Killing the scholars and burning the books (anonymous 18th century Chinese painting depicting the alleged burning of books and killing of scholars under China’s first emperor Qin Shihuang; source: Wikipedia)
The legal system of imperial China developed from two schools of thought: Confucianism and Legalism. Although both of them exerted a deep influence on China’s state-building as well as on its moral and legal traditions, at the beginning these two philosophies were bitterly opposed to each other, as they were based on entirely different principles (see: Xin Ren: Tradition of the Law and Law of the Tradition: Law, State, and Social Control in China, 1997, p. 19).
Confucianism (儒家) originated from the teachings of Confucius (551 – 479 BC), a Chinese scholar, politician and philosopher who lived in the Spring and Autumn period. The main body of the Confucian canon comprises the Four Books and the Five Classics (四書五經), texts which have been traditionally attributed to Confucius himself, although their authorship is not ascertained beyond doubt.
Confucius’ philosophy revolved around two concepts: the nobleman and the establishment of a well-ordered society. The nobleman (君子, pinyin: jūn zǐ , also translated as “gentleman” and “superior man”) is a term that in ancient China referred to the son of a feudal lord. Confucius, however, gave this word a new meaning. For him, a nobleman was such by merit and not by birth. The nobleman is a righteous individual, an example of filial piety, humane behaviour, virtue and propriety (Ren 1997, pp. 19-20; Lee Dian Rainey: Confucius & Confucianism: The Essentials, 2010, p. 42). Ideally, a well-ordered society is constituted of noblemen who put righteousness and propriety before selfishness and pettiness.
In the philosophy developed by Confucius and his followers, the law played a secondary role in shaping human behaviour. Instead of the legal system, early Confucian scholars emphasized the concepts of morality and ritualism. The term “ritual propriety” (禮, pinyin: lǐ), describes the “proper” social relationships and the set of rituals which regulate them. The fundamental social relationships are those between the emperor and his ministers, between father and son, between husband and wife, between brothers and between friends. Li “governs relationships between the ruling and the ruled, the senior and the junior, man and woman, and the blood-related and the acquainted” (Ren 1997, p. 20). Confucius placed great importance on language. He believed that for a society to function harmoniously all social relationships had to be named properly. This means that society needs social ranks and rituals so that each individual will constantly be made aware through language and rites which position he occupies in the social fabric and which behaviour is proper in dealing with others.
Confucian scholars believed that human beings were inherently good and nature endowed them with four fundamental virtues: humanity (仁), righteousness (義), propriety (禮) and wisdom (知). According to Confucian thought, men’s wrongdoing and bad behaviour are the consequence of negative environmental influences and lack of proper education. Wrongdoers could be taught to feel ashamed of their improper actions through education and moral persuasion. If men were brought up in a system in which social roles and ranks were clearly defined through language and rites, they would naturally internalize proper social relationships and society would function harmoniously. From this viewpoint, human beings do not exist as free individuals, but they are only small parts of a complex network of social relations in which everyone must fulfill their duties as subjects of the emperor, as fathers and mothers, as husbands and wives etc. (see Ren 1997, pp. 20-21). Confucians believed that if men acted according to ritual propriety and if the sovereign possessed all four fundamental virtues, then society would be prosperous and harmonious.
Contrary to Confucian belief in human beings’ inherent goodness, the Legalists assumed that men were by nature evil and that consequently they would commit crimes if state authority did not discipline them. Since human beings are selfish and greedy, the only way a state can function is by issuing laws and by severely punishing those who violate them. According to the Legalists, men are by nature unequal, since they differ in wealth, strength and status. However, the law should apply equally to all, so as to punish the guilty and reward the innocent (Ren 1997, p. 20). In the Book of Lord Shang, a classic of Legalist thought from the 3rd century BC, one reads:
If penalties are made heavy and rewards light, the ruler loves his people and they will die for him; but if rewards are made heavy and penalties light, the ruler does not love his people, nor will they die for him. When, in a prosperous country, penalties are applied, the people will reap profit and at the same time stand in awe; when rewards are applied, the people will reap profit and at the same time have love. A country that has no strength and that practises knowledge and cleverness, will certainly perish,2 but a fearful people, stimulated by penalties, will become brave, and a brave people, encouraged by rewards, will fight to the death. If fearful people become brave and brave people3 fight to the death (the country will have no match, having no match, it will be strong, and being strong it will attain supremacy (quoted from: Yang Shang: The Book of Lord Shang: A Classic of the Chinese School of Law, trans. J. J. L. Duyvendak, 1963, pp. 200-201).