East Asian Law-Making in the Time of Covid-19: Through the Lens of Chinese Legalism
One recent theme in the American press coverage of East Asia’s successful containment of the pandemic has included a common skeptical note: could non-authoritarian governments have done what they did? (cf. Leonard, 2020; Roger, 2020). The New York Times for example noted that, despite disease control infringing on citizens’ privacy and individual liberties, people in Singapore, Taiwan, and Hong Kong “are more willing to accept government orders,” such as vigilant monitoring and contact tracing systems (Beech, 2020: 11).
Comparison of this kind reveals a biased “societal autonomy against the state” underpinning (Huang, 1993: 238) that emerged from the Western experience of socio-political change. It also reinforces cultural assumptions, or the so-called “Asian values” discourse, such as that East Asians favour authority over liberty, emphasise duties over rights, and place the state or the community before the individuals (Yeh and Chang, 2011; Thompson, 2001).
Yet, these interpretations remain vague in explaining why citizens in East Asia –especially those in liberal and democratic societies like Taiwan and South Korea – respond so differently to state control and surveillance than their European and US counterparts. Insufficient explanations about “collaborative state–society relationships” (Huang, 1996: 223) in the time of public health crises risks missing the opportunity to address a common fallacy, that the Asian value of “state or community before self” is incompatible or at odds with the standard (Western) liberal and democratic constitutionalism.
This essay elucidates the collaborative state–society relationships in Taiwan through the lens of Chinese Legalism. We argue that the Legalist legacy of conceptualising law has played an important role in shaping East Asian styles of governance and policy implications for common good. Legalist conceptualisation of “law” can also shed light on the cultural and social traditions of citizens’ cooperative attitudes toward strict government orders in the time of the pandemic, with a particular focus on Taiwan.
Laws as Standards of Behaviours in Chinese Legalism
Chinese Legalism (fajia 法家) is a pragmatic political philosophy that arose in ancient China (the Spring and Autumn Period and the Warring States Period, 770–221 BCE) to inform statecraft for achieving stability of governments and social harmony (Kern, 2000; Pines, 2014). One main feature distinguishing Chinese Legalism from other schools of thoughts was that Legalists argued for a society governed through fa 法 (laws, rules) (see Goldin, 2011; He, 2014). Legalists maintained that the Confucian principle of ruling by virtue was impractical because humans are selfish and egoistic by nature and covet wealth (Watson, 1967). Moreover, due to their critique of Confucianism’s mysterious and ambiguous codes of conduct, Chinese Legalists hold that laws are largely meant to set out standards for human behaviour (Watson, 1964). Thus, Legalists sought to develop concrete guidelines for people to follow through law-making.
Whilst the Western approach to law-making focuses on regulating the political rights and the economic position of individuals, in Eastern traditions laws were designed and implemented to promote the “correct” behaviours for achieving social progress and an orderly society (Goldin, 2011; He, 2011). Famous Legalists Guan Zi (c. 7th century BCE) and Han Fei (279–233 BCE) used the metaphors of compass and scale to portray fa as an objective, impersonal, and impartial standard for human behaviours (He, 2011). This unvarying application of fa is considered a means to public order because the system would reward those who followed the rules and severely punish those who broke them (Watson, 1964).
Additionally, Legalists advocated that the fa should be written by the authorities. This way, defining and enforcing fa was the official mandate of the government, which meant that it was above family rules (which were upheld by Confucians) and social conventions. Similarly, an effective government should institutionalise top-down laws even if the public resisted them because the common people don’t have a holistic understanding of the long-term effects of the law, and the short-term hassle for citizens would benefit the future collective good of the nation. A centralised approach to law-making would help emperors to win appreciation and popularity among the public in the long term (Watson, 1964).
Collaborative State–Society Relationships as an Effective Response to a Pandemic
Without resorting to culturalist or ahistorical explanations, Legalism sheds light on the relationship between the government and society in liberal societies such as Taiwan with effective responses to Covid-19. Citizens’ compliance in large part emerges from their conceptualisation of law-making as establishing standards of the “correct” or scientifically informed behaviour for collective benefits. Therefore, in addition to providing public education on general hygiene, directives such as mandatory mask-wearing in public space, strict quarantine, and isolation enforcement are seen as positive reinforcements of scientifically informed behaviours and thus are overwhelmingly supported by the citizens.
The success of the government’s strategy regarding inducing citizens to willingly comply with restrictions for the greater good can be observed, for example, in the strong backlash against individuals that raised concerns about infringement on privacy by measures taken to fight the pandemic. In this, the law was held up as equal and applying to all people regarding quarantine measures and punishments for those that broke them, and individuals that broke rules were publicly shamed – though the government did not go as far as publishing the identities of individuals who had contracted Covid-19 (Lee, 2020). Similarly, Chinese Legalism emphasised publicising both the positive consequences of following and the negative consequences of violating fa. For Chinese Legalists, publishing the identities of people who disobeyed the law and their punishments would serve as a warning to the public (Watson, 1964).
Moreover, policy for Covid-19 was carried out on a centralised basis, with the central government intervening into private industry to ensure the production of needed medical supplies, and the central government setting directives for local governments to follow (Wei, 2020). This orientation relates to the Legalist perspective that “rule of law” is the key to managing all aspects of governance and regulating social and economic behaviours (Watson, 1964). It can also be strongly contrasted to the approach of countries such as the US and Canada, in which local governments were left to manage their responses to the pandemic due to federalism.
The Chinese Legalist orientation to law-making has significant implications for how citizens in East Asia understand the function of laws and governments’ directives in modern society. In the case of Taiwan, the government maintained streamlined and centralised communication with the public, holding daily press conferences to provide updates on the developing pandemic situation, as well as providing information in a variety of forms aimed at different demographics (Watt, 2020; Hioe, 2020). At the same time, citizens themselves consent to the strict government measures against Covid-19. This collaborative state–society relationship can be understood as the legacy of Legalist governance model.
Though not the only ideology that influences the culturally and historically specific relationship of state and society which has determined responses to Covid-19 in East Asian societies as Taiwan, the cultural heritage of Legalism and its pillars of governance underpin their policy-making. Authoritarianism is thus insufficient in explaining citizens’ relationship with their governments regarding the pandemic, in the way that much media reporting has used the trope of “Confucianism” simply to mean “authoritarian” regarding East Asian government responses to Covid-19. For example, as a post-authoritarian country, the Taiwanese government is strategic in its messaging toward citizens in order to avoid appearing as though it were infringing on citizens’ private freedoms, something that would lead to strong backlash.
Asserting the significance of Legalism is not simply to replace the trope of “Confucianism” with a similarly misleading and Orientalist view of Legalism, or an ahistorical one. Nevertheless, as an explanatory framework, Chinese Legalism allows for critical analyses of state control, with regards monitoring (and even evaluating) citizens’ behaviours, as it is present in the current pandemic.
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