A Legalist Market Solution for Contemporary China?

    Sun Bin, a very well-informed and intelligent blog on contemporary Chinese political economy, has a post today that suggests that Legalism, an ancient school of thought that emphasizes strict application of clearly defined rules, could provide a market-based answer to contemporary China's legal and economic problems.  The key problem, as Sun Bin sees it, is not that there are not enough laws in China, but the laws that do exist are not consistently implemented.  He has a good point here, and Legalism is certainly known for emphasizing consistent application of the law.  But I think there are two problems with his argument.

[UPDATE: Allan at A Touch of Ancients, enters the discussion with more on Shang Yang and Legalism.]

    First, we should be careful to characterize Legalism as a market-based philosophy.  While there may be ways it is consistent with markets (i.e. providing a clear legal framework for economic transactions), we should keep in mind that it was Legalists who advocated state monopolies in salt and iron.  The prime directive for Legalists is the preservation of the ruler's power.  If markets serve that end, then markets are tolerable and fine; but if state power has to be used to regulate markets for the purposes of maintaining the ruler's position, then markets will be regulated.  Legalists are far from economic liberals.

   Secondly, Sun Bin mentions that Confucianism does not allow for the punishment of officials:

 One of the reasons Chinese are reluctant to punish the bureaucrats is the general tolerance of mistake for the learned and authority, perhaps thinking these people are rare treasures(!). This can be traced to the Confucius teaching of 'the non-punishability of the authority (刑不上大夫-礼记), and of course conveniently defended by those in power, especially those who do not deserve to be in power. This MUST be changed.

    I don't think this is quite fair to Confucius and, especially, Mencius.  Perhaps Confucianism, over the centuries degenerated into a defense of authority for authority's sake.  But in the original texts themselves, and again, especially Mencius, we get a clear picture that bad rulers should be held accountable for their actions, and even be removed from office:

If the sovereign is making grave mistakes, they admonish him.  If they have to admonish him over and over, and he still refuses to listen - they replace him. (193).

   

This is the historical legacy that needs to be carried forward in the People's Republic.

Comments

[sun bin]

Hi Sam,

Thanks for the discussions and the nice introduction.

I probably didn't write it with good clarity, my apologies :) So this was what I tried to say. I did not try to pretend Legalists as market believers. I was actually trying to single out Shang Yang from the rest of the 'legalists', and tried to argue that the later legalists probably have mis-understood Shang's spirit and believes. in other words, calling Shang a legalist is a misnomer.

Yes, as indicated in your link, Monopoly of Salt and Iron was a legalist concept. But it was not part of Shang's ideas. It was first introduced by Han Wu Di around 100BC (200 years after Shang), as proposed by a later legalist Suan Hong Yang, Shang Yang has no idea of that. he actually only tried to impose tax on the salt trading as a revenue source for the state
http://en.wikipedia.org/wiki/Sea_salt
http://en.wikipedia.org/wiki/Emperor_Wu_of_Han_China

I am not an expert of Shang Yang, so he might also have some other anti-market ideas. But I think its was his deep insight into economic principles (and human nature) that made his reform successful.

Yes, I agree with your second point. the tragedy of China is that Li-ji 礼记 (which is not wirtten by confucius himself) was more "conveniently" used by the intereste4d parties than Mencius. And Confuciusm' emphasis on authority was not helping the Mencius school regarding this split issue.

[Sam]

Sun Bin,
I like your work to differentiate the particular ideas of Shang Yang from a more abstract category of "Legalist". You certainly know Shang Yang better than I, and I do not doubt that there may be elements of market-oriented, or proto-market, thinking in his work. It was just the category of "Legalism" that made me question things. And my understanding of Legalism is drawn mostly from Han Fei Tzu. I look forward to learning more about Shang Yang from you.
And, regarding, market-like thinking in ancient Chinese philosophy, Mencius has a quite sophiticated notion of the division of labor that I have been meaning to blog about for some time....

[Allan Lian]

Sam,
A link to my entry on "A balanced view on the Legalists".

Interpretation and understanding of ancients proves difficult let alone putting their ideas to good use in this modern day and age. Knowing only 1 or 2 about the ancients, one ventures forth to provide perhaps a balanced view on the Legalists of yore.

Of the better known Legalists to the West, Kungsun Yang of Uei who later became Lord Shang of Qin takes precedence. As a youth he was interested in the study of law and served as a clan officer under the prime minister of Wei. Yang later went to Qin and obtained an audience with the duke through the offices of his favorite eunuch. Employed by the duke after a few days of discussions, Lord Shang was later accredited to be the first of the Legalists who implemented rules of law to govern a state. These laws were reforms of established traditions and provided for meritocracy. Yang ensured that the laws apply equally to the people and the court officials, no matter how senior.

“Therefore when the crown prince broke the law, and since the heir apparent could not be punished, his guardian Lord Chien was punished in his stead while his tutor Lord Chia had his face tattooed. From the next day on all the people of Qin obeyed the newly implemented laws.
Later, fathers, sons and brothers were forbidden to live in one house, small villages and towns were grouped together as counties, with magistrates and vice-magistrates over them. The state was ......"