Ritualism and the Ethos of Chinese Legal Order: presentation at Penn State Law

“Ritualism and the Ethos of Chinese Legal Order,” presented at International  Conference: New  International  Trade  and  Investment  Rules between  Globalization  and  Anti-­Globalization, Penn State University, University Park, PA (April 22, 2017)

 

 

倬彼雲漢 昭回于天

 

王曰於乎 何辜今之人

 

天降喪亂 饑饉薦臻

 

靡神不舉 靡愛斯牲

 

圭璧既卒 寧莫我聽

 

Majestic is that Milky Way, brightly afloat in the firmament of the heaven.

 

The King said, O! What crime is chargeable on us now?

 

That Heaven thus sends down death and disorder, unrelenting famine and hunger grapple us!

 

No spirit would dishonor, no living sacrifice would spare.

 

Exhausted are the sacrificial vessels, how is it that Heaven heareth not my prayers?

 

— Book of Odes: Major Court Hymns, Decade of Dang

 

 

In this presentation I discuss ritualism, or the role of formal rituals in the historical development of Chinese legal order. In this project I would like to examine state rituals as a modality of mytho-political speech. “Mytho-political speech” refers to political discourse that possess certain formal characters of mythical speech. Note that mytho-political speech not only articulates itself in explicit voices and writings, but but also in its rituals, its ceremonies, its liturgies and sacraments. The mythical speech component can be understood in the Burkean sense, that the realm of myths and theology is neither beyond or prior to language, but within the logos of language. See, Kenneth Burke, The Rhetoric of Religion: Studies in Logology (Boston: Beacon Press, 1961).

The term “ritualism” in this presentation was originally conceived in Chinese as yinsi-sheji (禋祀社稷) – a compound vocabulary joining two classical Chinese concepts: yinsi (禋祀, or burned sacrifice) and sheji (社稷, or alters of soil and grain). The literal translation for yinsi is “burnt sacrifice.”  Yinsi traditionally refers to state-organized sacrifices that were performed first by the feudal rulers during the Ancient Period (c.1600 BCE – 221 BCE), and later by the emperor during the Imperial Period (221 BCE – 1915 CE). The last imperial yinsi ceremony was performed in 1915 by the self-declared “Hongxian Emperor” (Yuan Shikai) at Peking’s Temple of Heaven. More generally, the concept refers to a specific form of Heaven worship involving the complete destruction of offerings via burning. Heaven worship has been the only recognized state religion in pre-modern China, and yinsi was performed exclusively by the emperor during major state ceremonies.

Sheji is an ancient political-theological expression which appeared no later than the Warring States period (476 BCE – 221 BCE), and remains in common use in China as a term for the state.  The first character “she” (社) in sheji refers to the Altar of the Land; and the second character “ji” signifies the Altar of the Grain. The two altars had to be built adjacent to the ancestral temple of the ruling clan, and were used for solemn state rites praying for fecund land and good harvest. The two characters making up the word sheji explicitly channel the two-fold significations of the state. That the concept of the state is both materially grounded vis-à-vis necessities and labor, and also theologically maintained through faith and ritual. Thus, the constitutive order of the state understood as yinsi-sheji deals with those rituals sanctioned by the sovereign power and are performed in public contexts.

In theology, ecclesia (ἐκκλησία, “ministry”) is used to describe local ministries as well as in broader sense all members of a faith organized under a common religious institution. Here I would like to borrow the theological term ecclesia precisely because a full-fledged constitutional society functions similarly to religious institutions – both requires the inter-dependent presence of formal doctrines and practicing believers. Consider the following example: imagine you are trying to establish a new local Zen Buddhist Temple in your local community, the temple you build must first adopt the basic form of a Buddhist institution — it must ensure its physical design, core missions statement, teachings, and rituals practices adhere to the commonly recognized premises of Zen Buddhism, for a failure to do so would result in the Zen monastery being seen as illegitimate by its peers. Finally, even when the temple is designed and organized in ways that perfectly conforms to Zen Buddhist doctrines, it is not a functional Temple without any visiting patrons and attending abbots. Similarly, secular institutions, however perfectly designed, cannot be considered a fully functional without a corresponding community that actually believes and practices its legitimacy. The ecclesia or legal order of a polity thus represents the integration of constitutional doxa with societal pistis.

Indeed, organized religious community and secular rule-of-law society are organized around similar operating principles. Their proper functioning is dependent on two conditions: The first is the “good faith” of the commons – that personal ego and habits are restrained under a self-referencing set of collective core values and beliefs. The second condition is the repetition of rituals – that those shared core values maintained via enforcing laws that reflect the material condition and pressing needs of the community. The authority of both the ecclesiastical body and the constitutional state are bound by their laws precisely because the laws themselves reflect the set of basic principles that the authority organizes itself upon.

Now let us look at the classical Chinese institution of Sheji again. It is originally proscribed in the classical Confucian text Li Ji, or The Book of Rites  — 《禮·祭義》:「建國之神位, 右社稷而左宗廟」《周礼·小宗伯》:「掌建国之神位,右社稷, 左宗」庙。” For English translation of this text, see Confucius, trans. James Legge, Chu Zhai, and Winberg Chai, Li chi: Book of rites: An encyclopedia of ancient ceremonial usages, religious creeds, and social institutions (New Hyde Park, N.Y: University Books, 1967). However, when closely examine its content, the Book or Rites is far more than simply a “religious” text in a narrow sense. Consider the following passages:

司寇正刑明辟以聽獄訟  必三刺  有旨無簡不聽  附從輕  赦從重

“The Minister of Crime shall made the laws clear and punishment appropriate when hearing criminal cases. Three direct evidences are necessary for conviction. No hearing shall be granted for those charges without written summary of evidence. More lenient punishments are appropriate for crimes with mitigating factors. More severe punishments are appropriate for crimes with aggravating factors.”

– Book of RitesInstitutions of the King《禮記· 王制》

and…

治官之屬:大宰,卿一人; 小宰,中大夫二人; 宰夫,下大夫四人

上士八人,中士十有六人,旅下士三十有二人;府六人,史十有二人,胥十有二人,徒百有二十人。

Governing ministers shall be arranged as follows: There shall be one Prime Minister in the rank of Qing; two vice Prime Ministers in the rank of Zhong-Dafu, four Assistant Ministers in the rank of Xia-Dafu;

There shall be eight Senior Deputies, six Junior Deputies, and thirty-two Assistant Junior Deputies. There shall be six Senior Managers, twelve Scribes, twelve Clerks, and one-hundred-twenty unranked servicemen.

– Book of RitesInstitutions of the King《禮記· 王制》

These passages demonstrate that the rituals proscribed in Li Ji also concurrently function as constitutional provisions and criminal codes. This unity of legal and ritual rhetoric is also reflected in historical Chinese ritual artifacts. Note the Spring and Autumn period bronze artifact, depicting a provision from the Rites of Zhou 《周禮》: “He who received foot-amputation punishment shall be re-assigned to guard the garden” (刖人使守囿) :

This ritualist conception of legal order from feudal-period China was later enshrined as a core tenant of Confucian political philosophy:

子曰:「道之以政,齊之以刑,民免而無恥;道之以德,齊之以禮,有恥且格。」

“The Master said, ‘Should one governs via political measures, and uniformity sought by punishments, the people would have no shame but driven by the need to avoid penalty.  If one instead governs via virtue, and uniformity sought by rituals, (the people) will have the sense of shame and act with conformity.’”

– The Anelects, “On Governance”

Whereas Zhou dynasty sacrificial rites are no longer recognizable in their original form, much of their rhetorical undertones remain relevant in the present political discourse. The Confucian ethic of “governs via virtue, and uniformity sought by rituals” remains a forceful framework in the present Chinese political and legal practices. Consider the iconic gate of Zhongnanhai, the seat of the current Chinese central government shown in the picture below. The gate is open, but the view of the inside is being obscured by a screen wall, or yinbi (影壁; literally “shadow wall”) with the text “Serving the People” inscribed on the wall:

This overt architecture gesture of maintaining a proper “façade” may seem inauthentic to many, but in fact is typically received as an appropriate if not virtuous ritual practice under the Confucian ethics, where the formalized “face” of individuals, communities, and institutions are privileged over their “authentic interiors”.

And with that, allow me to briefly conclude with the amusing-yet-somewhat-embarrassing example of ritual face-politics shown below:

And lastly, on a more serious note…