Tao is the beginning of the myriad things, the standard of right and wrong. That being so, the intelligent ruler, by holding to the beginning, knows the source of everything, and, by keeping to the standard, knows the origin of good and evil. Therefore, by virtue of resting empty and reposed, he waits for the course of nature to enforce itself so that all names will be defined of themselves and all affairs will be settled of themselves. Empty, he knows the essence of fullness: reposed, he becomes the corrector of motion. Who utters a word creates himself a name; who has an affair creates himself a form. Compare forms and names and see if they are identical. Then the ruler will find nothing to worry about as everything is reduced to its reality.
-Han Fei Zi: Chapter V. The Tao of the Sovereign
The Collapse of Apolitical Institutions the Conventions of the Literati
If the politics of 2016 can be characterised by anything, it is the collapse of apolitical institutions and conventions in the Western world and its politicisation. The role of the media (in the Anglosphere at least) as impartial and balanced reporter of news has more or less collapsed when they openly admit that they have to aid one side of a political contest. Even a Supreme Court judge, who by convention is not supposed to interfere with the process of an election, could not help straying from that by commenting on Trump’s election campaign, although she later apologised for it. The third presidential debate moderated by Chris Wallace is most noted for being almost unnoticed by everyone, compared to the second presidential debate where the moderators themselves began arguing against Trump. It is truly a testimony to how far the media has fallen when Wallace’s role as an impartial moderator deserves mention, as if it were some unusual event rather than as something which should be as a matter of course.
With activist judges, academies against free exchange of ideas and free speech, and the press openly gunning for a particular political candidate, I think the importance of maintaining apolitical institutions and conventions and preventing its politicisation could not be more evident. A lot of people and processes goes on in the background of a commonwealth which are critical to its proper functioning, but which attracts little attention from the public nor is an object of political discourse. These conventions cannot be settled by politics but are instead the preconditions of it, without which there can be no political discourse, only a street brawl.
As such I will begin my exposition on this point by first defending the par excellence apolitical institution in the British polity, the monarchy, by comparing it to how far it conforms to the Chinese Legalist ideal of an “inactive sovereign” who mechanically enforces the law devoid of individual will, in so doing she maintains the apolitical preconditions of all political activity and checks the power of the political class. I will then make some adaptations of the Chinese Legalist arguments for a modern democratic polity, before making some comments about the civil service and the need for conventions and discipline in other institutions.
A Brief History of Chinese Legalism
Although Chinese culture is virtually synonymous in the minds of most people with Confucianism, there is another philosophy which has a decisive and lasting impact upon the formation of the Chinese civilisation but is rarely mentioned outside the academy. Before I can explain my thesis a brief introduction to Chinese Legalism would be necessary.
The formation of the Chinese imperium would be preceded by what is known as the “Warring States” where the Zhou dynasty feudal lords contended and fought against each other. In this state of universal disharmony and contentions a thousand philosophical schools bloomed, each proposing a civic solution to the widespread civic chaos, each eager to win the favour of a feudal lord so that they can put their ideas into practice.
Out of this cacophony of new ideas two schools of thought would play a dominant role in the creation of the Chinese empire. While Confucianism is universally known, the honour of actually creating the first empire would go to the Chinese Legalists. The first emperor of China, Qin Shihuang, managed to unify the feudal states into a single empire, and upon the advice of Li Si, a minister very heavily influenced by Chinese Legalism, he would make Chinese Legalism the official state philosophy and used brutal and draconian methods to create a state bureaucracy and standardise of the administration of China. In the process he even attempted to eradicate all other rival schools of thought in China.
Chinese Legalism however fell into disrepute after the collapse of the first dynasty. With the emergence of the Han dynasty, a lot of the Legalists administrative and imperial measures were retained, but Confucianism itself became the official face of the Chinese imperium and would remain so for most of China’s history. As such the functioning of the Chinese imperium would be a constant negotiation between the two forms of rulership.
What is Chinese Legalism?
But what exactly does Chinese Legalism teach? Chinese Legalism could be summed up as a method of rulership which consists of the use of bureaucratic techniques and legalistic measures. While the Confucians emphasised benevolence and virtue as the essential qualities of a ruler, who influences the people by example and moral suasion, the Chinese Legalists rejected such measures as impractical in trying to manage a large and complex nation.
Although it is true that the Chinese Legalists generally had a cynical view of mankind as essentially self-interested and selfish, their main argument against the efficacy of virtue and benevolence is based on differing socio-economic conditions. While virtue and benevolence is effective in small communities where face to face contact was the norm, as society grew in size and complexity such personal encounters would no longer be effective in harmonising the interests of the peoples of the commonwealth. As such the ruler must employ standards, laws, and bureaucratic techniques, administered by his swarm of ministers, to harmonise and manage a complex commonwealth and state consisting of thousands upon thousands of strangers. The distribution of power in such a state must also be likewise governed by such impartial standards. Virtues or characteristics which are useful or good for interpersonal interactions, e.g. good reputation, trust, benevolence, etc, becomes meaningless in a state which governs millions of faceless stranger. Good reputation merely become favouritism of a clique of political elite, trust becomes cronyism, and benevolence becomes partiality.
In essence, the Chinese Legalists conceived of the managerial state thousands of years before Max Weber was born. For the purposes of this post however, we shall be focusing on a very specific aspect of his teachings concerning the personal conduct of the ruler rather than their broader philosophy: First, the necessity of a ruler’s strict adherence to standards and laws in deciding appointments, then the doctrine of 无为 (wu wei) or inaction. The basic idea is that the ruler himself cannot, or should not, actively intervene or manage the affairs of the state, letting the bulk of the work fall upon his ministers. However the sovereign must carry out his own duties in appointing officials devoid of personal volition or desires and based on impartial and objective laws and standards. In so doing he will contain and check the politicking of the political class who would want to promote their own buddies or cliques to high office.
The “Rule of Law” and not Personal Affection or Interest
While most Chinese philosophies are agreed as to a ruler’s virtual political omnipotence, different Chinese philosophies have different ideas as to how the ruler should go about exercising it. The Chinese Legalists were surprisingly “modern” in their promotion of the “rule of law” or objective and impartial application of public standards and rules as the means whereby a ruler ought to exercise his powers.
The prevailing practice of appointing officials to governmental or ministerial positions were based on “reputations” of “worthiness”. A potential employee was presented before the ruler based on the recommendation of his peers and evaluated based on such hearsay. However this evidently will lead to all kinds of abuse as Shang Yang explains:
What the generation calls a “worthy” is one who is defined as upright; but those who define him as upright are his associates (dang 黨). When you hear [them] talking about him, you consider him able; when you ask his associates, they approve. Hence, one is ennobled before one has any merits; one is punished before one has committed a crime.
–Shang jun shu 25: 136–137
As such relying on “reputation”, or rather gossip, is hardly a good basis for deciding promotions and appointments as such reputations maybe at variance with the actual merits of the persons in question.
In addition to warning against making appointments based on “reputation”, the Legalists warned against making appointment based on mere subjective favour or affections as Shen Dao warns:
When the ruler abandons the standard (fa 法) and relies on himself to govern, then punishments and rewards, recruitment and demotion all arise out of the ruler’s heart. If this is the case, then even if rewards are appropriate, the expectations are insatiable; even if the punishments are appropriate, lenience is sought ceaselessly. If the ruler abandons the standard and relies on his heart to decide upon the degree [of awards and punishments], then identical merits will be rewarded differently, and identical crimes will be punished differently. It is from this that resentment arises.
However, while making appointments based on a ruler’s affection will create resentment among officials, there is a much graver problem which comes when important appointments are made based on reputations and cliques: It would lead to the creation of a political class whose interest diverges from that of the sovereign’s and the nation. As Han Fei argues:
Now supposing promotions were made because of mere reputations, then ministers would be estranged from the sovereign and all officials would associate for treasonable purposes. Supposing officials were appointed on account of their partisanship, then the people would strive to cultivate friendships and never seek employment in accordance with the law. Thus, if the government lack able men, the state will fall into confusion. If rewards are bestowed according to mere reputation, and punishments are inflicted according to mere defamation, then men who love rewards and hate punishments will discard standards of the public and practise self-seeking tricks and associate for wicked purposes. If ministers forget the interest of the sovereign, make friends with outside people, and thereby promote their adherents, then their inferiors will be in low spirits to serve the sovereign. Their friends are many; their adherents, numerous. When they form juntas in and out, then though they have great faults, their ways of disguise will be innumerable.
Were such the case, all officials would discard legalism, practising favouritism and despising public law. They would frequent the gates of the residences of cunning men, but never once would they visit the court of the sovereign. For one hundred times they would ponder the interests of private families, but never once would they scheme for the state welfare of the sovereign. Thus, their subordinates, however numerous, are not for glorifying the ruler; the officials, however well selected, are not for serving the country. If so, the sovereign would have the mere name of the lord of men but in reality he simply commits himself to the care of the houses of the various ministers. Hence thy servant says: “The court of a decaying state has no man.”
– Han Feizi: Book 2: Chapter VI: Having Regulations: A Memorial
Han Fei in particular had a fear to the point of paranoia of officials and ministers scheming against the sovereign. He repeatedly warns the sovereign against the possibility of ministers forming cabals and groups whereby they might overthrow the sovereign or act against his interest. In modern terms, Han Fei was particularly prescient in warning against the forming of a political class or a political elite whose sole existence is maintaining and perpetuating their own power and getting their buddies into high position rather than a care for the nation, which in this context is identical to the sovereign’s interest.
For the Legalists, the laws and standards for evaluating the merits of a candidate for high office was the means whereby a sovereign may check the power of his ministers and break up their cabals or cliques. In modern terms, there must be impartial and objective processes/measures for deciding political appointments, etc, rather than simply on the whims of a singular sovereign, or the sectional interest of a political elite. Historically imperial China will develop the Imperial Examinations as a standardised measurement for fitness to political office. Emperors would then task officials with specific tasks or missions which success can be empirically tested and determined. Success meant promotions, rewards, and riches. Failure meant demotion, shame, and in some extreme cases, executions.
无为 or Inaction; The Paradox of the Entrapped Sovereign
In so arguing for objective standards and laws for deciding appointment of officials to high office, the logical corollary of the Chinese Legalist’s position is that the Sovereign must himself, or herself, be completely devoid of any individual interest or will, or at least it must completely concealed from his or her ministers. This leads to the doctrine of 无为 or an inactive sovereign who simply mechanically enforces the rules.
Continuing from the passage quoted at the start Han Fei continues:
Hence the saying: “The ruler must not reveal his wants. For, if he reveals his wants, the ministers will polish their manners accordingly. The ruler must not reveal his views. For, if he reveals his views, the ministers will display their hues differently.” Hence another saying: “If the like and hate of the ruler be concealed, the true hearts of the ministers will be revealed. If the experience and wisdom of the ruler be discarded, the ministers will take precautions.” Accordingly, the ruler, wise as he is, should not bother but let everything find its proper place; worthy as he is, should not be self-assumed but observe closely the ministers’ motivating factors of conduct; and, courageous as he is, should not be enraged but let every minister display his prowess. So, leave the ruler’s wisdom, then you will find the ministers’ intelligence; leave the ruler’s worthiness, then you will find the ministers’ merits; and leave the ruler’s courage, then you will find the ministers’ strength. In such cases, ministers will attend to their duties, magistrates will have definite work routine, and everybody will be employed according to his special ability. Such a course of government is called “constant and immutable”.
Hence the saying: “So quiet, it rests without footing; so vacant, it cannot be located.” Thus, the intelligent ruler does nothing, but his ministers tremble all the more. It is the Tao of the intelligent ruler that he makes the wise men exhaust their mental energy and makes his decisions thereby without being himself at his wits’ end; that he makes the worthy men exert their talents and appoints them to office accordingly without being himself at the end of his ability; and that in case of merits the ruler gains the renown and in case of demerit the ministers face the blame so that the ruler is never at the end of his reputation. Therefore, the ruler, even though not worthy, becomes the master of the worthies; and, even though not wise, becomes the corrector of the wise men.
“To do nothing is the hardest job of all. And it would take every ounce of energy that you have. To be impartial is not natural, not human. People will always want you to smile or agree or frown and the minute you do you will have declared a position, a point of view. And that is the one thing as sovereign that you are not entitled to do.”
Although this is a particularly difficult passage, a few points could still be drawn. It is first important to understand the premise that the sovereign or ruler has unlimited political power. Furthermore, if the premise that the political or ministerial class would seek power is true, then they could certainly seek to “tap” into this vast power to advance their own sectional interest by trying to win the favour of the sovereign.
To prevent the sovereign from becoming a pawn to the political schemes and interest of the political class, his own political interests must be concealed. The Sovereign must be devoid of all individual will or affection, he or she must not become a factor in politics but be above it by simply mechanically enforcing the standards or law already set in place. Then will the ministers seek meritorious deeds and the good of the nation rather than their own interest, especially if their performance will be evaluated by such impartial standards devoid of all political interest. They will then do their duty in accordance to the prescribed laws rather than advance their own power or clique’s interest. Thus the Chinese Legalist sovereign directs the minister’s interest towards the good of the nation by (1) monopolising all power, and (2) distributing them according to rigid laws. Any attempt by the ministers to seek and acquire more power is disarmed by virtue of the fact that the sovereign monopolises it and the fact that it can only be given according to these rules. Therefore the ministers will seek to conform his behaviour to these laws rather than direct his efforts to acquiring power which has been strictly bound to these legal forms. The ideal conceived here is that the sovereign in effect doesn’t govern or rule the commonwealth, all he does in fact is to simply distribute the power so to do and it is the ministers who do the actual ruling over the commonwealth.
In some paradoxical sense, the omnipotence of the sovereign is not meant to be exercised, it exists merely to uphold a system of laws to check the interest and power of the political class. However in order for the sovereign to effectively check the interest and power of the political class, the sovereign himself must be devoid of all political interest, lest the sovereign becomes a mere factor in politics and loses his own power. This is known in Chinese philosophy as the paradox of the “entrapped sovereign”, a sovereign who can only remain omnipotent and retain his or her power by precisely not exercising it.
How does the British Monarchy and Political System Compare to the Chinese Legalist Ideal?
Although the British polity arose from a very different historical context, not forgetting the fact that the Chinese Legalist philosophy was framed in a very different time (all the way in 4th century BC!), certain core principles could still be drawn from Chinese Legalist and find surprising realisation in the British political order.
Now it has to be remembered that legally the British Queen actually retains extensive powers. She can veto any legislation passed by the Lords and the Commons, the office of Prime Minister is not a legal office but a sovereign appointment. In theory legally she can simply choose anyone she likes to be Prime Minister. As such the Queen actually possesses a vast reservior of political power known as the “royal prerogative”.
However these are powers she has simply chosen not to exercise on her own volition. Over the centuries certain “rules” have arisen which governs the monarch’s exercise of his or her powers known as “constitutional conventions”. For example, the Queen gives her assent to bills passed by both Houses of Parliament, the Queen will appoint as Prime Minister the person most likely to command the confidence of the House of Commons, etc. The analogy to the scheme outlined by the Chinese Legalists are clear: the Sovereign possesses vast political power, but it is exercised according to impartial rules and procedures. The Crown serves as a check against the formation of a political class which would become a sectional powerful ruler class in itself, insisting that they rule and make their decisions based on the laws and standards which has been set in place by the Crown. If they tried anything funny or radical, the Queen can always simply dismiss the Prime Minister or discontinue a session of Parliament or simply refuse her assent to bills.
As such the Crown’s Ministers can turn to their proper business of doing politics for the nation’s interest rather than as a means of accumulating or seizing more power for themselves, since those powers are bound to conventions and laws. The Queen herself, devoid of all political interest, does not become a factor, pawn or object of political dispute or discourse, but exists as the upholder of the apolitical preconditions of all political activity, as well as its delimiter.
The British Monarchy and Chinese Legalism as Adapted to a Modern Democracy
As I have explained in another post, there is a distinction between a republic and a democracy. Briefly, a republic is a system where the people select “representatives” who themselves will decide the politics of the nation. The people as such do not directly determine the principles or policies of the commonwealth but merely select a representative elite, based on their good character or virtues, who will make all the political decisions. In a democracy on the other hand the people can directly decide the principles or policies of the commonwealth via referendums and the politicians exists more like functionaries carrying out the wishes of the people after the fact rather than exercising their own judgement or wisdom.
Given the hostility of the Chinese Legalists against an entrenched class of political elite, they would be completely opposed to any form of republican government. However the doctrine of the Queen as herself devoid of any political interest, desires, or wants is particularly suited to be adapted to a modern democratic system. She is merely a servant of the People and exists merely to mechanically enact their Will and Decisions after the fact. The Crown upholds the apolitical system or procedures whereby the people can express their will and their desires, and in that sense she is the foundation and precondition for the constitution of the commonwealth of a common people. Yet while under the Chinese Legalist scheme her vast reservoir of power puts the political class in their place and prevents them from acting against the sovereign’s interest by seeking to accumulate power or manipulate the sovereign, under a modern democratic scheme her power prevents the political elite from acting against the expressed wishes of the people itself. Thus the Crown devoid of its own political interest upholds the laws and conventions of the land, including those which protects a people against a political elite.
(Edit: See my post here about the logic of modern direct democracies.)
Conclusion: The Crown, the Civil Service, the Judiciary and the other Apolitical Institutions and Conventions
One of the fundamental premises of Chinese Legalist philosophy is that a large complex commonwealth cannot be managed by a singular Sovereign. The Sovereign as such is reliant on a swarm of public servants to manage a large and complex commonwealth. However it remains vital that there must exist a distinction between her “political” servants and her “civil servants”, quite literally. Both of them serve the “Crown”, however political activity must be confined only to the political arm, i.e. parliament, and cannot be allowed to infect the other institutions and bodies of the state. Otherwise the clashes and sectional disputes of the political will spread to the other parts and hamper their proper functioning.
Can laws be impartially enforced when judges become political activists? Can administration continue to function coherently when they become a political power bloc able to resist the political arm? If the battle or fight for political power and influence is not contained in parliament but spreads to the civil service and the judiciary, the entire state will simply become a street brawl enlarged.
This is why while banter and jeers are acceptable in the House of Commons, the convention of the civil service is discretion, objectivity and impartiality. They do not engage in political activity themselves, but exist in the background to enact their decisions after the fact. The judiciary and the courts do not make the law, they cannot engage in political activism, they exist merely to enforce it justly after the fact. The political can only be effective if they are backed by an impartial civil service and judiciary who will enforce the decisions of whoever is in power, the civil service and judiciary can only be legitimate only when they are not seen as political actors themselves.
Sometimes the Crown has been criticised as doing nothing while her country falls to pieces. They have praised politicians (e.g. Nigel Farage) as doing all the work while she sits around doing nothing and expressing no interest in politics. What these people who wants a Napoleon forget is that while Nigel Farage’s work is necessary and deserves merit, it is the civil service who has to make it happen. He is not going to be the one negotiating the trade deals, determining their terms, calculating the complex economic and political relations with Europe and the world. He will not be the one resolving the massive legal and technical problems of unentangling UK laws from EU laws. Swarms of apolitical civil servants are needed to give effect to democratic decisions and political decrees after the fact, and it is a testimony to the strength and conventions of British institutions that even though most of them were for remain, they will still do their duty and make Brexit happen. Some of them are even looking forward to the challenge. However nobody will ever notice them or their efforts, and as well they should not. (See this insightful article here on the British Civil Service and Brexit.)
The Crown is a reminder that the coherence and functioning of the commonwealth is dependent upon the proper ordering and distribution of functions and roles to each part. Parliament does politics, the Courts enforce the law, and the Civil Service carries out their wishes, the Crown is at the heart which holds the entire system together, and it can only do so precisely because it does not engage in politics, has no political interest, but impartially enforces the conventions and laws necessary for the functioning of the whole.
In a time when apolitical institutions are becoming politicised and consumed by partisan spirit, we should cling unto whatever apolitical conventions and institutions are left, and the monarchy remains a par excellence of this, not as a political force, but as the focus of the sense of apolitical duty and service one gives to one’s nation, regardless of one’s personal political conviction; the sense that one must know one’s place in the body politic, and that one is to serve the whole and not lord over them. The Queen remains as ever the head of the apolitical foundation of the nation which exists anterior to political activity, simply doing her prescribed duty and role quietly in the background away from the political heat, maintaining the public conventions and customs of the nation without which there would be no commonwealth.
Without these apolitical institutions, the politicising of everything will merely bring about chaos and disorder to the whole of the commonwealth.