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Legal Culture as a Constraint on Democratic Development

by Peter William Wang

Shang Yang (c. 390–338 BC), Chinese statesman and reformer who played a pivotal role in the development of Legalism. Photo: Fanghong via Wikimedia Commons.

Among the ideological and institutional constraints that China faces in transitioning from a traditional to a modern democratic society—that is, in advancing what Jürgen Habermas has called the “incomplete project” of modernization—one of the most important is its legal culture. At the core of this culture are two traditions of Chinese legal thought.

These two traditions have been balanced in different ways over time, yet today they have achieved powerful integration in what is known as Orthodox Legal Thought, which provides the ultimate balance for authoritarian governance between hierarchical social differentiation and formal uniformity of punishment-oriented application.

The two traditions are Confucianism and Legalism, and the tension between them is ancient. The tension reaches back even prior to the establishment of China’s first unified state under the Qin dynasty (221–206 BC), to the Pre-Qin period (Confucius lived from 551 to 479 BC). Their integration as Orthodox Legal Thought in China is similarly old, tracing to the Western Han dynasty (202 BC–8 AD), especially during the reign of Emperor Wu of Han (141–87 BC).

The opposition between Confucianism and Legalism lies in their different views on the ideal social order and the methods to achieve the ideal. The difference is between two different types of “rule,” or Zhi, whose Chinese character is 治.

Whereas Confucianism advocates “rule by Li” (礼治 Li Zhi)—that is, rule by “propriety”—Legalism advocates “rule by law” (‘法治’ fa zhi).

A great deal hangs on the difference, including for society and politics today.

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