Legal Realism And Chinese Law: Are Confucian Legal Realists, Too?

• Author: Norman P. HO
• Pages: 128-147

128 TSINGHUA CHINA LAW REVIEW [Vol. 13:127

LEGAL REALISM AND CHINESE LAW: ARE CONFUCIAN

LEGAL REALISTS, TOO?

Norman P. HO

Abstract

How should we understand, describe, and/or characterize classical

Confucian legal thought (i.e., pre-Qin Confucianism, namely, the

thought of Confucius and Mencius)? Some scholars have argued that

classical Confucianism should be understood as a natural law theory.

Others have argued that it should be understood as a Dworkinian

coherence theory of law. Still others have maintained that classical

Confucian legal thought should not be understood as a legal theory

but rather as a moral theory emphasizing self-cultivation and

harmony. In this paper, I argue that classical Confucian legal thought

and approaches to adjudication are best understood as an (American)

legal realist approach to law and adjudication. Primarily examining

the legal thought of Confucius and Mencius, I hope to show that

classical Confucian legal thought can be described as anti-formalistic

and very much concerned with the nature of adjudication and how

legal officials should decide cases. In many respects, classical

Confucian legal thought and adjudicatory practices can also be

understood as representing the ideal approach and reflection of

adjudication as advocated by many of the leading American legal

realists. Finally, this paper makes the following preliminary

conclusions which are more macroscopic: First, by showing the

similarities classical Confucian legal thought shares with American

legal realism, I hope to show that there is nothing fundamentally

uniquely “Sinic” about classical Confucian approaches to

adjudication, which hopefully will bring Confucian legal thought

more into dialogue with Western theories of law and adjudication.

Second, American legal realism, which has experienced heavy

criticism and even scorn by legal philosophers, actually has

important applications even in non-American systems of law, and

should be treated with more respect and seriousness by legal

theorists. Third, many of the ideas and principles of American legal

realism are not really novel; they can also be found in earlier legal

2020] LEGAL REALISM AND CHINESE LAW 129

traditions, such as the Confucian legal tradition.

I. INTRODUCTION

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-

LAO (1993).

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.