INTRODUCTION
Law and Moral's dichotomy has been a centre of attention for centuries in the Western world, both at a legal and philosophical level. The same dialogue appeared in China and has been debated as early as 300-250 BC. It would be of philosophical and societal interest to discuss the Chinese concept of law, this study being a method for myself and others to understand and define specific Chinese traditional thinking concepts related to Ancient China's legal system. The aim of this paper is to retrace the philosophical journey of Chinese Law, defining its relation to Moral and how their association would positively impact Modern China. The first part of this study will comprise the conceptual approaches of Law under two major philosophical schools; Legalism and Confucianism. Secondly, the relation of Fa & Li through Chinese history will be retraced alongside Law and Philosophy scholars' perspectives. Finally I will discuss the possible positive effects of Law & Moral's association in their areas of application in Modern Chinese society.
CONCEPTS OF LAW BETWEEN LEGALISM AND CONFUCIANISM
Ancient China's legal system up until Qing Dynasty was deep-rooted in Confucian morals and ethics. Before Confucianism's legal and institutional standardization, Legalism and Confucianism were opposed on the bases of Fa and Li concepts, this rival relation would set the dynamic in China's legal journey. The concept of Fa 法, supported by Legalist scholars, can be translated as law, punishing all who do evil and break Society's order. The Fa Ching (The Canons of law) was in effect from 255 BC to 1911. (Ma 1971) In its philosophical essence Legalism considers all humans iniquitous. The reward and punishment system of Fa is designed to severely punish people breaking Fa Ching and in line with Legalism's philosophical perspectives. (p.443) Fa concept could be defined nowadays as ”positive law”, it was feared by the shu, commoners, as it was only applicable to them and not the junzi, elite members. Back then the legal meaning of Fa was not in place to protect people's rights but was a tool of dominance, Fa could be better translated solely as criminal law, (Pan 2008) regarding the above statement and legalist approach.
The concept of Li 礼, designating rites and formalities, was supported by Confucian scholars. Li was a set of behavioral codes applicable only to the junzi, nobility and elite members. The Confucian philosophical approach amplified Li influences and its contents through decades even before the ”legalisation” of Confucianism. (Ma p.444-446) Confucianism's set of hierarchical maxims comprising human relation, filiality and piety areas of social life, had as aim to build a harmonious society. Confucianists believed all humans had the possibility to cultivate their innate good, by educating themselves, reflecting and taking part socially. In this way Confucian scholars hoped to stop evil in society, having Li's concept itself conformed to their vision of ”universal reason” and ”human nature”. (p.445) The concept of Li wielded natural law opposed to Fa's positive law application.
The rivalry between Legalist and Confucianist scholars was a part of the conflicting coexistence and applications of both Fa 法 and Li 礼, those concepts treated the communities unequally, this aspect of Ancient China's Legal system was defined as ”differentiated law” (Feng 2009) such as Li was applicable only to nobility Junzi and Fa was applicable only to commoners shu, not aware of Fa definite rules themselves. This demonstrating a Law Fa and Moral Li dichotomy of both concepts at an ideological and applications level before the ”legalization” of Confucianism. Another interesting point to clarify is the fact Legalist scholars wanted to get rid of the ”differentiated law” and make Fa Ching applicable to all citizens, this was very much opposed by Confucianist scholars as they believed in people's innate good but as well focused on hierarchy, filiality and piety, using names to represent social level and status, so everyone knew their places and did not disturb the society's order and therefore the balance of the cosmos. (The Analects, Lunyu: Yanyuan, 11)
RELATION OF FA & LI THROUGH CHINESE HISTORY
When Han Emperor Wu Ti made Confucianism the State institutional standard to develop both legal and administrative systems, an assimilation of Fa 法 by the Li 礼 happened. Fa became a submissive tool of punishment to support Li if it came to fail. Li became, in relation to Fa, a governing tool of societal control as Confucian moral teachings became regulated codes to be upheld. (Ma p.446) The philosophical and pragmatic dichotomy of Law and Moral disappeared as the former became a tool for the latter's enforcement. But the ”differentiated law” aspect of Fa and Li concepts mentioned earlier remained and emphasized the last standing dichotomy of both concepts at a legal application level.
Ma mentioned Fa became assimilated to Li to such a degree, it became a lesser law over time, Legalism's reward and punishment system would be in effect but only in a lesser measure compared to Confucian codes.This argument was as well supported by Feng, who described Ancient China's legal system using majoritarily natural law due to Confucianism dominance over Legalism. (p.117)
We can argue Li concept as the element conductor of Chinese Traditional thinking through millennia, influencing the concepts of Law and Moral's relations, as it became a dominant part of it.
During Qing Dynasty, a hard reality came to light when China was powerless in front of foreign nations, this during the Opium Wars resulting in Unequal Treaties and it being an incentive to reform China's legal system to keep up with international relations and judiciary exchanges. In his analysis of the reasons why a capitalist model did not take on Chinese society, Weber emphasized; the traditional Chinese law framework was founded on Confucian codified social behaviours and “eternal laws”. The lack of free market and exchange accentuated the fact China did not implement legal freedom and in consequence the validation of the authorities rested on ”Patrimonial Bureaucracy” and Confucian moral teachings to regulate society without rational legal framework. (p.100-105) This critique of China's weakness at an institutional level, shows a negative influence of Chinese traditional thinking, particularly Confucianism, on Law and Moral's relation, by the application of Li as arbitrary codes and subjective legal structure compared to Western legal systems; applying positive law and dichotomy of Law and Moral, this to support individual rights and legal freedom.
In late Qing many reforms were passed, China developed a Western style legal system but still retained the concept of Li in the matters of family and succession laws. Polygamy was still permitted and gender equality was not yet established. Which changed in Nanking 1927, then the government brought in new reforms such as the abolishment of concubinage and equality of sexes in link to laws of succession. (Ma p.449-450) We can observe now a dichotomy between Law Fa and Moral Li as the Chinese legal system is more and more inspired from the Western legal system and structures. Fa being not subordinate to Li any more, this permitted China's evolution and discourses, leading it to its stage of modernization.
Nowadays, China's legal system is similar to Western's ones, but the concept of Li perdure at an informal social level, revealing a conflict between Law and Moral in modern China. Ma called this feature of China ”extralegal standards”, where individual rights and legal freedom is provided but is not duly claimed due to Li's large influence. This effect is due to the fact the idea of individual legal freedom was imported from the Western civilization, but itself not founded or born in essence in Chinese institutions. This reveals Law and Moral's conflicting natures. (p 451)
For the next part of the paper I will use Law & Moral's term principally in my argument, this to emphasize philosophical concepts in modern days and relate it to conceptual jurisprudence ethics, and Fa and Li concepts as philosophical and Chinese traditional thinking components.
LAW & MORAL'S UNION IN MODERN CHINA SOCIETY
Law & Moral have very much in common despite their perpetual dichotomy in the Western legal system. Their areas of application are of a legal pragmatism and philosophical practice matter, they are universal concepts joining in their shared; end, obligations and principles. (Scheller 1952)
Law & Moral are linked by their shared end of the ”common good”, their most central area of application, permitting societal evolution and survival. To realise this ”common good” their obligations are assimilated under positive laws applications and morale obligations, defined as ethics. Law being subject to moral principles and natural laws, both Law and Moral are governed by the human wish to exercise prudence and ethics: jurisprudence. The main point presented by Scheller to argue this matter is the fact the subject under Law & Moral must claim its individual rights and legal freedom, only in this case a suitable Law & Moral association can be practised. A point which was made by Ma, giving the example of social collectivism in Western culture born from the will of individuals which primarily practice their legal freedom, not from codes nor external pressure. (Ma p.451)
I would like to outline an associative approach to He Lin's relativist philosophical theory, utilizing objective reasoning methods and intuitions in a philosophical and legal practice.(He 1982: 27) This relativism applied to Law & Moral, feasibly hold a part of the Chinese Traditional revival and a positive effects in their areas of application, given the chance Chinese citizens claim their individual and private rights, not to shun their social duties but reinforce them. As redefined conceptual example; Nei Sheng Wai Wang 內聖外王 (Stanford Encyclopedia of Philosophy 2014), The Inner Sage and Outer King concept's duality reflects the philosophical and social struggles in China's modern era with Law & Moral's relation. We can analyze the relation of the Inner Sage and Outer King, Xiong Shili's Neo-confucianist concept, to Metzberg theory of coexistence of “tension” and “adjustment”. (Shinohara 1986) Between idealistic expectations of an harmonious society and the conflicting “real” social practice. This assimilation and relativism could position Nei Sheng Wai Wang concept as an answer to Chinese societal needs in regards of Law & Moral. The Inner Sage adjustment behaviour would be the union of the Xin and Li concepts, The Outer King would claim its individual legal rights in social practices, ”tension”, assimilated to zhi xing heyi 知行合一 concept of action and knowledge. Those unified Chinese Traditional Thinking concepts within reach to put a millennia long conceptual rivalry to rest.
CONCLUSION
Retracing the philosophical journey of Chinese Law helps redefine concepts for today's societal needs. The positive application of Law & Moral's association asks primarily citizens to claim their individual private rights and legal freedom. The place of China and Chinese Traditional Thinking is unique in the world. And to unique cases, unique and more sensible methods are needed, instead of replacing a system for another. Idiosyncratic Chinese concepts can be adapted and assimilated, such as Nei Sheng Wai Wang unifying The Inner Sage abiding to morals and the Outer King abiding to laws. Its redefinition and applications will have ”extralegal standards” lessen and diminishing the conflicting nature of Law & Moral in their area of applications. Both would be serving their purpose in symbiosis: their common end of creating a society in order, their obligation to uphold civilians legal rights and their principles; bringing positive law and natural law together to ensure an harmonious society under fair ethical treatment.
REFERENCES
Feng Y (2009) Legal Culture in China : A comparison to Western Law, retrieved from:
He L, 1982, “Jindai weixin lun jianshi”,
in Zhongguo xiandai zhexue shi ziliao huibian, Part 3, Volume 5.
Zhong Limeng and Yang Fenglin, Beijing: Beijing daxue chuban she.
Ma H.P (1971) Philosphy East and West Vol. 21, No. 4, Symposium on Law and Morality: East and West, pp.443-460 University of Hawai Press.
Pan J (2008) Chinese Philosophy and International Law, retrieved from:
Scheller A (1952-1954) Marquette Law Review Volume 36, Law and Morality, retrived from:
Shinohara K (1986) ""Adjustment" and "Tension" in Max Weber's Interpretation of Confucianism," Comparative Civilizations Review: Vol. 15 : No. 15 , Article 4.
Stanford Encyclopedia of Philosophy, Epistemology in Chinese Philosophy.
Xiong S, 2.2 The Axiology of Comprehension, retrieved from :
The Analects, Lunyu, Pre-Qin and Han, retrieved from :
Weber M (1951) The Religion of China, originaly published in 1915.
The Free Press, Glencoe, Illinois.
Xiong S, 1999, “Xin weishi lun”, in Ershi shiji zhexue jingdian wenben, pp. 236–264.
Yu Wujin and Wu Shaoming , Shanghai: Fudan daxue chuban she.