Law and Religion

1. Law and Religion Law and Religion in Traditional China 1

2. Learning Outcomes • To examine the nature of law and religion in traditional China • To identify the religions in traditional China • To analyze the development of religions in traditional China • To examine the interaction between religions and the State in traditional China • To examine how Confucianism sees constitutionalism and human rights

3. Issues • Meaning and Sources of Law in traditional China • Religions in traditional China • Religion and State in traditional China • Confucianism and Constitutionalism • Confucianism and human rights 3

4. Meaning of Law Penal in nature Functional as a tool for the rulers To maintain good order, build strong and efficient state Originally had no relationship with morality 4

5. Sources of Law Li v. Law (Confucianism v. Legalism) Confucianization of law 5

6. Religions in China: General Diffused (weak institutionalized religions) Decentralized Eclectic “this-worldly religion” (Max Weber): religious beliefs have little to do with transcendental order and divine godheads; primacy and autonomy of humanity 6

7. Religions in China: Classical religion Confucianism Daoism (Taoism) Buddhism 7

8. Classical Religion Ancestor worship -belief of the existence of soul after death From Shang Di (上帝) to Tian (or Heaven)(天) -the personified supreme deity was changed to an impersonal, transcendental force -mandate of Heaven (天命); fate (命) Yin-Yang (陰陽)and Five elements (五行) Pantheon of subordinate deities 8

9. Confucianism Ren (仁) -benevolence,’ ‘humaneness,’ and ‘compassion’ -two persons: social Li (禮) -rites -rules of behavior varying in accordance with one’s status defined in the various forms of social relationships -five human relationships: ruler-minister; father- son; elder-younger; husband-wife; friend-friend 9

10. Confucianism Religiosity of Confucianism -a different kind of religiosity -not organized or institutionalized -a different kind of divinity -not personal but also not totally impersonal -moral fulfillment by the person is also a religious fulfillment 10

11. Daoism Dao (道): the principle, the way, the word de (德): dao is by nature virtuous Passive attitude of retreat or moving in accordance with the propensity and force of the dao – the magical or physical means 11

12. Buddhism Only foreign religion that can take root in China Mahayana Highly institutionalized religion Height of Buddhist influence during the Tang dynasty Chinese Buddhism: Assimilation of Indian Buddhism and development of native Buddhism 12

13. Buddhism Three sects under the creed: Tiantai (天台宗), Huayen (華嚴宗) and Faxian (法顯宗) Focus on doctrines that implored people to treat their fellow humans properly and embark on various stages of enlightenment, by way of compassionate deeds to help others lead a better earthly life and to start their own paths toward enlightenment 13

14. Buddhism Zen Buddhism (禪宗) Spiritual liberation and enlightenment by uncovering and acknowledging one’s innate self, one’s Buddhist nature, trying to remove all thoughts and desires and connect with the universal mind during meditation 14

15. Buddhism Pure land sect (淨土宗) All men were capable of salvation on the basis of the universal Buddha-nature and the unlimited mercy available to the cry of faith The Pure land was the paradise and can be entered by devotion to the Buddha and by meritorious deeds but above all by faith Most popular school of Chinese Buddhism 15

16. Struggle between the religions Han syncretism: the theory of interaction between Heaven and Man (天人感應) by Han Confucianist, Dong Zhongshu (董仲舒) integrating Confucianism and classical religion Heaven expresses its approval of good and punishment for evil by causing a variety of extraordinary phenomena to appear in the skies and on earth Confucianism became the ethicpolitical orthodoxy not only for Han but also for all subsequent major dynasties 16

17. Integration of the religions Sung Syncretism: Neo-Confucianism (新儒家) Absorbing the theology and practices of Daoism and Buddhism 17

18. Struggle between the religions Daoism and Buddhism: voluntary religions -Deviation in nature: used by some to become a movement of rebellion or became a political movement itself -endorsed by the rulers at some times but also involved in various rebellions -under systematic governmental control so that they would serve exclusively the ends of the established power structure 18

19. Religion and Law in Traditional China The source of law is not divine -but filial piety and respect for ancestors may be considered as given or endorsed by Heaven -the content of law is endorsed by Heaven (or given by Heaven?) Mandate of Heaven is the source of political legitimacy and a stabilizing factor -could be manipulated -no moral content; supplemented by the Confucian ethics 19

20. Religion and State in Traditional China Religion actively allies itself with the state, either dominating it or supporting it as its instrumental force Religion may withdraw into seclusion by renouncing secular political life Religion actively struggles against the state either to preserve itself or to gain political dominance 20

21. Religion and State in Traditional China State contained religion through recognition, incorporation and co-option State persecuted, banned, and destructed religion State used religion to police and regulate religion 21

22. Confucianism and Constitutionalism Huntington: Incompatible -group over the individual -authority over liberty -responsibilities over rights. -lacked a tradition of rights against the state -harmony and cooperation were preferred over disagreement and competition -maintenance of order and respect for hierarchy -conflict of ideas, groups, and parties was viewed as dangerous and illegitimate -merged society and the state -no legitimacy for autonomous social institutions at the national level 22

23. Confucianism and Constitutionalism 4 great Confucian philosopher of the 20th century – Tang Junyi, Mou Zongsan, Xu Fuguan, and Zhang Junmai: Compatible there seeds for or germs of democracy within the Chinese tradition, particularly the Confucian tradition the establishment of an Liberal Constitutional Democracy is the internal requirement or necessity of the development of the Chinese cultural tradition itself 23

24. Confucianism and Constitutionalism Professor Albert Chen: a balanced approach -the study and evaluation of the Confucian tradition, not only extracting from it resources that are conducive to the future development of Liberal Constitutional Democracy in China, but also identifying in it elements that have negative implications -Confucianism and liberalism could engage in ‘mutual criticism’ for the purpose of working out an Liberal Constitutional Democracy that does not lose sight of humanistic, moral, and spiritual concerns. 24

25. Confucianism and Constitutionalism Professor Albert Chen: a balanced approach -practices in modern Liberal Constitutional Democracy also have drawbacks: excessive claims of rights, excessive litigation, excessive consumerism, overemphasis on economic growth, neglect of moral and spiritual cultivation, denial of meritocracy, poor political leadership, demagogy, domination of the mass media by the vulgar, rising crime, increasing family breakdown, increasing pollution, increasing gap between the rich and the poor, etc. 25

26. Confucianism and Constitutionalism Professor Albert Chen: a balanced approach -Confucianism and liberalism could engage in ‘mutual criticism’ for the purpose of working out an that does not lose sight of humanistic, moral, and spiritual concerns -If liberal democracy is to serve humanity and to flourish together with humanity itself, it must be anchored in a culture, tradition, religion, or philosophy that upholds the higher humanistic, moral, and spiritual ideals of humankind. -Confucian concepts and practices of personal cultivation and human development, of li, yi, lian, chi, (禮義廉恥) and of the moral responsibility of holders of political power can be a good contribution 26

27. Confucianism and Human Rights May not be compatible -lack of individual autonomy -duty-based morality -virtue of selflessness -higher interests of the collective: family and society 27

28. Confucianism and Human Rights May be compatible (Joseph Chan): Compassion（側隱之心） Do not impose others what you yourself do not desire (己所不欲，勿施予人） May recognize right to life, freedom from torture and the right to fair trial May also recognize freedom of expression and freedom of religion on instrumental ground (advise the ruler) but not on the liberal ground (to advocate immoral ideas) 28