Decolonizing the Fact-Value Distinction: Reexamining Chinese Legalism (Fajia, 法家) Through Wael Hallaq’s Reconstruction of Sharīʿa

Abstract

This paper argues that the central thesis of Wael Hallaq’s The Impossible State is that traditional Islamic cultures as shaped by Sharīʿa did not abide by a fact-value distinction. Hallaq’s incisive account of traditional Islamic socio-political culture has relevant repercussions beyond the Islamic context from which he draws his conclusions. The importance of Hallaq’s project stems from how it reconstructs a specific tradition—Islam—to contest logics presented as modern and universal. His central argument, that the modern (Western) state is ultimately organized around a fact-value distinction, bears crucially on analyses of the historical Chinese state and its “modernization.” As this paper shows, the Chinese were the first to invent the modern bureaucratic state that Hallaq problematizes in his account of post-feudal European “modernity.” The critique that Hallaq makes of this modern bureaucratic state finds resonance throughout the millennia of Chinese history. Historically, the Confucians argued against the proponents of a similar fact-value distinction in political life—the “legalist” (fajia, 法家). Philosophically, the Confucians had conclusively won the debate against the legalists in dynastic China and the historic Chinese state and its political culture disavowed of the kind of fact-value distinction championed by the legalists. However, in contemporary times, due to the attempt by Western knowledge production to globalize the “modern” state, there has been a revival of legalism by Western scholars. This paper situates the revival within the context of Hallaq’s powerful critique, which frames the West’s attempt to globalize its political models as a form of epistemic colonization.

1. Introduction

In his widely read and provocative work, The Impossible State: Islam, Politics, and Modernity’s Moral Predicament, the Islamic legal scholar Wael Hallaq argues that the “modern state” is fundamentally incompatible with the “Sharīʿa”—the moral law of Islam. Central to Hallaq’s argument about the irreconcilable divergence between the modern state, which is genealogically European in its intellectual genesis, is his view that the “state” operates according to certain normative assumptions. These assumptions being that the state is a neutral institution. Being neutral, that is, without moral orientation, the state itself does not function according to any values and likewise does not impose any values onto the citizens under its jurisdiction. Such a view of the state already rests on certain assumptions about the nature of the citizen, and by extension, about personhood or the nature of subjectivity. The assumption being that subjects are also neutral relata and the relationships through which they are institutionally or politically related do not fundamentally change the nature of the relata itself. For Hallaq, these assumptions about the state, citizens and the relationship between the state and the individual are question-begging and produce a politics and self that is “Western.” Hallaq’s project is to reconstruct the politics of “Sharīʿa,” a political order that he positively contrasts against what he terms the politics of the “modern state.” This reconstruction is not merely an exercise in intellectual history. Through colonialism, the Islamic world has lost the patterns of life that used to be produced by “Sharīʿa,” and replaced by the patterns typical of the modern state itself. Simultaneously, the patterns of life produced by the modern state—which is now globalized—threatens to push humanity to the precipice. The project of reconstructing “Sharīʿa” civilization at once throws clarificatory light on the pitfalls of the project of the modern state is and offers normative lessons from the experience of a historical civilizational project. The philosophical heart of Hallaq’s characterization of the legal-political project of the modern state is the fact-value dichotomy. The legal-political project of the modern state operates on the philosophical assumption that there is a fact-value or is-ought dichotomy.

The importance of Hallaq’s work lies in challenging the unexamined dogma that the “modern” constitutional nation-state1 is the most perfect form of human organization and the final telos towards which all other forms of political organization should end. The modern constitutional state is dogmatically posited as a universal and timeless paradigmatic good against which all other forms of human organization is judged and found lacking. Hallaq analyzes latent conceptual assumptions undergirding the modern constitutional state and questions whether such a state is desirable.

My own paper follows Hallaq’s framing. It similarly argues that the “state” in dynastic China did not conceive of itself as a neutral actor. Instead, the state’s prerogative was to instill certain normative values into the lives of its citizens. Although China (following the opinions of Max Weber) arguably originated the concept of the neutral bureaucratic state with “legalism” (fajia, 法家), this merely instrumental conception of the state was later combined with the normative values of Confucianism. By framing the nature of the dynastic Chinese state in this way, we can dispel many current academic confusions about traditional Chinese statecraft. Current discourse bifurcates into seeing the traditional Chinese state as either primitive in its inability to accede to the neutral “liberal” conception of the state that Hallaq problematizes or that a resuscitation of the legalist tradition and a disavowal of Confucianism is the panacea needed to “save” China. As this paper will argue, these two types of discourses fall afoul of the very orientalism that Hallaq sees as also plaguing the Islamic world. Further, both accept the conception of the state that Hallaq sees as pushing humankind to extinction. This paper will show that a true decolonization involves a reconstruction of the political legacy of the Confucian-legalist state, one that is greatly misunderstood today.

An example of the former tendency to attribute “China’s failure” to westernize and develop into a modern, capitalist, constitutional nation-state can be seen in Zhao Dingxin’s The Confucian-Legalist State: A New Theory of Chinese History. In this work, Zhao argues that dynastic China can be characterized as a “Confucian-legalist” state that first took shape with the establishment of the imperial bureaucratic system in the Qin-Han period. Despite the subsequent dissolutions of the state, the Confucian-legalist state was resurrected, in particular, by the Song dynasty. For Zhao, the Confucian-legalist state made “modernization” impossible. One of Zhao’s central theses is to argue that the “rise of the West” was enabled by “market economy and industrial capitalism” (Zhao 2015, p. 357). China was unable to accede to these due to “China’s ideological/political system (or the nature of the Confucian-Legalist state).” For Zhao, “it was in the nature of the Confucian-Legalist state to turn its back on industrial capitalism” (Zhao 2015, p. 348). For Zhao, the rise of the European bourgeoisie in the early modern period became a constraint on state power. The European bourgeoisie came to have the ideological, military, and political power to become a powerful non-state actor such that there were able to effectively check state political power (Zhao 2015, p. 12). In dynastic China, however, Chinese merchants never constituted an organized force that could challenge state power itself.2 (Zhao 2015, p. 219) For Zhao, state power in early modern Europe and onwards was limited by “dynamic checks and balances” between the bourgeoisie, the king, and high clergy. What emerged in from the Qin-Han period onwards, however, was the total power of the Chinese state.3

I have three major related problems with Zhao’s thesis (which is a conventional restatement of Western academic orthodoxy). First, in ignoring the colonial context of the rise of the West and attributing its rise solely to “market economy and industrial capitalism” Zhao repeats an established but white-washed account of history.4 Second, Zhao’s account of the nature of the modern constitutional state also repeats a series of conventional but unexamined truths. Third, Zhao repeats a further commonplace in arguing that Confucianism flourished, and the Chinese state endured because it provided a legitimate basis for state power (Zhao 2015, p. 372). As Zhao writes, “To summarize, what was established during the Han dynasty was a centralized bureaucratic state that, though it ruled society using instrumental, Legalist methods, based its legitimacy on Confucianism” (Zhao 2015, p. 292). I have addressed point one elsewhere (Xiang 2023; Xiang, forthcoming) and this paper will confine itself to addressing points two and three. Zhao’s argument that the historic Chinese state endured due to its monopoly on violence covered with the fig-leaf of Confucian values is a conventional Western academic narrative of the traditional Chinese state (See, for example, Lewis 1999). An analysis of why this conventional Western-triumphalist perspective on the historic Chinese state is flawed can best be understood through Wael Hallaq’s critique of the assumptions of the (Western) neutral state.

2. Disenchantment and Hallaq’s Critique of the Neutral State

Hallaq’s own critique of the modern constitutional state follows that of Carl Schmitt’s. Schmitt noted that secularization meant that the state was under the delusion that it no longer needed an ontological normative grounding. Schmitt argued, however, that in actuality, the normative basis of the state was the sovereign himself, and ultimately the sovereign’s decision on when the state is to declare the state of exception when confronted with an enemy. Schmitt is working according to the bellicist paradigm of state formation (see above footnote one), which is absent of the positive moral values that Hallaq sees as operative in traditional Sharīʿa governance. However, Schmitt’s observations that modern political discourse’s pretensions towards neutrality are neither tenable in theory nor in practice are central to Hallaq’s argument.

In The Impossible State, Hallaq quotes Carl Schmitt’s Political Theology as “incisively” arguing that the state is inescapably grounded in a normative orientation:

All significant concepts of the modern theory of the state are secularized theological concepts not only because of their historical development—in which they were transferred from theology to the theory of the state, whereby, for example, the omnipotent God became the omnipotent lawgiver—but also because of their systemic structure.

(Quoted in Hallaq 2013, p. 28; Schmitt 2005, p. 36)

Hallaq, following Schmitt’s insight that the modern nation-state incarnates “sovereignty” and the law of the state reflects the “sovereign will,” argues that the modern state is essentially a replacement for the old theological god. As Hallaq notes, for Schmitt, it is the sovereign who decides on the state of exception, and in deciding that state of exception, he steps outside the rule of law. “For Schmitt, this absolute power of decision, once belonging to God and theology, is now translated into a political vocabulary. The traditional God is replaced in modernity by the state.” For Hallaq, this theme is the essential argument of Schmitt’s Political Theology (Hallaq 2013, p. 178n44). As Schmitt notes in Political Theology, as sovereign, the state’s decision has the quality of being something like religious miracle: it is self-causing or autonomous (“auto,” meaning self, and “nomos,” meaning law—thus, giving the law to itself). As Hallaq reflects, whereas previously a theological framework and the values of the religion provided the ultimate normative ground of a political system, in the modern state, it is the state and sovereign himself who provides that normative ground. This means that instead of the political serving a greater (theological) value, the sovereign’s (arbitrary) will and the institutional vehicle of his will—the state—is the final value.

Since the modern “state” is divorced from any wider ethical commitments, its sole telos becomes itself, and that means its own self-preservation and expansion. Attendant upon such a self-conception of the state are merely utilitarian conceptions of the nature of the legal and of the political. That is, shorn of ethical orientations, what is left is merely a utilitarian conception of law and the political as merely instruments for the ends of the state itself. When the state as a political entity is no longer the means towards an end or a vehicle to carry out a higher purpose, when the instrument becomes the end itself, then that instrument does not remain a merely neutral instrument. Absent a higher purpose that the instrument is supposed to serve, we are not left with merely an instrument, but instead instrumentalism. As Hallaq writes, “If the nation-state is conceived as an expression of sovereign will, then the Aristotelian final cause of its existence is nothing more than its perpetual existence. The nation-state exists for its own sake. It is a means to no other end. It is not merely one end among others but the ultimate end for which all others may be sacrificed (Hallaq 2013, p. 28). When we disavow the project of organized human life of all other values or attribute, the only property we can attribute to it is of its existence (“being”). It is under this putatively neutral view of organized human life that gives the state—i.e., the collective will or covenant of individuals—free rein to instrumentalize all persons and materials towards the end of its own continued existence. That is, once the “state” is shorn of all relations, values and commitments, its only value becomes itself. It is such a view of the state that leads a society “to conceive of its existence as one of violence and war, as being in a ‘state of nature’ where survival is constantly at stake” (Hallaq 2013, p. 90). For Hallaq, it is this conception of the state as a merely neutral organizer of human order that leads to the very immorality of the legal and political that sees citizens as mere means towards its own ends.5 Such a conception of the state is the root of the totalitarian.

The core of Hallaq’s (and Schmitt’s) critique of the modern nation state is idea of “disenchantment,” which can further be understood through “secularization.” One useful way to grasp why Hallaq is so concerned with the disenchantment inherent in the modern nation-state is through the lens of the work of the eminent philosopher Muhammad Naquib Al-Attas, Islām and Secularism. In this work, and following the Dutch theologian Cornelis van Peursen, Al-Attas defines secularization as the deliverance of man “first from religious and then from metaphysical control over his reason and his language” (Al-Attas 1993, p. 17). Attas, following van Peursen, writes that the constitutive aspects of secularization are: the disenchantment of nature, the desacralization of politics, and the deconsecration of values (Al-Attas 1993, p. 18). This secularization and disenchantment when manifested in the realm of politics is the phenomenon of the “sacral legitimation of political power and authority.” When manifested in the realm of values, we witness the phenomenon of the deconsecration of values, by which is meant “the rendering transient and relative all cultural creations and every value system which for them includes religion and worldviews having ultimate and final significance, so that in this way history, the future, is open to change, and man is free to create the change” (Al-Attas 1993, p. 18).

Hallaq reads the legal-political implication or manifestation of this disenchantment as culminating in the pioneering figure of Hobbes who made the consequential move of equating the laws of the state with the sovereign. That is, since the source of the law is the will or expression of the sovereign, then the state and the government who execute these laws are the embodiment of the law (Hallaq 2013, pp. 37, 78). For Hallaq, this new conception of law as merely instrumental is a manifestation, in the legal domain, of the fact-value dichotomy. In contrast to the previous tradition of natural law, legal positivism understood the law as valid as long as it issues from a commanding sovereign, no matter how immoral it may be (Hallaq 2013, p. 79).

Implicit in Hallaq’s claim that the historical practice of “Sharīʿa” had never committed itself to a fact-value distinction is the wider question of whether the fact-value distinction is possible in practice at all. For Hallaq, and as per Islamic theology, under Sharīʿa, the legal was an organic derivative of the moral and the moral was the cosmic law of the universe. Hallaq is concerned that contemporary Islamic states do not see the philosophical baggage that accompanies the modern conception of the state: “Modern Islamist discourses assume the modern state to be a neutral tool of governance” (Hallaq 2013, p. 155). This hermeneutic illiteracy applies equally to contemporary readers of Chinese history and philosophy. An example is found in Alexus McLeod’s assessment that the political—or the means through which the state organizes its population—can be divorced from any value orientation. As he writes:

From a modern perspective, however, the views of the fa [“legalism”] tradition may seem quite conventional and even intuitive—if one is able to read these texts outside the Confucian framework through which they are often interpreted. They present a vision of politics that aligns closely with the organizational principles underlying governance in nearly all contemporary institutions, from corporations to governments. Few CEOs or presidents would claim to be indifferent to morality or advocate its outright rejection. Yet any successful leader would likely recognize that relying on morality as a guiding principle can be, at best, unhelpful and, at worst, disastrous for the management of a business or state. While today this separation between organizational or political strategy and morality is often assumed and taken for granted, in the early Chinese intellectual context, it represented a radical departure from prevailing thought.

(McLeod 2024, pp. 454–55)

McLeod takes the fact-value bifurcation as itself normative and, in so doing, argues that the fajia (“legalists”) of Chinese history aligned with this current orthodoxy.

3. Disenchantment and Carl Schmitt’s Critique of the Neutral State

Carl Schmitt famously argued that it is the moment of exception that reveals the actual source of power in the modern constitutional state. Schmitt calls the attempts to ground legal life in legal structures itself “tautological predicates” (Schmitt 2005, p. 18) For this reason, Schmitt questions whether such a state is possible or theoretically coherent. “The state is thus neither the creator nor the source of the legal order” (Schmitt 2005, p. 19). Instead, the actual source of the authority of the law lies in the sovereign and the sovereign’s decision: “Sovereignty is the highest, legally independent, underived power” (Schmitt 2005, p. 17). As Tracy Strong explains, Schmitt understands power in terms of creatio ex nihilo, that is, the power to make something from nothing and is thus not subject to pre-existing laws (Strong 2005, p. xxvii). As Schmitt writes, “authority proves that to produce law it need not be based on law” (Schmitt 2005, p. 13). Schmitt understood that modern constitutional theorizations of the state emerged in the era of what Max Weber has called disenchantment and were strongly influenced by deistic philosophies. Under the deistic view, the creator god does not intervene in the universe that he created. In modern constitutionalism, the validity of law was identified with the lawfulness of nature and the legal machine runs but itself without the need for the master architect (Schmitt 2005, p. 48). For Schmitt, such a deistic understanding of the nature of the state leads to an aporia in which the legal system incestuously reproduces itself without itself being clear on its origins and thus source of normative authority. That is, the ultimate reference for the authority and truth of the law is the law itself. The legal infrastructure of the state has neither foundation nor reference except in and to itself. In being its own source of authority, its underlying logic is that of god-like powers. It is its own sui generis cause of itself. Lawgiver, executive power, politics, pardoner, welfare institution all redound to the same personality of the state such that “the total picture of contemporary jurisprudence” appears as a “huge cloak-and-dagger drama, in which the state acts in many disguises but always as the same invisible person” (Schmitt 2005, p. 38). For Schmitt, however, in contrast to the foregoing, it is the personalistic power of the sovereign that makes laws not the truth of the laws itself that give rise to the law. It is the moment of exception that reveals this power that the sovereign holds. “Sovereign is he who decides on the exceptional case” (Schmitt 2005, p. 5). Thus, as Schmitt notes in Political Theology, the decision of the sovereign can be analogized to a religious act of creation itself. As Tracy Strong puts it, “sovereign acts are moments of ‘existential intervention’” (Strong 2007, p. xiv). “The exception in jurisprudence is analogous to the miracle in theology” (Schmitt 2005, p. 36). The Arché of the legal system, that is, the source of its existence or the first cause of its being as well as the underlying principle of its existence, is the power of the sovereign. This power is the authority to decide when the normal working of the legal system is to be suspended. The legal system is not self-grounding but instead grounded in the authority of the sovereign to decide moments of crisis: it is the exception that decides the rule. The sovereign’s authority is not derived from legal norms, instead, “Sovereignty is the highest, legally independent, underived power” (Schmitt 2005, p. 17). Law depends on the political decision, not the other way around. The decision of the sovereign is an existential act and which precedes and defines law itself.

The context of disenchantment elucidates Schmitt’s concern to define the normative basis of the legal order of the state. In his essay, “The Age of Neutralizations and Depoliticizations,” Schmitt writes of how the “hopeless theological disputes and struggles of the sixteenth century” led Europeans to seek a “neutral domain in which there would be no conflict” (Schmitt 2007, p. 89). For Schmitt, this desire for a neutral domain is an evasion of what existentially makes us human. As Leo Strauss writes, for Schmitt, “the political is the basic character of human life.” Since the political is the existential condition of being human, “man cannot escape politics” (Strauss 2007, p. 110). For Schmitt, since human political organization is necessarily founded upon values, the endeavor of depoliticizing society thus involves a refusal to confront our existential condition.6 This refusal to confront our existential condition is defining of the liberal project which seeks to found the state or “rational social relations” through the negation of the political (Strauss 2007, p. 110). The liberal project, however, is delusional, as humans cannot escape our existential condition. For Schmitt, just as the basis of aesthetics ultimately rests on a judgment on the distinction between the beautiful and the ugly, likewise the political has its own characteristic criteria on which political life is built (Schmitt 2007, p. 26). We can understand this effort of depoliticization and the desire to escape the political into a neutral domain of rational social relation through secularization and the attendant fact-value dichotomy in epistemology and metaphysics.

Whereas the sixteenth century had an explicitly theological understanding of the world with God and the scriptures as foundational certainties, a mechanistic worldview triumphed from the early modern period onwards. Under this worldview, nature is mere material, that is, a physical object with no spiritual reality or truth underlying it. With the Cartesian revolution in the 17th c., this dualism was complete, and Kant’s Copernican Turn brought this secularization to its culmination. For Kant, the possibility of morality, freedom and experience is premised on the Kantian subject’s being prior to and independent of experience. Similarly, in Kantian epistemology, the “autonomous” subject is the ground of experience. It is only if we assume the “transcendental unity of apperception,” that is, a subject that is self-identical with herself through time that unifies experience, that experience itself is possible. Similarly, our cognition of empirical objects depends upon innate structures of the mind that organize our sensory date in particular ways. The condition necessary for experience are thus grounded in the subject himself.7

It is against this Kantian tendency towards the removal of metaphysics from epistemology and morality that Schmitt’s criticism is directed. Against Neo-Kantian theories of law, Schmitt argues that the conditions necessary for the operation of the law is not grounded in the law itself. Schmitt’s diagnosis of the nature of the modern constitutional state as it emerged from the 16th–17th c. onwards exposes the fiction of state power as equilibrated by “dynamic checks and balances.” Arguably, Schmitt’s analysis shows the delusion of those who believe that political life can be resolved through an elaborately formulated set of rules. As Leo Straus comments, “liberalism believed that by means of its negation of the political it could bring about the foundation of the state or, more accurately, the establishment of rational social relations.” By negation of the “political” is meant the reality that how humans are to be governed rest ultimately on our own agency, that it is humans that make the decision on the nature of our political life. To think that this agency can be deferred and made to evaporate into a self-grounding system is both self-delusional and dangerous. It is dangerous to think that politics and governance can ever be anything but subjective and unruly, as this very delusion means that we do not give due attention to them, and they could potentially threaten the whole.

The following section will demonstrate a parallel between two intellectual projects: Hallaq’s critique of the fact-value dichotomy in modern (Islamic) governance, and a significant movement within Chinese political theory that seeks to revitalize Legalism (fajia, 法家)—a indigenous tradition that similarly institutionalized the fact-value distinction. Interestingly, the native Chinese Confucian tradition had always criticized fajia on the same terms as Hallaq and Schmitt. The current tendency in Western academia to disregard the Confucian tradition’s criticisms of the materialism of fajia (and the fact-value dichotomy it commits itself too) and to instead promote fajia as China’s indigenous liberalism thus constitutes a form of intellectual colonialism aimed at universalizing Western governance models.

4. Confucian Morality as the Normative Basis of the Historic Chinese State

Confucian thinkers in ancient China had witnessed and problematized a tendency to think of legal strictures as a replacement for moral governance. They deployed many analogies to demonstrate how law is merely an instrument that serves the end of moral governance. Chapter twelve of the Xunzi, “The Way to be a Lord,” puts the issue as follows.

There are chaotic lords; there are no states chaotic of themselves. There are men who create order; there are no rules creating laws of themselves. The laws of Archer Yi have not perished, but not every age has an Archer Yi who hits the target precisely. The laws of Yu [a legendary sage ruler] still survive, but not every age has a Xia dynasty to reign as true kings. Thus, laws cannot stand alone [故法不能独立], and categories cannot implement themselves. If one has the right person, then they will be preserved. If one loses the right person, then they will be lost. The laws are the beginning of order, and the person of moral cultivation is the origin of the laws [法者、治之端也；君子者、法之原也].

(Hutton 2014, p. 117, modified)

As Xunzi explicitly puts it, laws are a vehicle for carrying out moral governance or normative values. Absent these values, the laws mean nothing on their own.

The legalist tradition is commonly believed to have originated with administrative officials (Shang 2011, p. 91). As the philosophy of the bureaucrat or managerial class, legalism has a very different conception of the human to the Confucian tradition. Concerned primarily with the continued existence of the state and its bureaucratic apparatus, the human, under this scheme is merely a means towards the end of the continued existence of the state and the institutions that constitute it.

Writing in 1922, one of the foremost intellectuals of modern China, Liang Qichao, echoed this Confucian orthodoxy when he wrote, “If political habits are not fostered, if political morality is not stabilized, then even if China had the best constitution in the world it would be only a scrap of paper” (Liang 1930, p. 137). Liang regards the legalists of the past and “youngsters” of his day who placed all their faith in Western ideologies about the rule of law as superficial and of low intelligence (Liang 1930, pp. 137, 139). Liang’s critique of Legalism—that it attempts to govern humans as if they were machines—parallels Schmitt’s critique of liberals who believe the problem of the political can be solved by fine-tuning legal and bureaucratic machinery. Liang quotes a passage from the Hanfeizi as representing the essence of the legalist project: “not to follow the virtue which is occasional, but to apply the law which is fixed.”8 Liang argues that this is a misunderstanding of the nature of the human and a misapplication of the law of nature to human affairs (Liang 1930, p. 134). The “materialistic” mind of the legalist school could not comprehend that the essence of the human is its free personality and the cultivation of that free personality.9 Laws are merely “mechanical devices” and are thus merely the stream as opposed to the fountain-head or source of good government. To apply physical laws to the realm of the human is to treat humans as if they were merely physical objects. This approach attempts to impose a fact-value distinction on human life, reducing people to “facts” devoid of “value.”

For Liang, it is mistaken to think that law is a replacement for the human agency of governance on two counts. First, people are not things, and to gauge their needs, the ruler (or the maker of the laws) needs a dynamic sensibility responsive to shifting contexts. There is no permanence in social order that allows for a law to be fixed for all time. Whilst physical things can be evaluated according to fixed standards, the criterion for judging the hearts of men cannot be found except through the constant observation of human nature and the needs of the people.10 (Liang 1930, pp. 134–36) Second and relatedly, since even in legalist theory, it is the emperor who is given full legislative authority, the emperor, like Schmitt’s sovereign, is ultimately the source of legal authority. The emperor, unlike a creator God, is a human and not a manifestation of the rationality of the universe and thus necessarily morally good. Since the emperor is fallible and corruptible, then the foundation of the legal infrastructure is also corruptible. Under the Confucian view, it is thus imperative that the emperor’s decisions are conditioned by “moral” considerations—the Dao or “humaneness,” which can be understood as the needs of the people.

Carl Schmitt’s point that the unruly can never be taken out of political governance thus echoes the criticism that Confucians historically made of the legalist tradition. Reflecting the Confucian perspective, Liang characterized the legalists as “extreme right” (Liang 1930, p. 34). Liang defines legalism’s right-wing orientation in terms of their “materialism,” by which is meant that humans can never accede to the kind of spontaneous moral behavior characterized by the Confucians as ren (仁) and which the latter believed was needed for sustainable political order. For the Confucians, an empathetic attunement between the citizens of a community needs to be cultivated such that there are internal bonds of affection between peoples and this precisely is moral behavior. (See Xiang 2025 and Xiang 2026) The legalists, however, rejected that this was either needed or possible and that the role of the state and the management of human populations rested merely on external measures centered on human biology. By this is meant that humans, as a matter of biological determinism, seek material comfort. This eternal truth about the human can be used and manipulated to further the ends of the state itself—its own enlargement and its continued survival. Liang remarks that the legalists, like the European nations of his day, tended to “to regard life solely as material development” with the result that “no matter how plausible the contrivances, the malady only becomes worse” (Liang 1930, p. 140). Liang’s (Confucian) critique of the legalists echoes Hallaq’s critique the modern state, as Liang writes, “the evaluation of things and the evaluation of men must not be confused. Things are evaluated by material standards which cannot be used in evaluating men” (Liang 1930, pp. 133–34). For Liang, as for Confucians, “The criterion of things can be settled once for all, but the criterion of the heart cannot be found except through “continuous study and unrestricted investigation” (Liang 1930, p. 134). “Continuous study and unrestricted investigation [纂论公察]” is a reference to a passage of the Xunzi in which Xunzi argues that the grand embodiment of the ultimate Way is constituted, in part, precisely by the continuous study and investigation of the needs of the people (min, 民).

In the Confucian understanding, therefore, the ultimate basis of the state are the dynamic needs of the people (min). A legal infrastructure or a bureaucratic apparatus in and of itself cannot be the source of political legitimacy precisely because humans are more than their biology. What is defining of the human and therefore the real source of the political is the sentiment of fellow-feeling (ren, 仁) among citizens. The Terminus a quo and Terminus ad quem of the political, for Confucians, is therefore a humanistic value of fellow regard and a positive notion of the collective good.

It is for these reasons that historically Confucians believed that “Goodness alone is not sufficient for government; law alone is not capable of applying itself” (Mencius 4A1)11. The context of Mencius’s pronouncement is that sagely rule needs external instruments to aid it. Mencius talks of how even someone like Li Lou with the legendary eyesight of seeing something as small as “the tip pf an autumn hair” would not be able to form squares and circles without the compass and square. Zhu Xi, commenting on Analects 2.3 says,

I maintain that laws and regulations [政] are the instruments of governance, while punishments [刑] are auxiliary methods to support governance. Morality [德]s and rites [礼], however, are the very roots from which good governance springs—and of these two, morality is the foundation of rites.12

The Confucian attitude that governance cannot be divided from the moral values that must necessarily be its foundation is not merely theoretical. The Qin is a state that overhauled its system of governance according to legalist ideology and was enormously successful as a result. The efficiency of its state and society organization meant that it was able to conquer the remaining states in the Warring States period and thus “unify” all of China. However, after the unification of China, the dynasty lasted only fourteen years, the shortest of any major dynasty in Chinese history. Chinese thinkers interpreted the collapse of the Qin dynasty as owing to the very divorcing of the mechanized instrument of rule with the moral and human foundation that it must always be based in. A Han dynasty text, the Huainanzi, for example, draws these very conclusions on why the Qin dynasty collapsed:

Zheng of Zhao [Qin Shihuangdi] by day decided lawsuits and by night arranged documents. Law clerks covered and connected the prefectures and counties to investigate and spy, overturning plots and detaining miscreants. He fortified the five peaks to defend against the Yue [people] and built the Great Wall to protect against the Hu [tribes]. But wickedness and lewdness arose, and robbers and bandits dwelt together in hordes. The more trouble [he took with] matters, the greater the disorder became. Thus the law is an instrument of government, but it is not [the end] for which one governs. [故法者，治之具也，而非所以为治也] It is as with bows and arrows: they are tools for hitting the bull’s-eye, but they are not the reason one hits the bull’s-eye.

(Liu 2010, pp. 813–14)

The Legalists regarded human beings as nothing more than bodily material functioning as mere instruments of labor, whether in agriculture or war, solely to consolidate the state’s power. When the state has no values, the only “value” it has is force or militarism, and a state with only the value of militarism is not sustainable. As the writers of the Huananzi writes, such a project was doomed to failure. When humans are treated as mere objects without dealing with their value (how they relate to the world and each other beyond their mere materiality), political governance cannot be sustained.

The theoretical frameworks of Hallaq and Schmitt serve to buttress the Confucian’s criticism of the Legalist tradition, that it is a simplistic, one-dimensional anthropology that produced a correspondingly impoverished theory of governance. The criticism that the Huananzi makes of the Qin and its legalist system of governance is much like Schmitt and Hallaq’s criticism of the ideal of a self-grounding legal system. The Huainanzi like Schmitt and Hallaq critique the idea that a fact-value dichotomy in the realm of human governance is possible. The Qin took the perpetuation of state as its telos (as opposed to benefitting the people). Consequently, it instrumentalized humans through laws and punishments and viewed humans and the nature of governance in merely mechanical terms.

That the Qin-legalist state saw humans as mere physical objects that serves their expansionist project can be seen in why the legalists promoted agriculturalism and warfare and prohibited cultural pursuits. For the Book of Lord Shang—a pioneering legalist text—the existence of the state is existentially dependent upon two things: agriculture and warfare. Part of the reasoning for promoting agriculture is that, since war is such a hated occupation, people should be keep in the equally onerous occupation of farming so that they will look upon war as a welcome release from the drudgery and as a good opportunity for earning rewards (Shang 2011, p. 83). Under this scheme, agriculture is intended as hard labor that keeps the population in a state of misery that warfare appears as a relatively more appealing alternative. The promotion of agriculturalism is concomitant with a dehumanization that serves the purposes of the war machine.13 As Tao Jiang writes, Shang Yang’s political project was “enriching the state and strengthening the military” (fuguo qiangbing, 富国强兵) (T. Jiang 2021, p. 247). The ideal model of the human being for Shang Yang is one that is an automaton who physically toils for the state and the Qin-legalist state can thus be described as a militaristic war machine. As Yuri Pines puts it, Shang Yang’s solution to the need for getting more troops for the state is “comprehensive: only the profound restructuring of social, economic, administrative, and cultural policies would enable the ruler to uniformly direct the population at the One, viz. the mutually reinforcing pursuits of agriculture and warfare” (Pines 2016, pp. 106–7). A specific kind of human needs to be created for the ends of the state—a mere instrumentalized subject of the state.

Yuri Pines, in a worryingly affirmative register, remarks: “Shang Yang, supported proactive government that would shape an individual household’s economic behavior in accordance with the ruler’s needs” (Pines 2009, p. 200). Pines’s positive appraisal of Shang Yang is particularly troubling given that the Legalist state’s ultimate purpose was to intervene in citizens’ lives and mold them into instruments of war. Chapter 19, “Within the borders” (“Jing nei” 境内) of the Book of Lord Shang, for example, present the authors’ “vision of the complete integration of society and army and the impact of this integration on military undertakings” (Pines 2016, p. 119).

The ideal model of the human being for Shang Yang is one that is a non-thinking instrument whose only virtue is his capacity for physical toil. In 4.2, we read that “farming, trade and office are the three permanent functions in a state,” these three functions, in turn, give rise to the six parasitic functions (虱官). These six parasites are to be found in both “dimensions of traditional culture (e.g., [Canons of ] Poems and Documents, rites, and music) and moral values (e.g., benevolence and uprightness, goodness and self-cultivation, filiality and fraternal duties” (Pines 2016, p. 105). If these parasites are allowed to thrive, then the state will be dismembered. As part of the project of the instrumentalization of the human being, persons in the state are thus prohibited from participating in cultural pursuits. Further, for Shang Yang, if the country is strong and war is not waged, rites and music and the other parasitic functions will arise and the state will be dismembered.14 A tradition recorded in Hanfeizi says that the Lord of Shang taught Duke Xiao “to burn the Odes and History.” Relatedly, in one of his most important chapters—“Five Vermins” (五蠹)—Hanfei writes: “Therefore in a state of an intelligent ruler, there is no literature of books and bamboo tablets, but the law is the only doctrine. There are no ‘discourses of the former kings,’ the government officials [li, 吏] are the only teachers” (Petersen et al. 2025, p. 977; modified). By concentrating on war and agriculture and promoting obedience to the law and prohibiting other sources of normative value—culture and self-cultivation—the government becomes the sole authority and consolidates its power as absolute master (Shang 2011, p. 88).

In Shang Yang’s legalist philosophy, humans should be reduced to their mere physical power (either for the ends of agricultural production or war). A humanistic education that the Confucians promote elevates the human beyond their mere animality such that they are less easy to exploit by the state. Thus, from the perspective of the legalist state, humans should be kept in a bestial state so that they are more easily instrumentalized by the war machine that is the state and more willing to kill each other for the interests of the state.

That legalism has such assumptions about human nature is attributable to the genealogy of legalism. The legalist tradition is commonly believed to have originated with administrative officials (Shang 2011, p. 91). The legalist tradition as the philosophy of the bureaucrat or managerial class has a very different conception of the human to the Confucian tradition. Concerned primarily with the continued (or enlarged) existence of the state and its bureaucratic apparatus, the human, under this scheme is merely a means towards the end of the continued existence (or enlargement) of the state and the institutions that constitute it. Starting from the assumption that the ultimate aim of a state must be the conquest of the entire Sinosphere, the Book of Lord Shang is orientated around the central idea of organizing the state for that sole purpose. It can be said that the legalist view “thingifies” people into instruments that serve the interests of the state. The legalist view of self was not value-neutral. Highly anti-cultural, legalist texts such as The Book of Lord Shang actively promoted against the cultural growth of the person with the view that the less educated the population, the more amenable they are for military service.

That the Qin tried to realize a fact-value distinction in their governance through treating humans as merely material existences achieved initially enormous but ultimately unsustainable success. This history is interesting in light of the experience between European colonizers and the Islamic world’s rule through Sharīʿa. Hallaq writes that the reason why European colonizers were obsessive about rooting out the Sharīʿa was that it had been an impediment to Europe’s political expansion and economic domination. This perceived and actual impediment, Hallaq writes, speaks to the “Sharīʿa’s incompatibility, as a moral system” with the basic logic of modern capitalism (Hallaq 2013, p. 147). Hallaq’s observation that the Sharīʿa was moral system of organization and thus a buttress against the atomization and subsequent instrumentalization of human bodies for the purposes of an expansionist state is rendered more insightful in light of Qin experience. From the experience of Qin legalism, it can be seen that the technology of statecraft in which humans are reduced to mere bodies to be instrumentalized by the state is an enormously powerful resource and mode of organization from the perspective of the state itself. When humans are deprived of the bonds of community that exist between them realized through humanistic media such as music, poetry, literature and the accompanying other-regarding virtues that these media seek to cultivate, they are atomized. As atomized, they can be instrumentalized by another form of organized power—in this case the state (but we can also think about the vulnerability of atomized individuals in the face of corporate power). The Book of Lord Shang is explicit about this logic:

When a poor state engages in war, poison infiltrates its enemy; it has no six parasites and will surely be strong. When a rich state makes no war, carelessness is born in its intestines; it has the six parasites and will surely be weakened.

(Pines 2016, p. 190; 13.2)

Yuri Pines comments that in this passage, warfare is presented as the best remedy against “poison” and the “six parasites.” The legalists’ deep aversion to culture is rooted in their correct perception that the values that it cultivated would undermine their effort to break apart communities and turn people into instruments of the state.

Confucianism has traditionally been extremely critical of the above legalist logic of mere state expansion at the expense of the human. The Mencius, for example, contains the following passage:

Mencius said, “Those who serve the ruler today will say, ‘We can enlarge the lord’s territory and expand his treasuries and storehouses.’ And, in the present age, for this they are called ‘good ministers,’ whereas in antiquity they would have been called ‘thieves of the people [民贼].’ To seek the enrichment of a ruler who neither follows the Way nor commits himself to humaneness is to enrich a Jie [桀 was the infamous final ruler of the Xia dynasty (c. 2070–1600 BCE) and serves as the paramount archetype of the tyrannical and depraved ruler in Chinese political philosophy and historiography]. Those who say ‘We can form alliances with other states so that his military campaigns will be successful’ are, in the present age, called ‘good ministers,’ whereas in antiquity they would have been called ‘thieves of the people.’ To bolster the military strength of a ruler who neither follows the Way nor commits himself to humaneness is to support a Jie. Even if he were to receive all-under-Heaven as a gift, one who follows the way of the present day without having changed present practices would be unable to dwell in it for the space of a single morning”.

(Mencius 2009, p. 140)

Mencius’s critique is aimed at a mode of thought which posits the preservation and aggrandizement of the state as its sole objective. During the Warring States period—the context of this speech—Mencius witnessed all the competing states trapped in an expansionist logic, with each one striving for dominance over the others. He laments that this pursuit of territorial aggrandizement had come to be treated as the sole value of the time. For Mencius, however, expansion could never constitute the ultimate normative principle—it was not the Way. On the contrary, he regarded the elevation of expansion as a value-in-itself to be fundamentally opposed to genuine value, condemning ministers who embraced it as “thieves of the people.” A political order, in his view, must be grounded instead in normative principles—what he called the Way and Humaneness. A similar point is recorded in The History of the Former Han, in which Laozi, in conversation with Confucius, states: “Laws and order are merely the instruments of government, but not the source of the purity or impurity of government.”15 (Ban 1962, p. 3649).

Mencius’ argument was ultimately vindicated by the subsequent course of Chinese history. As a state whose only telos is militaristic expansion, the Qin was extremely successful. Once it militarily overcame all that it could overcome, however, the state, absent a higher purpose or moral telos, could not be sustained. The Records of the Grand Historian, echoes the Mencian point. It records that the founder of the Han dynasty (the dynasty succeeding the Qin) once retorted angrily to Lu Jia who frequently cited the Book of Odes saying: “I conquered the world on horseback. Those classics are useless to me.” To which, Liu Jia replied, “You can conquer the world on horseback, but you cannot rule it on horseback. King Tang of Shang and King Wu of Zhou both conquered the world by force but consolidated their rule by benevolence and moral guidance. A stable rule always combines military might with moral guidance. […] If the Qin had learned from the early sage-kings and after conquering it had ruled the world by benevolence and moral guidance instead of by draconian laws, would your majesty be reigning here today?” (Sima 1959, pp. 2691–706) Liu Bang was abashed by Lu’s reply and immediately asked Lu to elaborate. Lu Jia wrote twelve essays, collectively titled them New Discourses (Xinyu), and presented them to Liu Bang as memorials (Sima 1959, p. 2699; translations from Zhao 2015, p. 274n54). Lu Jia’s point is the enduring Confucian criticism of legalism—that long-lasting political order rests on the coherence of the political community. This cannot be achieved through the manipulation of human bodies that defines the legalist project. The Chinese tradition—in both its Confucian philosophy and its historical record—provides a lesson that aligns with Hallaq’s thesis. A state that lacks a normative orientation based in “morality”—that is, the promotion of a collective good and communal bonds among its people—will not be a merely neutral organizer. Absent such moral or humanistic values, the “state,” as a technology of human organization, will serve the ends of instrumentalism which manifests as the cannibalization of its own population.

5. Legalism (Fajia 法家) and the Indigenous Chinese Neutral State

Hallaq’s motivation in articulating the latent conceptual assumptions undergirding the modern constitutional state lies in the confusion of much of contemporary Islamist discourse which assume the modern state to be a neutral tool of governance (Hallaq 2013, p. 155). The same characterization applies to a significant tendency in contemporary Chinese political scholarship. This trend is a product of colonial epistemologies, which position Western frameworks as universal and create an imperative for non-Western traditions to integrate into them.

There has been much recent academic philosophical interest in legalism which its proponents argue, is a proto-Chinese-liberalism. Underpinning this positive appraisal of legalism as a forerunner of Euro-American liberalism is the (Kantian) idea that what defines the self is that he is the subject of an autonomous will. As such a subject, no force, be that society or government should influence what this subject freely chooses as his own end as to impose such a regulative end would to deny the subject’s freedom to advance their own conceptions (Sandel 1998, p. 5). This idea of free and independent selves, “unbound by antecedent moral ties, capable of choosing our ends for ourselves” underlies “the ideal of the state as a neutral framework.” It is precisely because we are such free and independent selves, capable of choosing our own ends, that we need a neutral framework of rights that does not impose its vision of the good on individuals (Sandel 1998, p. 187).

Tongdong Bai, for example, suggests that Han Fei Zi is the first “modern” thinker “of all times” and a “forerunner of Western modernization” because prior to liberalism, Han Fei Zi already had a philosophy of dealing with a plurality of different opinions by appealing to the rule of law and equality before the law (Bai 2011, pp. 6–7). Like a proto-liberal, Han Fei Zi did not care about the cultivation of individual virtues to ensure the health of the body politic but appealed merely to the mechanisms of institutions to ensure societal functioning (Bai 2011, pp. 8–9). For Eirik Lang Harris, Han Fei’s legalist state is “closer to that of our understanding of the modern state than that of Niccolò Machiavelli, long credited with developing the modern conception of the state” (Harris 2011, p. 84). For Henrique Schneider Han Fei and Shang Yang created a system that is comparable to the philosophical preconditions for constitutionalist thinking (Schneider 2011, p. 46). In the conclusion to his survey of the foundations of Chinese thought, Jiang concludes that a legalist-Zhuangzi synthesis is a worthy experiment for contemporary China (T. Jiang 2021, pp. 474–76).

For Jiang, what makes legalist philosophy progressive and of contemporary relevance is precisely that they share the Kantian-liberal view of personhood. The legalists were “the only ones whose theories were not premised on the transformation of fundamental human dispositions” among the classical Chinese philosophers. Their singular view that the human disposition is predetermined and constant serves as “a promising alternative to the Confucian-dominated paradigm” (T. Jiang 2021, p. 474). For Jiang, “the regime of self-cultivation operative in the Chinese moral-political discourse even to this day, does not take seriously the moral agency of an average person, especially within a political context” (T. Jiang 2021, p. 474).

Jiang writes that Shang Yang “took human nature as given, instead of trying to transform human nature.”16 Shang Yang, for example, disagreed with the Confucians that moral education “was or should be the solution to the problem of human selfishness,” his alternative is to exploit human selfishness. The human desire for fame and profit (mingli, 名利) should be exploited by the architects of the state such that it aligned with the interest of the state (T. Jiang 2021, p. 254). Human selfishness, when channeled through the mechanisms of reward and punishment, can be the very basis of political order (T. Jiang 2021, p. 253).

Against the dominant tendency of Chinese intellectual and moral consensus, exemplified by figures such as Liang Qichao, scholars like Yuri Pines emphasize a strand of political thought that was overwhelmingly negatively appraised in traditional Chinese culture. The reason why legalism has such a negative impact on the citizenry in its polity, as we have explored, is ultimately rooted in its project of trying to effect a fact-value distinction. The state does not pretend to a higher value than that of its own survival and expansion. Such an absence of a normative value paradoxically results in an instrumentalized reason that cannibalizes its own population.

6. The Confucian Moral State and Its Relationship to Law

Although the legalists developed a view of the state and law that bears uncanny resemblance to the modern (Western) state, historically however, China did not choose the path of this legal state. Instead, China chose the path of the very regime of “self-cultivation” that Jiang critiqued above. This does not mean, however, that the historic Chinese state did not have law. As the most recent research shows, the historical Chinese legal system had a sophisticated system of both penal and civil law. Writing in Legal Orientalism: China, The United States, and Modern Law, the legal scholar Teemu Ruskola notes that is “insistently” claimed today that China is “the antithesis” of the “rule-of-law” (Ruskola 2013, p. 4). It is a curios stereotype, as only the most negligent observer could gloss the historical detail that the fa tradition had been prominent in the Chinese context since the 4th c. BCE with written treatises from the likes of Shen Buhai and Shang Yang. Chinese dynastic codes extend to the Tang dynasty (618–907) and to as early as “Marquis Lü on Penal Laws” (Lü xing, 呂刑) of the Western Zhou period preserved in the Book of Documents. Such a view, however, has a long lineage that can be traced back at least to Montesquieu. The Sinologist John K. Fairbank, a key proponent of this view, explains the origins of this orthodoxy by pointing to the “nondevelopment of Chinese law along lines familiar to the West” (Fairbank 1983, p. 23, my emphasis). Fairbank is echoing a long-held belief of the West: the modern Western liberal state is singular in having evolved a rule of law or a legal order (Cf: Unger 1977). Other cultures might have had law, but they did not have a legal order.

Part of the reason why historical China is perceived as not having a legal order, even though it had one of the earliest and most sophisticated legal systems and invented the modern bureaucratic state, is precisely because the Confucian ideal of self-cultivation reigned. Montesquieu was one the earliest thinkers who associated the Chinese polity with lack of real law. For him, part of the reasoning for why China lacked real law is because of the lack of distinction in China between “religion, laws, mores, and manners; all was virtue” (Montesquieu 1989, p. 318). Montesquieu explains that the “difference between laws and mores is that, while laws regulate the actions of the citizen, mores regulate the actions of the man” (Montesquieu 1989, p. 317). “Mores and manners” are precisely usages not established by law and whereas the former deal with internal conduct, law deals with external conduct (Montesquieu 1989, p. 317). The historian Joseph Strayer follows this line of thought and explains that law differs from mores in that it requires the existence of a “state” which is both based “on law and existed to enforce law” (Strayer 2005, p. 23). A society in which the relationship between peoples is organized through law as opposed to mores and manners is realized through the engine of the “state.” A pre-state level society is one in which people relate to each other in merely internal modes. In a legal-, social relationships are mediated by the laws that are sanctioned and enforced by the “state.”

Whereas in pre-state society, organic social mores are what organize social relationships, in a legal order, which necessitates a state, social relationships are always mediated by the rules given by the political-legal machinery that is the state. Political legitimacy under this political model thus necessitates the transformation of all social relationships to legal relationships. It is under the assumptions of this paradigm that we can understand the orthodox opinion that traditional China had no “civil law.”17 As the Chinese legal scholar Zhang Zhaoyang points out, this received wisdom is founded on the assumption that China had no civil law that was promulgated and enacted by the state. Zhang’s research shows, however, that civil statutes and civil legal notions already emerged in the fourth c. BC and a system of civil statutes developed during the Qin and Han periods. Although Zhang provides a detailed exposition of the sophistication of civil laws in early China, Zhang notes a dominant ideal of reforming peoples’ morals to reduce lawsuits. Relatedly, Confucian moral principles such as filial piety shaped Qin and Han laws and the Confucian classics were often cited by judges indicating that they held equal authority with statutes in legal matters (Zhang 2022, p. 209). The many Han judges that are presented as benevolent and fair in the sources also held that civil suits should be unnecessary in a well-ordered world. This ideal shaped their jurisprudence: their primary aim in adjudicating was to achieve social harmony, a goal that transcended the simple act of granting each party his or her due (Zhang 2022, p. 210). An example of this ideal can be found seen in the governor Xu Jing’s behavior in the Book of Later Han. When two brothers mutually accused each other in a civil suit over property, the governor Xu Jing responded, sighing “I bear an important responsibility for the state, and if its moral teachings do not prevail, the blame lies with me, as governor [吾荷國重任, 而教化不行, 咎在太守]” (Quoted in Zhang 2022, p. 214). In the Confucian ideal, it is more important that peoples cultivate moral behavior such that the law did not need to intervene. Moral teachings promote prosocial behaviors thus had a premium over law. In this instance, the governor blames himself for not having properly promoted moral teachings such that those under his jurisdiction needed to rely on laws to resolve their relationships to each other. Resorting to law was seen as a failure on the level of the ethical.

In the Confucian view humans are, by nature, pro-social and other regarding. What is meant by de (德) is the innate human potentiality for community. This de, organic community in which humans are in constitutive interrelationship with each other is diverges from the relating of peoples through a legal order or the rules of the state. In such a state-sanctioned legal order, peoples relate to the state via the medium of law as opposed to each other. The state acts as an intermediary through which peoples are connected with each other. Furthermore, the only relationship that the state can maintain is an external one in which peoples are assured of non-interference in their interests. Law is unable to create community and to cultivate deeper interrelationships between peoples. Law does not cultivate a socio-cultural-political relationship between peoples in a way that leads to an organic moral coexistence with each other.18 It is for this reason that Confucians did not put a premium on law.

Given this attitude towards law, and as the historian Yonglin Jiang writes via the example of the legal codes of the Ming dynasty (1368–1644), “the Chinese law code served as a moral textbook to educate the people and transform society” (Y. Jiang 2011, p. 13). Throughout dynastic China, we see the characteristic “Confucianization of law” in which law was imbued with moral values. The Ming rulers, for example, “saw law, religion, and political power as undifferentiated, which is remarkably different from the “modern” compartmentalized worldview” (Y. Jiang 2011, p. 19). For Jiang, the Ming state—and this could be said for the Chinese state throughout history especially after the Dong Zhongshu’s Confucian consolidation in the Han dynasty—law was never divorced from morality. As Jiang writes, the Ming law code was “envisioned as an instrument to manifest the Mandate of Heaven” and served “as a moral textbook to educate the people and transform society. In their efforts to achieve these ends, then, the early Ming ruling elite endowed law codes with religious meaning; religion and law were unified as indispensable components of their social practices and belief system” (Y. Jiang 2011, p. 13).

In sum, although dynastic China had a powerful legal apparatus, its conception of law and the role of the state was not that of the modern (Western) state. Legal constraints were a last resort when socio-cultural norms had failed. Relatedly, law was imbued with values that aimed at promoting these socio-cultural norms. The Chinese attitude towards law thus evidences the lack of a fact-value distinction. Unlike the modern (Western) state, law was not understood as a merely neutral organizer of human relationships. Our relationships always had to be grounded to communal values. It is due to this lack of a fact-value distinction that, as Montesquieu noted, there was no conception of “law” separate from virtue.

7. Conclusions

This paper has shown the parallels between the traditional Confucian critique of fajia and Wael Hallaq’s critique of the modern state. Both Confucianism and Hallaq disavow the idea that the state can be ungrounded on a normative basis. “Legalism,” as a political philosophy, is merely the instrumentalized reason of the state or the philosophy of the bureaucrat class which sees the human only in terms of human resource. Such an attitude, whilst enormously useful for state-building does not ensure the longevity of a civilization because it is inherently absent of value. Or, we could say that its value is merely the continued existence of the state itself and all human values will be subordinated to that purpose. This kind of instrumentalizing philosophy on its own cannot build a civilization if indeed it does not ultimately destroy it. Historically, Confucianism did not disavow this instrumentalized reason, but it did not think that such instrumentalized reason is itself a normative orientation. It is for this reason that, as section five has briefly shown, the Chinese state understood state laws as inferior to morality and an expedient measure to be used when organic socio-moral norms had failed. There was never any understanding that state laws can replace socio-moral norms. Instead, the laws of the state are palliatives to be used on the unfortunate occasions when socio-moral norms could not adequately mediate the social and deliver social harmony. Relatedly, it is also the reason that even state laws in dynastic China were “Confucianizied,” that is, imbued with normative social values.

Hallaq’s work, as a reminder to the Islamic world that the Sharīʿa is incompatible with the instrumental reason of the modern state, is a pertinent corrective to dominant aspects of Sinological scholarship. Due to the concerted effort to globalize the European state, scholarship on Chinese political philosophy has not been impervious to the need to assimilate to these European paradigms. As a result of this intellectual colonization is the tendency to paint legalism as China’s native liberalism and the attempt to depict legalism as preferable to the Confucianism that dominated the history of Chinese thought and history. Guided by Hallaq’s critique of parallel developments in the Islamic world, this paper has revealed the shortcomings of this endeavor, which is both philosophically incoherent and ignorant of wider geopolitical forces.