Before moving onto Buddhism, Taoism, Christianity, Islam, and Judaism I wanted to cover some more beliefs that I have incorporated into my own life from Confucianism. I consider myself a cafeteria Cunfucist, Buddhist, Christian, Jew, Muslim, Atheist etc. taking that which I find good and helpful leaving the rest. In discussion, I found hostility towards Confucianism and the modern hierarchical structure. I myself do not subscribe to any philosophy that places people in a caste or hierarchy. My goal is to present some of the things I have learned and how I have found them to be helpful in my view of the world. Please note, I'm a student of life and try to learn everyday something new and my views are constantly being upgraded. I only wish I could say that for Bush and our incompetent leaders who have not realized that the pen is truly mightier than the sword. This essay is an introduction to East Asian Confucian Legal theory. Let me know what you think. Marine Corps Cowboy.
In my study of East Asian Politics the law has played an extensive role that continues to define East Asian thought, politics, familial relationships, and culture today. East Asia has a rich legal theory that continues to shape legal behavior throughout much of the modern world. A common myth in the west is that Confucianism particularly in East Asia is lawless however this couldn't be further from the truth. A closer examination of the legal system in East Asia will illuminate this fallacy and shed light on an intricate complex legal system that places fixing human relationships through mediation, arbitration and reconciliation above litigation.
Confucian law is restorative justice. Restorative justice is the mending of broken human relationships. Restorative justice is a Confucian notion of law. When a judge or magistrate makes a decision his/her ultimate goal is the mending of broken human relationships or restorative justice. When a case is brought before a magistrate the goal is restoring something that has been broken or someone who has been wronged. One might imagine something that has gone sour and needs to be balanced; or a sick person who needs to be healed; this is the role of the magistrate. In Confucian Law the primary goal is not to decide who wins and loses. In the west family law parallels Confucian law in that it exists not to declare winners and losers but to restore broken relationships. The law is about ritual and family. How can these people be restored to a healthy harmonious relationship? A Chinese word that captures this idea of compromising is rang. Rang means to compromise. "When Confucius served as the principal justice official of the Lu State, he was good at persuading people not to litigate. Mutual rang (yielding, making concessions and compromises) was practiced among the people." Bell, page 263.
An example of restoration and reconciliation could be a widow's proper share. When a widow is abandoned by her family she has legal recourse because in the Confucian tradition the family is obligated to care for her. If a powerful in-law kicks a widow out on the street a magistrate is supposed to restore the break in her family so that the family line can continue undisturbed and exist in an honorable way. The poor old widow should be restored to her family to carry on the ancestral lineage.
In target-procedural justice the target is to make certain that within a set of rules or procedures all treat people fairly. That is procedural justice. It protects people from abuse of power. It is a way of being fair. Treat everybody the same. Western law sees procedures as primary and human relationships as secondary. Confucianism sees human relationships as primary and procedures as secondary.
Western law places emphasis on the rights bearing individual. The unit in western legal theory is the rights bearing individual. In East Asia the relationship between law and people is seen as interdependent.
In the Confucian theory of law an idea of collective liability exists. If individuals are not successful with mediation or arbitration then the next step would be the magistrate or court. According to collective liability everyone can be liable or at fault. Everyone shares in the responsibility. A great example of collective liability is theft. Theft is seen as an individual act however the person who had the goods stolen is responsible as well for not securing the valuable possessions. The person the west would consider the victim, would be considered in the east reckless, liable, or negligent for allowing the theft to occur.
In Confucian legal theory the role of formal law codes is to prescribe remedies for transgressions or those who have been wronged. Through mediation and arbitration the magistrate can propose remedies while maintaining collective liability and eliminating zero defect/default mentality. Confucius would discourage litigation. Compromise that everyone can live with is better than court orders that destroy human relationships. Arbitration and mediation were/are preferred to litigation. "It was good for a magistrate to be diligent at hearing and adjudicating a case. But there are instances when he should not take to excess a black-and-white approach. The best way to restore harmonious relations is the mediation of relatives and friends. While adjudication is done by law, mediation is done by human compassion. When it is a matter of law then there has to be a clear-cut position for or against. If it is a matter of human compassion, then right and wrong can be compromised some. The one in the right can accommodate the feelings of a relative or friend, while the one in the wrong, can avoid the law of the court. . . That is why mediators were established in ancient times." Bell, page 269 The magistrates who are more successful are able to get both parties to compromise and agree upon arbitration or mediation essentially setting litigation aside.
In the west the source of law is considered to transcend the human will. In the East law comes from ritually defined institutions like the family. Law codes were designed to conform to the family which is the most important institution. In the East the law is patterned after ritual and is supposed to correspond to the needs of the people.
In the west there are clear winners and losers. Individuals have rights which are termed unilateral liberty. If a person has a right to do something, no one has a right to stop that individual. In East Asian Law, East Asian thought is obligation based which is completely different from the rights bearing individual in the west.
Confucius believed that if a government was properly administered then people would not steal and the need for family members to report one another would not exist. This is contrasted with a king that Confucius came across who believed that if a father steals a sheep, the son has an obligation to report the father. This places emphasis on ritually defined institutions like the family.
In the east the process of law or tradition of law proceeds in a logical procession. The first step is mediation or arbitration. Individuals involved in disputes would seek out elders and or the head of the family to attempt a compromise. "If your brother sins against you, go and show him his fault, just between the two of you. If he listens to you, you have won your brother over. But if he will not listen, take one or two others along, so that "every matter may be established by the testimony of two or three witnesses. If he refuses to listen to them, tell it to the church; and if he refuses to listen even to the church, treat him as you would a pagan or a tax collector." Bell, page 277. Mediation suggests what alternatives are available, whereas arbitration is binding where an arbitrator decides the case as a judge without the possibility of appeal. If this does not work the next step is to take ones case before the local magistrate, with a goal of trying to avoid the use of formal codes.
Restorative Justice has many dimensions. Rules are not applied by themselves; they are applied by judges (magistrates) or juries. Discretion must be used. Discretion of the magistrate or official carries the possibility of abuse. Discretion is always an issue. In the west we have tried to limit discretion by trying to make judges accountable. The western idea of law and justice is to narrow the unfair abuse of power. We tend to fear powerful people. In East Asia the idea was to give the magistrate wide discretion. To strike a balance so that the magistrate could have enough power to accomplish what was necessary. Law in its purest form is simply too rigid to be a good substitute for mediation and negotiation. Any law code must be abstract. For a Confucian it is those relationships that are essential to proper order. Magistrates had wide discretion and in practice it at times led to abuse of power. The goal was to make magistrates discretion work to fix broken human relationships but diminish the capacity for abuse of power. There in lies the necessary trade off.
In East Asia Law justice can be very flexible. There are cost and benefits on both sides. The benefit of East Asian justice is that it minimizes arbitrary power. Laws in the west are often disliked in part because of the lack of flexibility in a rule bound tradition. In the East there is still a strong sense that the rule of law is more about moral principle and flexibility rather than being bound by formal or informal abstract rules. "Chen argues for employing men to administer laws, regulations, and institutions flexibly. This option would allow personnel to adapt to changed circumstances and would not require such strict administrative regulations. . . His approach was, rather, to use men to manage institutions flexibly enough so that detailed regulations would be unnecessary." De Bary, Page 647
In the East Asian tradition the law lies in shades of hierarchy of moral significance which could be thought of as minor and major matters. In the west the law is divided between public and private; we tend to think there are certain areas that touch morality. Criminal law for example prosecutes killing, raping, or child molesting on moral principle. They prosecute these crimes in private. However in contract law if an individual breaks a contract westerners typically don't consider that individual immoral. The contract law which is considered more private is not considered as morally wrong as say a murderer or rapist. Criminal law touches on morality because it touches on the rights of individuals.
In East Asia it's not divided up into private and public. Law is seen as a hierarchy of moral significance. The law in the east was divided up into major and minor issues. All law is moral law in the east. A division is made between what is more and less important.
Debt is considered to be a minor issue of relatively minor importance. Land is also considered a minor issue. Buying and selling of land involved strangers. It had moral significance because land involved agriculture which contributed to the proper order and moral markets.
Marriage and Inheritance on the other hand are more important than debt and land. Marriage is of moral significance. Ancestral continuity and the family are taken more seriously. Inheritance in East Asia is not simply a civil issue. Inheritance is considered to carry the weight of a crime like murder. It touches on the survival of the family and ancestral continuity. Inheritance is an issue of great moral significance.
Crimes are also considered a major issue. Crimes like murder robbery, arson, are major matters. In the west we think of them as major matters because they are ingrained as morally wrong and prosecuted through criminal law. In the East these crimes cut at the root of the family, village, corporation, including the empire itself that was necessary for proper order and a flourishing life. Major crimes break basic human relationships including collateral damage to the ancestral lineage and family.
How one determines the importance of the law is defined in terms of the degree of wrong and the relationships involved. They didn't involve the legal world into private and public issues. Just as important the human relationships involved. A crime within a family where a brother kills another brother is considered a worse crime than killing a stranger. A crime in a family is more important because it does more wrong and harm and harms ancestral continuity and the survival of the family itself.
All the law codes and traditions have procedures. In the west for example we have a procedure called habeas corpus or writ of mandamus; the right to a speedy trial, and to force a public official to affect a court order. Every legal system must have some procedures or rules to follow if it is going to work. Everything cannot be left to discretion. Discretion itself has to be shaped by rules. Consequently procedures are seen as protecting individuals.
Confucius was asked what are good institutions or procedures. He responded with those that ensure a ruler behaves like a ruler, a son like a son, a father like a father, a farmer like a farmer are good procedures. Rules were not about treating people in a neutral or equal way. Rules were about rectifying underlying relationships at risk. Restoring, healing, or rectifying broken human relationships was of importance to proper order and a flourishing world. Procedures should help to clarify and rectify situations that have gone wrong.
In the East the law is not retributive or about punishing the guilty nor is it distributive; it's primarily corrective, to correct what has gone wrong, to correct a crime, to correct disputes concerning debt and land. The law is seen as therapeutic it should correct things that have gone wrong. The ultimate ideal in the East Asian system is to have no law at all; a utopian system where there is no corrective action needed; no occasion to go before a court or magistrate. In the wrong hands however, this corrective ideal can become extremely abusive and arbitrary. Please note* I'm aware in current day East Asian Confucianism, I'm discussing theory and theory from reality can vary widely. Thought reform was engaged in. Westerners might call thought reform brainwashing. But it was an attempt to correct individuals who had gone wrong. An example would be getting an individual to confess their crimes publicly. And not just confessing your crimes in public but making amends. It can become very arbitrary and abusive.
Today law in practice is not just finding the correct procedure, it's seen as a mix or rule application. The legal process is turned into a big moral classroom. East Asian law was originally done with a large audience. A good magistrate would find a corrective result. A good magistrate would also try to teach the crowd a moral lesson in the case. In the U.S. one can't be put on trial publicly. (In theory) however this point is debatable with respect to the press. If an individual goes to court in the west for a crime, that individual will not be tried in front of a crowd. In East Asia they do invite a crowd in order to teach and show a moral lesson.
In all societies there are people that kill children. Suppose that a small child wonders away from its parents and a bad person murderers the child. The magistrate compiles evidence and investigates. In an East Asian legal code child murder is bad because it's an attack on the ancestral line of the family. If a murderer has been caught and brought into court, the magistrate checks the code and applies the rules. He might proclaim we have examined the witnesses and evidence and ask the child killer what do you have to say for yourself? The Magistrate allows a crowd to intervene. The relationship between you and the murdered child's family is broken and cannot be restored. I cannot restore you. You have become an animal. There is no reason to correct you. I can use you as a moral example of the depraved behavior that is unacceptable in society. The magistrate would then give the child killer a choice. The child killer could either die through a slow slicing. There is an old saying in English that I think relates to this: Death by a thousand cuts. You can die by slow slicing drawn out over 6 months bleeding to death or if you prefer not to be sliced to death I will allow you to die in a cage in front of my office through slow starvation. This will show the evilness of this crime. For the assassination of a lineage member the punishment is death. The magistrate turns the trial of the child killer into a moral lesson. The magistrate asks the family how you could allow this to happen to the family of the dead child. How could you (the guardians of the child) let your child wonder away and be murdered? This goes back to the idea of collective liability. Everyone is responsible and bears responsibility even in the most extreme case of a child being murdered in East Asian Confucianism.
Some less severe forms of punishment involved shaming. Shaming was not desirable for those being shamed however shaming was/is a common practice. For example wearing the Cangue (block). Let's say an individual stole and refused to return the item. That individual might be sentenced in the following way: under the code and in terms of moral principle I want you to make amends. You (the thief) can't undue the fact that you bullied people. You will stand outside my office wearing a wooden block and sign that will say: I'm a really bad human being. I disgraced myself my parents, my lineage, and the empire. Using the law as a moral performance in shaming people is still common practice today. In the west we see this as a violation of human rights, e.g. cruel and unusual punishment. The east however is about restoration and correction. In East Asia at times the correct way is to publicly shame. "Human minds-and-hearts are mostly self-interested, but laws can be used to make them public minded." De Bary, page 648
In the east individuals do something to make people better off even if they don't want to be better off. Drug addiction intervention is an example of attempting to make people better off even though they may refuse treatment. The idea in East Asia of liberty is not the same as in the west, you can't choose. In East Asia Liberty is an obligation. For example, one has an obligation to be married. If that individual doesn't live up to their obligations then someone like a magistrate can step in and make that individual better off by fixing them. If an individual doesn't do what is expected people can still step in and get them to meet their perceived obligations. Liberty is seen as protection and tied with notions of obligation. Here Confucian Legal Theory and I part company, but still feel obligated to give the whole picture.
Throughout East Asia informal mediation and arbitration are still preferred to going to court. The west is very litigious. Westerners go to court for many reasons. In East Asia a person who always wants to sue could potentially get a block around the neck. Throughout East Asia there is still a norm a preference for avoiding going to court. In Japan and Korea there are a lot of lawyers. In Korea and Japan litigation rates are lower than what would statistically be predicted.
In conclusion, the Confucian theory of law prefers mediation and arbitration to litigation with an emphasis on fixing broken human relationships. The administration of law is essential to the nine pillars of Eastern values of lasting legacies; ethic of education, ethic of savings and investment, virtuous achievement, ethic of team production, flourishing society, ancestral continuity, cultivation of self, harmony, proper order and management. When East Asian people are asked about politics many people will answer politics is about proper order. The building of a world in which there is order and stability built through the institutional relationships.
Being a cafeteria Confucian I apologize for our leaders here in the States who do not value peace, proper order, and stability. However I believe in people and I know that when faced with tough hurdles they are creative. My faith in Bush is lost. I'm not sure the broken relationships that have occurred on Bush's watch can be mended or restored. I personally feel that we must continue to publicly shame Bush and only when a new President or Democratic Congress is elected can our country stop the bleeding and start the healing and hold Bush accountable. Go in Peace and change the world.
USMCCowboy de San Diego