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 traditions, such as the Confucian legal tradition.

I. Introduction

How should we understand or characterize classical (i.e., early or foundational) Confucian legal thought? One group of scholars has argued that classical Confucianism should be understood as a natural law theory. Another prominent Chinese law and legal theory scholar has argued that classical Confucianism should be compared to Dworkin’s coherence theory of law. 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.

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 realism 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 in the domain of analytical jurisprudence (e.g., “what is law?”). Rather, like the legal realists, classical Confucian legal thought was very much concerned with the nature of adjudication and how judges decide cases. Also, like the legal realists, classical Confucian legal thought can be described as anti-formalistic. I will also argue that classical Confucian approaches to adjudication reflect the legal realist approach toward adjudication in its rawest or purest (and perhaps idealized, at least in the view of realists like Jerome Frank) form.

From a more macroscopic level, this paper hopes to make the following scholarly contributions. Most immediately, I hope to deepen our understanding of classical Confucian legal thought. More broadly, this paper aims to contribute to the fields of comparative jurisprudence by showing the value of legal realism not only in understanding American (or Western) approaches to law, but to non-Western legal traditions as well. In that sense, this paper takes a sympathetic approach to legal realism (which has fallen under heavy and biting criticism from legal theorists) and attempts to contribute to the project of resuscitating legal realism.

This paper proceeds as follows: Section I lays out a brief overview of the key tenets and ideas of legal realism. Section II presents my analysis of classical Confucian legal thought, with a focus on classical Confucian views on adjudication. I also show how classical Confucian legal thought can be compared to legal realism. The paper then concludes.