7.2 GAO YIHAN

The themes we have seen emerging in Chen’s discussion of rights were by no means unique to him. This is important, since the language of others in one’s community helps to institute the norms governing one’s concepts.

Gao was among the Chinese thinkers most familiar with Western polit­ical thought. He graduated from Meiji University in Japan in 1916, returned to China and was appointed a professor of political science at Beijing University in 1918, where he remained until 1926.9 He subse­quently taught at the Law School of the China National Institute of Shanghai, served as a member of the Control Yuan, and after 1949 was dean of the Law School of Nanjing University. He wrote widely on polit­ical theory, evaluating and synthesizing various trends in Western polit­ical thought. Rights figure extensively in Gao’s writings; in addition to being one of the most subtle analysts of the general notion of rights writing in China, Gao was among the earliest and most influential advo­cates of economic rights. The writings on which I will draw range from his earliest essays discussing rights, in 1915, to his book An Outline of Political Science of 1930. In certain respects, as I will detail later, Gao’s views evolved over this fifteen-year period, but the essential under­standing of the role and importance of rights remained unchanged.

Rights, according to Gao, are a means rather than an end. In 1915, in the course of criticizing theories that take the absolute protection of people’s rights to be the goal of the state, Gao writes: “Neither are rights the goal of human life; they are rather a road along which people desir­ing to attain their life’s goal must travel” [Gao 1915c, p.

Despite the fact that Gao assigns rights only an extrinsic role, he still finds them to be fundamentally important to the good life that we all seek. This can best be seen via his discussion of self-sovereignty (zizhu quan), or more literally the power of being one’s own master. This power is the essence of rights. It is the “quan” of “quanli.” Gao realized that for one to be able to put this power into practice, one had also to have the

⁹ This biographical sketch is based on [Hoh 1982 (1933), p. 122] and [Asia Historical Dic­tionary, vol. 3, p. 188].

material wherewithal to do so. In his earliest writings he treats this con­dition rather abstractly, speaking of the “ability to establish oneself (zili zhi neng)” [Gao 1916, p. 32]. By 1921, he was able to flesh this idea out more concretely, and we then find him writing of the importance - over and above political rights - of economic rights, if people are to be able to practice self-sovereignty [Gao 1921, p. 5]. In that essay he stresses that an abstract “right to freedom (ziyou quan)” is meaningless without the material ability to support oneself, attain an education, and the like. Gao points out the futility of telling the poor souls who cannot even find work pulling rickshaws - itself, he adds, an inhumane occupation - that they should freely choose an occupation.

Self-sovereignty, then, means being able to act on one’s will; it is that which sets us apart from animals and slaves [Gao 1915b, p. 6]. It is crucial to see, though, that for Gao self-sovereignty is not an end in itself. Gao is no Kantian. The goal we seek, for which self-sovereignty is a necessary condition, is a fully developed “personality (renge).” Gao emphasizes attaining and preserving one’s personality throughout his career. In an early (1915) article he puts the importance of personality as follows:

The state can ask of its people that they sacrifice their lives [in its defense], but it cannot ask that they sacrifice their personalities.... Personality is the master of rights. Without personality, rights would have nothing on which to rely; without rights, one is [no better than] an animal... and cannot be a citizen. [Gao 1915c, p. 4; see also Gao 1915b, p. 6]

What does it mean to say that “personality is the master of rights”? Simply that one’s rights are in the service of one’s personality, the fulfillment of which brings happiness [Gao 1916, pp. 4-5]. It is through exercising one’s rights that one expresses one’s will, which itself is a manifestation of one’s personality. In other words, without rights we cannot express our wills or our personalities. Without rights, our per­sonalities would be suppressed. This is particularly important because our personalities are not given to us fully developed: We have potentials that we must strive to fulfill if we are to live full lives and attain happi­ness. Without rights, we cannot develop ourselves and thus lead stunted lives.

Individuals are not the only ones with personalities. The state and, especially in later writings, many other sorts of groups have their own “personalities” which they strive to fulfill; just like people, these groups also have rights on which their ability to develop their personalities depends.

The reciprocal rights and responsibilities between states and people derive from the fact that each partly constitutes the other. States are simply groups created by people to serve the people’s ends. States are not “natural” entities whose ends can be discovered scientifically; they are voluntary collections of people, and thus we have to look to the goals of human life if we are to discover the goals of a state [Gao 1915c, pp. 1-2]. Gao rejects views that call for individual rights to be sacrificed to the cause of state aggrandizement. If, as Gao believes, states and other groups nonetheless have their own wills and personalities, then the ends that they serve must be collective ends. Still, since individuals owe an important part of their personalities to the state (and, in Gao’s later for­mulations, to other groups as well), they cannot but have responsibilities to it. Individuals are fundamentally connected with one another via the groups in which they mutually participate.

In an early essay, Gao puts this relationship between individual and group in terms of working to develop one’s “free will” so that it expresses the “general will” [Gao 1915a, p. 1]. This formulation points to some of the potential difficulties of the view, since I am surely not merely an American: My will and the personality it expresses differ on many points from those of other Americans. From early on, Gao is thus at pains to avoid the implication that individuals should sacrifice all for the state, as we will see in a moment. Gao does not believe that all of us ought to think and will alike. In early essays, he does argue that the result of unfet­tered, albeit socially informed, self-sovereignty will be a harmonious society expressing the general will. The surest way to social conflict, he writes, is for a government to try to repress the views or actions of some of its members [Gao 1915b, p. 6]. In 1916, he argues that individuals must make their own decisions about what is best for them, and contribute to communal decision-making through participation in governance [Gao 1916, pp. 4-5]. The business of the state is then to harmonize the various people, groups, and emotions in the interests of all, a goal Gao labels “justice.”

As time went on, Gao became gradually less starry-eyed about the idea that the state can on its own harmonize all the people’s disparate interests. In a 1926 article on Rousseau, for instance, Gao tempers his earlier enthusiasm for Rousseau’s ideas about sovereignty and the general will.^{[193] [194] Gao’s central complaint about Rousseau is that his theory tries too hard to harmonize the freedoms of all people, with the result that in practice, it tends to assign all sovereignty to the state [Gao 1926, p.}

The opposition to monistic sovereignty is a major theme of Gao’s 1930 book Outline of Political Science. Gao presents the book as little more than a summary of recent trends in European political theory [Gao 1930, preface], but he is being modest. Throughout the book he weighs, com­pares, and assesses competing European schools of thought, arriving at a synthesis that is his own responsibility. He comes down in favor of plu­ralistic theories of sovereignty; that is, theories which ascribe the ultimate sources of authority not just to the state, but to other groups, such as labor unions, as well.^[195] Gao explains that “humanity has various social purposes,” only some of which are amenable to political, and therefore state, oversight. “Therefore there must be various groups, [each with its realm of sovereignty], if all [social purposes] are to be achieved” [Gao 1930, p. 76]. Gao adds that the state still has a role to play as mediator and harmonizer:

On the one hand we acknowledge that the state’s sovereignty cannot be absolute, and on the other hand acknowledge that the state’s sovereignty is not entirely without use. It cannot be denied that each person feels loyalty to a particular set of groups, such that the state cannot expect to receive the complete loyalty of any indi­vidual. However, neither can it be denied that the loyalties of any given individual cannot avoid mutual conflict with those of any other individual, since the interests of the groups to which one gives one’s loyalty cannot avoid mutual conflict with the interests of those groups to which another finds himself loyal. These facts are the reasons for which states exist. [Gao 1930, p. 87]

In a subsequent chapter he says that the mission of the state is to har­monize competing interests [ibid., p. 111]. Gao believes that thinking of the state as a mediator between distinct (if often overlapping) sources of sovereignty is fundamentally different from assigning all sovereignty to states. In addition to the point mentioned earlier about pluralistic sov­ereignty doing a better job achieving our varied “social purposes,” Gao says that monist theories push people toward individual separation and ultimately conflict, while pluralistic theories tend toward cooperation and mutual aid [ibid., p. 79]. His idea seems to be that while people will not tend to have precisely the same interests and loyalties, when they owe their loyalties to a variety of overlapping sources, it will be evident that by working together they can better achieve their purposes. In contrast, refusing to help another will be, in at least some instances, like cutting off one’s nose to spite one’s face.

Gao, like Chen, recognizes that the harmonious development of people’s personalities is not as simple as had once been thought - for instance by Dai Zhen or by Liu Shipei, though Gao of course does not mention any Confucians. We saw Chen struggle a little to say that both individual freedom and a flourishing, independent national group were vital. Gao’s view evolves over time, ultimately reaching the theory of plu­ralistic sovereignty we just examined. For both thinkers, the most basic justification of rights is their role in the mutual fulfillment of individual and group personalities: Rights are the powers we must have and the benefits we must enjoy if we are to achieve our potentials. Political powers, like the ability to speak freely, and economic benefits, like the food and clothing we need, count more or less equally. Our unavoidably social existences, finally, explain the mutual importance of person to group and group to person, as well as the tight relationship between enjoying rights and shouldering responsibilities.