Francesco Sisci on Law in Ancient China

Last week, in the Asia Times, Francesco Sisci, a journalist who has of late been delving into ancient history and philosophy to good effect, has a long-ish article, "China no longer a law unto itself."  Basically, he shows how Legalism left a lasting legacy on Chinese thinking about law and politics and war. 

I would take exception with one point he makes, however, about Confucianism:

As the Lun Yu (the ancient collections of the sayings attributed to Confucius) told us, the aristocracy, the junzi, was to be managed through li, whereas for common people, xing was more appropriate.

I wish he had give a more specific reference here.  There may be a passage or two that suggests this kind of differential treatment.  But there are also passages that push against punishment and law more generally:

The Master said: "If you use government to show them the Way and punishment to keep them true, the people will grow evasive and lose all remorse.  But if you use Integrity to show them the Way and Ritual to keep them true, they'll cultivate remorse and always see deeply into things." (2.3)

Of course, Mencius tells that "The wisdom of Yao and Shun is that they did not treat all things alike.." (13.46), so there is some grounding for different legal treatment based on different social, and I would add moral, status.  But we have to be careful.  Commoners can be morally good and that goodness should be recognized in adjudication.  Remember: Shun was a common farmer when Yao found him.  Bottom line: we should not ascribe an overly rigid status differentiation when we are discussing Confucian notions of law.

But this is a small portion of Sisci's article.  Most valuable is his observation that Legalist understanding of domestic law and politics are closely bound up with its view of war:

In short, we see that the fate of the theories of law and war were linked and mutually reinforced each other in pre-Qin times. We find the same ideas in the text Guanjun, attributed to Shang Guan, prime minister of the state of Qin in the 3rd century BC. In the text, the application of new laws, fa, aims to strengthen the state to deal with wars - this time clearly offensive, against smaller states (gong) or with states of equal size (zhan) that are thus more threatening for one's survival.

It is important to keep this in mind when we see some folks in China today encouraging the revival of Legalism.

Sisci ends with an interesting point: in order to succeed economically, a project which is now central to the state's political legitimacy, China must change its traditional attitude toward the law, moving away from a state-centric understanding to a market-centric one:

It was this Western tradition that influenced China, with its fully fledged affirmation coming in the 1990s. This swept aside centuries of tradition in which power had been concentrated on the basis of a strategic vision for the state. But looking at the experiences of the past 150 years, it is clear to China that the power and the wealth of the state can only be achieved if the interests of the market and the merchants are well protected. The state in a sense puts itself at the service of the market. It regulates the market, to protect it, but not to destroy it. Indeed, the destruction of merchants and the market would be the seed that would grow to ruin the state.

This has practical implications. China will have to import from the West not only laws, but a whole - and very different - Western legal tradition that needs to be adapted and somehow reconciled with Chinese traditions. This is a huge challenge China is just beginning to face, even as it is already at the forefront of the international arena.

Read the whole Sisci article!

Comments

[justsomeguy]

Confucius did say that, because Zhu Xi interpreted Confucius to have said that and even in a post-Imperial world, Zhu Xi's interpretation is still the orthodox interpretation.

Now, from the standpoint of his essay, that position is seriously problematic since Zhu Xi would have been influenced by the syncretic tendency of Chinese thought, especially where Confucianism and Legalism are concerned.

Unless, that is, Sisci is coming out and making a radical statement with regards to how he views transmission within the Confucian tradition. And, errr, based on what I've read from him in this article and others I don't think he is doing that.

[SteveGW]

My guess would be that he picked that up from Fung Yu-Lan's book, who quotes the Li Chi as saying "The li do not go down to the common people; the hsing do not go up to the ministers."