Daniel Friedman, Villanova University Charles Widger School of Law, has posted “Confucius” and America’s Dangerous Myths about Chinese Law, which is forthcoming in the University of Pennsylvania Journal of International Law:
--Dan ErnstAmerican legal scholars can’t stop talking about Confucius: there were over 100 law review articles in 2022 alone that reference Confucian ideas, and nearly 1,500 during the last five years. Almost all of them are wrong about what Confucius has meant for Chinese legal culture. In the face of five decades of contrary historical scholarship, these law review articles argue or imply that Chinese law started to become “Confucian” about 2,000 years ago and has never really changed since. That continuity (or stagnation), these scholars claim, is one of the keys to understanding contemporary Chinese law. As this article will show, the reality is very different.
Confucius (NYPL)
From the 16th century to the present day, scholars, politicians, and others with an axe to grind have constructed a series of legally influential “Confuciuses” to score points in the debates of their day. Unfortunately, American legal scholars are stuck repeating these self- interested stories with little idea of where they came from or what they mean. American authors largely view this “Confucian” legal legacy as something suspicious, or at least exotic, and their descriptions exacerbate the Sino-American cultural and political gulf. Chinese authors, on the other hand, often view it as a matter of national pride, a demonstration of the power and centrality of a Chinese civilization destined to sway modern Asia.
In this article, I argue that these erroneous views of the “Confucian” nature of Chinese legal culture have profound implications, impairing our ability to clearly understand contemporary Chinese law and contributing to a global and domestic atmosphere of suspicion and hatred. Only by untangling where our ideas about “Confucian law” come from and what they really imply can we hope to avoid exacerbating Sino-American hostility on the one hand and nationalist Chinese expansionism (of the kind felt most sharply in Tibet, Hong Kong, Taiwan, and Xinjiang) on the other.
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