Confucianism Legal Theory and Practice

Unlike Christianity, Confucianism is not a religion, but rather an ancient Chinese philosophy based on love, respect, and kindness (Ho 49). Confucianism's legal theory and practice form the bedrock of Chinese tradition, culture, and ideas. Its entire foundation is based on compassion, mutual respect, and an admiration for character and virtues (Ho 49). The notion is based on the conviction that constructive interpersonal connection is the only way to ensure a flourishing society (Ho 49). In 551-479 BC, Master Kong, who was called Confucius by Jesuit Missionaries, created Confucianism in China (Ho 49). The fundamentals of Confucianism, on the other hand, date back to the Zhou Dynasty, which existed prior to Confucius' birth (Ho 49). During the period in which the Confucianism philosophy was developed, Spiritual matters were adorable, and ideas of respect and the well being of others were widespread. Those in power had the mandate to rule with divine goodness (Ho 49). The Confucianism philosophy’s ideas were mainly purposed to unite and create stability for the people and ensure the people did not rebel(Thanh, Thi and Peter 57). Confucius strongly believed that his philosophy would lead people to the attainment of a civilized society (Thanh, Thi and Peter 57). Therefore he shifted the attention of his philosophy from the ruling authorities and the divine nature of one’s future after death and instead put more emphasis on the importance of human beings’ daily life and their interactions (Thanh, Thi and Peter 57). The new version of the Confucianism philosophy only took root in the next dynasty, the Han (140-87BC) (Thanh, Thi and Peter 57). It was embraced by people and is still applicable up to date (Thanh, Thi and Peter 57). It has greatly dominated the feudal society with its influence lasting for over 2000 years, because of its great influence it cannot be overlooked (Thanh, Thi and Peter 57). The current Confucian philosophy is founded on appreciation of individual’s character and the general well-being of everyone.

Confucian Philosophy’s Legal Practices

There is a common myth in the West that Confucianism, particularly in East Asia, is lawless, but the truth is that East Asia has a complex legal system which fixes human relationships through mediation, arbitration, and reconciliation (Loewe 18). The Confucianism legal system does not value the use of court proceedings to set human relationships (Loewe 18). In fact, the Confucian law is based on restorative justice to mend broken human relationships; its primary goal is not to decide who is right or wrong, or who wins or loses but instead it aims at restoring broken relationships (Loewe 18). The law is mainly about rituals and family, and it always seeks to answer the question of “how can these people be restored to a harmonious relationship? (Loewe 18)” Confucius served as the principal justice official of the ‘Lu’ State, and he persuaded people not to litigate but to instead participate in mutual rang (Loewe 18). Rang means yielding, making concessions and compromises and it is what the people practiced (Loewe 18).

Confucianism philosophy engages in procedural justice that protects people from abuse of power and aims to make sure that the set of rules and procedures get to treat everyone fairly (Loewe 18). Unlike the Western laws that consider methods as primary and human relationships as secondary, Confucianism views human relationships as fundamental and procedures as secondary (Loewe 18). The western canon emphasizes the rights of an individual while in the Confucianism law, there is an interdependent relationship between the law and people (Loewe 18). The Confucianism law embraces the idea of collective liability where everyone is liable for a fault and everyone shares in the responsibility of the consequences of an error (Loewe 18). However in the Confucianism law, if the mediation or arbitration process is unsuccessful, the next step is litigation. The litigation process in the Confucian doctrine is entirely different from that of the Western law in that, in the Confucianism legal system, the magistrate through mediation or arbitration proposes remedies while maintaining collective liability and eliminating zero defect/default mentality (Loewe 18). According to Confucius, a compromise that people can live with is better than the court orders that destroy entirely human relationships (Loewe 18). The difference between the Western and the Confucian legal system is very glaring especially because the Western law’s adjudication is done strictly according to the law whereas, in Confucianism, mediation is done by human compassion, which means that what is considered to be right or wrong can be compromised (Loewe 18). The Western source of law is deemed to go beyond human will, but the Confucianism law comes from ritually defined institutions like the family. The East law is patterned after rituals, and it supposedly corresponds with people’s needs (Kung, Kai-sing and Chicheng 133). Confucius firmly believed that proper administration of a government would discourage crime and would ensure everyone benefits from the advancement of a nation’s economy (Loewe 18).

Impacts of the Confucian philosophy on the Chinese Society

Confucianism had a very significant effect on the Chinese society as it brought stability to the Chinese country which had been adversely affected by previous changes in dynasty (Kung, Kai-sing and Chicheng 133). It is for the positive impacts of the Confucianism theory that it has been dramatically valued such that its practices have been upheld to the end of ancient Chinese era and beyond (Ho 49). A stable structure that has existed for the majority of the time that Confucianism philosophy was used is one of the successes that can be attributed to Confucius (Kung, Kai-sing and Chicheng 133). A booming economy characterized the stable society that was just considered to be perfect. But despite Confucius many successes, he also had some setbacks.

Confucius believed that everyone in the society had their place and role and from this very belief, he turned China into a structured community (Kung, Kai-sing and Chicheng 133). According to the structure of the organization, a ranking of people in social classes depended majorly on their work and roles (Kung, Kai-sing and Chicheng 133). For example, despite merchants being very wealthy, they were ranked at the bottom of the social class as their work was not as hard as that of the farmers (Kung, Kai-sing and Chicheng 133).

Confucius created schools for the Chinese people that taught young boys in the way of the Confucian philosophy (Kung, Kai-sing and Chicheng 133). The boys were also taught calligraphy which enabled them to become scholars. Confucianism beliefs caused a woman to be a subordinate throughout the religion (Kung, Kai-sing and Chicheng 133). This act of making women be subordinate confirmed the claim that women’s power was less compared to the power of men in the society (Ho 49). The Confucianism beliefs on women’s ability impacted how the community viewed its women causing many women to use horrible practices such as Foot-Binding in a bid to reclaim their social status in the society (Kung, Kai-sing and Chicheng 133).

Confucianism Rituals and practices

People who practice Confucianism have a firm belief in rituals, and they participate in the ceremonies so that their community can be united and strengthened (Thanh, Thi and Peter 57). Confucianism neither upholds all aspects of religions nor holds regular practices in life (Thanh, Thi and Peter 57). It only considers stages such as birth, reaching maturity, marriage, and death as symbols of the most critical times in a person’s life (Thanh, Thi and Peter 57).

Birth Rituals

Mothers are always given special diet during their pregnancies and are allowed to rest for one month after the birth of their children (Kung, Kai-sing and Chicheng 133). Tai-Shen which is the spirit of the fetus is believed to protect expectant mothers and harshly punish anyone who harasses or intends to harm a pregnant woman (Thanh, Thi and Peter 57). Parents have the responsibility for providing everything that the child needs and the child’s anniversary is marked in the first, fourth and twelfth month (Kung, Kai-sing and Chicheng 133).

Marriage Rituals

Marriage rituals involve six stages. First, the proposal; both sides of the relationship ought to share the hour, day, month and year of their birth(Thanh, Thi and Peter 57). It was believed that occurrence of an upsetting event in the bride-to-be’s family within the next three days after the proposal indicated the bride’s rejection of the plan. Second, Engagement; It was marked by the couple deciding the wedding date and the bride announcing the wedding with invitations coupled with gifts of cookies in the shape of the moon (Thanh, Thi and Peter 57). Third, Dowry; It was done by the bride’s parents transferring their belongings as an indication that their daughter was getting married, the transfer happened after gifts of equal value were given to the bride and groom (Thanh, Thi and Peter 57). Fourth, Marriage; couples were to recite lifetime binding vows, celebrate by taking wine and be at the center of the banquet that consisted of the bride and groom’s family and friends. Fifth, Morning After; the bride serves the groom’s parents breakfast, and the parents were expected to do the same (Thanh, Thi and Peter 57).

Death Rituals

Loud cries from the family members of the departed serve to inform the neighbors of the tragic news (Ho 49). Mourning begins by the family members making and wearing clothes of course material. The corpse is placed in a coffin after which family and friends raise money to help with the cost of the funeral (Ho 49). Food and the deceased’s valuables are placed in the coffin with him, and a minister of any religion performs the burial ritual (Kung, Kai-sing and Chicheng 133). To symbolize the soul of the deceased, guests follow the coffin carrying a large willow tree branch, which is later taken to the family altar where it is used to “install” the deceased’s spirit. On the seventh, ninth and forty-ninth days after the burial, along with the first and third year anniversary of the death, liturgy (public worship) is performed (Kung, Kai-sing and Chicheng 133).

Social Rituals

Confucius viewed social rituals as specific ways in which people were to interact with each other and according to him; everyone has a role to play in each of their relationship (Thanh, Thi and Peter 57). Everyone has to be well aware of their specific roles in each relationship to ensure that the relationships remained healthy (Thanh, Thi and Peter 57). He identified the following main relationships in life: First; Ruler and subject, second; Husband and wife, third; Father and son, fourth; Elder brother and younger brother and fifth; Friend and friend (Thanh, Thi and Peter 57). From Confucius’ classification of relationships, it is obvious that he has a great value for the family because three of these relationships fall under the family category. It can also be noted that all of the family relationships except the last one are hierarchical (Thanh, Thi and Peter 57). The family is the core of the society and according to Confucius; it is the most important of all relationships (Thanh, Thi and Peter 57). He gives an example of people’s roles in relationships where he identifies the husband’s role to be of showing kindness and being attentive to his wife (Loewe 18). He assigns the wife the role of being obedient to her husband. ‘Li’ is a Chinese name for the principle of doing what one is supposed to do (Loewe 18). Other groups of beliefs in Confucianism include:

Yi – Righteousness (Kung, Kai-sing and Chicheng 133).

Xin - Honesty and Trustworthiness (Kung, Kai-sing and Chicheng 133).

Chung - Loyalty to the state, etc (Kung, Kai-sing and Chicheng 133).

Li - includes ritual, propriety, etiquette, e.t.c. (Kung, Kai-sing and Chicheng 133).

Hsiao - love within the family, love of parents for their children, and love of children for their parents (Kung, Kai-sing and Chicheng 133).

Jen - compassion, humanness towards one another (the most imperative Confucianism virtue) (Kung, Kai-sing and Chicheng 133)

Conclusion

The Confucian theory of law prefers mediation and arbitration to litigation with the aim of restoring human relationships (Ho 49). The way in which the Confucianism legal system administers its laws is of great importance to the nine pillars of Eastern values that ensure lasting legacies (Ho 49). The components include ethics of education, the ethics of savings and investment (Ho 49), virtuous achievement, the ethics of team production, flourishing society, genetic continuity, cultivation of self, harmony, proper order and management (Ho 49). In East Asian, politics is about appropriate order, and everything is done with the primary purpose of ensuring that people live in unity and harmony while getting the best from their environments. The Confucian theory advocates for fairness as it considers all human beings to be equal.

Works Cited

Ho, Norman P. "Confucian Jurisprudence in Practice: Pre-Tang Dynasty Panwen (Written Legal Judgments)." Pacific Rim Law & Policy Journal, no. 1, 2013, p. 49.

Kung, James Kai-sing and Chicheng Ma. "Can Cultural Norms Reduce Conflicts? Confucianism and Peasant Rebellions in Qing China." Journal of Development Economics, vol. 111, no. Special Issue: Imbalances in Economic Development, 01 Nov. 2014, pp. 132-149.

Loewe, Michael. "'Confucian' Values and Practices in Han China." T'Oung Pao, vol. 98, no. 1-3, 6/1/2012, pp. 1-30.

Thanh Pham, Thi Hong and Peter Renshaw. "Formative Assessment in Confucian Heritage Culture Classrooms: Activity Theory Analysis of Tensions, Contradictions and Hybrid Practices." Assessment & Evaluation in Higher Education, vol. 40, no. 1, Feb. 2015, pp. 45-59.