Virtue, Law and Chinese Political Tradition:
Can the Past Predict the Future?[1]
Baogang Guo
This paper is inspired by recent debates and discussions about China’s democratization. Many political activists and dissidents believe that liberal democracy based on individualism, human rights, Western legalism and adversarial politics should be introduced by China directly,[1] while others decry liberal democracy and seek to build an alternative, non-liberal form of democracy that can accommodate the unitary system of a one-party rule, collective interests, and the Chinese traditional ethics-based politics. [2] This paper intends to build a case for a third alternative that can reconcile the two opposing views of democracy, i.e., the consensual vs. the adversarial, through a reexamination and reconstruction of Chinese traditional theories of political governance.[3] By focusing on the roles of virtue and law in traditional politics, I hope to provide a balanced and normative solution to the debate about the future direction of China’s democratization.
The Dualist Tradition
As one of the oldest civilizations, China has produced many world-class political thinkers and indigenous political ideas. While some political theories have lost their old glories and faded away, others are still influential and relevant in contemporary political life, such as the ideas of rule of virtue and rule by law.
A careful review of Chinese classics relating to politics and governance suggests that traditional Chinese political theories believe that both virtue and law are of great importance to governance, despite the fact that most rulers since the Qin Dynasty all publicly embraced the rule of benevolence (ren zheng仁政), the Chinese vision of the rule of virtue.[4] The rule of benevolence has three meanings. First, the rulers must be affectionate, altruistic and moralistic in characters. This is similar to Aristotle’s virtue ethics. Second, rulers have an ethical duty to make public decisions that are for the benefits of the people. It shows rulers’ generosity and kindness. This is a deontological call, but it differs very much from John Locke’s emphasis on individual rights. Finally, the actions of rulers must be judged by the outcome of their decisions. This utilitarian dimension is in line with Western consequentialist ethics. It implies the principle of reciprocity. Confucius’s idea of “do not do unto others what you would not have them do unto you,” which is similar to what is preached in the Christian Bible. Confucius understanding of political legitimacy is manifested well here: if rulers do harm to the people, then people will respond in kind. This is also reflected in Mencius analogy of the relationship between a boat and water: water can flow the boat, and it can sink the boat as well.[5] Based on this synthesis, the rule of benevolence is essentially identical with the concept of the rule of virtue.
Law has always been important in Chinese political theory. It originated in Yu Xin (禹刑) in the Xia Dynasty, perfected in the Qin and Han dynasties, and fully developed during the Tang Dynasty.[6] However, Chinese traditional rulers never practiced true rule of law; they ruled by law since emperors and their family members were not subject to the same punishment of the law; government officials and top elite would always be treated with special privileges, immunities, and exemptions. Unlike modern constitutionalism, law was not used to limit the power of the rulers either. The notions of majority rule and the rule of law were notably absent in Chinese traditional politics.
The functions of virtue and law in ancient China can be understood using an instrumental approach. Different autocratic rulers manipulated virtue and law, and used them to strengthen their political legitimacy. If the rule of virtue represents the persuasive element of a government that is essentially benign, then the rule by law represents the coercive element that is inherently authoritarian in nature. This ancient political wisdom tells us that a government is like a sandcastle if no coercive force is present, but a government that relies solely on the use of coercion and force cannot commend voluntary obedience to its authority and will not last either. Some Confucian thinkers want us to have faith in the rule of virtue since it links rulers’ right to govern with the Mandate of Heaven. However, ren zheng for most part is merely a myth rather than a reality since knavery, treachery and deceit cannot be cured by ethics alone, and the call for leading by example is very much a symbolic and ceremonial gesture for most rulers, and lacks of real substance.[7] In spite of this nonconformity, most Chinese traditional political thinkers still believe that an ideal government is the one which exercises both rule of virtue and rule by law.
Chinese traditional governing philosophy emphasizes two kinds of rulership: wang dao (王道) and ba dao (霸道).[8] Wang dao was first mentioned by Mencius and is considered to be the highest goal of ren zheng. It relies on persuasion, education and influence and the politics is essentially consensual. It is a prescription for a self-regulating society based on virtue and morality in which the government needs to exercise only minimum control. The term ba dao was probably conceptualized by Xunzi (313BC–238BC) first,[9] and then promoted by Han Feizi (280BC–233 BC). As a ruling style, ba dao relies on clear written rules and laws, and reward and punishment，and a strong state based on power, authority, and checks and balances. Ba dao is also maintained by the use of coercion, fear and duress. The political relationship under ba dao is essentially adversary and legalistic. Qiang dao (强道), a third type of rulership mentioned in classic literature, is the extreme form of ba dao; it is dependent entirely on the use of physical coercion and abuse. Wang dao and consensual politics is the ideal society of Confucianism, and ba dao and adversary politics is advocated by legalists. Ba dao and adversarial politics were often discredited and condemned because of their association with the Qin Dynasty’s qiang dao politics.
Nevertheless, the debates between the rule of virtue and the rule by law are pretentious. As the author of Fan Jing, a Tang Dynasty classic, Zhao Rui points out, although all rulers public advocate wang dao, but they all practice ba dao silently. Even modern-day writers such as Lu Xun believes that “Chinese wang dao appears to be in the opposition to ba dao, but nevertheless, the two are twin brothers,” and “[b]efore the embracement of wang dao, the ba dao will come before and after it.”[10] The relationship of the two is similar to the relationship between yin and yang—one cannot live without the other.[11] Many traditional Chinese classics, such as Huai Nanzi and Fan Jing, warn rulers not to rely solely on just one ruling style. To practice wang dao when ba dao should be implemented will be a big mistake, or vice versa.
Some of Western political thinkers share the similar views. A republican form of government, according to Greek philosopher Plato, was a mixture of virtue and law.[12] Aristotle defines virtue as generosity, courage, mildness, and moderation.[13] While Aristotle emphasizes the importance of incorporating virtue, the idea of rule of virtue as a governing philosophy is primarily a Chinese invention. Western liberalism and social contract theory developed in later time focus exclusively on the use of legal mechanisms to define relationship between the rulers and people.
Authoritarianism and legalism implied by the concept of ba dao is an important ingredient of governance. Even in a modern-day democratic republic, authoritarianism and legalism are still playing a vibrant role in defining the boundary lines between state authority and individual freedom. I would argue that the notion of ba dao is a key prerequisite for, as well as a key ingredient in a democracy. Unlike most political scientists who try to separate democracy from authoritarianism, I put this type of legal authoritarianism back in. Our love of democracy often compels many of us to embrace liberty and plebiscitarianism unconditionally, and consequently, we tend to forget that discipline and the rule of law remain essential components of a functional government.[14] Whether we like it or not, adversarial nature of state affairs justifies state’s monopolistic use of physical force for the purpose of maintaining peace and order. The complexity of state affairs today demands de-politicization of the social arena and the settlement of disagreement and conflicts through regular administrative and legal channels rather than political channels. A democratic society that is not regulated by law, where all of its conflicts must be resolved through politics, is destined to fail. Law is the legitimate way a government can exercise its control over the governed. It is prerequisite for a functional republic. As Alexander Hamilton put it,
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.[15]
Modern democracy derived its origin from Western natural law tradition and its association with the notions of natural rights, popular consent, and popular sovereignty. So wang dao or “democratic virtue,” a term used by John Dewey, does exist, and ethics always plays an important part in politics. [16] But many Western democracies also depend heavily on the use of laws to minimize political conflicts and codify individual behaviors, and on the creation of a constitutional system to fight against ambitious human nature. The idea of wang dao is missing in Western writing, and the needs to cultivate individual moral character and promoting ethical political behaviors are not emphasized as much as Chinese traditional political theory.[17] Therefore, politics in Western democracies is largely adversarial in nature. American style of pluralist democracy, for instance, is a good example.
Chinese traditional political ideas of wang dao and ba dao certainly have their own historical limits. But modern politics bears a resemblance to what Chinese traditional political thinkers envisioned centuries earlier.[18] Virtue and law are still crucial ingredients of contemporary political governance and politics. Virtue continues to the foundation of the political world, but law has been redefined as an instrument to limit the power of a government as well a means to control the governed. The world still operates the same way as Chinese traditional political thinkers see it: without virtue, governance is impossible, and without law, a government cannot function either.[19] Virtue can be used hypocritically for personal gains, and law can be abused to produce tyranny.[20] This political dualism is a political wisdom that we need to take more seriously when we think of China’s political reform. The ideas of wang dao and ba dao in its modernized interpretation can form a theoretical underpinning of a more balanced approach toward democratization in China.
Wang Dao and Consensual Politics
Wang dao as a Confucian idea has been encouraged throughout Chinese history. During the Confucian time, wang dao was interpreted as governing in the way how the three sage rulers governed. Later, the meaning was reinterpreted by Confucian scholars, especially during the Song Dynasty. Wang dao became tian dao (天道) or the heavenly way of governing. It implied the use of the Mandate of Heaven as a source of political legitimacy, and morality as a limit on the ruler’s conduct.
Unlike European absolutism in early modern times, the Chinese idea of wang dao does imply certain limits on what rulers can and cannot do: their policies must benefit the people; they must not take excessive taxes from the people; their actions should not disrupt farming seasons; they should put the people first and make sure the poor receive assistance, the young are well attended to, and the elderly are cared for. Through these good deeds, the rulers will be able to accumulate their collective trust, or social and political capital using a sociological term, for their reign. They will expect some return from the ethical roles they played and the services they provided to the people in the form of tacit political support. This understanding is a reflection of Mencius’s min ben ideas, which can be translated as “regarding the people as the root of the state” or simply “putting the people first.” This concept resembles the idea of popular consent but without its rational-legalist tone. It focuses, instead, primarily on the need to look after the interests of the people and govern on behalf of the people.[21]
Wang dao demands people’s voluntary submission to the ruler’s authority. This must be accomplished through the exercise of benevolent rules and openness for diverse opinions. Rulers must seek some form of tacit popular approval—not by way of explicit and expressed public opinions, but by winning the hearts and minds of the people. In this sense, wang dao seeks to build a reciprocal relationship between the ruler and his people. Consider the following quotation from Mencius:
Here is the way to win the empire: win the people and you win the empire. Here is the way to win the people: win their hearts and you win the people. Here is the way to win their hearts: give them and share with them what they like, and do not do to them what they do not like. The people turn to a humane ruler as water flows downward and beasts take to wilderness. [22]
The utilitarian element in Chinese traditional political theories is centered on the concept of “li min.” The Book of History states that the hearts and minds of the people are unpredictable, so only by giving them the benefits they want rulers can make them complacent.[23] According to the book Han Feizi, “Profit is his [the ruler–added] means of winning over people.”[24] Li min means asking rulers to give primary consideration to the welfare of the people. It is closely related to the concept of people’s livelihood (min sheng). According to this idea, a good ruler should not be preoccupied with benefiting himself and indulging in his personal luxury and comfort; instead, he should be concerned with the welfare of his subjects first. In the same vein, a ruler should not take profits away from the people.