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World legal systems HC 5-6 (Blz. 493-593)• The tension between Confucianism and legalism and its
implications for the legal system
Conficianism would be, at best, described as a set of morals, norms and values
rather than a religion.
To govern, in the Confucian view, was to set a good example and promote good
behavior among people, that is, to create conditions in which people could live
without disturbing the natural harmony. The state might therefore intervene to
ensure that disorder was avoided. There were 5 punishments (in correspondence to
the 5 educational lessons of conduct) and they were primarily intended to prevent
offences that caused the dreaded disturbances of natural harmony.
• The relation and interactions between ‘li’ and ‘fa’
Li: it is the idealized form of ‘appropriate behavior’ in human conduct. It means
most of all the denial of the lasting and effective normativity of formal law and
formal sanctions. Li was regarded as a suitable action or reaction in
correspondence with the visible and invisible natural forces. The essential element
in li is the exercise of reason and judgment. It has 3 aspects:
1) An ordering of society, such that each individual knows his rights and duties
(in accordance with the natural order).
2) A code of morality, which is based on human nature and operates through
individual conscience.
3) It provides an ideal of social harmony, emphasizing the individual’s obligation
to society.
Li was internally enforced, working upon man’s consciousness in form of an inner-
constraint or compulsion to comply with its rules and models. Everyone had to do
his duty or conduct in accordance to li, or he was likely to bring about disorder in his
relationships and personal misfortune, and thus li is a self-controlled order.
Fa: is first the idea of law as a tool to control society. Secondly it also refers to the
resulting regulatory law itself. Legalists believed that a good ruler should govern his
subjects by 3 means:
1. The law (fa), all people under the ruler were equal before the law and the law
is higher than the ruler.
2. The concept of shu (the art of kingship), concerned of methods of control to
encourage the ruler to make sure that nobody else could take control of the
state.
3. The concept of shi refers to legitimacy, power and charisma and indicated
that the position of the ruler, rather than the ruler himself, is the central axis
of control.
Their insistence on law was motivated by the realization that law was essential for
effectively controlling the growing populations under their jurisdiction. Legalists
were the defenders of Fa and came to power with the first Emperor.
The major point in the debate between li and fa summarized:
1. Li is seen as capable of guiding individuals away from evil, fa would only
come into action once an evil act has been committed. (however, they do not
look at the fact that fa discourages people to act in a way and people, thus,
fall back on li).
, 2. A political arrangement based on the principle of self-controlled order or
virtue (li) is said to ‘win the hearts of men’, while the use of fa principles
would only result in outward submission to the legal rules.
3. The universal validity of li is portrayed as a result of its creation by ‘intelligent
sages of antiquity in conformity with human nature and with the cosmic
order’. But positivist law-making is not always abused, and the ancient sages
might have had their own positivist agenda.
4. Li only strengthens what is already inherent in society; it does not impose
new rules. But it is wrong that fa would, of necessity, change this.
5. Li is ‘the real stuff of life’, while law, ‘on the contrary, is mechanistic and
devoid of emotional content’. This suggests that li is much more dynamic
than the rigid rule of law model.
6. Li ‘can be flexibly interpreted to meet the exigencies of any particular
situation’. State law encourages people to circumvent these norms without
paying attention to the underlying moral dimensions.
7. Laws are no better than the men who create and execute them. But: any form
of law making can be abused.
From a Confucianist perspective: a self-controlled order is inherently better than a
system of state-made legal rules superimposed on people. The individual mind or
conscience is in the Chinese law the primary testing ground for appropriateness,
determining whether a particular matter or dispute will be carries to a wider forum
or not.
The main arguments in favor of the Legalist position are:
1) That humans are selfish and act out of self-interest
2) That law-making by the state should destroy factionalism and privilege, and
that laws should be applied impartially to all.
3) That the fluidity and inherent flexibility of li is rejected as a basis for a stable
government, which should be based (according to them) on known and fixed
rules which are the same for all
4) Seeking to achieve a higher degree of compliance with state laws by holding
individual members responsible for the wrongdoing of other members
5) The modernization argument that in a more sophisticated and crowded
environment, laws become a necessary tool to governance and organization
6) Total uniformisation, so that a state that is strong is one that maintains a
single standard of morality and thought for its people
7) The suggestion of a system of rewards for those individuals who fulfill and
punishments for those falling short of required standards
8) That even a mediocre ruler could maintain order when there is efficient legal
machinery.
It is thus a different type of self-controlled order in which god and bad depend on
criteria set by the state, rather than local norms.
The Chinese believed that there had to be a harmony between men and nature and
between men themselves (as is in accordance with li). They placed filial piety
(hsiau) within the context of the family in a central position and the loyalty to a
superior (chung) under it. If there was a conflict between the two, Hsiao is to hold
priority. The Chinese preferred internal control mechanisms within the realm of
society and religion, which is why the ancient Chinese did not like law.
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