The Confucian theory has been an age old ideology that has controlled the life and culture of the Chinese people for decades. It has been castigated from some quarters due to its stand on many issues in China. Despite the harsh criticism of the official view of this ideology on China. The core values of this old philosophy have influenced the Chinese society for many years, and it is still felt in the present day China (Cohen and De Bary, 2000).
Confucianism is not compatible with the rule of law.
The comparison of the Chines and the Western approach to the rule of law
When considering the rule of law, Confucianism seems to play a negative role in the public welfare of the Chinese people. To better understand the effects that Confucianism has on the rule of law, one needs to study systematically the framework of this philosophy and relate its values with the principles of the rule of law. The analysis would reveal the differences in the Chinese and Western world rule of law and why the Chinese prefer the use of Confucianism in the resolution of the disputes rather than reverting to the rule of law.
The paper is going to analyze the ways of thinking of the philosophy by dissecting its core values about the operation of the rule of law. The paper seeks to compare the way the Chinese and the Western people respond to the rule of law. The evaluation would seek to determine the way the rule of law is upheld in the two societies and the interpretation of the rule of law based on Confucianism.
The Westerners seems to have high respect for the rule of law compared to the Chinese. The principles of this philosophy are evident in the core values of the Chinese society, and this extends to their response to the rule of law (Bell, 2009).
The legal system of the Chinese society was formulated based on Confucianism. The ethical thinking in the content and nature of this system was founded on the ideologies of this philosophy. The law in China has for decades been viewed as a means of enforcing the doctrines of Confucianism to the society.
The Chinese conventional legal system emphasized the family ties. It had no close for the gender equality that is found in the western system. The legal system used by the Chinese administration conferred special privileges on the public administrators who are essentially the government officials. Civil law was not given any preference in this system of government, thus leading to the poor development of the civil law in the nation (Cohen and De Bary, 2000).
The traditional system has been out of use since the beginning of this Century. This situation arose due to the influence of the Western system that tries to do away with the extraterritoriality that has been enjoyed by the big powers. However, the effect of the Confucian philosophy has not waned among these people. It still plays a significant part in shaping and defining the way these people think and the value system they have integrated in their culture.
In stark contrast to the litigious society of America, the Chinese are reluctant to use litigation to handle their disputes. They don’t have the same level of confidence in court like their American counterparts. The effect of the Confucius principles on the morality of the Chinese society is still strong and unshakable.
It forms a deeper part of their thinking on the issues of disputes in their society. They tend to mix law with morality and hence shy away from using the legal system whenever a disagreement occurs between two individuals. Their response to the law is that of indifference, abstinence or contempt.
The Western Society regards the legal confession highly in public and as part of the legal process. The Chinese people have however not embraced this practice in their culture. It has been accorded a limited position in the Chinese community. The Chinese people do not have a clear understanding of the rights and duties as the citizens of the county. The concept is still blurred in the minds of most of the people. This is extended to the trade and commerce transactions. They do not assert their duties and rights in great details in the operations. Whenever things take the direction that had not been anticipated, these people would use fiction to try and find the answers.
Chinese Penal Codes and the Confucian Rejection
The thinkers of the ancient China were the original initiators of the penal code. A debate had had in the ancient China on whether to publicize the criminal laws or not. The direction that this discussion took was in the line of the penal law. The law argument was that the criminal punishment ought not to block the moral argument of the rule of the law. The means of punishment and of coding the rules seemed not to have found favor in the principles of Confucianism.
The proponents of the Confucian principles argued that the notorious xing punishment and the coding of the punishment were not the best way to deal with the rule of law. According to this argument, the code was not used to directly describe the behavior but rather to approve and validate punishments for offenses in the society. The code had regularized the punishments to the wrong doings. Analects responded to the penal code basing the argument on the Confucian principles.
According to Analects, should the people be led by coercion and ordered with punishment and they will not desist from doing wrong. They will get used to the system of punishment and will have no shame in repeating the offense since they will grow accustomed to the punishment that comes with it. Analects suggested that they should rather be led by virtue, and be ordered by ritual and this will instill the shame in them and prevent them from committing any wrong. They will, in turn, learn to fit in the society (Confucius, 2015).
The argument from the Analects is an indication of how the Confucian philosophy did not support the rule of the law. This was outright opposition to the rule of law and the principles that it stands for, unlike the Western philosophers who would not question the rule of law and would look for explanations to justify the political structure of the administration. Confucian principles seem to take an opposing stand on law and punishment from that of the Western ideologies.
The Western society is controlled by law and the legal system as a means of enforcing the social order. They support the elements of law like the penal codes that they believe would get people to conform to the peaceful and cohesive behavior. Confucian, on the other hand, argues that the reliance on the penal codes, as well as administering punishments, would inculcate the selfish tendency in the human nature instead of achieving the peace and cohesion aimed.
Using the Analects’ assertions, if an individual becomes successful in talking her or his way out of punishment, the other people will admire such a person and would look up to him or her when they found themselves in any form trouble. If the people should choose to use the penal codes in the administration of justice, the people will seek for clever means of getting away with the wrong, thus forcing the society to come up with a more sophisticated system to catch up with such characters (Confucius, 2015).
The outcome would be a society full of self-centered individuals who pay large sums to a large number of lawyers and lawmakers to keep up the complicated system that the society has created. There will arise a couple of libraries to support their means. What is legal is not necessarily moral, and this would be a loophole for the corrupt public figures that would help us the legal means to justify their immoral behaviors in the society.
Confucian philosophy stipulates that the society that depends on such an institution to uphold its social order will not be safe as compared to the other that the education of the masses in morality and building of the character of the public to do what is right and to avoid what is wrong. The basis of this argument is to put the people in a position that makes them avoid doing anything that would be shameful to them.
Putting emphasis on the penal code as guidance to the social order is in conflict with the Confucian proposition that using education to instill the moral character of the people would help maintain law and order in the society. Mencius argued that catching and punishing people for committing a crime is like trapping them instead of abating the crime. This is not consistent with the rule of benevolence.
He further stated that publishing the codes and using them to deliver punishment to the people instead of teaching them the right behavior and instilling moral character in them is tantamount to cruelty. Moral education would be a better approach to enhancing social order as compared to using the codes. The Confucian character cultivation and family education is believed by many Chinese to be the foundation of law and order in their society.
The Confucian philosophy undermines the rule by law. The rule by law justifies the role of the legal institutions in guiding the behavior of the society. The opposition to this assertion from the Confucius argument is founded on the charge that law is not sufficient to undertake this role. It challenges the purpose and roles of these institutions in creating a society that is subservient to order. The Confucian makes a compelling prima facie case that stipulates that a stable social order can be attained more reliably using other means other than the penal code and the legal institutions.
It advocates for a more subtle approach to the maintenance of peace and stability in the society through character development and cultivation of ethical behavior among the people in any given community. The reasoning based on the values of Confucian has led to the development of several lines of argument. One is the concern over the adaptability and the flexibility of the public coding system to the changing social behavior.
The argument of the Confucian principles of the rule of law can be looked at in the psychological perspective. The perspective asserts that punishment stimulates the selfish nature of individuals and, in turn, impedes the natural growth of the character that would be socially harmonious. The Chinese chose to blend the penal codes with the moral judgment as proposed by the Confucian doctrine.
This would be effective if the ritual, suggested by the same philosophy would form be successfully infused with the penal code. In the ancient China society, the thinkers advocated for the cultivated intuition. They believed in the natural human intuition other than the arbitrary command of the rulers.
The task of judging and punishing was defined to the specialists by the thinkers to the specialists in the Confucian conceptions and ethics instead of the rule of law. The outcome of their influence was the restraint in the employment of punishment to control the people. Confucian advocated for the protection of the masses from the arbitrary authority from the officials.
The effect of the Confucian ideology in China was the adoption of the moral ideal of the rule of law and its entrenchment in the values of these people. It rode on the success of the Chinese culture of the equal concern for all as the source of the moral authority that would guide the individuals in knowing what is good or what is bad and using this instinct to guide their actions.
The Confucian philosophy is not compatible with the rule of law. The way of thinking created ideology was one that advocated for the use of moral authority to establish law and order in the society. Drawing conclusions from the discussions and arguments of this ancient Chinese philosophy, we realize that it was entirely opposed to the use of law to guide the behavior of the members of the society.
It tried to use morality as a means of attaining the natural law among the people. The use of the rule of law is superficial and does not sufficiently address the underlying human need for law, order, and peaceful coexistence. The purpose of this ideology is to safeguard the democracy, social order, equality, justice and participation. These, it asserts, would not be accurately attained when the rule of law is used as a guiding principle.
The moral teachings of this great philosopher are valuable in the Chinese society. The teachings did not seem to support the rule of law in any way and advocated for the system where their morality would guide the individuals in their everyday life. Their actions would be based on the moral authority without necessarily being governed by the rule of law as described by the authorities. The teachings took a collective approach to the conduct of each member and how it enables him or her to fit in the society.
The ideology did not recognize individual responsibility, freedom, and equality that are important aspects a democratic society. The philosophy goes against all the aspects of the rule of law that it terms as oppressive and limiting to the human behavior. The advocates of this ideology have in many instances opposed the western legal system that they see the stimulator of the immoral and selfish society where individuals use the law to run away from punishment and to propagate their unethical behaviors.
They hide under the law even after committing the crimes. Confucian argues that this would be avoided by teaching the people to know what is right and their behavior as functional members of the society. It invokes the application of moral authority in conducting one’s self in the society.