Liang Zhiping, "Law and Traditional Culture"

Interview:  Liang Zhiping Talks about Law and Traditional Culture[1]

Introduction and Translation by David Ownby
 
Introduction

Liang Zhiping (b. 1959) is a prominent legal scholar who spent much of his career at the Center for Research in Chinese Culture, part of the Chinese National Academy of Arts in Beijing, but according to the text translated here, is now adjunct professor at Zhejiang University’s Guanghua Law School in Hangzhou.  As we see in the interview, Liang has worked on an impressively wide variety of topics in law and legal history, as well as translating any number of important Western legal works into Chinese; his C.V. (in Chinese) is available here.
 
Liang’s interview, which appeared in the online version of The Shanghai Review of Books 上海书评 (part of The Paper 澎湃), was occasioned by his having published two new books in 2020:  How to Govern: The Concept of Rule in Ancient China 为政：古代中国的致治理念, and On the Rule of Law and Moral Rule: An Inside View of The Movement to Modernize Chinese Law 论法治与德治：对中国法律现代化运动的内在观察.  The idea, of course, is to plug Liang’s books, but whatever commercial motivation underlies the initiative, the interview is very well done.  The interviewer, Li Li 李礼, has obviously done his homework, and skillfully allows Liang to discuss his new research in the context of his earlier work.
 
I found Liang’s discussion of his changing views of the relationship between law and traditional Chinese culture particularly interesting.  A few weeks ago, I posted to this site a translation of an interview with Liang’s classmate He Weifang (both were undergraduates at Southwest College of Political Science and Law in Chongqing), and remarked, largely on the basis of my reading of He’s writings in translation) that He views "law" as a pure product of the modern West, and that he appears not to be perturbed by this.  Liang shared He’s opinion earlier in his career (and the scholars he mentions as having influenced him in the interview are either Westerners or Chinese scholars who wound up working in the West), but his views have since evolved, his understanding of the concept of law having become richer and more expansive, and his views of traditional Confucian culture more accepting. 

In many ways, the evolution of Liang’s views tracks broader trends in Chinese intellectual culture in the reform and opening period:  many if not most intellectuals embraced liberalism and the West in the heady 1980s (and “law” in post-Cultural Revolution China meant closing the door forever against the multiple abuses of that era), only to see the liberal “consensus” fracture later on, as the fall of the former Soviet Union led some Chinese intellectuals to embrace various sorts of authoritarianism (including Confucian authoritarianism).  Later still, (illiberal) China’s rise, and the West’s apparent decline, further weakened the hold liberalism once had on the Chinese intellectual world. 
 
Of course, “returning to tradition” is a familiar theme in the contemporary Chinese intellectual world, and can easily lead to tired rehashings of the need to “indigenize Chinese intellectual inquiry.”  Liang, however, negotiates this mined terrain with considerable aplomb, proposing a methodology grounded in empathetic understanding of the discursive other, rejecting both a dogmatic insistence that only Western law is true “law,” as well as the opposite dogma that China is so unique that it requires its own understanding of the law.  He approaches contemporary Chinese legal developments with the same attitude, which he refers to as an “inside” or “internal” view, which can still be critical, but which meets the discourse on its own terms.  A law professor friend of mine once told me that lawyers are above all plumbers, in that they have to know how to build systems so that things flow as they should, and how to fix the systems when they are blocked.  Liang’s pragmatism strikes me as similarly motivated.
 
Favorite Quotes
 
“The Fourth Plenary Session of the 18th CCP Central Committee in 2014 was the first one to focus on the rule of law, which was noteworthy in and of itself. At that time, I wrote a long article entitled ‘On the Rule of Law and Moral Rule: Looking at the Rule of Law Movement in Contemporary China from Within 论法治与德治：对当代中国法治运动的一个内在观察.’

The two key words in the title of the article, ‘rule of law’ and ‘moral rule,’ are both taken from the ‘Decision’ adopted by the Fourth Plenary Session of the 18th Central Committee, and my ‘argument’ was to explore what ‘rule of law’ and ‘moral rule’ meant in this official text? Where did they come from? What were they talking about ? What was the problématique behind them?

In discussing these questions, I adopted an inside perspective, or a position that I call one of ‘inner criticism.’ This differs from two other common approaches, one of which is the kind of politically correct, full of footnotes, Party line 亦步亦趋 ‘scholarship,’ which can be called ‘inside,’ but which has no distance from its research topic, and in fact is another form of political propaganda, and thus is in fact part of the research topic. 

Another approach might be called dogmatic criticism. This kind of criticism is not internal, but rather external, because it comes with a set of dogmatic, external standards that are detached from Chinese history and reality, and using these standards to discuss China will similarly not improve our understanding and knowledge of Chinese society.  The ‘internal criticism’ I aim for is different in that it accepts the basic premises but is at the same time critical. 

By ‘internal,’ I mean to follow the internal logic of social development, to look at issues from the perspective of social actors, and to discuss them from the perspective of their propositions. Criticism, on the other hand, is not a simple negation, but a rational examination and analysis of the object of study, expressed from a critical difference.

From this perspective, you will not scornfully laugh off concepts such as ‘moral rule’ as many legal scholars do, nor will you shy away from concepts such as ‘Party leadership,’ ‘socialism,’ and ‘Chinese characteristics.’ Instead, you have to explain what these theories actually mean, in what sense they are possible, etc. These concepts and arguments are the subject of my analysis, through which I hope to make clear their logic and thus discover real issues and ways to solve them. To determine what stage we are at, we also need to be clear on these issues.”

“This problem you are worried about is largely due to overpoliticization. Not only does politics influence and dominate scholarship, but the scholarly world also consciously or unconsciously frames many issues from a political perspective. As a result, when someone says that China's modernization will have its own characteristics, this may be captured by a politically motivated Chinese exceptionalism. In fact, the development of any country, and especially a country with deep historical and cultural heritage, cannot completely break away from its past trajectory, and there is nothing to do about this.  This is true not only non-Western countries, but also applies to the experience of different countries within Western civilization.

Of course, critics can say that Chinese exceptionalism is different, and simply refuse to recognize universal values. In this case, the problem is a bit more complicated. First, where reasoning and argument are important, big words like ‘universal values’ don’t help much; indeed, when the question is pitched at a level this high, reasoning is useless. Second, stepping back a little, it would be too simplistic to say that Chinese exceptionalism does not recognize ‘universal values’ at all. Is the Chinese constitution part of particularism or universal values? 

The answer is clearly not one or the other. Setting aside these thorny issues, if you suspect, deny, or reject all Chinese ‘special characteristics’ because you oppose a particular politically inflected Chinese exceptionalism, to my mind this is neither reasonable nor sensible, because so doing is tantamount to refusing to think about certain major issues. Therefore, to my mind, the question is not whether we can talk about identity, but how we should talk about it. The ‘inner criticism’ mentioned above is one way to talk about it, because this ‘inner’ perspective can be used in contemporary society as well as in history and culture.”

“As for the understanding of ‘modern China,’ this is a fundamental question, involving both ‘modernity’ and ‘China.’ Simply put, our understanding of and attitude toward modernity will influence and even determine the shape of modern China, given that China’s modernity is not only shorter and more partial than Western modernity, but also more uncertain and open-ended. But at the same time, the construction and realization of modern China may also change our understanding of modernity as a whole. After all, the involvement of a country like China in the process of modernization is a historically significant event, and the program of modernization it finally presents to the world may redefine modernity itself. In this sense, modernity is not only an unfinished enterprise, but also an open-ended one.

Therefore, for both modernity and modern China, it is urgently important to understand the intellectual capacity, cognitive capacity, reflective ability, and the critical and imaginative power of the agents of social practice. We could say the same thing of the rule of law. As an institutional arrangement and a type of order, the rule of law is undoubtedly an important organized part of ‘modern China.’ There are many conditions that need to be met in order to implement the rule of law and to realize its unique functions. In China's current situation, I am afraid that the most important thing is the understanding of the rule of law by the agents of social practice, especially the political agents, and their sincerity and determination to implement the rule of law.”

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Translation
 
Li Li:  After the 1990s, you began to understand tradition from a more reflective standpoint, and your view of tradition and modernity was no longer as simple as before.  For example, you changed the fierce criticism of traditional legal culture in Explicating Law 法辨, adding a spoonful of sympathy to your understanding. Why did this shift occur? Now that another twenty years have passed, has your attitude changed yet again?

Liang Zhiping: This shift you are talking about actually happened in the 1980s, to be precise, during the process of writing Seeking Harmony in the Natural Order:  Studying Traditional Chinese Legal Culture 寻求自然秩序中的和谐：中国传统法律文化研究.  The book took more than a year to write, or even longer, if you count other, related writings, such as Explicating Law. The process of writing is also a process of reading and thinking, and in this process, some ideas, opinions, and even modes of expression wound up changing.
 
The reasons for this change, I think, are both external and internal. On the external side, there are a few people whose names should be mentioned. One is the archaeologist K. C. Chang (Zhang Guangzhi 张光直) (1931-2001), a second is the historian Ray Huang (Huang Renyu 黄仁宇) (1918-2000), and another is historian of science Joseph Needham (1900-1995). I quoted their views in some important places, and moreover, the way I talked about history was also influenced by them, especially by Ray Huang, because the way he understood and presented history was different from the historical narratives we were accustomed to at that time, whether it was the traditional Marxist historiography or the more recent historical and cultural criticism, and it was very attractive to me.

Of course, the more important factor was internal, and has to do with my beliefs and attitudes about research. I think you should do research in the same way you deal with people; you have to be honest, fair-minded, and base your conclusions on evidence—you can’t make wild assumptions or always think you’re right. Looking back, my knowledge, insights, and capacity to deal with classical subjects was limited, and I had many prejudices.  However, the beliefs and attitudes about research I just mentioned had a self-restraining effect, which helped me to get closer to what I was studying, instead of thinking condescendingly that I understood everything at first glance, and simply looking for sources that would allow me to criticize the ancients and move on.  Of course, this was a process, and over time I slowly woke up and changed. 
 
What is too bad is that I left for the US just as I finished the book, and I was so physically and mentally exhausted that I was not able to go over the manuscript another time, so there were quite a few errors left in the book. Later, when the book was reprinted, I made some changes, mainly to address some inappropriate statements in the book, especially at the level of emotional tone. Of course, these revisions remained superficial and rather limited. It wasn’t clear how to do a more fundamental revision, so I left most things as they were.  It was the same for the collection of articles from the same period, Explicating Law, which was later reprinted twice, and remained largely in its original form, except for one article that I removed. This is not to say, of course, that when I read those later on I had exactly the same understanding as I had at the time I wrote them. 

All I can say is that that was the me of the 1980s, from which today’s me has evolved, changing some things and continuing to believe certain others. What has changed is my simplistic way of thinking, my unreflective historical view; what has persisted is the belief and attitude toward research from which I draw constant benefits, and some research methods that I have explored in the process, such as using "legal culture" as a method, an interpretive method which aims to increase our understanding. Some of the things I wrote in the 1990s, such as The Cultural Interpretation of Law 法律的文化解释, were theoretical reflections and methodological summaries of a previous series of studies from Explicating Law through Harmony.   Qing Dynasty Customary Law 清代习惯法can be seen as a sequel to Harmony, and I extended things from there, producing contemporary studies such as Law and Order in Village China 乡土中国的法律与秩序. 

My work after 2000 was a bit random, but much of it concentrated on contemporary legal developments, especially observations and reflections on contemporary rule of law movements. There are also historical studies, such as Law and Ritual: Cultural Conflict in the Age of Legal Transplants 法律与礼教：法律移植时代的文化冲突, published in 2013, and the recently published How to Govern: The Concept of Rule in Ancient China 为政：古代中国的致治理念. In short, what has changed in the past twenty or thirty years is mainly in terms of research fields, themes, and focus, and the most important shift was actually accomplished in the late 1980s.
 
You just mentioned a shift from "fierce criticism" of tradition to "sympathetic understanding,” a description that might be understood as moving from a position of negation and denial to one of affirmation, acceptance, or even advocacy.  When people speak of "sympathetic understanding," what comes to mind is mostly related to the latter. For me, the important point is "understanding" rather than "sympathy.” "Sympathy" is a position and an attitude, while "understanding" is a method. My transformation was not due to a pre-existing position or attitude, but to a method, which was related to another attitude that did not involve values, because it was about fairness, so I had to "listen to both" and put values aside for a while. This is also true from the point of view of external influences.

At the time I had not yet read the historian Qian Mu 钱穆 (1895-1990) and knew nothing of the thought of New Confucian scholars in Taiwan and Hong Kong.  However, the scholars I valued and quoted, such as Ray Huang mentioned above, had a deep knowledge and understanding of tradition, and probably did not lack sympathy, but they were not people who were defending the Confucian Way. This is the path I have followed, so I can be "sympathetic" toward tradition, but I am unlikely to become a New Confucian.

Li Li:  In your 1989 article “The Renewal and Rebirth of Traditional Culture 传统文化的更新与再生,” you stated that " our culture has lost the ability to integrate and recreate different cultural experiences " and that "the Chinese today have completely lost all understanding and trust in the spirit of Western culture." Did you later find these too harsh? What do you think now?
 
Liang Zhiping: If you hadn't mentioned it, I would have forgotten about that article. This article was originally intended to be a "post face" for the book Harmony, but it was finally dropped, and later published with that title in the journal Dushu 读书. The thoughts and emotions expressed in what you cited come from two important sources, one is a feeling about the reality we were living, and the other is the feeling that came from translating Harold J. Berman's (1918-2007) Interaction of Law and Religion. I should say that this little book of Berman's had a greater impact on my thinking than his more famous, larger book, Law and Revolution: The Formation of the Western Legal Tradition, because it is thoughtful and prophetic. In particular, the discussion of law and faith, and the death and rebirth of civilization, afforded me a great insight.
 
Despite the difference in historical backgrounds, it seems to me that the fundamental problem facing China today is precisely the problem of law and faith, as well as that of the death and regeneration of civilization. At the same time, I also believe that we Chinese today have not really come to terms with this issue, and lack the wisdom and courage to carry out this great transformation. The two sentences you cited come from this. You can see this expression as a "fierce criticism," but it was not directed at the tradition, and rather at the present. Of course, I am not trying to glorify tradition, but instead want to emphasize that how tradition is used in the present depends on the ability of the present generation to recreate civilization; in other words, we, not the ancients, are responsible for the decay of civilization today.
 
I wrote a little book called The Observer 观察者 at the request of a friend after I returned from being a visiting scholar in the United States, and one of the articles included is called "Reading Feng Zikai in the United States 在美国读丰子恺," which deals with the understanding of tradition and cultural change. The artist Feng Zikai's (1898-1975) Essays on Yuanyuan Tang was the only Chinese book I took with me when I traveled to the United States.

I read Feng Zikai with great emotion, especially the pieces he wrote in his seventies in the few years remaining to him after the Cultural Revolution. These touched on old times and old events, and were written in a very straightforward style, but I read them with great sadness. I felt that I could enter his inner world, and I understood him, because people of my generation, like him, have lost their cultural home. China's thousands of years of civilization, which had much that was creative and wonderful, has now turned into an extremely vulgar society. As Chinese, our spiritual home is gone, and we can only be drifters and wanderers, and this feeling is even stronger when we are in foreign countries.
 
It is interesting to reread “The Renewal and Rebirth of Traditional Culture” thirty years later. On the one hand, it’s just a text from 1980s, but on the other hand, I fear that some of the basic points raised in the article have been confirmed rather disproved by the great changes of the past forty years. At least as far as I myself am concerned, on some of the most important issues, my views have not changed.
 
Li Li:  Hu Shih once said that "total Westernization" had never occurred, but that even if it did, the object of Westernization would carry forward something of itself, naturally leading to some kind of hybrid, and then the emergence of a new civilization based on Chinese culture. In terms of methodology, is it possible to renew and recreate tradition in this way? More than a hundred years have passed since the May Fourth generation called for the "regeneration of civilization."  What do you think of the idea?
 
Liang Zhiping: We might make a comparison to Japan. Japan's modernization was a very complicated process, and although it is true that some people advocated total Westernization, and there were indeed some extreme initiatives at the state and social levels, can we say that Japan followed a path of "total Westernization" after the Meiji Restoration? I don’t think so. But even if Japan followed this path successfully, would it be appropriate for a large and complex society like China’s? The kind of total Westernization advocated by Hu Shih did not happen, but what would have happened if it had?

We don’t know. What we do know is that it was a radical idea, and, to put it another way, it could be argued that similar ideas were actually put into practice in China, that Marxism came from the West, and Leninism as well. Moreover, the Sinicization of Marxism can also be said to be a hybrid. But was this what Hu Shih wanted? The problem was obviously not as simple as he thought.

I published a little booklet a few years ago, entitled Ritual and Law 礼教与法律, that discusses a controversy that arose during the formulation of the New Criminal Code of the Qing Dynasty, which was still at the end of the Qing Dynasty, a hundred years ago, but it deals with major issues that we have not yet resolved today. For example, one of the important considerations in the revision of the law at the end of the Qing Dynasty was to obtain the recognition of the great powers, this is what we were struggling for, and this in fact was a question of reconstructing ourselves, in other words, re-establishing the identity of China, establishing a China that could be recognized and accepted by the world. What is the meaning of this "China"? This question was very complex then and is still outstanding today, right? This is the first question.
 
The second issue is the relationship between law and morality. At the time, it touched on the determination of the nature and function of rituals. In Chinese history, rituals were related to teaching, to institutions, and to the law, in other words to a set of institutions at the social and state level, which is not the same thing as what is called “morality” in the modern West. However, with the importation of Western categories of law and morality, these concepts were applied to Chinese ritual and law, which in fact turned ritual into morality, a private and educational issue, removing it from political and legal life, which dismantled the historical ritual tradition. Even those defending ritual teachings at the time did not consider this point. Nowadays, we think about it even less, but we are the direct inheritors of this, and all of our reflections occur within this framework that equates ritual with morality.
 
The third issue was the fight between familialism and statism. At the time, there was a group of elites that pushed statism. What is statism? In the words of the Republican period politician Yang Du's 杨度(1875-1931), it means "the citizens must be attached directly to the state," with no intermediary, so he harshly criticized familialism. Later on, the New Culture Movement of the May Fourth period went even further, condemning the family from a cultural perspective, hoping to pull it up by the roots.  Later still, the family in the traditional sense, or even in the general sense, fell apart after successive rounds of political, legal, social, economic and ideological attacks, so no one sees it as the soil or vehicle for Chinese cultural values. At this point, it becomes very difficult to talk about cultural revival.
 
Another issue is rational constructivism. Those who led the legal reform emphasized top-down, rational design first, and then the transformation of society. This had something to do with the context in which China found itself at the time, and later ideas of “vanguard” and “leader” grew out of the same context. It also fit well with the radical revolution. But there were also people at the time who opposed this theory and this way of doing things, who believed that the basis of law was society, morality, and customs, and that law had to grow organically out of these things so that it would belong to the people and possess vitality. These issues concern the path of social development, the relationship between state and society, and the way rules are generated, etc. In the past few years, at the same time that the state has been talking about the rule of law it has also emphasized moral rule, but what is the content of moral rule?

According to my analysis of the official discourse, it includes at least the themes of belief, morality, and society, all of which are related to the bottom-up perspective. This shows that the rulers have also understood that it is not enough to speak about the rule of law from a top-down perspective—the bottom-up perspective is also necessary—which means that the rule of law should be based on the coordination of social norms, morality, and personal identity. This is a more pluralistic perspective.
 
Finally there is the question of universalism and particularism. In the debates of the late Qing period, one school of thought talked about the integration of East and West and world unity, about science, universal reason, progress—they were complete universalists.  The other school of thought said that each country had its own ritual and religion, and that laws could not be separated from specific social and cultural conditions, and that at most, and that only this truth was universally valid. Isn't this discourse very familiar to us today?
 
Looking back on that era now, we feel that it is very close to us. Although history has moved on and the specific issues are different, the fundamental questions that plagued people then still haunt us now. Moreover, the way our forerunners answered these questions created the kind of life we live today; how we answer these questions will determine our present and future lives. Therefore, it is meaningful to look back and review this history.

Li Li:  Before the modern era, legal boundaries in the broadest sense were actually drawn by civilizations. The world system of modern law was born in Europe and then expanded globally. When you studied history of foreign legal systems at the outset of your career, did you think the modern legal system was a necessary evolution, that this system, or the principles of which it is constructed, were more in line with human nature?

Liang Zhiping: There is a very famous saying:  Rome conquered the world three times, the first time by military might, the second time by religion, and the third time by law. The rise of the modern legal system is a big issue, involving the rise and fall of civilizations, their succession, and the spread of institutions and ideas. But since you mentioned human nature, we might as well consider it from that perspective.
 
Generally speaking, law is made up of two bodies of contents, one being the institutional aspect, including various measures, regulations, and institutional arrangements, and the other being the values embodied and protected by the system. In modern law, by which I mean the ideas of freedom, equality, property rights, privacy, etc., with which we are familiar, the rule of law and constitutionalism that people often talk about are typical institutional arrangements that embody these values. In this respect, the relationship between the law and human nature you mentioned can become the relationship between values and human nature, and from this perspective, when we observe the "expansion" or "conquest" of Western law, the question is, what kind of conquest are we talking about?  Does it rely on military might, on trade, or the human values embodied in it?

If we believe that these values are rooted in human nature, we also have to add an adjective in front of the word value: universal, the idea that people share the same heart, and their hearts embrace the same truths.  In fact, that is what those who first brought the Western legal system to the rest of the world preached, and later on, this is what those who received this set of laws and values perceived as well. Of course, as non-Westerners, they would add that these values, though Western in origin, belong to all mankind.
 
People often talk about "universal values," which is an amazing expression, because once something becomes a universal value there is no longer any way to discuss it. What concerns me is how much scholarly basis or value there is for this statement, however much it empowers the one who says it. Sadly, I have seen little decent argument in this regard. What about human nature? There is a lot of talk about human nature in ancient and modern times, but people are still confused about this issue. Usually, when people talk about human nature, they assume that there are some common, unchanging things that all people possess, but what do we see when we connect these things to law and the values that law protects?

From the law of primitive societies to the law of capitalism, from Islamic law to the law of Confucian societies, there are all sorts of laws and different values protected by these laws. What is the relationship between these different laws and values and human nature? We often hear statements like this one, that a certain system is anti-human, which may be a meaningful statement, but we have to look at it closely. For example, if we say that slavery is anti-human, I imagine that there are not many people who would object to such a statement. But in societies where slavery was prevalent, such as ancient Greece and Rome, I'm afraid this is not how people thought. Moreover, we probably cannot say that laws based on slavery have nothing to do with human nature. We can only say that is anti-human for those of us living today in the system that we know. Only then we would have to admit that people today have a different view of human nature than did ancient people.

This argument is logical, but it also raises new questions, such as, is human nature universal and unchanging, or is it relative and variable? Further, are we talking about the objectively existing human nature or the view of human nature of people in different times? Making such a distinction seems to help us clarify the issue, but when you think about it, it may not. On the one hand, we can talk about human nature because it does exist, but on the other hand, how can we know what human nature is without the understanding and expression of living human beings?

My personal opinion is that human nature is what human beings have been since they entered the stage of history, including everything that you and I and everyone else likes and dislikes. So it can also be said that all legal systems and the values embodied in them, past and present, of humanity are expressions of human nature. There are as many facets of human nature as there are institutions and values of humanity. Of course this is a simple statement; the actual situation is much more complex. For example, human nature can have institutional expressions, and in turn, institutions can limit human expressions or even participate in shaping human nature. Putting it this way gets us close to the question you raised. Since all human law is related to human nature and there is a complex interaction between the two, does that mean that some legal systems are more consistent with human nature and more conducive to its expression?

In fact, when explaining the worldwide modernization brought about by the development of Western society since modern times, which also includes phenomena such as the spread of the Western legal system, many people think along these lines, and not only that, but the explanations made along these lines seem to be very convincing. Here we see the "soft power" of Western civilization. It is not military might, and not trade, but people's hearts and minds, and this in itself seems to prove that it is more in line with human nature. But for me, we have yet to solve the problem.

First, to say that today's legal system and legal principles are more consistent with human nature actually involves a number of assumptions. One is the assumption that there is an unchanging human nature, or at least a generally accepted understanding of human nature; second, the assumption that other legal systems throughout history, regardless of the society and civilization from which they came, have been less consistent with human nature; third, the assumption that what is consistent with human nature is good; and fourth, the assumption that history is progressive. All of these assumptions need to be discussed, explained and analyzed, and the arguments must be supported and justified.
 
Second, military might and trade. Historically, the expansion of the Western legal system has been associated with military force and with trade. This is immediately obvious when you look at Chinese history. The treaty system was the law, the first modern legal system established in China, but it was established by military conquest. There was also trade, and for Westerners, the idea that law is there to serve commercial interests is self-evident, and that's how the Opium Wars came about. Of course, in the post-colonial era, the relationship between military power, trade, and law doesn't seem to be the same. But that doesn't mean that they are no longer connected, only that the connection is more complex.
 
Third, property rights and freedom of contract, the basic principles established by modern Western law, best reflect the values of modern society and are the most universal part of the Western method, and in this sense, it is fine to say that they are more in line with human nature. But these values based on human nature do not stand alone, but are deeply embedded within particular political and economic systems and cultures. This is crystal clear when looking at the relationship between law and capitalism. As a mode of production and an economic system, capitalism is intimately related to modern law. Without the principles of ownership, freedom of contract, and the concepts of individualism and personal autonomy that grew out of these principles, capitalism could not have arisen, much less developed.

The ability to link global supply chains, large and small enterprises, companies, markets, and countless consumers together in today's globalized world relies on just these things, and its other face makes possible the pursuits, dreams and self-realization of countless individuals in modern society. But what does all this mean? Answering this question involves the previously mentioned assumption about human nature’s being good.
 
When we say that a system is more in line with human nature, we are implicitly affirming this system. The explanation that this system is accepted by more people because it is more in line with human nature also sounds reasonable. But this is a complex matter, as I already said, so here just let me pose one question: is conformity to human nature a self-evident defense? To put it more plainly, is what is consistent with human nature good? In Catholicism, there are the so-called "seven deadly sins"—pride, greed, lust, envy, gluttony, wrath, and sloth—all of which are religious sins, but in today’s context, when everything is about individual freedom, then as long as none of this infringes on someone else’s rights, no one cares about them. 

In the 1990s, there was a movie called "The Seven Deadly Sins," in which a serial killer killed six people in a row, including prostitutes, lawyers, and people who ate their way to obesity, representing the sins of lust, greed, and gluttony. From a legal point of view, the murderer is guilty and the victims are innocent. But in the murderer’s view, those people deserved what they got, and what he did was to put and to the depravity of human nature in the name of God. In this example, the differences of opinion concerning human nature, concerning the meaning of life, concerning what constitutes a good society, and concerning what role law should play in this society, are in fact very wide and deep.

In the eyes of some, achieving a "system that is more in line with human nature" represents the right path, represents progress, while in the eyes of others, it is a decadence and a point of no return. And between these two extremes exist any number of different opinions. What we think about the modern legal system, modern society, modernity, and their relationship with human nature, and how we evaluate them, in the final analysis depends on the positions and criteria we adopt. In real life, there are many instances that call on us to make such judgments and evaluations.
 
Li Li:  The American historian and sinologist Theodore de Bary (1919-2017) has devoted particular attention the tradition of constitutionalism in Chinese history, which is quite controversial. Do you agree with de Bary?  How different is this from the modern  New Confucians’ search for a Confucian constitutionalism?
 
Liang Zhiping: You're talking about his book Asian Values and Human Rights: A Confucian Communitarian Perspective, right? There is a chapter devoted exclusively to "Chinese Constitutionalism" in that volume. His presentation of the subject probably goes beyond what most people can accept. We usually assume that "constitutionalism" is a purely modern Western concept that has nothing to do with China, or even, according to a popular view, that ancient China was the archetype of what is called Eastern authoritarianism, which is just the opposite of constitutionalism.

In a purely conceptual sense, however, the validity of the argument depends on the definition we use. The American scholar Charles Howard McIlwain (1871-1968) wrote a book, Constitutionalism, Ancient and Modern (1940), which discusses the question through the ages, beginning ancient concepts of the constitution, including the constitution of ancient Rome, and the constitutions of the Middle Ages. If we change our perspective, can we not also talk about constitutionalism in China and the West, or the East and the West? Of course, in addition to definitions, there are also research strategies. Why do we want to discuss "Chinese constitutionalism?" Perhaps it is not a question of definition, but rather of one’s standpoint and orientation, related to theory and intellectual trends of the day.
 
Professor de Bary was a sinologist who was also concerned with political and legal issues, and wrote a book on Chinese "liberalism," which shows his desire to bridge Chinese and Western cultures and societies. Of course, he is not trying to prove that China has everything that the West does, but he talks about Chinese constitutionalism in the Chinese context, and uses the term "constitutionalism" because he believes that this concept can be appropriately used to refer to certain phenomena and processes in Chinese history, namely, the distribution of power and the checks and balances in the political process, and the set of institutional arrangements that serve these functions.

So he begins with Confucian ideological criticism of legalism in the Han Dynasty, the relationship between society and the state, ethics and politics, and custom and law, all of which was gradually put in place after the Han, and later focuses on the theory of Huang Zongxi (1610-1695), a critic of Chinese absolutism, that “the world belongs to everyone 天下为公,” especially his arguments about schools and the establishment of the Prime Minister, and continues the discussion all way down to Liang Qichao (1873-1929). In a comparative perspective, these issues are comparable to those discussed by McIlwain in Constitutionalism, Ancient and Modern.
 
Of course, while de Bary’s problématique is to be found in the intellectual tradition of Sinology, Chinese scholars are different, and when New Confucians talk about Confucian constitutionalism, this can only be understood in the context of the revival of Confucianism and especially political Confucianism, which means that problématique is much more internally generated.  Before the emergence of the New Confucians, these questions were posed in a different way.

​For example, historian Hou Wailu 侯外庐(1903-1987) analogized Huang Zongxi’s discussion of schools and Prime Ministers to Western legislatures and cabinets, saying that Huang Zongxi had already brought forth the idea of modern democracy, a problématique grounded in Marxist historiography. I remember that the scholar of aesthetics Li Zehou 李泽厚 (b. 1930) also made a similar argument, which should be related to his idea of “the West as substance and China as application 西体中用.” Of course, neither of them used the term "Confucian constitutionalism", but they were talking about the same thing.
 
In addition to these, there are also liberal versions. For example, Professor Zhang Qianfan 张千帆 (b. 1964) of the Peking University Law Faculty wants to prove that rites in the Chinese past were above ordinary law and had a constitutional nature. Therefore, ritual rule is not the rule of man; it represents a Chinese constitutional tradition. It is telling that Zhang Qianfan is a constitutional scholar, systematically trained in the Western fashion, and it is telling that he still maintains a liberal position while making this argument. In short, we see that the idea of "Chinese constitutionalism" evokes a sympathetic response from many parties, and that there is a lot of overlap when people drill into this issue, except that everyone has different concerns and different objectives.
 
Li Li:  What is your evaluation of the Mainland New Confucians? Where do you find them wanting?  How do you see the future of the Confucian revival?
 
Liang Zhiping: The rise of the Mainland New Confucians (let's use this term for the moment) has only going on for twenty years or so, but they have quickly achieved a prominent place in the intellectual world.
 
Behind this is the Confucian revival.  The Confucian revival has a social dimension, a political dimension, an intellectual dimension, and an ideological dimension. The ideological dimension has both a broad and a narrow sense.  The Confucian revival in a narrow sense can be represented by the New Confucians. New Confucians, or the "modern Confucian community," have a self-awareness that they want to promote the Way, to continue the Confucian Way, to reestablish it. The emergence of the New Confucians was a shock to the Chinese intellectual world, and both the left and the right are trying to respond to it, and at the same time trying to make use of it, all of which has brought certain changes to China’s intellectual ecology. I think this is a good thing, because it allows people to think about things in a different way, which is important in and of itself. 
 
In the past few years, academic attention to traditional thought has increased a deal, which is in part related to this change. This touches on the revival of Confucianism in a broad sense. The study by Zhang Qianfan that I just mentioned can also help us understand this phenomenon. Not long ago, Professor Sun Xiangchen 孙向晨 (b. 1968) of Fudan University published a book entitled On the Family: The Individual and Kinship 论家：个体与亲亲.  Professor Sun is not a New Confucian, and his field of study is Western philosophy, so why does he want to discuss "family" and "kinship?" Simply put, he assumes that Chinese civilization has its own logic, and that Chinese cultural identity is based on this logic, and if Chinese philosophy cannot cannot face up to and respond to this kind of ontologically cultural problem, it will become a philosophy without roots.  Therefore, he considers "family" as something that Chinese philosophy should be thinking about, considering it the essence of Chinese culture and seeking its intrinsic logic and what kind of meaning it still has today.
 
An even more representative example in this respect is the philosopher Zhao Tingyang 赵汀阳 (b. 1961). His "tianxia system 天下体系" theory[2] is very influential, and this concept is closely related to traditional thought, especially Confucianism, which goes without saying. What is even more interesting is his estimation that Chinese thought has now reached a turning point, that while in the past we were "interrogating China," looking for China’s flaws, now it is time to "rethink China" and "rebuild China." "Interrogating China" meant self-criticism or even self-denial, but "rethinking China" means to leave this behind and re-establish ourselves. How are we to do this? A very important way is to revisit our history, culture and traditions. I think Zhao’s proposal is like a manifesto, representing a major shift in contemporary Chinese thought, which has taken on many forms, in religious temples and at the grassroots level, in official propaganda and social media.

From a positive perspective, to have thought and scholarship rooted in China's own historical and cultural traditions is meaningful and valuable. But this shift can also have negative and even dangerous consequences. For example, it can also produce a narrow nationalism, or even a revival of an intellectual version of the Boxers at the turn of the 20th century.  Some simplistic arguments are so bad that they can easily become slogans promoting populism, or they can be used for power purposes, increasing intellectual polarization. What we are talking about here is not the New Confucians, of course, but problems in the broader ideological transformation. In the past few years, China has also encountered some challenges on the international front, and no matter who created these challenges, once they take shape, they in turn affect the marketplace of ideas and reinforce intellectual antagonisms. At such times, a rational, reflective, and open attitude and approach becomes all the more important.
 
When it comes to the issue of the Mainland New Confucians, the background to the Confucian revival is complex, and there have been many temptations in the process, so it is inevitable that there have been good things and bad things. A related issue is the relationship between scholarship and politics, and between ideas and power. Historically, both Confucianism and the Confucian community have been at the center of political ideology and the exercise of power, and today’s Confucian revival, regardless of the changes that have occurred, remains inseparable from this background. There has been some criticism of certain New Confucians on this sensitive issue.
 
In addition, the New Confucians trace their beliefs to a Confucianism with a strong sense of sectarianism, and if this is not handled properly is easy to wind up with people with narrow, closed viewpoints.  There is nothing wrong with expounding Confucian doctrine and promoting Confucian values, but some people like to talk themselves up, or see the whole world through old Confucian norms, or argue that Confucianism will save the world, which is a little ridiculous. Being polite, a friend of mind dubbed such theories “prophetic,” and we can just leave it at that. 
 
Li Li:  You have depicted the legal reform at the end of the Qing Dynasty, that is, from the beginning of the twentieth century through the 1940s, as the first stage of China's legal modernization, with a second stage beginning in the 1980s.  How about now? Have we entered a new phase?
 
Liang Zhiping:  I don't think the present moment represents a new phase compared to the earlier two, but this does not mean that there have been no changes worthy of notice. The Fourth Plenary Session of the 18th CCP Central Committee in 2014 was the first one to focus on the rule of law, which was noteworthy in and of itself. At that time, I wrote a long article entitled "On the Rule of Law and Moral Rule: Looking at the Rule of Law Movement in Contemporary China from Within 论法治与德治：对当代中国法治运动的一个内在观察.” The two key words in the title of the article, "rule of law" and "moral rule," are both taken from the “Decision” adopted by the Fourth Plenary Session of the 18th Central Committee, and my "argument" was to explore what "rule of law" and "moral rule" meant in this official text? Where did they come from? What were they talking about ? What was the problématique behind them?

In discussing these questions, I adopted an inside perspective, or a position that I call one of "inner criticism.” This differs from two other common approaches, one of which is the kind of politically correct, full of footnotes, Party line 亦步亦趋 “scholarship,” which can be called “inside,” but which has no distance from its research topic, and in fact is another form of political propaganda, and thus is in fact part of the research topic.  Another approach might be called dogmatic criticism. This kind of criticism is not internal, but rather external, because it comes with a set of dogmatic, external standards that are detached from Chinese history and reality, and using these standards to discuss China will similarly not improve our understanding and knowledge of Chinese society.  The “internal criticism” I aim for is different in that it accepts the basic premises but is at the same time critical. 

By "internal," I mean to follow the internal logic of social development, to look at issues from the perspective of social actors, and to discuss them from the perspective of their propositions. Criticism, on the other hand, is not a simple negation, but a rational examination and analysis of the object of study, expressed from a critical difference. From this perspective, you will not scornfully laugh off concepts such as "moral rule" as many legal scholars do, nor will you shy away from concepts such as "Party leadership," "socialism," and "Chinese characteristics. Instead, you have to explain what these theories actually mean, in what sense they are possible, etc. These concepts and arguments are the subject of my analysis, through which I hope to make clear their logic and thus discover real issues and ways to solve them. To determine what stage we are at, we also need to be clear on these issues .
 
Li Li:  Modern constitutional rule in fact demands that people adopt a serious attitude toward the Constitution, and even believe in it, a set of intangible concepts that might be said to be the cultural foundation of constitutional rule.  What do you think is the origin of the ideas and belief systems that make up the cultural basis of constitutionalism? In the West, people can look to the historical notions of "higher law" or "transcendental justice," but how is this possible in China?
 
Liang Zhiping: For a nation's laws to be durable and effective, they must have legitimacy, which means that the people living under this legal order must believe that they is legitimate. The "higher law" and "transcendental justice" you mentioned are the basis of such justification, and are the cultural elements in the formation of modern Western law. Is there something similar in Chinese history? Of course there is. When Chinese people talk about law, they always talk about heavenly principle 天理 , the law of the nation 国法, and human feelings together, because the heavenly principle is higher than the law of the nation, and is the basis of the legitimacy of the law of the nation. You might also say that the "heavenly principle" is the "higher law" and "transcendental justice" in Chinese history.
 
Of course, in the philosophical and religious sense, "heavenly principle" is not transcendental, and you can say that it is not a transcendental concept, but this just means that the form of "higher law" in China and the West is different, and China has its own "higher law" concept in its history, and Chinese traditional law had its own foundation in culture and belief. When he was doing his translations of fundamental works of Western science and philosophy, Yan Fu 严复 (1854-1921) said "law" in Western terms, if translated into Chinese, includes four concepts: principles, rituals, laws, and institutions. Thus the Chinese word fa 法 in a narrow sense means “law,” but understood more broadly also includes principle and ritual.  Some people argue that, when compared to the narrow sense of “law,” ritual has a "constitutional" nature.

If this is the case, our previous understanding of the ancient Chinese legal order has been too simple and biased. In short, China and the West have their own histories, cultures, and developmental trajectories, with differences and similarities. In terms of differences, I do not think that China would have automatically developed a modern Western political and legal system, just as China would not have developed modern capitalism. But that is not the same as saying that Chinese institutions and culture are the opposite of those of the West, that their values are antagonistic. It is just they are different, and this difference is relative. The "higher law" mentioned above is a good example. And this means that today, when China and the West are already highly integrated, the development of Chinese society, its modernization, including the development of its political and legal system, will and should have its own characteristics.
 
Li Li:  How do you think we can avoid falling into a simplistic "Chinese exceptionalism" even as scholars dig deeper into our tradition and develop a more sympathetic understanding of traditional culture? Can you tell us about your understanding of "modern China" and the future of the "rule of law" in China?
 
Zhiping Liang: This problem you are worried about is largely due to overpoliticization. Not only does politics influence and dominate scholarship, but the scholarly world also consciously or unconsciously frames many issues from a political perspective. As a result, when someone says that China's modernization will have its own characteristics, this may be captured by a politically motivated Chinese exceptionalism. In fact, the development of any country, and especially a country with deep historical and cultural heritage, cannot completely break away from its past trajectory, and there is nothing to do about this.  This is true not only non-Western countries, but also applies to the experience of different countries within Western civilization. Of course, critics can say that Chinese exceptionalism is different, and simply refuse to recognize universal values. In this case, the problem is a bit more complicated. First, where reasoning and argument are important, big words like "universal values" don’t help much; indeed, when the question is pitched at a level this high, reasoning is useless.

Second, stepping back a little, it would be too simplistic to say that Chinese exceptionalism does not recognize "universal values" at all. Is the Chinese constitution part of particularism or universal values?  The answer is clearly not one or the other. Setting aside these thorny issues, if you suspect, deny, or reject all Chinese “special characteristics” because you oppose a particular politically inflected Chinese exceptionalism, to my mind this is neither reasonable nor sensible, because so doing is tantamount to refusing to think about certain major issues. Therefore, to my mind, the question is not whether we can talk about identity, but how we should talk about it. The "inner criticism" mentioned above is one way to talk about it, because this "inner" perspective can be used in contemporary society as well as in history and culture.
 
As for the understanding of "modern China," this is a fundamental question, involving both "modernity" and "China.” Simply put, our understanding of and attitude toward modernity will influence and even determine the shape of modern China, given that China’s modernity is not only shorter and more partial than Western modernity, but also more uncertain and open-ended. But at the same time, the construction and realization of modern China may also change our understanding of modernity as a whole. After all, the involvement of a country like China in the process of modernization is a historically significant event, and the program of modernization it finally presents to the world may redefine modernity itself. In this sense, modernity is not only an unfinished enterprise, but also an open-ended one.

Therefore, for both modernity and modern China, it is urgently important to understand the intellectual capacity, cognitive capacity, reflective ability, and the critical and imaginative power of the agents of social practice. We could say the same thing of the rule of law. As an institutional arrangement and a type of order, the rule of law is undoubtedly an important organized part of "modern China." There are many conditions that need to be met in order to implement the rule of law and to realize its unique functions. In China's current situation, I am afraid that the most important thing is the understanding of the rule of law by the agents of social practice, especially the political agents, and their sincerity and determination to implement the rule of law.
 
Notes

[1] 梁治平谈法律与传统文化, published online on January 3, 2021.
 

[2] Translator’s note:  Tianxia describes Chinese “universalism” in the period prior to the arrival of the West, the idea that China was the cultural center at the world and that the world order was cultural.  Scholars like Zhao, convinced that China’ rise will change the world, have sought to recycle tianxia ideas in the hopes of finding an alternative to the current American dominated world order.  Liang Zhiping has written a comprehensive assessment of these efforts in his “Imagining ‘Tianxia’:  Building Ideology in Contemporary China.”