In East Asia, Confucianism has always been regarded as the cultural basis of political order and social norms. However, there are still differences that emerge in its application especially in western and East Asia. Confucianism is interpreted and presented differently in the hands of various people. The way that Confucianism is understood in the west is different from how it is used in East Asia. In this paper, a comparison of western and East Asian countries systems of law and justice will be compared to understand the origin of the differences and why they exist.
Confucianism as a living tradition flows from the past to the present and the Confucian doctrine underlines the life of the people and how they practice political or religious activities, (Yao, pg. 19). Confucianists hold a strong belief that the governance of a nation cannot depend on strict and harsh laws and punishments but the criminal law must be based on moral conventions. In East Asian countries, it is entirely believed that administration, legislation and adjudication of law should be analyzed through the moral principles lenses. Thus, social order is preserved through moral persuasions as the primary method, which is also assisted by the laws and punishments that are set.
The Western and East Asian legal systems have both differences and similarities. One similarity between these two systems is that they both have humanizing aspects. The concept of leniency towards those without legal capacity or those who are of limited capacity such the very young or the mentally disabled comes out in both systems of law and justice. For example, from the regime of Sanzong Sanyou , there comes the concept of leniency. Also, the regime of Xuqiu Shenxing also advocated for leniency for those who cooperate with the authorities (Yao, pg. 254). Similarly, in the Western systems of law and justice, there also existed and still exists leniency towards people without legal capacity and those of limited capacity. In many bizarre murder cases, many victims are subjected to forensic psychology to determine whether the person is mentally fit to stand trial or not. Also, there are instances where governors or presidents show mercy to people especially those incarcerated for life or have long prison terms.
What is more, there is yet another similarity between the Western and east Asian law and justice systems. There are must be multiple reviews prior to the execution of death penalty. In the Zhuzifushen dynasty in Chinese traditional political regimes, it provided multiple appeals at different levels before the person was executed. The person is given more chances to convince the law why he or she should not be executed and if one appeal goes through, the convicted person is not executed. Similarly, in the west, the law allows for multiple reviews of a case of a person that is condemned to death through execution. Should the appeal go through, then the person’s life is spared and may be sentenced to life or have the sentence commuted.
In regard to criminal laws and procedures, in both western and East Asia, torture was practiced intensively in judicial proceedings. The trial system highly emphasized on the necessity of confessions by the person that is accused and thus torture was used as the means of extorting it should it be felt like the accused is nor giving satisfactory information. Torture was also used against witnesses who were considered not to have given enough information. Lastly, any person that invoked their appeal would have to endure beatings before their case was heard.
In as much as both the Western and East Asia law and justice systems have similarities, they also have very striking differences. In western countries, the governance of a nation depends on strict laws and harsh punishments. The set rules are to be followed and even the smallest mistakes are highly punishable. Each and every person in the society is expected to respect and follow the set rules, to which a consequence follows should they not be followed. In East Asian countries legal system operates in such a manner that it is from the moral behavior then the law follows, that is morality first and legal code second. On the contrary, in western countries, it is the law first then the moral behavior.
Moreover, harmony is the highest value in East Asian culture. Confucian adjudication prizes harmony above anything else. For instance, through the many years of Chinese history, the Chinese society continues to hold harmony as the highest ideal in resolution of disputes. In the ancient times, when resolving disputes the officials avoided lawsuits as much as possible and focused on using mediation to solve the cases, reaching harmony between the persons, nature and the society. They strove very hard to attain a Confucian Utopia of an ideal society without lawsuits (Yao, pg. 78). On the contrary, the western system of law and justice put so much emphasis on punishment of offences by the laws set, leaving absolutely no room for peacemaking and finding solutions without the involvement of the law makers.
The ancient legal system in the East Asian countries emphasized on combining the three factors of Confucianism; the ways of natures, the law and the social values. The combination of these three are what molded and made the law and justice system that governed the people. While these three factors aimed at creating a society that did not fully rely on the set rules, in the western it was totally different. The western countries only placed importance on the use of the legal code of the nation, following each and every set rule in it obediently.
Another striking difference is the differentiated law that existed in the western countries and did not exist in East Asia. Western law, especially the modern western law is non-discriminatory law, where everybody regardless of age, race, gender, sex, education or rank is equal before the eyes of the law. In ancient East Asia, especially in China there existed differentiated law, where persons of different ranks were treated differently. This is remains as the basic principle of ancient law in China that regulates the relationship between the monarch and his ministers, the high and officials , husband and wife , parents and children , the elder and the younger as per the regulations of Confucianism.
In ancient China for instance, the law was divided into two categories; the Xing and Li. The persons at the lower ranks known as the Xiao Ren were under xing and the persons at the higher ranks were under Li. This kind of differential law reinforced the existing hierarchies in the society. This is why an offence committed by a person against his senior was punishable through severe means unlike when the mistake was committed by a person against another person of similar rank. If the offence was committed by a person against his junior was less punished or not punished at all .