Law Is The Expression Of Love For The People: How Legalism beat Covid-19
Written By: 商鞅之鬼 ☭ 韩非之子 Published: 16/04/2021
I recently got a copy of the third volume of Governance of China by Xi Jinping and reading it parallel with the Hanfeizi, it is sometimes uncanny how similar they can get, sometimes down to the very examples used. To me, this is a good thing. In the following few pages I will outline two examples of his inclinations towards Legalism as it was theorized throughout Chinese history, but mainly during the Warring States era (战国时代) as 法家.
Now, I know there are huge inclinations towards “oh, Xi doesn’t write his speeches, sweetie, he has speech writers to do that for him.” I merely have two counters to this. First, even in modern Chinese history, especially ever since Mao Zedong, it was accepted and even expected of leaders to write their own works and speeches. There is no reason to think Xi doesn’t follow this tradition other than cynicism – and that isn’t reason enough alone. Secondly, even if he didn’t write them, he still publicly delivered these speeches, which he most probably wouldn’t have done if he would’ve found anything in them he disagreed with, thus at the very least he most probably took part in the writing/editing process.
Iron rule of the law
Reading “Speech on the 20th anniversary of Macao’s return to China and Inauguration of the Fifth-Term Government of the Macao Special Administrative Region” (Xi Jinping: The Governance of China III, Foreign Languages Press, 2020, pp. 478-489) I came across a very interesting reference. In the context of economic development, he makes a reference to the 盐铁论. Before I continue, a bit of context on the 盐铁论 or Discourses on Salt and Iron. It is a Han dynasty classic from 81 BC recounting a debate in the imperial court about certain economic state policies. It is generally seen as a classic of legalism or 法家.
Emperor Wu of Han reversed the “free trade” policies of his predecessors and imposed a wide variety of centralized interventions, such as creating monopolies on China’s salt and iron enterprises, price stabilization schemes, and taxes on capital, among other economic policies. These actions sparked a fierce debate which was characterized by two opposing factions: the reformists and the modernists. The reformists were largely Confucian scholars who opposed the policies of Emperor Wu and demanded the abolition of the monopolies on salt and iron, an end to the state price stabilization schemes, and huge cuts in government expenditures. They were opposed by modernists, sometimes seen as legalists in context who agreed with state centralization.
The modernists supported the continuation of Emperor Wu’s policies in order to appropriate the profits of private merchants into state coffers to fund the government’s military campaigns in the north and west, and generally strengthening the state against the wealthy aristocracy. These views largely go back to such legalist classics as the Book or Lord Shang (商君书) attributed to Shang Yang (商鞅), in which he outright advocated prohibiting the merchants by law from buying grain so that they cannot hoard all the cheap grain in prosperous years and sell them back to the starving population with raised pricing during famine years, thus making unethical profits (The Book of Lord Shang, Commercial Press, Beijing, 2006, pp. 27 as well as 53 etc.). One of the main tenets of legalism was cracking down on unethical trade relations and merchants – which survived well past legalism’s hay day during the Warring States period of Chinese history.
The results of these debates were mixed. Although the modernists were largely successful and their policies were followed through most of the Western Han after Emperor Zhao, Emperor Wu’s son who called the debaters together, the reformists repealed these policies in Eastern Han, save for the government monopoly on minting coins.
The exact quote he uses from the 盐铁论 is: “Those with sound grasp of governance will leave no problems unresolved and no defects unrepaired”, which in and of itself is a remarkably Legalist thought. So with one single historical reference he reinforced future plans on submitting private capital under state control. This is the whole point of mentioning this classic in this context. But Xi puts a further spin on this to explain that while the west loves talking about the rule of law, their law is partial, hardly enforced at all on the wealthy and the trading sectors, allows capital to run wild over every single other concern (“we gotta save the economy”, anyone remember?), even actual lives of the people.
Meanwhile, in China there is true rule of the law since
- The law is strict,
- Judgments when made are definite (to a large degree and only solid counter-evidence can nullify a legal decision) and
- Everybody is subject to the law, even the wealthy who get imprisoned and even executed on the regular if they overstep the country’s laws and regulations.
This is classical Legalism in its purest form: it is extremely clear what is lawful and unlawful, what you can and cannot do, nobody gets special treatment, and if you overstep that line even (and especially) with that knowledge, that’s on you. With this Xi is basically saying that rule of law means that law is used to conduct every aspect of social life.
That is why it is rule OF law, since it is the law that literally rules, not interchangeable officials BY the law or WITH the law or maybe THROUGH the power granted by law. This can also be seen in the speeches and articles of the third volume of Governance of China dealing with the struggle against bureaucracy and modernizing the organization of the body of state officials. That is a remarkably Legalist thought in its purest, most inner essence – it was one of the main points of the entire Hanfeizi back in the 3rd century BC – and I was glad to have come across it in modern Chinese philosophy of governance. It also reinforces what I’ve been thinking of for a while now: if you bring classical Legalism to its absolute logical conclusion, it becomes clear that what it actually entails: society is ruled solely by law, not even the sovereign, but pure and absolute law. In modern terms this would mean that there is no governing body made up of people, but a governing body of laws that are autonomously functioning to keep society functioning.
Nobody Above The Law – Not Even The Emperor
Which is to say that even the sovereign is merely a tool of law and since law reigns supreme and above even the emperor, most likely in a crisis, even the emperor is merely collateral to the upkeep of the law. There are examples and allusions to this in the Book of Lord Shang and even in his life. For instance, how he wanted to punish Huiwen, the crown prince of Qin, the son of his employer, during his ministerial mandate during the 4th century BC, but due to the constraints of his times, he could merely punish two of his tutors: he still had the face of one of them tattooed (黥) and had the nose of the other one cut off (劓) as per Qin law as well as proposing to literally banish crown prince Huiwen from the palace (战国策, Records on the Warring States period, Guangxi Normal University Press, Guilin, pp. 79-81). Alas, he could not affect what he wanted based on his view that laws are supreme, but his inclination to put law even above the regent and his family clearly shows Shang Yang’s tendency to decenter even the sovereign for the benefit of an absolute system of laws.
Xi Jinping’s mentioned speech was delivered on the 20th of December 2019. During the following events its legalist tendencies were proven true and strong time and again in China’s handling of the Covid-19 pandemic: an absolute harsh crackdown on the economy for the benefit of the affected people, especially a harsh crackdown on those who wanted to make unethical profits off the suffering of others (putting an even stricter ban on price gouging than normal for example, by law forcibly re-profiling factories to meet the demand of masks, ventilators and other medical equipment etc.). These policies mirror Shang Yang’s views during the 4th century BC on how merchants, traders, realtors and all kinds of economic activity need to be strictly regulated by a law that has the interests of the largest masses of the population as its aim, rather than a few economic actors and their profits.
This is why Shang Yang noted that “therefore law is the expression of love for the people” (故法者所以爱民也。《商君书·更法》, The Book of Lord Shang, The Commercial Press, Beijing, 2006, pp. 6), as well as Han Feizi in the same context noting how „law is the origin of political power and penalty is beginning of love for the people” (法者，王之本也；刑者，爱之自也。《韩非子·心度》, Han Fei Zi, The Commercial Press, Beijing, 2015, pp. 1970). Using the law (法) to penalize (刑) those who would only selfishly seek their own personal interest (私) to the detriment of the masses of people (民) or the whole of society (度) is exactly the root of legitimate political power (王) in the way classical Chinese legalism (法家) conceived the concept during the Warring States era. Thus: penalizing (刑) selfish individuals (私) by law (法) is the beginning of love (爱) for the people (民). The way China shut down its economy and regulated the few sectors remaining in function (banning and penalizing price gouging stricter than usual, forcibly re-profiling factories to meet medical demands that otherwise produced different things etc.) during the pandemic is a mirror image of this conception of a politics based on a „mass-line humanism”, which I theorize is a more humane form of humanism than bourgeois liberal individualist humanism practised in western neoliberal societies.
Shang Yang as “chief minister” (there is no exact rendition of 相 in English) of Qin, among other things, confiscated the wealth of the aristocratic families for the state, made laws apply to all social strata and sometimes turned aristocrats into slaves: if they wouldn’t pay the yearly tax, all their wealth was confiscated. He pointed it out many times: aristocrats are useless people who live up state provisions, suck the blood of the working masses and at best being traders and merchants, do not work, but merely sell the products of the sweat and toil of other people (for instance numerous occasions throughout: The Book of Lord Shang, Commercial Press, Beijing, 2006, pp. 59-79). It is also worth a mention that Shang Yang was the first to allow by law slaves to leave behind their status as slaves by taking up agricultural work, obtaining military merit or reporting hitherto unreported crime: another thing the conservatives of his times hated him for (ibid., Introduction, pp. 31).
But then if law is the beginning of love for the people, what could be thought of as the continuation of that love? One of the main issues of Shang Yang was how traders, realtors and other purely economic actors merely exploited the people, he outright claimed that one of the main purpose of government should be making the lives of the working people, i.e. the peasantry in his times, easier and raising their quality of life to the detriment of traders, realtors etc., who we would call “businessmen”today (for example: The Book of Lord Shang, The Commercial Press, Beijing, pp. 27 and 51). This can be seen as a very early conception of “poverty alleviation” (脱贫) and is an outright opposing view of western neolberalism: support the people to the detriment of the economy and not the other way around. This is exactly why Shang Yang said that the government should by law prohibit merchants to buy up all the grain during abundant years so in famine years they cannot sell it back overpriced to the population as we have seen above. This has been a politico-economic issue all throughout Chinese history. This is exactly why a late Leglist known as Wang Anshi (1021-1086) summed up Shang Yang’s reforms in the following manner: „finance unites the people and laws serve to regulate finance.” This too survives in today’s China and can be seen in their Covid-response, their state suppression of the national bourgeoisie and their constant harassment of the ultra-wealthy.
Human Rights and Poverty Alleviation
Another example for Xi’s inclination towards legalism can be found at the very end of “Win the battle against poverty” (Xi Jinping: The Governance of China III, Foreign Languages Press, 2020, pp. 182-188) where he notes: “We can establish poverty alleviation councils, ethics panels and wedding, and funeral councils to guide the poor in abandoning outdated customs and cultivating healthy practices through different channels.”
This is interesting because HanFeizi makes almost the exact same argument during the 3rd century BC in the chapter 内储说上七术 (Inner congeries of sayings, upper series: the seven tactics, the only difference is that Xi’s proposed solution is much less brutal than that of Han Feizi. Here is the passage in the original Classical Chinese:
齐国好厚葬，布帛尽于衣衾，林木尽于棺椁。桓公愚之，以告管仲曰：“布帛尽，则无以为蔽；林木尽，无以为守备。而人厚葬之不体，禁之奈何？” 管仲对曰：“凡人之有为也，非名之，则利之也。” 于是乃下令曰：“棺椁过度者，戮其户，罪夫当丧者。” 夫戮死，无名；罪当丧者，无利。人何故为之也？
Translated into English by W.K. Liao, this reads: “The people of the state of Qi would hold expensive funeral rites, till cloth and silk fabrics were exhausted by clothes and covers, and wood and lumber by inner and outer coffin-walls. Worried over this, Duke Huan said to Guan Zhong: ‘If the people exhaust cloth this way, nothing will be left for national wealth. If they exhaust wood this way, nothing will be left for military defense. And yet the people will hold expensive funeral rites and never stop. How can prohibition be effected?” In reply, Guan Zhong said, ‘If people do anything at all, it is done for profit if not for repute.’ Thereupon he issued the order that if the thickness of both inner and outer coffin-walls were to go beyond legal limits, the corpse should be cut into pieces and the mourning relatives should be held guilty. Indeed, to cut the corpse into pieces would create no repute; to hold guilty the mourning relatives would produce no profit. Why should the people continue holding expensive funeral rites then?” (Han Fei Zi, The Commercial Press, Beijing, 2015, pp. 797., the only modifications I made to the translation was changing the Wade-Giles transliteration to Hanyu-Pinyin).
Of course, this could simply mean that those or similar customs survived Han Feizi to this day and Xi is simply reflecting on that, but to me at least, it is still interesting how both of them regard such customs as a waste of provisions. Whether it is justified or not is up to the debate. Also, on Han Feizi’s part, this could very well be a dig at the elaborate funerary customs laid down by Confucianism and the Book of Rites in his own times, but I don’t think the same can be said of Xi.
There is another tangent here though. Guan Zhong (管仲) was a chief minister (again for 相) of the state of Qi during the 7th century BC, he is sometimes seen as the originator of legalism, and at the very least he truly was the originator of the idea that the ordering of the state (治) lies on the foundation of a strict and law-abiding administrative system, which later became one of the most absolutely central ideas of legalism proper. The Guanzi (管子) – the book attributed to Guan Zhong – is a syncretic work bringing together certain aspects of Legalism, Daoism, and Confucianism and it is one of the most foundational texts of classical Chinese political thought echoing well into the later centuries through the organizing of the imperial administrative system of the following dynasties.
In April 2020, People’s Daily published Xi Jinping’s recommended reading list on the occasion of World Book Day. There are many interesting choices on the list, both Chinese and western, but in our present context one stands out and it stands out because it is exactly the above-mentioned Guanzi which is attributed to Guan Zhong. Again: if Xi would have no import on these texts (“written by others”) and if the list wouldn’t at least have some direction by him (“compiled by others”), it would be quite a huge coincidence. I never understood why this kind of agency is taken away from him: compiling a list of books you enjoy isn’t such a harrowing thing to do, I see no reason to doubt he was at the very least involved in it.
In any case it sure would be more interesting to discuss these issues with Xi than what western media and the throngs of China-watcher circles publish about him and China on the regular. Especially so because this again shows how classical Chinese culture is alive and well in China: it is discussed, employed, and cherished from governmental levels to the masses of people.
The Pivot to Marxism-Legalism
All this of course needs to be thought through the history of modern Chinese Marxism beginning in the early twentieth century all up to today. This is important in order not to fall into the usual and simplest of China-watcher mistakes of reducing every single thing in China to “adherence to Confucian values”. One of the main points of this article for me is showing how Chinese classical culture is honored – by being employed – to this very day, but also to show that classical Chinese culture is not merely Confucianism: one could also go as far as to say that especially not in governance. Especially taking into consideration that description of mutual conflict of interest between the master and the hired workman from the Hanfeizi that is an outright description of class struggle from the 3rd century BC (《韩非子·外储说左上》, Han Fei Zi, The Commercial Press, Beijing, 2015, pp. 1079).
As Feng Youlan notes in his book, one of the main differences between Confucianism and Legalism was their different approach to governing people: while Confucianism strived to create a harmonious person-to-person relation within society, hence the focus on rites and codes of interpersonal conduct via the Book of Rites (礼记), Legalism aimed at creating a harmonious state-to-person, or at the very least governing body-to-person or institution-to-person relation, hence the focus on laws, regulations, codes of societal conduct (Feng Youlan: A Short History of Chinese philosophy, Foreign Language Teaching and Research Press, Beijing, 2015, 291-305).
Different uses of these two currents of thought throughout Chinese history to organize different strata of society and their relations to one another is what lead to its entire diversity, as well as it’s practicality. The chengyu style idiom of 儒表法理 is a good indication of that fact. This idiom means „Confucian in appearance, Legalist in essence” and it is one of the classical aspects of Chinese culture that undermine this “oh, it’s all Confucianism” nonsense of the less erudite China-watcher. It is important to note that the meaning does not carry a sense of concealment here; it simply means that pragmatic essential things like governance, political issues, economic aspects are controlled in a Legalist manner (as the Legalists themselves advocated as per the 盐铁论 issue above) and more ephemeral aspects like culture, music, poetry, literature are organized by Confucian values. Here we almost see a base-superstructure theory, where the base (essence, 理) is Legalist and the superstructure (appearance, 表) is Confucian. This isn’t surprising at all if we think about how Guan Zhong already in the 7th century BC described the marketplace as the organizing principle of supply and demand within society (《管子·乘马》Guanzi, Guangxi Normal University Press, Guilin, 2005, pp. 87.).
These are some of the aspects why I claim, when talking about modern China, it is good to think of it as Marxism-Legalism (马法主义), not just Marxism-Leninism (马列主义). Legalism has been a central organizing principle throughout much of Chinese history and it keeps informing a lot of central decisions on three important ideological lines:
- Everything for the people (see HanFeizi: 忘民不可谓仁义, or “Who takes no notice of the condition of the masses cannot be called benevolent and righteous”, 《韩非子·难一》, Han Fei Zi, The Commercial Press, Beijing, 2015, pp. 1511),
- The economy needs to be forced to serve the state and through that: the people (see above).
- Taken to their respective logical conclusions, both Marxism and Legalism aim at doing away with institutions of governance: Marxism with the state, Legalism with the sovereign.
Their respective end goals are different since they were theorized in wildly different eras of history – for Marxism: self-governance, for Legalism: governance by an autonomous system of laws – but I claim there are enough parallels to warrant a connection between the two. In any case, there still remains the interesting question of whether an “autonomous system of laws” can be a form of self-governance, but that will have to be discussed in a different paper.
In closing, I find it important when one thinks about either legalism or China’s current system of rule of law, to remember the words of Zhang Bingling on the turn of the 19th and 20th centuries: „The world only wanted to see the severity of Shang Yang’s law without considering its positive consequences.”