Law and Morality in Ancient China: The Silk Manuscripts of Huang-Lao (review)

202 China Review International: Vol. i, No. i, Spring 1994 R. P. Peerenboom. Law and Morality in Ancient China: The Silk Manuscripts ofHuang-Lao Albany: State University ofNewYork Press, 1993. xvi, 380 pp. Hardcover $59.50, paperback $19.95. copyright1994 by University of Hawai'i Press In 1973 archaeologists working on the Mawangdui Han Tomb number 3 in Hunan Province discovered, among other artifacts, silk scrolls that included four manuscripts of the Huang-Lao school (Huang-Lao was the dominant court ideology from the collapse of the Qin in 206 b.c. to the beginning of Han Wudi's reign in 140 b.c.), now often referred to as the Huang-Lao Boshu. The Mawangdui find, including these four manuscripts, has yielded dramatic new understandings of pre-Han and Han philosophy, medicine, astronomy, and politics. R. P. Peerenboom has given us an intricately argued, and densely written work, the first book-length study in English on any aspect of the Huang-Lao Boshu. He forcefully presents Huang-Lao thought as providing a radically new view of the cosmos, of government, of society, and oflanguage based on a fully worked-out foundational naturalism. Much of the book argues how Huang-Lao jurisprudence, government, epistemology, and theory oflanguage provided a "countercurrent in the flow" of Confucianism, classical Daoism, and Legalism. Here the author(s) of the Huang-Lao Boshu take their place among those unusual philosophers of China like Bao Jingyan or Wang Fuzhi who are significant more for the possibilities they presented rather than for their direct influence. Even though Huang-Lao thought in some form was influential in the early Han, it is on the possibilities inherent in the Huang-Lao texts and not on their direct impact on Han China that Peerenboom focuses his examination. Using John Finnis, H. L. A. Hart, and Ronald Dworkin to help clarify definitions and to elaborate a variety of positions on jurisprudence and the philosophy oflaw, and using Charles Peirce, Richard Rorty, Wilfrid Sellars, and Alan Donagan to clarify the issues behind foundationalism and pragmatism, Peerenboom is able to make sophisticated distinctions which clarify not only the Boshu but also several important issues involved in late Zhou thought as a whole. Huang-Lao natural law provided for the development of pragmatic normative law (in contrast with Legalist positive law), and this gave China its one traditional source of a true rule of law as opposed to a rule bylaws. Peerenboom argues that Legalism Reviews 203 (using Han Fei Zi as its representative thinker) was based on positivist law and therefore did not make the association oflawwith morality that was made in the Huang-Lao Boshu. Confucianism, we are told, was a form of anthropocentric pragmatism in which we can find a Dworkinian type ofinterpretive theory of law, requiringjudges to interpret the law in terms ofjustice, fairness, due process, and political integrity so that it is coherent in principle. Only Huang-Lao provided for natural law. Huang-Lao natural-law thought conceived of the dao as singular, rulegoverned , and transcendent. The human social order was merely to instantiate a preconfigured pattern. To distinguish the innovativeness ofHuang-Lao's predetermined dao, Peerenboom makes a strong case that for other pre-Qin and Han philosophers, even including Lao Zi, dao was emergent and not foundational. In Lao Zi, "the process ofmoving from the primal undifferentiatedness to the present phenomenal world of differentiated things is largely ifnot primarily the result of social practices, the most important being language." For Han Fei Zi "one does not discover the Waybut fashions it through an array ofpractical techniques of political control." Peerenboom also follows Hall and Ames in arguing that the dao ofConfucius was emergent rather than predetermined. In making these distinctions Peerenboom may be overstating his case. It is not that the evidence is not there. It is just that the pre-Qin philosophical enterprise is not always as definite as Peerenboom suggests. One way to flesh out the philosophical (and political) meaning ofthe Huang-Lao Boshu texts would be to place it in its historical context. Another way to avoid serious misinterpretations is to refrain from overinterpreting and expanding potential implications into full-blown arguments. Certainly the ancient...