I have written about the New Legalists before (the first of three posts is here, with more here and here).  That was over a year ago.  Well, last month Zhai Yuzhong, whom I do not know, courteously sent along to me, in an email, a critique of my first post on the New Legalists.  I read it and thought about it but did not have time to respond or even discover whence it came.  Well, this week Zhai kindly sent me an English translation of the critique and, with now a bit more time, I traced it back to the New Legalist web site.  It seems it is the "Editor Recommends" article at the top of their page.  Thus, I feel I must now respond. 

I must first thank Mr. Zhai for his courtesy in sending me the original critique and the English translation.  But I must fundamentally disagree with him.  Let me make three points in response.  

1) Mr Zhai argues that I am wrong to associate the New Legalists with Chinese nationalism, saying, among other things:

As a matter of fact, nationalism is quite
alien to the Chinese, for China has not been subjected to constant
pressures from external aggressors in history like the much divided
Europe, but on the contrary, she has been used to viewing political
relations from the standpoint of the whole world (Tian Xia, or天下). This
broad-mindedness is beyond the comprehension of most Westerners, who
cannot look beyond national interests….

This is historically wrong, at least insofar as what China has become since the 19th and 20th centuries. 

It is true that nationalism was alien to China before the 19th century, as it was alien to most of the world, much of the Western world included, before the 19th century.  Nationalism and national identity are, by definition (see Anderson or Gellner or Zhao)  modern phenomena.  The "nation" is a collective identity that arises in tandem with other aspects of modernity: world markets, modern legal-rationalist states and attendant socio-economic processes.  Indeed, the very term zhonghua minzu – 中华民族 – is a modern construct; it was not used before the 19th century.  It is a rather uncomfortable fact for Chinese nationalists that the term nationalism – minzu zhuyi, 民族主义 – was brought into the Chinese language through Japan, which modernized before and had a very significant effect upon China (notice that minzu zhuyi is included in this list of terms transliterated from Japanese to Chinese from Translingual Practice by Lydia Liu, a fascinating book).

Thus, by the mid-twentieth century, the ideas of nationalism and national identity were firmly rooted in Chinese language and, more prominently, political practice.  The Guomindang was a nationalist party as was, and is, the Chinese Communist Party.  Mao Zedong was most famous for "sinicizing" Marxism, adapting it to Chinese circumstances and making it into a Chinese nationalist doctrine.  The history of twentieth century China is a history of a contest of nationalisms and national identities, one that continues today as the PRC moves away from the Maoist version of Chinese nationalism to something different.

To say, as Mr. Zhai does, that "nationalism is quite alien to the Chinese" is to simply ignore or deny the historical transformations of the twentieth century.  Or does Mr. Zhai want to reject the reality and power of zhonghua minzu?  

2) Mr. Zhai further argues:

Prof. Crane’s commentary on our New
Legalism is full of deep-rooted prejudices that came partly from
Confucians’ deliberate distortion of Legalism throughout history and
partly from some Western scholars’ long-time wrong notions about China
and the whole non-Western world in the past centuries.

It is strange, therefore, that in trying to defend Legalism, Mr. Zhai himself must invoke a central Confucian principle.  He writes:

Classical Chinese theory on inter-state relations is focused on “justice” (Yi, or义), not on “interests” (Li, or利).

Yi – 义 – is, of course, a fundamental Confucian virtue, one that Han Feizi, the great Legalist writer, railed against, as here (from Watson's translation, which renders Yi as "righteousness"):

Those who practice benevolence and righteousness should not be praised, for to praise them is to cast aspersion on military achievement…(105)

This is amusing because Zhai himself, in having to invoke a Confucian idea, demonstrates the philosophical and ethical bankruptcy of Legalism.  Zhai cannot defend Legalism without resort to Confucianism, which is simply a repetition of the historical pattern.  Legalism, in all of its brutality, has never been able to stand on its own.  It has always had to appropriate other systems of thought, whether Daoism or, more comprehensively, Confucianism, to veil its depredations against humanity.  For much of Chinese history, the classic formulation of "Legalism with a Confucian facade" was the basis of statecraft, as Victoria Hui demonstrates (pdf file).  The Confucians were always uncomfortable with this fact; the New Legalists now simply ignore it.

Hui also shows, citing Johnson, how China has a long and accomplished realpolitik military history.  She mentions the ur-Legalist Qin dynasty in this regard:

…..the state of Qin crushed its competitors by brute force based on comprehensive self-strengthening reforms that facilitated total mobilization for war. Qin also pursued relentless divide-and conquer strategies to break up balancing alliances, and employed ruthless stratagems of bribery and deception to enhance its chances for victory. Not only did Qin’s military commanders seize territory by force, they also brutally killed defeated enemy soldiers en masse to demoralize and incapacitate losing states. To facilitate consolidation of conquests into the Qin dynasty (221–206 BCE), Emperor Qin Shihuang, known as the First Emperor, employed severe measures to subjugate conquered populations. These included mass killings of extended royal families as well as mass forced migrations of noble and wealthy families to the capital. The Qin court also imposed direct rule on newly occupied territories, draconian collective punishment, pervasive surveillance and the establishment of settlements in frontier regions to serve as garrisons.

It is important to keep this in mind (and I recommend Hui's book) when confronted with such New Legalist historical distortions as this:

“Throughout human history, the Chinese
civilization is the only one which has not flourished by force of
gunboat conquest and colonial expansion but through free interracial
marriages and free migration…"

This is, again, a Confucian ideal, the image of a perfectly peaceful China, another example of how New Legalists cannot live without Confucianism, even as they struggle to denounce it.

3) Mr. Zhai goes further in his white-washing of Qin dynasty inhumanity.  Now, it is true that Qin did accomplish some things that had lasting effect on Chinese history, most notably the centralized bureaucratic state.  And I will certainly grant Mr. Zhai his point that the Dujiangyan Irrigation System is an extraordinary accomplishment.  But whenever we discuss Qin we must always keep in mind the horrible human cost, especially when the early Qin state was pushed to universal domination by King Zheng, the man who would become Qinshi Huangdi, the first Qin emperor.  Mr. Zhai wants to romanticize the brutality, as here:

Prof. Crane alleged about “aesthetic
destructiveness of the Legalist Qin” and tried to support his
allegation with what he saw in the Shanxi Provincial History Museum in
Xian. This author has also been there. It is true that Qin bronzes may
not be so impressive in appearance as Zhou bronzes, but Prof. Crane may
not have noticed that on those not so impressive bronzes were inscribed
the names of those craftsmen who made them, instead of names of owners
as had been the custom before….

Is Mr. Zhai trying to suggest that Qin was some kind of forerunner of a workers collective, looking out for the interests of the craftsmen against the owners?  Please.  The only response appropriate here is a question: how many men and women died building all those terra cotta soldier statues?  How many died building Qin's tomb?  How many died connecting the many defensive walls around his lands?  Here is what the PRC's Ministry of Culture writes, among other things:

To
reinforce his rule, Qin Shihuang practiced autocracy, imposing harsh
laws and severe punishments and heavy levies and corves upon his
people. Moreover, he levied war year after year and thus caused untold
sufferings to the people.

Qin
shihuang ruled by terror and spent massive amount of money to build
extravagant palaces and his tomb. After five big travels across the
country and the building of the Great Wall,China was
in debt financially and people lived in terrible conditions. All this
strengthened people's hatred towards the emperor and sped the fall of
the Qin.

So, why can't the New Legalists look at history honestly?  Why are they so determined to gloss over the obvious failings of Legalism as it actually existed in China? 

I think it's because they are rather plain nationalists, searching for a historical narrative that will rationalize their preferred political outcomes in the present.  They are, like all nationalists, searching for a "serviceable past".  And if one doesn't exist, they'll just make it up.