The important concepts of law and justice are necessary foundations that lend legitimacy to a state, in particular and to a society and/or a civilization, in general. Owing to the intrinsic differences in social organizations the concepts of law and justice have varied definitions and approaches in the West and the East. A valid comparison of the Western and the Eastern approaches to these concepts make the comparisons and the contrasts extremely enlightening (Nov 17).
The Western legal culture primarily evolved from the Judeo-Christian sacred texts, the Greek philosophy and logic, and the Germanic-tribal or folk (law) traditions. After 380 AD both the Pope and the monarchs all over Europe ruled in unison. The religious and the secular legal doctrines helped strengthen the individual rights and the mercantile law. After 380 AD Papacy lost its hold that it exercised over most parts of Europe. With the rise of the State the rule of the Pope was restricted and secularism held sway over most of Europe. The two main legal systems that emerged during this time were the Romano-Germanic legal rationalism on the mainland Europe and the common law in England. The modern jurisprudence took birth during the ensuing centuries. The two main schools of legal thought that are characteristic of the Western legal thought are naturalism and positivism. Naturalism holds that that the man-made laws must follow or adhere to the universal principles of justice intrinsic to human nature. Positivism that emerged around the eighteenth century holds that law is made and enacted by man-made institutions, like the legislature. According to the positivists the laws are essentially man-made-rules so they must be validated from time to time (Nov 17).
The Eastern legal heritage is completely different from that of the West. As an example, the Chinese definition of law (fa) incorporates four themes, namely, order, rites, human made law and finally system of control. The Chinese emperor was the considered by the populace as the sage ruler who enjoyed the divine mandate to rule. The emperor received his mandate from the heaven and thereby was the sole source of all the political, the moral, and the legal authority. Moreover he being the father-figure he treated his subjects as his children (Bell and Hahm 1-2).
The Chinese laws were “quasi-religious” (Confucianism), on the one hand and predominantly secular (Legalism), on the other hand. In addition China had no significant laws governing civil matters. The civil matters were decided by the family elders, village councils and merchant guilds, as may be the case (Nov 17). The Chinese legal heritage like the Western legal tradition also stems from two schools of thought-- Confucianism, and Legalism. Confucianism emphasizes moral cultivation. Confucianism like the Western natural theory advocates that only morals can ensure and redress wrongs. Confucius believed that in order to attain stability and righteousness in society the individuals had to inculcate virtue ‘De’. Only by internalizing a sense of righteousness can social harmony be attained by practicing ‘Li’. According to Bell and Hahm, “He expresses values of universal significance for those concerned with leading moral lives.” (3) According to Confucius ‘Li’ was created by ancient sage rulers linking man with the heavens. The Confucian concept of ‘Li’ is incomplete without two important concepts, ‘junzi’ (superior man) and ‘ren’ (benevolence). The disadvantage of ‘Li’, however, is that it is basically a hierarchal set-up in both the family and in the society. Another important aspect of the Confucian philosophy is ‘wu lun’ or the concept of mutual shouldering of responsibilities and liabilities. Both ‘Li’ and ‘wu lun’ are based on the centrality of the family unit that in the Chinese society is the core of social stability and harmony. Contrary to Confucius’s wishes during the latter centuries the concept of ‘Li’’ was codified by the Emperors. By the end of the nineteenth century the whole of East Asian region was “Confucianized” (Bell and Hahm 1-4).
Legalism is the opposite of Confucianism. As Confucianism relates to the natural philosophy in the Western legal system so Legalism can be equated with the Western theory of positivism. Contrary to the Confucian theorists, the Legalists theorists believe that laws and not morals are essential to ensure harmony, stability and order in the society. Legalists hold that it is in the interest of the state that harsh written laws with even harsher punishments are in place in order to have a stable government. Moreover these laws are to be enforced irrespective of status or rank of the individual. This is a must for good administration (Nov 17).
The Western concept of the ‘rule of law’ is incompatible with the Confucian legal philosophy with its emphasis on the hierarchal aspects of ‘junzi’ practicing ‘li’. Litigation which is the most important facet of the Western law is looked upon with complete disdain by the Confucian theorists. In the Eastern society mediation is the favored method to resolve disputes. Mediation is especially crucial in cases involving “human association that depend on spontaneous and informal collaboration” specifically in the cases where the disputing parties have future incentives to continue collaboration. Mediation is the favored method of conflict resolution in the East so there is less emphasis on the procedural aspect of law as well. There are no procedural or institutional safeguards ensuring that a particular “mediator is not biased against a socially inferior or weaker partysocial harmony is achieved at the expense of injustice, and the party who has been genuinely wronged gets less than his or her due”. Inspite of its apparent disadvantages and weaknesses mediation also has its merits. Had it not be so mediation would never have gained ground in the Anglo-American legal tradition in the present century. Though what must be ensured is that the imbalance in the process of mediation should be revised in the light of the principle of the rule of law. The principle of the rule of law till date continues to be the sole standard necessary for human prosperity (Bell and Hahm 18-19).
In the Western legal philosophy and practice individualism is a key concept. While in the Asian legal philosophy collectivism is given more credence. According to Confucius, family ensures the sense of intimacy and caring that the Western societies lack. Family is the place where individuals learn the ties of affection that eventually spread to the whole society at large like the village council at a smaller scale and the government at the larger level (Bell and Hahm 22).
In the Western law the target, so to stress, is crime and its deterrence, and hence the emphasis on punishment. While in the East the target of the law and the justice is human relations. Owing to this basic difference the Western and the Eastern justice systems have different and often contrary approaches to the aims and objectives of law (Bell 330).
Furthermore, in the West crime is essentially an individual act. The criminal or the offender violates the state criminal law. Therefore, in the West crime is seen as a conflict between the individual / criminal /offender and the state. While in the East such is not the case. In the West the state-centered concept of crime inevitably leads to an individual / criminal / offender-centered justice. The Western justice system is imbalanced because it marginalizes the rights of the victim because the criminal justice system is criminal / offender-centered. The Western criminal / offender justice system is retributive in nature. The main attribute of the Western criminal justice system is to punish the offender l criminal or the wrong doer. Hence, the Western legal system in essence ‘conflict approach’ (Bell and Hahm 18-22).
In the East, especially in the Confucian moral and legal philosophy the wrong or the crime is actually perceived as a harm done not only against the particular individual or the victim involved but also against the society. This harmful act of omission or commission to a particular individual or the victim affects social relations not only between the offender but also the relations between the offender and other social relations. The other social relations affected by the harmful act of the offender / criminal include the family of the victim, the immediate community in which the victim lives and the society at large (Bell 330-336).
In the East contrary to the West, the crime in the state-centered public matter, but is a “relational concept.” Therefore the concepts of law and that of justice in the Eastern society reflect a group orientation rather than an individual orientation as in the Western society. Consequently the aim of justice in the East is not to punish the offender but to repair the harm done by the offender / criminal. The main objective of the Eastern justice system is to resume the harmed relations. The harmed relations are repaired not through the means of punishing the offender / criminal but by resolving the conflict by arriving at a fair solution (Bell and Hahm 22).
In short the Eastern concept of law and the approach to justice adopts a non-conflict approach in opposition to the conflict approach resorted to by the Western concept of law and the subsequent approach to justice. According to Bell and Hahm, ”the offenders are encouraged to confess the truth, express remorse and consequently receive forgiveness from the aggrieved party.” The Eastern process of formal and informal punishment disbursement of justice is achieved through or backed by formal but more importantly informal restoration of broken human relations (Nov 17).
The Western concept of law and justice is chiefly characterized by individualism of the social organization. The West mainly holds the individual responsible for the act of omission or commission and punishes him according to the laid down precedents and the rules and regulations. In the East, however, the concepts of law and that of justice are characterized by collectivism in the social organization. The Eastern collectivist social organization is the source of re-establishing the lost attachment, honor and harmony. Hence, the Western concepts of law and the approach to justice is essentially retributive in nature and is marked by the analytic mode of thinking. The Eastern social organization with its peculiar concepts of law and the approach to justice mainly encourages holistic manner of thought (Bell and Hahm 19-23).
The ultimate aim of all laws and the various approaches to justice in human affairs is the betterment of society. Both the Western and the Eastern legal systems is to come up with ways and means that are helpful in achieving harmony and stability in the society at large. The Eastern approach to law and justice has a more spiritual orientation. The emphasis on the ethics and the morals which are the essential ingredients of the spiritual orientation of the Eastern law are due to the towering influence of the ageless sage—Confucius. The hallmarks of his teachings when translated into the legal realm are the soothing, and the calming presence of the superior man or ‘junzi’. The superior man is not so because of his lineage but because of the superior moral values he harbors and in turn spreads into the rest of the social order (Bell and Hahm 23).
The Eastern legal precepts of forgiveness and not retribution are aimed at the correction of the offender. The Eastern law affords the invaluable opportunity of rehabilitation to the offender so that he or she can turn into a progressive member of his or her family, a good member of the immediate community he or she lives in and a righteous contributor of the healthy and the good values to the society at large. Tern law the remedial influence and inherent nature is highlighted. The principle behind the retributive nature of the Western law which grants punitive punishment as a cure for curbing crime is the concept of deterrence. The widely held view is that punishment has a deterrent effect on the offender or the criminal. The natural corollary is that the harsher the punishment the less likelihood of its repetition. An inherently flawed argument as research proves that strict and in cases inhumane and unusual punishment has no direct or indirect co-relation with the decrease in the incident of crime. An illustrative example is the application of the capital punishment.
Numbers seldom lie and statistically it has been proved time and time again that the enforcement of the capital punishment has little effect on curbing murder or homicide in the states that apply the capital punishment rigorously, and as a matter of routine as opposed to those states that have a moratorium on the death penalty. Therefore according to the Eastern, Confucian influenced legal philosophic norms, forgiveness or benevolence is much more effective in curbing the rate of crimes. In simple terms a tooth for a tooth, an eye for an eye, and a life for a life achieves little but more remorse and physical and psychological trials and hardships for both the family of the dead victim and that of the offender on death row. According to the Confucian moral principles of ethically motivated forgiveness in such an incident leads to regeneration and progressive solution to the problem or the crime. The act of forgiveness spiritually alleviates and in more than one way lead to mending of broken social or filial harmony. Such an act of forgiveness has far reaching and more concrete results than deterrence and the resulting retribution because it is a fact that by the execution of the offender, in the present case the murderer nothing but more remorse results while at the same time the societal imbalance persists all the same but is even more aggravated as the social rifts between the aggrieved families and the society at large becomes more pronounced before and after the state- sanctioned, institutionalized killing or the judicial execution. Not to mention humanity is the major loser. After all who can disagree with the fact that in keeping with the Confucian moral philosophy of benevolence and forgiveness the offender would be ostracized socially in a manner that he or she confesses his or her guilt, expresses the heart felt grief and in turn is forgiven by the family of the deceased (Nov 17).
Rudyard Kipling wrote that East is East and the West is West and the twain shall never meet. The actual experience, however, is completely the opposite. Agreed that the East is East and the West is West but the twain can meet at the crucial juncture of legal sphere. In the twenty-first it is in the best interest of the human race that the collective legal wisdom of both the East and the West is combined and a better legal atmosphere is created amalgamating the best of the Confucian philosophy, on the one hand and that of Lord Macaulay and of Edmund Burke, on the other hand to make the world of ours a better place to live in (Bell and Hahm 18-22).
Bell, Daniel, and Chai-bong Ham. Confucianism for the Modern World. Cambridge: Cambridge UP, 2003. Print.
Bell, D. A. Beyond Liberal Democracy: Political Thinking for an East Asian Context. by Daniel A. Bell. Princeton: Princeton UP, 2006. Print.
Note: The third specified source is the lecture notes provided by the client