V0L.107,N0.5,1963 BASIC CONCEPTS OF CHINESE LAW 383 est (and probably original)sense,it denotes the wise be drawn between Legalist fa and Western correct performance of all kinds of religious ritual: positive law.s2 sacrificing to the ancestors at the right time and Finally,and this is an important point,the place and with the proper deportment and attitude early li were the product of a society in which is li;so is the proper performance of divination. hierarchical difference was emphasized.That is In this sense li is often translated as ritual or to say,the li prescribed sharply differing patterns rites.In a broader sense,however,li covers the of behavior according to a person's age and rank entire gamut of ceremonial or polite behavior, both within his family and in society at large (one secular as well as religious.There are numerous pattern when acting toward a superior,another rules of li for all customary situations involving toward an inferior,still a third toward an equal). social relationships,such as receiving a guest,ac- This idea of hierarchical difference,with resulting quiring a wife,going into battle,and the many differences in behavior and privilege,has remained other varied duties and activities of polite society. alive in Confucianism throughout imperial times, In this sense,li is often translated as ceremonial, despite the disappearance of the pre-imperial politeness,etiquette,or rules of proper conduct. feudal society that first gave it birth.sa Finally,li in its broadest sense is a designation for Keeping these ideas in mind,let us now examine all the institutions and relationships,both political the main Confucian arguments in the controversy and social,which make for harmonious living in a between them and the Legalists.For the sake of Confucian society.The li,in short,constitute both clarity and brevity,we shall use our own words the concrete institutions and the accepted modes of to summarize these arguments,trying,however, behavior in a civilized state. to express them as accurately as possible and keep- The Confucians believed that the li had been ing to what might be called a "purist"Confucian created by the ancient sages,and that the disorder position: of their own age resulted from men's failure to understand or live according to these li.A prime 1.Man is by nature good (Mencius,371?-289? Confucian duty,therefore,was to study and inter- B.C.),or at least is a rational being capable of pret the li as handed down from antiquity so as to learning goodness (Hsuin Tzu,ca.298-ca.238 make them meaningful for the present day.This B.C.).It is by inculcating the li that society shapes idea led the Confucians to prepare several written the individual into a socially acceptable human compilations of li which,however,did not assume being.The li are thus preventive in that they turn final form until near the end of the feudal age and the individual away from evil before he has the during the early part of the age of empire.Dur- chance of committing it,whereas law (fa)is ing most of the Chou dynasty,consequently,the punitive in that it only comes into action to punish li were transmitted in unwritten form only.At the individual for evil already committed. the same time,their large number,complexity, 2.A government based on virtue can truly win and refinement meant that they were largely an the hearts of men;one based on force can only gain their outward submission.The li are suasive upper-class monopoly.Indeed,what most readily distinguished the Confucian ideal gentleman (the and hence the instrument of a virtuous govern- ment;laws are compulsive and hence the instru- chiin-tst or "Superior Man")from ordinary men ment of a tyrannical government. was his mastery of the li. 3.The li derive their universal validity from the On the other hand,the Confucians believed that fact that they were created by the intelligent sages underlying the minutiae of the specific rules of li of antiquity in conformity with human nature and are to be found certain broad moral principles with the cosmic order.Law has no moral validity which are what give the li their validity.This is because it is merely the ad hoc creation of modern so because these principles are rooted in innate men who wish by means of it to generate political human feeling;in other words,they represent power. what men in general instinctively feel to be right. 4.The five major relationships of Confucianism It is this interpretation of li which has caused 32 See especially Needham,Science and Civilisation in some modern scholars to suggest that a parallel China (cited in note 21)2:pp.519,530-532,544 ff. may be drawn between Confucian li and the West- as This point is stressed by T'ung-tsu Chi,op.cit.,in ern concept of natural law on the one hand,in his excellent discussion of li on p.230,note 11.See also his entire chap.6,"The Confucian School and the Legal apposition to a counter parallel which may like- School." This content downloaded by the authorized user from 192.168.82.206 on Thu,15 Nov 2012 17:03:52 PM All use subject to JSTOR Terms and ConditionsVOL. 107, NO. 5, 19631 BASIC CONCEPTS OF CHINESE LAW 383 est (and probably original) sense, it denotes the correct performance of all kinds of religious ritual: sacrificing to the ancestors at the right time and place and with the proper deportment and attitude is li; so is the proper performance of divination. In this sense 1i is often translated as ritual or rites. In a broader sense, however, 1i covers the entire gamut of ceremonial or polite behavior, secular as well as religious. There are numerous rules of 1i for all customary situations involving social relationships, such as receiving a guest, ac￾quiring a wife, going into battle, and the many other varied duties and activities of polite society. In this sense, 1i is often translated as ceremonial, politeness, etiquette, or rules of proper conduct. Finally, 1i in its broadest sense is a designation for all the institutions and relationships, both political and social, which make for harmonious living in a Confucian society. The li, in short, constitute both the concrete institutions and the accepted modes of behavior in a civilized state. The Confucians believed that the 1i had been created by the ancient sages, and that the disorder of their own age resulted from men's failure to understand or live according to these ii. A prime Confucian duty, therefore, was to study and inter￾pret the 1i as handed down from antiquity so as to make them meaningful for the present day. This idea led the Confucians to prepare several written compilations of 1i which, however, did not assume final form until near the end of the feudal age and during the early part of the age of empire. Dur￾ing most of the Chou dynasty, consequently, the 1i were transmitted in unwritten form only. At the same time, their large number, complexity, and refinement meant that they were largely an upper-class monopoly. Indeed, what most readily distinguished the Confucian ideal gentleman (the chiin-tzu or "Superior Man") from ordinary men was his mastery of the ii. On the other hand, the Confucians believed that underlying the minutiae of the specific rules of 1i are to be found certain broad moral principles which are what give the 1i their validity. This is so because these principles are rooted in innate human feeling; in other words, they represent what men in general instinctively feel to be right. It is this interpretation of 1i which has caused some modern scholars to suggest that a parallel may be drawn between Confucian 1i and the West￾ern concept of natural law on the one hand, in apposition to a counter parallel which may like￾wise be drawn between Legalist fa and Western positive law.32 Finally, and this is an important point, the early 1i were the product of a society in which hierarchical difference was emphasized. That is to say, the 1i prescribed sharply differing patterns of behavior according to a person's age and rank both within his family and in society at large (one pattern when acting toward a superior, another toward an inferior, still a third toward an equal). This idea of hierarchical difference, with resulting differences in behavior and privilege, has remained alive in Confucianism throughout imperial times, despite the disappearance of the pre-imperial feudal society that first gave it birth.33 Keeping these ideas in mind, let us now examine the main Confucian arguments in the controversy between them and the Legalists. For the sake of clarity and brevity, we shall use our own words to summarize these arguments, trying, however, to express them as accurately as possible and keep￾ing to what might be called a "purist" Confucian position: 1. Man is by nature good (Mencius, 371 ?-289? B.C.), or at least is a rational being capable of learning goodness (Hsiun Tzu, ca. 298-ca. 238 B.C.). It is by inculcating the 1i that society shapes the individual into a socially acceptable human being. The 1i are thus preventive in that they turn the individual away from evil before he has the chance of committing it, whereas law (fa) is punitive in that it only comes into action to punish the individual for evil already committed. 2. A government based on virtue can truly win the hearts of men; one based on force can only gain their outward submission. The 1i are suasive and hence the instrument of a virtuous govern￾ment; laws are compulsive and hence the instru￾ment of a tyrannical government. 3. The 1i derive their universal validity from the fact that they were created by the intelligent sages of antiquity in conformity with human nature and with the cosmic order. Law has no moral validity because it is merely the ad hoc creation of modern men who wish by means of it to generate political power. 4. The five major relationships of Confucianism 32 See especially Needham, Science and Civilisation in China (cited in note 21) 2: pp. 519, 530-532, 544 ff. 33 This point is stressed by T'ung-tsu Chii, op. cit., in his excellent discussion of Ii on p. 230, note 11. See also his entire chap. 6, "The Confucian School and the Legal School." This content downloaded by the authorized user from 192.168.82.206 on Thu, 15 Nov 2012 17:03:52 PM All use subject to JSTOR Terms and Conditions