Confucianism and Constitutionalism: What Is at Issue?

Does constitutionalism exist in Chinese Confucian political thought? Up until the mid-twentieth century, Chinese Confucian politics was understood essentially in terms of a patriarchal “rule by man” (renzhi 人治) in which the empire was the private possession of the ruler whose ruling legitimacy was based solely on hereditary right. If there was any positive political role that Confucianism played, it was that the Confucian discourse of virtue and ritual helped cover up the Legalistic face of the all-encompassing hereditary ruler with the image of the benevolent father and the rhetoric of “benevolent rule” (renzhi 仁治). In this interpretation, the real engine that propelled Chinese politics under this benign mask was a “rule by law” or “Legalism” (fazhi 法治), which was singularly devoted to serving the ruler's interest and at the core of which were bureaucratic apparatuses effectively controlled by the manipulation of rewards and punishments.Footnote ²

The problematic alliance (or intertwining) of rule by law and benevolent rule, on this view, was firmly institutionalized in the empire during the Han dynasty (206 BCE–220 CE).Footnote ³ As the empire, founded on Legalism, employed Confucianism (especially its patriarchal elements) as its “official” ruling ideology,Footnote ⁴ Confucianism degenerated into so-called Legalistic Confucianism, in which Confucian ethics, originally focused on moral self-cultivation and the moral transformation of the world, became massively politicized in the service of the mornarchical order and bureaucratic hierarchy of the empire.Footnote ⁵ Under this Legalistic Confucian political structure, there could be no room for a constitutional arrangement that could effectively constrain the bureaucratically centralized imperial power in which political power can be exercised with moral and political legitimacy.

Recently, however, students of Confucianism have challenged this popular account of traditional Confucian politics in China. Their common argument is that Confucian rituals (li 禮), generally understood as enhancing docility in the people, in effect exercised a critical “constitutional” function by constraining arbitrary use of power by the ruler. According to this new interpretation, the Confucian ruler is not above the li. On the contrary, the ruler is systematically controlled by the li (negative constitutionalism) that simultaneously confers moral and political authority on him and enables him to maneuver politically (positive constitutionalism).Footnote ⁶ Chaihark Hahm suggests that

If it is agreed that constitutionalism, which at once enables and constrains political power, is a widespread and adaptable phenomenon capable of insinuating itself into institutions in multiple ways, then understanding constitutionalism in an unfamiliar culture will require attention to the local language by which constitutionalism is mediated, the local context in which such a language is deployed, and the grammar that governs such a context. I agree with Hahm (and others) that li was an important component of Confucian constitutionalism that provided much of its language and grammar.

Li, however, was only one of the components (albeit an important one) that buttressed Confucian constitutionalism. Although Confucius (re)defined politics or government (zheng 政) in terms of “correction [of the ruler and the people]” (zheng 正) and presented the li as a sociopolitical apparatus for such moral correction,Footnote ⁸ this does not mean that Confucian sociopolitical ethics is directly analogous to the ethical system of the li.Footnote ⁹ One of the critical problems in understanding Confucian constitutionalism exclusively in terms of “rule by ritual” (hereafter lizhi 禮治) is that it does not do justice to the other dimension of Confucian constitutionalism, often identified in terms of “rule by virtue” (hereafter dezhi 德治), a moral-political viewpoint that finds the essence of government in the moral cultivation of the people by the transformative power of the ruler's moral virtue.

It should be noted that in Confucius's political thinking, the tension between dezhi and lizhi was only latent. Having lived during the last stage of the Spring and Autumn period (770–476 BCE) in which the civilization of the Zhou dynasty (1045–256 BCE)Footnote ¹⁰ that he so idealized was only nominally existent, Confucius (551–479 BCE) made it his heaven-given mission to advocate civil culture (wen 文) predicated on the li. Thus Confucius unflaggingly exhorted the rulers, who were preoccupied with military force and economic profit, toward the li as he believed the li socially embodied the spirit of ren 仁 (benevolence or human-heartedness), the Confucian moral virtue par excellence. Confucius believed the ideal civil order could be attained only if the ruler submits himself to the li and thereby cultivates moral virtue (de 德), and that only a virtuous ruler would be able to transform the people morally. In short, by rediscovering the moral and civil value in the lizhi of the Zhou civilization and by identifying lizhi with dezhi in mediation of ren, Confucius offered an alternative paradigm of politics to the one by force.

During the Warring States period (475–221 BCE) in which the habits of Realpolitik were intensified among the nominally feudal but actually independent states, Mencius (372–289 BCE) and Xunzi (ca. 312–230 BCE) emerged as the strongest advocates of Confucianism. However, while both were unswervingly committed to the Confucian Kingly Way (wang dao ),Footnote ¹¹ the two advanced very different, almost contrasting, interpretations of Confucian political thought. Mencius attributed the degeneration of civilization to the fact that man neglected heaven-bestowed morality and succumbed to his animal desires. To restore the moral order of society, therefore, it was imperative (especially for a ruler) to animate and fully develop his innate morality. In other words, Mencius believed that by becoming virtuous, a ruler who was once preoccupied with military force and material interest could be reconnected with heaven,Footnote ¹² thereby realizing the benevolent government (ren zheng 仁政). As a champion of Confucian virtue ethics, he even justified the killing of tyrants who had ruined their states and disrupted the moral order between man and heaven.

Xunzi, however, found Mencius's moral cosmology to be “un-Confucian.” In his view, the anarchic state of his time arose from human nature which is self-interested and passion driven, and this amoral state had to be rectified artificially by means of the Kingly Way consisting of “Ritual (li 禮), Music (yue 樂), Penal Codes (xing 刑), and Royal Ordinances (zheng 政)” (hereafter LYXZ),Footnote ¹³ discovered by the ancient sage-kings. While embracing the Confucian dezhi ideal in principle, Xunzi opposed Mencius, who seemed to reduce Confucian political ethics to virtue ethics, and instead reinterpreted Confucianism from the perspective of lizhi. Thus, these second-generation Confucian political thinkers firmly established dezhi and lizhi as the two main pillars buttressing Confucian Moralpolitik,Footnote ¹⁴ which is devoted to the welfare of the people, in opposition to the Realpolitik of Legalism. The two pillars, however, were presented as two separate, often competing, models of Confucian constitutionalism—dezhi constitutionalism versus lizhi constitutionalism.

The purpose of this article is to reconstruct these two pillars of Confucian constitutionalism by thoroughly rereading the texts of the Mengzi and the Xunzi. I follow recent scholarship by using constitution to refer to “the body of doctrines and practices that form the fundamental organizing principles of [a] political state”Footnote ¹⁵ and constitutionalism to refer to the ideas or norms related to restraining and legitimately enabling political power of the state or of the ruler.Footnote ¹⁶ Obviously, this understanding of constitutionalism primarily as organizing principles or ideas/norms does not describe its concrete institutional operation, for example, how power is divided into smaller parts so that it becomes less threatening, or how power is counterbalanced by another power of similar size and strength so that it does not become larger or stronger.Footnote ¹⁷ The focus of this essay is on the philosophical foundation of Confucian constitutionalism—how virtue and ritual, two key components of Confucian constitutionalism, constitute and restrain political power and how they must be related to achieve this goal.Footnote ¹⁸

More specifically, I investigate whether Mencius's and Xunzi's political theoretical positions with regard to Confucian constitutionalism are opposed to each other (as they appear to be) or whether they are complementary despite their different moral philosophical premises. To do so, I pay special attention to Xunzi's criticism of Mencius's idealization of royal transmission between sages by individual merit or “abdication” (shanrang 讓)Footnote ¹⁹ in Book 18 of the Xunzi by interpreting it as a political theoretical critique of dezhi constitutionalism from the standpoint of lizhi constitutionalism. But before delving into the texts, I will briefly discuss the political theoretical implications of defending or rejecting the idea of abdication in the Confucian tradition and clarify the core questions that this essay will explore.

The Case of Royal Transmission and the Core Questions

In The Trouble with Confucianism, William de Bary identifies one of the “troubles” of the Confucian tradition as the shift from abdication, which was idealized by both Confucius and Mencius, to hereditary transmission. According to de Bary, this shift involves a serious violation of the goals and standards that Confucianism originally set for itself because the hereditary transmission of throne inevitably violates the grand premise of the Confucian tradition: that the Confucian king is a “sage-king” (sheng wang 聖王) in whom moral authority and political power are inextricably intertwined.Footnote ²⁰ In the Confucian ethico-political tradition, the sage-king, whose official title is the Son of Heaven, is understood to be the paradigmatic man who encompasses both moral and political charisma and mediates between Tian 天 (heaven) and men. For this reason, Mencius extolled the Way employed by the sage-kings Yao and Shun as “the culmination of humanity.”Footnote ²¹ Xunzi, otherwise known as Mencius's most vehement critic, also understood the sage-king to be a cultural and political hero who transformed the anarchic state of nature into a civilized state by means of the LYXZ.Footnote ²² The hereditary transmission of kingship tarnishes the brilliant ethico-religious, political, and cultural aura attached to the ideal of sage-king. In contrast, from the standpoint of hereditary transmission, the Confucian ideal of abdication is inherently subversive as it valorizes the ruler's purely personal moral charisma but rejects its institutionalization.

What is interesting is that Xunzi rejected the abdication legend (and by implication, the abdication doctrine) in spite of its idealization by many earlier Confucians, including Mencius.Footnote ²³ If it is granted that the abdication doctrine was indeed contrived to criticize the anti-Confucian reality of hereditary transmission, it can be inferred that by rejecting the abdication legend (and doctrine), Xunzi affirmed the reality of hereditary royal transmission.Footnote ²⁴ In what follows, I argue that Xunzi's and Mencius's different reactions toward abdication (rejection versus affirmation) are indeed associated with their respective, seemingly opposed, views of human nature,Footnote ²⁵ and that their disagreement about human nature did lead to distinctive normative political theorizations in the Confucian tradition. More specifically, I draw attention to the complex nature of the two thinkers' respective political theories—the political realism integral to Mencius's apparently idealistic political thought and the political idealism integral to Xunzi's otherwise realistic political thought—and thereby to the much underappreciated common ground between Mencius's and Xunzi's political thoughts in “Confucian constitutionalism.” From the perspective of Confucian constitutionalism, this article opposes the widely held view that Xunzi's refusal of the abdication doctrine attests to his realistic affirmation of royal transmission and its validity. At the same time, it argues that despite the apparent theoretical/logical match between abdication and the right to rebellion and tyrannicide in Mencius's seemingly idealistic political reasoning,Footnote ²⁶ Mencius's abdication doctrine does not logically entail the right to rebellion. Rather, it will be shown, Xunzi, who rejects the abdication doctrine, is in better position to justify the right to rebellion and tyrannicide. In what follows, this essay presents Mencius's idealistic defense of abdication and his realistic resolution of the constitutional crisis latent in abdication in terms of dezhi constitutionalism. It then examines Xunzi's refutations of the three conventional rationalizations of abdication from the perspective of lizhi constitutionalism. It concludes by recapitulating the common Confucian constitutionalist ground that Mencius and Xunzi shared as advocates of the Kingly Way and discussing its implications for contemporary Chinese constitutionalism.

I

The last book of Lunyu records the cases of abdication that allegedly took place first between Yao and Shun and then between Shun and Yu:

What is striking here is that there is “neither conquest nor struggle, neither antagonist, nor rival to overcome, nor any countervailing power to be met,” as de Bary notes.Footnote ²⁸ In this mythic spectacle, power is either nonexistent from the beginning or has been completely erased. What is salient, instead, is virtue (de), which is presented as the sole foundation of political authority of sage-kings Yao and Shun. Therefore, what Yao calls “Tian-conferred line of succession” not only refers to the power-line or the Princely-Line (wang tung 王) but also includes the line of charismatic virtue, namely, the Sagely-Line (dao tung 道).

However, a problem arises: How does the reigning king (the Son of Heaven) appoint his successor? How can the appointments of Shun and Yu (by Yao and Shun) be morally and politically justified? The famous conversation between Mencius and Wan Zhang in Mencius 5A:5 centers around the logical predicament that abdication legend is exposed to. The following is the first half of the conversation.

Mencius's argument is (i) tianxia (“all under heaven,” or simply “world”) is not the private property of the king, who is in principle the sage-king and whose official title is “the Son of Heaven (tianzi 天子);Footnote ³⁰ (ii) therefore, the king cannot (or is not entitled to) make a personal, purely discretionary, decision to hand over the tianxia to another person, no matter how “sagacious” his virtue seems to be; (iii) as the public power to reign over “all under heaven,” kingship must be transmitted “in due course” and the final source of such a procedural legitimacy lies in the Mandate of Heaven (tianming 天命); (iv) finally, kingship that has been conferred by the Mandate of Heaven will naturally be accepted by the people.

The last point requires special attention. Here Mencius does not seem to have in mind two separate (and distinct) sources of moral and political legitimacy of kingship—Mandate of Heaven and the people's acceptance. Rather, he believes the people's behavior tracks (or parallels) the will of heaven (tian). Because of his belief in radical identification of the people with heaven, Mencius is often regarded as a protodemocratic thinker.

But can heaven be straightforwardly identified with the people in a nonideal political situation? Is it not more realistic to assume that a king, allegedly appointed by heaven, ought to be accepted by the people to gain moral and political legitimacy, and not that he will naturally be? The trouble is in the very equation of heaven with people, because from it, two substantially different propositions can be derived: (i) It is logically impossible for the people to refuse the king whose political legitimacy has been conferred by the Mandate of Heaven (because in theory the Mandate of Heaven should coincide with the will of the people). (ii) The man who has the support of the people has the Mandate of Heaven as well. To clarify Mencius's position, let us examine the latter half of the conversation between Mencius and Wan Zhang.

Here we can see that Mencius has two classes of “people” in mind who vicariously represent the Tian and accept the new Son of Heaven—the laypeople (min 民 or bai xing 百姓, literally “hundred surnames”) and the feudal lords. What is implied by Mencius's statement is that heaven's approval can be confirmed only when both laypeople and feudal lords accept the new king. The question is whether there is any politically meaningful difference in the mode of acceptance of the new king between the laypeople and the feudal lords.

Generally, the Chinese term “min” or “bai xing” means people in their capacity as subjects; in its conventional usage, it does not refer to nobility. For example, when depicting the scene in which sage-king Tang (or Wu) was engaged in the punitive expedition of tyrant Jie (or Zhou), by the “people” Mencius meant the laypeople.Footnote ³¹ Likewise, when Mencius was encouraging King Xuan of Qi to share his joy with his “people,” he no doubt had in mind laypeople including the worst-off members of society, such as widows, widowers, and orphans. These are the people who sing songs of praise to the new king and welcome him by approaching him on the road.

As the above conversation shows, however, in some contexts, Mencius broadens the scope of the “people” so that it can encompass nobility, be they ministers in the feudal state or (albeit very rarely) feudal lords in the tianxia. Even more rarely, he uses the term “people” (in this case zhong 衆, not min) to refer to the aristocratic class. For instance, Mencius admonishes King Xuan of Qi, who had just annexed Yan (a state almost the same size as Qi), for violating the Confucian norm of just war:Footnote ³²

It seems more reasonable to assume that “the men (zhong 衆) of Yan” that Mencius recommends King Xuan to consult with during the process of restoring Yan's royal authority are Yan's “trusted ministers of the noble families” (shi chen 世臣)Footnote ³⁴ than to believe that they refer to Yan's entire population. Indeed, this interpretation is textually supported. Mencius defines the old (and, by implication, stable and well-ordered) state as the state that has (many) ministers of the noble families.Footnote ³⁵ He further stresses the pivotal importance of the ministers in governing the (feudal) state: “It is not difficult to govern. All one has to do is not to offend the [trusted ministers of the] noble families. Whatever commands the admiration of the [trusted ministers of the] noble families will command the admiration of the whole state; whatever commands the admiration of a state will command the admiration of the tianxia.”Footnote ³⁶

In short, Mencius divides the subjects of the king into two distinct groups: passive subjects consisting of laypeople who are the beneficiaries of the benevolent government, and active subjects such as feudal lords (in the tianxia) or ministers of the noble families (in the feudal state). This distinction shows that the “people” who are entitled to approve of the king are feudal lords (if at issue is the Son of Heaven) or ministers of the noble families (if at issue is the feudal lord). Unless approved by the active subjects (feudal lords or ministers of the noble families), the candidate for a royal position cannot attain ruling legitimacy even with support from the laypeople.

Therefore, given the ingrained class distinction among the people and specific political rights (passive or active) tacitly attached to each class in Mencius's abdication doctrine, it would be a mistake to understand Mencius's justification of abdication as an expression of naive idealism. Quite the contrary, Mencius's seemingly idealistic identification of people with heaven could mean in practice that the Mandate of Heaven is represented vicariously by the will of active subjects. The implications of Mencius's “realism” are indeed far-reaching: Mencius's justification of abdication, originally focused on the sage-king's charismatic rule, can be subverted to serve the ministers' interest, that is, to uphold the ministers' political authority to approve and occasionally constrain royal power.

Mencius, however, does not forget that the ministers' political authority is always a power vis-à-vis the kingship and therefore that ministership (political right, authority, and power of the ministers) is fundamentally dependent upon the existence of (nonideal) kingship. In my judgment, the most striking part of Mencius's political theory is the surprising conservative turn that Mencius takes—from his original espousal of abdication to defense of hereditary kingship, without which the political right, authority, and power of the ministers are pointless. In another conversation between Mencius and Wan Zhang, Wan asks: “Is it true that virtue declined with Yu who chose his own son to succeed him, instead of a good and wise man?” And Mencius responds:

While refuting Wan Zhang's (tacit) claim that hereditary kingship began when the kings had lost their personal moral charisma, Mencius simultaneously denies the Weberian contention that charisma, whatever forms it takes, is eventually routinized and turned into traditional authority.Footnote ³⁸ That is, the father-son transmission from Yu to Qi is as legitimate (both morally and politically) as the abdication from Yao to Shun and from Shun to Yu because it, too, was in accordance with the Mandate of Heaven and supported by the people. Mencius even justifies the hereditary transmission between Yu and Qi by referring to the authority of Confucius. However, there is a logical jump in Mencius's reasoning. If, as Mencius claims, legitimacy of the royal transmission lies in the Mandate of Heaven, the people's approval, and ultimately the royal candidate's excellent moral virtue that enables and vindicates the other two sources of political legitimacy, it entails the absurd claim that all kings after Qi in the Xia dynasty—including notorious tyrant Jie, Xia's last king—are to be regarded as kings, that is, the possessors of brilliant moral charisma, simply because of the fact (ex post facto) that they inherited the throne from their predecessor “legitimately.”

What generates this logical problem is Mencius's singling out the king's recommendation as the most decisive factor regarding abdication. This condition implies that without the reigning king's recommendation, not even a sage whose moral virtue is commensurate with Confucius's can become a sage-king.Footnote ³⁹ According to Mencius's most developed doctrine of abdication, therefore, the Mandate of Heaven is relegated to the will of the Son of Heaven, and the will of the Son of Heaven is placed, albeit tacitly, over the royal candidate's moral virtue and the people's approval. A remarkable twist has thus taken place in Mencius's doctrines of abdication and the Mandate of Heaven, casually associated with his political idealism.

II

My interpretation of Mencius's political theory so far may not seem to fit with the conventional view of his justification of the people's right to rebellion or right to tyrannicide. However, as Justin Tiwald has recently argued, there is no evidence in the Mengzi that Mencius upheld the laypeople's (passive subjects') right to revolution and to enthrone the new king that they support.Footnote ⁴⁰ For example, it was Tang and Wu (then feudal lords of Xia and Shang respectively) who dethroned (and killed) the tyrants Jie (the last king of Xia) and Zhou (the last king of Shang) and then founded the new dynasties of Shang and Zhou. Likewise, if a feudal lord has lost the Mandate of Heaven due to his tyrannical behavior, laypeople may be able to engage in collective protest against him, but the right to replace him with a new ruler is exclusively held by the ministers of noble families or (preferably) the morally excellent ones among them.

In the context of his theory of rightful regicide, Mencius distinguished those who possess the positive moral-political right from passive subjects, by calling the former Tianli 天吏 (“heaven's delegated official”).Footnote ⁴¹ But who are Tianli and what are the qualifications to be the Tianli? According to Tiwald, there is one visible qualification in becoming Tianli—the possession of some territory, at least one hundred square li in size.Footnote ⁴² Certainly, this is in line with my earlier argument that the political right to dethrone a tyrant and enthrone a new king is held and exercised exclusively by the feudal lords (who own at least one thousand square li) in the tianxia or the ministers of the noble families (who own at least one hundred square li) in the feudal state.

But the possession of a certain amount of territory (and the social status and political power attached to it) is only a necessary condition to become Tianli. Mencius certainly did not regard any minister of the king or anyone whose enfiefment was at least one hundred square li as entitled to the role of the Tianli, with the political power to dethrone (or kill) and enthrone a monarch. The more important qualification is the would-be Tianli's moral excellence. For instance, the territorial qualification alone cannot account for Mencius's great admiration of Yi Yin's sagacious ministership.Footnote ⁴³ When Tai Jia, Tang's grandson, went astray, Yi Yin took him into custody and gave him the tianxia back after only three years of regent rule.Footnote ⁴⁴ Obviously, in adjudicating Yi Yin's controversial action (his assumption of the role of the Tianli), Mencius's focus was not so much on Yi Yin's territory as on his brilliant moral virtue and political sagacity derived from it.Footnote ⁴⁵

It is now clear why Mencius berated so harshly the Hegemons (ba 覇) such as Duke Huan of Qi, who, their official status being merely feudal lords, rationalized their semi-imperial powers in terms of “revering the (Zhou) King and expelling the barbarians (zun wang rang yi 王攘夷).” Since they emerged during the cultural and political crisis when the Zhou King had lost substantial political power to maintain the tianxia and since they, at least, did not arrogate to themselves the title of king, the Hegemons might have understood themselves as the Tianli. For Mencius, however, the Hegemonic Rule (ba dao 覇) was despicable because it was not benevolent (ren) statecraft. The Hegemons possessed territory of one hundred li square and minister status in the court of the Zhou King,Footnote ⁴⁶ but they lacked what Mencius regarded as Tianli's most important qualification—charismatic moral virtue. For Mencius, Tianli must be the “sagacious ministers” such as Fu Yue, Yi Yin, and Duke Zhou (who was the minister of King Wu and King Cheng).

According to Mencius, therefore, Tianli or the sage-ministers are those morally excellent among the noble families. However, here arises a problem, for according to Mencius's moral theory, everyone (irrespective of his social origin) can become a sage-minister (or a Tianli) in time of crisis. Yi Yin and Shun, who was Yao's minister for twenty-eight years, were originally farmers.

Admittedly, Mencius believed in the goodness of human nature and thus thought that anyone can become a sage. If one's nature (xing 性) was endowed by heaven and this heaven-endowed nature can be fully realized by self-cultivation, then there could be no reason to doubt his moral perfectibility to become a sage like Yao and Shun.Footnote ⁴⁷

However, though anyone can become a sage, Mencius did not think that anyone can become a sage-king. Shun's dramatic ascendance from farmer to king is almost impossible to repeat in a nonideal world in which hereditary transmission of kingship has become the norm. What is still possible, though, is for a farmer to become a sage-minister by virtue of his brilliant moral virtue. Although Mencius's moral theory suggests that anyone can become a Yao or a Shun, his political theory concentrates on the charismatic transformation of a person of humble origin (pifu 匹夫) into a sage-minister.

It is widely held that Mencius's greatest political passion was to turn one of the rulers of his time into a sage-king who could reunite the world under the Kingly Way. But it should not be forgotten that Mencius was not insensitive to the challenge posed by hereditary kingship—that a ruler's political authority was severed from moral authority—and this realization impelled Mencius to emphasize the moral self-transformation through which a layperson is morally and politically empowered and ultimately becomes the sage-minister who can compete with the ruler, the practitioner of Realpolitik whose ruling legitimacy is predicated solely on his hereditary right to kingship. Mencius called such a charismatic moral hero a “great man” (da zhang fu 大丈夫), who “cannot be led into excesses when wealthy and honored or deflected from his purpose when poor and obscure, nor can be made to bow before superior force.”Footnote ⁴⁹

Mencius was a conservative in that he never challenged the political legitimacy of hereditary kingship, despite his unswerving commitment to the ideal of sage-kingship. But when he realized that the rulers could no longer entertain their special connection with Tian under the reality of hereditary transmission, he uncovered and further justified the “special connection” between ministership and the Mandate of Heaven. Notwithstanding his abdication doctrine, Mencius's realism shifted in focus from the ruler, who was no longer a sage-king, to the ministers who could be morally perfect, thereby reinforcing the position of the Tianli, originally called upon in political emergencies, in the daily operations of royal bureaucracy. By institutionalizing Tianli within the bureaucracy Mencius's political theory puts ministership in rivalry with hereditary kingship.