5.3 JAPAN
Rights discourse began in Japan at about the same time it did in China, but followed a quite different early course. We have just seen that early rights discourse in China focuses on the state as subject for rights; people, either individually or collectively, are not yet part of the picture except insofar as they are part of a state.
In Japan, people quickly come to be at the center of rights claims, in part because of the importance that was placed on fulfilling people’s desires. This connection between rights and desires anticipates a similar dynamic that plays out in China slightly later. For the purposes of this book, I am interested in Japanese rights discourse not so much for its own sake - though a comprehensive treatment of the discourse remains to be written - as for the ways in which it intersects with and influences Chinese rights discourse. A number of the key Chinese texts on rights from the early twentieth century were written in Japan, where numerous critics of the Qing dynasty traveled, both for study and for freedom to write what they liked without fear of imprisonment. These Chinese thinkers were variously influenced by the Japanese intellectual climate, even including the words they chose to express new ideas. I pursue Japanese notions of rights as background to understanding these Chinese thinkers’ ideas.5.3.1 Translations
As early as 1862, two Japanese had been sent by their government to study law in the Netherlands; from their notes, we can see that they translated the Dutch term “regt” with “honbun,” which literally means something like one’s original lot or natural station in life [Yanabu 1994, pp. 2-3].[94] In 1868, after returning to Japan, one of these two students wrote a work on international law in which he rendered rights/regt as “ken (C: quan).”[95] He states that he consulted the Chinese General Laws, which had been brought to Japan in 1866, in arriving at this translation of “regt” [Yanabu 1997, pp.
162-3]. It is safe to conclude, therefore, that “ken” was first used as a translation of “rights” under the influence of Martin’s earlier Chinese translation.[96]Another text produced in 1868 used “kenri (C: quanli)” for “rights.” In his essay On Constitutional Government, Katd Hiroyuki (1836-1916) wrote that in regimes in which monarchs monopolize power, the people are treated like servants, and “it goes without saying that they cannot enjoy a single right (kenri).”[97] Since this text also came after the introduction of General Laws in Japan, it is exceedingly likely that Katd borrowed “kenri” from Martin.
I will discuss the development of Kato's ideas extensively later, since he will be among the figures most influential on the views of Chinese students in Japan. First, though, I want to note that in the 1870s, “kenri” had a serious rival for translating “rights.” In several articles that appeared in the important journal Meiji Six (Meiroku Zasshi), authors use another word that is also pronounced “kenri,” but written slightly differently. The first character in this rival compound, “ken Æ,” is the same in each word, but the rival term adds “ri ?” instead of “ri iflj.” The latter, recall, has a basic meaning of benefit or profit. The former means pattern, order, or principle. So far as I know, no one commented on the differences between the two words, and at least one author used them both in the same paragraph with no distinction that I can detect.[98] As we will see later, these authors associated with Meiji Six tended to view rights as a matter of either positive or natural law; it perhaps made sense for them to prefer a translation that stresses the role of rights in an orderly system, rather than a word that stresses the benefits that come from enjoying the right. And perhaps it is the decline of natural-law explanations of rights, also detailed later, that accounts for the failure of the rival “kenri” to take hold.[99] In any event, the rival will make virtually no mark on the twentieth century.[100]
5.3.2 Confucians, Liberals, Radicals, and Bureaucrats
If the words used in Japan to translate “rights” (and related words in other European languages) were diverse, the social and political commitments of the people using these different words were still more so.
The title I have given to this section makes it sound like they can be easily separated into convenient groups, but that was far from the case. Confucian values and terminology loom large in the writings of many figures, even those most explicitly antagonistic to Confucianism. Similarly, even those who identify themselves as Confucian draw on ideas or words that are the results of Japan’s ongoing encounter with Western nations. A complete account of these dizzying complexities is not my objective here, yet I do need to summarize the context in which rights are discussed, even if in fairly simplistic fashion. The following paragraphs are offered in that spirit.I think the best way to understand the 1870s and 1880s is by identifying three rough groupings: the bureaucrats in power and their conservative supporters, the radicals seeking political participation, and the initially apolitical liberals associated with Meiji Six. It is the latter two groups who write most about rights, in the varying formulations discussed earlier. To the extent the conservatives were concerned with notions of rights and independence, it was - like the Chinese officials discussed earlier - on the rights and independence of the state that they focused.[101]
The radicals were relentlessly political and practical. Their touchstones were political participation and popular sovereignty; they used their famous slogan “jiyu minken” or “freedom and popular authority,” to call for the people to receive their rightful voice in governance. These demands went along with, and were partly justified by, advocation of liberating desires from the restrictions of feudal society. In “The Passions Must Prevail,” one champion of popular authority wrote that the object of human life “is for the self to gratify its desires, to rejoice in the extreme, nothing else.... Heaven put [things in the world] for the people to enjoy, and those who use them are to have their own way, free and unrestrained.”[102] This embracing of the passions was often seen as originating in Western ideas, and was often practiced partly through the ostentatious adoption of Western-style luxuries [Motoyama 1997, p.
241]. We will see in a moment, though, that the roots of an affirmative attitude toward desires run deep in Japanese thought, just as they do in China.Readers will have noticed that I translated “ken (C: quan)” as “authority” in the phrase “freedom and popular authority.” It is more common to translate the phrase as “freedom and popular rights,” but given the collectivist focus of the movement, “authority” seems to capture the idea’s commitments better than “rights,” as I have also argued earlier for Li Hongzhang’s use of “quan. ”[103] The same will be true of the Chinese movement for “minquan (J: minken)” in the 1890s, which we will explore in a few moments.
If we turn to the liberals, we will see that rights and desires are again prominent themes in their writings. These writings are more sophisticated than are those of the radicals, and often show subtler signs of connection to the Japanese tradition.[104] For the sake of simplicity I will focus on two figures, both of whom will exert considerable influence on subsequent Chinese rights discourse, Katd Hiroyuki and Fukuzawa Yukichi.
5.3.2.1 Kato Hiroyuki. I have already mentioned Kato as the man who introduced “kenri” into Japan. Not only did he use the word; he also discussed rights more extensively than anyone had in China. The passage from On Constitutional Government that I quoted briefly continues as follows:
A realm which is not the private property of the sovereign and aristocracy is a “realm of rights.” For this reason, those who are subjects possess rights. There are two sorts of rights: private rights (shiken) and public rights (koken). Private rights are rights involving one’s own person, called by some the right to freedom. Public rights are rights involving national affairs.[105]
Katd then enumerates eight private rights, including “the right to life,” “the right to independence,” and “the right to freedom of thought, speech, and writing.” In each of these cases, the word I am translating as “right” is “kenri.”
In order to be sure what to make of Kato’s advocacy of kenri, we need to understand why he thought people had kenri.
This will also help us deal with an otherwise puzzling aspect of Kato’s intellectual development: In the 1880s he would publicly reject his earlier work on rights, take some of his previous work out of print, and throw his support behind a unified state and its pursuit of Darwinian success in a competitive international arena. It was this later Katd whom young Chinese intellectuals would encounter when they came to Japan in the late 1890s, so we would do well to understand how the later Katd emerged from the earlier.The key to Katd turns out to be his relation to Confucianism. This may seem surprising, since the puzzle looked to involve a change from rights to Darwinism. Closer inspection reveals that Confucian commitments and vocabulary permeated Kato's writings and point to continuities underlying his dramatic change. This is not to say that Katd was a Confucian; I am more comfortable allowing people to decide their identities for themselves, and he did not call himself a Confucian. He studied and reacted to Confucian texts, both of classical Chinese and more recent Japanese vintage, and we can see important roles that ideas and words from these texts play in his thought. Still, he - like many of his generation, and like many Chinese whom we will look at subsequently - was interested in articulating a new politics and a new ethics that departed in many ways from the tenets and practices of Confucianism.
Kato's earliest writings were set in the context of the challenges Western nations posed to China (and, implicitly, to Japan). He argued that the mere adoption of Western technology by Eastern nations was inadequate; the latter needed to cultivate the proper spirit as well, which, borrowing a term from the Confucian classic Mencius, he identified as “jinwa (C: renhe).”2 “Jinwa” means harmony among men; in the Mencius, it is identified as the critical factor for military success. KatO believed that this harmony, in turn, grew out of an even more venerable Confucian notion, “humane government (jinsei; C: renzheng).”[106] [107] The basic meaning of “humane government” within Confucianism is rule by the virtuous, in which the responsibilities of the rulers to love and care for their subjects are fulfilled. For KatO, however, this was not enough. He believed that humane government could only be successful, and jinwa achieved, if Western forms of constitutional government and rights were instituted. He wrote: By no means do I imply that the political system of the ancient sage kings was not fair and equitable and based on humaneness. I simply believe that the way they instituted their system of government was not without imperfections. For the very reason that they were sage kings, such imperfections did not develop into evils during their own reigns. But in later eras, when foolish rulers assumed the throne, evils tended to surface.[108] Katd here echoes the reformist themes of statecraft Confucianism, though his connection of these problems with Western political models is new. There is a second reason that Katd found it necessary to promote constitutional government and subjects’ rights: He believed rights to be the natural possessions of all people. Once again, though, his commitment to what he called “heaven-endowed rights (tempu jinken; C: tianfu renquan)” was strongly influenced by Confucianism.[109] He wrote that “it is man’s nature to possess various desires, the strongest of which is for unrestricted independence to achieve personal happiness.... No man, whether high or low, rich or poor, intelligent or ignorant, may be restricted by others. Each may follow his own desires in his private affairs. Hence, various rights have come into existence through civil society” [Wakabayashi 1984, p. 481].[110] By now the connection between affirming desires and Confucianism should not be surprising, though Katd does put it in stronger terms than any Confucians had. Katd and his contemporaries drew on the progressive attitude toward desires adopted within the “Ancient Learning” school of Japanese Confucianism, which both was influenced by similar trends in China and made further developments of its own. The interaction among merchant culture and values, economic and social changes, and Tokugawa (1568-1868) Confucianism was even more explicit in Japan than was the case in China.[111] It remains only to explore Kato’s reaction against natural rights and his turn to Darwinism. I might summarize his notion of heaven-endowed rights as follows: 1. People all have desires which they can legitimately pursue, insofar as they do not interfere with the desires of others. 2. The state’s goal is to cultivate a spirit of unity and harmony within the country, on the strength of which its people can further pursue their desires. 3. Since the goodness and humaneness of rulers cannot be relied on, the institutions of constitutional power-sharing and rights are needed to protect the people’s interests. Notice how central the people (or citizenry) are to this reasoning: It is within the context of the group that legitimate desires are adjudicated, since desires are legitimate only insofar as they can be pursued without hindering someone else in the group. What Katd realized very early on was that if the state’s interests suffered, so too would those of its citi- zens.[112] Already in 1872 he tutored the emperor using his own translation of Johann Bluntschli’s Allgemeines Staatsrecht - a work that would later be influential on Chinese thinkers - which viewed the state as an organism that had its own rights, superior in many ways to those of individual citizens [Motoyama 1997, p. 260]. As he put it in the 1882 work that supposedly represents his conversion from natural rights to Darwinism, “Wars inevitably break out. Once war breaks out, the rights of the vanquished nation suffer irreparable damage. This holds not only for the government in question, but also for its citizens. Therefore, whether or not a people possess rights depends on [their nation’s] victory or defeat” [Wakabayashi 1984, p. 490]. In the context of Kato’s thought, it makes sense to translate “kenri” as “rights,” not least because he sees them as applicable to individuals. Still, especially in his later writings, we can see that these rights are held only in the context of a flourishing collective, and thus the rights of the collective take on considerable importance. The important issue here is not to quibble over when “rights” is the best translation and when it is not, but to try to get a clear view of the content of the rights-related concepts that thinkers like KatO and Fukuzawa use by understanding the commitments that the concepts entail. 5.3.2.2 Fukuzawa Yukichi. Fukuzawa Yukichi (1835-1901) was a leading liberal theorist and populist who wrote extensively on rights. He used a variety of terms to correspond to “rights”: He employed both “tsugi" and “ken” in his 1866 Conditions in the West; “kenri tsugi” - abbreviated to ''kengi" - in his 1876 An Encouragement of Learning; and “kenri ØÄ” in his 1878 “People’s Rights: A Plain Account."[113] Despite these terminological differences between Fukuzawa and Kato, and notwithstanding some other important differences between the two, to which I will come in a moment, the two men’s views of rights shared two very significant features. First, Fukuzawa also saw the origin of rights in “heaven." As he put it in an 1876 work, “When men are born from heaven, they are all equal," and equality, in turn, “means equality in essential human rights" [Fukuzawa 1969, pp. 1,10]. Second, Fukuzawa saw both heaven-endowed nature, and rights, as bound up with desires: “It is a basic human right for man to be able to attain what he wants, as long as he does not infringe on the rights of others" [ibid., p. 11]. Fukuzawa did not derive his understanding of rights from Confucianism any more than KatO did. Fukuzawa was significantly influenced by his reading of Blackstone’s Laws of England, among other sources [Tucker 1996, p. 1]. Still, in both the precise shape that his conceptualization of rights took (e.g., in its connection to heaven) and his willingness to endorse the value of human desires (even extending to the love for money [Tucker 1996, pp. 19-20]), Fukuzawa was a child of his age. Both he and his audience were prepared to consider and endorse the inferences entailed by his concepts in significant part because of the previous movement within Japanese Confucianism to valorize desires. Since I have already developed these themes extensively, I will not dwell on them further here. I do not want to leave the impression that KatO and Fukuzawa were alike in every way. Both cared about the well-being and strength of the nation, but to a greater extent than KatO, Fukuzawa throughout his life saw independent individuals as central to national independence.[114] Be this as it may, the central themes relevant to Japanese rights discourse are already clear. Rights were attributed to individuals by some thinkers, in large part based on an understanding of people’s needs that rested on a positive account of human desire. In various ways, though, these needs and desires were understood to be essentially connected to the needs and well-being of larger groups, most important of which was the nation. Although Fukuzawa and Katb went out of fashion for a few years, by the end of the 1890s when Chinese thinkers like Liang Qichao and Liu Shipei - the subjects of the next chapter - were in Japan, Fukuzawa and KatO had been rediscovered and their ideas once again promoted.[115] Their ideas would mesh with and supplement similar ideas within the Chinese tradition to help spark a flowering of rights discourse. But first let us return to China, and see what develops there in the years before Chinese intellectuals begin their pilgrimages to Japan.