other human beings with justice and fairness; rulers are to make the welfare of their people their principal concern. When rulers or a dynasty fail to rule in this manner, Heaven removes its mandate and bestows it on another. Is “Heaven,” then, not the Chinese name for the big Other? In this sense, is not the rule of the Communist Party legitimized by the “Mandate of Heaven,” obliging the Communists to rule in a way that makes the welfare of their people their principal concern?13
Most troubling to Confucius was his perception that the political institutions of his day had completely broken down. He attributed this collapse to the fact that those who wielded power, as well as those who occupied subordinate positions, did so by making claim to titles of which they were not worthy. When asked about the principles of good government, Confucius is reported to have replied: “Good government consists in the ruler being a ruler, the minister a minister, the father a father, and the son a son.” In Europe, we call this a corporatist vision: society is like a body where each individual has to stay in his proper place and play his particular role. This is the very opposite of democracy: in democracy, nobody is constrained to stay in his or her particular place, everybody has the right to participate in universal affairs, to have her say in deliberations about the direction of society. No wonder, then, that Confucius’s description of the disorder he sees in society around him—“Rulers do not rule and subjects do not serve”—provides a good description of a really democratic society, in which the united subjects rule and the nominal rulers serve them.
Confucius proposes here a kind of proto-Althusserian theory of ideological interpellation: the ideological “big Other” (Tradition), embodied in its apparatuses (rituals), interpellates individuals, and it is up to the individual to live and act in accordance with the title that makes him what he is. If I claim for myself a title and attempt to participate in the various hierarchical relationships to which I would be entitled by virtue of that title, then I should live up to the meaning of the title. Confucius’s analysis of the lack of connection between things and their names and the need to correct such circumstances is usually referred to as his teaching on zhengming, the “rectification of names” (this name is itself a symptomatic misnomer: what needs to be rectified are the acts—which should be made to correspond to their names):
If language is not correct, then what is said is not what is meant; if what is said is not what is meant, then what must be done remains undone; if this remains undone, morals and art will deteriorate; if justice goes astray, people will stand about in helpless confusion. Hence there must be no arbitrariness in what is said. This matters above everything.14
Confucius, who always calls for the respect of tradition, rituals, and politeness, here undermines the very thing he defends. Are not all good manners based on the fact that “what is said is not what is meant”? When, at a table, I ask my colleague “Can you please pass the salt?” I do not say what I mean. I ask him if he can do it, but what I really mean is that he simply should do it. If my colleague wanted to be really brutal, he would answer with “Yes, I can,” and then ignore the request. So, when Confucius writes: “Look at nothing in defiance of ritual, listen to nothing in defiance of ritual, speak of nothing in defiance of ritual, never stir hand or foot in defiance of ritual,”15 he is asking us precisely to “say what we don’t mean”: rituals are to be followed, not understood; when we obey them, we repeat formulae whose true meaning is always obscure to us.
What the “Legalists” did was to drop the very coordinates of such a perception of the situation: for the Confucians, the land was in chaos because ancient traditions were not being obeyed, and states such as Qin with their centralized-military organization which ignored the old customs were perceived as the embodiment of what was wrong. However, in contrast to his teacher Xunzi who regarded nations like Qin as a threat to peace, Han Fei “proposed the unthinkable, that maybe the way of the Qin government was not an anomaly to be addressed, but a practice to be emulated.”16 The solution resided in what appeared as the problem: the true cause of the troubles was not the abandonment of old traditions, but these traditions themselves which daily demonstrated their inability to serve as guiding principles of social life—as Hegel put it in the “Foreword” to his Phenomenology of Spirit, the standard by means of which we measure the situation and establish that it is problematic is itself part of the problem and should be abandoned. Han Fei applied the same logic to the fact that most men are evil by nature, not ready to act for the common Good: instead of bemoaning it, he saw human evil as an opportunity for state power, as something that a power enlightened by the right theory (a theory which describes things the way they really are, “beyond good and evil”) could steer by applying to it the appropriate mechanism: “Where Xunzi saw an unfortunate observation, that men were evil by nature, Han Fei saw a challenge for the institution of stern laws to control this nature and use it to the benefit of the state.”17
One of the great achievements of contemporary Leftist political theory (Althusser, Balibar, Negri, and so forth) has been the rehabilitation of Machiavelli, to save him from the standard “Machiavellian” reading. Since the Legalists are often presented as ur-Machiavellians, one should do the same with them, extricating a radical-emancipatory kernel from their predominant image as proto-“totalitarians.” A quick glance at the three central premises of the Legalist doctrine makes this kernel clear:
“Fa”: law or principle. The code of law must be clearly written and made public. All people under the ruler are equal before the law. Laws should reward those who obey them and punish accordingly those who dare to break them. The system of law runs the state, rather than the ruler.—These are unambiguous trademarks of anti-feudal egalitarianism: laws must be public, known to everyone; all are equal in the eyes of the law; the legal system stands even higher than the ruler.
“Shu”: tactic or art. Special tactics and “secrets” are to be employed by the ruler to make sure others do not take over control of the state; especially important is that no one should fathom the ruler’s motivations, and thus no one can know what form of behavior might help him get ahead, except for following the laws.—This “Machiavellian” point also has an egalitarian-emancipatory core: if the ruler’s motivations are unknown, all that remains are the laws themselves.
“Shi”: legitimacy, power or charisma. It is the position of the ruler, not the ruler himself, that holds the power. Therefore, analysis of the trends, the context, and the facts are essential for a real ruler . . . Is this not the first version of the insight, formulated by great European modern thinkers from Pascal to Marx, that people do not treat a person as a king because he is a king, but rather that this person is a king because he is treated as one? Charisma is the “performative” result of symbolic social practices, not a natural (or spiritual) property of the person who exerts it.18
In (theory and) practice, these three principles were, of course, given a “totalitarian” twist: a ruler had to have at his disposal an excessive number of laws which, although each of them was in itself public, clear and unambiguous, partially contradicted each other. Within such a complex framework of laws, where submission to one law readily brings one into conflict with another, a mere accusation will find almost anyone of any station in violation of something, with their innocence difficult if not impossible to prove. This enables the ruler’s agents to practice “shu,” the tactic or art of choosing which law to enforce in a specific situation: power is enacted not only through the prosecution of the law, but also in the selection of which law to enforce, and by the absence or cessation of enforcement due to some other contravening law. Such a selective enforcement of laws ultimately occurred at the pleasure of the ruler: in this way the mystery of the Emperor’s pleasure was communicated to the masses. The lesson is totally Lacanian: it is in the inconsistency of the Other (the system of Laws), in the contingency that dwells in its very heart, that the Other’s impenetrable desire, as well as its jouissance, are located.
One should note here a thing unthinkable for our Western tradition: the two opposed theories, Confucianism and Legalism, share a deeply materialist premise.
