Cultural Roots of the Rule of Law: Exploring the Possibility of Confucian Legal Order

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2013
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Haverford College. Department of Sociology
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Award
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eng
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Haverford users only
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Abstract
The goal of this paper is to make the argument that Confucian Chinese government capable of upholding the rule of law is possible. We address this question in three phases: 1) characterizing Confucianism’s influence in shaping the cultural logic and values of Chinese people, 2) deducing what kind of legal order Confucian values and cultural logic has the capacity to enable and 3) theorizing whether Confucian legal order has the institutional attributes necessary to uphold the rule of law. Using textual analysis of the Analects and Mencius, we argue that the cultural logic of Constitutional Democracy orients to human beings as discrete, autonomous and intrinsically isolated from one another while the cultural logic of Confucianism perceives individuals and their welfare to be inherently interconnected and part of a larger fundamental macro-order that precedes formal government. We argue that this fundamental difference, along with several others, results in Confucianism being incompatible with several of Constitutional Democracy’s most important features, such as inalienable individual rights and popular elections. We then speculate on alternative structural features Confucianism has the capacity to legitimate, and outline a hypothetical legal-order as an example of how these structures could be used to uphold the rule of law.
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