As many Westerners know, Confucius (c. 551–479 BC) is one of the most important figures in traditional Chinese culture. His legacy touches almost all aspects of Chinese civilization, whether religion, philosophy, or law.
It’s common to think Confucius had little regard for law, since he was primarily a moral philosopher, advocating a philosophy of moral education to realize a moral project. He even expressed doubts about positive law’s ability to aid moral development, as shown in this passage from his Analects:
If the people be led by laws, and uniformity [be] sought to be given them by punishments, they will try to avoid the punishment, but have no sense of shame. If they be led by virtue, and uniformity [be] sought to be given them by the rules of propriety, they will have the sense of shame, and moreover will become good.
Comparative philosopher Joel Kupperman, commenting on this passage, went so far as to describe the use of law as the point of divergence between Confucius and Aristotle, who did recognize a place for public law in moral development.
On the other hand, there is a long Western tradition of interpreting Confucius as a legal philosopher or lawgiver. The sculptor Adolph Weinman, for example, included Confucius in a frieze in the Supreme Court courtroom, standing alongside Moses, Solon, Draco, John Marshall, and, most controversially, Mohammed.
Should we place Confucius with the great lawgivers? Is his understanding of law congruent with that of the Western natural law tradition, as figures like Sohrab Ahmari have asserted?
The question of how Confucius understood law can be understood by exploring his concept of li, or ritual. Although we should not conflate li completely with the Western notion of law, these two concepts are, nevertheless, quite similar. There is some truth to the claim that Confucius’s theory was a legal one, and understanding that theory in light of the Western legal tradition can help expand our notion of what law is and does.
Li and Law
Confucius’s philosophy focused on morality, whether in family relations or in political society. Morality, he believed, had to be ingrained internally in the culture, for its own sake, and not merely mechanically followed for the sake of external social cohesion. Nevertheless, morality had to develop through the external world. Students, for example, needed to be habituated to morality through a system of moral education.
But in order for society to succeed, everyone—not just the well-educated—needed to participate in public morality. Most people did so primarily by learning their own social role and the duties attached to that role by the practice of li, the Confucian rituals. As Karyn Lai says, these rituals “provid[e] the parameters of appropriate behavior that indicate and reinforce the respective positions of people engaged in interaction.”
Although li is not exactly law, it has long been described similarly to law, going back to the Confucian philosopher Xunzi (c. 310–235 BC), who said:
Li is human emotion expressed, harmonized, and beautified so as to become a pattern for all. It uses the features, the voice, food, garments, and dwellings, and gives each their appropriate means of expressing emotion. As a pattern, li aids those whose expression of sorrow would be too little, and those whose expression of sorrow would be too violent, alike to reach a golden mean. By means of li, the degenerate son is kept from becoming worse than a beast, and the over-sensitive man is prevented from injuring himself. Li is the beautifying of man’s original nature by means of acquired characteristics which could not be acquired by themselves.
Compare this to Thomas Aquinas’s definition of law as “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” For St. Thomas, law has an end—the common good—and it consists of ordinances of practical reason that move society toward that end. At times, li also uses practical reason for the sake of the common good.
But also like law, li sometimes has little direct connection to any substantive moral ends. For instance, in the Western legal tradition one finds laws that solely coordinate collective action, like those concerning on which side of the street people drive, or the procedures for adjudicating disputes in court. Compare these laws to Confucianism’s teaching on the rituals necessary to properly venerate one’s ancestors, which do not aim at any outcome beyond the action itself.
In addition, both law and li have a teaching function. The Western tradition acknowledges how law communicates something about the community by identifying the person’s place within it, including his roles and responsibilities. The same is true for li in Confucianism. In the case of ancestor veneration, the rituals teach that there is something valuable about venerating one’s ancestors—that one’s family is not limited to the living. They thereby also teach that the political community is not limited to the living, but also includes those who have passed away.
Like Western law, another goal of li is to build a person’s character, and sometimes that means one must not follow li strictly. Consider this passage from the Mencius: A follower of the Confucian philosopher Mencius (c. 372–289 BC) asks his teacher, “Is it the rule that males and females shall not allow their hands to touch in giving or receiving anything?” Mencius says yes. The interlocutor replies, “If a man’s sister-in-law be drowning, shall he rescue her with his hand?” Mencius replies that “He who would not do so is a wolf. [That] males and females are not allowed to touch hands is a general rule, but when a sister-in-law is drowning, rescuing her with the hand is a peculiar exigency.” The interlocutor then asks, “The whole kingdom is drowning. How strange it is that you will not rescue it!” To this, Mencius replies: “A drowning kingdom must be rescued with right principles, as a drowning sister-in-law has to be rescued with the hand. Do you wish me to rescue the kingdom with my hand?”
Here we can see some parallels with natural law thought, which similarly holds that positive human laws that are unjust—that conflict with the higher law of nature—are not true laws. In addition, the Western tradition has long held that a human law may need to be set aside in circumstances in which the law may conflict with the just purpose for which it was made. Such exceptions by no means condone licentiousness. As the Mencius suggests, those who set aside the ordinances of li must still act within the right “principles” for which li exists in the first place. This point of Confucius’s thought, along with others, is what has led Sohrab Ahmari and others to describe Confucius’s philosophy as a form of natural law or higher law thinking.
Confucians do distinguish themselves from the Western tradition of law, inasmuch as they stress li’s relation to beauty much more strongly, as in the earlier quote from Xunzi. Karyn Lai calls this li’s “aesthetic” aspect, which “incorpor[ates] decorum in[to] a person’s interactions with others,” and thereby, we might say, attracts people to live by li because of its beauty.
The Lessons of Li for Today
Thus, Confucian li has the effect of being an ordinance constructed by practical reason for pursuing the common good, but li also has the effect of communicating the community’s values within the aesthetics of its practice. In this way, if I may make the mistake of using Western categories, it blends elements of St. Thomas’s natural law thought with elements of the natural law thought expressed by the Protestant Reformers like Philip Melanchthon.
The value of comparative philosophy, of examining the different strands of Western natural-law thought with similar concepts within Eastern thought, is that it highlights the way our notions of Western concepts, such as law, may be limited in scope or perhaps instructive to the other tradition. In this case, the Confucian notion of li is helpful when compared to Western notions of law.
Many contemporary Westerners view law as did Roscoe Pound, who famously called it a tool of “social engineering”: something the community uses both to reflect itself and to change itself to achieve certain results. Both the wider Western legal tradition and Confucius’s notion of li help us see that one cannot simply coerce social change by commanding substantive ends in positive law. Rather, human law can facilitate social change by rewarding, punishing, or even simply valuing certain actions and thereby also communicating the inherent value of that action. Law does not so much dictate values as habituate them by encouraging their practice.
More importantly, Western legal theory and Confucianism encourage us to ask, not how to use the law to create a better society, but what society’s current laws are already communicating and how they might need to change. Do they serve the higher standard by which human law should be judged, whether one calls it the law of nature or right principles? For the final goal of both law and li is less without than within: that we order ourselves according the higher order on which every human society and person depends.