In February I posted three times about the New Legalists, a web site that takes as its motto: "End capital’s hegemony in the name of liberty, build a new world with original Chinese Taoist-Legalist civilization as a prototype."  As I argued before, I am repelled by this modern nationalist revision of Legalism.

    In the last couple of weeks I have been reading Han Fei Tzu with my class on ancient Chinese philosophy.  It’s always a bit depressing slogging through ideas such as: "In a strict household there are no unruly slaves, but the children of a kindly mother often turn out bad." (125).  But an idea arose in a paper by one of my students: on its own terms, Legalism is wholly inapplicable in a modern context. 

       Here are two quotations that can serve as a starting point:

Those who have no understanding of government always tall you, "Never change old ways, never depart from established custom!"  But the sage cares nothing about change or no change; his only concern is to rule properly.  Whether or not he changes old ways, whether or not he departs from established customs depends solely upon whether such old ways and customs are effective or not. (93)

For the sage does not try to practice the ways of antiquity or to abide by a fixed standard, but examines the affairs of the age and takes what precautions are necessary. (97)

     These statements get at the Legalist emphasis on effectiveness as the primary standard for judging political arrangements.  Unlike Confucians, Legalists do not look to the past for an ideal "prototype," as the New Legalists seem to want to do.  The past can tell us something, but there is no need, for Legalists, to feel compelled to justify current political actions in terms of the past.  All that matters is effectiveness, and effectiveness has a rather narrow definition of maintaining the personal political position of the ruler.

     What a ruler must do, from the Legalist perspective, is focus on contemporary conditions and construct a political order in response to immediate circumstances.  That is why Han Fei Tzu was so quick to jettison Confucianism: it was a system of thought, he argued, that might have applied to an earlier time but that was, by the third century BCE, hopelessly out of touch with the competitive scarcities of the late Warring States period.

     If we take this seriously, then the present-day despot, looking perhaps to invoke Legalism as a guidebook for dictatorship, must quickly realize that Han Fei Tzu must now be consigned to the historical ash heap, hopelessly out of touch with contemporary political conditions.

     First of all, Han Fei Tzu understood the agrarian basis of state power in his time.  Legalists rather famously demanded that agricultural production was absolutely essential for maintaining political order and the ruler’s position.  How, then, can this speak to a modern industrial economy?  Or, to make it even harder for an economically nationalist variation of Legalism, how can this apply to a modern post-industrial economy in a globalized world system?   

     Let’s take contemporary China.  Its current economic success is a function of openness to world markets.  It depends upon foreign investment to finance its manufacturing boom; it depends upon foreign markets to buy its exports; it depends upon foreign sources of raw materials to fuel the whole thing.  Although agricultural production still matters for China, this, too, is now globalized, with soy bean production in the US feeding Chinese demand. 

     Not only is the world well past the era of territorial-agrarian economic life, but any attempt to impose territorial political limits on de-territorialized economic flows will certainly undermine the financial basis of state power.  There is no alternative to economic openness, unless North Korea and Cuba are to serve as models of some sort.

     In short, the political-economic context of modern/post-modern globalization renders Legalism anachronistic in fundamental ways.

     And it gets worse for modern Legalists.  Politically, there is no notion of popular sovereignty in Han Fei Tzu.  He says that the ruler must be willing to contradict popular opinion and he characterizes the "people" as "stupid" and "slovenly."  There is no real sense that average people have any role whatsoever in the selection or legitimation of the ruler.  Han does recognize that the ruler must take care not to over-exploit the population at large, lest political conditions be created for rebellion or coup d’etat, but this hardly amounts to a significant role for popular will or popular participation in the political process.

     All of this makes Legalism politically anachronistic.  Again, think about China.  While the CCP certainly practices authoritarianism, it does so with elaborate justifications in terms of democratic legitimation.  In 2005 the Party published "Building Political Democracy in China," asserting that:

China’s socialist political democracy has enabled the Chinese people,
who account for one fifth of the world’s population, to become masters
of their own country and society, and enjoy extensive democratic
rights. This is a great contribution to the development of the
political civilization of mankind.

      A Legalist would scoff at such an idea.  "Extensive democratic rights" and the people as "masters of their own country" are antithetical to a Legalist mindset.   The CCP makes such claims because it must: in the modern era virtually all political systems invoke some sort of democratic ideals as a means of legitimating state power.  The PRC’s signing of the UN covenants on human rights are another indicator of the power of modern democratic norms.

     I could go on to point out how modern social and cultural practices and understandings are also fundamentally at odds with the Legalism of Han Fei Tzu.  But I think the economic and political points are sufficient, because what they lead us back to is Han Fei Tzu’s own dictum to "examine the affairs of the age and take what precautions are necessary."  The modern age, the age of the 21st century, is wholly different than the age of the third century BCE.  While we may argue about the effectiveness of authoritarianism, in its modern guise authoritarianism cannot be based upon the political and economic assumptions of Legalism.  Authoritarian effectiveness requires economic openness and assertions (however implausible they may be at times) of democratic legitimation, neither of which will be found in Legalist texts. 

     If we take Han Fei Tzu seriously, we have to come to the conclusion that his book now is anachronistic and inapplicable to contemporary conditions.  It cannot serve as a "prototype"  for a "new world."