Rival Confucian Rights: Left or Right Confucianism?Draft only: not for citation or quotation

without express permission

Commentators who find in Confucianism the resources which contribute to cross cultural dialogues about human rights frequently tend to be divided in their emphasis of the liberal or conservative aspects of this tradition. Some of these thinkers acknowledge the challenge of finding some kind of individuality, even autonomy, in Confucianism since an adversarial relationship between the individual and the society or government is frequently presupposed in the practice of human rights. Assuming that one of the functions of human rights is to help protect individual oppression by political authorities, individuals must not only be able to conceive of themselves as separate from the collective, but also be willing and able to assert their individual rights even if these do not harmonize with what is prescribed by the ruling party. Such individual initiatives are admittedly difficult to come by in a Confucian tradition given its emphasis on filial piety toward one’s elders which is to be extended to the relationships with others in society through ritual proprieties. Such private and public self-restraints facilitate an individual’s harmony with the collective and engender a general moral attitude which prioritizes the collective over the individual. Other thinkers, on the other hand, reject such tensions between the individual and the collective for the exercise of human rights, relegating such challenges to Western cultures with their defective theories of the self. In contrast to those who try to respond to the challenge of finding the kind of individuality in Confucianism which can stand up to the oppression of the government, these rivals celebrate the resources for harmonizing the individual and the collective which Confucianism makes available, and strive to offer a non-adversarial understanding of human rights from their tradition. In response to human rights challenges, those who pursue the kind of individuality, even autonomy, in Confucianism, I call the liberals, whilst those who stress the kind of collectivity, or harmony in Confucianism, I call the conservatives. Despite the fact that these liberal and conservative thinkers frequently travel separate and opposing paths in their appropriation of Confucianism for human rights, I wish to show that both left and right aspects, properly understood, emphasized by both groups are present in the Confucian tradition proper. Corresponding to each group’s stress of the liberal or conservative dimension in Confucianism, are also the respective negative (civil and political) and positive (social, economic and cultural) human rights that are akin to each position. If my thesis that both liberal and conservative aspects are present in Confucianism holds, then a Confucian account of human rights would entail both negative and positive rights.

To illustrate the liberal and conservative tendencies embedded in commentaries of Confucian rights, I shall discuss different commentators’ interpretations of the key concepts which are bound up with their embracing either a liberal or a conservative perspective.

Joseph Chan is a commentator who emphasizes the liberal aspects of Confucianism. He argues against conservative Confucians like Henry Rosemont, Roger Ames and Randall Peerenboom who hold that the role-based ethics in Confucianism is incompatible with a universal human rights approach which attributes human rights to “asocial” beings independent of culture and society. The conservatives would proclaim that our rights and duties stem from our social relationships, such as the five basic

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relations: father-son, husband-wife, brothers, ruler-ruled and friends. In Chan’s words, they would say that “there is no room for any duties or rights that belong to human persons simpliciter, independent of their roles.”1 Agreeing that Confucianism emphasizes role-based relationships in its view of personhood and morality, Chan nevertheless criticizes the conservatives’ restriction of Confucian ethics to roles alone. He maintains that the Confucian account prioritizes the realization of humaneness (ren, the highest Confucian virtue where love for one’s family is extended to all human beings) above human relations, calling for one to respond with love even when the other human beings are not related to one. To illustrate such nonrelational occasions for moral duties in Confucianism, Chan offers Mencius’ example where a man with ren would respond with compassion to a child who is about to fall into a well even though he is not related to the child, nor is he motivated by the expectation of being praised by onlookers.2 In addition, Chan also offers Confucius’ concept of reciprocity (shu), also known as the silver rule of not doing to others what we do not want done to us, which generality, purportedly supports his point that Confucianism does not merely restrict itself to a role-based morality, but is concerned with nonrelational moral actions too.3 In short, Chan maintains, “The Confucian community is not a community composed entirely of close personal relationships. The relationships between ruler and ruled and between strangers are not personal relationships . . . In the workplace, the market, the government, the court, and other less personal social spheres, people do not interact according to the norms of close personal relationships.”4 Consequently, these are situations which, according to Chan, rights claims are not only harmless, but are needed for individual protection. Chan’s attempt to decouple the union of rights and social roles or duties which conservative Confucians proclaim, in order to sculpt a space for non-role-bound moral actions, would be met with the conservatives’ argument that it is precisely their union of rights and social duties that offers Confucianism a better defense of rights.

Whether the liberal account which separates roles from social relations proposed by Chan, or the conservative account which unites roles and relations proposed by interpreters like Rosemont and Ames, is stronger can be assessed by considering the consistency of each view with Confucianism as a whole, and the practicality of each proposal. By consistency, I mean a theory which could not only retain its conceptual elements but maintain their coherence, as opposed to abdicating some of them and having incoherence amongst the remaining concepts. By practicality, I mean an immediate ability of implementation or the readiness with which rights can be asserted without extraneous guarantees such as government legislation.

Chan tries to disengage rights from social roles for Confucianism by appealing to the highest virtue of humaneness (ren) and asserting its priority over role relations. However, in doing so, he ignores Confucius’ teaching that ren begins in the home with filial piety toward parents and fraternal piety toward brothers, i.e., that ren begins with familial relations. As the Analects puts it,

1 Joseph Chan, “A Confucian Perspective on Human Rights for Contemporary China,” in The East Asian Challenge for Human Rights,” eds. Joanne R. Bauer and Daniel A. Bell (NY: Cambridge University Press, 1999), 217.2 Joseph Chan, “A Confucian Perspective on Human Rights for Contemporary China,” 218.3 Joseph Chan, “A Confucian Perspective on Human Rights for Contemporary China,” citing Analects 12.2 and 15.24, 218.4 Joseph Chan, “A Confucian Perspective on Human Rights for Contemporary China,” 221.

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It is a rare thing for someone who has a sense of filial and fraternal responsibility (xiaodi) to have a taste for defying authority. And it is unheard of for those who have no taste for defying authority to be keen on initiating rebellion. Exemplary persons (junzi) concentrate their efforts on the root, for the root having taken hold, the way (dao) will grow therefrom. As for filial and fraternal responsibility, it is, I suspect, the root of humaneness (ren). (1.2)5

Not only does ren begin with filial piety for one’s parents, rightly understood, it never surrenders its preference for the family and those who are closer to us. Confucius asserts, “Where exemplary persons (junzi) are earnestly committed to their parents, the people will aspire to humane conduct (ren); where they do not neglect their old friends, the people will not be indifferent to each other” (8.2, see also 13.19). Again, disagreeing with the Governor of She concerning his praise for the villager who reported his father’s theft of sheep, Confucius said, “Those who are true in my village conduct themselves differently. A father covers for his son and a son covers for his father. And being true lies in this” (13.18). It is this ability to love and respect family members that enables the junzi to love and respect those who are more removed from his personal relations, and ultimately, to love people in general. As such, Confucianism would reject the distinction between role-based relations and non-role based ones suggested by Chan. Rather, all relations are role-based in the sense that we are treating others who are unrelated to us as though they are related to us. Thus we treat them as our parents, brothers, or friends, etc. For example, think about Confucius’ remark that his relation with his student, Yan Hui, is like that of a father to a son (11.11), and this comment by the honorable Master You to Duke Ai who was thinking about levying a tax: “If the households of your people had sufficient, you could expect to have the same; but since the households do not have sufficient, how can you expect to have enough?” (12.9). This comment illustrates that the government is like one big family which is affected by the well-being of its family members (represented here by the households). That the state is just the family writ large is again evident when Confucius responded to a query regarding why he is not officially employed in government by saying that he is already doing the work of government by being filial toward his parents and friendly toward his brothers (2.21). Since all dealings with others for Confucius are based on family relationships, Chan is mistaken in thinking that there can be non-role-based or non-personal relations for Confucius, let alone the virtue of humaneness (ren) that is abstracted from role-based thinking or action. Humaneness is precisely the virtue that enables one to treat an unrelated person as if he is related, to treat the child about to fall into the well as if he is one’s relative. Consequently, Chan’s position of separating out some human relations as nonpersonal, such as, those between a government and its people, as well as co-workers, would be the source of problems rather than a solution for Confucians because it misunderstands the reliance of humaneness on personal relations. Similarly, the virtue of reciprocity (shu), or the silver rule, works on personalizing the other. Only when one can regard the other as oneself, can one refrain from doing something to the other that one does not desire for oneself.

5 Unless otherwise stated, all translations are from The Analects of Confucius: A Philosophical Translation, trans. R. Ames and H. Rosemont, Jr. (New York: Ballantine, 1998).

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Having shown that Chan’s move to separate ren from Confucian role-based morality is flawed, let us see upon what Confucian characteristics a role-based account of rights advocated by the conservatives rely, and what advantages this account might offer. Since our rootedness in human relations enables our cultivation of virtue for Confucius, it is also conceivable that our social relations could provide resources for the protection of our well being. Just as our duties toward others are bound up with our roles or relations with them, conservative Confucians could argue that human rights too are bound up with human relations. More specifically, the relation between a government and its people would be analogous to a father and his son’s relationship. Accordingly, just as a father is responsible for the care, upbringing, and moral development of his son, the government is similarly responsible for ensuring the physical well being in addition to the moral development of its people. This perspective is borne out by Confucius’ response to a query about what one should do with a large population. He asserted that they should be made prosperous, and beyond that, they should be taught (13.9). His answer illustrates that both physical and moral concerns are central to a ruler’s relationship with his people. Similarly, Confucius replied to a question about effective government by saying, “Make sure there is sufficient food to eat, sufficient arms for defense, and that the common people have confidence in their leaders” (12.7). And if any of these three objectives were to be given up, he suggests that arms be given up first and the confidence in the rulers be given up last because a people’s confidence in their rulers is what preserves the community. This illustrates that the people’s trust in their rulers is of primary significance in Confucius’ view, showing that they are not passive in the ruler-ruled relation. From these remarks about government, we can deduce that it is precisely the specific relation between the rulers and the ruled, akin to the relation between fathers and their children, that gives rise to the duties of the rulers toward the ruled and the peoples’ rights to the physical care and moral cultivation from the rulers. Additionally, it is a ruler-ruled relation, modeled on that of a father-son relation that obligates the ruled to obey the rulers. Barring a ruler and ruled relationship that is modeled upon the roles of fathers and sons, the aforementioned rights and duties might not be appropriate. For instance, such rights and duties would not pertain to two individuals residing in separate nations whose paths never cross, or to members of the same baseball team who are not related as rulers and ruled, but rather, are teammates who are equally responsible for making the team a good one.

Because Confucian roles come with definite duties which are learned in the family, how someone conducts himself in the five basic relationships affects his effectiveness in his other roles, conservative Confucians would assert. For instance, Confucius says, “Where exemplary persons (junzi) are earnestly committed to their parents, the people will aspire to humane conduct (ren); where they do not neglect their old friends, the people will not be indifferent to each other” (8.2). Thus, a ruler who is not filial toward his parents or faithful to his friends would also fail to rule well; he would fail to inspire people to be virtuous as he would fail to be paradigmatic. Since a role comes with definite duties, Confucius advises one to withdraw at times when such duties cannot be carried out well. He advises: “Do not enter a state in crisis, and do not tarry in one that is in revolt. Be known when the way prevails in the world, but remain hidden away when it does not. It is a disgrace to remain poor and without rank when the way prevails in the state; it is a disgrace to be wealthy and of noble rank when it does not” (8.13). Not only

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are the rulers encouraged to withdraw in times of corruption, but it is also acceptable for the people to remove a bad ruler. For instance, Mencius responded to King Hsuan’s question about the killing of King Chau by his minister as follows:

He who outrages the benevolence proper to his nature, is called a robber; he who outrages righteousness, is called a ruffian. The robber and ruffian we call a mere fellow. I have heard of the cutting off of the fellow Chau, but I have not heard of the putting a sovereign to death, in his case.6

In other words, playing one’s roles well is extremely significant for Confucianism. Failure of a ruler to fulfill his role is a justification for his removal from his role or authoritative position.

This discussion linking rights to social roles illustrates how social relations can illuminate rights. Linking rights to role-based relations illustrates what rights are at stake, the parties responsible for fulfilling those rights, as well as those to whom the obligations are due, i.e., the rights-bearers, not to mention the conditions which each party (rights and duties-bearers) must satisfy. In our example about ruler-ruled relations, the rulers are responsible for meeting the rights of the people to the basic necessities and conditions for achieving their moral well-being (resulting ultimately in humaneness), and the people are obligated to obey the rulers’ laws or social rituals which affect the welfare of the whole. Thus, there are conditions which must be met by the people, which, if violated (say, in criminal activities), legitimately affect their rights to the objects they are entitled. Due to such a role-based nature of rights and responsibilities, violation of rights are clear with or without explicit laws to protect them because they are moral rights, based on the moral relationships Confucians assert between people playing different roles.7 The ability to defend rights as morals rights also facilitate the immediate use of rights because they are not dependent on a well-established system of laws, but nevertheless, could be used to justify the implementation of such laws. Further, were one’s moral rights violated, it is a moral fact regardless of the victim’s or the violator’s acknowledgment. Such moral facts also make possible a third party’s criticism of rights violations and effort to restore justice.

Let us turn now to examine if this ability to defend rights as moral regardless of their legal status, open to conservative Confucians, is open too to its rivals such as Chan and Craig Ihara who separate rights from social roles. Recall that Chan is concerned to defend Confucian rights independently of social roles and thus open up an area for individual rights, making his approach liberal. I have shown that his attempt to sever humaneness from its root in social relations and argue for Confucian rights that are not role-bound is questionable. Though sharing Chan’s separation of rights from roles, Ihara differs in being a conservative because he thinks that role-based actions are sufficient for the protection of individuals without any talk of rights. Ihara is concerned to argue against the necessity of individual rights, in fact, the necessity of any rights at all, so long as people adhere to their social roles. Since Ihara is not sanguine about a positive role for

6 Mencius, The Works of Mencius, trans., James Legge (Clarendon Press, 1895), IB 8.7 For the distinction between moral and legal rights, see Brian Orend’s Basic Vocabulary and Core Concepts, where he says, “moral rights need not have legal codification for their existence and claim on our attention, nor effective legal remedies for their violation. There is no such thing as a legal right for which there is no law; but moral rights . . . can exist and be real for people regardless of whether they are recognized in law or not” (25).

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rights, separating rights from social roles, his conservatism should be distinguished from that of the conservatives (like Rosemont and Ames) who maintain a positive role for a Confucian approach to rights. Let me call Ihara’s brand of conservatism “negative conservatism” to distinguish his view from the conservative Confucians I have been discussing so far.

Arguing against Feinberg’s view that individual rights are needed to defend individuals from mistreatment, and to possess human dignity, Ihara maintains that there are Confucian solutions that do not focus on the Western notion of individuality, rationality or autonomy (25).8 Appealing to communal activities like playing baseball, basketball and dance, Ihara argues that our participation in these activities, i.e., our being parts of such larger wholes, makes us deserving of respect (24). Additionally, such communal participation also makes us equal since we are all equally capable of achieving excellence. Finally, our specific roles in larger communal wholes also entail certain role responsibilities which come with rules that ensure the community’s progress toward a common goal for Ihara. He holds that violation of rules are not the same as the violation of someone’s individual rights, thus, no rights talk need be invoked to identify and remedy such rule violations. Ultimately, it is only when communal wholes break down, when people are no longer playing their respective roles and obeying the rules, that rights need be invoked for Ihara. As he puts it,

What I have maintained is that it is possible for people to ensure rule/role compliance and to have a sense of human dignity and worth without having the concept of individual rights. In my view, individual rights are valuable when having them can improve on other impartial mechanisms geared to ensure rule/role observance, or to adjudicate conflict, or to protect persons against those, including the state, who refuse to fulfill their responsibilities. (Ihara, 28)Ihara’s position that individual rights are only useful when social relations break

down is similar to Chan’s view that rights are needed as a “fallback” position—a second use of rights for Chan in addition to their role in our nonpersonal relations. More specifically, Chan adds the appeal to rights as a fallback for those more personal relationships, those between spouses, parents and children when the natural love between them no longer exist. The similarity between Ihara and Chan in offering rights as a fallback resource is not surprising since both sever rights from social roles even though rights are frequently related to social roles in both Confucian and nonConfucian societies. Ihara differs from Chan in that beyond the personal relationships which have gone sour, Chan makes room for some form of individual rights in our nonpersonal relationships as well as to combat the conservative and paternalistic tendencies he finds in Confucianism (Chan, 225). Chan says, “It might be true that Confucianism has a high propensity to lead to paternalism because of its ethic of care and emphasis on the moral life and because of its relatively weak emphasis on individual liberty. But if this is true, it demonstrates that Confucianism has an internal need for human rights—if human rights were incorporated, it would be less likely for Confucianism to slide into paternalism”

8 Craig K. Ihara “Are Individual Rights Necessary?” in Confucian Ethics: A Comparative Study of Self, Autonomy, and Community, eds. Kwong-Loi Shun and David B. Wong (Cambridge, 2004).

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(Chan, 225). In contrast, Ihara thinks that rights talk could be damaging to community. He says, “When a group is a kind of community working toward a common goal, talk of rights is neither necessary nor appropriate. In fact, it can be deleterious” (Ihara, 27). This contrasts with Chan who asserts that there are relations in the community that are not constituted solely by close personal relationships, such as those between rulers and ruled, strangers, and relationships in the workplace. In such cases, Chan claims that “Rights talk need not be destructive of the relationships in these contexts. And ultimately, rights are important instruments for the vulnerable to protect themselves against exploitation and harm.”9 But both Chan and Ihara would agree on the appeal to rights as a last resort in dealing with families which roles or duties are not being fulfilled.

One disadvantage of relegating rights to a backup stance when things go wrong as Chan and Ihara have done is that it is not as easily implemented as the conservative position binding rights to roles. Whereas the latter can appeal to well-defined roles and duties to justify rights claims, the former requires a legal system for its rights claims to work. Without laws guaranteeing rights, there is no assurance that they can be realized for Chan and Ihara because there is no reason why they should be respected. Since role-based relations are separated from rights for them, they cannot appeal to our social relations to guarantee our rights to certain treatments. Instead, they need a separate system of laws to specify the rights people have because of their social relations to others, smuggling in a relation between rights and duties they have already severed. This contrasts with the argument of rights as moral realities that is open to the conservative approach which links rights to social roles and responsibilities. As moral realities, these rights can be appealed to even without a system of laws for implementation. They are real whether they are acknowledged, and regardless of their legal status. Note that even though this is a conservative approach, it is not open to Ihara because of his “negative” conservatism which separates rights from social roles. Both his and Chan’s approach severing rights from roles not only faces problems of reuniting these two concepts for the Confucians, but also faces challenges of implementation. Given the significance of role-based relationships for Confucianism, the conservatives were not only more consistent by uniting roles with rights, but they also have a version of Confucian rights that is more readily practicable.

Henry Rosemont, a representative of the conservative Confucians, argues that there are precursors of the concept of human rights in classical Confucianism if one construes the most basic human rights as those based on our membership in a community (59).10 But he denies that there are any precursors in classical Confucianism if our most basic rights are seen as the civil and political rights grounded in being autonomous individuals. Rosemont argues:

If I am indeed essentially an autonomous individual, it is easy to understand and appreciate any demands that ceteris paribus neither the state nor anyone else abridge my freedom to choose my own ends and means, so long as I similarly respect the civil and political rights of all others. But on what grounds can autonomous individuals demand a job, or

9 Joseph Chan, “A Confucian Perspective on Human Rights for Contemporary China,” 221.10 Henry Rosemont, “Whose Democracy? Which Rights?” in A Comparative Study of Self, Autonomy, and Community (Cambridge: Cambridge Univ Pr. 2004).

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health care, or an education—the second generation rights—from other autonomous individuals? (58)

Rosemont continues by asserting that there is a logical gap between the autonomous individual, whose autonomy is guaranteed by the first generation civil and political rights, and his demands for the second generation rights like education and employment. This unbridgeable gap, for Rosemont, results from the fact that such a demand for second generation rights by one individual would entail that other autonomous individuals surrender their autonomy, or their first generation rights to pursue their own projects, in order to assist this individual. Contrary to such a liberal understanding of the self as an autonomous individual, which gives rise to the logical gap between the first and second generation rights, Rosemont chooses to deny that human beings are fundamentally autonomous, that their most basic rights are the first generation rights, and endorse what he thinks is the more justifiable position: Confucian persons are fundamentally communal, their most basic rights are the second generation rights. He says,

If you have legitimate social and economic rights, . . . then I have responsibilities to act on your behalf, and not ignore you. And what would it take for your social and economic rights claims to be legitimately binding on me? Basically what is required is that I see neither you nor myself as an autonomous individual, but rather see both of us as more fundamentally comembers of a human community. (59)

Rosemont concludes by recommending that we study Confucianism “as a genuine alternative to modern Western theories of rights (and democracy)” (64) because it offers a more justifiable account of rights.

Roger Ames too, offers a conservative Confucian alternative to solve the problem of uncontrolled individualism that is not committed to any common good so characteristic of modern day American democracy, aligning himself with communitarian, Michael Sandel (181).11 Criticizing the conception of autonomous individuals for hindering social progress in the United States, Ames thinks that a communal conception of personhood, with its emphasis on “ritualized roles and relationships (li), hierarchy, deference, interdependence, “right thinking,” etc., might just be the solution to the “interdependence of the world’s cultures,” contributing to an Asian-style of democracy (192-93). Citing Confucius’ remark that laws will lead people to avoid punishments but are ineffective in leading them to order themselves, Ames likens Confucius to Sandel in his preference for “self-invested relationships” exemplified by a self-governing community mediated by familial and neighborhood institutions within which relationships would motivate people to order themselves more effectively through shame and deference (193). Arguing against Randle Edwards’ claim that rights cannot exist without laws, Ames claims that the opposite is the case. Namely, that all rights and duties which constitute the social and political order are actually “sustained by extralegal institutions and practices, and are enforced by social pressures rather than punishments” (204). Ames continues by maintaining, like Ihara above, that the appeal to law and human rights actually dehumanizes people rather than dignifies them because such a move prevents them from engaging in mutual accommodation and taking responsibility for defining their appropriate actions. As Ames puts it, “An illustration of this process might be the contrast between participatory decisions made within a family, and

11 Ethics and International Affairs, vol 11 (1997): 177-205

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impositional decisions made within a court of law” (204). Thus, Ames recommends the avoidance of litigious solutions to conflicts, embracing instead, nonlegal, ritualistic and more practical alternatives which the Confucian model offers for conflict resolution.

The foregoing discussion demonstrates that there is indeed a conservative side to Confucianism that is consistent with a human rights discourse which emphasizes the second generation rights, and can offer practical alternatives to an account of rights that is overly focused on individual autonomy and liberty. Let us examine if this conservative account is sufficient or if there need be a liberal Confucianism to account for the first generation rights if these were neglected by the conservative view. One way of investigating liberal Confucianism is to examine if there is a Confucian account for our first generation civil and political rights—assuming that pursuit of first generation rights is a criterion for liberal Confucianism. For the most part, conservative Confucians are not interested in defending first generation rights, associating them, instead, with the radical individualism of the West and finding in them the source of social ills. Rosemont thinks that these first generation rights protect both autonomous individuals and large corporations so that self-interest and corporate greed prevent the U.S. citizens from controlling the economic forces that affect their lives (66). These citizens are neither able to appeal to other autonomous individuals to offer them jobs, nor do they have the power to prevent large corporations from firing them in order to make a larger profit by outsourcing jobs to the third world. For Rosemont, both flaws result from a legal system which protects the first generation rights of individuals and corporations, as well as the government’s liberal vision that goods are plural and thus “the state cannot legislate morality” (66) even when it is clear that second generation rights are not being fulfilled. Agreeing with Rosemont that American democracy robs individuals of their real civil liberties which consist in their ability to govern themselves, Ames echoes Rosemont’s point that individual liberty has come to mean everyone’s own choice of ends and values. Additionally, democracy manifests itself as a set of neutral procedures enabling such choices with the government “neither encouraging nor discouraging any particular conception of the good life” (180). Ames says, “This voluntarist conception of freedom, barring as it does any strategy for the development and expression of a public morality, leaves the society with a vacuum that is quickly filled by tabloid reporting on the “private” lives of public figures” (180). We have seen that Ames and Rosemont agree that a more authoritarian form of government exemplified by so many governments in East Asia, though restricting individual liberties, is a better option at least because it offers more economic equity for the people and promotes a Confucian morality that encourages our obligations toward one another rather than rampant self interest.

Rosemont and Ames both note that there are restrictions on free speech according to a Confucian model (Ames 200, Rosemont 56). In addition to Rosemont’s mention of the Malaysian government’s prosecution of a political opponent as a restriction on its people’s political liberty, we can add the same practice against numerous political opponents by the Singapore government.12 Other limitations of individual liberty in Singapore range from her anti-chewing gum laws to her practice of caning criminals. 12 See http://www.nationsencyclopedia.com/Asia-and-Oceania/Singapore-POLITICAL-PARTIES.html and http://www.wsws.org/articles/1999/mar1999/sing-m03.shtml for cases where political opponents were jailed by the reigning People’s Action Party (PAP) of Singapore. See also Human Rights Watch’s report, http://hrw.org/english/docs/2008/10/16/singap19993.htm, about the party’s use of defamation suits to bankrupt its political opponents.

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Rosemont downplays the severity of these civil and political rights restrictions in light of how far these S.E. Asian nations have come in terms of their self-government, both economically and politically (here Rosemont references not only Singapore and Malaysia, but adds Hong Kong, Taiwan, S. Korea and Japan to the list of nations that have “strong and vocal opposition political parties” which are critical of their government practices (56)). Whereas Ames voices their common opinion that the Confucian view of personal liberty is not simply the absence of all constraints, but is the opportunity for participation in the shared communal good (193). But is this sufficient for the exercise of civil and political liberties properly understood? More importantly, is this approach consistent with Confucian precepts?

Let me answer the second question first. It does not seem that Confucianism would be consistent with the suppression of free speech. Examining what Confucius says about speech (yan) in the Analects shows that the most significant thing with regard to speech is truthfulness and living up to one’s words.13 If xin is the virtue to live up to one’s words, which Confucius encourages people to cultivate, it would be odd for him to encourage the systematic suppression of speech, especially where the good of state is concerned. But this also means that speech for him would be limited by what is good as well as what is true and not be open to any assertion whatsoever. Whereas some might want to argue that this is still a kind of censorship, it is no different from Article 29.2 of the Universal Declaration of Human Rights which limits our exercise of rights to the following requirements: that we respect the rights of others, the requirements of morality and the order and well-being of a democratic society. Nor is it different from restricting one from shouting “fire” in a crowd when there is not a fire. Confucius’ limitation of what we would call free speech to what is moral is reinforced by his abhorrence of glib talkers to whom he attributes the destruction of states and families. Mencius too would agree with the significance of free speech even from subordinates to superiors since he approves of a people’s removal of the ruler when the ruler is not performing his function properly. In the family too, free speech would not be suppressed. Rather, what Confucius encourages is one’s proper comportment while disagreeing with one’s parents. As he puts it, “On seeing that they do not heed your suggestions, remain respectful and do not act contrary. Although concerned, voice no resentment” (4.18). Thus, free speech is intimately bound up with a Confucian view of the family and state.

A closer look at a few of the East Asian nations’ human rights records will show that Rosemont’s praise for the progress they have made in terms of self-government is over-rated especially given the ten years that have transpired since his essay. Neither Singapore nor Malaysia has lightened up on their crackdowns of political opponents according to reports by Human Rights Watch and Amnesty International.14 Similarly, South Korea is also reported to violate the civil and political rights of political activists who are supportive (either in speech or act) of North Korea by arresting and imprisoning

13 See Analects 1.5 to 1.8 where Confucius stresses the virtue of xin (making good on one’s word) and 17.18 where he expresses his hatred for glib talkers whom he thinks is the destruction of states and families. 14 For Malaysia, see http://hrw.org/english/docs/2008/08/07/malays19554.htm and http://www.amnestyusa.org/document.php?lang=e&id=ENGPRE200808065690, and http://www.amnestyusa.org/document.php?lang=e&id=ENGASA280082007, for Singapore see http://hrw.org/english/docs/2008/10/16/singap19993.htm and http://www.amnestyusa.org/annualreport.php?id=ar&yr=2008&c=SGP

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them.15 More incriminating for Rosemont are some of these countries’ violations of peoples’ economic rights, calling into question if these nations’ Confucian approach to dealing with the economy is really superior to the West. For example, it is reported that Singapore’s 2006 contract for migrant domestic workers does not protect them from excessive working hours, nor provide limits or caps on their salary deductions for the cost of their recruitment. Specifically, despite the fact that “Employers and labor agents often deduct the first four to 10 months of a domestic worker’s salary, out of a two-year contract, to pay these [recruitment] fees,” the government’s contract for these workers does nothing to ensure a cap.16 Similarly, a 2006 Human Rights Watch report documented violations of migrant workers’ human rights in South Korea. Apart from South Korea’s 2003 Employment Permit Act for Migrant workers leading to the deportation of thousands of migrant workers, they are forbidden to unionize, are discriminated against, suffer physical and verbal abuses, and the women workers also suffer from sexual violence.17 Thus, it is not evident that all of the East Asian countries mentioned by Rosemont are making progress in their self-governance, nor upon closer inspection, are they that advance in their exercise of the second generation rights.

How about Ames’ approach suggesting that the Confucian view of personal liberty is an opportunity to share in the pursuit of a common good rather than a lack of constraints? Ames’ suggestion is Confucian and conduces to the kind of liberty Confucians promote since their highest ideal of humaneness is social and calls for action. However, there are better and worse conditions for action according to Confucius. As seen earlier, he calls for one to withdraw from office when the state is corrupt. Accordingly, Ames’ interpretation of personal liberty as social participation only works in a well functioning state. In times of corruption, as illustrated by a number of the East Asian governments’ violations of their people’s civil and political rights above, the kind of social participation about which Ames speaks for Confucians would be impossible since the violation of rights frequently consists in the exclusion of those whose rights are violated from participating in certain activities enjoyed by those with rights. E.g., the violation of one’s political rights might exclude one from participating in the election of the ruling party, or exclude one from running for election. So the shortcoming of Ames’ view is that it presupposes a noncorrupt state and cannot offer a solution in times of rights violation by the state.

Having seen how the conservatives like Rosemont and Ames do not offer viable suggestions to deal with the first generation civil and political rights in Confucianism, let us turn to the liberal Confucians for resources. In “Moral Autonomy, Civil Liberties, and Confucianism,” Joseph Chan proposes to supplement a sense of “personal autonomy” to Confucianism in order to accommodate civil liberties in an environment that is radically different from traditional Confucianism, which “autonomy” is nevertheless distinct from the liberal theorist’s understanding.18 In response to Chen Duxin’s argument that Confucianism is ill-suited for modern life because it does not respect individual autonomy, Chan analyses a Confucian understanding of moral autonomy and its

15 See this report by Human Rights Watch: http://hrw.org/englishwr2k7/docs/2007/01/11/skorea14758.htm16 Human Rights Watch: http://hrw.org/english/docs/2006/07/21/singap13785.htm17 Human Rights Watch: http://hrw.org/englishwr2k7/docs/2007/01/11/skorea14758.htm18 Joseph Chan, “Moral Autonomy, Civil Liberties, and Confucianism,” Philosophy East & West Volume 52, Number 3 (July 2002): 281–310.

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implications for civil liberties. Chan starts out with his understanding of four elements that characterize our common understanding of moral autonomy and analyze if these elements are present in Confucian ethics. The four elements for Chan are:

1. the voluntary endorsement of morality;2. a reflective engagement in moral life;3. morality as self-legislation; and4. morality as the radical free expression of the individual’s will. (Chan MA, 282)

Chan goes on to explain that the first two elements would contribute to a “minimal conception” of moral autonomy which support a limited degree of civil liberties whilst the last two are stronger and offer strong support of civil liberties. Chan maintains that the first two elements, namely, morality as voluntary endorsement and reflective engagement, can be found in Confucianism. But the last two elements are not only absent from Confucianism, but are also incompatible with it. Voluntary endorsement, for Chan, simply means that one is not coerced in one’s moral actions, whilst reflective engagement means that one needs to reflect, deliberate and make judgments about one’s moral actions (284). It is clear that these first two elements are present in Confucius’ Analects given his assertions about self investment in actions (3.12) and self-examination of one’s speech and actions (1.4). Chan adheres to Kant’s analysis of self-legislation to explain his third element which differs from the first two in that it is grounded in one’s rationality that is universal and independent of all personal desires or social norms. Chan says,

For Kant, moral law is independent not only of society’s convention or tradition, but also of anything external to one’s rationality, including, for instance, nature and human desires—these are sources of heteronomy, not autonomy. It is reason inherent in one’s humanity alone that gives rise to the moral law. (Chan MA, 285)

Such a characterization of moral autonomy that separates one’s reason for acting from social convention as well as desires, making it a universal reason, is clearly incompatible with a Confucian account where social conventions, exemplified by rituals are key and proper desires are part of moral virtue. If the third element of self-legislation is rationalistic and universal for Chan, the fourth element of radical free expression is existentialistic and subjective. He says,

In the expressivist view, however, self-legislation is understood as a thoroughly subjective process unconstrained by any factors other than one’s own reflection based on one’s desires, ambition, and personal circumstances. . . . Morality and moral choices are therefore necessarily subjective. (Chan MA, 285-86)

Given the significance of acting according to the proper ritual proprieties which are prescribed to the five relations and various situations, a radical-expressivist-subjective understanding of moral autonomy, as exemplified by Chan’s last element of moral autonomy, is also prohibitive for Confucianism.

Nevertheless, as in his previous essay, Chan recognizes Confucianism’s tendency toward intolerance due to the moral values they require for the good of the society and their belief that the state’s role is to promote virtue (293). Using the notion of reflective engagement Chan finds in Confucianism, he argues that Confucianism would allow for some tolerance of opposite views since reflection cannot flourish or be critical without

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challenges from different views (296). However, Chan maintains that even though reflection calls for openness to some opposite views, it does not require a completely open society which overabundance of bad ideas or lives might actually hinder the moral reflection that Confucianism wishes to cultivate. Thus, Chan concludes that his reasoning of tolerating opposing ideas for moral reflection is less forceful against “milder forms of suppression” (297) since these are actually conducive to the cultivation of moral values. Hence, Chan concludes that Confucianism does not require a completely open society, but is compatible with a “morally conservative environment in which liberties and their restriction are balanced in such a way as best to promote the moral good” (297).

In spite of the moral autonomy Chan finds in Confucianism, “personal autonomy,” endorsed by the “liberal-individualist perspective” which stresses individuality where people are authors of their own lives, is absent (298). As Chan puts it,

From the liberal-individualist perspective, what we respect is not merely the common features that define a human being, but more importantly the uniqueness of each human individual: a distinct personal identity and path of life history; a unique blend of dispositions, tastes, and talents; a personal ambition in life and perspective on the world. (298)

Chan maintains that personal autonomy is an important value in our contemporary world so that Confucianism should incorporate a moderate version of it to make itself more “attractive and adaptable to the conditions of modern society” (301). When incorporated, a moderate personal autonomy would be “sensitive to people’s autonomy” so that their choices, though sometimes mistaken, are nonetheless sometimes respected and allowed to supersede the moral and paternalistic values. As Chan puts it,

A contemporary version of Confucian political theory could welcome a moderate version of personal autonomy, treating it as one value that competes with, and at times can be outweighed by, such other values as well-being and ethical ideals (301).

Most importantly, Chan maintains that this incorporation of personal autonomy would enable Confucianism a much stronger justification for civil liberties since personal choices which are wrong can nevertheless be admitted. One is not merely free to pursue morally right actions, but also content-independent acts (i.e., acts that are independent of their goodness) which are justified simply because they are the agent’s personal choices. Insofar as moral and paternalistic considerations are still permitted in one’s exercise of freedom in Chan’s version of moderate personal autonomy, he claims that his view is distinct from a liberal theorist’s version of liberty. Chan offers the example of how personal autonomy can offer an “internal revision” to the traditional understanding of filial piety which emphasized obedience to one’s parents. In the context of new social circumstances in modern societies, heretofore unexperienced by parents in the past, Chan maintains that filial piety nowadays should not include obedience (302). Given the advances in technology, mobility, and communication, as well as the increase choices of education and occupation, not to mention marriage partners, Chan thinks that parents today, unlike those in the past, no longer have the experience to make such choices for their children. Thus, children should have the autonomy to make such choices for themselves. Consequently, filial piety toward one’s parents today would no longer consist in the obedience to a parent’s wishes as it was in traditional Confucianism. Chan

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wants to say that such obedience to one’s parents is the one thing in filial piety that is incompatible with personal autonomy. With the changing circumstances, Chan thinks that Confucians can abdicate the feature of obedience to one’s parents and still retain other aspects of filial piety like respect and honor by listening to their advice, and supporting them in their old age.

Chan’s addition of personal autonomy to Confucianism to render it more applicable and palatable to modern society is indeed a liberal move. But is it consistent with Confucianism? Perhaps more controversial than abdicating the characteristic of obedience in filial piety is Chan’s suggestion that Confucianism ought to allow wrong choices or actions simply because they enable individuals to be the authors of their own lives. Even though Confucius admits that people make mistakes, what he emphasizes is their correcting their mistakes and striving for the virtue of humaneness which enables them to avoid wrong actions. For example, we are told that “When exemplary persons (junzi) go astray, it is like an eclipse of the sun and moon. When they stray, everyone sees it, and when they correct their course, everyone looks up to them” (19.21). What this analect tells us is that exemplary persons seldom make mistakes just as eclipses of the sun and moon are rare occurrences, and it is their correcting these mistakes that make them admirable. Compare this with Confucius’ remark that a real mistake occurs when one fails to correct a mistake (15.30) and how the humane person is one who can avoid what is wrong (4.3, 4.4). Moreover, self-cultivation, aimed at the virtue of humaneness for Confucius, consists in self-restraint and following the rituals (12.1, 6.27). Taken together, these Confucian precepts are quite contrary to Chan’s moderate personal autonomy modification which focus is on individual choice even if it is independent of what is moral. Confucians are driven by their pursuit of virtue, above all else. Thus, Chan’s attempt to make room for choices which are independent of morality is not likely to meet with success. Moreover, Chan maintains that his brand of personal autonomy is moderate since the traditional paternalistic and moral values are still being considered albeit their rivalry with personal or individualistic values. But when are such individualistic values which are independent of goodness or rightness to supersede the moral values in Chan’s revised Confucianism, and by what criteria would such supersession to be ascertained? Apart from his example regarding the elimination of obedience in filial piety, no answers to these questions are offered. Let us examine the issue of obedience then, to see if the concept of a moderate form of personal autonomy is really indispensible for Chan’s concern about obedience.

The virtue of yi, or appropriateness, is what enables us to deal well with new situations for Confucius. Instead of adhering to ritual proprieties (li) as if they are a fixed set of rules, Confucius emphasizes yi for dealing with different circumstances. When Confucius says, “Exemplary persons (junzi) in making their way in the world are neither bent on nor against anything; rather, they go with what is appropriate (yi)” (4.10), we know that the junzi is not someone who is prejudiced or inflexible. Instead, he does what is appropriate (yi) in the situation. From other passages in the Analects, we can deduce that the appropriate action is what is called for in the circumstance (7.3). For instance, if boldness is called for, yi is the virtue which tailors the action so that it hits the mean of boldness instead of overreaching so that it becomes rashness. As Confucius puts it, “An exemplary person who is bold yet is lacking a sense of appropriateness will be unruly, while a petty person of the same cut will be a thief” (17.23). More generally, yi is the

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virtue that is most relevant at times when one can either profit oneself or do the right thing, which benefits another. When describing the complete person (chengren), Confucius says, “If on seeing a chance to profit they think of appropriate conduct (yi), on seeing danger they are ready to give their lives, and when long in desperate straits, they still do not forget the words they live by—such persons can also be said to be consummate” (14.12, see also 7.16). What is clear from this assertion is that the complete person does not try to profit himself in terms of wealth, safety, or any other benefits, and yi enables him to retain his integrity and honor as a virtuous person.

Combining the virtues of yi and ren, the latter as a virtue which extends someone’s love for his family members to the wider community, and the former as a virtue which not only permits him to adapt himself to various situations and see what is called for, but also enables him to carry out the virtuous action, a humane person should know how to be filial in the appropriate way. We can certainly imagine situations where blind obedience would not result in filial piety. Consider a seriously ill father whose concern for his son’s career urges him to stick to his scheduled business trip without arranging for a caretaker. If the son possesses yi, he would not blindly obey his father’s instructions. Depending on his father’s condition and situation, he might arrange for a caretaker to attend to his father and then abide by his father’s wish that he not alter his work schedule, or he might cancel the trip entirely and stay home to care for his father himself. It is conceivable that in such a case, obedience would be contrary to filial piety. Nevertheless, this does not mean that obedience, as an aspect of filial piety, need to be completely relinquished for Confucianism. There are times when obedience is appropriate (yi) and times when it is not. Abdicating obedience in order to exercise one’s personal choice, especially for an immoral action, is certainly incompatible with Confucianism. Making a wrong decision, just to enable one to be the author of his own life is not a good reason for disobeying one’s parents especially if their wishes direct one to do what is moral. Confucianism has the resources of yi and ren for going beyond the prescribed rituals, enabling someone to do the right thing, be that action one which entails obedience or disobedience to his parents. In fact, Confucius explicitly addresses opposing one’s parents when he says, “In serving your father and mother, remonstrate with them gently. On seeing that they do not heed your suggestions, remain respectful and do not act contrary. Although concerned, voice no resentment” (4.18). What is emphasized here is the respectful attitude one must maintain. Even if one does not have any effect on persuading one’s parents, one must not resort to being harsh, disrespectful or resentful. Other resources which recommend themselves for departing from traditional ritual propriety and making room for personal initiative in the Analects are Confucius’ remarks that people are the ones who broaden the way rather vice versa (15.29) and how one who is working toward humaneness should not comply even to one’s teacher (15.36. see also 15.16 for Confucius’ insistence that someone must constantly ask himself what he is to do). Given these resources for personal initiative and judgment in Confucianism, which resources show us the liberal aspect of Confucianism, it is not clear that Chan’s moderate personal autonomy, which insists on relinquishing obedience entirely, and admits occasions when one’s personal choice could supersede ethical values without specifying their criteria, is necessary, desirable or even justifiable for an account Confucian rights. Chan proposes his moderate personal autonomy in order to provide a stronger justification for civil liberties in Confucianism. However, without clear criteria

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for when personal autonomy should trump moral values, it is not clear if Chan’s justification for civil liberties is stronger or just arbitrary. On the other hand, my view that Confucian rights are justified on account of their bases in roles and responsibilities directed at achieving the highest virtue of humaneness for each, offers a firm justification of civil liberties since rights are moral realities which make clear their objects as well as the conditions which must be satisfied by both duty-bearers and rights-bearers whether they are acknowledged as rights or not.

May SimAssociate ProfessorDepartment of PhilosophyCollege of the Holy CrossWorcester, MA

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