과제번호(assignment number): 1
Law cannot stand alone without ethics. The Confucian system of law and philosophy insists that Lǐ, ideally, should be the fundamental binding moral within an individual and the society. Lǐ, which can be translated as ethics, is the righteousness that noblemen adhere to voluntarily. Only Lǐ binds noblemen, thus those bound only by law are those manipulated by the mechanism of fear. In both Confucian teaching and Raz’s paper, there is clear evidence that an approach to justice without ethics simply cannot stand.
It is commonly supposed that there is a general obligation to obey the law. In extreme, an individual questioning the justification of the law is sometimes perceived as an anarchist or a rebel, regardless of the laws’ justness. Somehow it is widely believed that we owe obedience to law overall. However, when probed deeper, the law itself provides no general obligation. First, there is no moral obligation. ‘Moral duty to obey the law exists only to the extent that there are other, independent moral duties to obey each of the laws of the system. It is merely their shadow.’ (Raz, 1985) This shows that law in a just state is a repetition of its moral, and that law in an unjust state will be an existing moral obligation. Nonetheless, the law in an unjust state will not operate since ‘obligation to obey only exists in a just state.’ (Raz, 1985) Secondly, one does not have a legal duty to obey the law. ‘One has a legal duty to obey the law because one has a legal duty to obey this law and that and so on until one exhausts their list.’ (Raz, 1985) This logic depends on is deadlock and circular which does not prove anything. Thirdly, the assumption that the obligation to obey the law, not ethics, prohibits illegal activities is morally degrading. Anyone innocent would be insulted if assumed that the reason she/he doesn’t commit rape or murder is to simply obey the obligation. The presumption that obligations control our decisions can be morally perversive. So at best, the obligation to obey the law is a mere sword of which operates under the moral system.
Along with the fact that the law does not presuppose any obligation to obey, the law can be observed as either of these two: just law and unjust law. As for just laws, they work along ethics. Noblemen would perhaps conform to these laws rather than feeling they need to obey the laws. For those who refuse to take on the ethical law as it stands, they will receive punishment according to the moral. As for unjust laws, it cannot work for the noblemen. Confucius believed that noblemen with rén will not be bound by fear as he stated: “A man of ethical integrity is bound to have courage.” (憲問, 14.4) Applying this concept onto the two binding force classified by Thomas Hobbes: physical and non-physical, the noblemen cannot be bound by an unjust law. For noblemen, non-physical binding cannot truly bind them since there is no imperative obligation to obey an unjust law and they have the power to overcome the psychological intimidation. Therefore those who overcome the fear of physical pain will be completely free from the unjust law. To sum up, the overall mechanism of law is fear. The petty and lowly fear and obey the just law and the unjust law equally. The noblemen conform to just law with pleasure and overcome the fear that unjust law imposes. There is nothing in the law that can bind noblemen, thus proving that being bind singularly by law indicates debasing oneself as petty and lowly.
The Confucius believed that noblemen are bound by Lǐ, as he stated: “When a nobleman learns broadly and refines himself, and when he constrains himself with Li, how can he be disrupting the order!” (雍也, 6.27) (顏淵, 12.15) The only thing binding the noblemen is Lǐ, which is done voluntarily by her/him. The root of Lǐ is rén, which is the ethical integrity that fuels ethical decisions and actions within noblemen. Rén prohibits noblemen from choosing lì, benefit, over rightness. With rén, noblemen willingly choose to adhere to Lǐ. Confucius further emphasized how it is important for state leaders to conform to Lǐ, as he stated: “If people in high positions are fond of Li, the rest of the population can be easily mobilized.”(憲問, 14.41) Rules that conform to Lǐ is the fundamentals of running a just state.
Lǐ cannot be applied in a monotonous manner. The ruler needs a combination of timing, strength, flexibility, harmony, which rely on her/his discretion. Confucius introduces the concept of music (樂). Mechanical judgment and appliance of Lǐ would be a mistake, as the Master said, “Poetry should provide you with the motivation. Lǐ should give you a standing. Music will make you complete.”(泰伯, 8.8). It implies that a leader should be capable of flexibly applying Lǐ, by the practice of music. To contain rén within the practice of Lǐ, and practicing Lǐ like a musical piece would be the steps leading to perfection.
Legalists attack Confucian teachings of Lǐ as unrealistic. The biggest weakness is that not everyone is noble, with proper rén and Lǐ to control themselves. It is natural to question how Confucian teaching will cover the petty and lowly. The axiom of Confucian philosophy is that everyone has the equal ability to learn. Therefore the basic response to this question is the proposition that the petty and lowly can also learn to become upright. A supplementary response is that for those who deserve the punishment, there will be ruthless and appropriate consequences by adhering to Lǐ. Therefore, Confucian teachings of Lǐ is not a mere ideal, rather a harmonious approach of ethics and reality.
There can also be a problem of deciding the standard of a justifiable disobedience of unjust law. Since the justifiable reason for civil disobedience is Lǐ, which is an internal standard, some concern that people might abuse this loose bar. Nevertheless, the Confucius teachings emphasize that noblemen should look for the adequate timing and at the same time stay vigilant of self-rationalizing and abusing Lǐ for one’s benefits, lì.
Having discussed both the shortcomings of law and the significance of Lǐ, it is undeniable that both sides have their own limits. Nonetheless, the ethics have the superior ground in that its fundamental basis is the trust in people’s ability to learn. The legalist approach can never acquire the level of the Confucian philosophy in that its basic mechanism is fear and obedience. A nobleman with rén who abides by Lǐ would no doubt be bound solely to the ethics, not by the law.
Raz (1985). The Obligation to Obey: Revision and Tradition. 1 Notre Dame J.L. Ethics & Pub. Pol'y 139 Retrieved from http://lawlec.korea.ac.kr/
Confucius. (n.d.). Analect. Retrieved from https://lawlec.korea.ac.kr/?page_id=48
제출일시(submitted at): 2018-11-21 22:01:29