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 3 of Book 2, people will always find ways of evading rules and regulations 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 to stamp it out throughout the world, people still find creative ways of getting round it. Indeed, a highly-lucrative “tax planning” industry 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 leadership by 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 ritual, the unwritten code of social conduct, to guide them if they were unsure of what to do.
Given the growing distrust of the working of today’s legal system, perhaps it’s worth revisiting this idea.