Legalism in China

The rule of Law

In my previous blog post, I had mentioned about the importance of having an effective monitoring and punitive system in place to curb corruption. I will like to introduce a legalist philosopher, Han Feizi (BC 281 ~ BC 233) who is known for his teachings of punishing the wrong doers and rewarding the good performers.

Han Feizi was born during the Spring Autumn Warring States period (BC 475 ~ BC 221). Though this era is remembered as the most tormented time with countless wars and famines, I would also consider it as the renaissance of China. Confucianism, Taoism, Mohism and Legalism were born and shape China for thousands of years. Sun Tzu also wrote his “Art of War” during this period. Fengshui, Yijing and traditional Chinese medicine were further developed and influence the Chinese lives in many ways. Thus one needs to understand Chinese characteristics and behavior by studying this period of development. Yes that is right. The Chinese wisdom and culture were developed from the result of wars, famine, survival in the royal court and the tripartite relationship among the powerful, rich and poor. Consequently the Chinese had learned to be resilient, adaptable and guile too.

Unlike Confucius who is widely known locally and abroad, Han Feizi is less known and his philosophy is quite opposite to Confucianism which believes man is born innocent and could be educated to be virtuous. Han Feizi argued that man is born selfish and greedy and would act unscrupulous to achieve his goals. He advocated a social order under the central control by the ruler to impose severe punishment for crimes committed and a rewarding scheme for good performers and loyalists who made contribution to the nation. Man would commit less crime if he knows he would be punished.

Unfortunately most people focus on his teachings on punishment and ignore his other emphasis on need for an appropriate rewarding system. His teachings on punishing the wrong doers were carried out to extreme by the emperors (especially by the First Emperor Shi Huangdi). The emperors carried out harsh punishment as a deterrence to secure their throne and coerced complete obedience from their subjects. It was no longer a case where the criminals were punished but rather some innocent folks were victimized for political or unwitting reasons. As such, most scholars do not condone such legalist theory.

Though in current times it is impractical to impose harsh punishment, his teachings on rule of law and rewarding system are still relevant and constructive. Laws and rules must be taught to the public to know what are accepted and what are not accepted in the society. It is just like playing golf; you want to play with a golfer who knows and abides the rules. No one will tolerate or enjoy a fellow golfer who flouts the rules on the green.

I often hear people complaining about rules. Many years ago while living in Singapore, I conceded to my foreign friends remark that Singapore is a “fine” country; we fine people for littering, jay walking, spitting, graffiti, selling chewing gum and so on. I too thought that we were too strict and sterile. One morning I had read a newspaper and learned that the government was introducing legislation to fine offender who did not flush the public toilet after use. Immediately I thought that the government had gone too far in governing our lives and wonder how I would response to my foreign friends tease again. That evening while I was in a departmental store, I went to the public toilet and was dismayed when I saw two guys did not flush the toilet after use.

 I realized that the legislation was the right thing to do. And also it had enlightened me on the necessity of law and order. The law is not meant for people who are properly behaved; it is for amoral people. As long as I am a responsible person and have no malice, I should never be bothered with laws. The law is to ensure the 3% of the population knows what the other 97% of the population would not tolerate.

I know many of my foreign friends would disagree with me. They would argue that this is autocratic and demeaning. There is no need to have laws when 100% of the population is civic minded and gracious. Unfortunately such Utopia does not exist.

I guess that is the reason why drug abuse is under controlled in Singapore. We hang the drug pushers! Besides fines, we also impose canning to people who commit serious vandalism and graffiti. In 1994, we canned American teenager, Michael Fay for serious vandalism. It is the system we are willing to adopt to have a safe and clean environment where we do not get anxious when our young children hang out late in the evening. Surprisingly some of my American friends conceded to me that they had wished Michael Fay to learn his lesson in Singapore as they could not do it back home. By the way, canning was not introduced by the current Singapore government. It was handed down from the British colonial government and we still find it very effective in deterring crimes.

There is no lack of harsh punishment or laws and legislations in China. The issue is the abuse, non transparency and inappropriate level of punishment in many such cases that had horrified the public. Fortunately with the advent of mass media and Internet coverage, many such malpractices begin to surface and the government officials and villains are punished. The recent case of triad busting in Chongqing, where more than a hundred triad chiefs and collaborating senior police officers were arrested, was a good example. This has a repercussion effect to other provinces as well. Some cities are imposing similar activity. You could imagine the heartfelt joy of the people.

As communism also believes in atheism, religion was discarded in the early years of communist rule in China.  Though major religions are permissible now in socialist China, the majority of the population is still not guided by moral religious teachings. Thus it is important to have public education to revive the moral standards and that offenders are not spared for their wrong doings. More should be done to enhance civic education in primary schools and home too. People need to understand that they could not bully others as their misdeeds are easily uncovered. As Han Feizi pointed out, you need to show to the public the severe punishment rendered out to offenders to dispel the majority from committing the same crime.

There is a subtle difference in the judicial process in many Asian countries compared to the West. In the West, the accused is innocent unless proven guilty. Over in Asia, the accused is guilty unless proven innocent though the court proceeding is similar. Even though there is still a general mistrust against the police force, the commoners are delighted to see the villains to face justice in court especially for those serious crimes such as rape, robbery, murder and corruption. A strong hatred by the commoners towards the villains is the consequence of an age long victimization by the latter. The evidences produced by the prosecution are effortlessly accepted by the public. Thus the defense lawyer has much work to do to prove the accused innocent; unlike in the West where the case could be dismissed due to technicality on the admission of evidence or there is any minute doubt on the case. OJ Simpson on the murder of his wife is a good classic example. In China, I am glad to see that people are now beginning to examine the evidences produced by the police to ensure fair play.

In the Christian West, pardon is a good way to get sinners to repent and turn over a new leaf. And also it is utmost important that innocent people are not wrongly punish in court. This is a very noble and righteous approach which works well in a society where people know what is right and wrong. However in a land where the peasants have been deprived of justice for centuries and see how the rich and powerful get away with malevolence and cruelty, it is not easy for them to accept criminals walk free out of the courtroom. That is probably the reason why the public is aroused easily over the Internet and mass media reporting injustice crime backed by government officials.

We shall not forget that Han Feizi equally stressed the importance of rewarding deserving people with good behavior and performance. We are quick to criticize or punish others for wrong doings but less inclined to give praise or rewards to others for a job well done. Han Feizi believes that a deserving reward will encourage not only the recipient but also others to continue the good work and behavior.

We should present recognition and monetary rewards more often to people who had acted courageously to defend good spirit and deeds. Recognition should also be given to exemplary conducts by the citizens and employees. Children learn to behave well with praises for good conduct and not by canning for misbehavior.

Han Feizi believed when you have a fair system of punishing the wrong doers and rewarding the deserving ones for good work and performance, people will then behave well and be happy. Justice must be carried out and the rule of law applies to all levels and no one is exempted from the prosecution of law. People will then respect the system and administration. Only with this stature, a nation can then be strong and great; and also a deterrence to other countries from invading itself. Unfortunately this fine point of his teachings was never accepted and put into practice by the emperors.

His legalist philosophy can also apply to business world where we should hand down appropriate punishment and reward to the respective wrong doers and good performers.

    Posted on 5 Oct 2009

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