Justice in East Asian Thought
Justice in East Asian Thought
East Asian thought should include a wide range of Japanese, Korean, and Chinese concerns covering more than twenty-five hundred years of history. This article is limited to the Chinese sphere, and its primary focus is on the preimperial period (before 221 b.c.e.).
How issues related to justice have appeared in the preimperial Confucian ("Ruist") and Daoist traditions involves both historical and philosophical investigation. While penal codes ("corrective justice") were enforced even by the ancient sage, Confucius (Master Kong; 551 b.c.e.–479 b.c.e.), the political emphasis of Confucian scholars in general was to support an elitist system where humane forms of fairness provided flexible standards for determining the appropriate distribution of opportunities and goods ("distributive justice") and so sought to lessen the need for corrective justice. Early Daoist philosophical texts advocated an alternative way, something like a benign form of anarchism. Their rulers would be compassionate, frugal, and unobtrusive, allowing every person within the kingdom to follow the Way (Dao ) in a spontaneous and uncontrived manner.
In what follows, central themes and institutions related to justice that appeared within Confucian and Daoist teachings in preimperial China will be explained and evaluated, followed by brief comments about later developments.
Three persons stand out as fulcrum figures in preimperial Confucian developments: the pioneer sage, Confucius; the apologist, Mencius (Master Meng; c. 371 b.c.e.–c. 289 b.c.e.); and the secular rationalist, Master Xun (Xunzi; active c. 298 b.c.e.–c. 230 b.c.e.). While the influence of Confucius's life and teachings overshadows the other two, the latter pair produced more systematic worldviews, including questions related to justice that continue to have historical significance.
Confucius, or "Master Kong."
Records about political policies and concepts in ancient China began at least five hundred years before Confucius, but his teachings provided the first philosophical basis for its ideological and institutional development. His political vision rested on these earlier sagely antecedents but sought to provide moral and political justifications for reestablishing the monarchical form during his own instable age. Conceiving of a ritually articulate group of intellectuals who could balance the interests of smaller political states and establish a larger and harmonious kingdom, Confucius promoted cultivated humaneness (ren ) as the necessary cultural foundation for the king, government ministers, and his people. Any person who achieved this exemplary status knew how to properly subdue selfish interests in order to perform ritually appropriate services according to their given roles and duties (Analects 12:2). All these ritual actions (li ) —whether among humans or toward spirits including a supreme deity known as "Heaven"—were consequently conditioned upon a sense of rightness (yi ). Propriety between humans should always seek an appropriateness intuited through analogical projection (shu ) and faithful consistency (zhong ). Embodied in these two methods was a generalized sense of personhood, though ancient traditions indicate how Confucius recognized limitations in their application to women, slaves, and angry persons (Analects 14:34, 17:25).
Some scholars feel that this account of ritual-based personhood offers a generalizable humane alternative to modern human-rights-based litigation. So, for example, while Confucius did mediate in litigations (song ), he sought to create social conditions where they would not be needed (Analects 12:13). In defining the roles of rulers and ministers, he deemphasized punishments (xing ), seeking that they humanely fit the crimes rather than produce fear of authority (Analects 2:3; 4:11; 13:3). Nevertheless, later Confucian teachings in the Book of Rites advocated moral justifications for blood-revenge as a putative principle supported by Confucius, illustrating limits to this elitist form of fairness in later imperial history.
Tzu-lu said, "If the Lord of Wei left the administration of his state to you, what would you put first?" The Master said, "If something has to be put first, it is, perhaps, the rectification of names.… When names are not correct, what is said will not sound reasonable; when what is said does not sound reasonable, affairs will not culminate in success; when affairs do not culminate in success, rites and music will not flourish; when rites and music do not flourish, punishments will not fit the crimes; when punishments do not fit the crimes, the common people will not know where to put hand and foot."
source: Confucius, Analects 13:3, translated by D. C. Lau (Harmondsworth, U.K.: Penguin, 1979).
Mencius, or "Master Meng."
Political justifications for humane government were explored at greater length in the Mengzi, a work named after Mencius. Cultivated humaneness and rightness became twin virtues grounding all moral and political life, nurtured initially in familial relationships and extendable into other appropriate social ties. Both virtues were intended to be augmented by wise elaborations, ritual articulateness, and harmonious music (Mengzi 1A:7; 4A:27). Significantly, a society dominated by a humanely cultivated lifestyle would entail in Mencius's philosophy various claims and liabilities within relationships, even to the extent that a tyrannical ruler could be resisted and justifiably deposed (Mengzi 1B:1, 3). Maintaining rightness (yi ) was more important than life itself, whenever dilemmas forced a choice between them (Mengzi 6A:10). In this emphasis there are tendencies toward asserting a humanely inspired form of social justice, based on a positive account of human nature.
According to Mencius, all persons are defined as humans because they possess four basic moral sensitivities without which they could not appropriately participate in human society: compassion, shame, respect or yielding, and discerning between right and wrong (Mengzi 2A:6; 6A:6). When these inward sensitivities are nurtured into full-fledged virtues (humane cultivation, rightness, propriety, and wisdom), any willing person becomes exemplary and may attain sagely status. Once these virtues are embodied in exemplary persons and leaders, social obligations are fulfilled and beneficent forms of government can be realized and sustained. The crucial social transformations they would inspire would be nurtured by worthy officers and cultivated scholars. This would result in a harmonious society expressing just and accountable relationships.
Mencius also offered details about how this elitist form of social justice would operate. He envisioned opportunities for fair treatment by providing public education and coordinating publicly and privately owned farming, so that government institutions were sustained by appropriately cultivated personnel and sufficient material resources, and no one family was overburdened by taxes. While there is no indication that these institutions were ever realized in his own time, they do reveal how Mencius's philosophy could bear a populist flair. Never democratic in polity, his political philosophy manifested demophilic (mínben ) principles of regal concern for commoners, and so set limits to any ruler's authority by arguing for these moral restraints within a kingdom.
These early Confucian scholars promoted justice as arising from virtues cultivated among a chosen elite, in some ways like Plato's conception of a righteous city-state in his Republic. Aristotle's support for limited democracy also suggests that justice should produce harmony between different classes within society, but these early Confucian philosophers preferred monarchy, and their vision of social harmony was not worked out in detail. Both early Confucian and Greek visions of social justice rely on rational criticisms and selective adoptions of received traditions, but the former relies more heavily on sagely precedents, while the latter promoted rational development through education and practices leading to ethical competence. Clearly, the predominance of a rational method and rationalized ideal of human nature in Plato's discussion is qualified by the early Confucians' multidimensional account of human nature based on a harmony of emotive and rational constituents. Here Aristotle and these early Confucians have much in common, but Aristotle retains a preference for rationalized understandings of ethics and social justice, while the Confucians placed more emphasis on basic emotional sensitivities. All of them nevertheless agreed that the best form of society would be achieved through the guidance of cultivated rulers imbued with the virtues they promoted.
Unlike previous Confucian philosophers, Master Xun conceived of ritual and role attunements as a result of teaching rather than of internal personal cultivation, so that sociocultural values were inculcated rather than nurtured from within. Believing that human beings were naturally bad, Master Xun highlighted the roles of cultural change agents—sages, teachers, good friends—in educating willing persons. He explained differences in cultivated attainments and social roles as a result of different intellectual capabilities and various degrees of courage (Xunzi 23). Consequently, his account of yi aligns well with Platonic understandings of justice: an enlightened ruler (ming jun ) must clearly distinguish class divisions and their appropriate roles, supporting them by ritual principles, righteous laws, and uniform administrative policies (Xunzi 10). Standards of distributive justice, while providing certain privileges to the elite leadership class, operate generally under utilitarian conditions: the whole society (qun ) is always more important than the ruler or any other member or clique within it. Consequently, what is good is "correct, in accord with natural principles, peaceful, and well-ordered"; what is bad is "wrong through partiality, wickedly contravenes natural principles, [is] perverse, and rebellious" (Xunzi 23). These standards are also applied economically in considering distribution of limited resources, fully recognizing that the ruler and the people will either thrive or devolve together because, even in spite of their class differences, each one constitutes only a part of the social whole.
Master Xun manifestly employs a more rationalized methodology in accounting for varieties in human personalities, social classes, and roles, as well as the methods for attaining and maintaining social order. In spite of his utilitarian standards for administrating distributive justice, his use of criminal justice is still inspired by a humanely cultivated ideal, that all persons can ultimately be transformed and become sagely. In this way he balances punitive and distributive justice by means of a rational appeal to a more secularized, but still firmly ritually oriented, form of harmonious society.
Given the importance of ritual orientations for Confucian society, women and slaves seem clearly to have been relegated to subservient roles in many settings. Ritual formalization became complete in the imperial period, greatly influenced (somewhat paradoxically) by the female politician Ban Zhao (c. 48–c. 120). These restrictive rites and their attendant values set the stage for later nonegalitarian developments.
Both the historical identification of Old Master (Laozi) and the nature of the famous Daoist text normally associated with him, Dao de jing, have become controversial topics of debate. Rather than some ancient text scripted by a mysterious pioneering recluse, the book of Laozi is now generally associated with the same period as the Zhuangzi, appearing during the fourth century b.c.e. Nevertheless, political themes are a major aspect of the eighty-one chapters of this Daoist scripture, whether in its standard or earlier forms. In the case of the Zhuangzi, it is the first seven chapters of the book that are considered most representative of the historical person, Master Zhuang (c. 369 b.c.e.–286 b.c.e.). These early Daoists' views of society have been put into sharper contrast by developments within the so-called Huang-Lao school occurring in the fourth and third centuries b.c.e., which provided mediating and positive social doctrines carrying much influence during the early imperial period.
Dao de jing and the Zhuangzi.
The form of social justice found in the Dao de jing has been described as a benevolent anarchism, but in fact it does speak of sagely rulers and supports some overriding moral and political values within Daocentered communities. Taking spontaneity and noninterference as major principles of communal life, the text vigorously opposes artificial impositions of Confucian elitist values (such as sageliness, wisdom, humaneness, rightness) or other utilitarian interests (such as military aggressiveness or social benefits), since all of these are considered to be contrived restraints that harm the people (ch. 19). Instead it urges all, including the ruler, to have "little thought of self and as few desires as possible." Under these conditions, people will be able to lead Dao-centered lives without interference, being naturally kind and faithful, and so will become self-transformed. Whether a large or small political state, each takes a "lower position" (ch. 61) and so they become harmonized through mutual responsiveness rather than aggressiveness. Images of an ideal state suggested that the people would live simply, being contented with what they have, and so may even live and die in a place without ever leaving it (ch. 80). This is because a Daoist ruler would be exemplary in embodying "three treasures": compassion, frugality, and "not daring to take the lead" in the community (ch. 67). So unobtrusive is this way of ruling that people would feel all things move naturally, and would only know the fact that the ruler is there. Any other form or ruling (whether by charisma, fear, or rules) could not achieve the personal peace and social harmony that the Daoist ruler attains by unobtrusive and spontaneous action (wu wei ). Daoist justice of this sort is therefore manifest in stoic-like naturalness, for the Way will be followed by avoiding extremities and learning the paradox that greater and lasting strength lies in what is putatively weak. Guided by sympathetic and frugal leadership, people living within Daocentered communities would be unconcerned about any rationalized worldview and its attendant values, such as penal codes and rules regarding possessions. Among other values promoted by Daoists, feminine qualities were raised to a new height, defining the fecundity of the Dao in maternal terms. As a consequence, roles for women and feminine values in general were enhanced within early Daoist circles, but this would change later when Daoist religious ethics gradually adjusted to Confucian precedents.
In the Zhuangzi there is a vigorous skepticism at work, challenging any attempt to go beyond the principle of noninterference. Expressing sarcastic opposition toward government and other social institutions, the "Inner Chapters" (the first seven chapters) view these matters regularly from a transcendent perspective. Narrow pettiness and self-inflicted harm are the regular results of government policies. This is a Rousseau-like vision: humans who follow the Way can be free and creative, but society has imposed institutional shackles that make this impossible. As a consequence, Master Zhuang supports a more anarchistic vision of a simple life expressed in radical egalitarianism, letting everyone live by means of the Way according to their own inclinations and without external restrictions.
The Huang-Lao school.
Archeological discoveries in the 1970s stimulated further consideration of another facet of Daoist reflection, one that developed more positive doctrines of governance and rightness. Living about the time of Masters Zhuang and Xun, intellectuals from the state of Qi developed a mediating approach to earlier Daoist doctrines. They understood the secret of life and governance by responsiveness to proper timing, and so sages and institutions must be responsive to the natural changes that occur over time. Consequently, institutions that are outdated (such as Confucian rites) should be reformed to become suitable. Their worldview included the idea that laws and institutions could emerge from an understanding of the Way, and would necessarily reflect the needs of people as well as historical change in society. Political life continued to assert that the ruler be spontaneous and unobtrusive, but this was because appropriate institutions and laws were in place, and ministers were taking care of the administrative details associated with them. In this way, the Huang-Lao tradition advocated a version of justice closer to the position of Master Xun, but without its rationalized and utilitarian emphases.
Once the Qin dynasty was established and a greatly enlarged Chinese imperial state was brought into being (221 b.c.e.), standards of ethical and political life shifted gradually from legalistic and Huang-Lao forms of life to a dominant Confucian cultural standard. For most of the 2,200-year-long imperial period, Confucian advocates dominated the political arena. Nevertheless, the Huang-Lao school did have a revival and development during the third and fourth centuries, especially as seen among the writings of "neo-Daoists" or advocates of Abstruse Learning (Xuánxué ). They envisioned the "lone transformation" (duhua ) of all persons, developing a theme advocated by Master Zhuang. This included a radical form of egalitarianism, but also advocated a reformist vision of changing institutions according to the times and conditions of life.
The most outstanding contributions to Confucian traditions came during the Song dynasty (ninth to twelfth centuries). Confucian scholars then promoted a form of political justification that based all social values on heavenly patterns (tianli ), resembling many aspects of a natural-law system of ethics and governance. Justice was then determined by alignment with patterns of heavenly harmony and was rationalized in a rigorous manner by Zhu Xi (1130–1200), whose interpretive precedents became the standard Confucian teachings for much of the subsequent seven hundred years. Under these more expansive cosmological influences, the roles of women became framed within a set of more subordinate conditions associated with universal symbols systematically denoting the passiveness and receptivity of earth, flexibility, coolness, fecundity, and hiddenness. Family rituals were established by Zhu Xi that formalized these relationships in a manner that reflected patriarchal values and that had been less systematic during earlier centuries. Though mothers in particular were highly honored within systems of filial allegiance, their own roles within the family were largely restricted. This became all the more entrenched in general society during the Ming and Quin dynasties (fourteenth to early twentieth centuries).
Alternative Confucian visions included remarkably advanced democratic ideals opposing imperial policies in Huang Zongxi's (1610–1695) writings—ideals that were never realized and became justifications for revolution in 1911—and the utopian egalitarian vision of a great commonwealth (datong ) advocated by the influential reformer, Kang Youwei (1858–1927). This latter vision was unusual in both its pseudoscientific idealism, promoting government-sponsored eugenic reconstructions of human societies, and its advocacy of a radical egalitarian worldview based on a relatively hedonistic ethic, thus offering much more freedom to women than had been previously considered proper or feasible.
Law and Justice during the Ming and Quing Dynasties
Legal codes during the last two dynasties of imperial China were framed under values undergirding patrifamilial order and class differences. In principle, lands belonged to a family in perpetuity, but when faced with the need for survival many commoners sold these lands under leases that often brought privilege and power to the already wealthy. Courts did uphold reclaiming these properties, as a form of traditional justice, when the previously needy families had overcome their difficulties, but otherwise debts were in principle to be paid. Only in the case of economic desperation, hinging on basic survival, were compromises reached, mostly outside of court. These compromising tendencies, however, led to situations in which women could be sold as daughters, wives, or widows in order to raise adequate funds to meet basic needs. Though a woman might be able to return to her natal home if other needs were demonstrated, she was seen always as a passive agent in a social context where men's choices dominated. So, for example, a married woman could be expelled from marriage and sent to her natal home for seven basic reasons under these patrifamilial assumptions: barrenness (especially, bearing no male child), licenciousness, negligence in the care of her parents-in-law, talkativeness, theft, jealousy, and chronic illness. Though female virtues could also be employed legally to protect a woman's dignity, such an endeavor regularly required extensive evidence, and the burden of proof was often costly in both social and personal terms. In this regard, traditions generally supported patrifamilial structure, so that women were disadvantaged in inheritance, personal choices, and political options. Major legal changes in these areas began to take place only after 1911 with the advent of republican China.
See also Confucianism ; Daoism ; Law ; Legalism, Ancient China .
Legge, James. The Chinese Classics. Oxford: Clarendon, 1893–1895. A standard rendering and authoritative interpretation of the Four Books and three ancient Confucian canonical scriptures by this famous Scottish missionary-scholar.
——. The Sacred Books of China. Oxford: Clarendon, 1879–1891. Six volumes in the Sacred Books of the East, edited by F. Max Müller. Vols. 3, 16, 27, 28, 39, 40. Revised and new translations of Confucian and Daoist canonical scriptures.
Bontekoe, Ron, and Marietta Stepaniants, eds. Justice and Democracy: Cross-Cultural Perspectives. Honolulu: University of Hawai'i Press, 1997. Includes helpful articles on Asian and comparative perspectives.
Cheng, Chung-ying, et al. Special Issue on Rawlsian and Confucian Justice. Journal of Chinese Philosophy 24, no. 4 (December 1997). Consists of six separate articles addressing different aspects of this comparison.
Feng, Youlan. A History of Chinese Philosophy by Fung Yu-lan. 2 vols. Translated by Derk Bodde. Princeton, N.J.: Princeton University Press, 1952–1953.
Huang, Philip C. C. Code, Custom, and Legal Practice in China: The Qing and the Republic Compared. Stanford, Calif.: Stanford University Press, 2001. Describes actual cases, including accounts about land ownership, handling of debts, old age provisions, and dynamic and oppressive elements in stipulations related to women in general society.
Lee, Seung-Hwan. "Was There a Concept of Rights in Confucian Virtue-Based Morality?" Journal of Chinese Philosophy 19 (1992): 241–261. Seminal article claiming that rights-like concepts did exist in ancient Confucian texts and were norms for practice in ancient Chinese societies.
Liú Zéhuá, ed. Zhōngguó Zhèngzhì Sīxiang Shi. Hangzhou, China: Zhejiang People's Press, 1996. 3 vols. A thorough study covering twenty-five hundred years of Chinese political thought, including Confucian, Daoist, and Buddhist contributions.
Peerenboom, Randall P. "Confucian Justice: Achieving a Humane Society." International Philosophical Quarterly 30 (1990): 17–32. A comparative philosophical analysis of a secularized version of justice from a Confucian-inspired vision of humane society.
Pfister, Lauren F. "A Study in Comparative Utopias—K'ang Yuwei and Plato." Journal of Chinese Philosophy 16, no.1 (1989): 59–117. Showing points of comparison between Plato and certain Confucian themes embodied in an unusual work by this nineteenth-century Chinese intellectual and reformer.
Sim, May. "Aristotle in the Reconstruction of Confucian Ethics." International Philosophical Quarterly 41, no. 4 (2001): 453–468. Showing points of comparison between Aristotle and early Confucian traditions.
Wood, Alan T. Limits to Autocracy: From Sung Neo-Confucianism to a Doctrine of Political Rights. Honolulu: University of Hawai'i Press, 1995. Provides constructive comparisions between European medieval natural rights ideologies and Song dynasty (tenth to twelfth centuries) principle-centered Confucian political ideology.
Lauren F. Pfister