Comparative Journeys: Essays on Literature and Religion East and West

LECTURING ON the topic of China and the problem of human rights on various occasions, I have encountered a number of questions that have been repeatedly asked by audiences far and near. These questions have helped to identify for me a core set of issues related to the topic, many of which, mentioned continuously by the news media, have also been examined and debated in an ever-growing mountain of scholarly literature. For this essay, therefore, I have decided to organize my thought around such a series of questions, in hopes that this experimental format will anticipate some of the reader’s concerns and thereby stimulate further thinking on the subject.

Although I do not believe that China as a national and cultural entity is unique any more than any other such human entity past or present globally, the advocacy of universal human rights, in my view, need not ignore or deny any community’s cultural particularity. For us to ponder this question in the context of our contemporary society in the United States, the first thing we need to remember is that the formal definitions and enumerations of rights may differ significantly in language and substance even between Great Britain and the United States, two nations that, for reasons known to all, have supported each other’s claim to enjoy special intimacy of relations on historical, institutional, and ideological grounds. When we extend the comparison to other Western democracies, the difference continues to widen. Because of both the disparity of cultures in Western nations and the diversity in the precise understanding and definition of rights, the discussion of the topic relative to a civilization like China can hardly expect fruitful progress if it is premised on only the contrast between absolute difference: that is, monolithically on one side an avowal of certain principles alleged to be “self-evident” (in the language of the U.S. Constitution!) and commanding universal assent versus the alleged ignorance and rejection of, or opposition to, such principles on the other.

The tendency in so many reports flooding the popular media of the United States these days is to ignore or belittle the undeniable fact that, since 1991, the Chinese government has issued a series of papers in lengthy detail concerning its understanding of human rights and related problems. Even more significantly, the government has signed two formal treaties: the International Covenant on Economic, Social and Cultural Rights, in 1997, and the International Covenant on Civil and Political Rights, in 1998. Both the promulgated papers and the signatures represent, even minimally, the People’s Republic of China’s (hereafter PRC) serious effort to come to grips with virtually all of the issues pertinent to the subject. That the Chinese interpretations, priorities, and conclusions reached in the process may differ from Western judgment, and that the actual governmental practices and policies frequently do not live up to the ideals and their implications already espoused (a failure, by the way, no Western democratic state is innocent of) do not diminish the significance of this attempt by the Chinese state to grapple with balancing what it perceives to be internal constraints and exigencies and the compliance with international expectations and norms.

My discussion, however, does not focus merely on the current situation but more so on the PRC’s view of human rights, which, as a scholar has pointed out, has evolved from “a complex mix of socialist and Maoist ideas, and of traditional thought and practices, as well as of the historical experience of the Chinese revolution” (Kent 1999, 29). As a student of premodern letters and thought, I am drawn to the shaping influence of ideological lineage and constraint. Because language and practice are unavoidably intertwined, one aspect and ready example of what I call problem in this essay literally surfaces in the terms themselves of the issue at hand. The bisyllabic name used for human rights, renquan

, and the related concept of civil rights, minquan

, are relatively modern inventions for the Chinese language, dating only to the nineteenth century (Kent 1993, 30–50; Zhang 1988, 66–67). However, when these words are used singly, the terms ren, min, quan (humans, people/citizens, and rights) have a vintage that harks back to the literary language of high antiquity. In this context, quan, the word selected in the language to denote rights, is especially noteworthy, because its etymological sense is the weight on a steelyard or that of a scale (e.g., Analects 20.1), and its derivative meaning is “weight” or “measurement” (Analects 18.8). As a verb, its classical meaning is “to weigh,” and thus also the derivative meaning is “to assess critically,” “choose,” or “select” (Analects 9.30).¹ Because the society historically privileged the educated, the aged, and the politically powerful, the word very quickly evolved to combine with other words to form the various cognates relative to the concept of potency: quanneng

(power, capacity), quanbing

(authority), quanli

(power in the sense of authority or strength), quanli

(power in the sense of inherent or conferred right, hence literally, an authorized or legitimate advantage), quanshi

(power in the sense of influence), and quanwei

(powerful presence, but developing into the modern concept of specialized knowledge in a certain area). The subtext of the term points to the accepted assumption that only those with power and authority can properly weigh weighty matters, as when Confucius observed in the last citation:

Xunzi’s remarks touch on a concern pervading the different strands of moral and political discourse in the Warring States (403–221 B.C.). Virtually every savant at the time attempted to find the proper philosophical formulation for accommodating the ineradicable surges of human desire for personal fulfillment, social order, and normative control. Realist philosopher in many ways that he was, Xunzi invokes here the consideration of “advantage and harm” (li hai

), categories common to many of his contemporary thinkers, to serve as the basis of assaying an impulse or appetite by its implied positive or negative consequence. In another section of his collected teachings, Xunzi has argued perceptively that, although the human disposition makes it natural for one to desire wine and meat for food and silk for raiment, a person would delay or postpone his desires, not because they are lacking but because “the extended concern [chang lü

] and regard for consequences [gu hou

]” will make people apprehensive about whether they can sustain the satisfaction of such desires (Xunzi 1987, juan 2, 4.42; Knoblock 1988–1994, 1:193).² Xunzi’s unambiguous observance of how humans can take the long, evaluative view of things relative to immediate needs and wants thus anticipates to a remarkable degree what Charles Taylor, a modern philosopher, has written on the capacity for reflexive thought as peculiar to “human agency.” Building on H. Frankfurt’s distinction between first-order and second-order desires in his elaboration on freedom of the will and the concept of a person, Taylor has asserted that “what is distinctively human is the power to evaluate our desires” (Taylor 1985, 15–16). In the fully developed human person, according to such a view, calculation and choice may often intervene to modify the promptings of instinct, appetite, or need.

Not all occasions of evaluation, of course, permit leisurely deliberation. In the well-known reference by Mencius to a man’s obligation to reach out with his hands to save a woman drowning in water, despite the explicit ritual prohibition of his time against a man touching a woman,³ the word quan must denote a split-second decision. The man’s life-and-death response to the overriding claim of kinship (the woman in the passage is a sao, an elder sister-in-law) and perhaps the equally urgent summons of their common humanity has to be swift. Whether, however, it is the careful reflection of plausible alternatives and consequences or whether it is an instantaneous reaction to a crisis, quan in all the Confucian thinkers cited presupposes the background of educated cultivation. The exercise of quan in the sense stemming from classical discourse may arguably imply the existence of a cultural and “moral” space, to quote Charles Taylor again, “a space of questions … to which our framework-definitions are answers” that will also be indispensable to formulating a notion of the self (Taylor 1989, 29).⁴ This implication of the term’s meaning as connoting on the one hand social and political power and, on the other, the agency of evaluation and enactment is thus not quite the same as our modern conception of right as entitlement, whether natural or conferred. The sense of the sentence “I have the right but not the power to do something” is readily comprehensible to a user of the English language. Its Chinese equivalent, wo you quan dan mei you neng qu zuo shi

, will require a bit more explanation almost in any context. Nevertheless, what has perhaps not been fully recognized hitherto is that part of the word’s etymological trace in the Chinese language may, ironically, confer on its modern usage a shade of meaning more compatible with the liberal Western emphasis of an educated citizenry as a necessary pillar to upholding a democratic republic.

Although I cannot claim that I have skimmed even a tiny fraction of the literature devoted to the subject, I know of no responsible advocate of human rights expressing the conviction that the individual must necessarily prevail against the human community of either family or state. To dispense entirely with the family is, as far as our current knowledge goes, biologically impossible, because human reproduction, first of all, is premised upon natural resources that cannot be supplied by a solitary human being. Until the highly controversial and experimental science of human cloning and its feasibility can reach some sort of cultural and scientific consensus, the phenomenon of parthenogenesis remains a religious myth. Moreover, even if cloning were to become an accepted mode of reproduction, the time necessary to protect and nurture the human infant is longer than that needed for most animals. The family, whether it be in the traditional form of heterosexual parents rearing children, or in some modern variation thereof, remains not only a viable but a necessary biosocial unit for human perpetuity. As for the state, there is no denial that one perennial issue of debate, reaching back to Greek antiquity in the West, is whether some forms of government are better than others. Relative to our discussion of China, this question can, as we shall see, take on pivotal significance, but even in this disputative context, I know of no responsible advocate of universal human rights arguing for the individual’s total triumph over social collectivity exemplified by the family or the state. For, if rights were only a matter to be defended against the encroachment of the body politic, the individual existing without family or state (like Robinson Crusoe or the Tom Hanks character in the film Cast Away) would not need rights. That, however, is not the bottom line of rights advocacy. In historical experience familiar to those of us living in the United States, we know that the state, in fact, must be allowed to intervene quite frequently on behalf of the individual’s interest or right against a family unit or another part of the state, much as the federal government had to take action in the case of the Cuban boy rescued at sea whose mother had drowned while en route to Florida to seek asylum. The idea that universal rights depend on the promotion of an autonomous individual free of all restraints and constraints is thus for me a red herring. A person with diminished capacity or reduced to a vegetative state because of accident or illness cannot in that condition be said to possess autonomy in the strict sense of the word, but he/she still has rights.

When this issue of human rights is explored in the Chinese context, what I want to emphasize now and at all times is that the discourse on the worth and dignity of the individual is not to be equated with an advocacy of individualism. Whatever contrast one may find in the alleged Confucian understanding of the person in community, what complicates the discussion is the often one-sided emphasis of certain modern representations of the tradition. To cite the succinct observation by Henry Rosemont, an esteemed friend with whom I love to disagree:

Rosemont’s devoted engagement with the Confucian writings, including an informed and provocative new translation of the Analects recently published (see Ames and Rosemont 1998), commands genuine admiration, but his sweeping generalization can be disputed at least on three points. First and linguistically, early Chinese thinkers had quite a few terms and expressions available in their discourse whereby they might express a strong sense of the person as an individual entity, if not as an isolated abstraction. The famous negative formulation of the Golden Rule, adumbrated in Analects 12.2, “What you yourself do not desire, do not impose on others” (

), will lose all force of a categorical imperative if the word “yourself” or “self”(ji) becomes modified to read “the communal self”! This word ji

(self) alone⁵ and quite a few other related cognates that stud the huge corpora of Warring States thinkers still await systematic analysis.

Notice, first of all, that the emphasis of this passage is executed with deliberate rhetorical excess: the brevity of the statement is nevertheless laced with the term zi

(its own, by itself) for at least seven times. At first glance, the argument seems merely intent on distinguishing between the capacity of different anatomical parts or physical organs in terms of how they respond to force or influences external to them, a train of thought not unlike Aristotle’s more extended discussion of motion and causality. Upon closer scrutiny, the malleability of such bodily parts as the mouth or the body is contrasted pointedly with the superior mind precisely because the latter’s fierce independence is alleged to be self-induced and self-maintained; nothing could effect change if it did not wish to.

The word zi, we should note further, will eventually combine to form the canonical designation in both literary and demotic Sinitic of oneself (ziji

). Whether these two words, zi and ji, can be understood as remote but apposite parallels of the two stems of aut and auto in ancient Greek that are so instrumental in forming a huge vocabulary crucial for the notions of identity and character of oneself, a vocabulary that, in turn, contributed decisively to establishing the enduring influence of Greek thought and letters in Western culture, would be an interesting exercise in comparative philology and philosophy. This, however, is not our concern here. What we note in Xunzi’s text instead is that this affirmation of the self-directed capability of the mind to decide and act on its own does not make the further claim that it is thereby free of all cultural conditioning and historical constraint, for that would contradict completely Xunzi’s own advocacy of a particular curriculum of rituals and texts designed for Confucian self-cultivation. Taught and disciplined from birth that an individual must always regard himself/herself in conjunction with predetermined human relations (renlun

), as Rosemont rightly outlines the Confucian position, the individual mind, according to Xunzi’s quoted assertion, nonetheless retains fully its own independent power to choose and act. Were that not the case, there would have never been any form of dissent in the teeth of Confucian—or any other ideological—regimentation, historically or in the contemporary world, because the supreme burden confronting a Confucian Chinese in any period involves a personal decision on whether the sovereign he is enjoined to serve absolutely is worthy of such commitment.⁸ On the other hand, sustained and exercised by the mind that chooses and acts, such autonomy nonetheless still must act in dialectical relations with its cultural context and content, much as the “autonomous, freely choosing individual self” that Rosemont (1988, 177) posits for the Western person must decide and act on the very basis of a presupposition that socially valorizes and gives meaning to this form of autonomy in the first place.

Second and philosophically, Rosemont’s claim about “the totality of roles I live in relation to specific others” seems to understand it as an ethically and psychologically harmonious totality. But the alleged harmony, I would argue, is begotten more likely as a product of a partisan Confucian rhetoric. The notion, echoed by another contemporary scholar, that in “Confucianism … a genuine community is not composed of mutually disinterested egoistic individuals, but is composed of virtuous members thinking of shared goals and values over one’s own” (Lee 1992, 252) is directly contradicted by Xunzi as well. That ancient Chinese thinker, in fact, based his entire theory on the origin of rituals as arising from the need to curb the behavior of “mutually disinterested egoistic individuals” who could exist even as family members (Xunzi 1987, chap. 19, “on Rituals”). Because modern interpreters like Rosemont and Lee are inclined to side with the Mencian line of interpretation than with Xunzi, they tend to miss a significant voice of difference on human nature and behavior in the received tradition of classical Confucianism. Even in the Mencian discourse, however, undetected cracks and fissures may undermine the notion of communal totality that defines the person, as Rosemont has just presented it.

For this discussion, we need to recall the familiar debate already alluded to earlier, between Mencius and one of his many tricky interlocutors, on whether a man should rescue his sister-in-law, wife of his elder brother, with the hand if she were found to be drowning (Mencius 4A.17). The man who put this question to Mencius sought to vex the Confucian disciple by posing a seemingly irreconcilable opposition between ritual propriety and the exigency of life and death that was augmented by the claim of kinship (the woman unambiguously was a sao

, wife of an elder brother, and thus hierarchically a superior kin). Without contradicting himself, Mencius answered the bait of difficult query by unhesitantly endorsing the ritual proscription capped by a further ringing declaration: “Not to help by the hand an elder sister-in-law drowning is to be a wolf! In the matter of giving and receiving, a man should not touch a woman; this is ritual. When a sister-in-law drowns and one helps her with the hands, this is weighing [quan].”

Most commentators past and present have considered the parable to be the locus classicus of Confucian affirmation of humaneness over ritualism. What they seldom notice in the story is that, suddenly, a person at the time of Mencius is faced with conflictual claims on his several roles imposed by both nature and culture: as kin, as a practitioner of values based on gender, and as a human being. The meaning and obligations of these roles betoken, of course, persistent and powerful voices of ancient Chinese culture learned from infancy that continuously emphasize their harmonious hold on the individual, but in this case one claim must defer to another. The myth of the harmonious order of human relations (lun) is for that moment shattered. To act properly, the man facing a drowning woman who is his elder brother’s wife must decide instantly, not call a committee meeting of the village elders! If the male protagonist here senses no conflict of cultural constraints or the necessity of choice as an individual, especially in the sense that he can no longer live out “the totality of roles [he] lives in relation to specific others,” the Mencian identification of quan as the decisive factor in personal decision making becomes completely superfluous. “The totality of roles … in relation to specific others” breaks down, and only his choice to extend his hand to save her—a deliberate violation of prescribed ritual norm—would certify his humanity.

The difficulty of confronting and choosing between incompatible norms, the awareness of which may well betoken another distinctive hallmark of human agency, is a familiar theme in Western thought and literature. The famous tale of the young man in Jean-Paul Sartre’s L’existentialisme est un humanisme, who must decide whether he should remain home to care for his ailing mother or join the Resistance and fight, however, is hardly unique when read in the light of the history of Chinese literature. In the latter tradition, there are literally countless examples of such painful agonies of volition, exacerbated, I would argue, precisely by the cultural emphasis that ethics and politics are primarily a matter or principle of human relations (lun li

), of relating the individual to the group, and thus supremely of adjudicating between competing claims on one’s desires. All too often and in too real a manner, the Chinese will discover that one set of relations and its implied moral imposition must take priority and precedence over the other. Whereas Sartre’s young man is exhorted to seek solution for his existential dilemma in the radical act of simply choosing, the contrastive Chinese characteristic of deferring to hierarchical considerations finds exemplification in the sentiment enshrined in the well-known proverb: “To complete political loyalty, it will not be possible for one to complete filial piety” (jin zhong bu neng jin xiao

That saying brings us to the third and final critique of Rosemont’s generalization that Chinese cultural roles define the person “uniquely, fully, and altogether, with no remainder with which to piece together a free, autonomous self.” Even the surface meaning of these words fly in the face of the teachings by Zhuangzi, but, leaving that aside, the alleged perfection of role definition for the person provided by classical Confucian norms cannot be sustained by the fact of cultural change. Historically, it was the ideology deriving from the institution of the absolute sovereign that gave credence to my cited aphorism: to exhaust political loyalty, one cannot perfect filial piety. The traditional Chinese formulation of the principles of social relations has thus always betrayed a preference for a pyramidal model of power lodged in the sovereign and radiating outward to all parts of the state. Hierarchically, it means that the primacy of group over an individual is the logical consequence, because it is thought to be structured in the natural order of things. Once the machinery of imperial governance was forever broken in 1911, however, the question confronting thinking Chinese everywhere is whether their society still need cling to an absolutist view of state power as the only viable mode of national governance, and the urgency of the question is abetted by the fact that the PRC continues to carry a lot of totalitarian baggage stemming from both native and foreign sources. Similarly, with the destruction of the imperial state, the Confucian discourse as its most perduring and articulate ideological prop must now confront the question of whether that traditional taxonomy of roles can continue to provide an adequate delineation, in theory and practice, of the individual Chinese in contemporary society.

Considerations like these end our lengthy detour on the topic of individual and community in relation to the consideration of rights. Whether we agree with Lee Kuan Yew’s government and its flogging of the American youth or not in the incident in Singapore that caused international uproar a few years ago, we have to understand that disagreement cannot, and has not, centered on the government’s legitimate interest in protecting the property of citizens from random, individual acts of destructive violence. The point of dispute, in Singapore or elsewhere, must revolve around the thorny consideration of how the communal or public interest can be protected without the unjust disregard, even sacrifice, of the individual or that person’s legitimate interest.

I have tried to tackle this very complex issue in a longer paper recently published (see chap. 15 of the present volume). Here I can only summarize a few main points of my thought. In a word, my reply to the question is a yes and a no. I strongly believe that traditional Confucian thinking may contain principles and implications that are not completely at odds with the modern Western notion of rights. On the other hand, the way that contemporary scholars, Chinese and non-Chinese, who have focused on developing Confucian tenets as a possible alternative to the advocacy of rights, in my judgment, have in the main presented a wrongheaded interpretation of Confucianism.

In my longer study, my critique of the traditionalist position is based on several points. First, of the fivefold relations of society endorsed by classical Confucianism (sovereign and subject, father and son, husband and wife, elder brother and younger brother, friend and friend), at least four sets are designed to demonstrate and uphold social hierarchy, because one member of each set of this relation is inevitably regarded as naturally inferior to the other and is therefore obligated to be subservient to the other. The ethical and political norms derived from such a scheme of social stratification can never be conducive to the promotion of egalitarian ideals, for thought or behavior. Nonetheless, the familiar teaching of Confucians (Analects 3.19) that “the ruler should treat the subject in accordance with the rites, and the subject should serve the ruler with loyalty” remains a popular proof text for traditionalists eager to see in such expression of “communitarian values” the principle of reciprocal obligations that can supposedly replace the Western concept of rights. The Mencian prescription of normative obligations for the fivefold relationships—“love between father and son, duty between ruler and subject, distinction between husband and wife, precedence of the old over the young, and faith between friends” (Mencius 3A.4, in Lau 1984, 17)—is said to provide the paradigm for “moral relationships and the priorities among them,” all of which involving “reciprocity” (de Bary 1998, 17–18).

The problem with such a view is that, strictly speaking, there is no single word in classical Chinese that corresponds accurately to the English “reciprocity,” particularly as it is construed in de Bary or other modern works of Western scholarship. The term closest to the meaning of mutuality is sometimes identified in shu

, defined by Chinese lexicons usually as ren

(benevolence) and first rendered in English by James Legge in the nineteenth century as “reciprocity,” although its repetition is resisted by more recent translators (e.g., Ames and Rosemont 1998; Lau 1983). Used only once in both Confucius (Analects 15.24) and Mencius (7A.4), it is the key term underlying the formation of the so-called negative Golden Rule—what you yourself (ji) do not desire (yu), do not inflict on others—referred to in both passages. This injunction to protect someone other than oneself from such ills as misfortune, injury, poverty, and death, often deemed universally disliked or detested by ancient Chinese thinkers, understandably led subsequent philologists and commentators to gloss shu as “the capacity to measure others by one’s own considerations.”

The second Chinese word that may connote a sense of reciprocity is bao

. In the two ancient thinkers under discussion (four times in the Analects, twice in Mencius), bao in context has to do with how one should respond when treated with kindness or ill will. The word, as its later usage in the developed Confucian discourse consistently attests, refers thus to the intent and act of repayment, and it is only in this sense that it has implications for the normative obligations prescribed for the fivefold human relations. Even if one were to allow for the use of “reciprocity” by Western scholars to characterize such obligations, however, the English word in this context can never serve as a synonym for equality or the advocacy for egalitarianism. Those obligations are no substitutes for rights precisely because they represent unequal demands or expectations of unequal classes. “To regard docility and obedience as the norm,” declares Mencius, “this is the way of a wife or concubine” (3B.2), a verdict that seriously undercuts his own typology, stated in the passage (3A.4) just cited that what separates husbands and wives are, according to de Bary’s reading (1998), merely gender or functional distinctions. Whatever bie

(distinction, dissimilarity, difference) may mean in the Mencian passage, manifestly it is not a word used to assert that the wife or concubine is “equal” to the husband in any social, ethical, or political sense.

My second point of critique of the traditionalist position centers on its confusion of a biological community with a social community. Classical Confucianism has insisted from the beginning down to the present that, because no essential difference exists between personal ethics and social or public ethics, there can be unity of moral virtues. Just as a son should serve his parents with filial piety (xiao), it would argue, so should a subject serve his ruler with loyalty (zhong). Based on this flawed analogy, the Confucians promoted a virtue of personal ethics as the supreme equivalence of a public and political virtue, and as early as the Han period, filial sons were said to have been sought out as fit candidates for appointment to public office. Failure to implement this ideal, as a modern anthropologist has aptly pointed out, would entail the most drastic consequence:

Against this traditional Confucian line of reasoning, a counterargument must point out that in a condition of kinship, ties and relations between parents and children do not come into existence merely as a social fact or phenomenon. The biological necessity of years of rearing may, for the vast majority of households, foster the deepest bond of affection and mutual accommodation between parent and child. By the same reasoning, the social bond thus created may not readily or necessarily dissolve even in the presence of hurt, antagonism, and injurious violence. In a familial situation with young children, on the other hand, loving indulgence may have to yield to stern intervention if, for example, the toddler insists on playing with boiling water.

By contrast, the state in the form of government is an entirely social creation. As such, its institutionalization in principle must have contingent provisions that would allow for these several possibilities: namely, a clearly delimited set of boundaries for the exercise of its power; the proper modification, if such need arises, of its behavior by peaceful and legal means in both preventive or punitive measures; and its vigilant monitoring by an independent judiciary and press. If the political order deteriorates, the formative principle of the state must also permit the possibility of its dissolution—again preferably by peaceful means such as through suffrage—when it becomes dysfunctional and injurious to its citizens. It should be only obvious that within such a vision of the state, the reciprocal obligations thought to be obtaining between those governing and those governed must be in significant ways different from the morality of the common household. Unfortunately, the homology between sovereign and the patriarchal parent in traditional Confucian discourse tends to absolutize the ruler and father in their respective spheres of power and authority. In their historical experience, the Confucians acknowledge the wisdom of their Master’s words when he declared in a well-known parable that “harsh government is worse than tigers.”⁹ Nevertheless, the Confucian discourse upholding the Chinese conception of the imperial state for more than two millennia can envision no means for changing effectively the behavior of the state government apart from violence born of armed rebellion, and this phenomenon is irrefutably attested by every known record of dynastic change. This fear or inability to envisage change as peaceful transfer of governmental power persists to the very present. In view of this limitation in the Confucian tradition, the advocacy of rights, therefore, must be formulated as an advocacy for seeking new conceptions of the body politic and new means to curb governmental excess and abuse. What recourse does a citizen or, for that matter, a group of citizens—even that of an entire town, village, or province—have for redressing unjust or wrong actions proposed, ordered, or carried out by the state? What social mechanism is there for providing equal consideration and treatment to a lesser community within a larger community?

There are two sides to this issue. I agree first of all that there should be no coercive imposition, although we know also we can expend hundreds of pages arguing and defining what constitutes legitimate pressure and what is coercion. Our own experience in the academy should make us very sensitive to the difficulty of disentangling the thorny issue of particularism versus universalism in any philosophical debate. However, even the partial concession to cultural particularism that has my sympathy does not mean that any nation of whatever particular culture and history it claims to embody is thereby exempt also from the counterclaims of universal civil society in which it asserts to be a participant. Just as the United States should not be allowed to practice unchecked hegemony in any world body, so China herself cannot pursue similar policies in Tibet—to the horrible detriment and destruction of that land’s language, culture, history, and institutions—and think that immunity from foreign censure is an unquestioned right guaranteed by the doctrine of national sovereignty. The Chinese policy of transplanting language, religion, and history onto Tibet is certainly no different from imperialistic practices of her own past with respect to border civilizations. When China disagrees with Japan on junior high school textbook accounts of World War II or her permission for a former Taiwan president to visit Osaka for health reasons, or objects to the Japanese prime minister’s visit to the Yasukuni Shrine to honor souls of soldiers killed in World War II, including many of those convicted as war criminals, Beijing shows little hesitancy in intruding into the internal affairs of another sovereign nation. Even more pointedly, only a laughable but desperate nationalism would maintain that a so-called foreign culture, however conceived and defined, should never be permitted to undermine or dilute a nation’s discrete cultural integrity. If this were true or practicable, the Communists would have to assert that China should never have been encouraged to overthrow completely a form of imperial governance that had lasted for more than 2,000 years, or that Marx and Lenin were covert members of the Han race.

Cultural entities, conceived as national entities, are not insular blocks of static identities, to be determined, exploited, and manipulated by only the purpose and convenience of a privileged communal unit (e.g., the government), with the self-imposed mission of guarding and maintaining the purity of what it conceives to be its communal essence. The history of the modernization of China for the past three centuries, beginning with her first encounter with the European West and then with Japanese and American realities, has been one long tale of both profound foreign influence and prodigious fomentation by native children on native ground. Beginning with the end of the Opium War in the first half of the nineteenth century, the devastating recognition by Chinese elites and commoners alike that a politically and socially bankrupt China could never hope to avoid national humiliation or even outright conquest by foreign powers gained steady momentum. The momentum itself was fueled by increasing contacts of Chinese nationals with foreign culture in foreign lands—in Japan, in North America, and in Europe—no less than with non-Chinese residents and institutions right in their own homeland. It was this sustained but wrenching exchange of cultures that led to the climactic and unprecedented act, on the part of the Chinese people, of overthrowing once and for all a form of imperial governance that had lasted for more than two millennia.¹⁰

To acknowledge this bit of familiar history is not to overlook, of course, the many atrocities perpetrated by foreign imperialism that have so severely scarred the collective memory of the Chinese people—and the lingering effects of such trauma should not be lightly taken. On the other hand, Chinese modernity and its ongoing process of reordering and transforming cultural norms could not have occurred at all without the ab extra insertion—whether by explicit design and intervention or by unconscious adoption and assimilation—of so-called non-Chinese values and ideals into native civilization on the part of the Chinese people themselves. In the late twentieth century, the Chinese government is on record in declaring as “irreversible” the historical trend of globalization in economic integration and technological development (Wang 2000). The efforts of the PRC to widen its participation in many international forums leading to multilateral agreements in sundry projects and contracts no less than the signatures to formal conventions on rights should indicate in some way China’s willingness “to act in accordance to international customs, to follow global customs” (Deng and Wang 1999, 58). To skeptics on China, such an interpretation may sound overly optimistic or naive, but considered in the lengthier duration of history these recent developments ought not to be belittled. When we remember that one paramount issue dividing the Qing court of early nineteenth-century China was whether “foreign devil” envoys should kowtow to the emperor, the behavior of China toward the global community today, even when represented by official pronouncements, must indicate, quite plausibly, momentous changes in the interpretation of self-identity and the normative values of society. Such changes, of course, will also incite recalcitrance. In the contest to control or resist the traffic of human culture, the very capital of the mind and spirit, censorship is as old as the policy of Athens and as new as the latest PRC governmental unit established to police the Internet. What we must remember is that its aspirant and actual success can enjoy little effective measurement except by the ironic yardstick of historical and cultural change that is taking place even now at this moment of our reflection.

For someone like myself, who spent five infant years in China during the Sino-Japanese War and has both witnessed and experienced appalling suffering, including widespread and horrendous famine, I most certainly would not fault the emphatic desire of the Chinese leaders to feed their own enormous populace. One ready example of this concern, routinely voiced by both government and academic personnel, may be found in the words of President Jiang Zemin uttered during a widely reported interview on August 9, 2001.

These words surely possess a certain ring of truth, if for no other reason than the obvious need that the people must be fed. That having been acknowledged, however, I must point out also that the leaders’ argument for “food first, liberalization later” is itself an illustration of what I said about quan and its meaning of power in relation to the concept of rights at the beginning of this essay. It reveals once more the tendency of the Chinese to accede to the tradition that social order, construed as one key to communal well-being, can quickly become an end in itself, to be sought or maintained regardless of other equally important values.

In the venerable tradition of Chinese social thought, there certainly was not a single Confucian thinker who would deny that food, and the need to satisfy hunger, would constitute one most fundamental ingredient of human desire. Not only can it be argued that Xunzi’s generalized remark here about human desires would include the matter of food and subsistence, but in his reference to remedial measures being introduced to ensure the proper satisfaction of legitimate desires, Xunzi’s words also reveal how this question of meeting the most basic of human needs—justly and equitably (i.e., with regard for “measure and limit”)—has thus been a taxing and urgent issue for Chinese civilization from its beginning. What makes Jiang Zemin’s diagnosis of one form of modern reality tally with ancient verities is the envisaged effect on the social order when there is no food, not enough food, or food inadequately distributed or allotted. “Seeking without regard for measure and limit will inevitably end in conflict,” declares Xunzi. “Conflict begets chaos [luan, a frightful word, as noted previously by Feuchtwang, in the vocabulary of Chinese politics and tellingly used by Kurosawa Akira when he renamed King Lear in his remake of the play with the Japanese Ran], and chaos begets exhaustion.” So, too, opines Jiang Zemin, if 1.2 billion Chinese people do not have enough food to eat: “The result will be great chaos [da luan, the same word reported in the Chinese press], and should that happen, it will not be conducive to world peace and stability.” Just as Xunzi also refers immediately to the institution of ritual by “the former kings [xian wang],” a posited a priori authority, in order to forestall such drastic chaos that would lead to “exhaustion [qiong]” or the collapse of the social order, so Mr. Jiang similarly makes an all too apparent claim for indigenous and internal means to maintain “peace and stability.” The pointed observation is that “the parliamentary democracy of the Western world” is not applicable to China.

An interesting issue for me arising from Mr Jiang’s words does not necessarily lie solely in the reason or justification for his dismissal of Western parliamentary democracy, although probing some of the salient implications of his judgment may produce a provocative and illuminating debate. For me, rather, I would like to ask whether that president, now formally retired, has represented an adequate understanding of the problem in the context of historical tradition. For students of Chinese historical culture, how do we assess Jiang’s version of contemporary reality in the light of ancient verities? Against the view that the ultimate goal of feeding the people is to maintain the social order, which can also elide easily into a call to preserve and defend the power status quo, the Chinese themselves, especially those who appeal to Confucianism for ballast of thought and policy, might point out that the Confucian discourse would shed a different light. Although one must never belittle the task of feeding so large a nation, because the right to live and survive must implicate food and feeding, Confucius and his disciples have consistently maintained that there can be a value higher than food. The Master’s discussion in Analects 12.7 deserves full notice. When the disciple Zigong asked about government, the Master said, “Sufficient food, sufficient arms and the people’s trust.” Zigong said, “If one had no alternative but to give up one of these three, which should go first?” “Give up arms.” Zigong said, “If one had no alternative but to give up one of these two, which should go first?” “Give up food. Death has been with us since antiquity, but without trust, the citizens [min] cannot stand together [as a people].” Similarly and characteristically, Mencius goes on to tease out the crucial implications of his Master’s dicta by asserting that “there is something a person desires more than life, and there is something that man loathes more than death.” It is on this basis, in fact, that food given with abuse will not be accepted by even a starving wayfarer, an attitude, Mencius further claims, resident in every human being (Mencius 4A.10).

Recalling what Confucius and Mencius said about the need for adequate food for the people, one should also notice the exact ethical and political inference that both thinkers sought to draw from the hypothetical crisis. Their remarks clearly indicate that, for them, there are considerations just as, if not more, important than the issue of whether the dread of death stemming from inadequate food will result in social chaos. Even acknowledging the fundamental importance of feeding the people, of enabling the modern state to honor and fulfill this economic and biological right, therefore, one can still query whether the ability to enjoy that right alone sufficiently defines the meaning of the fulfillment of rights for all Chinese people.

The answer to this question could fill a hefty tome, and many books have, in fact, been written with such an attempted purpose. My approach since developing an interest in relating contemporary rights issues to classical philosophical discourse departs from the customary focus on sets of human relationships and their prescribed, and thus idealized, moral obligations. Students of China must recognize once and for all that the primary set of those relationships, that between the sovereign and subject, is an obsolete and obliterated social structure. If we turn away from the language of reciprocal duties and turn to another topic that has, in fact, occupied the attention of Confucian thinkers from antiquity, the possibility of finding a basis for framing the conception of human rights in indigenous Chinese discourse can be far more promising. That topic is human desire: what a human likes and dislikes passionately and even obsessively; what a human, in summary, craves so badly that he/she cannot live without it.

When the question is posed this way, it is no surprise that the somewhat tautological reply provided by virtually all thinkers, including Confucians, is: the love of life. What everyone delights in, as thinker after thinker of this tradition is ready to affirm, is to be alive. As an old Chinese proverb says, “Even an ant covets life.” Or another proverb, “A good death is not as good as a nasty life.” It is against such a background that the reply by Mencius to a query by a prince on how an empire can be settled and made one (ding yu yi

)—that condition of “stability and peace” longed for by today’s leaders no less—becomes extremely arresting: “one who is not fond of killing,” declares Mencius, “can unite it…. If there is amongst the shepherds of humans [ren mu

] one who is not fond of killing … then the people in the Empire will stretch their necks to watch for his arrival” (Mencius 1A.6). The injunction not to take life, for me, has implications that exceed even its surface nobility, because the counsel is not based on other considerations such as kinship ties or class prescriptions that predominate in the discourse of ethics as reciprocal obligations. Moreover, the interesting implication of not taking life for someone enjoying royal power has an inherent drive toward an egalitarian assessment of individual worth, because it does not make sense to say that the king can be a morally virtuous ruler by killing only a handful of people and not dozens of them, or by killing only peasants and not the nobles. And finally, this prohibition brings into sharper focus a part of the implicit content embodied in the famous negative Golden Rule articulated by both Confucius and Mencius, that what oneself does not desire—namely, the taking, injury, or impoverishment of life—one should not impose on others.

This incipient recognition of the importance of preserving life in ancient Confucian thinkers, I believe, eventually led to some remarkable observations across the centuries in the early eighteenth century, by another thinker firmly within the Confucian tradition. I cite some crucial sentences of the eighteenth-century scholar-official Dai Zhen

contained in his Expository Commentary on the Meaning of Mencian Words, for they provide a remarkable development of ancient thought in a new and possibly distinctly modernistic direction.

Of first and foremost importance in Dai’s statement is this totalizing, universalist claim that one person’s desire is the same as that of all: namely, it is life and the fulfillment of life. The unusual character of the assertion stems from the fact that such a sweeping declaration has no other qualification, because “life fulfillment” (sui sheng

) has nothing to do with human relations necessarily. The gratifying condition is not dictated by kinship ties, or occasioned by culturally prescribed social position, or dependent upon the sanction by a particular segment of a community. Because they are common to all humans—from the highest ruler to the lowliest peasant—the desire and its object as universals possess the condition of equality as both phenomenon and quality. One can no more say that only some people have such a desire than asserting a peasant ought to aim at a lesser degree of self-fulfillment than a prime minister.

Since high antiquity, Confucians, Daoists, and even Legalists of the Chinese philosophical tradition have all acknowledged the ubiquitous reality of desire, and their attempts at controlling this primordial human reality form a great part of their various ethical and political agendas. The agendas tend to induce subsequent interpreters of Confucianism to emphasize the inculcation of disparate moral virtues deemed appropriate to different human relations as the most distinctive contribution of the classical Chinese tradition. Dai’s remark, in this light, restores in a most striking manner the radical insight of ancient Chinese thought shared virtually by all of the schools or lineages of thought: prior to the establishment of human relations, there is only desire. Desire, therefore, may be termed the great leveler, in the grip of which each person is the same as, or equal to, the other.

Much like Xunzi’s acute awareness of how the clash of desires can beget at once destructive social conflict, Dai’s remark also reveals such consciousness and he is quick, therefore, to highlight the concomitant need for limit. Every person may share the same driving impulse to fulfill one’s life, but this can be allowed only if it does no injury to another life. Dai’s stipulation thus may be seen as an attempt to treat one crucial issue animating the debates of ethics and politics in different civilizations down through the ages: how to reconcile the most essential values cherished by an individual with those self-same values of other individuals.

Because the desire for life and life’s fulfillment, in Dai’s thinking, carries both positive and limiting connotations, it may for that very reason provide a suggestive beginning for developing the notion of universal human rights that bears an audible Chinese accent. Despite long centuries of elaborate formulations whereby any sense of personal fulfillment, for the Chinese, is said to reside in, or be easily exchangeable with, the vicarious satisfaction of relations—to siblings, elders, parents, spouses, and rulers—Dai’s assertion here reverses the myth of affective displacement and bluntly legitimates, with greater clarity and force, the reality of self-affirmation, and thus self-love, self-interest, and self-preservation. Notice that this view of the human person does not even utilize such idealistic and abstract terms as worth and dignity (let alone the theological myth of the imago dei) to characterize its importance. Human desire as an irrepressible force of life is simply stated as it is.

On the other hand, the unambiguous affirmation of desire as a universal phenomenon of the individual in Dai’s thinking in no way abrogates the individual’s necessary connection to the community. Indeed, both the positive and the limiting implications of desire make certain that the one and the many, the self and community, must be dialectically conceived. “When one person fulfills one’s own life and infers from this principle to help all under Heaven to fulfill their lives,” says Dai, does not such a statement carry an ideal germinal and germane to honoring universal humanity without dismissal or sacrifice of the individual? Conversely, if one’s quest for self-fulfillment must not be carried out to the extent of injuring another who, in principle, is engaging in the selfsame quest, does not the other person—and by extension, the community—act as a check and limit on the individual’s anarchic or antinomian impulse?

I have, in the foregoing sections, concentrated on elaborating how a constructive critique of traditional Confucian ideas can bring out at the same time noteworthy notions about the individual person embedded in the tradition. Crucial to my undertaking is the conviction that the worth and significance of the individual are not alien to parts of the native intellectual discourses of China, philologically or philosophically. These resources, of which my essay has only begun to tap into modestly, should be explored more systematically, because a proper formulation of the individual’s meaning, not indiscriminate advocacy of antinomian individualism, is the true bedrock of any teaching on human rights. I should emphasize as well that, unlike much modern scholarship in the Western academy treating the subject of human rights, my discussion has not appealed to the assumptions of theistic religions. The human individual, based on the remarks by classical Confucian thinkers and Dai Zhen’s commentary, is accorded ultimate significance not by the belief that the human is a creature made in the “image of God” or brought into existence by some other agent of transcendent power. Rather, as I have argued, the Confucian tradition’s recognition of individual desire as a universal human phenomenon may be used as one key to a more modern, albeit humanistic and secular, articulation of rights theory. The so-called negative Golden Rule promulgated by Confucius himself—“What you yourself do not desire, do not impose on others” (Analects 12.2; 15.24; see also 5.12)—thus affirms both the reality and limit of individual desire dialectically related to any human other as the necessary other, and not the obedience to a command by an absolute other, human or divine. Because that human other’s yearning for flourishing in life is identical to my own, according to Dai’s additional insight, and has, therefore, equal claim to my obligatory consideration for self-restraint even in my very quest for self-fulfillment, this egalitarian understanding of self and other can become the vital link to human rights as they have been understood and developed by democratic liberalism stemming from the Enlightenment in the West. Without a steadily escalating appreciation of why the individual must constitute an irreducible and indispensable counterpart to state and community (in the forms of clan, family, school, church, temple, and corporation), no genuine progress can be expected in the betterment of legal and political cultures in any modern state, let alone in China, where so great a burden is borne by both its historical past and cultural present.¹²

A huge part of that burden, in fact, owes its persistence to how religion and law have assumed different forms of social existence from those to which the modern West is accustomed. Archaeology has amply shown that law and religion emerged from the dawn of Chinese civilization,¹³ but their ancient modes and functions already indicated abundantly how their operations from the beginning were ineluctably tied to the state. Unlike the Western tradition, in which the origin of law is attributed to divine revelation (Judaism, Christianity, Islam) or to philosophers and lawgivers (ancient Greece), Chinese legal practices, from the earliest records, seem to have sprung from orders and proclamations of the rulers themselves. Increasing complexity of royal government uneasily astride a group of feuding “feudal” princedoms during the Warring States period also saw the addition of new documentary terms (zhi

, “edict”; zhao

, “decree”) to denote royal command and injunction. The Qin kingdom that eventually became the short-lived dynasty (221–206 B.C.) made significant contribution toward the compilation of a set of laws for “all manner of human activity in which the government was concerned,” the imperial commands usually rendered as lü and ling, “statutes” and “ordinances,” respectively (Loewe 1999). The ensuing Han added to this heritage “a detailed code and a fully laid down system for procedure in criminal cases, with the possibility of submitting some of these to a senior official, or even to the emperor himself, for final decision” (ibid.).

Consistent with such an emphasis, his most well-known disciples such as Mencius and Xunzi continue in their teachings to accentuate the superiority of ritual as the indispensable path to moral self-cultivation for the highest to the lowest echelons of society. The posited success of ritual regimentation, according to Confucian idealism, would eliminate or minimize the need for ruling by fa

, a word denoting the prescriptive model handed down by authorities including the ruler, the laws themselves, and the juridical process of litigation, ascertaining culpability, and meting out punishment. Instead of fazhi, therefore, the Confucians promoted rule by humans (renzhi) through the medium of ritual (lizhi).

Against the Confucians came the so-called Legalists and a later splinter faction named Huang-Lao. Their chief spokesman being Mozi (ca. 480–390), the Legalists were among the first serious critics of Confucius and his followers, although, depending on one’s dating of the documents, the authors/compilers of the Daodejing

, traditionally attributed to Laozi, also represented sustained and pointed opposition from a different perspective in almost the same time. In spite of the fact that the Legalists advocated certain fixed standards of law and an allegedly impartial application of the codes, theirs was actually a rule by law. In Peerenboom’s succinct summary,

Despite such clarity of purpose bequeathed to the legal system, so to speak, the Legalists did not in any way minimize the role and potency of the ruler, who remained “the ultimate authority, both in theory and practice” (Peerenboom 2002, 34).

Whereas the Legalists and the Confucians both honored the political sovereign implicitly and explicitly as the final source and arbiter of the law, a motley group of Warring States thinkers and later elite officials was named retroactively first by Sima Qian

, the Grand Scribe and first historian in the early Han, as followers who extolled the teachings attributed to the mythical emperor Huangdi and the legendary philosopher-mystic Laozi. Hence the name Huang-Lao, but the group’s identity and character have always caused confusion even among specialists of early China. The discovery, however, of four silk manuscripts (bearing titular and internal references to Huang-Lao) in 1973 at the Number 3 Han Tomb of Mawangdui in Hunan province has radically altered our understanding of the nomenclature. More than a general synthesis of classical Daoist and Legalist thought, Huang-Lao, in Peerenboom’s investigations, represents a distinctive attempt to ground the sociopolitical order of the human world in “natural law” or “the normatively predetermined natural order or Way” (Peerenboom 2002, 35). Perhaps in syncretic reformulations of certain themes already evident in both Laozi and Zhuangzi, the Huang-Lao school did argue for the ruler’s necessity to “abide by the laws” thought to be based ultimately upon the Way of the cosmos (Peerenboom 1993, 27–102). Despite this noble precept, the school did not come up with any practicable means in curbing imperial power or exacting accountability from any wayward emperor. Its effectiveness against imperial abuse of authority is no more significant than the Legalist’s exaltation of sociopolitical order through techniques and stratagems designed to enhance imperial postures and policies, or the Confucian remonstrative advocacy, even at the risk of death, of moral self-cultivation for the patriarchal sovereign himself.

Throughout its nearly three-millennia history of preimperial and imperial governance, codes of law increased exponentially with the accumulation of dynastic changes, but law in Chinese civilization never had the possibility of evolving into an institution separate from the executive powers of the state, for promulgation of laws and their enforcement belonged to the same loci of power. In one of its ostensibly most “democratic” utterances on politics, Mencius was recorded to have quoted a passage deriving from the Classic of Documents

, to the effect that Heaven “sees and hears” with “the eyes and ears of the people” (Mencius 5A.5). In context, however, this remark actually refers to how “Heaven was pleased to accept the sacrifices” by the legendary sage-king Yao when he abdicated in favor of Shun. The Mencian passage never became an inducement to develop institutional mechanisms that would enable the people’s direct participation of self-governance through popular suffrage and legislation. For these reasons, Peerenboom’s critique of the Chinese legal tradition’s “inherent limitations” is unerring. In addition to the failure to provide “effective restraint” on the ruler’s power and protection for the individual against the state, traditional Chinese culture also failed to adopt, however gradually, “three key tenets of the Western liberal tradition”:

That such tenets, on a prima facie basis, betoken enormous implications for the understanding and practice of religion even in the modern West should be self-evident. With respect to China past and present, they may be regarded as some of the most revealing assumptions that delimit historical and cultural difference. Since the discovery in the late nineteenth century of the oracle bones and other materials for divination in high Chinese antiquity, scholarship over the past plus century has attained unanimity on the pervasive presence and importance of religion for the investiture and maintenance of state power. Continuous archaeological discoveries and studies have demonstrated powerfully how the classical dynasties of Shang (ca. 1570–1045 B.C.) and Zhou (ca. 1045–249 B.C.) had persisted in basically two major kinds of religious activity: divination by different methods and materials, and sacrifices to different objects of worship that included Heaven and a host of subsidiary deities associated with nature (i.e., sky/heaven, river, mountain, forest, grain, and soil), ancestors established through both kinship and ritual, and selected humans apotheosized through meritorious service to state and local communities. Although such activities were not organized into a central ecclesiastical structure, they were insistently and ubiquitously undertaken as obligatory forms of royal religion. They proved to be so crucial to so much of Shang sociopolitical life that the word “theocracy” is used increasingly in scholarly writings to refer to the nature of the government.¹⁵

When imperial government was established after the Qin ascension and China was reputedly unified as an empire in 222 B.C., all such activities survived and persisted, in fact, in modified and even expanded forms. In the ensuing Han dynasty (206 B.C.–A.D. 220), when bureaucrats succeeded in turning Confucian teachings judiciously seasoned with Legalist concepts into official orthodoxy, the state cult ideology and ritual system for which they elaborated systematic theoretical justification in several major treatises served for all subsequent dynasties until 1911 as, in fact, an unmistakable form of state religion. Already in the Zhou, the elevation of the ruler as a symbol or human representation of absolute power can be found in his newly acquired title as tianzi

, or Son of Heaven. While worship of imperial ancestors remained a staple of the emperor’s life, his assumption of the titles of di

(high god, supreme ancestor), zu

(ancestor) and zong

(ancestor, lineage) from the time of the Qin to the Tang (seventh century) progressively rendered immanent in the sovereign’s person the transcendent potency attributed to ancestors in ancient theology. Even as the emperor continued to worship his own ancestors and Heaven, the patriarchal ruler himself became the oxymoronic living ancestor to his people.

As for other humans euhemeristically honored through worship and the reception of state-sponsored sacrifices, Confucius was petitioned to be canonized as early as 8 B.C. Subsequent centuries saw his rapid ascendancy to become another most prominent figure in state orthodoxy, and his temple, from early medieval time to the Qing, along with royal clan temples and the worship of Heaven, endured as “the most important ritual institution for rulers” (Huang 1995, 133).¹⁶ Since Chinese society until now has always been thoroughly elitist and hierarchical, the activities of worshipping Heaven, one’s own ancestors, and Confucius were promoted, taught, and encouraged through regional and local officials to spread to the lowest strata of the populace. The state cult ideology with both its religious commitment and ritual enactment, supported by an educational system of civil service examinations administered exclusively by the state throughout imperial history with only short-term disruptions, thus functioned “as an integrative force” in much of historical Chinese community (Yang 1967, 106).

There are at least two important implications for this way of understanding the religious orientation of the traditional Chinese state. On the one hand, its own legitimacy depends not merely on justifying and promoting its own ideals. Perforce it must also be wary of, and competitive with, rivaling ideologies of ritual and reverence. While its own unexamined religious commitment must be taught and disseminated by educational indoctrination and bureaucratic coercion, the state itself must also practice a policy of control, regulation, and co-optation of other religions for the sake of its own legitimacy and survival. To the extent that the central government, on the other hand, has not always been effective in imposing total control of its domain throughout China’s long history, there has also existed a running conflict with local customs, beliefs, and rituals. This condition obtained even with the much more organized and highly visible communities of Daoism and Buddhism, one native and one foreign tradition that have formed with Confucianism the three major, proverbial religions of China. Confucianism presiding as orthodox ideology of the state has thus existed throughout imperial history alternately in patronage of, or tension with, the other two religions no less than with a host of local ones. Tension over time and particular circumstances often led as well to open conflict: armed rebellion and resistance on the part of religious movements and dissenters and massive military campaigns of brutal suppression by governmental forces (Chan 1973; Feuchtwang 2001; Hsiao 1960; Overmyer 1989–1990; Schipper 1993; Yang 1967; Yu 2003).¹⁷

With regard to such relations between state and religion(s), the events of 1911 that resulted in the unprecedented overthrow of more than two millennia of imperial government were undeniably revolutionary, because among other accomplishments and aspirations it was supposed to have ushered in for China a truly democratic and secular government. Article 13 of the Constitution of the Republic of China eventually adopted by the National Assembly and promulgated by the government in 1947 states unambiguously that “the people shall have freedom of religious belief” (Republic of China Yearbook 1999, 679). This assertion, however, does not mean that the newly formed Chinese republic or its eventual Communist successor abstained from intervention in the nation’s religious affairs and traditions. Because the unprecedented attempt to create an entirely new form of government for one of the oldest continuous civilizations was fueled by the all-consuming passion for modernization, elite leaders of nearly all stripes of political persuasion almost inevitably were driven to engage religion in one way or another.

Sharing the traditional Confucian contempt for both popular religions and even the more developed forms and doctrines of Daoism and Buddhism, the vast majority of modern Chinese intellectuals tend to regard religion as virtually synonymous with “superstition,” a debilitating and decadent remnant of all that was bad with the old Chinese culture that should be swept away entirely. Even political reactionaries who might have been tempted by certain dictatorial, if not imperial, pretensions were campaigning against religion (particularly in the form of local institutions and customs) in the early decades of the republic (Duara 1995, 95–110). Deeply aware of how various groups and movements of religious dissenters throughout Chinese history often ended as political rebels and revolutionaries, the Chinese Nationalists (Kuomintang [KMT]) banned all “redemptive societies” once they achieved consolidated power after Chiang Kai-shek’s successful northern expedition of 1928 (Duara 2003, 109–122). Various governmental agencies such as the Ministry of the Interior and the Bureau of Social Affairs oversaw a number of either established ecclesiastical organizations like the Buddhist Association of the Republic of China and other less-known ones. Sporadic campaigns against religions like Christianity and Buddhism also enjoyed official sanction during the decade of the twenties (Duara 1995, 103–107). Despite Christianity’s checkered political history in China since the seventeenth century, one associated paradoxically with both Western imperialism and the effective introduction of new culture (educational, scientific, and political) to China, first-generation and second-generation leaders of the KMT tended to exploit that religion continuously for their own profit. Throughout his revolutionary struggles against the Manchu government, Sun Yatsen found shelter and support from missionaries and Christian congregations overseas both Chinese and non-Chinese. Chiang Kai-shek himself promoted different political movements that adroitly blended Confucian tenets with Christian teachings (Oldstone-Moore 2000). During the protracted struggle against the Japanese and later against the Communists, Madame Chiang’s Christian profession and polemics provided probably the single most effective instrument in swaying Western public opinion, especially in the United States.

After World War II, Taiwan’s retrocession first as a province of China only to become the island nation ruled by the defeated Nationalists in 1949 added unexpected twists and turns in the relationship between state and religion in that particular Chinese society. The KMT’s autocratic governance of the first two decades yielded eventually to the rapid modernization, economic expansion, and political liberalization during the late 1980s that simultaneously deepened the rule of law and broadened the independence of the press. This process, in turn, heralded unprecedented liberty for the practice of religion, including the most dramatic revitalization of the Buddhist saṡgha in a contemporary Asian community. The economic prowess of this religion on Taiwan manifested itself in the proliferation of educational institutions and eleemosynary agencies under its sponsorship. Their worldwide impact in social and relief work and health care also directly measures now “the freedom of religion” increasingly realized as a constitutional right of the island’s citizens. That freedom extends beyond established traditions of Daoism and Buddhism to encourage the prosperous flourishing of distinctive local deities, temples, and movements (Jones 1999; Katz 2003).

If Christianity has had a peculiar alliance with the early leaders of the KMT, it has functioned also ironically to undermine and, eventually, to undo—at least through the ballot box—the Nationalists’ monolithic grip of power. Although that religion was introduced to the island through Dutch settlers in the seventeenth century, sustained and effective Christian presence came with Canadian Presbyterian missionaries during the nineteenth century. Their ministry carried out in local congregations, schools, and hospitals had produced a lasting impact on the native Taiwanese, to such an extent that many of their current leaders in the Democratic Progress Party (occupying the presidential mansion until May 2008) are Christians. Lee Teng-hui, the Cornell-trained agricultural economist who was elected as Taiwan’s first native-born president in 1990 under the KMT banner but eventually left the party upon retirement, used to invite severe criticism and ridicule from both the news media and political opponents alike for lacing his speeches with too many biblical allusions and comparisons of himself to Moses.

Unlike the people of contemporary Taiwan, Chinese religious adherents on the mainland, although making significant gains during the recent decade, face a much steeper uphill struggle in acquiring greater freedom to practice their beliefs if only because the central state government is committed to a manifestly different political ideology and ruling structure (see Pitman B. Potter’s most informative study in Potter 2003). The Chinese Communist Party (CCP) that triumphed in 1949 and went on to establish the PRC is unambiguous in its espousal of a classic Marxist profession of atheism. Nonetheless, Article 36 of the 1982 constitution clearly states:

“Document 19,” published by the official party journal Red Flag on June 16, 1982, adds a brief but illuminating account of the party’s understanding of religion. “Religion,” it tells us, “is a historical phenomenon pertaining to a definite period in the development of human society. It has its own cycle of emergence, development and demise.” Insofar this was an undeniable historical phenomenon, “the earliest mentality reflected the low level of production and the sense of awe toward natural phenomenon of primitive peoples” (MacInnis 1989, 10). Although the constitution allows for religion to exist in China, it is to be understood as a necessary concession, strictly provisional and temporary, to the poor economic and educational condition of the vast majority of her citizens. The CCP, however, is committed to rid China’s religious traditions and communities from their “erroneous” ties to the “feudal” past and the complete severance from any link to colonial or imperialistic agencies from abroad. No party members, in fact, are permitted to be a follower of any religion. This has been, parenthetically, one specially galling offense committed by the sectarian movement called Falun Gong (literally, Merit of the Dharma Wheel) that, although condemned and outlawed on the mainland, is still very much active worldwide. At its initial phase of conflict with the central government, what alarmed political leaders was the discovery that many party members, including retired officials both civil and military, belonged to the group.

If it is to exist within the new China, religion must fulfill the state-mandated obligation of being “patriotic,” in the sense that religion would never, in the words of “Document 19,” “be permitted to make use in any way of religious pretexts to oppose the Party’s leadership or the Socialist system, or to destroy national or ethnic unity” (ibid., 15). Its current existence, moreover, does not mean that its future or flourishing is thereby assured. With greater social, economic, and educational developments such as those advocated and instituted by socialism and Communism, the document confidently asserts that “religion will eventually disappear from human history” (ibid., 10).

Although these official Chinese statements may astonish readers from Western nations who routinely regard the free exercise of their religious beliefs as a proper right to be guaranteed and enjoyed, the 1982 declarations already represented significant advance from the brutal suppression and ruthless campaigns against religion in the first three decades of the PRC. In that period of rampant and repeated Maoist incitation for the dictator’s fanatical followers to stamp out everything deemed the refuse of a decadent past or a hated bequest of foreign cultures, practitioners of all religions were persecuted. There was wholesale laicization of Buddhist and Daoist priests and nuns together with Catholic clergy, and there were indiscriminate jailing and execution of Confucian “reactionaries” and Christian traitors. Forced marriages of laicized clergy also were routinely imposed (Welch 1972). Countless religious edifices were destroyed and land owned by different communities were confiscated. Only after the death of Mao Zedong in 1976 did the nation gradually return to a more civil and tolerant form of government.

In China today, all religious groups and movements must be formally registered with the Bureau of Religious Affairs (with national offices in Beijing, and provincial and municipal branches throughout the country) directly under the supervision of the CCP and certified to be “patriotic” before they can operate legally. The major religions thus recognized are Daoism, Buddhism, Islam, Christian Catholicism, and Christian Protestantism. Although each of these traditions appears to be enjoying a measure of growth and security undreamt of during the Maoist era, each also faces problems with the state that are peculiar to its own ethos and history. Religious Daoism, as all students of Chinese history realize, arose in the Han as political dissent that sought to overthrow, in fact, the imperial government by force. Historically, it has always been a religion intimately connected to regional sympathies and local pieties, such that it was consistently viewed with suspicion by the central government. Despite imperial patronage by several emperors and consorts who were ardent believers, Daoism’s frequent alliance or cooperation with sectarian movements and uprisings led to regular suppressions. The abrogation of priestly ordination was ordered by the late Qing government and repeated under both Nationalist and Communist rule, and this ritual was only restored by permission in the late eighties (Lai 2003).

As for Buddhism, many temples have been reopened and allowed to operate, and the number of clergy has slowly been permitted to increase. The woeful lack of educational facilities has created serious hardships for the training of clerical and lay leaders, and the stigma of Buddhism’s essentially foreign origin is at the moment compounded manifold by the contentious and acrimonious situation in Tibet (Birnbaum 2003). A religious tradition’s tie to foreign communities is almost an invitation to skeptical scrutiny by the government on its “patriotic” qualification and its independence from foreign domination. Thus Islam, usually identified with “ethnic minorities” of the nation, can be suspected of abetting seditious efforts to “divide the motherland.” The particular conflict with the Roman Catholic Church since the inception of the PRC, revolving inevitably around the thorny question of the clergy’s allegiance to a foreign papacy, has never been resolved despite earnest attempts at formal relations by the Vatican. Even now, this denomination with significant growth in the numbers of its congregation (current estimate approaches 35 million) must face the anomaly of being run by a “legal” church, whose priests are ordained by the state, and an “underground” one whose clergy remain secretly loyal to the Pope. Protestant Christianity, ostensibly less vulnerable to the liabilities of foreign alliances, can be hampered in any church-growth efforts because of severe constraints on the recruitment and education of its clergy. Congregations and believers of a more evangelical persuasion will encounter suppressive measures no different from those meted out to the followers of Falun Gong.

At the close of this essay, our quick topical tour of law and religion in historical and contemporary China returns us perforce to the subject of human rights. One obvious question at this final juncture may be stated thus: do fundamental rights universally conceived include the right to believe and practice religion? Readers with the presuppositions nurtured by the Western liberal tradition may be tempted to answer in the affirmative, but I should point out that the regard for the individual, as I have tried to tease out from a critically reformulated Confucianism, does not necessarily uphold such an inference. Whether the fulfillment of life that each individual is posited to be desirous of encompasses the desire to believe and act religiously depends on one’s ideal of what ought to be the meaning of that fulfillment. That ideal is a product of philosophical anthropology that may or may not include religion as an indispensable constitutive component.

During the immediate past few years, as Don Pitman has so carefully reported in his China Quarterly study, “Belief in Control: Regulation of Religion in China,” the concern with managing China’s religious affairs has occupied the highest national leaders at such a level of frequency and intensity that it far surpasses any comparable efforts on the part of Western governments, especially of American political leaders, whose ignorance of religion as a serious subject in native and world cultures is simply appalling. In the light of the Chinese constitution’s declaration about the people’s freedom to engage in “normal” religious activities, one can always say that this derogation to the state the power to determine what constitutes normality in such activities already exceeds a strictly “secular” conception of state power. Moreover, the prohibition of CCP members from engaging in religious activities is itself contradictory to the universal language of the constitution.

Lest this criticism of China become too easily one-sided, we should notice that the separation between religion and the state that almost all Western nations pledge to practice in one way or another is, at best, only a noble ideal. In historical life, the entanglement and often conflict with religion occurs incessantly and unavoidably on a daily basis—at the largest communal level or the smallest individual one, on matters of national security or of personal whim (e.g., a U.S. judge displaying the Ten Commandments in the courtroom). When “a fundamentalist Muslim organization unexpectedly won a large number of seats in an election for [France’s] first national council of Muslims,” the French interior minister immediately threatened to expel such leaders and “make sure that the council would not be used to spread views that run counter to French values, particularly the promotion of Islamic law” (New York Times, April 16, 2003, A3). When a Muslim mother and homemaker declined to have her photograph taken in Florida for a driver’s license on religious grounds, the Miami judge overruled by reasoning that “public safety” must supersede religious freedom (Chicago Tribune, June 7, 2003, sec. 1, p. 12). Although the government’s views or policies in these and other similar events can, in principle, be contested legally until a final judicial verdict is reached (and that contest, let us remember, is always disputative and subject to future revisions, for there are no self-evident formulas valid for all time), the reactions and sentiments expressed by Western representatives of the state seem strangely similar to the reference to “social stability” as the paramount concern of state policy interminably voiced by China’s leaders. The citizens of the liberal West may cherish religion and its “free exercise,” but the nature and limit of that freedom fluctuate constantly according to the exigencies of law, politics, and the clash of religions themselves. Between principle and practice, verity and posited reality, the gulf may not only be wide but often unbridgeable. Let that be our guiding light when we discuss law, religion, and human rights—in China or anywhere else.

The initial form of this essay was used as a lecture given on various U.S. campuses during my appointment in 2001–2002 as the Frank M. Updike Memorial Scholar and Visiting Campus Scholar, Phi Beta Kappa. In December 2002, the lecture was presented at Cambridge University, under the sponsorship of its Faculty of Oriental Studies, Trinity College. For the honor and the generosity of my host institutions, I hereby express my deep gratitude.

5. Originally deriving from the vocabulary of Chinese astronomy, the word served as the name for the North Star. That constellation and an associated string of stars were given imperial titles, such as Star of the Heavenly Emperor and Imperial Concubine (tiandi xing, zheng fei), and the whole group was also called the Central Palace (Zhong gong). According to the first-century lexicon Shuowen jieji

(Explaining Lines and Analyzing Composite Graphs), compiled by Xu Shen, the graph in its paleographic form “imitates a human belly (xiang ren fu

)” (14B). The Qing philologist Duan Yucai’s gloss on this passage argues that from this “the meaning is extended to indicate the human self (ren ji

) as that which is different from others.” If anything, the etymology of the word seems to place more emphasis on the distinctiveness of physical shape and form than on the psycho-moral role fashioned by culture. This sort of distinctiveness, moreover, is more appropriate to individuals than to groups.

8. The astute observation in Schwartz (1985, 113) deserves a full citation: “on the side of ‘individualism’, we have the fact that while an individual is linked to his social roles, his behaviour is not simply a function of these roles. He has a potential moral autonomy which makes it possible at least for some individuals to realise the full moral potentialities of their roles and to convey to others their full humanity, whether through the framework of the ‘role structure’ or outside of it. Such individuals possess a spiritual self-sufficiency which renders them independent of ‘popularity’ or dependence on the powerful. Even the ‘people’ taken as a whole—when a proper environment is created for them—enjoy a degree of moral autonomy which governs them in their familial and community relations. If individualism refers to something like Kantian moral autonomy, some of it can certainly be found here.”

9. Confucius’s remark is found in the little parable of his passing by Mount Tai, when he made inquiry as to why a woman was weeping grievously by several freshly dug graves. Queried by Confucius as to why she did not quit her region after her father-in-law, her husband, and her son had all been devoured by tigers, she gave this decisive reply: “There’s no harsh government here.” Whereupon Confucius was moved to say to his disciples: “Remember this, little ones. Harsh government is worse than tigers!” See C. Lau and Chen Fong Ching, eds., Liji zhuzi suoyin

(Hong Kong: Commercial Press, 1992), 4.45:28.