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Law Essay Example: Confucian Legal Theory and Practice

8 pages
2020 words
Wesleyan University
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In any society, morality is characterized by justice, equality, and fairness which are harnessed by the people living in such society. People are bound to act morally in maintaining law and justice. In the today's world, justice is a quality that is practiced and enforced by different institutions that draw their powers from the set rules and laws of justice. They do not involve someone's morality of judgment on what is fair or not. The current society is guided by laws and legal systems that were set long ago in maintaining law and order. The point of justice is the connection of human reasoning and the beginning of an evolution in the legal structures that are seen to be in place in the current age (Frederickson, 610-628). The institutions set in place are a result of long time evolution and development of the previous legal traditions. This is the case of China's development and growth of legal structures which borrows from the western legal structures and the ancient legal structures which were based on the Confucian legal structure.

Confucian legal structure believes that law is an interaction of justice and human morality that is used to create the legal system's norms (Yao, 16-34). The legal tradition does not recognize the set of ideas that moral justice is different from the set rules and laws that are used to ensure equality and fairness in society. According to Confucian perspective, the law is a set of moral justice rules that have been put in place and evolved into the current legal structure. In the tradition Confucian legal set up, law and order were maintained on the foundation of moral values and ethics; however, this legal tradition has been overtaken by events as it will be seen in this paper. The evolution of legal justice has taken a new route which is far from the ideas developed in the Confucian legal tradition and era. One set of ideas as that from the Confucian law cannot be used to make a strong legal structure that can support the current political economy of China.

Since the early years of the 20th century, China has been adopting foreign laws in making their own legal decisions. They have been borrowing from foreign legal structures in developing their legal justice. However, the importation of legal laws can be challenging to the people it is practiced on. Whenever a constitutional crisis happens in China, they have gone ahead to consider legal solutions used in other countries without determining the tradition implications of such laws to its people. They have forgotten that what may apply to other countries it may be different to their people. The implication of these has been felt in the definition of public institutions which should be distinguished to private ones. The basis of such legal structures does not support justice to its people. This is seen particularly in the torts law. At such points, the drawing of Confucian legal theory has come into question on why should people borrow foreign ideas to develop what could have been generated by the society itself (Yao, 16-34). Chinas traditions are different from that of foreign nations and therefore importing legal structures will be dangerous to the justice institutions since they will apply what does not conform to their traditions and culture in the determination of justice and fairness. This is an idea that was mostly practiced in the ancient China as seen in the Confucian legal theory and justice. Although the current legal structures of China have borrowed from the Confucian theory of justice, mostly they have changed it meaning by adopting other ideas mainly from the western legal cultures (Chen, 123).

Those people who bear the school of thought from the Greco-Roman legal tradition believe that law is divided into distributive and corrective justice. They believe in the existence of legal policies, civil law, private rights and justice for all people in the public domain or the private domain. The implication of these is an excellent distinction between the private and public sectors as adopted by the early China. These are mostly the doctrines in which the economic justice of China has been developed into. However, the scholars who share same ideas in this school of thought believe that Confucian legal theory and practice deviates from the doctrines of economic justice and gives one person powers to determine the fate of others in the economic world. In their idealistic way of justice, they believe law and justice do not support the Confucian argument of justice.

In the ancient China, one can hardly find traces of western law used among the people. According to Confucian legal tradition, moral rules are mostly emphasized in the public domain. However, the law cannot be ignored at any set of society. Law plays an essential role in the control of human behavior and coexistence amongst themselves (Williams, 38). This is not the case in the Confucian legal tradition. The ancient China did not borrow from the western culture and believed of legal justice which believed mostly in law as an administrator of justice. The Confucian legal scholars have come under criticism for their arguments against the belief of law as seen in the ancient China.

In the Confucian tradition, it is seen that Li rites were the coexisting tool that guided the day to day lives of the public domain. Li rites are a moral set of rules which governed the interaction of the people in the ancient China. These moral rules were considered as the constitution in which law could not apply. In Confucian theory and practice law was used an intermediary between the emperor and the public. It is ironical to think that people can coexist without any law guiding them but expect the emperor to use the law to impose his will on the people. This school of thought can hardly exist in the modern legal tradition of China where people are just guided by their moral ethics to live amongst each other (Frederickson, 610-628).

In the ancient China, it noticed that more of the moral rules were applied than the law as described by the Confucian theory and practice. Morality and law are described in different ways according to the Confucian tradition. The law was a connection between the government and those governed. The governors could be the law according to their will and impose it on its people. However in the social coexistence of the ancient China Li Rites was mostly used in determining what is wrong and right among the people. At any given time law was not an area of focus by the Confucian tradition and practice. It is not possible to avoid the practice of law in the real world of economic politics. This is so because moral description differs from one person to the other and this can lead to economic anarchy where no one can judge the actions of the other. Law cannot be swayed away from existence among a social set up by moral rites which are not distinguished from the rule of governance.

The Confucian legal theory and practice mostly focused on Li rites as the guiding principles of people; this was an avenue for the existence of social discrimination (Yao, 16-34). The Li rites stated that the people in the high social class had more moral authority than the people in the low social class. Morality was determined according to the social setting among the ancient Chinese people. In the determination of what was wrong or right, the people in highest hierocracy of the social class were considered to be right and more honorable as compared to the people in the lower social class. Social justice was based on the doctrines of class discrimination age and gender considerations (Donnelly, 32). The moral authority according to the Confucian legal tradition was determined by honorable people in the society. It was not based on equality but the rank of the person in the social setting. At the public level, justice could not be accorded in the courtrooms by the law but by class, age, and gender. Confucius believed that respect among people and the government were taken from the distinctions of people as defined in the Li rites. At no point would the government superiors would be considered at the same level as the common citizens in the ancient China. The emperor and the rulers could not be given the same justice as the people being ruled, which allowed law not to apply in these two different classes of people.

The Confucian legal tradition was developed by creating fear among the people being ruled (Frederickson, 610-628). The legal theory borrows from the school of thought where punishment and fear being instilled in people leads to governable state. In case of mistakes committed Li rites allowed severe punishment to be administered to the wrongdoers to set examples to the others. Confucius believed that through punishment, law and order could be maintained in a social setting. At the same time exercise of moral power was used to ensure respect for the people in the sense of social order. Every person had their responsibilities in the society as described by the Li rites. In the view of the critics of Confucian legal theory and practice, ancient China justice lied to the superior people in the society.

In the ancient Chinese law, it is believed that governance and justice cannot be administered to people without the practice of doctrines described in the Li. The Confucian legal theory states that balance of social relationships cannot be maintained by law alone. There is a need for moral virtues and ethics to bring harmony among the people. In determining what is wrong or right, Li rites comes on hand to bring a clear distinction between what should be done. It is believed that order in a society is maintained by self-discipline and self-guidance as described by the moral authority. When one knows what is wrong and what is right, it is hard to go against the doctrines of Li Rites since there is a moral authority that administers punishment depending on the social order. The Confucian legal practice was mostly based on the moral authority rather than the law to maintain order in society.

Legal justice according to the Confucian theory was mostly based on humanity and the attributes of social morality. There were levels of different orders such the family which ensured moral order was maintained. Between a father and son, the father had the responsibility of nurturing their sons to follow in his footsteps. What was wrong or right depended on the father's attributes and virtues. In the case of wife and husband, the husband had superior authority to the wife; each had a responsibility they were to fulfill as stated in the LI rites. These doctrines were the source of legal structures in cases of judgments. There was no definite definition of what is wrong or right as in the case of law where all people are judged fairly and equally. Confucian theory gives different orders in which justice is administered. In this theory of legal justice, no definite law was given to judge a particular mistake (Williams, 38).

In the Confucian legal theory and practice, justice was not practiced on a parallel line rather it was the downward practice of law; there was no equality in the practice of law. The only mandated power according to the theory was the government which would impose its will and punishes people according to what they felt was fit (Yao, 16-34). In this theory and practice, the sense of coexistence among individual people was the key focus, but it did not provide avenues for private justice. In cases where people wronged each other, no justice could be granted to any of the people since there were no common institutions of justice. This is one of the criticisms given by the believers of corrective justice where the law applies equally to everyone. However in the Confucian system of justice law is only applied by the state to impose guidelines on its p...

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