CHAPTER VII

ON THE RELATIONSHIP BETWEEN  MORALS AND LAW:

The Moral Character of Confucian Legal Thought

FU JIZONG

            Among varied and sophisticated social phenomena, morals and law, which serve as the norms of human behavior, are closely related yet distinct. To neglect either their relatedness or their dis-tinction would effect the progress of humankind and social develop-ment. Therefore the problem of the relationship between morals and law has long been a focus of research in moral and legal philo-sophy.

            It has been characteristic of the Eastern cultural tradition that, although the thought of the legalists took shape very long ago and had been accepted by some ancient governors, Confucian moral thought held a predominant position during the long period of Chinese feudal society and provided the philosophical background for classical Chinese law.

            The defect of legal thought in the Confucian manner is that, on the one hand, it overlooks the difference between morals and law while, on the other hand, due to the exaggeration of their dif-ference and failure to admit their connection morals and law are seen as uncompromisingly conflictual. While legal thought mora-lized in the Confucian manner, emphasizes their foundational com-patibility and contains some reasonable elements, on the whole it is a partial view. Hence, to reevaluate the moralized Confucian legal thought on a more balanced moral and legal basis holds important promise for promoting the social modernization of China.

THE PHILOSOPHICAL BACKGROUND OF

            ANCIENT CHINESE LAW

            The ancient Chinese legal system has many unique charact-eristics which are surprising from the modern legal point of view. For instance, there was no separation of civil from criminal law in the ancient Chines legal system. The sense of right and of law were very weak. Young males and females did not have the right to choose their lifelong spouses, but had to obey the order of their parents.

            Such issues cannot be treated one by one, for the legal system of a nation chooses certain main philosophical ideas which can be compared to the main switch of a machine. Only by finding this switch can we understand these issues. This relationship between philosophy and law is true also for the relation between philosophy and other concrete sciences, which manifests the functions of philosophy. What then is the philosophical background of ancient Chinese law? To answer this question, we must examine the relationship between morals and law.

            On this relationship scholars throughout the world have advanced widely divergent theories. What commands attention is that ancient Chinese Confucian scholars unanimously considered morals to be the goal of law, and law to be a tool for morals: the sole role of law is to maintain morals. In the well-known Chinese law code of the Tang Dynasty, it is pointed out that "morals are the root of politics, while laws are tools of politics". Moreover, it cited Confucius’ words " ". According to this view, all human behaviors " ". Here we can see that ancient Chinese law took this philosophical concept as its background in order to solve the problem of the relationship be-tween morals and law. Philosophically this is the historical view-point of moral monism.

            Chinese legal thought moralized in the Confucian manner regards whatever is forbidden by law as immoral and believes that whatever is immoral should have attached penalties. Ancient Chinese legal documents contain many cases which, according to the modern view belong to the category of civil relations, but upon which were imposed legal penalties. For instance, breaking con-tacts is basically a question of civil rights, where the one who breaks a contract has the responsibility for compensation, but is not involved in criminal legal proceedings. In ancient China, however, breaking a law was looked upon as a failure of honesty, of keeping one’s word, which was a violation of rites and a matter of im-morality. But immorality must not escape punishment. This view-point about resulted in the merging of civil law and criminal law. As regards the philosophical background of the ancient Chinese legal system this point of law illustrates how the law becomes almost the guardian of morals. It can be concluded that it is characteristic of ancient Chinese law that once one has grasped its philosophical background, that is, its moralization, one can understand the whole.

            The following story illustrates the Confucian moralization of legal thought: Once a county magistrate encountered a case in-volving two persons scrambling for a hen. He found out the true owner of the hen by asking what the hen had eaten. One said beans, the other replied rice. Then the magistrate order that the hen’s stomach be cut open and found that it had eaten beans. Therefore the person who said rice was punished.

            The story is indicative. The scramble for the hen was the cause of the lawsuit; the two parties contended for ownership of the hen. But the magistrate handled the case by killing the hen and punishing the person telling the lie. Thus the question of ownership in civil law turned into a question of morals concerning honesty or dishonesty. In this case where is the issue of ownership; where the civil law?

            The philosophical thought of ancient Chinese law had its own origins, the most important of which were Zhou Rites created by the saints of Zhou Dynasty. Everything was governed by the rites which combined religion, morality and law into one body. Though the rites were not a code, they controlled the Chinese legal system for a very long time.

            The philosophy of rites divided the questions of right, law and legalism into two categories, rite and non-rite. In ancient China there existed a dictum that is, that lawsuits invariably lead to bad results. In the light of "rite", civilians should not resort to lawsuits for their disputes not only because they did not meet the standard of rite, but also because they could not settle disputes. So resort to lawsuits should not take place at all. Once it does happen, the result is always bad and harmful to both parties. To keep relations peaceful is a kind of virtue, whereas a lawsuit itself is something immoral.

            In reality, however, lawsuits resulting from striving for legiti-mate interests are unavoidable and cannot be eradicated by moral lessons. The prosperity of the legal science and the development of a legalist spirit depend upon lawsuits. This sort of moralized legal thought, at its extremities, clings exclusively to morality, without any consideration of law. If this be the case, how can legitimate civil rights be as assured; how can society advance? The consequence of this philosophy can be imagined.

            The view of the Chinese Confucian School on the relationship between morals and law once was attacked fiercely by its op-ponents, resulting in a confrontation between moralism and le-galism. Although in the course of history legalism once was adopted by some political governors to the gradual prosperity of legal science, the Confucian School occupied the predominant po-sition. Especially since the Han Dynasty, with the abolition of va-rious other schools Confucian theory became the only authentic doctrine and determined the destiny of ancient Chinese law.

            In modern legal terms, legal thought in the Confucian manner had a strong negative influence on the development of the Chinese legal system. It blurred the line separating administration and jurisdiction and damaged the independent spirit of jurisdiction. In ancient China legal documents received little attention, whereas much importance was attached to the judge’s opinion. This can be seen in the lawsuits of the Han, Tang, Song, Yuan, Ming and Qing dynasties. All these laws reflected Confucian moralist thought, particularly in the case of civil disputes. The idea of compromise and reconciliation prevailed and was adopted both in and out of court, with consideration for the feelings of the two parties. In the formal legal documents, there is no distinction between civil and criminal law and no distinction between responsibility for crimes and for civil disputes. Legal terms are joined by regulations for penalties. Anyone who deviates from the norm of human behavior would be bound with moral punishment--an idea derived from the lack of distinction between morals and law.

            The philosophical background of ancient Chinese law reveals the Confucian moralization of legal thought and clarifies the related ancient Chinese cultural tradition. It has important significance in the further evaluation of the position of the Confucian school and its effect on the development of Chinese culture and on the further exploration of some essential problems of moral and legal philo-sophy.

THE DIFFERENCE AND INTERACTION BETWEEN

            MORALS AND LAW

            Both morals and law are behavioral norms and fall into the category of value for maintaining social interests. In essence, they are co-ordinated, dependent and complementary one with the other. The moral partiality of Confucian thought came from its over-emphasis on the function of morality, its neglect of the distinction between morality and law and its regarding law as subordinate to morality.

            A similar situation obtained in ancient Western society where the theoretical difference between morals and law was not established for a long time. In the life of primitive society, morals and law were fused to constitute the body of custom which was the most important form of moral norm. At the end of primitive society, state law came into being, but the separation of morals and law still did not gain full recognition in ancient Greece. The ancient Greek philosopher, Plato, assumed that morality was the righteousness produced by subjective thinking; law was considered to be based on morality and to provide guidance for rightful living. During the Roman period law and morals were separated, but no precise theory for differentiating the two emerged. Some moral sayings such as "live rightfully" and "kind and fair actions" were applied to legal definitions. This did not change until the German natural jurist Thomasius (1655-1728) made a relatively clear distinction. Kant inherited Thomasius’s theory, but did not provide a justification for the distinction. Hence, there was a similarity between Eastern and Western cultures as regards the relationship of morals and law.

            The legal view of Marxist historical materialism is that morals and law are determined by the material conditions of human beings. The social ideology is built on economic grounds and re-flects social existence, of which philosophy, arts and religion are superstructure. Therefore, they are closely linked to each other in social life. Nevertheless, morals and law are separate social phe-nomena with significant differences in their emergence, functions and forms.

            First of all, the backgrounds of the emergence of morals and law are different. In the course of historical development morals appeared earlier than law. Before the existence of the state morals already had been formed in social life, though no law had been established. Only after the emergence of the state did the governor, in accordance with his own will, formulate legal norms in order to consolidate his regime. As the fundamental issue of the state is political power, the government naturally takes law as a weapon for maintaining its political power. Though they could not have their own law, the governed had a sense of morality. In a class society, the legal system and several moral systems co-exist, which provide different backgrounds for the emergence of morals and law. From among the multiple systems of morals one should not be simply approved or denied, but should be subjected to detailed analysis because every system surely is influenced by various factors during its historical development. Morals should be appraised objectively and historically, in contrast to laws which protect the government’s interests and reflect its will.

            Secondly, though both morality and law belong to the norm of human behavior, they are different in nature. The legal norm is enforced: though the evaluation of human behavior is ground for establishing and administering legal norms, people are required to observe them. Whether they are for or against them, people are compelled to obey the law established and enforced by the state. This compulsion is a unique feature of legal norms in contrast with moral norms. On the other hand, moral norms are not imposed coercively by the state. To be put into action, this sense of moral obligation depends on the impact of public opinion, people’s be-liefs, customs, traditions and education. It is evaluated in terms of the benevolence and malevolence, justice and injustice, fairness and unfairness, honesty and dishonesty of human behavior. The moral norm has no specific form, but exists in the social ideology and the popular views and beliefs of current society. Hence morals and law are different norms.

            Thirdly, the intervention taken when moral and legal norms are violated is not the same. There are times when something that is within the law may not be moral. In such circumstances, the immoral behavior is beyond the power of legal norms, but will be variously condemned by social opinion, public denunciation, troubled conscience and so on. These are the resources of the moral norm. The society, family and organizations supervise actions in terms of moral requirements inspite of the fact that their methods do not have the compulsive quality of legal norms and do not need a special agency to enforce punishment. Besides, the pressure of social opinion is a kind of public judgement, and the mind’s uneasiness is a kind of mental force. Behavior deviating from the moral norm cannot escape moral convictions. For this reason, it is quite wrong to regard criminal behavior as only immoral and to fail to inflict legal penalties. For the same reason, in order not to impair normal civil rights, legal penalties should not be administered for immoral behavior as is done for criminal behavior. The legal character of criminal law requires that the line between crime and non-crime be clear, and that civil cases not be mistaken for criminal cases. Generally speaking, moral norms have far broader effect than legal norms because the moral has an imper-ceptible influence on human behavior which transcends the law.

            The difference between morals and law is reflected in the legalist spirit. On one hand, one should not regard law as some-thing superior and should not make use of some behavior beyond the power of law to degrade social morals. On the other hand, we should not look upon morals as something superior, so as to blur the boundary between crime and non-crime with the effect that criminals are forgiven. What is most important for research into the difference between morals and law lies in discovering a way of applying their mutual action, for only a clear idea of their difference can help us make better use of their mutual action to drive our society forward. For this reason a major tendency of modern legal philosophy and moral philosophy is to emphasize the common points of morals and law and their basic unity and compatibility.

            The mutual action of morality and law can be elucidated in two aspects. Firstly, the moral norm can be used to defend law and to keep it stable, authentic and perduring. For instance, any be-havior forbidden by law, such as betrayal of one’s motherland, em-bezzlement and robbery, can be viewed as an immoral, illegitimate and ignominious act. A criminal act often starts from an immoral one and progresses from a breach of a moral norm to breach a legal norm: hence, morals can prevent acts forbidden by law. Secondly, the legal norm has coercive power to maintain and carry out moral norms. Many legal norms not only display the requirements of moral norms, but serve also as effective elements for the moral education of people. The law concerning keeping state secrets, protecting public property, observing social order and so on be-longs not only to legal, but to moral norms. One who violates these laws not only will be subject to legal punishment, but also will be morally condemned by public opinion and the masses. This is a way to prevent crime and immoral acts and to stimulate people to develop the noble moral quality of observing law and order. Proper use of the mutual action of morals and law is necessary for the modernization of social life.

SOCIAL MODERNIZATION

            At present a great project to build a modern socialist nation is under way in China. Morals and law can play a great role in accelerating the course of social modernization. Just as a person has two legs for walking, morals and law are two legs in the con-struction of modern socialist superstructure: the moral will not exist without the support of law, and vice versa. This phenomenon is determined by the inherent nature of morals and law and can be compared figuratively to the role of morals and law in social mo-dernization.

            From this point of view, if one re-evaluates the thought of the ancient Chinese Confucian school about the mutual utilization of morals and law, one can find invaluable spiritual achievements in the cultural tradition of our nation. To develop the national culture, we should absorb what is positive in the tradition for the benefit of socialist modernization.

            The moralized legal thought of the Confucian school had played reactive role in maintaining the social order for the feudal governors during the period of feudal society. Feudal morals and law were so tightly interwoven that they became twins. To take the law of Tang Dynasty as an example, by inheriting the doctrines of the Confucian school, the law of the Tang Dynasty not only fixed the feudal hierarchy into law, but also enforced feudal morals with the three cardinal guides (ruler guides subject; father guides son; hus-band guides wife) and the five constant virtues (benevolence, right-eousness, propriety, wisdom and fidelity).

            Among the "Ten Instances of Malevolence" listed in the law of the Tang Dynasty, the law was to punish not only rebels, but also those who did not observe feudal morals. It is right to say that the moral thought of the Confucian school did not completely dispense with law, but combined law and morals into one system. Apparently, this did not conform to legalist thought. But in another sense, the Confucian school paid much attention to the effect of morals on law and vice versa, and emphasized the relationship between the two. This is worth noting, for a good social order cannot fully be main-tained by relying exclusively on legal penalties without the support of a refined moral spirit and strong public opinion. In view of this it is suggested in some developed countries that the moral thought of the Confucian school regarding the mutual utilization of morals and law be applied to their own administration.

            The weak sense of law and right and the failure to separate criminal and civil law in the ancient legal system should be rejected and criticized. But the attention to the mutual action of morals and law which is the essential part of Confucian moralized legal thought should be taken up and developed. With regard to the Chinese cul-tural tradition one should assume a dialectical approach of partial denial, rather than total confirmation or total denial. The cons-truction of modern socialism requires opening, rather than shutting the door to the outside world. In accepting the brilliant cultural achievements of the capitalist society, we should not reject the fine cultural achievements of China.

            A correct application of the mutual interaction of morals and law is a powerful tool for advancing the construction of modern socialism. By developing socialist democracy, China has streng-thened the legal system, developed and perfected the system of representation of the people in congress, and established a series of important laws and acts. As a result, there are laws to which one can resort in various aspects of national and social life, the authenticity of law has been ensured and the socialist democracy is possessed of a systematic legal quality. Before the law everyone is equal, and the law is not to be changed by the fiat of the heads of the nation. This legal spirit has become manifest in such various aspects of social life as maintaining social order, building a strong economy, opening the door to the outside world, securing legitimate civil rights and establishing an honest administration. It is necessary not only to resort to law, but also to enforce it strictly. At the same time the supervisory function of the people’s repre-sentative congress as regards administration and jurisdiction should be strengthened as should public supervision over state officials according to a norm of law. This practice demonstrates the mutual checks and balances of powers which are consistent with the interests of the whole people and are a major feature in the construction of the legal system essential to modern socialism.

            Along with the construction of the legal system, great im-portance has been attached to strengthening ideological and moral education and to combining law with morals. All state officials, whatever their rank or post, are required to observe law and order, to serve the people whole-heartedly, to intensify the sense of being a public servant, to develop a dedicated spirit and to cultivate a high moral sense of adhering to principles. People from all walks of life are required not only to observe national law, but to understand on the moral level that a job is not simply a means of making living, but an obligation for building modern socialism. Socialist morals have become a behavioral norm for people of all walks of life.

            In order that social concerns be maintained, the interests of particular occupations should be related to general social interests. Of course, each occupation has its own moral psychology based on the division of labor, and therefore has its own specific standards of behavior. But in a socialist society the division of occupations is elevated to a higher level. For instance, military heroism is directed not only to winning a certain war, but to the protection of the motherland. The requirement that an entrepreneur maintain his reputation is based not only on his obligation to carry out contracts, but also to promote an open-policy and public trust. The indo-mitable sportsmanship of our athletes is not only for winning the game, but also for the development of sports and the improvement of people’s physical quality. Thus, moral norms exert their effects in every field of social life, thereby stimulating a broad development of social morals.