One of the more pressing questions in political philosophy is how to prevent the arbitrary use of power. I think Thomas Hobbes and Xunzi were sadly right to diagnose an abiding darkness in human nature: left to our own devices, human beings can easily degenerate into disastrous crimes. Primatology suggests a confirmation: among our closest (or nearly closest) living relatives, the chimpanzees, a jockeying for power and status can lead to vicious rivalries and even murder – even in the idyllic situation where all their material needs are provided for. The evidence of existing human history does nothing to suggest that language or other human capacities have made us better than that.
But Hobbes, as far as I can tell, offers the worst possible solution to this problem: to concentrate power in a single sovereign person. Then that one person becomes able to tyrannize everyone else in a way completely unrestrained, just as he pleases. (It is rarely a she.) The twentieth century gives us too many chilling examples of mass murder and terror from a sovereign given arbitrary power.
A more reasonable approach to the problem asks how we can contain the dark impulses of all people – and of the sovereign leader most of all. It is likely no mystery why I’m asking this question living in 2020 in the United States.
I think of the point in the light of a thoughtful recent article by Tim Wu in the New York Times. Wu notes how Americans are taught to value a system of checks and balances, in which the executive, legislative, and judiciary branches can each ensure that the other branches follow the law.
But, Wu adds, the legislature did nearly nothing to limit the powers of President Trump, at least in the first two years where Republicans were in power. And even the judicial branch did relatively little to limit him: in cases like the anti-Muslim travel ban, “the courts have been too unwilling to look beyond form to ferret out unconstitutional motive. More generally, Mr. Trump has tended to move fast, while the courts are slow, and to operate by threat, which the courts cannot adjudicate.”
Rather, Wu says, what really saved the American republic from arbitrary tyranny was an unwritten constitution: “an informal and unofficial set of institutional norms upheld by federal prosecutors, military officers and state elections officials.” The text of the written American Constitution (“the executive Power shall be vested in a President of the United States”) suggests that the president “has the power to order federal prosecutors to do his bidding”, but an unwritten norm said he does not, so that “even as Mr. Trump urged his appointees in the Justice Department to openly announce a criminal investigation into the Biden family, they did not comply.” So too, what stopped Trump from ordering active-duty military to suppress free protests this summer was not the written Constitution, but the military following its “longstanding custom against getting involved in domestic politics.” And finally, of course, state election officials – including Republican ones – were ready to act to protect the election’s integrity. The power to certify the election results was in their hands; they could have done otherwise if they so chose.
The idea of an unwritten constitution is relatively alien to American politics – but not so much to the rest of the world. When James Doull, a proud Canadian, describes a political community’s constitution as the community’s “ideal ordering to the good”, he is not thinking of a written text. Following Doull, I wrote ten years ago that “Properly considered, a constitution includes all of the most fundamental things that make a country what it is, throughout its history; there is much more to the constitution of the United States than the written document of ‘the Constitution.'” Wu’s article points out the importance of this point in practical terms. It is because of this unwritten constitution and a willingness to uphold it that the United States is now, blessedly, having a peaceful transfer of power.
The upholding of an unwritten constitution, and even a written one, depends on what Wu calls civic virtue: people in a government role must act as they have been trusted to do, with the roles of their office. As Georgia Secretary of State Brad Raffensperger said: “I’m a conservative Republican. Yes, I wanted President Trump to win. But as secretary of state we have to do our job… I’m gonna walk that fine, straight, line with integrity. I think that integrity still matters.” Raffensperger was committed enough to the integrity of his role to endure abuses up to and including death threats.
This brings us back to Xunzi and Confucianism. A core Confucian principle is the rectification of names, zhèng míng 正名. The lead election official needs to officiate the election – to perform his assigned role in the way expected of him. For Confucians, this is not a matter of law, written or otherwise, but of moral norm. It is custom and virtuous habit, reinforced by civic ritual, that can best keep leaders behaving as they should. It was a rival school, the now-defunct Legalists of Han Feizi, that urged a reliance on the law, in a way that, like Hobbes, would tend to tyranny.
Xunzi is often maligned today because, owing to his dark view of human nature, he thought the government should step in to reform people and make them more virtuous. And indeed, he did lean in Han Feizi’s direction more than other Confucians did: for him, law and punishment do play a part in reining in humans’ dark impulses. But Xunzi was not Han Feizi. As a Confucian, he proclaimed that the most important aspects of taming humans’ dark impulses were teachers and ritual. He knew that good laws were nothing without good people to enforce them. The experience of the United States in the past few months brings this point into stark clarity.