Abstract

A vast literature exists on Zhu Xi’s metaphysical and political philosophy; however, his status and views as a legal thinker have not garnered much scholarly attention. Most broadly, this Article argues that Zhu Xi made important contributions to the development of Chinese legal philosophy – by intertwining law closely with both morality and his metaphysical views on li (principle), Zhu Xi further empowered law and elevated its importance in Chinese society. This Article will first lay out and analyze Zhu Xi’s legal philosophy (focusing especially on his view on punishments), situating it within his broader metaphysical philosophy. Then, Zhu Xi’s legal thought in practice, particularly his views on some cases during his time and also his career as a local official, will be examined. Attention will also be given to his community compacts, which the paper argues should be viewed as quasi-legal institutions that supplemented and buttressed the formal legal system. Through this discussion of Zhu Xi’s legal thought in practice, this Article hopes to show that there was consistency between Zhu Xi’s legal philosophy in both theory and practice. Finally, this Article will briefly argue for the relevance of Zhu Xi’s legal thought today in China’s program of legal reform. Ultimately, Zhu Xi can be viewed as a model legal thinker for China who offered a complete, total vision of the place of law in society. Zhu Xi’s views on law challenge continued notions that Confucianism is incompatible with a modern rule of law system, and also further emphasizes the deep engagement Neo-Confucians historically wanted to have with actual policy-making and society.    


I. Introduction

After its violent suppression just a few decades ago in the Cultural Revolution, Confucianism is now making a strong comeback in China,1 even forming the basis of written decisions in courts of law. For example, in June of 2010, the Beijing Dongcheng District (东城区) Court rendered a final decision on a contract dispute case. The court invalidated a property contract between the eighty-five year old mother and her daughter, ruling that the daughter had clearly and intentionally employed unreasonable methods in order to procure and transfer her mother’s property to avoid paying back a debt she owed to her mother.

The court did not stop there, however. Besides basing its decision on Chinese contract law, it argued that Chinese traditional values must be upheld and actively promoted in contemporary society. The court especially cherished the values of filial piety, which require that children take care of, support, and respect their parents. The judge quoted directly from an ancient classical Chinese Confucian text, the Xiaojing (孝经), or Classic of Filial Piety, to support his emphasis on these values: “Filial piety is the immutable, constant rule of Heaven, the full manifestation of righteousness on Earth, and the sworn duty of all men.” The court then argued that filial piety is one of the most important virtues in Chinese society, and that in this case the daughter violated the principles of filial piety by disrespecting her very old mother. The court reasoned that the daughter’s unfilial heart and actions not only created a rupture in her relationship with her mother, but also led her to break the law, violate moral principles, and disrupt social harmony. As we can see, the court relied on traditional Confucian moral principles in its decision, almost treating the Classic of Filial Piety as a supplemental source of written law.

Yet, despite this prominent example of the integration of Confucianism into modern Chinese jurisprudence, the historical treatment of Confucianism and its impact on the development of Chinese law continues to be unkind and stereotypical; the story of Chinese legal history continues to maintain that China lacked a rule of law system in its pre-modern past; Confucianism is generalized as a system of thought antithetical to law. This existing and unfortunately still pervasive narrative of Chinese legal history in much of Chinese and English scholarship9 has been nicely summarized by two scholars as follows:

In the standard view widely held by Chinese and others, China lacked the rule of law throughout its long history for many reasons. First, the dominant intellectual tradition of China was “Confucianism” . . . that valued the rule by men . . . [D]uring the Han [dynasty], Chinese emperors ruled by will or whim over a hierarchical society. That “imperial society” subsequently grew in size and sophistication over two millennia without significant change . . . [O]nly with the decline of China’s last dynasty, the Qing (1644-1911 CE), and the arrival of Western ideas and institutions did the Chinese state really change. Finally, in the first half of the twentieth century, the Chinese transformed their inherited, traditional, feudal empire into a modern, capitalist nation state. . . .

Besides substantive problems in this popular narrative, there also exists, generally speaking, a temporal imbalance in Chinese legal historical research – while much work has been done on the Qing dynasty (an attractive point of research for many scholars given the influx of Western ideas in the nineteenth century), far less attention has been given by scholars to law in more ancient dynasties, especially in between the Qin and the Qing dynasties. I firmly believe that the legal philosophy of one of China’s most important Neo- Confucian philosophers, Zhu Xi (朱熹) (1130-1200), can serve as an important corrective to standard, still-prevalent misconceptions and generalizations on Chinese law, and specifically Confucianism’s place in Chinese legal development. Indeed, Zhu Xi is an example of a deeply Confucian thinker and official who was able to successfully reconcile Confucianism and law, embedding law in Confucian morality while simultaneously advocating the importance of clear, transparent written legal rules and punishments in society. This Article will argue that Zhu Xi can be viewed as a model legal thinker – he shared the Confucian cultural distrust of sole reliance on law in regulating society, but at the same time he respected and was devoted to clarifying the written law and relying on it in judicial decisionmaking. By couching law in his ultimate moral and metaphysical philosophy, he did not weaken the law, but instead empowered it, offering a coherent vision of the role of law and legal punishment in society that was consistent in theory and practice. This Article proceeds as follows: I will first examine Zhu Xi’s legal philosophy, situating it within his broader metaphysical philosophy. Then, the Article will proceed to examine Zhu Xi’s legal thought in practice, focusing on his career as a local official and his formation of community compacts in local society, arguing they both were consistent, integral parts of his broader legal philosophy. These two sections of the Article can be described as an intellectual legal history, arguing broadly for Zhu Xi’s importance as a legal thinker in the Chinese philosophical tradition. I hope these two sections will enrich two ongoing and significant debates in professional Chinese historiography – namely, challenging continued notions that Confucianism and China’s Confucian past are burdening liabilities and antithetical to a society that respects laws, and second, showing through Zhu Xi’s thought that Neo-Confucianism was and is still a viable system of thought that was not simply content in engaging the abstract metaphysical world, but was also deeply concerned with politics and participating in social policy-making. Finally, this Article will conclude with a discussion on what components of Zhu Xi’s legal thought can contribute to China’s massive project of legal reform today.