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Anti-Despotism and "Rights Talk": The Intellectual Origins of Modern Human Rights
Thinking in the Late Qing

Author(s): Peter Zarrow
Source: Modern China , Apr., 2008, Vol. 34, No. 2 (Apr., 2008), pp. 179-209
Published by: Sage Publications, Inc.
Stable URL: http://www.jstor.com/stable/20062698
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Modern China
Volume 34 Number 2
April 2008 179-209
? 2008 Sage Publications
Anti-Despotism and 10.1177/0097700407312822

hltp;//mc.sagepiib.com
"Rights Talk"
hosted at
http ://online.sagepub.com
The Intellectual Origins of

Modern Human Rights Thinking
in the Late Qing
Peter Zarrow
Academia S?nica
During the last years of the Qing dynasty, intellectuals began to refer to the
notion of "human rights" with increasing frequency, and it soon became, in
effect, indigenized. In this process, Chinese intellectuals forged a modern
conception of rights that was not identical to today's notions but treated
rights as morally necessary, along with duties, for any decent society. Rights
talk spread rapidly because it was a powerful tool for the critique of Qing
despotism and also for the building of a modern state. In a fashion in some
ways parallel to the northern Atlantic world two and three centuries previ
ously, late Qing intellectuals combined fears of despotism with dreams of a
new constitutional order based on rights-bearing citizens. Anti-despotism
thus fueled rights thinking, as was seen not only among radicals but also by
the last years of the Qing, among reformers and even officials as well.
Keywords: human rights; late Qing; radical Confucianism; Liang Qichao;

Liu Shipei; Yang Tingdong
In 1901 an anonymous
lived radical journal published inauthor
Tokyo bywrote an article
Chinese exiles. The cause on "Citizens" for a short
was republicanism: kings are, popular opinion to the contrary, simply not
necessary to the state, but there can be no state without a people.1 And
Author's Note: This article was originally conceived at the invitation of Jeffrey N.
Wasserstrom for a panel looking at human rights in various countries and internationally at the
Twentieth International Congress of Historical Sciences (University of New South Wales,
Sydney, 3-9 July 2005). I am grateful for the comments of Professor Wasserstrom, the other
panelists, several lively members of the audience, and finally Modern China's ever-rigorous
readers, none of whom should be blamed for any remaining mistakes or misinterpretations.
179

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180 Modern China
citizens?as opposed to slaves?possess rights (quanli), responsibilities,

freedom, equality, and independence. The author then explained these key
terms, beginning with rights. As nature (Tian, Heaven) gives birth to
humans, so it gives them the rights of personal freedom and political partic
ipation. Since the fate of the state and its citizens are intimately bound
together, the "true rights" of citizens "cannot be suppressed by tyrants, can
not be infringed on by cruel officials, cannot be denied by parents, and
cannot be presumed on" ("Guomin," 1963: 72-73; cf. Angle and Svensson
2001: 3). The author also strongly implied that citizens needed to assert their
rights?otherwise, they are not citizens. Citizens are concerned with the
nation and race, while slaves care only for themselves and their families.2
The author defined liberty as freedom from oppression, which occurs in
two forms, monarchism and imperialism. France represented the break
from monarchical oppression, while the United States represented the break
from foreign oppression. Only with their revolutionary breaks did the
French and the Americans become citizens. So what do the Chinese need to
do to become citizens?
We must first break away from the oppression of thousands of years of tyran
nical customs, thought, moral education, and learning. The "form of freedom"
lies in breaking away from monarchism and imperialism, while the "spirit of
freedom" lies in escaping from ancient customs, thought, moral education,
and learning. ("Guomin," 1963: 73; cf. Angle and Svensson, 2001: 4)
Finally, in defining equality, the author returned to the notion of original

nature (Tian) that completely lacked hierarchies. Inequality only came
about through violence; it was the role of citizens to claim (reclaim) their
equality by making all persons both rulers and ruled, aristocrats and work
ers. This world of equality and rights included women and workers and was
free of distinctions between "noble and base." Indeed, the author particu
larly attacked contemporary society for depriving peasants of their rights:
oppressed by officials, exploited by landlords, and abused by criminals.
Ultimately, rights had to be backed by law. "In sum, the rights of the citi
zens must be established through constitutional provisions; only then can
they be called rights" ("Guomin," 1963: 76).
Late Qing thinking about rights originated in revulsion against despotism.
Anti-despotism?broadly defined as opposition to social and cultural repres
sion as well as to political autocracy?fueled rights thinking. In other words,
radicals used the concept of "rights" to reveal the evils of despotism. Within a
generation, rights became indigenized or "naturalized" in the Chinese

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Zarrow / Anti-Despotism and "Rights Talk" 181
context, even while conservatives resisted or co-opted them. Initially alien

concepts such as rights and human rights (renquan) became familiar and
commonly cited tools of political and even legal discourse. Even before the
1911 Revolution, an exclusively radical critique of the sociopolitical status
quo?summarized as "despotism"?had become, if not necessarily de
radicalized, certainly more mainstream. It had become impossible to imag
ine a modern society operating without "rights" of some sort.
The 1901 "Citizens" article already mixed together the key ingredients
that would come to make up Chinese conceptions of rights. Whether rooted
in nature or in human institutions, rights were first attached to citizens?
conceived as claims on the state. Second, rights were set against an entire
set of interlinked forms of oppression: state, family, foreign powers, old
customs, and traditional education and learning. If the author of "Citizens"
focused on monarchism and imperialism, he also attacked hierarchy and
oppression in general. By implication, at least, the article's dichotomy
between citizens (rights-bearing) and slaves (dependent) could apply to all
humanity not just the Chinese people. While the author focused on politi
cal rights?of both the "whole citizenry" (quanti guomin) in China and
China vis-?-vis other nations?he was also sharply aware of social
inequities. Citizens' rights were legitimated precisely because of their basis
in natural (universal) justice. Ambiguously, the author seems to have
assumed that slaves were victims but also that they held a moral responsi
bility to free themselves of both domestic and foreign oppression (both of
which were "racial" in the late Qing context). It was the role of progressive
intellectuals to awaken the people, the author felt, as French scholars of the
seventeenth century had planted the seeds of citizen's rights in France.
Although the "Citizens" author's vision of a rights-enlightening revolu
tionary vanguard scarcely emerged in the 1911 Revolution as mainstream
ideology, rights thinking was integral to the intellectual ferment that made
possible the republican revolutionary movement. "Rights" quickly became
common parlance. Granted, conservative forces seized control of the revo
lution, and new political elites remained skeptical, at best, of any claims on
the state in the name of human rights. The story of human rights in modern
China is not one of success?or even one of "rise and fall." Nonetheless,
rights thinking informed both critiques of the governments of the twentieth
and twenty-first centuries and even, to a degree, informed various attempts
at constitution building. If the rights enumerated in China's constitutions,
for example, have been honored more in the breech than in deed, they still
represent an official expression of certain ideas that were important to
claims to legitimacy. To understand battles over rights in China today,

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182 Modern China
the strengths and limitations of rights claims, and the sensitivities of the
government in regard to individual and national rights, it helps to know
something of how late Qing intellectuals first delineated the field of rights.
Sources of Rights Thinking
Human rights thinking in modern China rose out of the intellectual

needs of a relatively small number of men and women who advocated for
radical change around the turn of the twentieth century.3 Chinese who wrote
about human rights were certainly influenced by their readings of Western
and Japanese intellectuals and their understanding of Western societies,
Japan, and Hong Kong. At the same time, they used, adopted, and reworked
existing conceptions of human rights to meet their own needs. A world
history of human rights has yet to be written (Cmiel, 2004). Such a history
would include the role that human rights thinking played in the rapidly
evolving political discourses of the late Qing (1895-1912) and early
Republican (1912-1919) periods. At the same time, the Revolution of 1911
cannot be fully understood without reference to the revolutionary import of
human rights. The literature of the period is permeated with "rights talk,"
but the question remains: what did it signify?
Whether China possessed any equivalent or basis of a human rights tra
dition before the introduction of an explicit rights vocabulary in the late
nineteenth century has been subject to much scholarly debate. On one hand
are those who see in traditional patterns of thought and sociopolitical
norms, especially the Confucian system, many notions that were compati
ble with modern human rights thinking and, indeed, perform what might be
called human rights functions, at least to a degree.4 On the other hand are
scholars who emphasize the lack of any doctrine of political freedoms and
rights in premodern China.5 There is truth in both these views. Insofar as
the latter view posits the "importation" of Western concepts of human
rights by Chinese, however, it is important to note that "rights" as explicit
political doctrines can be found no more in premodern Europe than in pre
modern China (regardless of putative cultural dispositions). In that sense, to
speak of "human rights" before the English, American, and French revolu
tions of the seventeenth and eighteen centuries is anachronistic. At the same
time, if claims to Chinese traditional liberties can be exaggerated, to dis
miss the entire Chinese political tradition as despotism or totalitarianism
(actually, another anachronism) is even less tenable. To conclude baldly
that premodern China lacked "rights," though a defensible argument, is to

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fall into a trap insofar as the presumption is that, in contrast, the premodern
"West" had rights.6
If "rights" is handled consistently, this trap can be avoided. Thus prefer
able is the approach of Marina Svensson; she doubts that "proto human
rights" ideals can be found in the Chinese tradition, though that is not to
deny that traditional values can provide a philosophical basis for human
rights (Svensson, 2002: 8-13, 54-58). Correctly in my view, she emphasizes
the modern nature of human rights, implying that they marked discontinu
ity in the West as well as elsewhere; furthermore, she also points out that
acceptance of human rights does not depend on finding an indigenous tra
dition of them. The point here is that discussions of traditional elements of
Chinese thought are relevant not to claim equivalency but to analyze how
intellectuals could use such resources as they built a discourse of modern
rights thinking.
The historical problem of this article thus lies in the development of
modern human rights thinking in the specific Chinese context. Naturally,
this development was shaped by both indigenous notions (evolving and
complex) and Chinese intellectuals' understanding of Western-Japanese
concepts of rights (as we will see in detail below). The most subtle treat
ment of these issues is that of the philosopher Stephen Angle, though Angle
is less concerned with the political context and the uses that radical intel
lectuals had for rights thinking, which this article discusses. Angle sensibly
concludes that "certain strands of the Confucian tradition paved the way for
rights discourse in China; throughout its history, in fact, Chinese rights dis
course should be understood as an ongoing creative achievement, rather
than a reaction to or misunderstanding of Western ideas and institutions"
(Angle, 2002: 2). Those strands of the Confucian tradition, he shows, made
their way into late Qing understandings of "rights" (quanli). I would only
add that if modern human rights concepts have rather hazy "roots" in the
Western tradition(s), it is these or similar roots?and not, of course, human
rights as such?that can be seen in elements of Chinese Confucianism and
Buddhism as well as other traditions around the world. As rights thinking
developed in different places in response to different needs during the
course of the twentieth century, China represents a local case of a global
discourse. Rights were a revolutionary notion?not because they had any
intrinsic power or fascination but because they met needs of radical intel
lectuals trying to reshape the political order.
In the wake of Japan's defeat of Qing forces in 1895, a series of inter
national setbacks fostered a climate of urgency, even crisis; talk of the
"destruction of the race" reflected serious concerns triggering ever more

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184 Modern China
radical calls for reform. A key moment came with the abortive reform
movement of the summer of 1898. The reformers were directly influenced
by notions of political rights as central to the process of turning the Chinese
people into active citizens; they sought to end what they deemed a despotic
political system, albeit through top-down reforms (Zarrow, 2002). The
movement was violently suppressed by a panicked Empress Dowager fear
ful that its leaders wished to overthrow the Qing itself (or at least depose
her). More broadly, a few of the most radical intellectuals also attacked the
hierarchical relations espoused by Confucianism and even called for gender
and social equality. By the early 1900s, anti-despotism in the form of sup
port for constitutionalism was a mainstream view among the educated elite.
Meanwhile, after the Boxer disaster and the Allied invasion, in 1902 the
court itself countenanced serious reformism, promoting the so-called New
Policies (xinzheng), beginning with administrative reforms roughly like
those proposed in 1898 and moving on to the dramatic abolition of the age
old civil service examination system in 1905 and the even more remarkable
promise of a future constitution in 1906.7 Proposals that had been treason
to utter were now official policy; conservatives had the ground cut from
under them (or to put it another way: the political center had shifted). Of
course, vested interests, both locally and nationally, sought to resist or co
opt reform, but rights language was becoming institutionalized as the
court's reforms created a constituency for further reforms. Students and
teachers in new schools and sent abroad along with bureaucrats and nonof
ficial elites working on specific reform projects in tandem with new social
forces such as urban journalism, flung themselves into battle against con
servatives and the Qing's own sluggishness. In a word, a civil society was
emerging that was to provide human rights thinking with a real, if limited,
social base.
With the rise of distinct reformist and revolutionary movements, rights
thinking came to inform the rapidly evolving discourse shared by both
groups. In this context, human rights were part of a package that included
popular sovereignty, citizenship, and constitutionalism as well as national
ism. As a weapon against despotism, then, "rights" (quanli) and "human
rights" (renquan) were adopted from the West and quickly indigenized?
that is, used as key arguments with no particular sense of foreignness
(Angle and Svensson, 2001: xiii). Still, the fact remains that late Qing intel
lectuals did discover "rights" in writings from the West. Three sources were
critical: Rousseau (and the American and French Revolutions), Christian
missionaries, and theories of law. Descriptions of Western legal systems,
including attempts to translate "rights," date to the early nineteenth century,

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but it was a translation of Wheaton's International Law that consistently

translated "rights" as quan and quanli and offered definitions of the notion
(Svarverud, 2001: 127-32; Angle, 2002: 104-10). However, though Chinese
officials used Wheaton to good effect in dealing with the European powers,
rights was of little general interest. Traditionally, the term quanli referred to
the combination of "power" (quan) and profit (//) and had a negative con
notation, and an association with "advantage" (negative or not) carried over
to the Chinese version of Wheaton. The term quan continued to be associ
ated with power and authority, but quanli was increasingly used in the sec
ond half of the century to refer to rights or legitimate interests, and
eventually, related terms like minquan (the quan of the people) were used
to mean "popular power" or, loosely, "democracy." Similarly, missionary
publications discussing "autonomy" (zizhu zhi quan) were helping prepare
the way for the spread of the neologism quanli (Liu Guangjing, 1994). As
Chinese and Japanese writers began increasingly to use quanli to refer to
prerogatives, interests, and ethical claims of groups (especially nations) as
well as individuals, they were thus moving closer to "rights" in the general
Western sense(s) of the term.
If, as Lynn Hunt (2000) has convincingly argued, specifically "human
rights" emerged out of the American and French revolutions of the late eigh
teenth century, it appears that roughly similar revolutionary conditions in
China produced similar conceptual needs. In other words, it should not be
surprising that the rights language that eighteenth-century Western revolu
tionaries derived from the Enlightenment proved useful for later Chinese
who wished to abolish the dynastic ancient regime. Rights of Chinese indi
viduals, citizens, and groups emerged as a response to?or, better, ways of
dealing with?modern state building under the pressures of imperialism.
Traditional patterns of life were disrupted, and belief systems cracked and
shattered. The basic ideology of governance promulgated by the Qing empire
in China proper rested on the emperor's special relationship to Tian (Heaven,
nature), which the Qing adapted from the ancient Confucian tradition to its
special needs as a Manchu conquest dynasty (Crossley, 1999; Zito, 1997).
Power was diffused through an unusually efficient premodern bureaucracy
that tied the landed elite to the throne, and thus power was legitimated
through an analogy between the patriarchal family and the state that rested
on cosmological foundations. As a kind of representative of cosmic forces,
the emperor promised order and justice (ren, benevolence) while claiming
omnipotence. While powers of the court and bureaucracy were rather limited
in practice, it should not be surprising that this entire politico-cultural
system was condemned as despotic by the end of the nineteenth century.

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186 Modern China
In the West, Hunt emphasizes, the American and French revolutions stip
ulated that the legitimacy of governments depended on their ability to guar
antee human rights; if, in fact, major groups were left unprotected and if, in
fact, revolutionary processes often led directly to brutal violations of human
rights, nonetheless the notion that all humans held equal, natural rights just
because they were human became widespread (Hunt, 2000: 3-4). Not all of
these elements can be found, at least to the same degree, in the Chinese rev
olution, but interest in Rousseau's Social Contract was critical in leading to
more precise understandings of the content and scope of "rights." First
translated into classical Chinese in Japan in the late 1870s and early 1880s,
it made relatively little impact in China until the late 1890s. Rousseau then
particularly spoke, as it were, to the shocked and radicalized victims (and
their numerous sympathizers) of the Empress Dowager's coup against the
1898 reform movement (Lin, 1989: 32-94). Chinese translations and com
mentaries on Rousseau then virtually flowed off Chinese presses, led by
Yang Tingdong's 1902 retranslation of the Social Contract. Of course, not
all intellectuals were impressed by Rousseau, but progressive intellectuals
of all stripes found rights talk useful (Wang and Shu, 1995). The "social
contract," "general will," and "natural rights" were key resources for desta
bilizing the cosmic legitimization of the monarchy and forming a new basis
of the state that rested on popular sovereignty. In the formula tianfu quanli
("Heaven/nature-endowed rights"), the notion of T/an/Heaven was directly
wrested from the monarchy and turned over to the people.
Radical Confucianism and

Revolutionary Thought, 1895-1911
The period from the 1860s to the 1890s perhaps represents a kind of pre
history of human rights in China. Legal translations, missionary commen
taries, and Japanese discussions of Western philosophy and history: all
mentioned rights using a variety of terms that seemed to have little resonance
among Chinese intellectuals until the very end of the 1890s. Yet the rapid dis
semination of human rights discourse after the turn of the century suggests
that by the 1890s, the groundwork necessary for the acceptance of human
rights had been laid. Leading intellectuals were speaking of the necessity of
popular power (minquan), public opinion, parliaments, and evolutionary
progress. While professing their loyalty to the Qing, they adamantly sup
ported "constitutionalism" over "despotism." They were, in effect, under
mining the cosmological foundations of the traditional kingship.

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Before the 1890s, in other words, human rights made little sense to most
Chinese. By 1900, however, even if they rejected human rights or natural
rights, Chinese intellectuals now found these notions comprehensible.
Kang Youwei (1858-1927) linked universal moral truths, particularly the
Confucian ren (benevolence), both to equality among humans and to indi
vidual autonomy. As early as the 1880s, Kang had unmistakably con
demned the autocratic monarchy as a contravention of scientific truth
(Kang, 1987; Li, 1978). Going further, Kang's sense of the despotic nature
of Chinese society is seen in his Utopian vision of the equalization (or sim
ply abolition) of the relationships of husband-wife and father-son as well
as ruler-subject: the hierarchical Three Bonds of traditional Confucianism
(Kang, 1979). Kang based his egalitarianism not only on ren but also on the
"right to autonomy" (zizhu zhi quan) that he presumably borrowed from the
very different context of missionary work. Kang's Utopian work, Datong
shu, unpublished but made known to his disciples, postulated universal
progress from "chaos" through "lesser peace" (which Kang thought the
twentieth century could reach) to a perfect world in the future. Influenced
by Buddhism, Kang thought this perfect world would come about through
"breaking down boundaries" (jie), such as those marking races, nations, the
genders, and even the family. The rights of the people (renmin quanli)
should thus progress from the limitations and inequalities imposed by var
ious autocratic states to equal rights under democratic government (though
in a world of lesser peace still marked by racial disparities), and finally,
with the abolition of states, to rights and freedoms checked only by public
laws under a system of absolute equality (Kang, 1979: 161, 163; cf.
Thompson, 1958: 124-26). Kang consistently linked rights to individual
autonomy, and his Utopian vision featured free marriage, public nurseries,
and representative government.
The Empress Dowager's coup against the 1898 reforms resulted in the
execution of several of the movement's leaders and the emperor's effective
house arrest. Reformers were in despair, and outright revolutionary senti
ment began to take hold among the radical intelligentsia, especially
students. The article on "Citizens" discussed above belongs to the period
when revolution (overthrowing the Qing and ending the monarchy) and
reform (building a constitutional monarchy) were still barely differentiated
(and treated as equally treasonous by the Empress Dowager). The eighteen
year-old Zou Rong's famous tract "Revolutionary Army" (1903), however,
called for the violent overthrow of the inferior and barbarian Manchu
overlords. Zou's racial invective, based on his belief in a pure-blooded
Han (Chinese) race, was combined with a thoroughgoing republicanism.

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188 Modern China
The point here is that Zou's argument, usually interpreted in terms of Han
nationalism, was also thoroughly imbued with the rhetoric of rights. The
purpose of revolution for Zou was not simply to destroy the Qing but to pro
vide all the rights (quanli) of freedom, equality, independence, and auton
omy for the citizenry (Zou, 1994; cf. Lust, 1968; Angle and Svensson,
2001: 29-37). Revolution, for Zou, was the duty of all citizens since their
natural rights (tianfu renquan) were being suppressed by the Manchus.
Putting aside the question of whether Manchus merited rights, Zou was
seeking liberation for what he saw as his people ("China for the Chinese").
Specifically, Zou based his vision of citizenship on the principle of natural
rights, as follows:
Everyone should know the principles of equality and freedom. At birth, there
are none who are not free and equal. In the beginning there were neither
rulers nor subjects....Later generations were ignorant of this principle. As
soon as they achieved power, countless traitors, despots, and thieves monop
olized what belonged to the common people and made it the private property
of their families and clans. They called themselves rulers and emperors, so
that nobody in the empire was equal and free....So today the revolution of
our compatriots should drive out the foreign races ruling us and exterminate
the autocratic monarchs to restore our natural rights. (Zou, 1994: 204-5;
Angle and Svensson, 2001: 32-33)
Zou envisioned a kind of virtuous cycle based on rights and duties. The
citizens who Zou wanted to create through "revolutionary education"
needed such qualities as self-respect, independence, boldness, civic virtue,
and the like to rule themselves; at the same time, by claiming their natural
rights, people would foster their independent personalities with these qual
ities. Meanwhile, however, Zou despaired of his compatriots, using the
common trope "slaves of slaves" to describe them?the Han as slaves of the
Manchus, who were slaves of the foreign powers. In other words, people
either claimed their rights or they were slaves.
Zou Rong may be taken as representative of a way of thinking about
human rights that made them integral to revolutionary righteousness. Most
revolutionaries seem to have accepted the principle of natural rights, which
functioned with "citizenship" as a symbol of everything opposed to the
despotic state. Indeed, "individual rights," "natural rights," and "political
rights" were powerful slogans, and the revolutionaries did much to popu
larize these concepts. The revolutionary literature seldom explored the
concept of rights in much detail, however. Rights largely appeared as com
ponents of larger packages of good things: political participation, freedom,

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constitutionalism, equality, independence, democracy, and so on (Zhu,

1985: 115-18; Lin, 1989: 85-90). Interest in the exact distinctions between
different kinds of rights and in the moral basis for rights claims was perhaps
overwhelmed by the need to define the nation. The anarchists, however,
abhorred all national and racial distinctions and further naturalized rights in
Chinese political discourse by making both individual and collective rights
central to the project of building a state-less society on principles of justice.
The critical figure in this process was Liu Shipei (1884-1919). Anarchist
exiles in Paris and Tokyo after 1907 began disseminating a theory of world
revolution and tended to disdain nationalism. The fundamental anarchist
argument might even be reduced to rights: it is because humans could not
be legitimately deprived of their rights (liberty) that all systems of rule and
exploitation were immoral. Authority in all its forms?the state, the family,
capitalism, landlordism, even representative democracy?deserved to be
overthrown and replaced by freely cooperating social units. The anti
despotic impulse hardly could be imagined in purer form. The Chinese
anarchists were attracted both to individual freedom and communitarian
sharing; they largely followed Kropotkin's anarcho-communism. They thus
faced the question of how to balance different sorts of rights and, in doing
so, further naturalized rights talk. The question was not how to justify rights
but to find ways to work them out.
Liu developed his distinct approach to this question in his twenties.8
A master of traditional Chinese learning, as early as 1903 he applied his
knowledge of the classics to coauthor a work directly inspired by Rousseau.
The point was to bring to light putative examples of "social contract" think
ing in the Chinese tradition (Liu, 1997a). The work actually had little to say
about rights, focusing more on historical discourses on the duties of rulers
and mutual obligations of rulers and commoners. But it did in effect empha
size the naturalness of both liberty and cooperative behavior. By this time,
Liu had become an anti-Manchu revolutionary and, as an activist-scholar,
defended the notion of a unique Han Chinese identity in both racial and cul
tural terms. As a leader of the "national essence" (guocui) school, Liu
sought to broaden, not ossify, traditional learning by turning to sources out
side the Confucian tradition. At the same time, in his 1905 textbook on
ethics, he discussed rights in a way to legitimate individual interests with
out threatening social solidarity (Liu, 1997b). Liu specifically attacked the
Three Bonds on the grounds that they restricted individual freedom. For
Liu, while "rights" (quanli) were rooted in natural desires, humans were
ultimately social beings and rights were intimately linked to duties. Using
Confucian language, Liu (1997a: 566 [11a]) posited, "If one can extend

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190 Modern China
one's self-interest to others (empathy), then the boundaries between the

social whole (gong) and the individual (si) will disappear." This goal Liu
linked to Rousseau's notion of the general will. Both rights and duties
stemmed from the social nature of human beings, yet it was important to
find a precise balance: the "liberties of one cannot transgress the liberties
of another" (Liu, 1997b: 137 [28a]).
Liu's strongest statements on human rights came after he had converted
to anarchism in 1907, but his newfound belief in the equality of anarcho
communism echoed many of his earlier concerns. In his understanding of
rights, equality was as important as liberty. Indeed, Liu justified his basic
belief in equality on the basis of human rights. He treated liberty as sec
ondary, though still unchallengeable as long as it did not interfere with the
liberties of others, and he emphasized that natural rights (tianfu renquan)
guaranteed individual autonomy, which, in turn, guaranteed equality when
it was applied to humanity as a whole. Liu understood rights both to be pri
mary (not to be trumped by necessities of state) but also to be social in
nature. He simply did not picture the individual as divorced from society.
Humankind has three basic rights: equality, independence, and liberty.

Equality consists of everyone having the same rights and duties; indepen
dence consists of neither enslaving others nor depending on others; and lib
erty consists of being neither controlled by nor enslaved by others. We
consider these three rights to be natural (tianfu). Independence and liberty
treat the individual as the basic unit; equality must be considered in terms of
humankind as a whole... .Independence is what maintains equality. However,
since the excessive exercise of the liberties of one conflicts with the liberties
of another, and since the liberties of one tend to conflict with the overall goal
of equality, individual liberties must be limited. (Liu, 1963: 918)
It may sound strange for an anarchist to be talking about restricting indi

vidual liberties, but for Liu liberty was only one of the three basic human
rights. These three rights were not only balanced against one another but
also mutually supporting. Equality guaranteed liberty and independence by
ending all forms of human oppression. Still, there is a price to be paid. Liu's
vision of a future anarchist utopia began with duties rather than rights?the
duty to contribute to society through production, to which all persons would
contribute equally (Liu, 1907: 24-36). The point was that such a society
would lack distinctions between capitalists and workers as well as rulers
and commoners?and Liu promised a sufficiency of goods as well as the
abolition of all forms of oppression: "rights and duties will both be equal"
(Liu, 1907: 30). People did not, in effect, have the right to refuse to labor

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(though Liu trusted that technological progress would greatly ease this
burden), but equality of labor guaranteed all other liberties.
Constitutionalism, Political Rights, and Human Rights
As the twentieth century unfolded, the division hardened between revo

lutionaries, largely nationalist but also anarchist, on one hand, and the
reformers promoting a constitutional monarchy on the other. All found a use
for rights, but their uses differed in emphasis and, to a degree, in substance.
For the reformers, the critical issue was not using rights to attack Qing rule
directly. Rather, their chief concern lay with using rights to make a stronger
citizenry. In the case of Liang Qichao (1873-1929), rights implied struggle
but not so much a struggle for a set of specific claims against the Qing as
part of an ongoing, potentially endless struggle for progress. At the same
time, it is important to remember Liang's disdain for despotism, not least
because an autocratic political system infantilized the people.
Liang's concern was to strengthen China by transforming it from the
"private property" of the imperial clan into a true nation "owned" by active
citizens. In the late 1890s and especially in the wake of the defeat of the
1898 reforms, this pushed him into making ever more radical attacks on
"despotism" and clarified his support for democracy (minquan). However,
adopting a social Darwinist perspective during his exile in Japan, Liang
came to doubt the capacity of the Chinese people in the struggle for sur
vival. The modern period, in Liang's analysis, had led to a world of
"national imperialism"?that is, not the traditional empires of multinational
states but the expansion of whole "peoples" (minzu). He especially feared
that revolution would lead to political chaos, inviting the imperialist pow
ers to divide China among themselves. A major tension that lay at the basis
of Liang's political thought was the balance between the powers of the state
and those of the people. Regardless of whether the state form was or should
be a monarchy, it was necessary for its people to be actively involved. In
turn, their involvement in political questions depended on their possession
of rights.
Human rights, then, were not destined to play a major role in Liang's
thinking, but he did refer to them in various contexts. Liang believed that
the state had to play a major role in elevating the cultural level of the
people, especially in underdeveloped countries where excessive liberties
could lead to aggrandizement at the expense of others (Liang, [1902]
1996c: 3-4). But when the people were more advanced, the government had

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192 Modern China
to step back, "interfering" only in specific cases when liberties were being
violated. Liang thus rooted true liberty (ziyou) in "autonomy" (zizhu, zizhi),
with autonomy understood here as both a hard-earned moral attribute and
as the very core of liberty. Both autonomy and liberty were also species of
rights. In 1899 Liang had defined "rights" (quanli) as people themselves
preserving their security (Liang, [1899] 1996a: 6), while their duties lay in
working for their security. The entire point of the state was to preserve and
work for the security of its people?a security that depended on both the
state and the people. In an essay rebutting what he regarded as Hobbes's
despotic version of the social contract that he wrote two years later, Liang
claimed that the role of government was simply to protect the "liberty
rights" (ziyou quan) of the people (Liang, [1901] 1996b: 93). Liang
accepted the notion of the social contract but found its basis in a system of
liberties rather than in Hobessian absolutism.
Certainly, Liang turned to a statist vision of Darwinism during his years
in Japan, a vision that could be reconciled with moral idealism on the basis
of a teleological view of history (Price, 2004). Liang could disavow the con
cept of natural rights, while he simultaneously noted evolutionary progress
in nature, which in turn promised human progress toward rights (among
other values). At the same time, Liang never fully accepted a completely
materialist understanding of morality, particularly the notion of autonomy.
Liang wrote his major essay on "rights consciousness" (quanli sixiang)
in 1902 as part of a series of articles on Renewing the People, and it reflects
his need to define the proper relationship between the individual and the
group (read: nation) (Liang, [1902] 1996d; cf. Angle and Svensson, 2001:
5-15). But why did he speak of "rights consciousness" or "thought" rather
than "rights"? The point, I think, was to link rights to duties so inseparably
that "rights consciousness" included both and to enable him to argue that
this consciousness was natural even though he did not see rights themselves
as natural. The essay in fact begins with the theme of duties?both to self
and other (group). Liang argued that nature (Tian) gives birth to our innate
abilities to defend and preserve ourselves, and this is a species of "rights"
(though not, we should notice, "rights consciousness"). Rights in this sense
are connected to a natural desire for power, and humans must preserve their
rights or become slaves. But there is more than preservation to rights. Liang
traces basic natural and social inequalities?such as lions over other beasts,
kings over commoners, men over women?not to "violent evil"; rather, "it
is natural that all humans desire to extend their own rights as far as they
can" (Liang, [1902] 1996d: 32; cf. Angle and Svensson, 2001: 7). At the
same time, as Stephen Angle has pointed out, Liang did not reduce rights

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to power or physical force; they also possessed an ethical or normative

dimension revolving around the development of the whole person.9
In any case, as noted above, part of the normative value that Liang gave
to rights stemmed from his social Darwinist commitment to progress
through struggle and the inseparability of duties from rights. The individ
ual was morally bound never to give up his own rights lest the group suffer.
Progress stems from struggles for interests. Liang explicitly drew a parallel
between biological evolution and the improvement of laws. His historical
examples were the hard-fought struggles to establish constitutions, abolish
slavery, free serfs, and win freedom for labor and religion. Rights, for
Liang, were thus not guaranteed by their "naturalness"; rather, Darwinian
evolution explained how people might claim rights for themselves if they
took up the challenge. And all these rights still need to be vigorously
defended. Optimistically, Liang believed that people who won their rights
through struggle and suffering would defend them more effectively than
those who passively benefited from whatever largess they might have
received. Again, by implication Liang drew a contrast with despotism,
which might paternalistically act as if people had rights but, in such a case,
these would not be true rights.
Given that people are?basically?born possessing rights conscious
ness, how did the vast inequalities that mark social and political life arise?
In Liang's view, inequality resulted from governments that suppressed the
people's natural desires and limited their freedoms.
If one observes the histories of nations that have been destroyed?whether

Eastern or Western, ancient or modern?one sees that in the beginning, there
have always been a few people resisting despotism and seeking freedom.
Again and again the government seeks to destroy them, and gradually they
become weaker and weaker, until eventually their original passion for rights
consciousness comes increasingly under the control of the government and
weakens to the point that hope for recovery is lost and people simply take the
government's controls for granted. After a few decades and a few centuries
of this worsening situation, all rights consciousness has completely disap
peared. This is certainly due to the weaknesses of the people: so how could
the government's crimes be avoided?...A citizenry is made up of an assem
blage of individuals; and national rights (guoquan) are made up of the group
ing of the rights of individuals. (Liang, [1902] 1996d: 38-39; cf. Angle and
Svensson, 2001: 13)
In other words, a country is only as strong as its people. A government

that does not respect the rights of its people will perish. But Liang placed

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194 Modern China
the responsibility on the people themselves to struggle for their rights. The
despotism of rulers, Liang implied in this essay, was a constant possibility,
even a probability. Despotic states were weak states, but they were also
immoral, both because they hindered the development of what was, after
all, natural?rights consciousness?and more particularly because they
suppressed the struggles that were necessary for progress. It is true that
with his "conservative turn" in about 1903, Liang came to support a so
called enlightened despotism that would bring the backward Chinese
people up to speed. In 1905 he pessimistically concluded that conditions in
China, including?or especially?the preparedness of its people, were not
suitable for democratization (Liang, [1905] 1996e). However, as Liang
himself gladly admitted, he tended to frequently change his mind. His cri
tique of despotism was quite radical in the years surrounding the 1898
reform movement, bordering on revolution in his first few years of exile in
Japan. His series of articles Renewing the People, in which he seriously
turned to the subject of rights for the first time, as we have seen, reflected
a more mature and systematic approach toward political questions, while
the latter part of the series also marked the beginning of Liang's disillu
sionment with the revolutionaries and his conservative turn. Nonetheless,
with the rise of a constitutionalist movement in China itself by 1906, Liang
again found himself supporting political activism (Chang, 1971: 252; Price,
2004: 94-95).
Indeed, even while Liang moved toward a statism that seemed to deny
"natural rights" and subjugate the individual, the point remains that the
statism Liang learned from Kat? Hiroyuki and J. K. Bluntschli led in sev
eral distinct directions.10 One of these directions was not the subordination
of the individual but precisely the need for the individual to insist on?
defend, struggle for?his rights. Liang's readings in social Darwinism in
the late 1890s had acquainted him with the shocking (un-Confucian) glo
rification of strength or the notion that "might makes right" (qiangquan),
which Liang took as an argument for the practical need for both individu
als and nations to struggle for their rights. This is one reason why Liang
found the nineteenth-century German philosopher of law Rudolf von
Jhering particularly useful.11 Jhering followed legal positivism, demanding
the abandonment of vague and contradictory notions of customary law for
the codification of concrete or positive legislation. He thus rejected
"natural rights" on various grounds, rooting "rights" in the "law" (or in the
German term for both concepts, what he called "subjective Recht" and
"objective Rechf). Yet law for Jhering was no mere tool of state authority

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but a living, human creation ultimately to be judged on grounds of social

utility. Jhering wrote, "The struggle for his rights is a duty of the person
whose rights have been violated, to himself. The preservation of existence
is the highest law of the whole living creation" (Jhering, 1997: 31). For
Liang, then, this meant that rights are claims that individuals must pursue
actively; rights are not passively granted by nature. If there is simply no
such thing as natural rights, the desire for rights?or one's legitimate
interests?certainly is natural.
Legal positivism also informed China's first modern law books. Yang
Tingdong's Study of Law was, in effect, a guide to Western theories of civil
and criminal law.12 It largely treated "rights" as claims of individuals pro
tected by law. "Rights are the capabilities (nengli) of the individual pro
tected by the law" (Yang, 1908: 61). However, Yang begins with a broader
concept of rights, specifically denying what he takes to be Jeremy
Bentham's position that only rights recognized in law count as rights.13 He
admits the force of Bentham's critique of earlier theories of rights: agree
ing that "natural rights," "rights derived from the social contract," and
"rights derived from individual free will" were all outmoded theories.
However, Yang denies that laws actually create rights; rather, they acknowl
edge rights and protect them. Where, then, do rights come from? Here,
Yang has little to say beyond pointing to the progress of civilization, which
he roots in a human striving for improvement. Humans regard rights as an
ideal, which then become part of the internal dynamics of the community
and ultimately recognized in law.
In a sense, then, like Liang, Yang rooted rights in human nature, if not
nature, explaining not the inevitability of rights but their possibility. Still,
while Yang insisted on a theoretical space for rights as prior to law in some
vague sense, the overall thrust of his work fell in the triumphant tradition
of legal positivism. The rights that mattered, in effect, were legal rights that
he outlined in prosaic detail. Study of Law lacked the stirring raptures to
honor and struggle found in Jhering and Liang, but it offered detailed exam
ples of who possessed exactly what kinds of rights. Yang defined the
"subjects" (zhuti) and "objects" (or purposes, keti) of rights, as well as clas
sifying various types of rights. The notion of the subjects of rights was
simple enough?subjects are persons, though this category includes both
"natural persons" and "legal persons," that is, groups (social or business
associations) recognized as legal entities by the state (Yang, 1908: 67-72).
As to natural persons, not all possess all rights to the same degree: women,
fetuses, and minors either lack rights or enjoy only some of the rights

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196 Modern China
enjoyed by adult men. Yang's discussion of the "objects" of rights was

essentially focused on property and need not concern us here.
Critical to Yang's entire discussion of rights was a set of contrasting or
dualistic distinctions that he made among various sorts of rights. The most
important of these from a human rights standpoint is the distinction he pre
sented between public rights (gongquan) and private rights (siquan) (Yang,
1908: 62-64). The latter referred to individual relations such as those
regarding kinship and property, while "public rights" referred to the indi
vidual's relationship to the state. Public rights thus included "liberty rights,"
(ziyou quanli) such as the freedoms of religion, speech, publication, assem
bly, and association as well as rights to political participation through elec
tions. Yang pointed out that the latter rights are sometimes termed "political
rights" (zhengquan) and are limited to citizens. Private rights, however, can
be held by foreigners in the form of "individual rights" (geren quan) as well
as by citizens. Indeed, "as civilization has been advancing in recent times,
transportation and communication improving, and different nationalities
living together, the scope of citizenship rights is shrinking while that of
individual rights expands" (Yang, 1908: 63-64). At the same time, however,
Yang also notes that public rights are limited by gender, age, and property.
Yang also distinguished between "personal rights" (which might also be
considered as bodily or self-rights, shenti quan) and property rights (Yang,
1908: 65-66). Personal rights, unlike property rights, cannot be disposed of.
They are what Yang described as inherent in the body or, as we might say
today, in personhood. Personal rights for Yang included physical survival,
reputation, and liberty.
This article cannot go into the full details of Yang's treatment of "rights,"
much of which is only tangentially relevant to today's concept of human
rights. In sum, however, his work, which was, not coincidently, part of the
constitutionalist movement, served to further naturalize rights talk. Much of
Yang's treatment of rights featured an orthodox discussion of property
rights and enforcement of contracts, which may have fostered a sense of the
concrete nature of rights encompassing a world of relationships between
persons, associations, and states. Yang gave no hint of rights as a realm of
equality, beyond the possession of identical rights by individuals identically
situated for a particular purpose such as citizenship. So, Yang's presentation
of legal rights naturally did not encompass social or economic equality,
though Yang did construct, as we have seen, a realm of rights possessed by
all individuals (adult males, anyway), regardless of status or nationality. As
rights talk spread in the late Qing, it thus became part of the vocabulary of
the new professional class of lawyers?and bureaucrats.

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Officials and Rights Talk

Another avenue through which rights thinking was extended in the late
Qing was, perhaps surprisingly, official discourse. When the Empress
Dowager signaled in 1905 that a constitution would be forthcoming at some
point in the future, officials found themselves thinking quite intensively
about the rights?and duties?of citizens, the relationship between citizens
and their government, and just what it was that made a citizen. The Qing
court invited officials and even nonofficials to submit their opinions, a vir
tually unprecedented gesture. The result was a huge outpouring of sugges
tions and comments. Many officials had clearly been reading the proscribed
Liang Qichao's voluminous writings on constitutionalism.
Naturally, officials generally agreed that "sovereignty" was located in
the Qing monarchy. However, they could not avoid acknowledging, and
sometimes they celebrated, the limitations that a constitution would
inevitably place on government, including the emperor. The point here is
that most officials were now using the language of "rights and duties" that
had been limited to radical intellectuals just a few years before.14 Officials
and elites generally agreed on both the merits of constitutional government
and the unreadiness of the Chinese people to practice it. They saw educa
tion as the key to preparing the people to be citizens. Officials thus tended
to be optimistic about the basic fitness of the people, once properly edu
cated, to be qualified members of a constitutional order. In other words, the
official project was one of nationalizing and "citizen-izing" the masses. No
fear of democracy as such was expressed; rather, officials seemed confident
that education would not only turn the people into diligent, loyal, and patri
otic citizens understanding both their rights and their duties, but it would
also give them protection from the "heresies" of the revolutionaries.
Officials discussed rights in terms of what are now called civil liberties
or negative rights as well as the positive right to political participation.
Officials proposed that different educational and property requirements
would be set for suffrage and for holding office at different levels of local
and national government. And duties included, above all, paying taxes and
performing military service. Some officials frankly saw this as a constitu
tional tradeoff. But most officials do not seem to have conceived rights as
part of a deal, as a reward for the fulfillment of duties. Rather, rights-and
duties were a single, inseparable concept, spelling a new kind of ethical
relationship between state and citizenry. Rights-and-duties, indeed, lay at
the basis of citizenship. Citizens would gladly pay their taxes and go to war,
because they would be full-fledged members of the political community,

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198 Modern China
benefiting themselves. In other words, rights were not a form of recom

pense and duties were not a form of debt; they were inseparable features of
a constitutional order. Obviously, if implicitly, this constitutional order
would constitute a new form of political community. Officials, generally
speaking, took the view that inculcating elite values would create responsi
ble citizens. In a sense, the people were to be transformed from imperial
subjects to the subjects of the constitution. It is true that some official atten
tion was paid to surveillance and discipline: the need to increase and mod
ernize policing, the need to register populations and property, and?at the
borderline between internalized and externalized control?the need to fos
ter understanding of the law. Overall, however, officials spoke more of the
opportunity to create trustworthy citizens than the dangers involved.
For example, Cheng Dequan, the governor of Heilongjiang, emphasized
the importance of the people understanding both their rights and their duties
(Gugong, 1979: 1.256). Sounding much like Liang Qichao, Cheng claimed
that the British economic success was because of their understanding of
rights. Meanwhile, the Japanese excelled in the understanding of duties, so
their people's spirit flourished. For Cheng, this was not a natural process but
had to be based on the inculcation of legal thinking, which would ultimately
produce citizens. In other words, as the imperial commissioner Dashou
noted in 1909, compulsory education would provide the basis for traditional
learning, including morality and customs (Gugong, 1979: 1.30). And that,
mixed with new knowledge, would in turn lead to the promotion of the
sacred teachings (shengxue) and the disappearance of heterodoxy. Indeed,
the leaders of the Qing constitutionalist movement, if not all lower-ranking
officials, saw constitutionalism and the rights it would grant as a kind of
buffer against revolution. Parliaments would create social consensus, and
judicial reforms would allay concerns with miscarriages of justice. In 1907
a Commissioner for Reorganizing the Governmental System warned,
Revolutionary storms around the world have all stemmed from miscarriages
of justice. That is why constitutional countries have all revised their laws to
make the protection of human rights (baozhang renquan) a priority. And in
order to use laws establishing organs to protect human rights, they all estab
lished a separate judiciary to gain the trust of the people, because only
through the judiciary could the laws be obeyed and only through law could
human rights be protected. (Dongfang zazhi, 1907: 418)
In other words, the law was key to constitutional government, and human
rights protected by an independent judiciary were key to the law. This con
cern for legally defined rights may not have reflected the full range of human

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rights and political participation that radical intellectuals and some officials
had discussed. But even a limited concern for judicial rights in the proposed
constitutional system shows how ubiquitous rights talk had become.
Rights thus played a major role in what was, in effect, China's first draft
constitution. In the summer of 1908, the court produced an outline of the
"principles of the constitution," election laws, and the tasks to be completed
over the nine years before the constitution would go into effect (Gugong,
1979: 1.54-67). Not surprisingly, imperial prerogatives were emphasized.
"The sovereign power to rule the country is in the hands of the emperor; all
legislative, executive, and judicial matters remain under His general con
trol." The legislature, the government, and the judges were to help him, and,
"from the court down to all the subjects, all are to respect the imperial con
stitution and follow it eternally without transgression." More specifically,
powers ascribed to the emperor (following Japan's Meiji constitution)
included his eternal, sacred, and inviolable status as well as his rights to
approve or veto all laws (and by implication, promulgate laws on his own
authority), to open and dissolve parliament, to appoint all officials, to com
mand the military, to make war and peace, to assume emergency powers, to
appoint judges, and so forth. Parliament was only to propose, and all its
suggestions needed imperial approval before they could be executed. Nor
could the parliament deny funds to the government or dismiss its officials.
So was this to be constitutional despotism? Perhaps not, since the
emperor was to "act in accordance with the imperially sanctioned laws and
not make changes arbitrarily." More important for our purposes, for the
people (or "subjects," chenmin), the document used the now-familiar lan
guage of rights and duties. Rights included, within the law, suffrage, free
dom of speech, assembly, "and the like," property rights, and something
like due process, while duties included taxes, military service, and obedi
ence to the laws.
Had even high Qing officials, then, become converts to rights thinking?
The leaders of the imperial clan, as was soon proved by their delaying tac
tics after the Empress Dowager's death in 1908, were hardly so forward
looking. Yet many officials of all ranks had been affected by the arguments
of moderate reformers like Liang Qichao and sometimes even more radical
attitudes. What made the positions of a number of officials unique was a
new kind of legitimization theory. Not the myth of popular sovereignty, nor
the mystical German-Japanese style of statism, it rested on a powerful
Confucian rhetoric of "one body." In other words, the complete unity of the
people and the monarchy. This harkened back in some ways to the early
quasi-democratic reformism of the 1860s, wherein parliaments were to

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200 Modern China
function to express public opinion and link the emperor and the people (or
at least the elites) in forging consensus. But now the constitutionalist reign
of "rights-and-duties" promised perfection. In the words of an imperial
edict: "The Way of constitutionalism lies solely in the total agreement
between ruler and ruled and their complete identity, the abolition of self
ishness and promotion of the public good, and mutually setting about gov
ernance" (Gugong, 1979: 1.44).
Minor officials could wax even more lyrically on the beauties of constitu
tionalism and the role of rights in a civilized society. For Shang Qiheng, a
Han bannerman and administration commissioner in Fujian, a constitution
promised to stabilize national power, raise the level of the people, and make
China an equal international player (Gugong, 1979: 1.260-61). A constitution
guaranteed liberties precisely by enforcing limits. Constitutional people can
not assault the liberty of other people; constitutional countries cannot assault
the liberty of other countries. Such "limits" do not deprive the monarch of his
powers just as "liberty" does not allow the people to do anything they please.
For Shang, as a practical matter, constitutionalism would improve the life of
the people through education, fiscal administration, assemblies, protections
for merchants and workers, support for economic development, better police
and soldiers, communications media, and so forth. Once educated and pros
perous, then, the people will have propriety and know shame; their happiness
will ever increase; and the country will be unassailable. We see here the use
of Confucian morality that many officials thought would ground citizenship
while in no way contradicting the notion of rights.
Officials did not speak of natural rights or of human rights applying to all
persons by their very nature. They foresaw a process of education, internal
ization of new norms, and disciplinary control before citizens would emerge
in China. But they were, generally speaking, quite optimistic that such citi
zens would indeed emerge and that as they assumed the duties of citizens,
they also assumed rights, including the rights of civil liberties, property, and,
fundamentally, self-mastery or autonomy. Rights in this sense would be
rooted in the future constitution and not have an independent normative exis
tence, so to speak. Yet the absolute necessity of any constitution to spell out
citizens' rights shows how far rights thinking had developed in a single
decade. Officials, no less than nonofficial reformers and "heterodox" revo
lutionaries, despised the traditional despotism and sought to uproot it
entirely, even if some superficial aspects of monarchism were to remain.
In sum, rights talk was fundamental to all late Qing critiques of despo
tism. Human rights as a universal attribute of all humanity, of every
member of the species regardless of race, class, gender, nationality, and

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other categories, was occasionally articulated, more often assumed, and

sometimes precluded by an emphasis on citizenship. The distinction
between the rights of citizens?essentially defined as persons who pos
sessed rights and duties?and the rights of humans as such remained
murky, though radicals often argued that the rights of citizens stemmed
from their status as human beings, human beings who were in the nature of
things members of particular political communities. Explicit rights thinking
thus tended to revolve around the image of the citizen. In practice, this
image, it seems to me, tended to be that of a young, educated male. It is
worth noting that provisional revolutionary governments in 1912 refused to
allow the participation of women. At the same time, however, at least some
radicals were eager to pursue more inclusive definitions of rights bearers.
And at the same time, rights talk was no longer limited to radicals.
Conclusion
Human rights has never lacked for enemies in China, as elsewhere. Late
Qing Confucians were seriously disturbed by rights talk, which they
regarded (correctly) as a threat to the family as well as the state. The revo
lutionary ideologies of both the Nationalist and Communist parties in the
mid-1920s feared threats to the collectivity. While never entirely abandon
ing the notion of rights, both parties disqualified certain persons as rights
bearers. An emphatic, dissenting human rights discourse continued through
the 1940s, but once the Communist Party came to power, it proclaimed that
only workers and peasants possessed rights: and in practice, even that was a
fiction. The "failure" of rights in China has naturally shaped the discussions
of both Chinese and Western historians on the origins of Chinese rights
thinking. I am not suggesting that it is wrong to ask whether early Chinese
rights thinking possessed weaknesses or contradictions, but it may be
anachronistic to read later "failure" back to the nationalism, or the commu
nalism, or the utopianism of late Qing thinkers and activists.15 An analysis of
the philosophical aporia of rights thinking, however valid in its own terms,
misses the intellectual dynamism of the age. Inevitably, the emergence of
rights thinking in the late Qing reflected the contradictory currents of the
age; to search for the exact formulae of the 1948 "Universal Declaration of
Human Rights" is to set off for the wrong hunting grounds. Late Qing intel
lectuals forged a modern conception of rights?not identical to today's
notions, not always able to trump other concerns, and not necessarily
"natural"?but as morally necessary, along with duties, for any decent society.

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202 Modern China
Rights talk spread rapidly because it was a powerful and intuitively sat
isfying way to highlight the faults of Qing despotism and imagine a key fea
ture of any modern state. In a fashion in some ways parallel to the northern
Atlantic world two and three centuries previously, Chinese intellectuals
combined fears of despotism with their commitment to state building. Late
Qing thinkers foreshadowed a theme of the New Culture movement (1915
and on): that despotism came in many forms. Aside from autocracy, for
which the cure was democracy, patriarchy and superstition required a revo
lution in family values, particularly women's liberation; and imperialism
and Western racism also had to be fought in the name of equality. The New
Culture movement built directly on late Qing foundations to criticize the
political conservatism and cultural despotism of the postrevolutionary
period. New Culture intellectuals continued to consider rights key to
China's progress. As Chen Duxiu proclaimed in 1915, "The contribution of
the rise of science to the means by which modern Europe surpassed other
races was no less than that of the theory of human rights, just as a cart has
two wheels" (Chen, [1915] 1961: 26). The Chinese needed to use science
and human rights to advance out of the dark age of ignorance and supersti
tion. Chen also wrote that the hallmarks of civilization?defined in terms
of progress away from barbarism?were the theories of human rights, evo
lution, and socialism (Chen, 1927; cf. Angle and Svensson, 2001: 62-66).
"Human rights" here referred specifically to the Rights of Man, as pro
claimed in the French Revolution, which, Chen emphasized, overthrew the
old monarchy and aristocracy.
Chinese human rights discourse was thus forged in revolution and was
naturally subject to a variety of extremely acute political pressures. But if
rights thinking did not yet penetrate very deeply into Chinese society as a
whole, it was simultaneously rooted in Confucian discourse and part of a
profound set of shocks leading to the breakdown of the old order. Rights
legitimated or explained several goals simultaneously: becoming a whole
person, becoming a true citizen, strengthening the nation, and liberating
women, youth, workers, and peasants. If "rights" were originally imported?
a complex "if? Chinese radicals found rights to be extremely useful and
productive tools to interpret the political changes of the day, to make sense
out of long-standing discourses about selfhood and community, and to guide
political action. Rights then quickly entered into the official and legal dis
course. Political as well as intellectual elites could not ignore rights.
The shapings given human rights notions in China naturally reflected the
concerns of the day. An intense concern with the rights of citizens was also
naturally affected by traditional notions of universal morality and the

14.52.231.136 on Wed, 24 Jun 2020 09:48:51 UTC
dignity of personhood, Buddhist as well as Confucian. In this way, human

rights ideas were quickly indigenized even as Chinese intellectuals contin
ued to take part in other cosmopolitan discourses ranging from social
Darwinism and liberalism to anarchism and Marxism. It was clear, then,
that "rights" referred to many things both within and beyond the
nation-state. Rights talk came to infuse practically all political discourse,
and however gross the actual violations of human rights in modern China,
we should not ignore the growth of rights thinking in China as a funda
mental category of political modernity.
Notes
1. Here I am translating guomin as "citizens," since although the term was inherently
ambiguous and also referred more simply to "nationals," in this context a civic identity seems
implied ("Guomin" 1963; originally published in Guominbao [The citizens' journal] 2
[1901.10.6]). A partial translation can be found in Angle and Svensson, 2001: 3-5.
2. "Race" in terms then common in the West (dividing the world's humans hierarchically
into four or five color-coordinated groups with innate "natures," then further subdividing them)
was becoming a dominant analytical category among Chinese intellectuals at this time. They
sometimes foresaw a global struggle between the two superior races?Whites and Yellows?
while in ethnic-nationalist terms they sometimes spoke of the truly Chinese "Han" race in con
trast to the foreign but politically dominant "Manchu" race. In this context, "slaves" referred
not to a system of enforced labor but to oppressed peoples, as the author later made explicit.
3. Recent scholarship emphasizing historical perspectives on human rights in modern
China includes inter alia: Svensson, 2002; Angle, 2002; Liu, Li, and Wang, 2000; Shi, 2001;
and Du, 2004. Pioneering work on late Qing human rights thinking includes Wang Ermin,
1983; Nathan, 1986; He, 1991; Wang Gungwu, 1991; and Liu, 1994. Overall, however, inter
est in the concrete historical development of human rights thinking in modern China has
remained limited, as Stephen Angle (2002: 20) noted.
4. Irene Bloom (2004) stressed Confucianism's respect for the dignity of all human beings,
the morally autonomous individual, and dissent against official malfeasance and immorality
including even that of the emperor. Wm. Theodore de Bary finds in Confucianism not "human
rights," but "certain central human values?historically embedded in, but at the same time
restive with, repressive institutions in China?that in the emerging modern world could be
supportive of those rights" (de Bary, 1998: 6; see also de Bary, 1986). Modern legal historians
have also found that, notwithstanding certain limitations, the regularity of the Chinese legal
system, at least by late imperial times, generally guaranteed a certain de facto level of liberty:
see Jones, 2004; Bourgon, 2004: 86-90. Similarly, scholars of other civilizations have found
notions compatible with human rights thinking?in the Hindu and Islamic traditions, for
example: see inter alia Sen, 1997, 2000; Kurzman, 1998. Wu Zhongxi (2004) has attempted to
claim a distinctive yet equivalent tradition of human rights in China from ancient times.
5. In the words of Robert Weatherley (1999: 37), "Not only was there no lexical term for
rights in the Confucian vocabulary, but there also appears to have been a conceptual absence
of rights in Confucian thinking. Indeed, in many respects, the dominant ideas and practices of
Confucians were incompatible with a notion of rights." Or as W J. F. Jenner (1998: 88) said,

14.52.231.136 on Wed, 24 Jun 2020 09:48:51 UTC
204 Modern China
"Doctrines of freedom of thought or religion, like doctrines of political or personal rights,

never grew on Chinese soil until they came in as exotics." See also Hood, 2001.
6. Case in point: Steven Hood (2001: 97) has argued that "to accept the universality of
human rights is to gut Confucianism and Islam of some of their fundamental principles." This
may be true. But Hood is measuring essentialized, static versions of "traditions" with the yard
stick of modern understanding of human rights; to be consistent, he must use the same method
to gut Christianity and any other premodern tradition (cf. Hood, 2001: 98).
7. Space considerations prohibit an overview of the New Policy reforms, which were not
grounded on rights thinking but were at least partly affected by it, as we will see below. For
background, see Jiang, 1992; Hu, 1992; Reynolds, 1993; and Horowitz, 2003.
8. A well-considered treatment of Liu is Fang-yan Yang; for discussions of his attitudes
toward rights, see Yang, 1999: 233-49; Zarrow, 1998: 213-18; and the excellent philosophical
treatment in Angle, 2002: 162-75, which roots Liu's concerns, like those of Liang Qichao to
be discussed below, in Confucian debates about human nature, "desire," and self-interest. A
recent study rightly emphasizes the importance of revolutionary praxis to Liu's anarchism but
perhaps exaggerates the role of Liu's egalitarianism in terms of some of Liu's other concerns
(Ishikawa, 2005).
9. See Angle (2002: 141-62), which also posits that Liang's quanli can be viewed as "the
abilities and interests that one should legitimately be able to enjoy" (p. 143); furthermore, this
view "has a deep basis in the Confucian idea of an ethical, and not merely legal, ordering of
the world."
10. The literature on Liang is large; this article cannot go into the complexities of Liang's
nationalism. Hao Chang (1971) remains indispensable; recently, Price (2004) offered a bal
anced and subtle appraisal that also emphasizes the importance of the notion of rights to Liang.
Liang's use of Bluntschli's statism is discussed in Chang (1971: 248-62ff.) and Bastid
Brugui?re (2004).
11. Liang ([1899] 1996a) repeatedly cited Jhering's Der k?mpf ums Recht (The Struggle
for Law [Jhering, 1997]). Jhering's work was first published in 1872 and was soon widely
translated, including Japanese and Chinese editions. See the useful discussion in Angle (2002:
141-50), though I would give greater emphasis to Jhering's continued if implicit use of the cat
egory of the "natural," both through his positing of an individual instinct for the struggle for
existence and through his psychologizing of a "feeling of right" (Jhering, 1997: 46-50, 63-67),
which, though culturally variable, does not depend on concrete knowledge of the law. This nat
ural feeling, while not a natural law, nonetheless implied that resistance to injustice (including
illegitimate laws or an illegitimate social system) may possess a moral basis.
12. Yang Tingdong, 1908.1 have been unable to find much information on Yang. He stud
ied in Japan from the turn of the century and helped produce several translations in addition
to Rousseau's Social Contract mentioned above; by 1906, he was in Shanghai as a key
member of the Association for the Preparation of the Constitution (Yubei lixian gonghui) and
was thus closely associated with Zhang Jian. He apparently lectured on law during this period,
and presumably those lectures formed the basis of his book. See Wang, 2003: 2; Zhang, 1983:
215. Yang's Study of Law may well have been a redacted translation of Kawana, 1906; it fol
lowed many of the same organizational principles. On the other hand, the subject of rights in
civil law received more or less standard treatment (see, e.g., Tomii, 1906, a work that Yang also
had a hand in publishing in Chinese for the Commercial Press). Legal education in the late
Qing has received little scholarly attention; it is clear that law courses and law schools multi
plied, especially during the New Policies period, though their main function may have been to
produce officials (Zhou Shaoyuan, 2001). For general background on late Qing civil law
reforms, see Bourgon, 2004.

14.52.231.136 on Wed, 24 Jun 2020 09:48:51 UTC
13. See Yang, 1908: 60. Yang's criticism of Bentham, valid or not, marks the Study of Law
as his own and no mere translation. Jeremy Bentham (1748-1832) was, of course, known for
his vehement criticism of "natural rights," part of his attack on the French Revolution. More
broadly, Bentham was a strong critic of the notion of natural laws and the social contract as con
fusing and harmful myths. Still, Bentham's insistence on the separation of law from morality
(the key principle of legal positivism) was precisely an attempt to mold the law into a better,
more moral form, by denying earlier commentators' claims to its current perfection and by pro
moting specific legal reforms on the grounds of their utility or tendency to promote happiness.
14. For a general discussion of official views of constitutionalism, see Sha, 2003.
15. The historian Chen Lai (1989: 155-58), for example, suggested a tension in Chen
Duxiu's thought between "value rationality" (liberty, human rights, and the like as the highest
of universal ideals) on one hand and a more instrumentalist utilitarianism, which gave ultimate
priority to strengthening the nation, on the other hand. Similarly, the philosopher and historian
Li Zehou (1991: 120-27) pointed to a tension between "national salvation" and "Enlightenment
thought," while the American political scientist Andrew Nathan (1986: 157), focusing on
Liang Qichao, has pointed out that by arguing that individual rights should be protected
because they would strengthen the state, intellectuals left themselves vulnerable to the
counter-argument that the public good demanded limiting rights. Tu Wei-ming (1996: 160)
underestimated the role of rights thinking in the New Culture movement.
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Anti-Despotism and "Rights Talk": The Intellectual Origins of Modern Human Rights

Thinking in the Late Qing

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citizens?as opposed to slaves?possess rights (quanli), responsibilities,

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but it was a translation of Wheaton's International Law that consistently

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constitutionalism, equality, independence, democracy, and so on (Zhu,

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one's self-interest to others (empathy), then the boundaries between the

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It may sound strange for an anarchist to be talking about restricting indi

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Constitutionalism, Political Rights, and Human Rights

As the twentieth century unfolded, the division hardened between revo

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to power or physical force; they also possessed an ethical or normative

If one observes the histories of nations that have been destroyed?whether

In other words, a country is only as strong as its people. A government

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but a living, human creation ultimately to be judged on grounds of social

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enjoyed by adult men. Yang's discussion of the "objects" of rights was

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Officials and Rights Talk

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benefiting themselves. In other words, rights were not a form of recom

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other categories, was occasionally articulated, more often assumed, and

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dignity of personhood, Buddhist as well as Confucian. In this way, human

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"Doctrines of freedom of thought or religion, like doctrines of political or personal rights,

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