2020] LEGAL REALISM AND CHINESE LAW 129
traditions, such as the Confucian legal tradition.
How should we understand or characterize classical (i.e., early or
foundational) Confucian legal thought?1 One group of scholars has argued that
classical Confucianism should be understood as a natural law theory.2 Another
prominent Chinese law and legal theory scholar has argued that classical
Confucianism should be compared to Dworkin’s coherence theory of law.3
Other scholars disagree with the above two views and have maintained that
classical Confucianism should not really be understood as a legal theory but
rather as an “ambitious moral theory” which requires self-cultivation and aims
at fostering a society of peace and harmony.4
In this paper, I want to argue that, in terms of comparative legal theory,
classical Confucian legal thought is actually best understood as, and compared
to, (American) legal realism5 and its key ideas. Examining the writings and
legal thought of the foundational Confucian thinkers Confucius (551–479 BC)
and Mencius (372–289 BC), I hope to show that classical Confucianism was
not concerned with conceptual questions regarding law — or put another way,
classical Confucian legal thought was not concerned with the typical questions
1 Classical Confucianism, early Confucianism, and foundational Confucianism refer primarily to the
thought of the two earliest and foundational Confucian thinkers in the Confucian tradition — Confucius and
Mencius. This paper focuses on their legal thought, and it does not cover later schools of Confucianism such
as Neo-Confucianism. It should be noted that Xunzi is of course also an important Confucian thinker in
classical Confucianism, but because his thought never became part of the Confucian orthodoxy in Chinese
history, I will not discuss Xunzi’s legal thought here in this paper (although I will use his writings as a source
for the legal thought of Confucius and Mencius, as his writings contain some recorded stories regarding
Confucius). Furthermore, I use the term “legal thought” broadly to refer to ideas and philosophies regarding
law, legal norms, and norms on social control and social order.
2 Scholars that have advanced this view include Liang Qichao, Hu Shi, Mei Zhongxie, Futukaro Masuda,
Hyung I. Kim, J. J. L. Duvyendak, Derk Bodde, and Joseph Needham. See, e.g., Hu Shi, The Natural Law in
the Chinese Tradition, 5 NAT. L. INST. PROC. 117 (1953); HYUNG I. KIM, FUNDAMENTAL LEGAL CONCEPTS
OF CHINA AND THE WEST: A COMPARATIVE STUDY (1981); J. J. L. DUYVENDAK, THE BOOK OF LORD SHANG:
A CLASSIC OF THE CHINESE SCHOOL OF LAW 46 (1963); DERK BODDE & CLARENCE MORRIS, LAW IN
IMPERIAL CHINA 21 (1967); JOSEPH NEEDHAM, SCIENCE AND CIVILIZATION IN CHINA (VOL. 2) 544 (1956).
See also YU RONGGEN (俞荣根), RUJIA FA SIXIANG TONGLUN (儒家法思想通论) [ON CONFUCIAN LEGAL
THOUGHT] 42–43 (1998) (discussing some of these scholars who hold such a view). However, I tend to agree
with those scholars who do not believe classical Confucianism (that is, pre-Qin Confucianism) should be
understood as a natural law theory. For example, see the persuasive arguments advanced in YU RONGGEN,
supra, at 41–61, 132–33. See also Elena Consiglio, Early Confucian Legal Thought: A Theory of Natural
Law?, 2 RIVISTA DI FILOSOFIA DEL DIRITTO 359 (2015). I have argued elsewhere that Neo-Confucianism —
namely, the philosophical system of Wang Yangming (1472–1529) — can be understood as a coherent,
integrative natural law theory; See Norman P. Ho, Natural Law in Chinese Legal Thought: The Philosophical
System of Wang Yangming, 8 YONSEI L.J. 1 (2017).
3 See R. P. Peerenboom, LAW AND MORALITY IN ANCIENT CHINA: THE SILK MANUSCRIPTS OF HUANG-
4 See, e.g., Consiglio, supra note 2.
5 There are, of course, two recognized legal realist movements—American legal realism and
Scandinavian legal realism. When I use the term “legal realism” or “legal realist(s)” in this paper, I am referring
to the American one.