Law In Post-Mao China: Confucianism, Legalism, Imperial Traditions

1280px-great_hall_of_the_people_at_night

The Great Hall of the People, Beijing (photo by Thomas.fanghaenel, licenced under CC BY-SA 3.0 via Wikipedia Commons)

In the previous post we have described the similarities and differences between Maoism and Legalism, and in particular we have shown the parallels between Maoist and Legalist doctrines regarding the establishment of an autocratic, centralised state. Moreover, we have demonstrated that Mao Zedong rejected Confucian values, which he viewed as “reactionary”. In this post we will show how the People’s Republic of China (PRC) in the post-Maoist era has preserved elements of Legalism, Leninism and of the imperial legal system; at the same time, however, it has also rediscovered Confucianism as a more humane and family-oriented ideology which helped the Communist state overcome the brutality and the excesses of Maoist class struggle. Beijing’s attempt at combining Legalism, Leninism, Maoism and ancient imperial traditions has created a state with ideologically inconsistent and weak foundations. Yet at the same time the Chinese Communist Party (CCP) has succeeded in preserving power and consensus exactly because it draws upon such broad and various traditions.

Post-Mao China And Imperial Law

In 1803 emperor Jiaqing (嘉慶) was returning to his palace on a sedan chair, when shortly before entering the gate a man brandishing a knife attacked him. Imperial guards and servants soon overcame the assailant, who later confessed that he was an unemployed cook. Driven to despair by poverty he had convinced himself to be invulnerable and a skilled fighter. He was sentenced to death and carried off to the execution ground, where his two sons were forced to watch as the executioners slowly cut slices of flesh from their father’s body. To no avail did he entreat his murderers to finish him off. The emperor had decreed that he must suffer as long as possible (see: Mary M. Anderson: Hidden Power: The Palace Eunuchs of Imperial China, 1990, p. 281).

Despite their immense power, Chinese emperors and their dynasties always lived in fear of assassinations, revolts and external aggression. Dynastic change was always brought about by violent uprisings or foreign invasions. Not all rebellions were successful. Many of them, such as the Taiping Rebellion or the White Lotus Rebellion, were put down after a long and bloody struggle. Yet despite their failure, such revolts proved that imperial power was not unshakable, and the emperors knew they had to be vigilant.  As a matter of fact, the main purpose of the entire Chinese legal system was to protect the emperor and the dynasty from such menaces. Plotting rebellions (謀反), desecrating the emperor (謀大逆) and plotting treason (謀叛) were the first three of the so-called “ten abominations“, the most evil crimes according to imperial legal codes.

Imperial China’s legal tradition was based on two schools of thought: Legalism and Confucianism. As we have seen in a previous post, Legalism sought to establish a powerful, autocratic, centralised state in which the king ruled through a system of laws. Confucianism, by contrast, stressed the importance of morality and “rule by virtue” rather than “rule by law”. Although these two traditions were originally adversarial, we have previously demonstrated that imperial China built upon both schools of thought, creating an autocratic dynastic state mitigated by Confucian ethics.

The PRC and Legalism

The Legalist school was useful to the emperors because it justified the ruler’s absolute power and the law as a tool of monarchical governance. Confucianism, on the other hand, helped to avoid the excesses of tyranny which had led to the downfall of the first imperial dynasty, and it created a moral system based on the family, making Chinese society self-ruling (see Zhengyuan Fu: China’s Legalists: The Earliest Totalitarians and Their Art of Ruling, 1996, p. 58; Kung-Chuan Hsiao: Rural China: Imperial Control in the Nineteenth Century, 1960, Chapter 6).

During Mao’s dictatorship, the CCP tended to emphasize the Legalist tradition, while it dismissed Confucianism as a “reactionary” force. It was only after Mao’s death that Confucianism began to be rediscovered as a tool of moral and social control. A brief analysis of the Constitution of the People’s Republic of China (PRC) and of national security laws reveals that the post-Mao state has retained and adapted legal principles of three ideologies: Legalism, Confucianism and Leninism. By contrast, it has almost entirely discarded Marxism; a few references to the latter can still be found in PRC law, yet they only exist on paper and have little practical meaning.

The legal system of the PRC presents fundamental Legalist principles, most especially its concern for wealth and power, for the preservation of a centralised, autocratic government, the prevention of rebellions, and for the defence against foreign powers. From this point of view, the emperor and his dynasty have been replaced by the Communist Party itself. Since Marxism has been de facto abandoned but in name, the absolute rule of the Communist Party can no longer be ideologically justified unless one regards absolute rule in a Legalist sense: as the perpetuation of centralised power for its own sake, a power to which society must unconditionally submit.

The Book of Lord Shang (商君書, 3rd century BC), a classic of Legalism, explains the principle of the supremacy of the state over the people, and of the need for harsh punishments and just rewards in order to make the people ready to fight for their king:

If the people are stronger than the government, the state is weak; if the government is stronger than the people, the army is strong … If the people are stronger than the law, there is lawlessness in the state, but if the law is stronger than the people, the army will be strong. Therefore is it said: ‘Governing through good people leads to lawlessness and dismemberment; governing through wicked people leads to order and strength‘ … Punishment produces force, force produces strength, strength produces awe, awe produces virtue. Virtue has its origin in punishments. For the more punishments there are, the more valued are rewards, and the fewer rewards there are, the more heed is paid to punishments … (Yang Shang: The Book of Lord Shang: A Classic of the Chinese School of Law, trans. J. J. L. Duyvendak, 1963, pp. 207-210, my emphasis).

Han Feizi (c. 280 – 233 BC), one of the most prominent Legalist scholars of the Warring States period, was well aware of the risk of rebellion and treason which kings constantly faced. In Han’s worldview, the sovereign was surrounded by dangers, and only by isolating himself, mistrusting his subordinates, keeping a distance from his ministers could he hope to avoid usurpation and manipulation. Han wrote:

If you do not guard the door, if you do not make fast the gate, then tigers will lurk there. If you are not cautious in your undertakings, if you do not hide their true aspect, then traitors will arise. They murder their sovereign and usurp his place, and all men in fear make common cause with them: hence they are called tigers. They sit by the ruler’s side and, in the service of evil ministers, spy into his secrets: hence they are called traitors. Smash their cliques, arrest their backers, shut the gate, deprive them of all hope of support, and the nation will be free of tigers. Be immeasurably great, be unfathomably deep; make certain that names and results tally, examine laws and customs, punish those who act willfully, and the state will be without traitors

In our present age he who can put an end to private scheming and make men uphold the public law will see his people secure and his state well ordered; he who can block selfish pursuits and enforce the public law will see his armies growing stronger and his enemies weakening. Find men who have a clear understanding of what is beneficial to the nation and a feeling for the system of laws and regulations, and place them in charge of the lesser officials; then the ruler can never be deceived by lies and falsehoods. Find men who have a clear understanding of what is beneficial to the nation and the judgment to weigh issues properly, and put them in charge of foreign affairs; then the ruler can never be deceived in his relations with the other powers of the world (Han Feizi: Basic Writings, trans. Burton Watson, Translations from the Asian Classics, 2003, pp. 17-22).

The PRC has preserved the Legalists’ understanding of absolute power and the need to guard it from usurpers and traitors. However, it has integrated another ideological element: Leninism.

The PRC and Leninism

As Leninism we understand the theory of state centralism under the leadership of a single party. The term Leninism here refers only to the “methods of ruling” of the Communist Party. As a matter of fact, the CCP no longer pursues a Marxist policy of class struggle, abolition of private property, collectivisation of the means of production and eventual “withering away” of the state. Therefore, the CCP’s policy cannot be called Marxist-Leninist. The features of Leninism which the CCP leadership has retained are solely those regarding the principles of centralism and dictatorship.

In The State and Revolution (1917) Lenin explained why a dictatorship of the proletariat was necessary to realise Communism. He believed that the Communist Party – as the vanguard of the working classes – had a historical leadership role in guiding the masses and promoting the revolution; he further believed that democracy could exist only after the collectivisation of the means of production and the abolition of exploitation of man by man had been achieved. He believed that democracy was an instrument of the bourgeoisie, and that no freedom could exist if class exploitation was not eliminated. He wrote:

[T]he dictatorship of the proletariat, i.e., the organization of the vanguard of the oppressed as the ruling class for the purpose of suppressing the oppressors, cannot result merely in an expansion of democracy. Simultaneously with an immense expansion of democracy, which for the first time becomes democracy for the poor, democracy for the people, and not democracy for the money-bags, the dictatorship of the proletariat imposes a series of restrictions on the freedom of the oppressors, the exploiters, the capitalists …

Only in communist society, when the resistance of the capitalists have disappeared, when there are no classes (i.e., when there is no distinction between the members of society as regards their relation to the social means of production), only then “the state… ceases to exist”, and “it becomes possible to speak of freedom” …

Furthermore, during the transition from capitalism to communism suppression is still necessary, but it is now the suppression of the exploiting minority by the exploited majority. A special apparatus, a special machine for suppression, the “state”, is still necessary, but this is now a transitional state. It is no longer a state in the proper sense of the word; for the suppression of the minority of exploiters by the majority of the wage slaves of yesterday is comparatively so easy, simple and natural a task that it will entail far less bloodshed than the suppression of the risings of slaves, serfs or wage-laborers, and it will cost mankind far less.

Until the “higher” phase of communism arrives, the socialists demand the strictest control by society and by the state over the measure of labor and the measure of consumption; but this control must start with the expropriation of the capitalists, with the establishment of workers’ control over the capitalists, and must be exercised not by a state of bureaucrats, but by a state of armed workers (Lenin: The State and Revolution, my emphasis). 

One clearly sees that Lenin embraced suppression and violence as necessary tools of political action. For him, any society which was not dominated by the dictatorship of the proletariat was per se violent and unjust. He therefore did not believe in the peaceful resolution of social issues.

In “Democracy” and Dictatorship (1919) Lenin criticised democracy as a lie fabricated by the capitalists:

It is profitable and indispensable for the bourgeoisie to conceal from the people the bourgeois character of modern democracy, to picture it as democracy in general or “pure democracy” … The dictatorship of the proletariat alone can emancipate humanity from the oppression of capital, from the lies, falsehood and hypocrisy of bourgeois democracy — democracy for the rich — and establish democracy for the poor … (Lenin: “Democracy” and Dictatorship). 

One important element of Leninism – which was fully adopted by Mao Zedong – is the idea that the “people” are not the individuals possessing citizenship, but only the exploited classes. Therefore, it is the Party which decides who the people are. As a result, the CCP uses the term “people” to refer to those citizens who follow the leadership of the Party.

The PRC of the post-Mao era has successfully integrated the above mentioned elements of Legalism, Leninism and imperial legal codes in order to create a state which is centralised and autocratic, and in which the law is a means to avoid rebellion by the citizens and aggression by foreign powers. In order to illustrate this point, we shall examine two documents: the national security law of 2015 and several articles of the PRC Constitution.

The Synthesis of Legalism, Leninism and Imperial Law in Post-Mao PRC

A new National Security Law passed on July 1, 2015, combines traditional elements of Maoism and Leninism (the people’s democratic dictatorship and the leadership of the Communist Party) with principles which are surprisingly similar to those spelled out in the so-called “Ten abominations” of old imperial legal codes. We shall now examine Article 15 of the national security law:

The State persists in the leadership of the Chinese Communist Party, maintaining the socialist system with Chinese characteristics, developing socialist democratic politics, completing socialist rule of law, strengthening mechanisms for restraint and oversight of the operation of power, and ensuring all rights of the people as the masters of the nation, and strengthening restraint and oversight mechanisms on the operation of power.

The State guards against, stops, and lawfully punishes acts of treason, division of the nation, incitement of rebellion, subversion or instigation of subversion of the people’s democratic dictatorship regime; guards against, stops, and lawfully punishes the theft or leaking of state secrets and other conduct endangering national security; and guards against, stops, and lawfully punishes acts of infiltration, destruction, subversion or separatism by foreign influences (my emphasis) .

The Constitution of the People’s Republic of China, too, confirms the singular synthesis of Legalism, Leninism and imperial legal traditions. Let us examine some articles of the Constitution which deal with the concept of the people’s democratic dictatorship, with the identification of state and Party, with state control of public opinion (through press, film etc.), and with the submission of the individual to the state:

Article 1 The People’s Republic of China is a socialist state under the people’s democratic dictatorship led by the working class and based on the alliance of workers and peasants. The socialist system is the basic system of the People’s Republic of China. Disruption of the socialist system by any organization or individual is prohibited.

Article 22 The State promotes the development of art and literature, the press, radio and television broadcasting, publishing and distribution services, libraries, museums, cultural centres and other cultural undertakings that serve the people and socialism, and it sponsors mass cultural activities.

Article 23 The State trains specialized personnel in all fields who serve socialism, expands the ranks of intellectuals and creates conditions to give full scope to their role in socialist modernization.

Article 24 The State strengthens the building of a socialist society with an advanced culture and ideology by promoting education in high ideals, ethics, general knowledge, discipline and the legal system, and by promoting the formulation and observance of rules of conduct and common pledges by various sections of the people in urban and rural areas.

The State advocates the civic virtues of love of the motherland, of the people, of labour, of science and of socialism. It conducts education among the people in patriotism and collectivism, in internationalism and communism and in dialectical and historical materialism, to combat capitalist, feudal and other decadent ideas.

Article 28 The State maintains public order and suppresses treasonable and other criminal activities that endanger State security; it penalizes criminal activities that endanger public security and disrupt the socialist economy as well as other criminal activities; and it punishes and reforms criminals.

Article 51 Citizens of the People’s Republic of China, in exercising their freedoms and rights, may not infringe upon the interests of the State, of society or of the collective, or upon the lawful freedoms and rights of other citizens.

Article 52 It is the duty of citizens of the People’s Republic of China to safeguard the unification of the country and the unity of all its nationalities.

Article 53 Citizens of the People’s Republic of China must abide by the Constitution and other laws, keep State secrets, protect public property, observe labour discipline and public order and respect social ethics.

Article 54 It is the duty of citizens of the People’s Republic of China to safeguard the security, honour and interests of the motherland; they must not commit acts detrimental to the security, honour and interests of the motherland.

Article 55 It is the sacred duty of every citizen of the People’s Republic of China to defend the motherland and resist aggression.

It is the honourable duty of citizens of the People’s Republic of China to perform military service and join the militia in accordance with law (my emphasis).

The vague formulation of such laws – whose interpretation ultimately rests with the Communist Party itself – is a characteristic of “rule by law” as opposed to “rule of law”; the first means that the government uses laws as tools of governance, while the latter refers to the guarantee of individual rights through an independent judiciary and an elected legislature. As a result, in the PRC the law serves as a means of the Party to defend itself and to secure its power. Two examples of the practice of “rule by law” are the suppression of the 1989 Tiananmen student protests and the recent conviction of Uighur scholar Ilham Tohti.

In his book Escape From China, Zhang Boli, one of the student leaders of the Tiananmen protests, wrote about how he discovered that he had become one of the most wanted men in the country:

June 13, 1989. An order originally issued by the Public Security Bureau in Beijing to arrest the twenty-one most wanted student leaders became a national issue controlled by the Ministry of Public Security. That night I stayed in a friend’s house in the northernmost part of China. My friend was a writer. I arrived in the city on the twelfth of June, then phoned and asked him to pick me up at the railway station. That was the night I saw the news on Central TV and learned that a decree had been issued to arrest the intellectual Fang Lizhi and his wife, Li Shuxian … 

My friend cooked a few light dishes and uncorked a bottle of red wine as he listened to my accounts of the days and nights in Tiananmen Square. His eyes glistened with tears as he slowly drank his wine and listened to my story. When the clock struck nine he turned on the television. The order stated: “Including Wang Dan, these twenty-one students who form the commanders and other leaders of the College Students’ Union are responsible for the counter-revolutionary upheaval in Beijing. Their serious crimes consist of spreading propaganda to provoke the people and conspiring to counter the revolution. They are currently fleeing to escape punishment. We inform all public security bureaus, border security stations, airports, and railway stations in every province, city, and autonomous district to keep a close watch so that they will not be able to leave the country. Once recognized, they are to be detained and immediately handed over to the Public Security Bureau in Beijing.” The order warned all citizens that whoever dared to hide the twenty-one most wanted students would be dealt with severely. Then the picture of Wang Dan, along with a description of all his physical features, appeared on screen. My friend grasped my hand tightly, saying, “Let’s hope they don’t have you, please, please….” But they did (Zhang Boli: Escape From China, 2002, Chapter 4, my emphasis).

The charges of “counter-revolutionary” activities are here devoid of meaning. If one understands the Communist revolution as the seizure of power by the vanguard of the workers and peasants, the organization of class struggle, the collectivization of the means of production, the elimination of all classes and the final withering away of the state – then Deng Xiaoping himself had already undone what had been achieved by the Communist revolution. The students that demanded democracy in 1989 could not be counter-revolutionaries, because there was no Communist revolution to protect any more. The new interpretation of the term “counter-revolution” by the Communist leadership can only be understood from a Legalist point of view, i.e., from the point of view of the preservation of power by a ruling dynasty.

The second example is the conviction of Uighur scholar Ilham Tohti on September 23rd, 2014. Tohti was found guilty of separatism and jailed for life. A member of the Communist Party, Tohti advocated the end of suppression against the Muslin minority, which he believed was leading to the radicalisation of young Muslims. However, he was opposed to the independence of Xinjiang and was therefore considered a moderate. The fact that he was handed down such a severe jail sentence shows that the CCP wants to prevent separatism and anti-Communist movements by meting out harsh punishments even to individuals who are not personally involved in radical movements.

PRC Law And Confucianism

As we have shown previously, Confucianism was one of the most effective ideological instruments of social control in imperial China. Under the leadership of Mao Zedong, however, the CCP abandoned Confucianism, which was considered “reactionary”, and it rather endorsed the autocratic and repressive elements of Legalism. In many respects, the pre-eminence of Legalism in the PRC has remain unchallenged. The Constitution of the PRC as well as its legal codes tend to emphasize state power rather than Confucian family ideology. Nevertheless, the PRC has witnessed a partial revival of Confucianism. One obvious testimony to the resurgence of Confucianism is the fact that the country’s most important cultural institute, the Confucius Institute, has been named after its most prominent philosopher.

Some of the recent laws of the PRC, too, have been inspired by Confucianism. One example is the Chinese Elderly Protection Law issued in 2013. Article 17 states:

Family members should care about the mental well-being of the elderly, they should not neglect them or treat them coldly. Those who live apart from their elderly should visit them often or send their greetings to them. Work units should make sure that family members have the right to get enough days off work in order to visit their elderly according to relevant regulations.

Such provisions show the PRC’s growing concern for traditional Confucian family values, although the Communist state lags fa behind Singapore and Taiwan in the propagation of Confucianism by the government, as we shall show in the next post.

 

 

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