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On Confucious Human Rights Discourse
March 02,2021   By:CSHRS
On Confucious Human Rights Discourse
 
MENG Qingtao*
 
Abstract: As to the contents of Confucian discourse of human rights there are four topics which are being or not-being, history, relationship and constructivism on Confucian-human right. According to the different criteria of being or not being on Confucian-human right there are three points: not being in ancient times, being in ancient times, not being originally and being later. There are three points too on relationship of Confucian-human right: exclusion, integration and conversion. What is sometimes overlooked on the history of Confucian-human right is Eastern studies introduced to the West. The traditional Chinese thoughts had an important effect on Western human right idea and normative text. Du Gangjian, a well-known expert on Chaoshan new Confucianism in construction of Confucian-human right, constructs a theory system of Confucian human rights by Confucius’ ideas. Taken together, Confucian discourse of human rights is at the cross-section when China mingled with the Western countries and the modern replaced the ancient. The commensurability of human rights is just made at this point.

Keywords: confucian discourse of human rights     eastern studies introduced to the west     commensurability
 
I.Introduction: Confucian Human Rights Discourse in China’s Human Rights Discourse Lineage
 
Huge progress has been made in contemporary China’s human rights research over the past 30 years, demonstrating a trend of diversity. Scholars intentionally or unintentionally utilize various academic resources to express contrasting ideas and connotations under the same glossary of human rights, and have formed different discourses of human rights. The core of such discourses is to express conceptual content and illustrate the interactive process of the dissemination of concepts with language: “Discourse is both concept or ‘text’ (what to say) and context (location, time, way and reason to say); it involves both structure (where and how to say) and initiative (who says what to whom).” 
 
Human rights discourse refers to the discourse focusing on human rights that is formed in the process of dissemination of ideas. To accurately understand different human rights discourses in contemporary China, we need to conduct classified studies on them and then build the theoretical lineage of China’s human rights discourses in contemporary times. In today’s academia, expressions on human rights discourse can be roughly divided into three categories in accordance with their research subjects, theoretical foundations (theoretical resources), research orientation and evaluation criteria: Confucian theory on human rights, liberalistic theory on human rights, and Marxist theory on human rights. Based on the three categories in contemporary China’s human rights discourse lineage, the Confucian discourse on human rights refers to theoretical statement or notion formed through analyzing and reasoning human rights with Confucian thought as the basic theory (theoretical resource) and evaluation criteria or through studying Confucian theory and rules on human rights. 
 
Traditional Chinese cultural resources compose an extremely complicated system, not confined to Confucianism. However, since it was incorporated into the state ideological system, Confucianism has been the mainstream school of thought in traditional Chinese culture. Therefore, the exploration and discussion of human rights ideas in traditional Chinese culture can be basically considered equal to studies of Confucian discourse of human rights. Currently, most studies of the relationship between Confucianism and human rights in China and abroad focus on theory or culture, rather than systems. The specific topics involved are numerous and complex, with a time span from the pre-Qin period to contemporary times. For instance, some researchers summarize the academic debate centering around “Confucian thought on human rights” and their “creative conversion” in the past century as three key questions: Whether there is Confucian thought on human rights? Whether it can be creatively converted? How should it be creatively converted? Furthermore, they have unveiled three roadmaps for conversion: introducing Legalism into Confucianism, putting the people over the monarch, and advocating righteousness while respecting benefits.  Of the aforesaid three questions, the first one is a matter of fact, the second one, to a large extent, is a matter of value, and the third one is question naturally derived from the second question should it be answered in the affirmative. From the perspective of discourse, if the first two questions depend on how to interpret the connotation of human rights, the ultimate answer will be determined by the interpretation framework of explainers. From the perspective of topics related to the Confucian discourse of human rights, in fact their content is not confined to the aforesaid three questions, and from the question about whether Confucian ideas on human rights exist in reality, we can further explore the historical junction, relations and specific construction of the two. These can be summarized as questions on being and not being, history, relations and construction of Confucian-human rights. 
 
II. On the Being and Not Being of Confucian-Human Rights
 
Given the differences in judging criteria, there are contrasting views on whether Confucian-human rights exist or not. Some hold that Confucian-human rights have never existed, some hold that they have existed since ancient times, and others hold that they didn’t exist in the beginning but emerged later. Because of the different criteria chosen the same scholar may agree with two contrasting views. 
 
A. Criteria for judging the being or not being of confucian-human rights
 
Whether or not there are Confucian-human rights should be considered a matter of fact. The question is, what are the criteria for judging whether there are or not? Some make the judgment from “text” (concept), some from “thinking” (ideas and notions), and some from “care” (practice). In terms of text, do ancient books and historical documents of China use the two words “Ren” (Human) and “Quan” (Rights) together? If yes, does it refer to the concept of “human rights” that we talk of today? Considering “human rights” and “interests and rights” are two closely related concepts, we can find clues to this question from the concept of “interests and rights.” The phrase “quan li” (rights and interests) can be found in ancient Chinese books. For instance, in On Learning Xun Zi stated that one shouldn’t surrender to “quan li” (power and benefits). In On Gentlemen Xun Zi said that sensual pleasure, “quan li” (power), anger and dangers can test whether a person maintain calmness in face of enticements and risks. The Biography of Marquises Weiqi and Wu’an in Records of the Great Historian states, “Yinchuan abounds in lakes and fields. The (Guan) family and their vassals sought ‘quan li’ (power) and dominated yingchuan.” All of these indicate that “quan li” in traditional Chinese culture means strength, power and wealth, which is associated with “power,” “privilege” and “money.” The phrase “quan li” mentioned in ancient Chinese books mainly means “power” or “benefit,” rather than the modern concept of “right” that involves justified right of individuals. In another word, “quan li” in ancient Chinese texts cannot be translated as “rights” in terms of modern Western semantics. The correlation between the Chinese phrase “quan li” and the English word “right” wasn’t established until modern times. 
 
However, some researchers argue that “though there was not a word in ancient China that can be translated as the Western concept of “right,” that does not mean that the ancient Chinese did not have a way to its express the advocacy of “rights” and they had no ideas or thinking about rights.”  This view denies the criteria to judge whether the concept of human rights existed in traditional Chinese culture from “concept” (phraseology), but discusses the topic from the perspectives of idea, language and thinking. In addition, some researchers hold that we should observe the basic orientation of the traditional Chinese concept of human rights from the perspectives of “human rights thinking” and “humanistic care” and find the ecosystem connotation of the theory of “humans born to be kind”, humanistic care of the theory on practice of value, and human rights value thinking of putting the people over the monarch in the thought of Mencius.  In fact, this view has presumed that Confucianism has the concept of human rights. Even if it hasn’t the concept of human rights, Confucianism at least has human rights ideas, thinking or care. 
 
Some scholars summarize the three views on whether there are Confucian-human rights or not as: non-existence in ancient times, existence since ancient times, and non-existence in the beginning but emerged later.  Following this train of thought, let us have a look at the specific theories. 
 
B. Non-existence in ancient times
 
According to relevant scholars’ theoretical research on the relationship between traditional Chinese philosophy and human rights in the past century, early thinkers were firm supporters for the theory that the concept of human rights didn’t exist in ancient China, and their theoretical foundation or base were built on liberalism from the West, translated Marxism or Confucianism in the traditional Chinese philosophical pedigree. For example, Liang Qichao who was deeply influenced by both Confucian traditions and modern Western liberal thought once reviewed the attitudes toward “democracy” and “rights” held by Confucianism, Mohism, Taoism and Legalism, and he concluded that the concept of civil rights didn’t exist in ancient China: “The theory of civil rights didn’t exist in ancient China. Legalism respected authority instead of the people; Confucianism attached importance to the people but neglected rights; Taoism and Mohism left this question out of consideration. For this reason, China had no theories of civil rights in ancient times.”  Liang Qichao thoroughly reviewed the relevant thoughts of Confucianism, Taoism, Mohism and Legalism, the four most representative of the Hundred Schools of Thought in traditional Chinese culture, not only through textual research but also through their philosophical traits and theoretical trends. He held that Legalism advocated “authority” and concluded that the theory of civil rights didn’t exist in ancient China. Ji Wenfu, an early member of the Communist Party of China (CPC), used the basic theories of Marxism to connect the emergence of civil rights and corresponding economic and industrial structure (commercial and industrial capitalism) and the political class structure (the Third Estate as part of the bourgeoisie). He concluded that there were thoughts on “prioritizing the people” and “subordinating the monarch” in the history of China, but there weren’t thoughts on civil rights.  In the Cultures of the East and West and Their Philosophies, Liang Shuming, a representative neo-Confucian scholar in modern China, elaborated on the different understandings of human rights in Chinese (Eastern) and Western cultures by emphasizing the internal consistence between mankind, individuality, freedom and human rights, and he held that the concepts of human rights and freedom did not exist in ancient China. 
 
In general, most researchers who held that the concept of human rights did not exist in ancient China have usually built their theories of “thought” and believe that traditional Chinese culture or Confucianism has no human rights (civil rights) ideas or concepts. However, it is necessary to further discuss why the generation most influenced by the different understandings of human rights between the East and the West almost unanimously held the firm belief that there are no human rights ideas in traditional Chinese culture, especially Confucianism. Apart from the possible “cultural resistance” mentality, were there any deeper factors influencing the formation of their views? 
 
C. Existence since ancient times
 
Most scholars hold that although Confucianism did not put forward a clear concept of human rights, it still contained the human rights spirit, ideas and other factors. Some even align pre-Qin Confucian thought directly with modern human rights thought, saying that the notions of “benevolent governance,” “human nature” and “people’s livelihoods” put forward by Confucian philosophers in the pre-Qin period such as Confucius, Mencius and Xunzi also contain human rights ideas. They conclude that Mencius’ insistence of “universal love” reflects respect and care for human beings, human life and personality, which holds that human rights are above everything, the people are the basis for everything, and any behavior that seeks benefits by sacrificing human life is inadvisable.  Here, the researchers directly translate the care for the people in Mencius’ “universal love” thought into an obviously modern qualitative conclusion that the ancient philosopher believed “human rights are above everything.” 
 
Some researchers believe that traditional Chinese Confucian thought contains the world’s earliest and most primitive ideas about human rights, which exerted far-reaching influence in history, and that their advocacy of free conscience, dignity of human rights, equality before the law and the right to resistance are in line with modern human rights.  Some researchers note that “the time-honored excellent traditional culture of the Chinese nation is rich in the gene of human rights culture,”  which articulates the historical limitation of this cultural gene. 
 
Some researchers further categorize the theory of “existence since ancient times” into the “sprouting theory,” “partial theory” and “enriching theory.”  The representative figure of the “sprouting theory” is Jiang Guanghui, representative figures of the “partial theory” include Chen Lai, Li Cunshan  and Li Minghui, and those of the “enriching theory” include Gu Chunde, Chen Zhishang, Li Shi’an and Lin Guizhen. In fact, this re-categorization is based on quantitative differences, and the three have no qualitative differences. That is, they all confirm that ideas about human rights existed in traditional Chinese cultural thoughts represented by Confucianism. 
 
D. Non-existence in the beginning but emerged later
 
The “non-existence in the beginning but emerged later” theory holds that traditional Chinese Confucian culture didn’t contain ideas about modern human rights, but it does not exclude them and can incorporate modern human rights. According to the basic notions of this theory, the relationship between Confucianism and human rights is actually elaborated at two different levels: in terms of historical fact, traditional Chinese Confucian culture didn’t contain ideas about modern human rights; in terms of exploring new value toward the future, traditional Confucian culture doesn’t reject modern human rights and can incorporate modern human rights in modern times. Considering that the focus of this theory lies in the second level and traditional Confucian culture usually resort to traditional resources to absorb ideas about modern human rights, scholars supporting the “non-existence in the beginning but emerged later” theory may also support the theory of human rights ideas “didn’t exist in ancient China” or recognize to some extent that they “have existed since ancient times.” For instance, Qiao Qingju holds that “Confucian culture hasn’t the concept of ‘’right’ and Confucian understandings of topics such as life, property and education have never been elevated to the level of right.”  In this sense, he is a supporter of the theory that human rights ideas did not exist in ancient China. However, he does not deny that Confucian thought can be converted into human rights ideas, and believes that Confucian thought can calibrate modern human rights ideas, so as to form the fourth generation of human rights. In this sense, Qiao is also a supporter of the “non-existence in the beginning but emerged later” theory. Other contemporary scholars who hold similar views include Chen Hongyi  and Cong Riyun.  Researchers like Chen Lai,  Li Minghui,  and Yu Wujin support the “non-existence in the beginning but emerged later” theory. They recognize Confucian thought’s value, importance and possibility in correcting biased Western ideas of human rights and enriching and expanding the connotations of modern human rights, and at the same time partially agree that human rights ideas already existed in ancient China. 
 
In general, the differences between the three theories on the being and not being of Confucian-human rights ― non-existence in ancient times, existence since ancient times, and non-existence in the beginning but emerged later ― were to a large extent caused by different understandings of the connotation of human rights: whether it refers to a concept, idea, thinking or care. Despite their contrasting views on the existence or not of Confucian-human rights, all agree that China’s traditional Confucian thought does not contain modern human rights concepts, but at the same time most researchers acknowledge that traditional Confucian thought contains “ideas”, “awareness” or “care” related to human rights. 
 
III. On the History of Confucian-Human Rights
 
Research on the history of Confucian-human rights focuses on answering questions such as: How did the connection between Confucianism and human rights take place in history? What influence did this connection bring to their relationship? Whether the influence was one-way or two-way? Typically, researchers of Confucian discourse of human rights may unconsciously accept the theory that Western ideas about human rights gradually spread to the East, and consider the exchange between Confucian and Western thoughts on human rights a process of one-way dissemination. In fact, in the process of interaction between China and the West, as a cross-language practice, the dissemination of human rights ideas also reflects “Eastern learning spreading to the West.” However, few researchers are engaged in the studies of the influence of traditional Chinese culture on the formation of modern Western human rights concepts or the world’s essential texts on human rights, and most neglect the Eastern influence on the formation of human rights ideas in the West. Based on current research results, the studies of the Eastern influence on the West in the dissemination of human rights ideas and the formation of human rights discourse focus on two aspects: impact on concepts and impact on normative texts. 
 
A. Eastern influence on the western concept of human rights
 
A few scholars have paid attention to the Eastern influence on the formation of Western thought on human rights. For instance, Cheng Zhongying believes that Western thought on human rights derived from China’s Confucian philosophy. He holds that before the emergence of the Enlightenment Movement in the 17th century, Western Jesuits to China translated Confucian classics into Latin and spread them in the West, which influenced the thought of many European thinkers including Gottfried W. Leibniz, Baron de Montesquieu, Jean-Jacques Rousseau, Francois Voltaire, Denis Diderot and especially John Locke.  Li Shi’an elaborated the influence of Confucian human rights thought on the development of Western philosophy in modern times, with France’s Voltaire, Rousseau, Montesquieu and Holbach and Germany’s Hegel as examples. He also quoted British scholar Joseph Needham’s view on the important influence of China’s Confucian thought on Western Enlightenment as the evidence. 
 
Professor Gu Chunde once said, “China’s Confucian thought and idea about freedom of speech exerted direct influence on modern human rights ideas.”  He cited the philosophical ideas of Spinoza and Montesquieu as examples, saying that the Confucian ideas about “free conscience” and “personally dignity,” especially the idea that “Never do to others what you don’t want others do to you,” played an important role in promoting the global acceptance of the modern international human rights law. However, he only put forward the view and did not provide a full argument and effective examples to support it. Chen Qizhi discussed the influence of Confucian ideas of humanism and human nature on European Enlightenment philosophers when they were introduced to the West, and believes that this prompted the formation of Europe’s modern human rights thought system. For instance, some Confucian proverbs such as “Never do to others what you don’t want others do to you” have been included in the Declaration of the Rights of Man and of the Citizen. 
 
Qiao Qingju’s “On the Relationship between Confucian Thought and Human Rights” gives a more detailed interpretation to the influence of Confucian culture on Western human rights ideas. He pointed out that during the Enlightenment Movement in the 17th and 18th centuries, as an embodiment of “rationality”, Confucian thought inspired the Enlightenment philosophy in Europe. “Confucian culture played an important and positive role in prompting the formation of the concepts of ‘rationality’ and ‘human rights’ in modern Europe.”  Qiao holds that both France’s Declaration of the Rights of Man and of the Citizen and the Universal Declaration of Human Rights contain Confucian ideas. Article 4 of the Declaration of the Rights of Man and of the Citizen reads, “Political liberty consists in the power of doing whatever does not injure another. The exercise of the natural rights of every man, has no other limits than those which are necessary to secure to every other man the free exercise of the same rights; and these limits are determinable only by the law.” This article can be considered a practical application of Confucius’ idea that “Never do to others what you don’t want others do to you.” 
 
In fact, most major proofs for “Eastern influence on Western human rights ideas” come from Zhu Qianzhi’s the Influence of Chinese Thought on European Culture and the Influence of Chinese Philosophy on Europe. The books are important academic works on the general history of cultural exchanges between China and the West. Jesuits who went to China to spread Christianity played a pivotal role in promoting contact of Chinese and European philosophies, and the debate on whether China’s traditional ancestral worship rites, Confucianism and heaven are against Christian doctrines provided an opportunity for Chinese culture to spread to Europe. Through thorough textual research, Zhu concluded that through the cultural contact between China and the West in the late Ming Dynasty (1368-1644) and early Qing Dynasty (1644-1911), China gained access to “scientific culture” in the disguise of religion while Europe gained access to Neo-Confucianism, the fundamental “philosophical culture” of China, which helped create the “philosophical era” in the history of European culture. European thinkers then used Confucian thought, which is different from Christianity, as the banner for their Enlightenment Movement. The philosophical influence made the European philosophical circle embark on a road of anti-Christianity, anti-theology and anti-religion, urging Europe to enter a “philosophical era.” 
 
Later researchers believe that as a symbol of “rationality,” Confucian thought inspired European Enlightenment philosophy and the formation of the modern concepts of “rationality” and “human rights.” This view is actually sourced from the above-mentioned ideas of Zhu Qianzhi. 
 
However, it remains controversial in academia how much traditional Chinese philosophy, especially Confucian culture, influenced the formation of modern European philosophy (including human rights ideas). Zhu Qianzhi holds that European philosophical thought in the 18th century derived from ancient Greece and China, particularly China.  He summarized two types of philosophical influence: one is that the French Encyclopedists embraced Confucius and his philosophy as materialism and atheism; the other is that German classical philosophy accepted it as dialectics and idealism.  Some researchers hold that Chinese influence on Europe during the 17th and 18th centuries was concentrated in the field of arts such as painting and ceramics, and its influence on Europe’s culture, politics, and philosophy was negligible.  Michelle Devèze, president of France’s Université de Reims, believes that before 1800 China gave much more to Europe than it gained from Europe, but the Chinese influence on Europe that he outlined was concentrated in the trade of goods, and the influence of Chinese artworks such as painting and porcelain on Europe could be seen as by-products of trade, so Devèze didn’t mention Chinese influence on European culture and philosophy.  In addition, some researchers criticize Zhu Qianzhi’s views from the perspectives of use of historical materials, methodology and logic, apart from ideological criticism.  Based on systematic summarization and evaluation, other researchers acknowledge the two-way perspective, instead of the one-way perspective, that Zhu’s research provides for the research of Chinese and Western cultural and philosophical exchanges, but at the same time doubt some of his conclusions and the effectiveness of his research methods. 
 
In general, current research on the influence of traditional Chinese philosophy on the formation of Western modern human rights ideas remains in a preliminary stage, with the focus on the introduction. More historical details are awaiting further exploration, and the arguments are too simple. In this sense, there is a great potential for academic research on Eastern influence on Western human rights ideas and philosophy. 
 
B. Eastern influence on western normative texts of human rights
 
In addition to some specific articles of France’s Declaration of the Rights of Man and of the Citizen, current research on the influence of Confucianism on Western normative texts of human rights is mainly concentrated on exploration and interpretation of the Confucian spirit and thought on the Universal Declaration of Human Rights.  For instance, Huang Jianwu elaborated the role that Zhang Pengchun played in the formulation of some important articles of the Universal Declaration of Human Rights as he worked with the United Nations Commission on Human Rights and the Drafting Committee for the Universal Declaration of Human Rights. Zhang interpreted the English translation of “Ren” (Benevolence) as interpersonal fairness or sympathy. Huang also expounded on the possible influence of such Confucian ideas as “benevolence and love,” “loyalty and forgiveness” and “good administration” on human rights. 
 
Some researchers hold that based on Confucian thought, Zhang Pengchun put forward many theoretical propositions on human rights, such as opposing Western-centrism, advocating diversity, seeking ethical consensus while shelving religious and philosophical disputes, and constraining rationality with free consciousness. Therefore, the ethical endowment of “benevolence” can serve as the foundation of human rights and break new ground for the legitimacy of the traditional human rights discourse that has fallen into a predicament due to religious criticism, rational criticism and power criticism.  As the global consensus on the value of human rights faces the risk of separation, some researchers try to retrieve the factor that once formed the Universal Declaration of Human Rights — Confucian ethics by emphasizing the importance of Confucian ethical spirit for the Universal Declaration of Human Rights: From the spiritual perspective, its integrated view can link individual rights and collective rights; its relational view attaches importance to the realization of human rights and transcends the “paradox of human rights”. It promotes the advancement from value consensus to common action, and then to criticism on the development of human rights in the world. Instead of resting on value consensus, common action is more important. 
 
As an important document on human rights, the Universal Declaration of Human Rights reflects the philosophical connection between China’s traditional Confucian thought (which can even be expanded to Chinese philosophy) and modern Western human rights ideas. This connection already took place in history during the formulation of the text of the Universal Declaration of Human Rights. Through researching the relationship between Zhang Pengchun and the formation of the Universal Declaration of Human Rights, scholars have explored the historical relations between Confucian thought and modern human rights documents and further interpreted the important meaning of “human rights” in connecting Confucian thought and basic ideas of the Universal Declaration of Human Rights to determine the necessity and possibility of further expansion. This is possible because the idea of “universal” human rights integrating the East and the West not only reflects the mutual understanding, respect and interpretation between Confucian thought and Western human rights ideas, but also implies that Chinese and Western ideas on “being human” are interconnected and mutually recognized. In this sense, historical exchanges of Confucianism and human rights imply the recognition of “commensurability” on what it means to “be human”, which incubated “universal” human rights. 
 
IV. On the Confucianism — Human Rights Relationship 
 
Theories on the relationship between Confucianism and Western human rights are closely associated with theories on whether human rights exist or not in Confucianism. Therefore, to a large extent, one’s judgment about whether traditional Confucian thought contains the concept of “human rights” directly determines how he or she views the relationship between Confucianism and human rights. Some researchers divide academic stances on differentiation between Confucianism and rights in the period from the late Qing Dynasty to the May Fourth Movement of 1919 into three categories: “(1) The compatibility and integration theories held by reformist scholars, which have been inherited by most neo-Confucian scholars in contemporary times; (2) The incompatibility and right negation theories held by conservative scholars, which were basically discarded by scholars in the post-May Fourth Movement era but have unexpectedly found echoes both in China and overseas in contemporary times; (3) The incompatibility and Confucianism negation theories held by radical scholars, which was inherited by the Neo-Enlightenment school with liberalism as the core in the 1980s and 1990s, but they could even compare to their pioneer Hu Shi in this regard.” 
 
Contemporary discussions on the relationship between Confucianism and human rights, in some sense, can be considered a continuity of the debate on the relationship between Confucianism and human rights since the late Qing period, and their basic directions are consistent. For example, some researchers summarize contemporary Chinese scholars’ views on the relationship between Confucianism and human rights into four categories: the theory of mild acceptance, which holds that Confucianism does not have the concept of human rights but can accept human rights ideas; the theory of conversion, which holds that although it never put forward the concept of human rights, Confucianism contains the spirit of human rights and can achieve conversion in modern times; the theory of confirmation, which holds that Confucianism has already developed the thought in line with modern human rights a long time ago, which is even superior to Western outlook on human rights; and the theory of “back to ancient times”, which opposes the combination of Confucianism with modern human rights but suggests purifying Confucian thought and restoring the kingcraft politics of ancient times.  Based on the syntagmatic relations of (positive and negative) evaluations on Confucianism and (positive and negative) evaluations on human rights, the following matrix diagram on the relationship between Confucianism and human rights has been put forward: (1) If holding a positive evaluation of both Confucianism and human rights, one will conclude that Confucianism and human rights are compatible with each other; (2) If holding a negative evaluation of Confucianism but a positive evaluation of human rights, one will conclude that Confucianism is a barrier for the development of human rights; (3) If holding a positive evaluation of Confucianism but a negative evaluation of human rights, one will conclude that Confucianism may replace human rights or provide resources for improving the negative side of human rights; (4) If holding a negative evaluation of both Confucianism and human rights, one will conclude that Confucianism and human rights are incompatible with each other. 

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Based on the aforesaid three views and the division of the three theories on existence or not of Confucian human rights (namely, “non-existence in ancient times”, “existence since ancient times” and “non-existence in the beginning but emerged later”), this paper summarizes the specific content of the relationship between Confucianism and human rights into the “exclusion”, “integration” and “conversion” theories that respectively correspond to the above-mentioned three theories.
 
A. Theory of confucianism excludes human rights 
 
If a researcher believes that Confucian human rights have not existed since ancient times, he or she will conclude Confucianism and human rights are mutually exclusive, namely they are incompatible when judged from the starting point of traditional Chinese culture. 
 
For instance, some researchers have analyzed the relationship between Confucianism and human rights from the perspective of the origins of their values and concluded that the spirit of human rights lies in the pursuit for freedom and equality and the confirmation and advocacy of human subjectivity. They discuss the topic from the perspectives of ancient China’s economy (the mode of production of the small-scale peasant economy), politics (authoritarian and hierarchical political ecosystem) and ethical values (obligation-centered), and reach the conclusion that traditional Chinese culture lacked the spirit of human rights.  Obviously, the theory that Confucianism excludes human rights presupposes that there are essential differences between China’s traditional Confucian thought (excluding modern Confucian thought) and Western theories of human rights, and traditional Confucian thought itself had no capability to eliminate such essential differences. 
 
B. Theory of confucianism integrates human rights
 
If a researcher believes that Confucian traditions contain the concept of human rights, he or she may conclude that Confucianism and human rights are “integrated” judged from the perspective of Chinese traditions. Even if judging from the perspective of modern times, they also conclude that Confucianism is likely to be integrated with human rights. Some scholars put forward the theory of layered integration between Confucianism and human rights. That is, through aligning the generational theory of Confucian thought and human rights, to respectively discuss the integration between Confucian thought and the third-generation, second-generation and even first-generation (most scholars believe that Confucian thought is in contradiction with the first-generation human rights, with the focus on civil rights and political rights). They even explore the relationship between Confucianism and the fourth-generation human rights, in an attempt to provide another verification method and angle of interpretation for human rights from the perspective of the course of development of traditional Chinese culture.  Some researchers holding the view denying the integration between Confucianism and human rights are rooted in dual misunderstanding of human rights and Confucianism: on the one hand, the foundation of the justness of human rights does not lie in individual freedom and right of self-choice; on the other hand, Confucian understanding of the human is not merely grounded on role relationships, but has the ability to carry out critical thinking on ethical roles on the basis of common humanity.  The key point of this view is that it builds the integration between Confucianism and human rights on the understanding of being “human” which is based neither entirely on Western liberalism nor on Confucian ethics. The backward-reasoning conclusion is that neither individual freedom (will) nor ethical relationships represents comprehensive and complete understanding of the “human” and “humanity.” To serve as the real foundation of human rights, a comprehensive and complete understanding of the “human” and “humanity” must contain and transcend the theoretical setting of Western liberalism and Confucian ethical relationships, so as to eradicate the dual misunderstanding of Confucianism and human rights. 
 
C. Theory of the conversion of confucian-human rights
 
If a researcher holds that Confucian human rights didn’t exist in the beginning but emerged later, he or she would conclude that Confucian human rights did not exist in the beginning when judged from the historical perspective of Chinese traditions. But if judged from the perspective of modern Confucian thought and seeking conceptual expansion or transformation with an eye on the future, it may be concluded that Confucian human rights emerged later, and the transition from “non-existence in the beginning” to “emergence later” was achieved through the “conversion” of Confucian human rights. In this case, whether traditional Confucian thought had the concept of human rights and the spirit, ideas or factors of human rights and constructed a system of human rights and whether modern human rights ideas can be transplanted or explored from traditional Confucian thought are considered two different questions. 
 
The theory of the conversion of Confucian human rights implicitly contains the question of exploring modern human rights in Confucian theories. However, based on the prerequisite judgment of whether Confucian human rights exist or not, there are two kinds of “conversion” between Confucianism and human rights: creative “direct” conversion and “indirect” conversion using the original philosophical foundation. 
 
If one holds that traditional Confucianism did not contain the concept of human rights and the two are incompatible with each other, he or she may conclude that the conversion is creative and direct. For example, scholars who are committed to researching traditional Chinese culture or Confucian thought such as Yu Wujin, Meng Peiyuan and Cheng Zhongying hold that the concept of modern human rights cannot be induced from traditional Chinese (Confucian) culture through comparative research of the differences between Chinese and Western human rights ideas, so they suggest creative conversion. 
 
If one believes that Confucian human rights have existed since ancient times and Confucianism and human rights are mutually compatible, he or she may reach the conclusion that existing Confucian philosophical resources can be indirectly converted into modern human rights ideas. For instance, the theory of Confucianism integrating human rights can naturally lead to indirect conversion, and the “Chinese model of human rights”, to a large extent, is a result of the so-called indirect “creation and conversion.” The Confucian model of human rights is a Chinese model of human rights put forward by Chinese and foreign Confucian researchers based on the compatibility between Confucian culture and modern human rights ideas. Du Weiming, William Theodore de Bary, Yu Yingshi, Chen Lai, Stephen C. Angle, etc. hold that Confucianism doesn’t reject modern Western concepts of human rights. Du Weiming, William Theodore de Bary and Stephen C. Angle even believe that after its modern transformation, Confucianism can develop the concept of human rights and thus form a Chinese model of human rights. 
 
Some researchers have classified the specific content of Confucian culture to find out factors or ideas that are compatible or incompatible with modern human right ideas. For instance, such Confucian ideas as the goodness of human nature, moral enlightenment, benevolence and putting the people above the monarch are compatible with such modern human rights ideas as emphasizing education, paying attention to safeguarding the collective human rights of vulnerable groups, and protecting the democratic and political rights of citizens. At the same time, such Confucian ideas as the feudal ethical code, “putting loyalty over benefits” and overemphasis on moral enlightenment are incompatible with such modern human rights ideas as equality, putting civil right first, and rule of law. Thus, they suggest the conversion of Confucian human rights is differentiated. 
 
V. Theory of the Construction of Confucian Human Rights
 
The theory of the construction of Confucian human rights calls for constructing theories of human rights and even forming a human rights theory system with Confucian thought and ideas as the theoretical resources. In this regard, the most representative of Chinese scholars who systematically demonstrated theories of modern human rights with Confucian concepts is Du Gangjian, who is dubbed a benchmark of “Chaoshan neo-Confucian scholars”. He constructed the theory of human rights based on neo-Confucian concept of benevolence. Some scholars have summed up Du’s neo-Confucian human rights thought.  For example, Chen Yilong incorporated Keifu Suzuki’s relevant thought into Du’s neo-Confucian human rights theory system and summarized its main theoretical framework as follows: 1. Human dignity is the logical starting point, which includes the purpose and initiative of individuals and respecting others’ legitimate rights and freedom; 2. Human equality, which derives from heaven, yuan (original element) and benevolence, and the non-discrimination principle; 3. Right to life, which transcends the right to subsistence and the right to social security; 4. Liberty of consciousness, which means one can freely expand, broaden and fully develop his or her consciousness. As an indispensible freedom for human beings, liberty of consciousness requires integrating studies and thinking, improving the system of rights, and reforming outdated laws and rules; 5. Liberty of expression, which is inseparable and indispensible with liberty of consciousness and represents a broadened version of the freedom of speech; 6. Right to resistance, which is based on the people-centered theory, theory of the will of the people, and theory of civil rights. Non-violent resistance is closely associated with the right to conscientious resistance and the liberty of consciousness. 
 
A paper on this summarization was published in an academic journal for which Du Gangjian served as its editor-in-chief. This indicated that Du Gangjian himself acknowledges this summarization, which can even be considered a public manifesto of the political and law thought and human rights theoretical system of Chaoshan neo-Confucian scholars represented by Du Gangjian. Based on the summarization of Du’s theories while taking into consideration of the articles he has published, this paper hereby makes a review of his neo-Confucian human rights theories. 
 
A. Liberty of consciousness as the starting point for benevolence studies
 
In terms of logical structure, Du Gangjian’s “human rights theory based on neo-Confucian benevolence studies” considers “consciousness” a breakthrough for the modern transformation of Confucianism: “Consciousness is a collective expression of the Confucian concept of being sagely inside, as well as the starting point for the transition from ‘being sagely inside’ to ‘being kingly outside.’ The consciousness theory reflects Confucian ideas of benevolence and equality and inherently contains the propositions of freedom and human rights.”  Du holds that throughout life, one needs to experience a transition from a natural person to a regulated person and then a benevolent person, and he stresses that liberty of consciousness is the basic human right of every “natural person” and only through giving full play to consciousness can a human being become a “benevolent person”.  He considers liberty of consciousness an embodiment of “being sagely inside” and the only way to achieve a person’s value for society and country (being kingly outside). He believes that reassessing Confucian thought from the perspective of the theory of rights is key to achieving the modern transformation of Confucianism. Du makes “liberty of consciousness” a breakthrough to establish neo-Confucianism in contemporary times, considers all positive elements of Confucianism, namely benevolence studies, as the essential spirit of Confucianism, and establishes new views on “being sagely inside and kingly outside”, so as to construct his own theory of human rights. Based on research of The Analects, he summarized benevolence studies into four doctrines: benevolence, righteousness, forgiveness and governance. The doctrine of benevolence is the foundation, from which the three other doctrines derived. In fact, the four doctrines of benevolence studies represent the four theoretical principles of human rights doctrine, resistance doctrine, tolerance doctrine, and new constitutionalism. 
 
B. Human rights doctrine
 
Human rights doctrine considers the protection of personal dignity the fundamental goal for building common social, government and legal systems for humankind. Such concepts and domains as personality, dignity, humanity, humanism, rationality, consciousness and benevolence are the most important cornerstones for the theory of human rights doctrine.  The principle of benevolence is a universal value of human rights, which is reflected in four aspects: Benevolence leads to universal love and a benevolent person shows care for others. Benevolence is the fundamental structure and propriety for practical use; One should seek benevolence, like benevolence, want benevolence and understand benevolence. Being benevolent is a personal choice, and those who study benevolence do so in the interests of others. 
 
C. Doctrine of tolerance
 
The Confucian principle of “forgiveness” reflects a doctrine of tolerance. In The Analects, “forgiveness” refers to “tolerance”, “inclusiveness”, “loyalty” and “enduring”. Benevolent governance and tolerance actually mean “governing by doing nothing against nature”. The doctrine of tolerance pays attention to “harmony”, “speech” and “study”. The Analects categorizes “speech” into “free speech”, “prudent speech” and “speechlessness”. “Study” in The Analects refers to lecturing and academic freedom, including the right to discuss state affairs and criticize autocratic behavior such as intolerant superiors and cruel governance. The doctrine of tolerance is a counter to centralized authoritarianism. 
 
D. Doctrine of resistance
 
Based on the principle of righteousness, The Analects puts forward the standards for advocating righteousness and bravery. The doctrine of resistance is related to the social contract theory. The Confucian theory of a social contract is embodied in the will of the people… Confucian propositions of the right to resistance include refusing to serve tyranny and tyrants, being free to leave the country ruled by a tyrant, dethroning, exiling and crusading against tyrants, killing tyrants and dictators, etc. In contemporary society, the doctrine of resistance is usually embodied by non-violent resistance and conscientious refusal. 
 
E. New constitutionalism
 
The “principle of governance” in The Analects actually means self-discipline. On the one hand, it limits the power of the ruler, and on the other hand it protects the rights of those who are ruled. New constitutionalism calls for benevolent governance, guided by human rights, and considers democracy as an ideal of humankind. It makes human rights a practical means to achieve benevolent governance. Through yuan zhuang (literally “original states”) and yuan yue (literally “original regulations”), people complete the determination, separation and revision of rights and realize the transformation of the outlook on rights and obligations from the obligation-centered principle of Confucianism to the human rights-centered principle. Yuan zhuang and yuan yue actually refer to Confucian principles of “benevolence, righteousness, propriety, wisdom and trustworthiness”. Theoretically, yuan zhuang refers to the five states before people forge a shared community of law: first, benevolence sprouts when the binding force of consciousness remains insufficient; second, the right to freedom and equality; third, the wish for mutually beneficial cooperation; fourth, rationality runs through the entire process from beginning to end; fifth, agreeing to keep promises and maintain honesty. Once people acknowledge yuan zhuang, they can reach yuan yue. Through the justification of yuan yue, they can then determine and separate rights and obligations. New constitutionalism suggests rule by the constitution and law, namely formulating the constitution according to human rights and formulating laws according to a sound constitution. The theories behind the constitution are benevolence, righteousness, propriety, wisdom and trustworthiness.
 
F. Theory of the basic human rights system for bidirectional rule of law
 
In terms of the relationship between individuals and public power, the fundamental view of traditional benevolence studies is an order featuring bidirectional obedience: on the one hand, the inferior is obedient to the superior and the common people are obedient to the government; on the other hand, the superior is obedient to the inferior and the government is obedient to the people. The obedience relationship in the top-down order was maintained through rites and laws, while the obedience relationship in the down-top order was maintained through benevolence and righteousness. In this case, the down-top order was too weak. The bidirectional order theory of new benevolence studies pays attention to the balance of bidirectional law-based order, and objectifies the ideas of “putting the interests of the people above that of the government” and “putting the interests of the people above that of the state” into specific fundamental right systems and rules. 
 
\
 
Du Gangjian’s neo-Confucian theory of human rights is worth great attention. Its discourse has the following characteristics: First, its systematicness. It forms a complete system, encompassing almost all major theoretical topics and basic contents about human rights; Second, its logicalness. The theoretical system constructed on the basis of interpretations of “benevolence” boasts a strict logic; Third, its subjectivity. It uses traditional Confucian philosophical resources not for history studies but as materials for practical study. Du’s research does not eye Confucian ideas in history but his own ideas. For instance, he considers the discourse of The Analects as the sprout for the four principles and basic values of new benevolence studies and clarified that The Analects doesn’t mention the phrase “human rights”, but he also holds that many values and ideas mentioned in The Analects are in line with the principle of human rights doctrine and concluded that the principle of benevolence in The Analects is the theoretical foundation for human rights doctrine.  From the specific discourse of The Analects to the theoretical foundation of the principle of his new benevolence studies, Du didn’t make an argumentation on how the logical connection between the two was built. Perhaps in his view, it doesn’t matter whether relevant discourse in The Analects is the foundation for modern human rights. Fourth, its imperceptibility. His theoretical system has many theoretical presuppositions, logic jumps, and linguistic and conceptual transcendences or integrations. I will discuss criticism of Du Gangjian’s neo-Confucian theory of human rights, so I will not talk too much here. 
 
VI. Conclusion: The Contemporary Position of Confucian Human Rights Discourse
 
Based on research of Confucian human rights, theories on whether Confucian human rights exist or not, and if they do, their history, relationship and construction compose the fundamental content system of Confucian human rights discourse. The complexity and diversity of the content system reflect that the Confucian discourse of human rights is at a significant juncture between China and the West and between the past and the present. This juncture is the overlapping part and consensus of Chinese and Western cultures, where the commensurability of human rights emerged. Currently, the overlapping process of Chinese and Western cultures is deepening. This is the cultural background for the modern transition of traditional Chinese Confucian thought and ideas, as well as the hidden background for constructing the discourse of human rights with Chinese characteristics. Traditional Chinese culture, with Confucian thought as the mainstream, is not only the cultural fulcrum to introduce and recognize Western human rights theories but also the philosophical cornerstone for Western human rights theories to achieve localized interpretation and understanding in China. 
 
(Translated by LIU Haile)

* MENG Qingtao ( 孟庆涛 ), Associate Professor, Deputy Director of the Human Rights Institute, Southwest University of Political Science and Law. Doctor of Law. This paper is a periodic achievement of the Ministry of Justice’s 2015 national law and legal theory research project “Institutional Supply and Behavioral Choice of Juridical Guarantee for Human Rights” (Project No.: 15SFB3001) and China Society for Human Rights Studies’ 2020 ministerial-level research project “Cultural Interpretation of Confucian Discourse of Human Rights” (Project No.: CSHR2020-09YB).
 
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