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Law and Religion Law and Religion in Traditional China 1 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

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law and religion

Law and Religion

Law and Religion in Traditional China

1

learning outcomes
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
issues
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

meaning of law
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

sources of law
Sources of Law

Li v. Law (Confucianism v. Legalism)

Confucianization of law

5

religions in china general
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

religions in china
Religions in China:

Classical religion

Confucianism

Daoism (Taoism)

Buddhism

7

classical religion
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

confucianism
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

confucianism10
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

daoism
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

buddhism
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

buddhism13
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

buddhism14
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

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buddhism15
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

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struggle between the religions
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

integration of the religions
Integration of the religions

Sung Syncretism: Neo-Confucianism (新儒家)

Absorbing the theology and practices of Daoism and Buddhism

17

struggle between the religions18
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

religion and law in traditional china
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

religion and state in traditional china
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

religion and state in traditional china21
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

confucianism and constitutionalism
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

confucianism and constitutionalism23
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

confucianism and constitutionalism24
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

confucianism and constitutionalism25
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

confucianism and constitutionalism26
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

confucianism and human rights
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

confucianism and human rights28
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