Brodman Reaction Essay

1630 words - 7 pages

Alexandra BrodmanReaction Paper: Intellectual foundations of the Chinese Legal TraditionProfessor LeppBefore reading the Peerenboom article, it never would have occurred to me that a society of laws could be viewed as anything other than the optimal way of producing order and social harmony. However, that is not what Confucius thought. He thought that a society of laws produced the lowest acceptable level of social harmony because laws only focus on external behavior. People will avoid doing what they will be punished for, but this avoidance is not related to their conscience because laws do nothing to "transform our inner character". Embedded in this idea is the notion of shame - that the decision to refrain from certain things does not come from the law telling us we can't do it, but rather we refrain because we would feel shame if we did it. Actually, in an ideal world, this does seem like it would produce the optimal level of social harmony. Confucius was perfectly right in thinking that telling someone not to do something is much weaker that that person deciding not to do something because of his or her moral conviction that it is wrong.And relatedly, substantive justice, or deciding the outcome based on whether the action was morally right or wrong, just feels better than assuming that the right result was reached because all of the procedural safeguards were met and the law was ostensibly applied appropriately. Who wouldn't prefer to punish someone primarily because what that person did was unequivocally wrong, not just illegal? Also, the idea of really considering someone's personal situation in evaluating their fate has some appeal- especially in the case of being able to punish a bad person for doing a bad thing or exonerating a good person because, all things considered, what that person did really wasn't so bad.The thing is, although what Confucius said makes perfect sense on some level, the reason that his notion of laws was rejected in the West was most likely because, at least in free thinking societies, it is near impossible to get everyone to agree on morality. If only a few people get to decide what is moral then there is lots of room for abuse. Peerenboom mentions the major pitfalls of the Confucian lack of emphasis on laws, and notes the tendency for elitism, abuse of discretion, inconsistency, and being at the mercy of whoever happened to be adjudicating your case. The article notes that lizhi, or rule by morality and custom is essentially rule by men, or renzhi. Also, Peerenboom notes that a Confucian system requires a willingness to cooperate, something that seems elusive at best in any modern society I can think of.Despite these significant issues however, it seems to me that China should keep its philosophical heritage in mind as it creates and expands its legal institutions. Howson was right to disagree with a China scholar's outright rejection China's legal history, and description of it as "tyrannical". Huang noted...

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