Law and ritual in Chinese philosophy

The contrast between li, conventionally translated as ‘rites’ or ‘rituals’, and fa, conventionally translated as ‘law’, marks a distinction in Chinese political theory as to the nature of political order and the preferred means of achieving such order. Lizhi, traditionally associated with Confucianism, refers to political order predicated on and achieved primarily by reference to the li or ‘rites’, that is, traditional customs, mores and norms. In contrast, fazhi, associated with Legalism, refers to political order attained primarily through reliance on fa or ‘laws’, that is, publicly promulgated, codified standards of general applicability backed up by the coercive power of the state.

The tension between these two dominant strategies for achieving social and political order – lizhi and fazhi – is a theme that began in the classical tradition and has persisted down to the present day, even though the understanding of li and fa and the relation between them has changed and evolved over the years. For example, some thinkers saw li as context-specific, flexible norms or standards of a particular culture. Others saw li as more permanent, general standards. Some objected to the codification of li and fa; others favoured it. Some saw li and fa as interdependent, equally important and mutually reinforcing; others relied predominantly on one to the detriment, if not total exclusion, of the other.

Accordingly, it is not possible to speak of a single conception of li (lizhi) or fa (fazhi). Nevertheless, one must extract or highlight certain general or dominant features that tend to characterize lizhi and fazhi and to distinguish the one from the other, if one is to make use of this important contrast as a hermeneutical tool for interpreting, explaining and understanding a central debate in Chinese political philosophy. In reflecting on the importance of the lizhi versus fazhi distinction, five salient points emerge.

First, advocates of lizhi have tended to favour less formal means of conflict resolution than advocates of fazhi. The former believe that informal methods foster more particularized justice; the latter believe such methods provide excessive discretionary authority to those in power and thus foster abuse. Accordingly, publicly promulgated rules or laws are necessary.

Second, and a corollary to the first, fa or ‘laws’ are more formal norms of greater general applicability than the li, which in most instances consist of the web of informal context- and culture-specific rules that provide guidance for appropriate civil interaction in daily life among the various members of a certain community. Fazhi, therefore, is more of an externally imposed order that requires of the individual compliance more than participation. In contrast, lizhi proponents view order as emerging out of a particular context, a particular community of people. Society is what those who comprise it choose and make it to be. Participation rather than mere compliance is central.

Third, and again a corollary, lizhi and fazhi mark a contrast in the goals and aspirations of society. Advocates of lizhi tend to be more optimistic about human kind and the possibility of achieving a harmonious social order in which each person is able to find their place and play their chosen role. They tend to see society, social order, humanity, as an achievement. If human beings are willing to put aside narrowly selfish and provincial concerns, if they are willing to defer to the excellence of others and to cooperate in the project of creating a harmonious social order in which each has a place, then such an order is possible. In the process, one becomes a better person. Put differently, one’s potential for individual and personal growth is inextricably bound up with the fate of society.

In contrast, many of the fazhi persuasion take a dimmer view of human nature. Humans are by and large self-interested beings. Left to their own devices, the strong will exploit the weak; the powerful will abuse the powerless. Impartial rules are necessary to limit what one person can do to another. Laws provide this minimum layer of protection, this floor below which society cannot sink and remain a peaceful, and arguably just, society. Of course law may play a more positive role as well; recourse to general laws may simply be an efficient way to ensure an equitable distribution of social resources, for example. At the end of the day, however, advocates of fazhi have been primarily concerned with the use of fa as a corrective to the abuses and weaknesses of li. Thus law’s role in ensuring a minimal floor of protection, a base equality, has been underscored, explaining in part the rather negative image of law in China through the ages. In contrast, the positive side of law, the empowering aspect of rights, the ability to use law as a vehicle for social change, has been central to many Westerners’ conception of law.

Fourth, as might perhaps be expected, there has been no clear victor in the lizhi versus fazhi controversy. No system is perfect; no one has yet achieved the perfect means for realizing social order. Many of the same issues confront every society: how to achieve fairness and justice for all while at the same time recognizing the uniqueness of each person and each situation, and thereby achieve justice for each; how to provide those in power the necessary discretionary authority to mete out a particularized justice without falling prey to personal prejudice, bias, corruption and abuse; how to ensure that individuals have sufficient rights to shield themselves against each other and the state, and yet simultaneously encourage people not to wield those rights as weapons in endless litigation aimed at maximizing one’s own personal interests to the detriment of society’s interests; how to ensure that law will be a tool of the disempowered to effect social change and not simply a tool for exploitation and legitimation by those in power; how to implement a formal rule of law with institutional integrity and independence, overseen by professionals, and yet prevent the institution from becoming overly bureaucratic and law the esoteric province of the professional lawyer. The li versus fa distinction, although not a perfect fit, is useful as a way to organize Chinese thinking on, and approaches to, these and similar issues.

A fifth and final introductory point is that both lizhi and fazhi, as they have developed in China, have failed in two important respects. First, they have failed to provide effective restraints on the power of the ruler, especially institutional restraints. Second, they have failed to adequately address the need to protect the individual against the state. Again, this failure is largely institutional, although like the failure to adequately restrain the power of the ruler, it can also be traced back to certain underlying philosophical assumptions common to both the lizhi and fazhi traditions. These assumptions include the rejection of three key assumptions of the western liberal tradition: (1) that someone to treat someone with respect and as one’s equal requires that one refrain from imposing one’s view on them (the normative equality premise); (2) that each person knows what is best for themselves and/or people reasonably disagree about what constitutes the good (the epistemic equality premise); and (3) that the interests of the individual and state may not be, and arguably are not, reconcilable.