(Source: http://orias.berkeley.edu/summer2004/summer2004Chinalegal.htm)
Chinese Legal Theories: Role of law in society
While rites should govern most relationships between people, law is reserved for relations between subjects and the state and for those who do not observe rites.
| Legalism (Fa Jia): |
Confucianism (Ru Jia): |
| Law and punishment are necessary means of imposing order. |
Rites, and not law, should govern behavior. Law is only for "social outcasts." |
| |
Li (rites) based on Five Relationships:
1. Sovereign to subject
2. Parent to child
3. Elder to younger brother
4. Husband to wife
5. Friend to friend |
| Emphasis on Fa (written laws), xing (punishments) |
State should be governed by individuals obeying Li to serve as a positive example for lower orders of society.
|
| System of harsh punishments will encourage observance of the law |
Respect from peers and posterity will encourage observance of li (1)
|
| Advocates merit-based selection of administrative officials "Merit" is defined as tests of relevant skills |
Advocates merit-based selection of administrative officials; "Merit" is defined completion of examination based on Confucian texts (2) |
| Uniform rules and punishments |
Rules and punishments based on Confucian hierarchy (3) |
| Written codes address "behaviors that might run counter to the emperor’s interests in maintaining power and order" |
Li governs personal relations, private business transactions, torts, etc. (4) |
Origins: First verified Legalist code is the Shang Yang Lü (4th century BCE) from the state of Qin, which became the Qin Code upon the beginning of the Qin Dynasty in 221 BCE |
Origins: Han Dynasty, T’ang Code (624 CE, revised 653)
Introduced to impose order Theory of choice by those in power (5)
|
(1) Henry CK Liu, "The Abduction of Modernity: Part 3 Rule of Law vs Confucianism," Asia Times Online, <http://www.atimes.com> , 2003.
(2) Henry CK Liu, "The Abduction of Modernity: Part 3 Rule of Law vs Confucianism," Asia Times Online, <http://www.atimes.com> , 2003.
(3) "Elaborately varied degrees of punishment are accorded by the Tang Code to the same crime committed by persons of different social stations, just as Confucian rites ascribe varying lengths of mourning periods to the survivors of deceased of various social ranks. According to Confucian logic, if the treatment for death, the most universal of fates, is not socially equal, why should it be for the treatment of crime?" Henry CK Liu, "The Abduction of Modernity: Part 3 Rule of Law vs Confucianism," Asia Times Online, <www.atimes.com> , 2003.
"One of the "Ten Abominations" set forth in Article 6 of the Code is "lack of filial piety," which triggered special punishment. As Professor (Wallace) Johnson points out, ’[f]ew greater crimes were possible in T’ang China than for a son to strike his father, while a father who beat his son was not committing any crime at all.’" John W. Head, "Codes, Cultures, Chaos, and Champions: Common Features of Legal Codification Experiences in China, Europe, and North America," Duke Journal of Comparative & International Law, Duke University Law School website,
<https://www.law.duke.edu/journals/djcil/articles/DJCIL13P1.HTM#H1N2>
(4) In contrast to Dr. Liu’s cyclical view of the Confucian/Legalist relationship, John W. Head advances an idea of division of powers, wherein imperial codes, based on varying mixtures of Legalist emphasis on written law and punishment and Confucianism, govern relations that affect the sovereign’s position, while li govern relations in the personal sphere. John W. Head, "Codes, Cultures, Chaos, and Champions: Common Features of Legal Codification Experiences in China, Europe, and North America," Duke Journal of Comparative & International Law, Duke University Law School website,
<https://www.law.duke.edu/journals/djcil/articles/DJCIL13P1.HTM#H1N2>
(5) Henry CK Liu makes a utilitarian argument about Legalism and Confucianism by arguing that élites will advocate a Confucian order because it will benefit them. This will lead to a period of decay, which will then be swept away by a more "egalitarian" Legalist regime. The new élites put in place by the Legalist regime will find Confucianism in their interests and reinstate a hierarchical legal regime. With each cycle, the Confucian periods become longer. Henry CK Liu, "The Abduction of Modernity: Part 3 Rule of Law vs Confucianism," Asia Times Online, <http://www.atimes.com> , 2003.
(Henry C.K. Liu is an independent commentator on culture, economics and politics. He was educated at Harvard University and Liu developed an interest in economics and international relations while working as a professor at UCLA, Harvard and Columbia University on interdisciplinary work on urban and regional development. Liu is currently the chairperson of a New York-based private investment group and a contributor to Asia Times Online. He is a Visiting Professor of Global Development in the Department of Economics in the University of Missouri at Kansas City.) |
