How should we understand the role of laws—of ordering, causality, positive law—within our modes of thought? As a starting point, we might consider Marcel Granet’s formulation—one calculated to floor a Western jurist—in summing up all he had encompassed in his classic work on China: ‘Bearing in mind’, Granet wrote, ‘that the Chinese never voluntarily submit to any constraint, not even a doctrinal one, I shall restrict myself to the observation: “Neither God Nor Law”.’footnote1 This attempt to ‘situate the most immense and most durable civilization ever known’ may help us to position Western thought as well. Granet was, of course, not implying that China lacked any notion of law: the Middle Kingdom had both administrative and penal codes.footnote2 But it never developed the broader idea of civil law, on which the West’s concept of ‘civilization’ is founded. In the Confucian tradition, a ‘civilized’ man has no need of law: he has already internalized the whole art of social etiquette. Law—in its most rustic and brutal form: the penal code—would do well enough for those barbarians incapable of attaining such sophistication.footnote3
There was a school of thought, flourishing towards the end of the era of Warring States, that attacked the hypocrisy of this ‘government by men’—i.e., by mandarins—in the name of a ‘government by law’. But when they came to power at the beginning of the First Empire these Legalists, making do with what they had, merely set about extending the vicious penal code across all aspects of social life. Confucians were brutally repressed and, in 213 BC, their books were burnt.footnote4 The Legalists’ victory was short-lived; their theories were abandoned with the overthrow of the Qin dynasty in 206 BC and thereafter they were remembered only for their cruelty and excess.
The Legalists were said to have engraved their law on the iron cauldrons in which transgressors were boiled alive—thus giving it maximum publicity, and rendering its content and sanctions immediately intelligible to all. Kafka’s In The Penal Colony portrays precisely the opposite principle: the machine inscribes the occult text into the flesh of the condemned man who, by this means alone, in the ecstasy of his final breath, understands what secret interdiction he has transgressed. Kafka’s texts are in the image of the same law—lending themselves to an endless labour of interpretation. Three comments are in order here. Firstly, the idea that the law is an enigma is typically Western; it would never have occurred to the Legalists. According to one of the school’s classics, the Shangjun-shu: ‘The people are easy to govern, for they are stupid. The law can provide for this and will function well as long as it is clear and easy to understand’.footnote5 Secondly, the notion that the human body is the site par excellence on which the law should be inscribed was one of the breaking points between the Jewish and Christian traditions, on the question of circumcision.footnote6 Thirdly, the Western mind has always been fascinated by the thought that to incarnate the law literally, as do Kafka’s condemned, could be a form of revelation.footnote7
At no point in the history of Chinese thought, not even among the Legalists, is there any concept of the law as guarantee of the rights of the individual. How are we to explain this fundamental difference between Eastern and Western thought? André Haudricourt—ethnologist, botanist, technologist and Orientalist—has argued that ‘the relationships between man and nature are infinitely more important than the shape of his skull, or the colour of his skin, in explaining his behaviour and the social history he transmits’. Haudricourt proposed a symbolic representation of these relationships: the models of gardener and shepherd, represented in Genesis by Cain and Abel. A social formation may combine these two; but it will be defined by whichever model is dominant in its relation to nature. In the pastoral societies of the Mediterranean it was the domestication of animals that predominated—Yahweh preferred the aroma of Abel’s grill to Cain’s vegetarian offerings (Genesis 4:3). Asian societies, by contrast, depended for their survival on rice or yams. Plant cultivation is an indirect, sometimes even a negative process. The gardener does not make seeds sprout by tugging at them but by giving them the best possible conditions for growth: light, humidity, soil quality, freedom from weeds and so on; it involves working with nature rather than restraining it. Restraint, on the other hand, is an essential element of animal husbandry, which relies on sticks, pens, dogs and ropes. In each culture, the dominant mode exerts its influence over the regressive one. In the West, the concept of taming nature is evident in attitudes towards plants—witness the formal French garden; or worse, the thinking behind EU agricultural directives. In China, similarly, the idea of being in harmony with nature informs the relationship between man and beast: ‘The ox has the same breath and blood as man, and its feelings must be taken into account’.footnote8 Whereas for Aristotle, ‘There is no friendship or justice possible between ox and man, any more than between slave and master’.footnote9
As Aristotle’s dictum suggests, the relationship between man and nature in any given social formation reflects that between rulers and ruled. It took sailors and fishermen to conceive government in terms of a hand on a tiller, and the dominance of the pastoral in Western religious and political discourse is widely recognized: the shepherd, the Lamb, the faithful flock, the crosier, the sceptre. Power manifests itself in the form of an order, an imperative; leaders and commanders are venerated. In the Confucian tradition, the role of political power is to guarantee the harmony necessary for all to develop their own potential, and anyone possessed of such virtue deserves to wield it: ‘He who is right is followed without giving a command. He who is not right commands without being followed.’footnote10 One can understand from this how ‘government by law’ prospered in the West, while Asia preferred ‘government by men’. The idea of applying the law does not make much sense in a garden. The good shepherd, on the other hand, is one who makes the sheep abide by his will. In Christian Europe the concept of order—social, natural or celestial—has naturally referred back to that of law—human, scientific or divine. Lawyers have had no monopoly on the subject.