Why Don't We Call China a "Legalist Society"?

I am catching up on my work here (the forty papers that have been sitting on my desk are now graded and returned to students!); so, I can get back to some of the ideas that were running through my head during my short time in China last month.

I did several presentations there on the question of Confucianism and soft power.  As I have mentioned before, I do not think that Confucianism will figure prominently as an element of China's soft power in the coming years.  Part of my reasoning that leads to this conclusion is that China is not now a "Confucian society."  That is, predominant social and cultural and economic and political dynamics are not true to certain Confucian principles (and I take "Confucianism" to be a rigorous moral practice).  Needless to say, this is a debatable assertion (though I continue to stand by it) and I encountered a variety of view points in China.  But I want to turn to another, complementary, strand of thought here today: the historical relationship of Confucianism and Legalism.

When we think through that relationship what we find is that Confucianism has, since the Han dynasty, been fused with Legalism, yet the resulting set of political and social principles and practices has generally been referred to as "Confucianism."  This fusion marks both a historical failure of Confucianism as well as a historical success (more on that below).  But what is curious is why we (and by "we" I mean both Western and Chinese historians and academics) tend not to talk about the Legalist side of the relationship.  Rather, we too easily invoke "Confucianism" as a summarizing symbol for "Chinese tradition."  But in doing that we are obscuring some important, and I would argue fundamentally un-Confucian, aspects of Chinese tradition and its contemporary legacies.  So, let's think it through, because when we do I believe we should more seriously consider China as a "Legalist society."

The Historical Failures of Political Confucianism

Confucianism has never been able to stand on its own as a set of foundational principles for political rule. 

That may seem like a crazy thing to say, since Confucianism was an element in the state ideology that informed Chinese statecraft for centuries.  But the key point here is "stand on its own."  Confucianism's historical success came only when it was combined with Legalism, a pairing, though brilliant in some ways, which would be anathema to the early purveyors of both philosophies.  It is safe to say that Han Fei Tzu hated Confucians, and that Confucius and Mencius were skeptical of overly rigid and impersonal notions of law.  (Yes, Xunzi is the key bridging text here, but that is not the strand of Confucianism that was canonized...)

Confucius himself failed in his own time to have the kind of political impact he sought.  Much the same can be said of Mencius.  The entire Confucian project failed in the face of overwhelming Qin power.  Brutal Qin Legalism buried Confucianism.  The Han, cognizant of the Legalist extremism that contributed to Qin's early demise, wisely brought Confucianism back, but only in the context of continuing much of the Qin Legal code.  That fusion proved historically very powerful.  But it also represented a fundamental compromise of Confucian political sensibilities.  Instead of a nuanced and contextualized understanding of duty, one in which a figure like Shun could (as recounted by Mencius) come to see that filiality could require disobedience of one's parents, we get a more strictly systematized and institutionalized practice of law.  Instead of positive incentives and a nurturing sensibility, we get harsh punishments. Instead of asking "how can one govern by killing?," we get horrible forms of the death penalty.

The Legalist-Confucian combination can thus be seen as an appropriation of Confucian ideals by power-holders who are quite willing to ignore the moral demands of the doctrine and settle, instead, for an emphasis on authority and hierarchy.   From the time of the Han dynasty this amalgamation was known as Yangru, Yinfa - 阳儒阴法 - which could be translated as Confucianism as the bright yang outside, and Legalism as the dark yin inside.  Indeed, over the years this formulation has be alternatively stated , without the explicit yin-yang allusion, as rubiao, fali (Confucianism on the surface, Legalism within) and wairu, neifa (Confucianism on the outside, Legalism on the inside).

In other words, everyone who thinks, and has in the past thought, seriously about the actual principles of statecraft in China knows that Legalism is very much an integral element in the ruling ideology (indeed, we might see it as playing the dominant role from "within," while Confucianism is simply the happy not-very-deep surface appearance), but everyone seems to want to refer to China as a "Confucian society," or of a "Confucian bureaucracy."

Paradoxically, what appears to have been Confucianism's historical success - i.e. its combination with Legalism paves the way for it to play a role in shaping Chinese politics and society - actually contributes to yet another historical failure.  The potent pairing of Legalism and Confucianism meets a fatal challenge when modernizing Western imperialism arrives on the scene.   And what gets blamed for China's inability to respond effectively to the demands of modernization?  Confucianism!  The May 4th critique focuses on Confucian philosophy as a source of Chinese backwardness and incapacity to resist imperialism. 

This is, to my mind, unfair.  An equally reasonable argument would be: the power of the Legalist state, the deeply entrenched bureaucracy and the relatively centralized political power that Legalists loved, is more responsible for China's inflexibility in the face of imperialist onslaught.  Make a quick historical comparison with Japan.  Neo-Confucianism was quite prevalent among the elite of Tokugawa society and politics.  But the decentralized, feudalistic political system (yes, I know, some refer to it as a kind of centralized feudalism, but it was certainly more decentralized than imperial China) would appear weak to Chinese Legalists and it proved fragile in the face of imperialism, crumbling when challenged from within by Meiji restorers.  In contrast to Japan's relatively rapid modernizing transformation after 1868, it took decades and decades (by one rendering, 1842-1911) for the old imperial Chinese bureaucracy to finally fall.  And it was the bureaucracy that provided a political base for those conservaties who resisted modernizing change.

Thus, it was the institutionalization of Legalism that hindered Chinese modernization, but Confucianism takes the historical blame.  Perhaps some of that blame is deserved: Confucians had made a pact with the devil when they embraced, in practical terms at least, Legalism.  It is at least a sort of guilt by association.

And that is not the last historical failing of Confucianism.   Let's face it, the twentieth century was not at all friendly to Confucianism.  War, family separation, Great Leap Forward, Cultural Revolution: the tumult and violence and trauma of the twentieth century deeply compromised the material and societal foundations of a meaningful Confucian moral practice.  Yes, Confucianism is reviving in China today, but it is not at all clear how far and how deep the old ideas can reach into the new, and continually changing, China.

China as a Legalist Society

So, let's say all of the above is true, or at least reasonably plausible (and I imagine historian friends will be at the ready with a thoroughgoing critique), what does that mean for how we think about Chinese society and politics generally.

When we say that China is a "Confucian society" we will often point to closer family relationships as a key indicator.  Family obligations just seem to demand more of an individual, in terms of time and attention, than is the case, say, in the US.  And we will then invoke the Confucian ideals of caring for elders and parents to suggest a historical cultural continuity in Chinese society: Confucian morals demanded care of social and family relationships, Chinese people dutifully followed those Confucian principles, and thus China has been a Confucian society historically and continues to be one today.  

Now, there may be some truth in that outlook.  But why do we insist on ignoring the historical fact of Legalist political and administrative power and its societal and cultural ramifications?  For instance, why have Chinese sons obeyed Chinese fathers?  Is it because they have internalized the moral message and goodness of Confucianism?  Or is it because they lived, before the twentieth century, within a legal system that facilitated parental corporal punishment of disobedient children, even to the extent of treating leniently fathers who might kill wayward sons?  That is to say, obedience was something that was imposed through external threats of violence and punishment, not something that was cultivated from within through ethical consideration.  OK, I know, Legalist punishment and Confucian suasion cannot really be separated one from the other because they existed together historically.  But that is just my point. Legalist coercion was the facilitator of Confucian morality.  China may have produced obedient children without Confucianism, simply through the exigencies of Legalism.  Han Fei Tzu argued that the opposite was not the case: obedience could not be secured through Confucian morality alone.

Long story short: obedience of children to parents cannot be explained by Confucianism alone, because Confucianism alone did not produce it historically.  Legalism was at least as important as Confucianism in this regard.  So, why do we generalize that China is a "Confucian society" and not a "Legalist society"?

Similarly, in the realm of politics, there is nothing inherent in Confucianism to make it anti-democratic.  Yes, historically, it was used to justify authoritarianism.  But that was determined by its fusion with, and political dependence on, Legalism, which puts forth a robust theory of political power and authoritarianism.  Yet when we talk about the possibilities for Chinese democracy, we will hear some analysts invoke Confucianism as an obstacle.  China was not a democracy, and, by implication, cannot now be a democracy, they will say, because of its Confucian political authority.  But what about Legalism?  That, to my mind, is at least as influential in limiting Chinese democratic possibilities.  Legalism does not tolerate any separation of powers or power sharing.  It is focused on the ruler maintaining his position.  It is the most cynical political realism. And it is clearly anti-democratic.  Why don't we refer to that Chinese tradition when we discuss the historical experience of democracy in China?

I could go on, but you get the idea.  There are a variety of ways that Legalism has fundamentally shaped Chinese society and politics.  It is, I would contend, impossible to isolate the historical effects of Confucianism without reference to Legalism.  And it could be the case the Legalism has actually had a greater impact and longer lasting presence in Chinese life (the authoritarianism of the CCP has certain resonances with the Legalist past, as Mao was willing to admit...) than Confucianism.  Thus, it seems to me, that China is at least as much a "Legalist society" as it is a "Confucian society."

But we don't say that.  Perhaps because we don't want it to be true.  Confucianism is nicer, more humane.  It is a moral theory that strives toward a better world.  And it is certainly an important part of Chinese tradition.  But that does not change the fact that Legalism, too, has had a profound presence in Chinese history.  It is largely responsible for the centralized, bureaucratic state, which plays such a central role in defining and reproducing Chinese society and culture over the centuries.  And it lives on (unfortunately in my view) in the continuing experience of authoritarianism in Chinese politics.  We might want to say, and believe, that China is a "Confucian society," but I am afraid we must accept the dreary reality that China, too, is a "Legalist society."

So, why am I saying all of this?  It is inspired by my thinking about whether we can say that China is a "Confucian society" now.  And, in realizing that it probably is not, I am looking to wrest Confucianism from Legalism.  I see Confucianism as a great and good moral practice, something that if more of us practiced could create better outcomes in the world.  But there are many things that get in the way of the contemporary practice of Confucianism.  Modernity, in and of itself, is one.  But the vestiges of the Legalist past, and the traces of the Legalist present, in China today are another.  If we are ever to find a way forward to Humanity - ren - we have to disentangle Confucianism from Legalism.

Comments

[Jonathan Dresner]

These are interesting ideas, nothing wrong with them at all. But they don't, for me, answer the question. While Confucianism is a distinctive set of ideas -- syncretic though it is, in the final analysis, the core is quite original -- Legalism is not a unique form of statecraft. Empires exist throughout human history, and the administrative principles are more or less the same (the structure itself may range from feudal to bureaucratic): Machiavelli outlined a version of statecraft; the Indian Arthashastra does the same; Egyptian princes wrote letters to their children. That Legalism was necessary to create a successful state is perfectly true; that it is unexceptional (though wittier than most administrative systems) is also true. So if we wish to, in some sense, capture or understand what is distinctive about China, Confucianism is a much better starting place.

[Sam]

Jonathan,
Thanks for the comment. Let me push back a bit.
I would argue that the resilience and coherence of the centralized Chinese state is, indeed, historically distinctive. Let's just compare with India and Japan for a moment. While you are right that the Arthashastra is an early example of what me might call political realism, it does not give rise to a centralized structure as consistent as the Chinese imperial bureaucracy. It is never practiced as consistently as Legalism is in China. The Mauryan and Gupta empires are significant in terms of political centralization but neither bequeaths an administrative structure as durable as the Chinese bureaucracy. The Mughals are impressive in their political power, but the mansabdari system allows for decentralized military power, a structural feature that ultimately is its undoing when the British press in.
Similarly in Japan, the Tokugawa never achieve the kind of political centralization that we find even in the Tang.
Thus, in terms of what stands out as a historical feature that is uniquely China, it would seem that the practice and persistence of Legalist political principles, as expressed through the lasting quality of the centralized bureaucracy, is prominent.
Yes, Confucianism, too, has a distinctively Chinese quality to it. But we should not overstate its originality. Organizing society and morality along family lines is not particularly original or distinct. Just about every culture does this. "Honor your mother and your father" - the Hebrew Bible was on to that central Confucian principle. Particularistic and status-based morality are certainly to be found in many different parts of the world historically. So, Confucianism is a uniquely Chinese expression of ideas that are manifest in other cultures as well. It is also a philosophy/world view that spreads beyond China and is indigenized in other places; in that way it is something more than "Chinese."
I will not deny that Confucianism is an important element of Chinese society and history - to do so would be foolish. But I want to challenge our tendency to rely upon "Confucianism" as a summarizing symbol of "Chinese culture" or "Chinese society" or, even, "Chinese politics." Because "Confucianism" was fundamentally reshaped by the practices of Legalism, and that Legalism is at least as important as Confucianism, if not more important, in creating a historically recognizable and distinct "Chinese society."

[G.E. Anderson]

I agree with your thesis that China is more Legalist than it is Confucian in practice. Perhaps the reason that so many people (both Chinese and non-Chinese) believe China is Confucian is that the CCP has done a good job of placing Confucius in the forefront of its philosophical influencers.

Chinese children are taught the Confucian canon from the time they are old enough to attend school, but the only thing they know about legalism is that it was the philosophy though which Han Feizi influenced Qin Shihuang.

Other prominent examples of Confucian influence are Hu Jintao's "harmonious society" and the numerous Confucius Institutes that China is building all over the world.

In my view, however, Confucius is useful to the CCP in the same way that Jesus Christ is useful to American politicians. As far as politicians are concerned, it doesn't matter whether one truly believes, or even whether one's actions demonstrate a belief; what matters is that leaders invoke the nation's philosophical tradition.

And, irony of ironies, if China truly were Confucian, it would rectify names and call itself what it truly is: Legalist.