The Confucian legal theory is among the most respected schools of thought in the world since it has been evolving to the contemporary world. Several studies have stated Confucianism is a philosophy rather than as a religion, but it can be considered as a law for reinforcing roles and as a means of social regulation. In the study of East Asian Politics, the law has an extensive responsibility that remains to define East Asian familial relationships, culture and the politics in the contemporary world. East Asia has a rich legal model that remains to shape the legal behaviors in the contemporary world. A common myth that has been common in the west is that Confucianism, especially in East Asia, is lawless although this couldn’t be away from the truth. A closer look at the East Asian legal system will light up this fallacy as well as shed light on this sophisticated legal system that places fixing people relationships via mediation, reconciliation, and arbitration above litigation. This paper will examine the legal theory and practice in the East Asian Confucian.
Confucian law can be considered as a restorative justice. Restorative law is concerned with the mending of broken individual relationships and it is a Confucian concept of law. In Confucianism, when a judge makes a decision, the ultimate objective is to mend the broken individual relationships or restore justice. When an individual, therefore, presents a case before a judge, the objective is to restore the relationships that have been broken and further correct the wrongs of an individual. When an individual imagines that something has gone wrong in her path hence the necessity for a correction, it is the role of the judge to perform such an action. Additionally, when a sick individual wants to be healed, then he or she should seek the judge since they are responsible for such actions. According to the Confucian legal theory, the ultimate objective is not to give a verdict on the loser and the winner, but rather to devise ways of mending the problem. Confucian legal theory is basically about the family and rituals and seeks to answer how individuals can be restored to their normal symphonic relationships after committing wrongs. A word in the Chinese language that takes into consideration the compromising idea is rang. Rang is a word that means to compromise (De Bary 399). When the Confucian legal theory was utilized as the core justice official of the Lu Nation, he was excellent at persuading individuals to avoid litigation. Mutual range which yielded compromises and made concessions was evident in all individuals in the Confucian society. An instance of restoration and reconciliation could be a widow’s proper share when a widow is left alone by her dependent family she owns the legal recourse since in the Confucian culture the family is mandated to care for her. If a powerful member of a family pushes the widow out of the family to the streets, a judge is supposed to restore the break in the family in order for the family to remain in peace as well as live in a noble manner. The poor widow should be integrated back to the family in order for her to carry on with the ancestral lineage.
In target procedural justice under the Confucian legal theory, the target is to make sure that within a set of regulations or procedures all treat individuals well (De Bary 443). Target procedural justice secures individuals from the mishandling and misuse of power hence it can be viewed as a way of depicting fairness. It advocates individuals to treat each other in the same way. The Western law views procedures as principal and individual relationships as secondary. On the other hand, Confucianism legal theory views procedures as secondary and individual relationships as principal. Additionally, western law emphasizes the rights-bearing people. The unit in legal theory in the west is the rights-bearing people. On the contrary, in East Asia legal theory the relationship between the people with the law is viewed as mutually dependent.
The idea of collective liability is dominant in the Confucian theory of law. If people are not successful with mediation or arbitration, then the subsequent step would be the judge in the court. In relation to collective liability, everyone is susceptible to liability and fault. Every purpose, according to collective liability, shares a responsibility in the society. A great instance of collective liability is theft. Theft is viewed as a personal act although the individual who had the products stolen is responsible for not properly taking care of the valuable belongings. The individual, in relation to the western law, would consider the victim as reckless, careless and liable for tolerating the occurrence of the theft.
In Confucian legal theory, the role of official law codes is to prescribe ways for transgressions and those who are found not right. Through arbitration with mediation, the judge can suggest ways while maintaining collective liability as well as prohibiting defect mentality. Confucianism legal theory strongly condemns litigation in society. The compromise that abides well with the individuals in the society is considered fitting compared to court decisions that destroy individual relationships. In Confucianism legal theory, arbitration and mediation were considered better off compared to litigation (Magagna 11/15). It was better for a judge to be diligent at hearing and adjudicating a certain case. However, there were instances when the judge should not take too much a black and white attitude. Instead, the good way to restore symphonic relationships is through mediating the relatives and friends to the family. Although mediation was conducted mainly through human compassion, adjudication was conducted through the law. Under adjudication by law, there was to be a clear-cut position against or for, however, under mediation by human compassion, then the wrong and right were to be compromised. This led to the rightful ones accommodating the emotional states of the friends plus the relatives but the wrongful ones avoided the law. This is the core reason that led to the establishment of mediators under the Confucian legal theory. The judges who were more successful got the parties involved on a compromise hence agreeing upon whether arbitration or mediation was the best solution and this crucially gave limited room for litigation to be part of the Confucian legal theory.
According to the western legal theory, the basis of law was considered to transcend the human will while in the Confucian legal theory law came from ritually defined associations such as the family. Law codes were made to abide by the defined institutions such as the family since it was regarded as the most important institution. In Confucianism legal theory, the law was patterned preceding a ritual and was supposed to align with the needs of the individuals. Moreover, while the western legal theory consisted of open losers and winners and if an individual had to perform an act, then no person had the right to halt her or him. In East Asian Confucianism, a thought is based on the obligation which is entirely different from the western right bearing person. Under the Confucian legal theory, if a regime was administered appropriately, then an individual would not be involved in theft and the need for reporting of such offenses would be non-existent (De Bary 633). This is contrasted with a ruler that Confucius came across which mandated that if a parent steals an animal, then the son was obligated to report the parent. We can hence state that this placed emphasis on the family as a ritually defined association.
Under the Confucianism legal theory, the processes and traditions of law must proceed in a logical manner. The initial step is mediating or arbitrating. People who are involved in conflicts would seek out the elders of the ritually defined associations to attempt a compromise. An instance of this is as follows; if your sister sins against you, you go and narrate to her the faults, just between the two of you. If she listens to you, you have won your sister over and the case is resolved. And if the sister disregards you, go with two or more individuals as your witnesses along, in order to develop a testimony of these additional witnesses. If she continues to disregard both the witnesses also, the next step is to proceed to tell the church and if she continues not to listen you consider her as a tax collector or even a pagan (De Bary 646). Mediation recommends what alternatives are obtainable; while arbitration is binding hence an arbitrator can decide a case with the lack of a possibility of an appeal. And if this does not yield fruits, the next proceed is to take the case to a judge, with the objective of attempting to limit the use of official codes.
In Confucianism legal theory, justice is very flexible since there are costs involved on either side of individuals presenting a case. One of the benefits of the Confucian justice system is that it involves minimal arbitrary power. Contrary to the west where laws are habitually disliked due to the inflexibility in the rule-bound culture, Confucians legal theory depicts a stern sense that the rule of law is more centered on flexibility and morals instead of being bound by formal and informal abstract regulations. Chen, a Confucian legal theorist, emphasizes on employing men to oversee justice, institutions and regulations. Chen methods were to utilize individuals to control institutions flexibly adequately so as detailed regulations would not be mandatory. In relation to the western law, Confucianism legal theory does not constitute private and public laws since it is viewed as a hierarchy of moral importance. Rather, the Confucian legal theory was divided according to the minor and major issues. In the Confucian legal theory, all law was moral law hence a division was made on what was more crucial and what was not crucial. An example of this would be debt and land. Both land and debt were viewed as minor issues in the Confucian legal theory. Purchasing and marketing of land comprised even strangers although it has a moral significance. Land involved agriculture which was important to the contribution of proper order as well as the moral markets. Another instance of the division of crucial issues was in marriage and inheritance. Marriage and inheritance were considered to be major issues of moral significance. The ritually defined associations plus ancestral continuity were considered as serious matters in the Confucian legal theory. In addition to this, inheritance under Confucian legal theory was not considered a simple civil issue rather it was seen as equivalent to the weight of a criminal case which involved murder. Inheritance was considered as a multifaceted civil issue as it touched on the family survival as well as ancestral continuity hence it was considered a matter of prodigious moral importance (De Bary 647).
We can do it today.
In Confucian legal theory and practice, all law codes, as well as the procedures, were composed of procedures. Whereas in the west have procedures such as the writ of mandamus or habeas which are concerned with the speed of a trial and a procedure that allows a judge to affect a court order, the Confucian legal system has procedures that govern the validity of its institutions. Just like other legal systems, the Confucian legal theory has several procedures that it abides for it to work appropriately. Since everything cannot be defined by discretion, it is important to devise procedures that will protect people. Even under other legal theories, discretion is itself governed by rules. Whereas discretion carries the possibility of accountability by the lawmakers, discretion can also lead to abuse. Under the Confucian legal theory, discretion was utilized since giving the judges sufficient powers to accomplish what was required under the law. For the Confucian, maintenance of proper order was necessary hence they mandated the judges to use discretion as a means of mending the broken individual relationships and reduce their capacity for mishandling of power (De Bary 648). The question that arises under Confucian good procedures thus arises. Confucian good behaviors mandate a parent to behave like a parent, a king to behave like king and so forth. These were formulated to ensure individuals rectified themselves when their underlying relationships were at risk. Rectification of the underlying human relationships ensured that there was proper order adherence and it led to the flourishing of the world. Procedures under the Confucian legal theory were meant to rectify as well as clarify states that were going wrong.
Moreover, in Confucian legal theory law is not retributive or punishing the wrongdoers, rather it is importantly corrective with a primary focus of correcting the wrongs, crimes, and conflicts that are related to land and debts. Confucian legal theory is therapeutic hence its mandate is to rectify those things that are not going well (Magagna 11/15). The ultimate scenario under the Confucian legal theory is to make law non-existent, and to establish a utopian system where there are no corrective methods required and at no circumstance an individual will be required to attend the courts. Although this corrective situation is ideal, it can be very abusive and arbitrary. In Confucian legal theory, individuals are mandated to publicly confess their crimes as well as make corrections.
In the contemporary world, Confucian legal practice mandates research on the corrective procedures in addition to the rightful application of the rule of law. The legal course is turned into a huge moral class. Since the East Asian law was initially done with large audiences, it becomes apparent that only the good judges found excellent corrective procedures. Hence, under the Confucian legal practice, an individual can be tried in front of an audience in order to teach and give a moral lesson. Another legal practice that is found in Confucianism was shaming where the punishment involved was not severe. Shaming is a common practice under the Confucian law for restoration and correction of justice. Confucianism desired to shame its wrongdoers since “human hearts and minds are majorly self-interested, although laws can be utilized to make them mind the public-minded (De Bary 648). The Confucian legal practice still prefers to mediate and arbitrate rather than going to the court which is considered litigious.
To conclude, the Confucian theory of law values mediation and arbitration rather than litigation with a focus on fixing the broken human relationships. The administration for the rule of law is important to the pillars of East Asian values of lasting legacies such as the ethic of savings and investment, ethic of education, ethic of team production, flourishing society, virtuous achievement, ancestral continuity, harmony, management, management, proper order and cultivation of self. Many individuals in Confucian legal theory believe that politics is majorly concerned with proper order although politics is concerned with values such as peace, proper order as well as stability. The world under Confucian legal theory should be mandated to build the broken relationships.
- Magagna. “E. Asia Thought/Comp Perspectv”. Video blog post. Poli 113A. UC Sandiego, 11 June. 2017. Web. 09 Nov. 2017
- De Bary, William. Neo-Confucian orthodoxy and the learning of the mind-and-heart. Columbia U.P., 1981.