4.3 CONCLUSION

In sum, these Confucians believed both that we have legitimate desires and that we have responsibilities to see that others can fulfill their legit­imate desires. This combination of ideas bears a striking similarity to the argument at the core of one of the founding texts of Western rights dis­course, On the Law of War and Peace by Hugo Grotius (1583-1645).

Western rights theories developed along a number of lines through the balance of the seventeenth and eighteenth centuries. John Selden (1584-1654) and Thomas Hobbes (1588-1679) minimized the role of natural laws or rights, seeing the rights we have in society as depending on the laws instituted by our sovereign; the sovereign’s authority, in turn, derived from a hypothesized social contract that established society in the first place.^[77] This formulation readily led to the idea, prominent in the writings of thinkers from Samuel von Pufendorf (1632-94) to Jeremy Bentham (1748-1832), that rights came only from corresponding obli­gations: Rights were passive, deriving from law rather than emerging directly from any natural or ethical conception of human well-being [Tuck 1979, p.

Conclusion

Pufendorf and Bentham, chief among them the question of whether the laws from which our duties (and thus rights) derive could be natural or only man-made. Much of modern jurisprudence has followed Bentham on this latter point, believing only in man-made or “positive law.” I will discuss one of the nineteenth century’s leading proponents of such ideas in Chapter 5, when I compare Rudolf von Jhering’s conception of rights with the way his ideas are interpreted by a leading Chinese theorist.

Pufendorf’s alternative formulation, according to which rights derived from natural duties, which in turn derived from natural (or divine) laws, was nonetheless extremely important; it found its most famous expres­sion in the writings of John Locke (1632-1704). The idea that certain rights could be inalienable, which derives in part from Locke, was grad­ually combined with certain other claims to form what scholars now call the “subjective theory of rights.” Central to these developments is the idea that the moral world may not be well-ordered, even in principle; “clashes of rights [may] not be the result simply of human folly or blind­ness, but [may] be ultimate and unresolvable” [Haakonssen 1996, p. 312]. In subsequent chapters I will pay careful attention to Chinese correlates of this idea; we will see that even today, many Chinese rights theorists continue to see harmony, rather than conflict, at the root of their ideas of rights.

Embracing the value of desires is one way to defend the legitimacy of people’s self-regarding interests; another way is to assert that people have rights to enjoy these same interests. In subsequent chapters I will explore some of the complications of taking the latter of these paths, as seen from the viewpoint of the Chinese thinkers concerned with rights. For now it might be most useful to reflect on some complications to which the approach of this chapter’s four protagonists might give rise.

There is good evidence that all four thinkers studied here were aware of both these problems. Much of my discussion of Gu, in fact, concerned precisely the question of how to reform institutions so that people’s self-regarding tendencies would mesh, rather than conflict. Huang also wrote about this issue extensively in Waiting for the Dawn,

proposing among other things to make the various lower-level official positions - tax collectors, warrant-bearers, and so on - into rotating “draft” positions. One of his arguments is that if the occupants of such positions are in office for only short periods of time, they will not abuse their power, for they will know that others will soon take their places, and they could then be subject to the new officeholders’ abuse in retal­iation [Huang 1993, pp. 161-2]. Dai and particularly Chen emphasized a somewhat different approach to institutionalizing restraint: They stressed the importance of Confucian rituals. Chen instructed his son that “What distinguishes human beings from beasts is our capacity to devote ourselves to ritual practice. Human beings also set ourselves apart from beasts by practicing ritual in earnest.”²⁷ This commitment to restraint through ritual has strong roots in classical Confucianism - especially in the writings of Xunzi (third century b.c.e.). This is an area where most Chinese rights theorists will part company with their Confucian fore­bears, however, even launching vehement attacks on Confucian ritual teachings. But I am getting ahead of myself. Our next task is to turn to the ways that existing Chinese concerns merge with interpretations of Western rights discourse in China’s nineteenth century.

²⁷ Quoted from [Chow 1994, p. 48]. Chow also discusses Dai Zhen, though quite differently than I have, arguing that Dai’s ethics “underscored extirpation of bad conduct and ideas rather than developing the good inherent in humans” [ibid., p. 190].