Jonathan Ocko and David Gilmartin are to be congratulated on producing a truly valuable piece of comparative work. Particularly as one who is not a legal historian, I have learned an immense amount not only about the nature of law in the two societies but also how to think about legal questions in relation to other historical and comparative questions. I do have a serious interpretive difference with them regarding their characterization of the Qing as governed by the rule of law, but what I have learned from them far surpasses what I think they should rectify.
Toward the end of the comparison, the writers declare that they want to show that the “rule of law,” when seen in a wider and more institutionally embedded context, was no less meaningful in non-Western societies than in modern Western ones. By showing how one may view legal processes in the functioning of precapitalist or preindustrial society, we are introduced to a wide range of problems including state–society relations and the operation of an agrarian market society. Particularly significant is the contrast they draw between the articulations of customary law with state law in the two societies. In China, they see the practices of contract and ritual (the second is underemphasized) as largely consonant with imperial laws, and this convergence parallels the fusion of “rule by man” with “rule by law” in the Chinese case. In India, the colonial state deliberately sustained the separation of colonial law from customary law even though customary or community law was itself produced or reified by legal procedure. According to the authors, these contrasting legacies shape the contemporary experience not only of the law, but of a vast range of social phenomena in the two contemporary nation-states.
After an initial introduction to the scholarship on the “rule of law” idea, the authors proceed to dismiss the distinctive understanding of it as an Anglo-American tradition and opt to understand it as a necessary part of governance, particularly in the Chinese imperial order. The authors are surely right to imply—although they do not actually make this argument—that the idea of absolutist rule in models of Oriental despotism could not possibly sustain the relatively stable and economically dynamic order in empires such as of the Qing or the Ottomans for so many centuries. Moreover, such Orientalist ideas were doubtless shaped in the process of fashioning the “rule of law” ideal. Yet to refute the Orientalist interpretation of an idea does not necessarily clarify its internal structure.
Put simply, it is not very helpful to view the Qing state as governed by the rule of law because it obscures more than it reveals. The authors have done a good job of showing that laws were important in Chinese society to constrain arbitrariness and violence, including the violence of the state and the emperor. At the same time, they indicate that these laws were inseparable from the moral and ritual order that defined the hierarchy of social statuses. This legal and ideological fusion was sanctioned by a cosmology of heaven, and the key to its interpretation was held by the emperor. The imperial monopoly of access to heaven was not necessarily as strong in all periods, but it was firmly secured by the early Qing. Ocko and Gilmartin appear to be in agreement with the argument that stresses imperial sovereignty (over law) especially when they reveal that the entire system came apart with the fall of the monarchy in 1911. They further suggest that this collapse led to a vacuum of authority, a crisis in which the basis of sovereignty in law does not or cannot appear—at least for the purposes of political succession and order.
To be sure, the liberal idea of the rule of law as a practical reality has been critiqued from many quarters, most recently by Giorgio Agamben, who argues that modern states have suspended the rule of law by declaring the state of exception whenever necessary. Following Carl Schmitt, he argues that sovereignty resides in the power to suspend the rule of law. Nonetheless, the distinctiveness of the rule of law in the Anglo-American tradition derives historically, it seems to me, from its role in the modern transition in these societies as discussed by Professor Paul Kahn and cited by the authors. As Claude Lefort has put it, the political center in modern or post-Enlightenment democracies is empty. The empty center is disclosed in the shift from God and king to the abstract conception of the “people,” but the disclosure simultaneously demands a new source of transcendence to reintegrate the social order.
Many modern nationalisms locate this new transcendence in a doctrine of the unchanging authenticity of the sovereign “people” or nation, thereby seeking to restore the organic, social totality centered on God/Emperor/Leader/Party in the name of the people.Footnote 1 The distinctiveness of the liberal tradition lies in the sanctification of this transcendence in the constitution or constitutional law. As the transcendent moral authority that functions to keep the political center procedurally open, however compromised it may be in practice, law in Anglo-American society claims sovereign status.
The colonial regime in India inherited the primacy of legal sovereignty but appears to have adapted it for colonial purposes. The principal innovation here seems to be that the chief rights-bearing entity was not the citizen or the individual but rather the “customary” communities of caste, village, religion, tribe, and so on. We can see here how the rule of law may be applied in a society, which has nothing to do with individual rights but with the legal process. To be sure, as the authors are very aware, these communities are themselves created or reified by the legal definition of them as communities of custom. They suggest that the universal rule of law (applied equally to all subjects in colonial India) was applied to property, civil, and criminal administrative realms, but that the articulation of the two modes of legal production tended to privilege the former mode over the latter. Thus disputes over property and temple control turned out to be as much about status and community power as about property.
To be sure, the rule of law ideal also has an impact, and the authors allege that Gandhi's notion of the satyagrahi—the disciplined and self-sacrificing moral citizen—embodied this ideal. It is not clear to me why Gandhi's satyagrahi ideal of citizenship is necessarily dependent on the rule of law. The satyagrahi does not respect law in and of itself, although he or she refrains from exercising physical violence. Indeed, morality and spirituality is source of the “truth force” over the violence of law. It could and does derive from many other conceptions of moral universalism—such as humanity—that emerged from the Enlightenment.
Yet I am prepared to concede that the rule of law is a most important symbolic ideal in contemporary India, given not only the widespread admiration of judicial activism in the higher courts of justice, but also popular evidence in such movies as Lagaan. Here the arrogant and exploitative British administrator challenges the drought-stricken villagers to a game of cricket. If the villagers beat the British team, they will be forgiven their tax arrears for a number of years; but if they lose, they will have to triple their payment. After much drama and efforts by the low-ranking British officer to cheat them, the village team (repackaged symbolically as the nation) defeats the British team, and the promise is honored by the higher British authorities. Here cricket is the metaphor of justice because it is played by the rules of the game, and in the end, the bet is honored and justice upheld—without lawyers, to boot.
All in all, I find the idea of what we may—if somewhat preciously—call the “colonial articulation of modes of legal production” to be very persuasive and useful. We can see how the British thought they were preserving Indian culture within the framework of British ideals and yet be able to develop it as an effective technique of divide and rule. From the vantage of postindependence India, it explains the homogenized or homologous plurality—or, in Indian parlance, communalization—of the modern state which is, of course, not the same as the plurality of “life forms.” Thus we can adapt the rule of law idea in India in a usable way. The same cannot quite work in the case of Qing China.
In the Qing, the question of legal sovereignty did not arise; the emperor derived his sovereignty not from law but from the cosmology of heaven, and the law represented an instrument of the realization Heaven's will in human society. It was not legal transcendence but moral-cosmological authority that the emperor had to obey. Indeed, rule by man or the junzi was theoretically privileged over rule by law. This is not to suggest that law was not practically important. The authors have demonstrated its importance in many aspects of social and economic life. The fact that it was substantive law, adapted to different stations of the parties to the case, certainly does not affect its universal applicability. But law was not sovereign. It was a convenient way to govern.
Unlike the articulation of legal modes in colonial India, where, ironically, the state shaped society, in Qing China, the state maintained a night watchman–type (wuwei) association with the vast realm of customary law: the world of contracts that anyone familiar with Chinese rural as much as urban society will immediately recognize. This domain of contracts used the law only as one court of appeal. In fact, David Faure's recent work suggests considerable distance between the world of customary law and state law. From the sixteenth century, contracts sought the sanction of alternative sources of authority in the cultural nexus of ritual, lineage, gods, and ancestors and practical mediation by guilds, relatives, middlemen, and village leadership. Indeed, it would be interesting to explore whether the ubiquitous puja ceremonies in India also played a similar role in bonding deals during an earlier period. While the use of such contracts in China did allow for some definition of property rights, according to Faure, they were incapable of developing large-scale financial outlays that were only made possible by banks and other financial institutions after the passage of the Company Law of 1904.Footnote 2
Subsequently, as Ocko and Gilmartin indicate, Western-style rule of law had a spotty history in the Republic and People's Republic of China (PRC). Successive Republican regimes did seek to institute Western-style laws both in order to develop the infrastructure of capitalism and to enable the revision of the Unequal Treaties. But as they point out, modern legal institutions were confined to the large treaty ports while outside these areas, the realm of customary contract and Chinese administration of justice continued to dominate. They agree with Xu Xiaoqun that by the mid-1920s, law and the judiciary had been effectively “partyized,” a trend that was, of course, reinforced during the PRC. The party came to represent the transcendent authority of the “people.”
In the context of its weakness in the twentieth century and our argument of its inapplicability in the earlier period, I find it difficult to agree with Ocko and Gilmartin's characterization of the Qing as a rule of law society. They declare, “Given that the association of the “rule of law” with indigenous notions of sovereignty was far more powerful in nineteenth-century China than in British India—and more deeply ingrained in Chinese society—one would expect that prospects from building new forms of state authority linked to “rule of law” would have been better in China than in India.” I find this to be a curious statement. The authors appear to face a problem that they cannot solve, but it is only because by positing the rule of law in imperial China, they have actually produced the problem.
Comparative analysis and the mission to demystify privileged concepts such as the rule of law are both valuable goals. But surely we should not convert apples and oranges into two “orangapples.” Comparison yields the most when we can see how different societies responded to the impact of a new factor. Indeed, we can learn a great deal about the nature and strengths of an older society from this convergent comparison—such as the robust social institutions that sustained customary law through the late imperial period. To insist that these institutions depended on a “rule of law” is to drag us into a new Orientalism. Many aspects of customary contracts have reappeared in contemporary China. Having laid the impressive groundwork, the authors might next consider exploring the repertoire of legal ideas that can articulate, protect and extend these historically strong socio-legal local institutions.
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Jonathan Ocko and David Gilmartin are to be congratulated on producing a truly valuable piece of comparative work. Particularly as one who is not a legal historian, I have learned an immense amount not only about the nature of law in the two societies but also how to think about legal questions in relation to other historical and comparative questions. I do have a serious interpretive difference with them regarding their characterization of the Qing as governed by the rule of law, but what I have learned from them far surpasses what I think they should rectify.
Toward the end of the comparison, the writers declare that they want to show that the “rule of law,” when seen in a wider and more institutionally embedded context, was no less meaningful in non-Western societies than in modern Western ones. By showing how one may view legal processes in the functioning of precapitalist or preindustrial society, we are introduced to a wide range of problems including state–society relations and the operation of an agrarian market society. Particularly significant is the contrast they draw between the articulations of customary law with state law in the two societies. In China, they see the practices of contract and ritual (the second is underemphasized) as largely consonant with imperial laws, and this convergence parallels the fusion of “rule by man” with “rule by law” in the Chinese case. In India, the colonial state deliberately sustained the separation of colonial law from customary law even though customary or community law was itself produced or reified by legal procedure. According to the authors, these contrasting legacies shape the contemporary experience not only of the law, but of a vast range of social phenomena in the two contemporary nation-states.
After an initial introduction to the scholarship on the “rule of law” idea, the authors proceed to dismiss the distinctive understanding of it as an Anglo-American tradition and opt to understand it as a necessary part of governance, particularly in the Chinese imperial order. The authors are surely right to imply—although they do not actually make this argument—that the idea of absolutist rule in models of Oriental despotism could not possibly sustain the relatively stable and economically dynamic order in empires such as of the Qing or the Ottomans for so many centuries. Moreover, such Orientalist ideas were doubtless shaped in the process of fashioning the “rule of law” ideal. Yet to refute the Orientalist interpretation of an idea does not necessarily clarify its internal structure.
Put simply, it is not very helpful to view the Qing state as governed by the rule of law because it obscures more than it reveals. The authors have done a good job of showing that laws were important in Chinese society to constrain arbitrariness and violence, including the violence of the state and the emperor. At the same time, they indicate that these laws were inseparable from the moral and ritual order that defined the hierarchy of social statuses. This legal and ideological fusion was sanctioned by a cosmology of heaven, and the key to its interpretation was held by the emperor. The imperial monopoly of access to heaven was not necessarily as strong in all periods, but it was firmly secured by the early Qing. Ocko and Gilmartin appear to be in agreement with the argument that stresses imperial sovereignty (over law) especially when they reveal that the entire system came apart with the fall of the monarchy in 1911. They further suggest that this collapse led to a vacuum of authority, a crisis in which the basis of sovereignty in law does not or cannot appear—at least for the purposes of political succession and order.
To be sure, the liberal idea of the rule of law as a practical reality has been critiqued from many quarters, most recently by Giorgio Agamben, who argues that modern states have suspended the rule of law by declaring the state of exception whenever necessary. Following Carl Schmitt, he argues that sovereignty resides in the power to suspend the rule of law. Nonetheless, the distinctiveness of the rule of law in the Anglo-American tradition derives historically, it seems to me, from its role in the modern transition in these societies as discussed by Professor Paul Kahn and cited by the authors. As Claude Lefort has put it, the political center in modern or post-Enlightenment democracies is empty. The empty center is disclosed in the shift from God and king to the abstract conception of the “people,” but the disclosure simultaneously demands a new source of transcendence to reintegrate the social order.
Many modern nationalisms locate this new transcendence in a doctrine of the unchanging authenticity of the sovereign “people” or nation, thereby seeking to restore the organic, social totality centered on God/Emperor/Leader/Party in the name of the people.Footnote 1 The distinctiveness of the liberal tradition lies in the sanctification of this transcendence in the constitution or constitutional law. As the transcendent moral authority that functions to keep the political center procedurally open, however compromised it may be in practice, law in Anglo-American society claims sovereign status.
The colonial regime in India inherited the primacy of legal sovereignty but appears to have adapted it for colonial purposes. The principal innovation here seems to be that the chief rights-bearing entity was not the citizen or the individual but rather the “customary” communities of caste, village, religion, tribe, and so on. We can see here how the rule of law may be applied in a society, which has nothing to do with individual rights but with the legal process. To be sure, as the authors are very aware, these communities are themselves created or reified by the legal definition of them as communities of custom. They suggest that the universal rule of law (applied equally to all subjects in colonial India) was applied to property, civil, and criminal administrative realms, but that the articulation of the two modes of legal production tended to privilege the former mode over the latter. Thus disputes over property and temple control turned out to be as much about status and community power as about property.
To be sure, the rule of law ideal also has an impact, and the authors allege that Gandhi's notion of the satyagrahi—the disciplined and self-sacrificing moral citizen—embodied this ideal. It is not clear to me why Gandhi's satyagrahi ideal of citizenship is necessarily dependent on the rule of law. The satyagrahi does not respect law in and of itself, although he or she refrains from exercising physical violence. Indeed, morality and spirituality is source of the “truth force” over the violence of law. It could and does derive from many other conceptions of moral universalism—such as humanity—that emerged from the Enlightenment.
Yet I am prepared to concede that the rule of law is a most important symbolic ideal in contemporary India, given not only the widespread admiration of judicial activism in the higher courts of justice, but also popular evidence in such movies as Lagaan. Here the arrogant and exploitative British administrator challenges the drought-stricken villagers to a game of cricket. If the villagers beat the British team, they will be forgiven their tax arrears for a number of years; but if they lose, they will have to triple their payment. After much drama and efforts by the low-ranking British officer to cheat them, the village team (repackaged symbolically as the nation) defeats the British team, and the promise is honored by the higher British authorities. Here cricket is the metaphor of justice because it is played by the rules of the game, and in the end, the bet is honored and justice upheld—without lawyers, to boot.
All in all, I find the idea of what we may—if somewhat preciously—call the “colonial articulation of modes of legal production” to be very persuasive and useful. We can see how the British thought they were preserving Indian culture within the framework of British ideals and yet be able to develop it as an effective technique of divide and rule. From the vantage of postindependence India, it explains the homogenized or homologous plurality—or, in Indian parlance, communalization—of the modern state which is, of course, not the same as the plurality of “life forms.” Thus we can adapt the rule of law idea in India in a usable way. The same cannot quite work in the case of Qing China.
In the Qing, the question of legal sovereignty did not arise; the emperor derived his sovereignty not from law but from the cosmology of heaven, and the law represented an instrument of the realization Heaven's will in human society. It was not legal transcendence but moral-cosmological authority that the emperor had to obey. Indeed, rule by man or the junzi was theoretically privileged over rule by law. This is not to suggest that law was not practically important. The authors have demonstrated its importance in many aspects of social and economic life. The fact that it was substantive law, adapted to different stations of the parties to the case, certainly does not affect its universal applicability. But law was not sovereign. It was a convenient way to govern.
Unlike the articulation of legal modes in colonial India, where, ironically, the state shaped society, in Qing China, the state maintained a night watchman–type (wuwei) association with the vast realm of customary law: the world of contracts that anyone familiar with Chinese rural as much as urban society will immediately recognize. This domain of contracts used the law only as one court of appeal. In fact, David Faure's recent work suggests considerable distance between the world of customary law and state law. From the sixteenth century, contracts sought the sanction of alternative sources of authority in the cultural nexus of ritual, lineage, gods, and ancestors and practical mediation by guilds, relatives, middlemen, and village leadership. Indeed, it would be interesting to explore whether the ubiquitous puja ceremonies in India also played a similar role in bonding deals during an earlier period. While the use of such contracts in China did allow for some definition of property rights, according to Faure, they were incapable of developing large-scale financial outlays that were only made possible by banks and other financial institutions after the passage of the Company Law of 1904.Footnote 2
Subsequently, as Ocko and Gilmartin indicate, Western-style rule of law had a spotty history in the Republic and People's Republic of China (PRC). Successive Republican regimes did seek to institute Western-style laws both in order to develop the infrastructure of capitalism and to enable the revision of the Unequal Treaties. But as they point out, modern legal institutions were confined to the large treaty ports while outside these areas, the realm of customary contract and Chinese administration of justice continued to dominate. They agree with Xu Xiaoqun that by the mid-1920s, law and the judiciary had been effectively “partyized,” a trend that was, of course, reinforced during the PRC. The party came to represent the transcendent authority of the “people.”
In the context of its weakness in the twentieth century and our argument of its inapplicability in the earlier period, I find it difficult to agree with Ocko and Gilmartin's characterization of the Qing as a rule of law society. They declare, “Given that the association of the “rule of law” with indigenous notions of sovereignty was far more powerful in nineteenth-century China than in British India—and more deeply ingrained in Chinese society—one would expect that prospects from building new forms of state authority linked to “rule of law” would have been better in China than in India.” I find this to be a curious statement. The authors appear to face a problem that they cannot solve, but it is only because by positing the rule of law in imperial China, they have actually produced the problem.
Comparative analysis and the mission to demystify privileged concepts such as the rule of law are both valuable goals. But surely we should not convert apples and oranges into two “orangapples.” Comparison yields the most when we can see how different societies responded to the impact of a new factor. Indeed, we can learn a great deal about the nature and strengths of an older society from this convergent comparison—such as the robust social institutions that sustained customary law through the late imperial period. To insist that these institutions depended on a “rule of law” is to drag us into a new Orientalism. Many aspects of customary contracts have reappeared in contemporary China. Having laid the impressive groundwork, the authors might next consider exploring the repertoire of legal ideas that can articulate, protect and extend these historically strong socio-legal local institutions.