At the end of the last ‘son-covering-father’ article, it was stated that it seemed like Confucius was not advocating actively obstructing justice to conceal the father’s crime. Instead, the son should conceal the misconduct of the father by not reporting his father until the father corrects his actions. In other words, the son has a duty to allow his father to correct his actions in a private setting, giving him the time and opportunity to apologies and repay his dues. For many readers, this conclusion was not satisfying as protecting the father, even by passive concealment, is another way of obstructing justice and not doing what is morally right.
However, in Confucian thought, yi (义) or justice and righteousness is the very principle that is followed by the son when passively concealing the father’s crimes. It is wrong to transgress against one’s superiors, especially when it comes to respecting people of higher authority, such as rulers and parents. In contrast to the classic interpretation of Confucianism as blind obedience, yi here represents an “ideal of totality as a decision-generating ability to apply a virtue properly and appropriately in a situation” (Cheng, 1972: 271). Yi is about evaluating one’s circumstances and deciding what to do in those circumstances accordingly. The father’s intentions were not discussed in any detail to give clues about his motives. All that is known about the crime is that it involved the father stealing sheep. As long as no one is in direct harm or danger (where the farmer will starve because of the stolen sheep), it is up to the son to give his father the chance to evaluate the meaning of truth and goodness in unity and totality. In this way, the father can act in accordance with justice by returning the sheep or reporting himself to authorities, realizing the right course of action by himself. Likewise, the son is able to protect his family’s reputation, minimising potential damage caused by misunderstanding and thoughtless action. To add to this understanding of Confucianism as a doctrine that emphasizes harmony and collaboration and not blind conformity, this article will investigate the idea of justice in Confucian thought.
There is little knowledge about Confucian justice in the West. As Amartya Sen observes in his book The Idea of Justice (2009), most books on political philosophy are confined exclusively to Graeco-Christian thought, where non-Western authors are overlooked and marginalised in Western discourse. While Sen does discuss justice in India’s intellectual history, his brief references to China leave out any discussion on Confucianism. As professor in philosophy Xenwu Chen (1997) stated, Confucianism either receives embarrassing lip-service, is rejected by discourses on justice in the West, or is reduced to the two catchphrases of ren and yi that are often not properly translated in the West.
In general, the concept of justice is still unclear. The origin of the word comes from the Latin iustus and iustitia meaning upright, righteous, and equity. By the mid-12th century, justice took a more legal form in the French system as it came to mean “the exercise of authority in vindication of right by assigning reward or punishment”, but also “the quality of being fair and just; moral soundness and conformity to truth.” Justice relates to right action or following orders and correcting those who fail to do so. These orders and punishments should be carried out in a manner that takes into account what is fair and good. However, there is no question as to who defines what is fair and good, and how these definitions came to be standards for organising society.
In the contemporary legal sense, justice is sometimes defined in terms of equality. That is, everyone should get or have the same as everybody else regardless of how much work they do or ‘what they put in’. On the other hand, justice can also mean equity where people get benefits in proportion to the work that they contribute. The harder and better one works, the more they get rewarded for their work. The equality versus equity debate is simple and maintains the status quo by ignoring structural discrimination and assuming that everyone can escape their circumstances through hard work and effort. Despite this, the debate over proper conceptions of justice shows that justice is really about who is entitled what, and the question of which cases are equal and which are unequal (Aristotle, Politics: 1282b 22). As philosopher John Rawls (1971) notes, the foundational idea of justice must be seen in terms so fairness. Like goodness, determining what and why something is fair can be tricky business. For example, a feminist analysis into the ethics of care shows that men’s emphasis on separation and autonomy leads them to stress ideas such as justice, fairness, and rights. These male norms do not take into account women’s experience and emphasis on connections and relationships, which leads to a different style of moral reasoning that emphasises wants, needs, and interests of particular people (i.e: those most in need). Care-focused feminists like Gilligan (1982) provide much needed analysis on why women as a group disproportionately carry the burden of care in all societies, and why men as a group do not routinely engage in caring practices. Her ideas suggest that theoretically care-based ethics can become a complement of, or even substitute for, traditional ethics of justice.
In that sense, there are many ways to think about justice that do not necessarily have to align with Western concepts of what is good and fair. For example, the term ren, which is often translated as humaneness, empathy, or the good feeling of encouraging and helping others, may be connected to the idea of justice as ‘harmony’ rather than fairness as it is defined in Western justice theory (Murphy & Weber, 2016). So, some aspects that would traditionally be thought of as unfair would be considered just in a Confucian justice system. Standing and encouraging the rank of others by capitalising on connections (guanxi, 关系) implies giving preferential treatment to someone in exchange for resources like access to controlled information, credit grants, and protection from external competitors (Hinze, 2012). Reciprocal obligation and indebtedness means that these exchanges are ongoing and occur in every aspect of society, including politics and everyday business. Rather than basing society on equality or even equity, social organisation through guanxi is about the needs and wants of particular individuals who have a lot of currency in terms of favours and resources. Though not perfect in practice, guanxi is about creating value in relationships and looking at the wider network in which individuals exist in.
Protecting family, saving face (mianzi, 留面子), and giving someone a chance to regain lost honour is also another concept that may seem foreign to the West. ‘Face’ or reputation is a multifaceted concept that can be lost, gained, or given. It is not only concerned with perceived success (how other’s see your earnings and social standing), but also with the relationship of one’s actions and character to the confidence of society in one’s integrity and moral character (Hu, 1944). Especially when it comes to family members (as was the case with the father), mianzi is important to maintain out of respect for both family ties and to minimise social harm. Considering how individual and group interests are perceived as mutually dependent, Confucian justice cannot recognize rights that are based on the idea that individual interests should be defended against group interests. However, as Wong (2013) notes, rather than eliminating the individual, the way that Confucianism values living according to moral standards and preserving relationships provides a basis for the idea that individuals should receive protection when they express their convictions about certain matters. The son should have an opportunity to express how his father or leader’s misconduct was inappropriate, but only in the right manner and way: through private communication and formal procedure.
Finally, the emphasis on internal feelings means that even the methods of governance should be based on virtue and not coercion and punishment. According to Confucian justice, forcing someone against their will to do the right thing works against cultivating an autonomous sense of shame. In other words, punishment should always be seen as a last resort. A better way of ruling is winning the people’s hearts. This involves developing a consciousness so that social coordination, even amongst strangers, should be family-like and less remote (Tiwald, 2017). The idea is that virtuous members in the community are motivated to act out of care for one another and not by fear of punishment. In the latter, doing good will only be based on self-interest. Sometimes a person may comply when compelled to, but when they are able to do bad things without being punished, then there is no motivation to remain law-abiding. For Confucius, if people practice ritual and develop a sense of shame, it is more likely that they will rectify themselves and do good more consistently. As ‘The Sayings of the School of Kongzi’ (Kongzi Jiayu, 孔子家語) notes, the ideal is to have well-crafted and finely-tuned laws and then make sure that they are never used.
The emphasis on social connections, mutual obligations, and care shows that Confucian justice involves de-emphasising legal coercion and guiding people by moral consideration. Instilling a sense of shame and concern for others is of utmost importance in developing a social system that is people-centred. While a Confucian might believe that there are certain correct ways for dealing with others, a significant degree of latitude is meant to encourage people to learn from their own mistakes and by way of example from others (Chan, 1999). Without necessarily competing with Western justice theory, there is a history and breadth of thought in Confucian justice that has not been adequately explored.