A piece from last Saturday’s NYT outlines the injustices rife within the Chinese legal system.  In referring to Mr. Xie Yujun’s struggle to defend his son, the money quote:

But Mr. Xie’s plaintive cry poses a fundamental question about
China’s promise of rule of law: Is it possible for a criminal defendant
to get a fair trial?

For most of the 56-year history of the
People’s Republic of China, the answer, by any standard, has been no.
But in 1996, facing international and domestic pressure, China
introduced reforms that expanded a criminal defendant’s right to
counsel and sought to create a more impartial judiciary.

Yet
today the inadequacy of those reforms, and the reluctance of the ruling
Communist Party to make meaningful change, is abundantly evident. The
criminal trial of Mr. Xie’s son was one of 770,947 adjudicated last
year. Of that total, 99.7 percent ended in convictions.

     This is not surprising – although still depressing – for those who study Chinese politics closely (the link is to a Human Rights in China report on legal reforms.  Check out their entire site).  For all of the impressive economic and social reforms, and even for the less than impressive steps toward a modicum of media and political liberalization, there remains a hard core of authoritarianism in the PRC.  And this combination of reform on the surface and repression not far below parallels an older practice of rubiao, fali: Confucianism on the outside, and Legalism on the inside.

     I participate in a listserv of people who follow Chinese politics and, in debating the extent to which China has ever really lived up to Confucian political ideals, one of the posts used this term, rubiao, fali – "Confucianism on the surface, Legalism within."  It struck me as an excellent term for understanding the role of Confucianism in traditional China, as well as summarizing the politics of post-Mao reform.

    As I have turned, in recent years, to reading the Chinese classics, I have been struck by the strong demand, in Mencius in particular,for political leaders to be held publicly accountable for their actions.  It is not quite a call for modern electoral democracy – that mechanism of public accountability was simply too alien to the ancient Chinese political milieu.  But it is certainly a proto-democratic expectation that leaders should not contradict the interests of the people at large: taxes should be low; the administration of justice should be fair; war should not be pursued offensively or pre-emptively (are you listening Mr. Bush?); and public welfare should be the leading concern of the state. 

    But this worldview has always been limited in China, at least since the Qin dynasty, by the countervailing Legalist perspective that political leaders must, first and foremost, concentrate on what needs to be done to maintain power.  "Traditional" China is famous for strict laws and severe punishments, a la Legalism.  This is written into the language: "kill one to warn  a hundred;" "kill the rooster to scare the monkey," etc.  It is that tradition that carries on, though in somewhat modified form, in the politically micro-managed society of Singapore.  And it is that tradition that underwrites the lack of justice in the PRC legal system: where the law is understood to be a tool used by the state to control society, not as a bulwark of the individual against the state.

    Yet in "traditional" China there was a hesitation to simply say "we are Legalist;" perhaps because of Legalism’s explicit acceptance of coercive power to preserve the prerogatives of the ruler.  Confucianism provides a much more humane (that is its main goal, after all) and reasonable rationale for politics and power.  And that was the genius of the Han dynasty: invoke Confucianism as state ideology, while maintaining much of the political infrastructure of the Legalist Qin dynasty.  Say that you rule by Confucian principles, while always holding on to the Legalist club to repress potential challengers. 

    Rubiao, fali.  It has a long pedigree in Chinese history.  It helps us understand why China has never lived up to Confucian ideals.  And it suggests to us just how difficult it will be to truly transform Chinese law and politics.