justice

Confucianism and Justice 儒家正义

Posted on Updated on

Confucian Justice

At the end of the last ‘son-covering-father’ article, it was stated that it seemed like Confucius was not advocating actively obstructing justice to conceal the father’s crime. Instead, the son should conceal the misconduct of the father by not reporting his father until the father corrects his actions. In other words, the son has a duty to allow his father to correct his actions in a private setting, giving him the time and opportunity to apologies and repay his dues. For many readers, this conclusion was not satisfying as protecting the father, even by passive concealment, is another way of obstructing justice and not doing what is morally right.

However, in Confucian thought, yi (义) or justice and righteousness is the very principle that is followed by the son when passively concealing the father’s crimes. It is wrong to transgress against one’s superiors, especially when it comes to respecting people of higher authority, such as rulers and parents. In contrast to the classic interpretation of Confucianism as blind obedience, yi here represents an “ideal of totality as a decision-generating ability to apply a virtue properly and appropriately in a situation” (Cheng, 1972: 271). Yi is about evaluating one’s circumstances and deciding what to do in those circumstances accordingly. The father’s intentions were not discussed in any detail to give clues about his motives. All that is known about the crime is that it involved the father stealing sheep. As long as no one is in direct harm or danger (where the farmer will starve because of the stolen sheep), it is up to the son to give his father the chance to evaluate the meaning of truth and goodness in unity and totality. In this way, the father can act in accordance with justice by returning the sheep or reporting himself to authorities, realizing the right course of action by himself. Likewise, the son is able to protect his family’s reputation, minimising potential damage caused by misunderstanding and thoughtless action. To add to this understanding of Confucianism as a doctrine that emphasizes harmony and collaboration and not blind conformity, this article will investigate the idea of justice in Confucian thought.

There is little knowledge about Confucian justice in the West. As Amartya Sen observes in his book The Idea of Justice (2009), most books on political philosophy are confined exclusively to Graeco-Christian thought, where non-Western authors are overlooked and marginalised in Western discourse. While Sen does discuss justice in India’s intellectual history, his brief references to China leave out any discussion on Confucianism. As professor in philosophy Xenwu Chen (1997) stated, Confucianism either receives embarrassing lip-service, is rejected by discourses on justice in the West, or is reduced to the two catchphrases of ren and yi that are often not properly translated in the West.

In general, the concept of justice is still unclear. The origin of the word comes from the Latin iustus and iustitia meaning upright, righteous, and equity. By the mid-12th century, justice took a more legal form in the French system as it came to mean “the exercise of authority in vindication of right by assigning reward or punishment”, but also “the quality of being fair and just; moral soundness and conformity to truth.” Justice relates to right action or following orders and correcting those who fail to do so. These orders and punishments should be carried out in a manner that takes into account what is fair and good. However, there is no question as to who defines what is fair and good, and how these definitions came to be standards for organising society.

In the contemporary legal sense, justice is sometimes defined in terms of equality. That is, everyone should get or have the same as everybody else regardless of how much work they do or ‘what they put in’. On the other hand, justice can also mean equity where people get benefits in proportion to the work that they contribute. The harder and better one works, the more they get rewarded for their work. The equality versus equity debate is simple and maintains the status quo by ignoring structural discrimination and assuming that everyone can escape their circumstances through hard work and effort. Despite this, the debate over proper conceptions of justice shows that justice is really about who is entitled what, and the question of which cases are equal and which are unequal (Aristotle, Politics: 1282b 22). As philosopher John Rawls (1971) notes, the foundational idea of justice must be seen in terms so fairness. Like goodness, determining what and why something is fair can be tricky business. For example, a feminist analysis into the ethics of care shows that men’s emphasis on separation and autonomy leads them to stress ideas such as justice, fairness, and rights. These male norms do not take into account women’s experience and emphasis on connections and relationships, which leads to a different style of moral reasoning that emphasises wants, needs, and interests of particular people (i.e: those most in need). Care-focused feminists like Gilligan (1982) provide much needed analysis on why women as a group disproportionately carry the burden of care in all societies, and why men as a group do not routinely engage in caring practices. Her ideas suggest that theoretically care-based ethics can become a complement of, or even substitute for, traditional ethics of justice.

In that sense, there are many ways to think about justice that do not necessarily have to align with Western concepts of what is good and fair. For example, the term ren, which is often translated as humaneness, empathy, or the good feeling of encouraging and helping others, may be connected to the idea of justice as ‘harmony’ rather than fairness as it is defined in Western justice theory (Murphy & Weber, 2016). So, some aspects that would traditionally be thought of as unfair would be considered just in a Confucian justice system. Standing and encouraging the rank of others by capitalising on connections (guanxi, 关系) implies giving preferential treatment to someone in exchange for resources like access to controlled information, credit grants, and protection from external competitors (Hinze, 2012). Reciprocal obligation and indebtedness means that these exchanges are ongoing and occur in every aspect of society, including politics and everyday business. Rather than basing society on equality or even equity, social organisation through guanxi is about the needs and wants of particular individuals who have a lot of currency in terms of favours and resources. Though not perfect in practice, guanxi is about creating value in relationships and looking at the wider network in which individuals exist in.

Protecting family, saving face (mianzi, 留面子), and giving someone a chance to regain lost honour is also another concept that may seem foreign to the West. ‘Face’ or reputation is a multifaceted concept that can be lost, gained, or given. It is not only concerned with perceived success (how other’s see your earnings and social standing), but also with the relationship of one’s actions and character to the confidence of society in one’s integrity and moral character (Hu, 1944). Especially when it comes to family members (as was the case with the father), mianzi is important to maintain out of respect for both family ties and to minimise social harm. Considering how individual and group interests are perceived as mutually dependent, Confucian justice cannot recognize rights that are based on the idea that individual interests should be defended against group interests. However, as Wong (2013) notes, rather than eliminating the individual, the way that Confucianism values living according to moral standards and preserving relationships provides a basis for the idea that individuals should receive protection when they express their convictions about certain matters. The son should have an opportunity to express how his father or leader’s misconduct was inappropriate, but only in the right manner and way: through private communication and formal procedure.

Finally, the emphasis on internal feelings means that even the methods of governance should be based on virtue and not coercion and punishment. According to Confucian justice, forcing someone against their will to do the right thing works against cultivating an autonomous sense of shame. In other words, punishment should always be seen as a last resort. A better way of ruling is winning the people’s hearts. This involves developing a consciousness so that social coordination, even amongst strangers, should be family-like and less remote (Tiwald, 2017). The idea is that virtuous members in the community are motivated to act out of care for one another and not by fear of punishment. In the latter, doing good will only be based on self-interest. Sometimes a person may comply when compelled to, but when they are able to do bad things without being punished, then there is no motivation to remain law-abiding. For Confucius, if people practice ritual and develop a sense of shame, it is more likely that they will rectify themselves and do good more consistently. As ‘The Sayings of the School of Kongzi’ (Kongzi Jiayu, 孔子家語) notes, the ideal is to have well-crafted and finely-tuned laws and then make sure that they are never used.

The emphasis on social connections, mutual obligations, and care shows that Confucian justice involves de-emphasising legal coercion and guiding people by moral consideration. Instilling a sense of shame and concern for others is of utmost importance in developing a social system that is people-centred. While a Confucian might believe that there are certain correct ways for dealing with others, a significant degree of latitude is meant to encourage people to learn from their own mistakes and by way of example from others (Chan, 1999). Without necessarily competing with Western justice theory, there is a history and breadth of thought in Confucian justice that has not been adequately explored.

‘The Confucian Puzzle’ Part Two: Remonstration and Obedience ‘儒家难题’ 第二部分: 规劝和服从

Posted on

Father-Son

The ‘son-covering-father’ story in The Analects (13.18) has caused a lot of controversy. When the Duke of Sheh says that ‘Among us here there are those who may be styled upright in their conduct. If their father have stolen a sheep, they will bear witness to the fact’, Confucius replies that ‘Among us, in our part of the country, those who are upright are different from this. The father conceals the misconduct of the son, and the son conceals the misconduct of the father. Uprightness is to be found in this [italics added].” The implication is that not disclosing a crime is morally acceptable if the criminal is a family member, raising the question as to whether filial obligation should override civil obligations or social justice. The passage mirrors a section of Plato’s Euthyphro, which examines whether prosecuting one’s father is a pious thing to do. Sophocles’s Antigone explores a similar theme by showing the struggles of Antigone and the dispute between obeying the laws of the gods, familial loyalty, and social decency.

In the last article on the Confucian Puzzle, valuing family as much as moral integrity and human worth failed to justify why the son should cover for his father’s theft. For example, if Xiao (love for the family) is understood as a convenient setting to develop love towards others (Ren), then the son is morally obliged to report the father since he would be in a position of extending family love towards others and sacrificing the means of family love towards the more important principle of loving others. On the other hand, if Xiao is of equal importance or at least as important as Ren, it is unclear how one should decide which principle to compromise. To assume that turning the father in to authorities would do more harm for the father than the sheep owner is only speculative. Imagine that the stolen sheep was the sheep owner’s only income, the last sheep in his stock, or the only meal left for his family. In such a case, surely covering for the father would do the sheep owner more harm since he would have no means of claiming compensation or recovering his stolen stock. Finally, the claim that Xiao should simply never be compromised also does not answer the puzzle. In a life-threatening situation, there is no moral reason why the son should not report the father as valuing Xiao as tradition does not adequately justify why valuing family love is more important than all other virtues.

Another approach to solving the puzzle is mentioned in Li’s (2012) article. The solution involves understanding different value systems. If family as a whole is more important than each individual and is prioritised in society, then the son should preserve his family’s flourishing by covering his father’s crime. But there are two problems with this conclusion. On the one hand, the meaning of ‘family flourishing’ is unclear. Does family flourishing refer to an increase of wealth, the closeness of the whole family, or the well-being of each family member? Likewise, individual flourishing can also mean wealth, psychological and social well-being, or even the capacity to face adversity (Faulk et al., 2012). To sacrifice individual flourishing for family flourishing is a tricky argument as there are no guidelines as to how one determines that the quality and quantity of the family’s flourishing should outweigh the quantity and quality of the individual’s or the sheep-owner’s flourishing. Such an argument essentially involves the utilitarian approach of satisfying the preferences of the majority over the minority.

When applied at large, ordering society based on familial flourishing could lead to discrimination and prejudice. Suppose that a society made of family units valued harmony within and between families. Reporting abuse in a family would risk disgracing the family, upsetting other family members, and exposing the culprit, resulting in strained family relations. So, it could be argued that keeping quiet about family abuse would be justified as it would avoid risking any damage to familial flourishing. Structuring the economy around familial wealth, where businesses and companies were all run by families, would also create an unfair advantage to in-group members (those in the families) while discriminating against qualified non-familial members. This produces a counter-intuitive moral system and goes against the Confucian ideal where humaneness is developed by setting others up and achieving access for others (The Analects, 6.30). The emphasis on Xiao, while relevant to understanding ideas of learning and devotion during the Zhou era in China, need to be taken in context. As Eno (2015) highlights, “References to filiality concern sons… it seems to tacitly assume that its readers, and the only people who matter in public society, are men. In this sense, it fails to escape the social norms of its time” (p. 6). A fundamentalist position of structuring society around familial flourishing over individual flourishing fails to take Confucian teachings and apply them to the real world.

Huang (2017) provides an alternative understanding to the case. He starts his discussion by explaining Xiao more broadly. When describing filial piety or family love, it is often assumed that to be filial involves being obedient. For instance, Confucius says that “the young should shoulder the hardest chores or that the eldest are served food and wine first at meals” (The Analects, 2.8), and that only by following and observing the father’s conduct three years after his death can the son be called filial (1.11). The act of complying with the father’s authority and dutifully carrying out his conduct shows that filiality is associated with obedience. However, as The School Sayings of Confucius (Kongzi Jiayu) states,

If a father has a remonstrating child, he will not fall into doing things without propriety; and if a scholar has a remonstrating friend, he will not do immoral things. So how can a son who merely obeys the parents be regarded as filial, and a minister who merely obeys the ruler be regarded as loyal? To be filial and loyal is to examine what to follow. (bk 9, p. 57)

Rather than understanding filial piety as blind obedience, the passage emphasises the importance of ‘remonstration’ or arguing in protest. As a result, it is only right to obey one’s parents if they ask about right things. If they ask for obedience for morally corrupt things, such as murder, then the filial child should protest against the parents’ actions. In the Xunzi, this idea is reinforced,

There are three scenarios in which filial children ought not to obey their parents: (1) if their obedience will endanger their parents, while their disobedience will make their parents safe…(2) if obedience will bring disgrace to their parents, while disobedience will bring [sic] honor to their parents…(3) if obedience will lead to the life of a beast, while disobedience will lead to a civilised life (29.2)

The passage concludes by stating that only by understanding when to obey and when not to obey can one practice reverence, respect, loyalty, and act with sincerity. Although obedience is important, since acting correctly and obediently is what creates harmony and respect, obedience without thought and reflection amounts to empty ritual.

The way in which remonstration is carried out is also important. Referencing the Book of Rites, Huang (2012) shows that filial children should not shout or assault their parents. Instead, one ought to “remonstrate with low tone, nice facial expression, and soft voice” (Liji 12.15). The important point is that the manner in which remonstration is carried out needs to be gentle and considerate so as to continue being respectful and righteous. Shouting or assaulting, even with good intention, could make the situation worse by upsetting one’s parents and resulting in disharmony. So, while it is wrong to stop remonstrating, it is also wrong to remonstrate incorrectly, that is, in a way that makes the situation worse and one’s parents even more angry. The extent to which remonstration should be carried out is also highlighted in the Book of Rites. As passage 12.15 points out, one ought to remain filial,

If they [one’s parents] are happy, you ought to resume gentle remonstration; if they are not happy, however, instead of letting your parents cause harm to your neighbors, you ought to use an extreme form of remonstration. If at this extreme form of remonstration your parents get angry and unhappy, hitting you with hard whips, you still ought not to complain about them; instead you ought to remain reverent and filial to them.

Rather than letting one’s parents commit a bad deed, efforts at remonstration should not be given up. Even when physically and mentally exhausted, the child has a duty to remonstrate repeatedly until the parents stop committing their wrongdoings.

When applying the understanding of Xiao as obedience and remonstration to the son-covering-father story, then it is clear that the actions of the child must be conducive to ensuring the parents’ well-being. That is the first concern for the child. The reason why Confucius emphasised non-disclosure or concealing the father’s wrongdoings relates to remonstration. Remonstrating works best if protesting against the parents’ actions is conducted in an intimate setting and carried out in a gentle manner, creating “an atmosphere favourable to such remedies” (Huang, 2012, p. 32). While there is no guarantee that giving parents space will create a favourable situation for correcting their wrongdoings, the son’s non-disclosure becomes a morally correct action as it aims to rectify not only the wrong carried out by the father but also giving the son a chance to confront and rectify the wrong-doer.

It should be noted that Confucius does not say that a filial child obstructs justice when authorities are investigating or that authorities should not investigate the case. Concealing, in this sense, does not refer to active concealment or taking part in the father’s crime. Rather, Confucius emphasises the importance of passive concealment (not reporting the father) as the correct action to remonstrate until the father corrects his actions. The passage in which the ‘son-covering-father’ story takes place does not state what correcting the father’s actions looks like. The idea of justice in Confucianism needs to be further explored.