The forms and rhetoric of law acquire a distinct identity which may, on occasion, inhibit power and afford some protection to the powerless. Only to the degree that this is seen to be so can law be of service … as ideology.
—E. P. Thompson, Whigs and Hunters: The Origins of the Black Act, 1975 What difference, if any, did it make for China's political path in the twentieth century that, unlike India, it had never been made into a colony, only a “semi-colony”? Why, unlike Gandhi, were Chinese political activists and moral philosophers never able to achieve a satisfactory reinvention of indigenous religious systems and ethical attitudes that could ultimately be used in constituting a principled popular platform from which to defy the imperialists? Why, instead, did it become crucial for almost all of them pointedly to discard the values and traditions of Confucianism and Buddhism, and to excoriate the practice of widely shared folk religious beliefs? May it actually be possible now, so seemingly anachronistically in the twenty-first century, for China's rulers and people meaningfully to embrace again some of those once-discarded moral teachings and traditions in endeavoring to refashion China's national identity and image abroad—as the People's Republic of China's unfurling of its archipelago of “Confucius Institutes” around the world and as some of the most lyrical elements in the intricate allegory on display during the opening ceremonies of the 2008 Beijing Olympics would suggest?
In their sensitive, sustained comparative meditation on the “rule of law” in India and China, Jonathan Ocko and David Gilmartin open temptingly many possible pathways for discussion. In this necessarily brief response, however, I shall confine my focus to those of their observations that I believe may be of help to us in reflecting once again upon these several complicated and interrelated, familiar yet still unanswered meta-questions. Homage has already been paid by Ocko and Gilmartin to the insights of that other fine historian, E. P. Thompson, in his documentation and analysis of the rule of law as it emerged in modern Britain. In what I have to say, therefore, I shall attempt to draw out even more explicitly than Ocko and Gilmartin do just what Thompson perceived the rule of law to have to offer to people living under early capitalism, colonialism, or other conditions of economic and political domination.
Sun Yat-sen once famously rejected the concept of “semi-colonialism” as failing to convey the true nature of China's relations with the imperialist powers. He insisted that China's situation—“not just the slaves of one country, but the slaves of many”—made its condition actually inferior to that of an ordinary colony, and he coined the term “hypo-colony” to convey its deficiency. Historians, for many years, largely ignored Sun's formulation, staying instead with the Marxist/Maoist usage “semi-colonial.” But some have begun recently to reconsider the nature of semi-colonialism in China's treaty ports.Footnote 1 And the urban historian Ruth Rogaski has lately made a deliberate point of explicitly recovering Sun's notion of the hypo-colony—only to counter it—substituting the opposite prefix to characterize the conditions of life she records for the treaty port of Tianjin. “Tianjin's status as a hyper-colony,” Rogaski argues, “placed Chinese urban dwellers under the gaze—and sometimes the control—of several different imperial powers. At the same time, this condition offered Chinese a perspective on several variant models of urban modernity and colonial ideology.”Footnote 2
We may, I think, take Rogaski's appealing point, yet still pause to wonder again what “deficiency” it was exactly to which Sun was trying to draw attention. He did write further,
In the event of natural disasters like flood and drought, a nation which is sole master appropriates funds for relief and distributes them, thinking this its own duty; and the people who are its slaves regard this relief work as something to which their masters are obligated. But when North China suffered drought several years ago, the foreign powers did not regard it as their responsibility to appropriate funds and distribute relief; only those foreigners resident in China raised funds for the drought victims, whereupon Chinese observers remarked on the great generosity of the foreigners who bore no responsibility to help.Footnote 3
Sun thought there were advantages to serving just one master and to inhabiting, with that master, a common universe of norms and duties. Diplomatic devices such as the treaty port concessions and extraterritoriality had permitted China technically to retain sovereignty over most of its territory. Those devices had also, not incidentally, spared the always competitively overstretched powers the heavy costs of trying to subdue and then to govern China, as such. Cleverly opportunistic or face-saving arrangements for formal rule such as those may have served to give Chinese residents in charmed cities like Tianjin extraordinarily diverse glimpses of what undoubtedly were the colorfully multiple faces of imperialism as it expressed itself over space and time. But those same arrangements had left the vast majority of Chinese still living in an ethical universe quite apart from all that, and still under a Chinese “rule of law.” These people—flood or drought victims and others—were thus profoundly affected by, yet entirely excluded from, recognition as subjects within what was, in fact, a newly imposed system of political and economic domination.
Sun thought there were advantages to being a legal subject in such a system of domination—advantages to participating (however unequally) with one's masters in what Thompson referred to as the “rhetoric and the rules” of a single society. Even a society with very harsh rules indeed, such as the Black Act, mercilessly applied and very far from disinterestedly rationalized by a tough moralizing rhetoric of private property and privilege, insurrection and order—even such a society might offer the powerless a thin ledge of reason and sentiment to stand upon and argue. “The rhetoric and the rules of a society are something a great deal more than sham. In the same moment they may modify, in profound ways, the behaviour of the powerful, and mystify the powerless. They may disguise the true realities of power, but, at the same time, they may curb that power and check its intrusions. And it is often from within that very rhetoric that a radical critique of the practice of the society is developed.”Footnote 4
Sun had studied medicine in Hong Kong, where no doubt he had seen the face of colonialism with just one master. Gandhi, though, had studied not medicine but the law, and he went to London for that training. Here I want to underscore the helpful observations made by Ocko and Gilmartin in contrasting the relatively central “structural position of lawyers” in mediating between state and society under the British Raj and “the extraordinarily important roles in the development of Indian politics” that lawyers played, with the relatively peripheral roles accorded to “litigation masters” under Chinese law, and the unsavory associations of their tasks with self-serving motives and shady dealings. Indian lawyers, well trained in British law, comprehending both its rules and its legitimating rhetorics, were positioned, structurally and ideologically (or rhetorically, to use Thompson's term) to work out “a radical critique” of the practice of that law in their own land. They were positioned as well to make that critique heard. The special genius added by Gandhi, of course, was his ability to argue that radical critique civilly within the structures and the spirit of the British system itself while simultaneously expressing his appeals for popular support in unambiguously Indian religious and philosophical idioms of personal purity and discipline, humility, simplicity, and transcendence. Gandhi thus spoke to British power in its own moral-legal rhetorics, even as he also invoked the integrity and the authority of an alternative moral universe—one in which very different pathways to ethical perfection were envisaged—against which to evaluate Britain's imperfect rule of law.
When, in the spring of 1930, Gandhi began his 240-mile nonviolent mass march to Dandi to protest the injustice and the iniquity of the British salt laws, he was acting symbolically according to the scripts of two profoundly legitimizing moral rhetorics at once, and he was performing to two audiences—Indian and non-Indian. Some 60,000 followed him onto the beach in Gujarat, to give prayers together and then peacefully to defy the law by the humble act of gathering salt. As he had earlier written, with perfect candor and self-awareness, to Viceroy Lord Irwin to explain, however, repeal of the salt laws was only one of his goals. His greater goal was to “convert the British people” with the morality of nonviolence, and to “make them see the wrong they have done to India.” When later hundreds of his followers were brutally clubbed and beaten on the beach and scores of thousands, including Gandhi himself, were jailed, the moral statement and the political effect he achieved with their collective suffering was so powerful in the eyes of the world that Time magazine thought fit to name him its Man of the Year.
In China, though, no such dramatic reclaiming of the moral high ground was ever contrived. Gandhi and the other Congress Party leaders faced only one, albeit one formidable, imperial authority in whose governing systems and whose moral strengths and weaknesses they were well schooled. But in the multi-colonial order of China's bedazzling treaty ports and its other territorial concessions, Sun Yat-sen and his nationalists were facing not just the British but also a wide, wide world of imperial rivals, speaking different tongues, and including not least of all Christians, Bolsheviks, Americans, and Japanese. Forced into responding to so many differently motivated foreign masters who were also forever squabbling among themselves, the Chinese held onto state sovereignty and settled on a constitutionalist path forward. But with so many variant systems of rule and so many rhetorics of morality competing in the Chinese national-intellectual space, it proved harder to work out a unified radical critique of the system of domination that actually oppressed them and harder still to root that critique in any alternative moral universe that could be conceived as authentically Chinese.
As Ocko and Gilmartin perceptively point out, the “inescapable presence of foreign powers” had increasingly “defined the debate about the ‘rule of law’ in China,” as it had defined the debate about most other matters. And under that intimidating and decidedly disdainful foreign gaze, the pursuit of legal reform in China became less about “doing justice” than about “securing international legitimacy for the Chinese state.” Over the years, repeated reforms of China's constitutional-legal procedures would be performed by its leaders, haunted as they were by the abiding sense that China still and always remained a disgraced figure on the world's stage. Those procedural reforms would forever be presented in the idiom of China's need to “catch up” with the rest of the world, to “modernize” and “improve” its political-legal system, all part of a play calculated to win some greater international acceptance and respect. International respect, however, continued painfully to elude the Chinese and their leaders throughout most of the twentieth century. In India, by contrast, through satyagraha, it was the colonizers, not the colonized, who would ultimately be disgraced as the nobler substance of their own law—“doing disinterested justice”—was appropriated by their subjects, with such profoundly insurrectionary implications, and was then further re-expressed in an alternative, distinctly nonmodern, yet sacred moral idiom of spiritual endurance and transcendence.
As I complete my drafting of these comments, the images of the closing ceremonies of the Beijing Olympics, as those were mediated through the BBC's television coverage of all the events, remain fresh in the mind's eye. The political leitmotifs that ran throughout that jolly coverage, as it seemed to me, echoed and re-echoed that very same old problematic of the treaty port era concerning China and the “rule of law”: Would the Chinese detain peaceful protestors? Live up to their promises of complete freedom for the foreign press? Guarantee the basic rights of Tibetans? BBC news coverage likewise echoed that other old problematic concerning China's need and its still unrequited burning desire to win greater international acceptance and respect: Would the Chinese take the most gold medals? Be gracious hosts? Manage all the festivities without incident? Actually clean up the air in Beijing? The Chinese, it was to be understood from the BBC's reports, were clearly pulling out all the stops in an effort to impress; yet in the eyes of the world, just as clearly, they still had a lot they needed to prove. There were other leitmotifs in the broadcast commentary, however, that were most certainly postimperial in origin, and some that suggested ironic reversals. Britain was surprised and intensely proud of its fourth-place finish in the gold medals table. Such a small country, coming in only behind giants such as China, the United States, and Russia! Ordinary people interviewed in the street, though, were anxious about the next Olympic Games and wondered whether it would be possible to put on a show in London as well organized and as opulent as the one the Chinese had mounted. The current projected budget for the 2012 Games falls far below what the Chinese spent. Commentators doubted further whether Britons would be capable of putting together an opening ceremony as well choreographed and disciplined as the Chinese had done. They wondered, too, whether British sports fans, who have been known to show a surly side at international events, would actually know how to behave themselves and perform like gracious hosts. In response to expressed anxieties such as these, Madame Fu Ying, China's ambassador to Great Britain, was quoted as commenting that all Londoners really needed was to have confidence in themselves. If they set their minds to do it, she reassured, ways would be found to overcome any difficulties that arose. The BBC gave glowing praise to the Chinese athletes throughout. No special coverage was given to Team India, however—which, of course, had nothing in particular that it needed to prove in 2008. India did take one gold medal, I learned later, its first ever individual Olympic gold—in shooting.
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The forms and rhetoric of law acquire a distinct identity which may, on occasion, inhibit power and afford some protection to the powerless. Only to the degree that this is seen to be so can law be of service … as ideology.
—E. P. Thompson, Whigs and Hunters: The Origins of the Black Act, 1975What difference, if any, did it make for China's political path in the twentieth century that, unlike India, it had never been made into a colony, only a “semi-colony”? Why, unlike Gandhi, were Chinese political activists and moral philosophers never able to achieve a satisfactory reinvention of indigenous religious systems and ethical attitudes that could ultimately be used in constituting a principled popular platform from which to defy the imperialists? Why, instead, did it become crucial for almost all of them pointedly to discard the values and traditions of Confucianism and Buddhism, and to excoriate the practice of widely shared folk religious beliefs? May it actually be possible now, so seemingly anachronistically in the twenty-first century, for China's rulers and people meaningfully to embrace again some of those once-discarded moral teachings and traditions in endeavoring to refashion China's national identity and image abroad—as the People's Republic of China's unfurling of its archipelago of “Confucius Institutes” around the world and as some of the most lyrical elements in the intricate allegory on display during the opening ceremonies of the 2008 Beijing Olympics would suggest?
In their sensitive, sustained comparative meditation on the “rule of law” in India and China, Jonathan Ocko and David Gilmartin open temptingly many possible pathways for discussion. In this necessarily brief response, however, I shall confine my focus to those of their observations that I believe may be of help to us in reflecting once again upon these several complicated and interrelated, familiar yet still unanswered meta-questions. Homage has already been paid by Ocko and Gilmartin to the insights of that other fine historian, E. P. Thompson, in his documentation and analysis of the rule of law as it emerged in modern Britain. In what I have to say, therefore, I shall attempt to draw out even more explicitly than Ocko and Gilmartin do just what Thompson perceived the rule of law to have to offer to people living under early capitalism, colonialism, or other conditions of economic and political domination.
Sun Yat-sen once famously rejected the concept of “semi-colonialism” as failing to convey the true nature of China's relations with the imperialist powers. He insisted that China's situation—“not just the slaves of one country, but the slaves of many”—made its condition actually inferior to that of an ordinary colony, and he coined the term “hypo-colony” to convey its deficiency. Historians, for many years, largely ignored Sun's formulation, staying instead with the Marxist/Maoist usage “semi-colonial.” But some have begun recently to reconsider the nature of semi-colonialism in China's treaty ports.Footnote 1 And the urban historian Ruth Rogaski has lately made a deliberate point of explicitly recovering Sun's notion of the hypo-colony—only to counter it—substituting the opposite prefix to characterize the conditions of life she records for the treaty port of Tianjin. “Tianjin's status as a hyper-colony,” Rogaski argues, “placed Chinese urban dwellers under the gaze—and sometimes the control—of several different imperial powers. At the same time, this condition offered Chinese a perspective on several variant models of urban modernity and colonial ideology.”Footnote 2
We may, I think, take Rogaski's appealing point, yet still pause to wonder again what “deficiency” it was exactly to which Sun was trying to draw attention. He did write further,
In the event of natural disasters like flood and drought, a nation which is sole master appropriates funds for relief and distributes them, thinking this its own duty; and the people who are its slaves regard this relief work as something to which their masters are obligated. But when North China suffered drought several years ago, the foreign powers did not regard it as their responsibility to appropriate funds and distribute relief; only those foreigners resident in China raised funds for the drought victims, whereupon Chinese observers remarked on the great generosity of the foreigners who bore no responsibility to help.Footnote 3
Sun thought there were advantages to serving just one master and to inhabiting, with that master, a common universe of norms and duties. Diplomatic devices such as the treaty port concessions and extraterritoriality had permitted China technically to retain sovereignty over most of its territory. Those devices had also, not incidentally, spared the always competitively overstretched powers the heavy costs of trying to subdue and then to govern China, as such. Cleverly opportunistic or face-saving arrangements for formal rule such as those may have served to give Chinese residents in charmed cities like Tianjin extraordinarily diverse glimpses of what undoubtedly were the colorfully multiple faces of imperialism as it expressed itself over space and time. But those same arrangements had left the vast majority of Chinese still living in an ethical universe quite apart from all that, and still under a Chinese “rule of law.” These people—flood or drought victims and others—were thus profoundly affected by, yet entirely excluded from, recognition as subjects within what was, in fact, a newly imposed system of political and economic domination.
Sun thought there were advantages to being a legal subject in such a system of domination—advantages to participating (however unequally) with one's masters in what Thompson referred to as the “rhetoric and the rules” of a single society. Even a society with very harsh rules indeed, such as the Black Act, mercilessly applied and very far from disinterestedly rationalized by a tough moralizing rhetoric of private property and privilege, insurrection and order—even such a society might offer the powerless a thin ledge of reason and sentiment to stand upon and argue. “The rhetoric and the rules of a society are something a great deal more than sham. In the same moment they may modify, in profound ways, the behaviour of the powerful, and mystify the powerless. They may disguise the true realities of power, but, at the same time, they may curb that power and check its intrusions. And it is often from within that very rhetoric that a radical critique of the practice of the society is developed.”Footnote 4
Sun had studied medicine in Hong Kong, where no doubt he had seen the face of colonialism with just one master. Gandhi, though, had studied not medicine but the law, and he went to London for that training. Here I want to underscore the helpful observations made by Ocko and Gilmartin in contrasting the relatively central “structural position of lawyers” in mediating between state and society under the British Raj and “the extraordinarily important roles in the development of Indian politics” that lawyers played, with the relatively peripheral roles accorded to “litigation masters” under Chinese law, and the unsavory associations of their tasks with self-serving motives and shady dealings. Indian lawyers, well trained in British law, comprehending both its rules and its legitimating rhetorics, were positioned, structurally and ideologically (or rhetorically, to use Thompson's term) to work out “a radical critique” of the practice of that law in their own land. They were positioned as well to make that critique heard. The special genius added by Gandhi, of course, was his ability to argue that radical critique civilly within the structures and the spirit of the British system itself while simultaneously expressing his appeals for popular support in unambiguously Indian religious and philosophical idioms of personal purity and discipline, humility, simplicity, and transcendence. Gandhi thus spoke to British power in its own moral-legal rhetorics, even as he also invoked the integrity and the authority of an alternative moral universe—one in which very different pathways to ethical perfection were envisaged—against which to evaluate Britain's imperfect rule of law.
When, in the spring of 1930, Gandhi began his 240-mile nonviolent mass march to Dandi to protest the injustice and the iniquity of the British salt laws, he was acting symbolically according to the scripts of two profoundly legitimizing moral rhetorics at once, and he was performing to two audiences—Indian and non-Indian. Some 60,000 followed him onto the beach in Gujarat, to give prayers together and then peacefully to defy the law by the humble act of gathering salt. As he had earlier written, with perfect candor and self-awareness, to Viceroy Lord Irwin to explain, however, repeal of the salt laws was only one of his goals. His greater goal was to “convert the British people” with the morality of nonviolence, and to “make them see the wrong they have done to India.” When later hundreds of his followers were brutally clubbed and beaten on the beach and scores of thousands, including Gandhi himself, were jailed, the moral statement and the political effect he achieved with their collective suffering was so powerful in the eyes of the world that Time magazine thought fit to name him its Man of the Year.
In China, though, no such dramatic reclaiming of the moral high ground was ever contrived. Gandhi and the other Congress Party leaders faced only one, albeit one formidable, imperial authority in whose governing systems and whose moral strengths and weaknesses they were well schooled. But in the multi-colonial order of China's bedazzling treaty ports and its other territorial concessions, Sun Yat-sen and his nationalists were facing not just the British but also a wide, wide world of imperial rivals, speaking different tongues, and including not least of all Christians, Bolsheviks, Americans, and Japanese. Forced into responding to so many differently motivated foreign masters who were also forever squabbling among themselves, the Chinese held onto state sovereignty and settled on a constitutionalist path forward. But with so many variant systems of rule and so many rhetorics of morality competing in the Chinese national-intellectual space, it proved harder to work out a unified radical critique of the system of domination that actually oppressed them and harder still to root that critique in any alternative moral universe that could be conceived as authentically Chinese.
As Ocko and Gilmartin perceptively point out, the “inescapable presence of foreign powers” had increasingly “defined the debate about the ‘rule of law’ in China,” as it had defined the debate about most other matters. And under that intimidating and decidedly disdainful foreign gaze, the pursuit of legal reform in China became less about “doing justice” than about “securing international legitimacy for the Chinese state.” Over the years, repeated reforms of China's constitutional-legal procedures would be performed by its leaders, haunted as they were by the abiding sense that China still and always remained a disgraced figure on the world's stage. Those procedural reforms would forever be presented in the idiom of China's need to “catch up” with the rest of the world, to “modernize” and “improve” its political-legal system, all part of a play calculated to win some greater international acceptance and respect. International respect, however, continued painfully to elude the Chinese and their leaders throughout most of the twentieth century. In India, by contrast, through satyagraha, it was the colonizers, not the colonized, who would ultimately be disgraced as the nobler substance of their own law—“doing disinterested justice”—was appropriated by their subjects, with such profoundly insurrectionary implications, and was then further re-expressed in an alternative, distinctly nonmodern, yet sacred moral idiom of spiritual endurance and transcendence.
As I complete my drafting of these comments, the images of the closing ceremonies of the Beijing Olympics, as those were mediated through the BBC's television coverage of all the events, remain fresh in the mind's eye. The political leitmotifs that ran throughout that jolly coverage, as it seemed to me, echoed and re-echoed that very same old problematic of the treaty port era concerning China and the “rule of law”: Would the Chinese detain peaceful protestors? Live up to their promises of complete freedom for the foreign press? Guarantee the basic rights of Tibetans? BBC news coverage likewise echoed that other old problematic concerning China's need and its still unrequited burning desire to win greater international acceptance and respect: Would the Chinese take the most gold medals? Be gracious hosts? Manage all the festivities without incident? Actually clean up the air in Beijing? The Chinese, it was to be understood from the BBC's reports, were clearly pulling out all the stops in an effort to impress; yet in the eyes of the world, just as clearly, they still had a lot they needed to prove. There were other leitmotifs in the broadcast commentary, however, that were most certainly postimperial in origin, and some that suggested ironic reversals. Britain was surprised and intensely proud of its fourth-place finish in the gold medals table. Such a small country, coming in only behind giants such as China, the United States, and Russia! Ordinary people interviewed in the street, though, were anxious about the next Olympic Games and wondered whether it would be possible to put on a show in London as well organized and as opulent as the one the Chinese had mounted. The current projected budget for the 2012 Games falls far below what the Chinese spent. Commentators doubted further whether Britons would be capable of putting together an opening ceremony as well choreographed and disciplined as the Chinese had done. They wondered, too, whether British sports fans, who have been known to show a surly side at international events, would actually know how to behave themselves and perform like gracious hosts. In response to expressed anxieties such as these, Madame Fu Ying, China's ambassador to Great Britain, was quoted as commenting that all Londoners really needed was to have confidence in themselves. If they set their minds to do it, she reassured, ways would be found to overcome any difficulties that arose. The BBC gave glowing praise to the Chinese athletes throughout. No special coverage was given to Team India, however—which, of course, had nothing in particular that it needed to prove in 2008. India did take one gold medal, I learned later, its first ever individual Olympic gold—in shooting.