Confucianism and Higher Law Thinking in Ancient China
![handle is hein.journals/regjil10 and id is 87 raw text is: CONFUCIANISM AND HIGHER LAW THINKING IN
ANCIENT CHINA
INTRODUCTION*
With the emergence of China as a superpower, it is time for West-
ern scholars to study China's political and legal philosophy, history,
and jurisprudence. Although there is a growing body of research on
the modern Chinese legal system, little attention has been devoted to
the formation of the ancient Chinese legal system. To highlight the
importance of studying the origin of Chinese law, a Chinese legal
scholar noted that we need to have a better understanding of . .. how
law appeared and developed in the very early days of Chinese civiliza-
tion in order to take part in today's debate on the modernization of
the Chinese legal system.' In the words of Thomas Jefferson, the study
of [h]istory, by apprising [people] of the past, will enable them to
judge of the future; it will avail them of the experience of other times
and other nations; it will qualify them as judges of the actions and de-
signs of men.2
With this in mind, the author will unpack over 5,000 years of his-
tory in search of the origin of law in China. In particular, this essay
will use the Western natural law framework to examine the historical
record of the origin and legitimacy of law in China. This article argues
that despite cultural and language differences, the ancient Chinese
concept and philosophy of law was not much different than the natural
law proponents of the Western world. Specifically, this article chal-
lenges the mainstream belief that Chinese law did not have a divine
origin. It argues this misconception lies on blurring the distinction be-
tween natural law and human law.
Part I of this article focuses on the philosophical question of what
is law?. Part H discusses Confucianism and Legalism respectively
and suggests that the evidence of legalization of morality and
* All romanizations of Chinese words in this article utilize Hanyu Pinyin. The
discrepancy of certain spellings in quoted texts is attributable to other authors using
a different romanization method, namely Wade-Giles.
I YONGPING Liu, ORIGINS OF CHINESE LAW: PENAL AND ADMINISTRATIVE
LAW IN ITS EARLY DEVELOPMENT, vii-viii (Oxford Univ. Press 1998).
2 THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA Query XIV (1782).](ViewImageLocal?handle=hein.journals/regjil10&div=6&collection=&method=preview&ext=.png&size=3)
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