The debate between smug elites claiming the masses cannot govern themselves and proponents of democracy never ends. Even in the U.S., where people have been congratulating themselves on having the world’s best government ever since colonial days, it rages on, with the elite seemingly more vociferous in defense of its greed as the evidence of its shortsightedness grows…and that in a culture that claims to be the fount of democratic thinking. The major contemporary ideological alternative to Western democratic thought is the land of bureaucracy, China, where top-down control, often intensely repressive, remains as solidly entrenched as in Qin Shi Huangdi’s time. But for a brief moment, more than two millennia ago, under Han Xiaowendi, who tried to reform governance and set China on what might have been the path of leading the world toward democracy, democratic shoots flourished. If the rule of law had taken hold in the world’s largest country 15 centuries before Magna Carta, how different human history might have been!
Punish the Guilty, Not the Innocent. Repression, so convenient and profitable, is almost always irresistible to the powerful. Even in the aftermath of the Han conquest of Qin, the idea of reforming governance by creating a system of justice that would recognize individual rights, was resisted by the ruling elite even to the point of fighting back against their own emperor.
In the twelfth month the emperor announced: Laws serve to insure the justness of rule, for they restrain violence and guide men of good intention. But at present when a man has been found guilty of violating the law, his parents, his wife and children, and the other members of his family, though they are guilty of no offence, are brought under accusation as well and even forced to become slave labourers. I find this practice utterly unacceptable. The officials concerned with such affairs all replied, “The people are incapable of governing themselves, and therefore we must have laws to restrain them…. The emperor said, “It is my understanding that if the laws are just, the people will be obedient, and if the punishments are meet, the people will comply. Moreover, it is the duty of the officials to shepherd the people and lead them into good. If the officials, having proved themselves incapable of such leadership, should in addition punish te people in the name of laws which are unjust, they would become on the contrary the injurers of the people and the doers of violence themselves. How then could violence be restrained?” [Sima Qian, Records of the Grand Historian [Tr Burton Watson] Vol. 1, 290-1; Shi Ji Ch. 10, 419-210.]
十二月，上曰：「法者，治之正也，所以禁暴而率善人也。今犯法已論，而使毋罪 之父母妻子同產坐之，及為收帑，朕甚不取。…有司皆曰：「民不能自治，故 為法以禁之。…上曰：「朕 聞法正則民愨，罪當則民從。且夫牧民而導之善者，吏也。其既不能導，又以不正之法 罪之，是反害於民為暴者也。何以禁之？朕未見其便，其孰計之。[Shi Ji on Project Gutenburg.]
Curiously, the same elitist non sequitor that is used today by powerful people who want to oppress everyone else is used here: a call for just laws is dismissed by an irrelevant claim that “the people cannot govern themselves” [
民不能自治 min bu neng zi zhi]. Whether or not the masses can govern themselves is completely distinct from the issue of applying the law fairly, convicting the guilty and protecting the innocent. Emperor Xiaowen was not calling for chaos; quite the contrary: he was proposing that eliciting obedience through fairness constituted a more effective means of governing than arbitrary harshness (which of course facilitated all manner of elite corruption at the expense of future instability). More, while Emperor Xiaowen was far from advocating real democracy here, his attack on arbitrary rule, as the court officials evidently realized, cracked the door to the real rule of law, a system that would apply not just to the masses but to the rulers as well–a principle that even today is headline news when observed. Indeed, he did everything but explicitly justify revolt against oppression, an incendiary statement that Sima Qian, courageous a historian as he was, might not have dared to quote decades later when “top-down management” was once again all the vogue. It would be fascinating to know what ?more Emperor Xiaowen may really have said…
By the time of the official dynastic history, this reform was given a mere eight characters [Han Shu, Ch. 4, 110]. Was it judged unimportant or too hot too handle?
No One Is Above Criticism. Xiaowen’s next step was more fundamental, asserting that no one was above criticism, a principle that constitutes the threshold between good and bad governance.
The emperor announced: When the dynasties of ancient times ruled the empire, they set up in their courts the “flags for advancing good” and the “boards for recording criticisms.” In this way they were able to carry out their rule successfully and to invite criticisms of their policies. The present laws, however, recognize a category of offences known as “criticism and evil talk”, and because the officials are afraid of being accused of these they do not dare to express their feelings in full. The emperor accordingly has no way to learn of his errors. Under such circumstances, how can I expect to attract worthy men from distant regions? Let the laws pertaining to these offences be abolished. [Watson, 296.]
上曰：「古之治天下，朝有進善之旌，誹謗之木，所以通治道而來諫者。今法有誹 謗妖言之罪，是使眾臣不敢盡情，而上無由聞過失也。將何以來遠方之賢良？其除之。[Shi Ji, 424.]
It is sobering that some three to four thousand years after these simple methods for obtaining feedback from the populace were set up, neither in China nor most of the rest of the world are politicians sufficiently mature to tolerate criticism, which most of them still equate to “evil talk.”
Although the conservative forces of repression won more of this argument than they lost throughout the subsequent course of Chinese history, official Chinese history did at least retain the full quote from Sima Qian. Both the official dynastic history and Sima Guang’s court-sponsored history of China a millenium later contain virtually the identical quote [Han shu, Vol. 4, 118; ZJTJ, Vol. 1, 453], suggesting real respect for ideas a dictator might find dangerous.
Accepting Responsibility. It may seem the height of hypocrisy for a leader to assert full power while placing responsibility for mistakes on his subordinates, but that system was apparently formally established in early China. Thirteen years into his reign, Emperor Xiaowen stated:
I have heard that disaster arises naturally in response to the hatreds of the ruler, while good fortune is brought about by his virtue; it is thus that the way of Heaven operates. Therefore all the faults of my officials must have their origin in me. Now the post of private invocator is intended to transfer the ruler’s errors to his subordinates, which is only to make my lack of virtue clearer than ever. I find such a practice wholly unacceptable. Let the post be abolished. [Watson, 299-300.]
蓋聞天道禍自怨起而福繇德興。百官之非，宜由朕躬。今祕祝 之官移過於下，以彰吾之不德，朕甚不取。其除之。[Shi Ji, 427; ZJTJ 495.]
Han shu  notes the abolition without any reference to the all-important principle of leadership responsibility; Sima Guang’s Zizhitongjian restores the Shi ji‘s text. Was the principle less “politically incorrect” in the Song?
The Ruler’s Duty Is to Set the Moral Tone. A four-character reference in Han shu states that “mutilating punishments were abolished” . One can almost hear a stern FBI agent intoning, “The facts, ma’am, just the facts.” Those facts may or may not include the beautiful story told by Sima Qian of Tiying, who went to the capital to fight for her father, who faced a life-ruining mutilation as punishment for a misdeed, but far more significant than the facts is the justification the emperor gave for abolishing such cruel justice:
If the leadership and guidance of the rule are not sincere the people in their ignorance will fall into crime [Watson, 300-301]
夫馴道不純而愚民陷焉 [Shi Ji 427]
Xiaowen here enunciates a vision of leadership that could, if honored, have promoted China–at a time when the best the West had to offer was a collapsing Roman* republic–to global leadership in the invention of modern democracy, a far more honorable accomplishment than, for example, the wars of expansion against northern tribes conducted by Emperor Wu or the path-breaking 16th century voyages of Cheng Ho along the coast of the Indian ocean in which modern Chinese politicians take so much pride.
The authors of the official dynastic history may have felt bluntly pointing out the issue of leadership responsibility for popular misbehavior (N.B.: reference is made to a legal text) would be considered politically incorrect by their more control-oriented (not to say, “abusive”) rulers, an understandable attitude given that Sima Qian himself suffered, for his historical honesty, a mutilating punishment (though perhaps not one on the short list abolished by Emperor Xiaowen). The principle that the moral qualities of the leader flow down to society and that the leader therefore has the duty to conduct himself properly remains under severe attack even in the most “developed” of modern democracies, so it is no surprise that Xiaowen’s insight and humility were quickly swept under the rug some 14 centuries before Magna Carta.
Xiaowen’s rule is, in its implications, a brilliant light in the course of Chinese history, albeit quickly darkened by leaders more interested in following Emperor Wu’s expansionist policy. Punishing the guilty while protecting the innocent, encouraging criticism of officials, leaders taking responsibility for their behavior, and focusing the justice system on eliciting good behavior already constitute an impressive record of reform. Add two other policies evidently characterizing Xiaowen’s reign–an economic policy designed to promote the welfare of “the man in the rice paddy” and a foreign policy based on good neighborliness–and one has an impressive set of defenses against abuse of power and a solid foundation for the invention of democracy (which rests on the principle that regardless of how honorable the rulers are, the attitude of the people must, to preserve good governance, be at a minimum “trust but verify.” The foundation of good governance that Emperor Xiaowen began constructing could have changed history.
* In defense of the Romans, however, see this brief comment.