As a magistrate in his home state of Lu, Confucius would have had plenty of opportunities to see at first hand the arbitrariness and brutality of the legal system that prevailed in Ancient China. Justice was rare and punishments were extremely severe for the convicted, who faced summary dismemberment and execution. Even those who managed to evade such horrific sanctions were tattooed so that they were clearly identified as criminals after their sentence was completed.
The sheer harshness and randomness of the legal system must have been one of the reasons why Confucius was so wary of the effectiveness of governing people through strict laws and regulations backed up by threats of draconian punishments. More fundamentally, however, he was concerned that such an approach was counter-productive in promoting social order because, as he points out in Chapter III of Book 2, people will always find ways of evading rules imposed from on high and they will “have no sense of shame.”
You only have to look at how tax avoidance works in the modern world to appreciate his point. Despite the raft of legislation that has been passed, people still find creative ways of getting round it. Indeed, a highly-lucrative industry “tax planning” has been spawned for that very purpose.
Confucius advocated an alternative model in which the ruler established the right ethical tone for people to follow through governing “by the power of virtue” rather than attempting to compel them to behave in the right way. By setting the right example, the ruler would create a positive self-reinforcing culture at all levels of society. Laws and regulations would ultimately become unnecessary because the people would instinctively know how to behave appropriately and have the rites, the unwritten code of social conduct, to guide them if they were unsure of what to do.
Even though Confucius failed to persuade any rulers to implement this approach during his lifetime, his ideas had a huge impact on the development of China’s justice system and key elements of his thinking were integrated into it.
Given the growing distrust of the working of today’s legal system, perhaps it’s worth revisiting some of them.