical and consistent laws of evolution. Nobody should, just because of the now outdated imperial system, deny the merits of classical Chinese way of governing -- governing by law, by all and by selves. As everybody knows, the British in the West and the Japanese in the East, for instances, are still maintaining the special status of a royal family today. For the same reason, one cannot say that, if the top leader of a country is not chosen through a general election, that government must be despotic. The reality of politics being controlled and manipulated by the propertied class has opened the eyes of many people to the inadequacies of the Western form of democracy. Just look at the notoriously unjust Iraq War and Afghan War, which have been imposed on other nations by the Western “democracies”; they were actually motivated more by the special interests of Western big oil and military-industrial complexes than by the implausible conviction that “democracy grows out of gun barrels”.

We do not totally reject the idea of democracy from the West, but in view of the lesson we have learned from the past century that mechanically copying and transplanting from the West has created so many disasters, what we need to do first is to correctly understand and evaluate our millennia-long national political tradition, not to entirely cast it away as totally negative, and, then, with that as a starting point and as called for by today’s new conditions, to find out what we can learn from the West while learning from our own past. In this sense, the present article is just a beginning.