First, a comparison between the main schools of Chinese legal thought, Legalism and Confucianism.

In the second part, a discussion of Chinese detective stories, including Robert Van Gulik's Celebrated Cases of Judge Dee, helps students and teachers see these theories in the context of the dynastic Chinese legal system.

Finally, a series of observations by Henry C K Liu compares Chinese perceptions of rule of law to the more familiar understanding of rule of law in Western societies.

Chinese Legal Theories: Role of law in society While rites should govern most relationships between people, law is reserved for relations between subjects and the state and for those who do not observe rites.
Legalism (Fa Jia):	Confucianism (Ru Jia):
Law and punishment are necessary means of imposing order.	Rites, and not law, should govern behavior. Law is only for "social outcasts."
	Li (rites) based on Five Relationships: 1. Sovereign to subject 2. Parent to child 3. Elder to younger brother 4. Husband to wife 5. Friend to friend
Emphasis on Fa (written laws), xing (punishments)	State should be governed by individuals obeying Li to serve as a positive example for lower orders of society.
System of harsh punishments will encourage observance of the law	Respect from peers and posterity will encourage observance of li (1)
Advocates merit-based selection of administrative officials "Merit" is defined as tests of relevant skills	Advocates merit-based selection of administrative officials; "Merit" is defined completion of examination based on Confucian texts (2)
Uniform rules and punishments	Rules and punishments based on Confucian hierarchy (3)
Written codes address "behaviors that might run counter to the emperor's interests in maintaining power and order"	Li governs personal relations, private business transactions, torts, etc. (4)
Origins:First verified Legalist code is the Shang Yang Lü (4th century BCE) from the state of Qin, which became the Qin Code upon the beginning of the Qin Dynasty in 221 BCE	Origins:Han Dynasty, T'ang Code (624 CE, revised 653)
Introduced to impose order	Theory of choice by those in power (5)

(1) Henry CK Liu, "The Abduction of Modernity: Part 3 Rule of Law vs Confucianism," Asia Times Online, <http://www.atimes.com> , 2003.

(2) Henry CK Liu, "The Abduction of Modernity: Part 3 Rule of Law vs Confucianism," Asia Times Online, <http://www.atimes.com> , 2003.

(3) "Elaborately varied degrees of punishment are accorded by the Tang Code to the same crime committed by persons of different social stations, just as Confucian rites ascribe varying lengths of mourning periods to the survivors of deceased of various social ranks. According to Confucian logic, if the treatment for death, the most universal of fates, is not socially equal, why should it be for the treatment of crime?" Henry CK Liu, "The Abduction of Modernity: Part 3 Rule of Law vs Confucianism," Asia Times Online, <www.atimes.com> , 2003.
"One of the "Ten Abominations" set forth in Article 6 of the Code is "lack of filial piety," which triggered special punishment. As Professor (Wallace) Johnson points out, '[f]ew greater crimes were possible in T'ang China than for a son to strike his father, while a father who beat his son was not committing any crime at all.'" John W. Head, "Codes, Cultures, Chaos, and Champions: Common Features of Legal Codification Experiences in China, Europe, and North America," Duke Journal of Comparative & International Law, Duke University Law School website, <https://www.law.duke.edu/journals/djcil/articles/DJCIL13P1.HTM#H1N2>

(4) In contrast to Dr. Liu's cyclical view of the Confucian/Legalist relationship, John W. Head advances an idea of division of powers, wherein imperial codes, based on varying mixtures of Legalist emphasis on written law and punishment and Confucianism, govern relations that affect the sovereign's position, while li govern relations in the personal sphere. John W. Head, "Codes, Cultures, Chaos, and Champions: Common Features of Legal Codification Experiences in China, Europe, and North America," Duke Journal of Comparative & International Law, Duke University Law School website, <https://www.law.duke.edu/journals/djcil/articles/DJCIL13P1.HTM#H1N2>

(5) Henry CK Liu makes a utilitarian argument about Legalism and Confucianism by arguing that élites will advocate a Confucian order because it will benefit them. This will lead to a period of decay, which will then be swept away by a more "egalitarian" Legalist regime. The new élites put in place by the Legalist regime will find Confucianism in their interests and reinstate a hierarchical legal regime. With each cycle, the Confucian periods become longer. Henry CK Liu, "The Abduction of Modernity: Part 3 Rule of Law vs Confucianism," Asia Times Online, <http://www.atimes.com> , 2003.

 

Application: Judge Dee and the Chinese Legal System

Robert Van Gulik, a Dutch diplomat and Sinologist, has brought the genre of Chinese detective stories to Western audiences through his English-language adaptations of the Judge Dee stories. Van Gulik based his stories on a historical magistrate and preserved the Chinese tradition of setting the story in one period while introducing details of a later period; in the case of the Judge Dee stories, the action occurs during the Tang Dynasty, while clothing and other cultural details are based on the Ming Dynasty. Judge Dee and other Chinese detective stories offer a direct view into traditional Chinese legal systems, ideas of justice, and integration of Confucian rites and Legalist treatment for prisoners and the accused. Texts and Lesson Plans for Chinese Detective Stories: Robert Van Gulik. Celebrated Cases of Judge Dee. New York: Dover Publications, 1976. [EXCERPT] 100 Judicial Cases from Ancient China. Transl. K. L. Kiu. Beijing: Zhongguo duiwai fanyi chuban gongsi, 1995. "Murder in Ha-Tien: The Concept of Justice in Chinese Society." Lesson Plan by Jean Johnson. Ask Asia, Asia Society, 2004. <http://www.askasia.org/teachers/lessons/plan.php?no=62> Students examine a real-life murder mystery in 1920's China. This intriguing case compells students to think about justice in Chinese--and all--societies. Does "rule of law" or "extenuating circumstances" prevail?

 

Comparing Rule of Law : Using your knowledge of Chinese history and/or your reading of the Chinese detective stories, respond to the following assertions made about differences between Western and Chinese approaches to the law. (6)

"The violent overthrow of the government, a criminal offense in the United States, is a moral sin in Confucian ethics." "Issues of constitutionality in the US political milieu become issues of proper rites and befitting morality in Chinese dynastic or even contemporary politics." "The danger of Confucianism lies not in its aim to endow the virtuous with power, but in its tendency to label the powerful as virtuous. This is a problem that cannot be solved by rule of law, since law is generally used by the powerful to control the weak." Compare this critique of Confucianism with criticism that may be leveled against Natural Law in the Western tradition. The French Enlightenment author Charles de Montesquieu's Spirit of the Laws (1748) is seen as an essential source for modern democracies around the world. Montesquieu wrote: "[t]here is no liberty, if the judicial power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with all the violence of the oppressor." (7) How would Judge Dee (or Confucius) respond to this charge? "At the dawn of the 21st century, Confucianism remained alive and well under both governments on Chinese soil on both sides of the Taiwan Strait, regardless of political ideology. Modern China was still a society in search of an emperor figure and a country governed by feudal relationships, but devoid of a compatible political vehicle that could turn these tenacious, traditional social instincts towards constructive purposes, instead of allowing them to manifest themselves as practices of corruption. The Western notion of rule of law has little to contribute to that search."

(6) All of the following quotations, with the exception of the excerpt from Spirit of the Laws are taken from Henry CK Liu, "The Abduction of Modernity: Part 3 Rule of Law vs Confucianism," Asia Times Online, <www.atimes.com>, 2003.

(7) Cited in Barry M. Hager, "The Rule of Law: A Lexicon for Policy Makers," The Maureen and Mike Mansfield Foundation, 1999. p. 3. <http://www.mansfieldfdn.org/programs/rol/rol_lexicon.htm>.