For those interested in the specific subject matter of Norman Ho’s recent article in Jurisprudence, “‘The Confucianization of law’ debate,” it provides an informative read, offering some original insights on the historical evidence for the influence of Confucianism on Chinese law. A wider readership should be attracted to this article for Ho’s stimulating reflections on the interplay between historical and jurisprudential accounts of the topic.
The platform for Ho’s wide-ranging discussion is an examination of Qu Tongzu’s “Confucianization of law” theory and its reception within the literature. Ho suggests that Qu’s theory should not be regarded merely as offering a contribution to legal history. Rather, Ho argues, its jurisprudential qualities should be acknowledged. In Ho’s view, this permits a fuller investigation of Qu’s theory. More than that, Ho produces a general schema to differentiate the impact of historical and jurisprudential perspectives on the debate. In addition, he draws upon a fascinating case study of kinship concealment in Chinese law.
Ho details (Pp. 361-62) the immense significance of Qu’s work for the theory of the Confucianization of Chinese law, both within China and beyond. The theory describes how “Confucian moral teaching[s] were introduced, penetrated, and ultimately codified into the written law” (P. 361), and Ho explains that these moral teachings centered on the concept of li, which can be translated as “ritual propriety,” but a propriety understood to be dependent on the recognition of status and hierarchy (P. 363).
In opposition to Confucian moral thinking, the approach of the Legalists emphasized the concept of fa (law) and promoted the view “that all – with the exception of the
ruler – should be equal under the law” (P. 364). According to Qu, the contest between these two schools was fought alongside the succession of different Chinese dynasties over a period of several hundred years, between 221 BC to 921 AD, with Legalism prevailing in the Qin Dynasty, Confucianism getting the upper hand in the Han Dynasty, and strengthening its hold in the Tang Dynasty. The culmination of the Confucian influence was the enactment of a code under the Tang Dynasty in 653 AD based upon the Confucian li (P. 364).
As a purely historical account, Qu’s theory is open to a number of criticisms, but Ho insists it should also be regarded as possessing a jurisprudential element. In Ho’s view, when Qu argues that Chinese law “codified Confucian morality, and reflected Confucian moral norms,” he (Qu) is providing a descriptive jurisprudential account adopting (a form of) the mirror thesis (Pp. 365-66). This adds a different set of criticisms to which Qu’s theory is vulnerable.
Ho provides a preliminary classification of the different types of criticisms, historical and jurisprudential, which might be made against Qu’s theory. He acknowledges the counterarguments he identifies are not mutually exclusive, and does not claim that his classification is exhaustive (Pp. 367-68). His principal contention, with regard to Qu, is that a detailed survey of the existing criticisms reveals that they engage with the historical aspects of Qu’s theory, and ignore the jurisprudential aspects, so limiting the scope of their critique (Pp. 368-69).
At this point, Ho introduces an illuminating case study on kinship concealment (Pp. 369-73). Kinship concealment is the moral teaching that a son should not provide evidence of his father’s crime but instead conceal it. The son-father (or father-son) relation is a strong example of the teaching that covered other close relationships, and Ho traces it to Analects13.18, where Confucius states that fathers covering up for their sons and sons for their fathers is a form of “uprightness” (P. 370).
The statement of Confucius is made to refute the view of the Duke of She who boasts of the uprightness of a citizen who reported his father for stealing a sheep to the authorities. We then appear to have a clear contest between Confucian li and Legalist fa, respectively supporting or rejecting the teaching of kinship concealment. In order to test Qu’s theory, accordingly, one can consider the historical sources to find out whether this teaching is to be found in the laws that are supposed to reflect Confucianism.
Ho’s initial examination of the sources provides support for Qu’s theory (P. 371). However, Ho detects “a slight wrinkle” (P. 372), in that there is also evidence that kinship concealment is supported during the Qin dynasty, whose laws, according to Qu, were supposed to reflect Legalism. Ho then detects the possibility of “a further wrinkle” (P. 372) in that:
Despite the possible institutional and legal practices of the Qin in allowing kinship concealment in certain cases, Legalist philosophers in their legal and political thought seemed to consider such practices anathema.
Clearly, both wrinkles are problematic for Qu’s theory, but in considering their fuller implications (Pp. 372-73) Ho reinforces his contention that criticism of Qu is inadequate if it fails to engage with the jurisprudential aspects of his theory. Whereas the discussion of Qu’s theory in purely historical terms has narrowed the central issue down to whether there is evidence of a Confucian or Legalist influence on Chinese law, the broader jurisprudential perspective may interrogate Qu’s mirror thesis, and even consider “more universal human behaviours as explanations for why a law is the way it is, rather than look for social norms emanating from a specific philosophical school.” (P. 374)
Ho is careful to point out that his insistence on including a jurisprudential perspective does not exclude the relevance of historical facts (Pp. 367, 370, 374). The burden of his essay is to point out that an exclusively historical perspective will incorporate assumptions regarding the nature of the debate. A jurisprudential perspective may valuably widen our understanding of the debate and so assist in identifying and questioning an author’s assumptions.
Some clear lessons are offered here to legal historians, beyond the specific subject matter with which this article is concerned. Less obviously perhaps, but certainly not ruled out by Ho’s careful discussion, are lessons for those preoccupied with a solely jurisprudential perspective, about the possibility of testing their assumptions by an investigation of the historical facts.
