Administrative law judges might be unconstitutional under the separation of powers because they should be subject to presidentially controlled removal.
The Promise of Confucian Liberty
Habi Zhang, in her “What the West Got Wrong About China,” repeats a well-worn criticism: Confucianism is nothing other than statist, paternalistic authoritarianism. Zhang has serious concerns about current regimes that I do not intend to address here. My goal is only to ask: is it true that Confucianism necessitates a form of despotism that denies rights and ultimately devolves into statist communitarianism?
Zhang argues that Western notions of freedom, such as those expounded by Hannah Arendt, presuppose that “humans are born into the world as an individual being endowed with human dignity and rights because we are created in the image of the Creator.” Only these individualistic conceptions of freedom, Zhang argues, on which a human being is a “rights-bearing individual” who can subsist as an “autonomous self,” will permit an open society in which values such as popular participation in government, separation of powers, constitutionalism, and fundamental rights to freedom of speech or conscience will be respected. By contrast, the Confucian tradition “negates the self,” holding (as in the Classic of Filial Piety 孝经) that human beings’ bodies belong to their parents and other ancestors. This belief provides a grounding for obligations of filial duty and gratitude, as well as the injunction “not [to] presume to injure or wound” our bodies. In Confucian ethics, allowing oneself to be mutilated would be an act of impiety, showing ingratitude for what your parents have given you. These same premises also ground an obligation to have children, honoring your family obligations by doing your own part to continue the family into the next generation.
I will not attempt to argue that Confucianism is essentially democratic or even compatible with the individualism of Arendt’s picture. Instead, I will draw a simple parallel. Western thinkers such as Aristotle, Cicero, Aquinas, and others were representative of a significant thread of Western thinking that eventually was codified under the name of ‘natural law.’ These held, broadly, that human beings belong naturally to political society, as much as they do to families. People are not individualistic atoms floating in a void of ‘rights,’ detached from the common good of all. These same traditions came to embrace, if not produce, much of the reflection on ‘natural rights’ that undergirds democratic and liberal forms of government. Modern natural law thinkers, such as John Finnis, accept limitations on the state’s authority on the basis of natural law commitments. I submit that natural law commitments mirror, in all relevant respects, the Confucian tradition. Ergo, Confucians could follow the same path that natural law thinkers have already trodden. Statist, authoritarian, illiberal, and paternalistic forms of politics do not exhaust possibilities for Confucian political thinking.
At the turn of the 20th century, amid societal upheavals, the leftist writer Lu Xun (鲁迅, pen name of Zhou Shuren 周树人) became one of the most influential critics of Chinese society at that time. In his famous “Madmen’s Diary,” (狂人日記) he portrayed the plight of a ‘madman’ who starts to imagine that all those around him are conspiring to engage in cannibalism and eat him. The madman starts to see in the Confucian classics, which otherwise engage in high-flying rhetoric about our obligations to society, sanction for cannibalism. The symbolic satire of Lu Xun is clear: Confucianism is a hypocritical moral system that is holding the Chinese back, leading to a society that consumes and traps its own members in ideological chains rather than freeing them to live a good life. The satire was effective in producing popular contempt for the Confucian tradition among revolutionaries, so much that a popular slogan during the May Fourth Movement declared that true progress in China would not be possible without bringing down the “Confucian family store” (打倒孔家店). Zhang shares Lu Xun’s view that the Confucian vision of human life is mutually exclusive with freedom and individuality. Chinese Confucian tradition was inevitably bound to privilege “obedience and uniformity” in such a way as to be inevitably statist and authoritarian in all of its various incarnations throughout history.
But this claim that Confucianism is inherently authoritarian itself constitutes a political statement. History has been airbrushed by those on both the political right and left for their own purposes. Zhang’s critique misfires by reading into the tradition assumptions about what Confucians must be like, because of historical contingencies in Chinese history.
The history of any country or school of thought involves tragedies and failed aspirations. Modern China is no exception. Chinese history did not march inevitably to its present place, nor is Confucianism a monolith. As China opened up to the world in the 19th century, many of the early Confucian encounters with the West were positive. Progressive Confucians such as Wang Tao (王韜), Guo Songtao (郭嵩燾), and Yan Fu (嚴復) saw in the Western institutions of liberal democracy not the negation of Confucianism but its fulfillment. The moribund institutions of the Qing and Ming dynasties had fallen short of Confucian ideals, never successfully implementing universal education, voluntary adherence to moral and legal norms, and impartial justice (公理). Western institutions offered useful examples which could help bring those Confucian ideals to fruition in the modern age – the ‘Golden Age’ longed for by the classical scholars. It is fascinating to think what would have happened if their warnings had not gone (largely) unheeded.
The May Fourth Movement that sought the liberation of Chinese society from its ‘feudal’ situation was not driven simply by anti-Confucians, but also by people inspired by the classical tradition. Hu Shi (胡適), the person who can be most single-handedly credited with devising the above-mentioned slogan against the ‘family store,’ himself recognized alternative, unexplored possibilities in the tradition and exploited them in service of his own politics. In “The Natural Law in the Chinese Tradition,” Hu appealed to both the classical and later neo-Confucian writings about a universal moral principle (理) as mirroring in the Chinese tradition the same intuitions that informed Western notions of natural law in Aristotle and Aquinas. This concept, he argued, “always played the historical role of a fighting weapon in mankind’s struggle against the injustice and the tyranny of unlimited human authority.”
Natural law politics in the West rested on assumptions largely shared by the Confucians: that society is natural to human beings, that law derives its binding character from the moral law, and, at least in principle, that institutions or law can be criticized when they fall short of that moral law. For example, the obligations of children to their parents or citizens to their country, which we see embodied in classical Chinese xiao (孝), are as much a central moral virtue in Cicero, Augustine, and Aquinas as they would be for Confucius. The ‘pious Aeneas’ is at the core of Virgil’s epics, and Cicero characterizes pietas as that virtue which “admonishes us to do our duty to our country or our parents or other blood relations.” Aquinas grounds pietas in the fact that “a thing is indebted in a special way to that which is its connatural principle of being and government.” These are words that any Confucian could endorse.
The fact that the state was natural to human life, so that we had natural relations of piety toward our government, was not a justification for mindless servitude of either parents or country. Indeed, the recognition that these relations are natural grounded obligations for the state as well as for citizens. As Mencius argued, there is no difference between killing a man with a sword and doing it with government. The state plays an essential role in enabling or disabling human freedom; rulers can be culpable, and even removed, when they abuse that power. Mencius holds, much like Aquinas, that rulers can permissibly be deposed, under appropriate conditions, since authority in the state derives from moral conditions that tyrants lack by the very fact of their immoral tyranny. The wrongness of tyranny can be explained precisely as an abuse of those natural relations that constitute the state’s justification.
Zhang’s claim that human beings were seen not “as beings of intrinsic value but as a bundle of utilities,” arguably represents Chinese statist ideas derived not from Confucianism but from the school known as ‘Legalism’ (法家). Coming to the fore at chaotic points in Chinese history when stability was of supreme importance, the Legalist strategy required sacrifice of individual freedom in favor of an impartial achievement of outcomes through technical means, such as bureaucracy. Legalists were paradigmatic illiberals, famously burning books to ensure ideological conformity. But there was always tension between these ‘realist’ approaches to politics in the Chinese tradition and the Confucian ideal of a state that reflected moral ideals of justice, humanness, and family relations. It can be argued that what the Chinese lacked were largely stable institutions, capable of protecting individuals from consumption by the state, rather than philosophical schools capable of affirming human dignity or rejecting consequentialist justifications of political power. Alternative Confucian grounds for affirming equality were not in principle unavailable.
The neo-Confucian (道学) revival involved a movement among Confucians to re-focus attention on moral cultivation and metaphysics. Their views can often reflect prejudice toward women or the illiterate, but their philosophy does not judge individuals merely as utilities. Their school affirmed that each person possessed in themselves the Heavenly Principle that constituted the structure of the universe (太极) and thus the capacity to become a sage (圣). Classical Confucians and their neo-Confucian disciples may not have envisioned democratic governance or liberal norms as following from these basic affirmations of human dignity, but neither did early Christians – St. Paul did not dream of an end to slavery when he wrote to Philemon, but that does not mean that Christianity’s principles were not deeply opposed to that institution. It took quite a long time for political institutions to ‘catch up’ with the affirmation that all men were created in the image of God.
In the same way, the fact that Confucianism has allied itself to authoritarian or statist means does not entail that it must. It is a matter of great scholarly interest whether and in what way Confucian ideas lend themselves to such a development. Many contemporaries defend Confucian theories of human rights, democratic politics, and public reason. The Confucian vision of politics will not be a classically liberal one, but that does not mean that it will be illiberal or authoritarian. Indeed, a Confucian was centrally involved in the drafting of the UN Declaration of Human Rights (Peng-chun Chang张彭春). Confucian politics, like the natural law tradition, affirm that politics should aim to follow the standard of Heaven, to pursue the true moral good of all, and to achieve universal peace and harmony. These ideals were once part of the classical liberal tradition, but contemporary liberalism has either eschewed support of such ideals or has embraced a more substantive moral vision.
Some contemporaries, in response, can find nothing redeemable in the liberal tradition and reject the whole project of an open society, root and branch, longing for a return to statist and authoritarian ideals in the West. Confucianism is well situated to be brought into dialogue with Western natural law schools of thought because they stand united against illiberalism, just as they jointly oppose shallow liberal contractualism. Together they provide grounds to defend, first, that law has binding force only insofar as it embodies and determines moral norms otherwise epistemically accessible to all (viz., conversely, coercion is legitimate only if justified to all reasonable citizens), and, second, that the peace at which good government aims is constituted by right relations of love and civic friendship. Putting these traditions together can then provide grounds for a moral defense of the open society, as opposed to a merely contractualist one dialectically undermining ‘cultural relativist’ critiques of those open societies in the process. The justification for open societies does not depend upon a particular shallow form of European rationalism, but is derived from a law of nature common to every time and place.
These traditions help us to recognize the hidden evil in views voiced by our contemporaries, echoing Legalist consequentialism, calling us to set aside moral limitations on government power in favor of the stability (a false ‘common good’) that the undermining of liberal institutions and norms seems to promise. By legitimating in principle the imposition of widespread and severe limits on political participation, free expression or press, and practice of religion, they hope to achieve harmony, stability, and greater social cohesion. But, as Mencius pointed out, the root of true government lies not in repression but in education toward virtue. The sage kings Yao and Shun which the Confucians admired were accounted great because their rule led their citizens to ‘become possessors of themselves’ (使自得之). Their response to consequentialism, then, was to ask: “Yao and Shun ruled all under Heaven; did they employ their hearts in vain?”
Natural law politics West and East can recognize that the open society, supported by liberal institutions and norms, instantiates those true moral norms represented by equality, dignity, and human rights. As Mencius noted of the sages before his time, including Confucius, “Had it been necessary to perpetrate one wrongful deed or to kill one innocent man in order to gain the Empire, none of them would have consented to it.” Heaven’s Mandate is not thus.