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Confucianism Vs Rule Of Law
By Dr. Chung-sen Yang楊崇森博士
We are now at the crossroads of preserving the
traditional value system of Confucianism on the one hand and advocating the westernized value system,
especially high respectfor law, on the other. Are these twoapproaches
compatible? How can wereconcile them So far very few articles have explored
these issues from the legal point of view, which seems to be more knotty than
some other facets. This article attempts to analyze the relationship between
Confucianism and national modernizatition from the legal point of view.
The traditional Chinese legal system was overwhelmingly
molded by Confucianism and infused with ethical thinking in both its nature and
contents In China, law was traditionally envisioned not as anend but rather a
means for enforcingmoral teachings of Confucius .The Chinese traditional legal
system placed strong emphas is on family ties, did not stress equality betweenmen
and women, allowed specialprivileges to be conferred upon government officials
,and played down the development of civil law.
There were certain merits of the traditional Chinese legal system,however, such as paying special attention to judicial
works and less complexity in litigation proceduresor for solving disputes.
Despite the fact that the traditional Chinese legal
system has not been in effect sjnce the early part of this century, due to
westernization of the system in an attempt to abolish the extraterritoriality enioved
by the Great Powers, the impact of Confucianism still remains, In other
words,Confucianism still plays apart in shaping the people's way o thinking and
value system.
To
illustrate:
In contrast to the American litigious society,
people in China are still reluctant to solve their disputesby litigtigation.
They seem to lack confidences in courts and the legal c system.
In
judging the merits of a particular matter, people tend to mix morality with
law.They either try to keep away from law or are indifferentor contemptuous of
it.
Unlike the western society, where the lrgal
profession is highly regarded by the general public,the legal profession still
plays rather alimited role in Chinese society.
ln
the mind of the average Chinese.the concept of rights and duties usually, are
pretty blurred. Even in
commercial transactions,people do not negotiate their rights and duties in detail. When things gowrong,
friction often arises.
Although a
lot of the moralteachings of Confucius are still rational and valuable in
contemporary
society
and merit preservation and development, it is to be admitted that traditional
concepts such as less respect for law, inequality betweenthe sexes and
professions, and overemphasis on family ties are no longer conducive to the
functioning of today's society,anad may even come into conflict with certain
basic social norms, such as individual freedom, responsibility, and equal-ity-all
considered indispensable to a democratic society.
So, while we should advocate cultural
renaissance and develop the strong points of traditional Chinese culture, we
should not be unmindful of the fact that law and order are
fundamental
for maintaining social order, and are essential for national modernization.
Therefore, we should try to reconcile these two seemingly conficting interests,
and
endeavor
to develop among people new values and new virtues, such as a law-abiding
spirit,public-minded-ness, thoughtfulness for the rights of' others, and fair
play.
Only then will Confucianism take on a new
form of life which will,in turn, facilitate our national modernization and help
our country survive in the ever-increasing com-
petitive
international community.
-Dr. Chung-sen
Yang is director of the graduate institute of law,National Chung-Hsing
University.
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【法奶日報www.lulijen.com2015.12.3.出刊，第9-1533號】