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Should We All Be More English? Liang Qichao, Rudolf von Jhering, and Rights

From: Journal of the History of Ideas
Volume 61, Number 2, April 2000
pp. 241-261 | 10.1353/jhi.2000.0012

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Journal of the History of Ideas 61.2 (2000) 241-261

[T]he Celestial Empire, with its bamboo, the rod for its adult children, and its hundreds of millions of inhabitants, will never attain, in the eyes of foreign nations, the respected position of little Switzerland. The natural disposition of the Swiss in the matter of art and poetry is anything but ideal. It is sober and practical, like that of the Romans. But, in the sense in which I have thus far used the expression "ideal," in its relation to rights, it is just as applicable to the Swiss as to the Englishman.

Rudolf von Jhering (1818-92) published Der Kampf ums Recht (The Struggle for Law) in 1872. He was already regarded as one of Germany's most important legal philosophers, and Der Kampf helped to ensure a world-wide reputation. His argument that people should be less like the "adult children" of China and more like the English found audiences everywhere, including China, where Der Kampf was translated between 1900 and 1901. Jhering's doctrines stimulated Liang Qichao (1873-1929), one of China's leading thinkers, to publish "Lun Quanli Sixiang (On Rights Consciousness)," in 1902 as part of his manifesto On the New People. Liang tells us that the "essential points" of his essay, which is among the earliest and most sustained treatments of the concept of rights to appear in Chinese, are mostly taken from Der Kampf. We will see that there are indeed certain similarities that make Liang's "quanli" (the standard Chinese translation of "rights") resonate with Jhering's notion of "Recht," and these similarities -- chief among which is a kind of individual assertiveness -- help to explain Liang's interest in Jhering. My discussion of the two thinkers will offer at least the beginnings of an explanation of why German conceptions of law and rights were so attractive to Chinese intellectuals.

As is often the case with cross-cultural comparisons, we will also see that these similarities mask some less obvious but deeply important differences. For Jhering the relation between following the procedures of the law and exercising one's Recht is crucial; for Liang, in contrast, quanli are deeply related to ethical concerns. This difference in turn colors their respective notions of assertiveness, which thus turn out not to resemble one another as closely as first appeared. When we see Recht and quanli as separate concepts emerging from separate discourse contexts, these differences will make sense.

In "On Quanli Consciousness" Liang regularly quotes Jhering, often at some length. One important passage reads as follows:

In ancient times, Lin Xiangru scolded the King of Qin saying: "Smash both my head and the jade disk!" Now given the size of the state of Zhao, how could such love be expressed for a tiny thing like a jade disk? He was saying that Qin could smash the disk, kill him, invade his territory, endanger his state, and still he would not surrender. Ah! This was nothing other than "quanli"! Jhering has also said: "If an Englishman traveling to the European continent is one day asked to pay an irrational charge by the hotel's carriage driver, in every case he will resolutely scold [the driver]. If the driver won't heed his scolding, the Englishman will struggle for justice without tiring, always preferring to extend his stay; even if his traveling expenses were to increase as much as ten-fold, he would not cease. Unknowing people all laugh at this great fool, but none of them understand that this person's struggle over a few shillings is in fact a vital part of what allows the nation of England to stand tall by itself in the world. This abundance of quanli consciousness and sharpness of feelings of quanli are the great reasons behind the ability of the English to establish their state. Now let's consider an Austrian whose stature and financial power are similar to the Englishman's. Were he to run into the same situation, how would he deal with it? He would certainly say: 'this trivial affair -- how could it be worth paining myself and creating trouble?' He would toss over some...

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