Virtue Jurisprudence - Law and Virtue Outside The Western Tradition

Law and Virtue Outside The Western Tradition

The phrase "virtue jurisprudence" is usually applied in the context of contemporary Western philosophical thinking about law. There are, however, important ideas about the relationship between law and virtue in other intellectual traditions. One example is provided by Confucian ideas about virtue. In the Analects, Confucius argues that a society in which people are virtuous would have no need of judges, rules, or jurisprudence because people would be able to resolve social conflicts by themselves. Thus, it is argued that the idea of virtue is opposed to the idea of law.

It can be argued that that even virtuous citizens might disagree about the application of the law, especially where their own interests or ideological commitments are at stake. However, this argument is rather foreign to both traditional and modern Chinese political thought. Chinese political theory tends to assume that the truly virtuous are selfless to the point of martyrdom and would not consider their own personal interests and that the virtuous are able to transcend ideology. At the same time, traditional Chinese political thought regards those with absolute virtue to be historically extremely rare, and that most people, including the Emperor and his officials, are prone to both corruption and error. Consequently, there is a belief that law and indeed government is an unfortunate necessity in dealing with an imperfect world and with imperfect people.

The view that the inculcation of virtue is the proper end of legislation contrasts markedly with traditional Chinese thinking on the subject, which argues that laws exist because men are lacking in virtue. Confucianism places very little faith on the ability of law or external pressure to make men moral but rather believes that virtue must come from introspection and education. Throughout Chinese political and intellectual history, the Confucian view on law was frequently contrasted in discourse and practice with Chinese Legalist philosophy.