Description

Many scholars and commentators like to use the adjective “Confucian” to describe aspects of Asian legal systems. But what does “Confucian” mean? What is “Confucian” legal thought?

The usual explanation goes something like this: Confucius (c. 551-479 BC), the founder of the “Confucian” school, believed law (fa) was a lower norm in society; rather, society should be regulated primarily through ritual (li), buttressed by self-cultivation and learning. We should be merciful and punishments should be used in moderation.

The usual explanation often then continues by contrasting (sharply) “Confucian” with “Legalist” legal thought, ie, the ancient Chinese “Legalist” philosophers who held up law as the primary norm in society and who advocated for harsh punishments even for minor offenses.

In this lecture, I argue that this usual explanation is not fully accurate. This usual explanation focuses too much on the Analects (sayings of Confucius) as its primary source and largely ignores other important sources of Confucius’s thought, including Confucius’s own biography and sources such as the Kongzi jiayu (literally translated as “Family Sayings of Confucius”). Taking these sources into account forces us to rethink Confucius’s (and Confucian) legal thought as one which arguably shares a lot more in common with what many consider to be “Legalist” positions and orientations.

This lecture also raises larger questions that are not limited to Confucius or Chinese legal thought, broader questions such as: how do we re-evaluate a figure’s legal thought when new sources are considered? How relevant is a figure’s biography in understanding his/her jurisprudence? How do we deal with a situation where a legal thinker’s writings or sayings differ quite dramatically from his/her actions (e.g., how he/she applies the law)?