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Law and the State

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  • E Bruce Brooks
    To: CGC Cc: WSW, Synoptic On: Law and the State From: Bruce I had previously mentioned several early Chinese views of the relation between law and the state.
    Message 1 of 1 , Apr 20, 2009
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      To: CGC
      Cc: WSW, Synoptic
      On: Law and the State
      From: Bruce

      I had previously mentioned several early Chinese views of the relation
      between law and the state. And I can't help being reminded that the problem
      facing Judas Maccabaeus, Jesus of Galilee, and a number of other reform
      movement leaders, was how the Jewish law and the Israelitish state did, or
      should, interact. Hence this note.


      Much of the literature on early Chinese views of law and the state,
      sometimes but not necessarily in combination, is contained in the repertoire
      of now-canonical texts called Shu, "Documents." These consist of two
      subgroups, a set of 28 texts associated with one Fu Shvng at the beginning
      of Han, and orthodox in Han scholarship for the next four centuries, and a
      second set purporting to include these plus many more, the socalled gu-wvn
      "old script" Shu (from the claim that a pre-Imperial copy of them, in the
      old and pre-Imperial form of the script, had been retrieved from the wall of
      Confucius's house). The present canonical Shu consist of Fu Shvng's 28 (in
      the jin-wvn or "new" script), plus the old-script versions of the others,
      for a total (as usually enumerated) of 58. This much everybody knows, or can
      easily discover.

      [None of these documents is anywhere near as old as it purports to be: they
      are all, at earliest, from the 04th and 03rd centuries. But they are of
      historical importance as testifying to theories which were current in those

      Within the double corpus of Shu, Yau Ji-hvng, Yen Rwo-jyw, and others proved
      centuries ago that the "gu-wvn" Shu were forgeries of the 3rd century. That
      is, much later than the origin point of the "jin-wvn" or modern-script Shu.


      The HK concordance to the Shu includes all 58 canonical Shu, without
      indication of which are the jin-wvn 28 (the Fu Shvng texts) and which are
      the others. This would appear to be the most recent, most learned, and most
      authoritative view of the matter, computerized and thus doubly definitive.
      Accordingly, it would only be a complete idiot, a heedless witling, who
      would sit down with the concordance, for each character mark which citations
      are from the "old-script" Shu, adjust the occurrence totals accordingly, and
      mark those characters which wind up with NO occurrences in the corpus; that
      is, the words which Fu Shvng's core 28 Shu do not in fact employ.

      But if some idiot did in fact undertake that enterprise, what would emerge?

      One thing that emerges is that among the terms which simply drop out of the
      Shu vocabulary are those which refer to interior mental states tending to
      produce spontaneous good order in society.

      Analects 2:3 famously rejects punishments as a means of bringing order to
      society (the previous Theory 1), and instead recommends exemplary virtue on
      the part of the ruler (the previous Theory 2, and for convenience we may now
      call it Theory 2A) - but with the added information that the mechanism that
      makes the people respond in a way that converts the ruler's example into
      social order is the possession by the people of chr3 - a sense of shame. We
      may call it Theory 2B. 2B is not at odds with 2A, it just fills in the
      blanks a little, showing just how it can be that the ruler's individual
      example produces general social order.

      Chr "sense of shame" is one of the words that drop out of the Shu vocabulary
      if we eliminate the gu-wvn forgeries from the corpus.

      In sum, the original Shu articulated a Theory 2A view of social life, and it
      was (doubtless among other things) the concern of the later forged Shu to
      supplement that view in a Theory 2B direction.

      LY 12-13 and 2, the set of Analects chapters written just before and just
      after the year 0320, take what may loosely be called a Mencian position on
      these political theory questions. That position may be seen further
      developed in the 03c writings of the subsequent Mencian school; it brings
      the "human nature" issue to its most familiar decision point. They argue, in
      effect, for a Theory 2B version of social theory. Thus, the 2B idea was
      itself current at the time, or not long after the time, when the Theory 2A
      Shu were in fact written. Then there might indeed have been a second set of
      Shu, written in the very late 04c or the early to mid 03c, which updated the
      previous Shu in this Mencian or Theory 2B sense. What the later forged Shu
      then do, it would seem is to retrospectively supply that possibility, one
      which seems not to have been taken up at the time when it might have been,
      but which had become all the more attractive at a time when Mencian
      doctrines, so far from being somewhat underground (as was the case
      throughout Han) were beginning to be themselves respected, and as it were
      near-canonical themselves.


      This Chinese situation is an entirely secular one; at no point does it
      appeal to any supernatural entity or agency to validate a concept, or
      explain the working of a particular theory of social order. Questions of
      social order are addressed directly, in social and human terms. But in a
      merely typological sense, some might be inclined to see in Theory 2B not
      only an interiorization of social virtues (the invention of conscience, one
      might call it), but a reduction of social order to one primary phenomenon,
      which is then asserted to be both universally available and always
      sufficient to produce the desired state of society. If the populace (for
      example) have a sense of shame, that is, a spontaneous sense of inner
      ethical motivation, an inner disinclination not to do certain things which
      are against social order, then the whole mechanism of the law (which defines
      and punishes those unsocial things) is not only superfluous, but actually


      It is at about that point in the argument that I, for one, get a certain
      resonance with the position of the Historical Jesus on questions of law. Not
      to try to get God out of Jesus Theory, since that would be to make Jesus
      Theory unreal and inoperative, but with due caution we can perhaps still say
      that for the Historical Jesus (as known in the earliest extant documents),
      the law by itself, in the greatly elaborated form it had reached in his
      time, not only would not do the job, but actually hindered people from doing
      the job themselves. A return to simple essentials was thus necessary, and it
      was Jesus's function to locate, define, and propagate those essentials. Just
      so did the middle Analects people find law (as it worked in their time) not
      only insufficient, but undesirable. For Jesus, this stance was construed by
      the authorities as opposition to the law, but it seems more precisely to
      have been an attempt to revitalize the law by returning it to its perceived
      basics. And as it happens, those basics were not externally applied, either
      by God or the state or the occupation forces which in Jesus's time were
      standing in the place of the state. They were instead internally generated,
      and had only to be cultivated to accomplish all that the law had claimed to

      Let me at once add that I do not have in the works a book entitled Jesus,
      The 2B Mediterranean Peasant - for one thing, Jesus never saw the sea, and
      for another, he seems to have been of artisan rather than agrarian stock.
      Nor is "2B" anything but a perhaps helpful indicator. I merely suggest that
      the indicator may perhaps be helpful.


      [E Bruce Brooks
      Warring States Project
      University of Massachusetts at Amherst]
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