The Internal Morality of Chinese Legalism Essay Example for Free

The Internal Morality of Chinese Legalism Essay Abstract It is widely held that there are no indigenous roots in China for the rule of law; it is an import from the West. The Chinese legal tradition, rather, is rule by law, as elaborated in ancient Legalist texts such as the Han Feizi. According to the conventional reading of these texts, law is amoral and an instrument in the hands of a central ruler who uses law to consolidate and maintain power. The ruler is the source of all law and stands above the law, so that law, in the final analysis, is whatever pleases the ruler. This essay argues, to the contrary, that the instrumentalism of the Han Feizi is more sophisticated and more principled than the conventional reading acknowledges. It suggests that, by examining the text of the Han Feizi through the lens provided by American legal theorist Lon Fuller, we can detect an explicit articulation of what Fuller called the internal morality of law. The principles of this morality are elaborated and their importance explained. In this way, the Han Feizi is retrieved as a significant reference point for thinking about legal reform in China today. I am indebted to Liang Zhiping and David B. Wong for comments on an earlier draft, and to William P. Alford, as ever, for his guidance in thinking about law and legal institutions in China. Introduction The rule of law is now commonly regarded as an obligatory step to establishing China’s rightful place in the global community. Yet it is widely believed that there are no indigenous roots for the rule of law ideal; it is an import from the West. The Chinese legal tradition, rather, is rule by law, as elaborated most fully in ancient Legalist texts such as the Han Feizi. The distinction between rule by law and rule of law has many dimensions. Of central importance is the relationship of law and morality. Although no canonical formula exists for the rule of law, a moral ideal lies at the core, however it is specified. In rule by law, in contrast, at least according to the conventional understanding, law is amoral and an instrument of power. A typical statement is offered by Burton Watson, the respected translator of Han Fei’s work in English: Legalism, Watson says, â€Å"professed to have no use for morality whatsoever† (and similarly for religion and ceremony). It focused on a single problem: strengthening and preserving the state.1 In this regard, Watson follows Arthur Waley, who said that members of the â€Å"school of law† (fajia) â€Å"held that law should replace morality.† Instead of the term â€Å"school of law,† which he regarded as too narrow, Waley referred to members of the fajia as â€Å"the Amoralitsts .†2 It is because of this alleged amoralism that Randall Peerenboom can write a 670page book on â€Å"China’s long march toward [the] rule of law† and barely mention Han Fei. Peerenboom expresses the conventional view: for Han Fei, law is one instrument in the ruler’s toolbox for sustaining strong centralized control. Since the ruler is the source of all law, and stands above the law, there are no limits or effective checks on the ruler’s arbitrary power. â€Å"In the final analysis, law was what pleased the ruler.†3 This view of Legalism is reinforced by a particular reading of Chinese legal history during the period of the Three Dynasties, China’s bronze age. Liang Zhiping, the eminent legal scholar, claims that the predilection for rule by law, in Han Fei and other Legalists, has its roots in the way law emerged initially in China, namely, as an instrument by which a single clan exercised control over rival clans. â€Å"[W]ithin a system tha t was inherently unstable †¦ [l]aw was seen as the will of the rulers and an instrument of suppression; its primary manifestation was in punishment.† Hence, the choice of rule by law was the product of an extended and unique cultural development. â€Å"[T]he legalists merely developed to its extreme the ancient legal model, ‘[y]ou who obey my orders shall be rewarded before my ancestors; and you who disobey my orders shall be put to death before the spirits of the land.’†4 These two conceptions of law and legal institutions—rule by law and the rule of law—are familiar in the West, although rule by law now has few, if any, advocates. But one needs to go back only to John Austin, the influential 19th century English legal theorist, for systematic elaboration of rule by law. Western theorists, indeed, might be tempted to look at Chinese Legalists through the lens of Austin, since his work enables us to see a systematic body of thought in the Han Feizi. However, this lens, I shall argue, brings some elements of the Han Feizi into sharp focus only at the cost of distorting others. Western theorists need a corrective lens, which is provided by Lon Fuller. In assessing Austin’s account, Fuller’s approach is most helpful because it offers an internal critique, showing that denial of a compelling connection between law and morality is inaccurate to the theory itself. Fuller’s account does not rest on a semantic analysis of â€Å"law† but on a pragmatic appreciation of legal order as a form of governance. Out of this appreciation, the practical connection—the interaction and mutual dependence of law and morality in the everyday work of lawmakers and other collaborative participants in the creation of legal order—emerges even in rule by law properly understood. Thus, Fuller shows how the moral core of the rule of law is present in the generic use of law in society. The moral core of the rule of law—the thin theory, as it is often called— encompasses two key ideas: (1) While law is an instrument of political power, law also constrains power. Hence, law and power are, to some degree, opposed. (2) While law channels political power, law also enables power to be rightly exercised. Hence, law is a source of legitimation for the exercise of power. How is political power constrained and yet also rightly exercised? The rule of law ideal is that these conditions are met if it is truly the law that governs legal subjects, not the wishes of specific individuals or groups. The ideal is a government of laws, not persons, so the moral core (in a word) is impersonal governance. My thesis is that Han Fei’s text, the Han Feizi, displays this moral core and thus connects law and morality. I shall argue, indeed, that the Han Feizi advocates a purer form of the rule of law than is offered by many Western theorists. Chinese Legalism did not be gin with the Han Feizi, but it is generally regarded as the most sophisticated exposition of the theory. I believe it is more nuanced than generations of commentators have acknowledged. It is important to emphasize that my interest is with the rule of law as a legislative, rather than judicial, ideal. This focus is appropriate for the Han Feizi, since it contains no explicit judicial theory (although it has definite implications, as we shall see, for the work of judges). That means that the vision of law in the Han Feizi is incomplete. On the other hand, most Western theorists neglect the legislative ideal, and many mistakenly believe that judicial independence (or the separation of powers) is sufficient for establishing the rule of law. I shall suggest that, at least for the legislative ideal, worthy indigenous Chinese sources for the rule of law exist. Contrary to Watson and Peerenboom, I argue that the Han Feizi intends to link law and morality. But I should say from the beginning that this essay is not an attempt to recapture Han Fei’s conscious motives or point of view. It is an attempt to retrieve a text for contemporary understanding and use. Admittedly, this effort runs the risk of literary misprision—willful, not to say creative, misreading. But recovering the rich history of Chinese legal thought seems to me worth that risk. It is often said, with good reason, that successive Chinese emperors followed the Legalist template set out by the Han Feizi. If it turns out that the Han Feizi carries a different message from the one it is usually taken to convey, the imperial history may have to be re-examined to determine when it followed the template and when it did not.5 [I] Rule by law: Han Fei and John Austin The conventional reading of the Han Feizi pictures law as an instrument in the hands of the ruler. This could mean different things. Instrumentalism is sometimes construed to mean that rulers use law only if and when it suits their purposes; it is employed (or not) at the ruler’s discretion to achieve the ruler’s own desires or ends. In this construction, law does not have any special pride of place, and certainly nothing beyond a fortuitous connection to moral value. On any particular occasion, if a ruler fails to realize his or her will by the use of law, an alternative instrument of governance could be deployed. Let’s call this ad hoc or strategic instrumentalism. This is not rule by law, as I understand it. Rule by law meets at least one and possibly two conditions missing from ad hoc instrumentalism. Most importantly, the commitment to rules—fixed standards of general applicability—is not ad hoc; they are the ruler’s chosen mechanism of governance. Thus, the commitment to rules is deliberate and firm, and the instrumentalism is consistent and principled. This commitment, we shall see, introduces a variety of self-imposed constraints on lawmaking and secures the connection between law and morality. Second, the rules promulgated are not necessarily intended to serve the lawmaker’s personal desires or ends. They may serve common ends, or they may permit (or enable) subjects to pursue ends of their own. In that event, we move from a minimal to a morally robust instrumentalism. If the rules facilitate the pursuit of ends other than those of the lawgiver, principled instrumentalism transitions into the rule of law. Although the Han Feizi is conventionally read as committed (at worst) to ad hoc instrumentalism or (at best) to a consistent but minimal instrumentalism, I shall argue in section III that many of the essays that make up the Han Feizi advocate a robust principled instrumentalism. For this reason, it will be helpful to examine first a systematic statement of the minimally instrumentalist view. John Austin is more clearly committed to minimal instrumentalism, because his aims were more academic—to elaborate a systematic theory—whereas Han Fei wished to provide practical advice to rulers. A consideration of Austin enables us to grasp what coherence the minimally instrumentalist view has. Like Han Fei, Austin aimed to be a realist about law, to examine actual facts in the world. That led him to trace the existence of law to the exercise of power. Accordingly, the proper understanding of law is genetic. In the strict sense, law is a command—a wish expressed by a determinate person or body possessing supreme power in an organized and independent society, backed by the credible threat of a sanction (i.e., pain) in the event of noncompliance. Why does the credible threat of a sanction make a law binding? Austin was a voluntarist about law as he was in theology. The duty to obey a command rests not on its conformity to an independent moral standard but simply on its emanating from a preponderant power. To have a duty to act is to be compelled to act. â€Å"[I]t is only by the chance of incurring evil, that I am bound or obliged.†7 Thus, whether divine or human, law makes its appearance within a relationship of domination—a superior (in power) issuing orders to an inferior (in power), where the former has the capacity to compel the latter to act by means of a threatened evil, i.e., pain. The duty is legal if it is issued by a political sovereign, moral if issued by God. Hobbes observed that the conditions for a social contract obtain if persons are of roughly equal ability, for then they acquire an equality of hope in having their respective claims satisfied. But in circumstances where a clear supremacy of power lies in one individual or body, no question as to the proper distribution of duties and rights arises. The distribution of duties and rights naturally parallels the distribution of power.8 That, obviously, is Austin’s view as well. The foundation of law is force or the threat of its use. To have a duty, therefore, in Austin’s quaint phrase, is to be obnoxious to the superior’s threat. Obnoxiousness is determined by one of two empirical facts: either the extent to which the inferior party is motivated by fear of the sanction, or the likelihood that the superior party will carry out its threat. While the pursuit of pleasure is as much an ultimate spring of human action as the avoidance of pain, the latter is more to be relied on than the former. The certainty and severity of threatened pain, in the event of noncompliance to the superior’s commands, are defining features of legal (as of moral) order. Since the definition of law stipulates nothing about the content of the superior’s wish, law may have any content whatever and still be binding. The separation of law and morality is secured: might makes right. Thus, law is imperative, preemptory, morally arbitrary, coercive, and an instrument of domination. It also, as we shall see more fully in a moment, aims above all at stability and order. By definition, Austin’s sovereign is not subject to a superior power and hence does not have any legal duties. (By the same token, the sovereign does not have any legal rights, either.) Austin formulates this point most sharply by observing that â€Å"every government is legally despotic.†9 This is a provocative way of saying that its power is legally unlimited; it stands above the law and can make, or unmake, any law whatever. It is not misleading to say the sovereign is self-legitimating, as long as we keep in mind that legitimation comes not from satisfying a standard of legitimacy but from the successful exercise of supreme power. Yet one of the virtues of Austin’s writing is that it is richer than the genetic definition of law would lead one to expect. (Failure in the legal literature to appreciate the richer analysis is the same kind of failure one finds regarding the Han Feizi.) Exploring some of this richness will help us develop a critique that illuminates the Han Feizi. Austin actually formulates three distinct definitions of law—in addition to the genetic there are formal and purposive definitions—each of which meshes imperfectly with the others. The formal definition appears when Austin stipulates that a command is a law only if it has the attribute of generality, that is, it must refer to a class of acts to be done or avoided, not a single action. Particular or occasional commands are not laws in the strict sense.11 This stipulation is sensible, since modern law typically consists of a body of standing rules, not extemporaneous orders. It shows that Austin thought of legal order as a system, or at least a set, of rules. But in relation to the genetic definition, it is completely unmotivated; nothing in the meaning of command requires it. At the same time, the implications are profound. The addition of generality represents a significant departure from personal command and toward impersonal governance. It commits the lawmaker to acting in certain ways in as yet unknown cases. And, by grouping actions into classes, it produces a degree of uniformity of treatment across persons. So, with generality, the picture of a compliant inferior following the wishes of a superior recedes to a significant degree. These implications—uniformity across persons and prior commitment in unknown cases—indicate that certain formal features of laws may have moral import, and I shall say more about them in a moment. With law understood as a self-conscious instrument of domination expressing the wishes of a (human) sovereign, it is only to be expected that Austin would stress the potential divorce between the content of promulgated laws and the requirements of morality. â€Å"The existence of law is one thing; its merit or demerit is another.†12 But if law itself, simply as a body of general rules, has moral import regardless of its content, we have taken an important step toward a robust instrumentalist account of law. The richness of Austin’s analysis is even more evident in his purposive definition. In its most general and comprehensive sense, he says, a law is â€Å"a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.†13 Asymmetry in power is central for Austin, as we have seen, but intelligent guidance introduces a different dimension. Austin followed Locke in thinking of law as a human contrivance, establishing relations between rational beings. But the idea of intelligent guidance has implications Austin was hesitant to pursue. He recognized, for example, that the concept of command precludes ex post facto rules, since an utterance cannot constitute a command if the action required cannot be performed. Yet to acknowledge this conceptual point would be tantamount to placing a limit on sovereign power; an ex post facto pronouncement would not be a law, even though it possessed all the other features of the genetic definition. 14 Further, such acknowledgement would be the first step on a slippery slope. It would allow one to say that other pronouncements of the sovereign are also not laws, for instance, ones that are not clear in meaning. How could an obscure or incoherent utterance provide intelligent guidance to human conduct? Or an utterance that was not made public? Or that kept changing? These implications are precisely the ones pursued by Fuller in developing what he called the internal morality of law. Before turning to Fuller, however, we should pause to ask why Austin recoiled from the implications of his purposive definition and instead adhered to the idea of law as an instrument in the hands of a supreme person or body exercising power over others. My hypothesis is that rule by law in its minimalist variant was important to Austin for two related reasons: the fear of disorder and the uncertainty of morality. Both of these were reflected in Austin’s ambivalence about the expansion of democracy in England in the early 19th century. He saw little possibility, at least in the foreseeable future, of achieving the educational and mental improvement of the general population that he regarded as a prerequisite of democratic government. As a result, according to John Stuart Mill’s account, Austin developed an â€Å"indifference, bordering on contempt, for the progress of popular [i.e., democratic] institutions.†15 In addition, Austin believed that common moral opinion was so fractured, so full of partiality and prejudice, that ordinary people cannot be trusted to act decently. What makes government by a powerful ruler necessary and expedient is the â€Å"uncertainty, scantiness, and imperfection† of the mora l beliefs people espouse. â€Å"Hence the necessity for a common governing (or common guiding) head to whom the community may in concert defer.†16 The resonance of these passages with much of the Han Feizi, or at least the conventional reading of it, should be apparent. Lack of confidence in the capacity of human beings to govern themselves makes it necessary to have a sovereign whose will provides common directives that are easily discernible and effective. If people are allowed to follow their natural propensities, they will engage in all manner of disorderly behavior. Social order requires stable external direction by means of the threat of force. Thus, the solution to the problem of social order—Hobbes’s problem—is managerial direction (to use Fuller’s term). Without top-down control, matters are likely to get badly out of hand. The exercise of control in Austin’s case, of course, is thought of as benign. The goods of order and unity are taken for granted. The power of the superior is canvassed, not in terms of personal wishes or even class interests, but its efficacy in producing the â€Å"steadiness, constancy, or uniformity† that every society needs. Thus, Austin—like Han Fei, as I shall argue—makes sense of law in practice as an instrument in the hands of a single individual or mandarin elite with the competence and requisite disinterestedness to attend to the public need. To that extent, Austin’s theory is a pure expression of rule by law.