41

Moralogy, the Xiezhi, Casuistry, and Jewish Law:
Finding the Mean inJurisprudential Openness to the Divine
1）

Jason Morgan
Keywords: Doctrine of the Mean（中庸 Zhongyong）, xiezhi（kaichi, haetae 獬豸）, casuistry,
Maimonides, halakkah, aggadah

Introduction
Hiroike Chikurō focused his studies on East Asian law, but his research in avariety of ﬁelds, including law and moral philosophy, extended far beyond East Asia.
He read widely in the works of thinkers writing in Latin, Greek, French, English,
German, and of course Japanese, in addition to other languages. Given this breadthof erudition, it should be possible, based upon Hiroike’s own moral philosophy
research and upon the framework he sets out in his writings on the law in East Asia,
to extend the Confucian-inspired “middle way” philosophy of Hiroike’s legal idealism
to other cultures and cultural practices not necessarily covered in Hiroike’s works.
Can a universal middle-way-ism be alembicated from Hiroike’s philosophy? If so,
what would be the ideal sources for such a middle-way-ism, and how might Hiroike’s
insights be applied fruitfully to other philosophical traditions outside of Hiroike’s main
intellectual orbit in order to reﬁne such a tempered philosophy further? And, ﬁnally,
how could such a philosophy be applied in practice for the beneﬁt of others?
In this essay, I consider an example from Chinese legal history, the xiezhi or
beastly instrument of divine judgment ─ which I do not find attested in Hiroike’s
otherwise extensive research on Chinese law ─ as well as examples from the Christian and Jewish traditions pointing to the tension between the will of God and the epistemological and prudential limits of human beings, to determine whether the doctrine of
the mean ideal ─ which Hiroike held up as guiding Eastern jurisprudence and which,in context, is often understood as a strictly secular concept ─ is universalizable. I
1） I am very grateful to the librarians at the Institute of Moralogy for their help in tracking downmaterials for this study.

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conclude by ﬁnding that the principle of the mean set forth in An In­tro­duc­­tion to theHistory of Far Eastern Law is applicable, with some important modifications, to thestudy of these three very different aspects of world legal history, and also bydemonstrating how such a principle could be made part of lived phil o soph ical
experience in the present based upon the premises outlined in the works of Hiroike
Chikurō.
What Is Law?
Hiroike Chikurō spent much of his intellectual career studying the law. In
particular, Hiroike was interested in the origins and moral underpinnings of the law,and how the law can make present, and even instill, a moral sense among men. In
short, Hiroike wanted to know where law comes from and what it can do to improve
the present. In the 1905 book An Introduction to the History of Far Eastern Law,
Hiroike is presented as arguing that:the two Chinese characters for ʻlaw’, that is, fa and lü,［…］derive from theconcept of ʻthe mean and average’. ［Hiroike］then attempts to demonstrate thatʻthe mean and average’ are the substance of ʻHeavenly Way（Tian Dao）’ as well as
the substance of ʻgood’, being the standard of human conduct.2）
In this way, Hiroike’s biographer continues, Hiroike’s An Introduction to theHistory of Far Eastern Law:does not stop at the illumination of the meaning of ʻlaw’ in ancient China, but it
also brings to light how the concept of the mean and average, the ideology of the
Heavenly Way and the substance of the good are universal ideals transcendingtime and culture. In other words, the book reveals that the traditional spiritual
culture of China, the very basis of Oriental cultures, has a certain universal value
recognized throughout all of human society.3）
In the rest of An Introduction to the History of Far Eastern Law, and in the rest of
his voluminous writings on law and comparative legal study, Hiroike emphasizes theuniversal bearing of moral standards on the laws of the world. Although not all legal
systems, and not all laws in any given system, are morally sound, Hiroike argues forthe necessity of continually refining one’s moral character in order to arrive at the
Heavenly Way.4） More than just a ﬁnal pronouncement on what is right and wrong,then, law on this Hiroikean reading can be understood as a cadenced process forapproaching and living out the Heavenly Way.
2） Hiroike Chikurō, T y h seishi joron（Tokyo: Waseda Daigaku Shuppanbu, 1905）, cited in Chikuro
Hiroike: Father of Moralogy（Kashiwa: The Institute of Moralogy, 2005）, 189.
3） Hiroike Chikurō, T y h seishi joron, op. cit., cited in Chikuro Hiroike: Father of Moralogy, op. cit.,
189.
4） Hiroike Chikurō, T y h seishi joron, op. cit., cited in Chikuro Hiroike: Father of Moralogy, op. cit.,
190 ─ 191.

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43

The Heavenly Way is therefore to be understood as a touchstone of Hiroike’s
legal philosophy. And the Heavenly Way, which Hiroike found in varying degrees in
the works of such Chinese thinkers as Confucius, Mencius, Laozi, and Zhuangzi, wasfound to an exceptional degree, Hiroike thought, in the Book of the Golden Mean
（Zhong Yong）, “a masterpiece that had governed the moral teachings in the Orient forthe past two thousand years or so, since the days of the Han dynasty”.5） The Zhong
Yong, Hiroike afﬁrmed, was Confucius’ assessment that “the moral character of a person［was］based on whether or not that person practiced the doctrine of the mean.”6）
The “doctrine of the mean” thus assumed a position of explicator for Hiroike’s moregeneral notions of the “middle way” and the jurisprudential search for justice andequity.
But what, in practice, is this doctrine of the mean? The middle way may bedescribed and even demonstrated, but is impossible to deﬁne. It must be discernedusing the totality of the human person. And yet, despite or because of its ambiguity,
this un-preordained legal philosophy, which calls for reﬂection and careful, compassionate thinking over strict adherence to hard-and-fast rules, was, for Hiroike and formany other thinkers of the East, the guiding ideal of law and society. Whereas theWestern European legal and philosophic tradition has been shaped, especially since
the Enlightenment, by the drive to categorize human experience a priori into legal
codes and then to apply those codes to problems ─ crimes, disagreements, otherinjustices ─ as they arrive in lived society, the legal process in East Asia has, in many
ways, been marked more by performativity and kinetic justice, creativity in jurisprudence in pursuit of the just outcome in a given case, and willingness to skirt or evenignore certain sections of the written law in favor of a resolution satisfying to theparties involved and to wider society far beyond the courtroom and the controversy athand. English philosopher Thomas Hobbes, for example, places the magistrate, as“sovereign representative,” beyond reproach, finding the working-out of justice tooccur solely within the circuit of God’s Own Person, and likewise absolutizes the law
as the necessary condition of peace in a realm.7）
However, this has not always been the case in Europe, where there was a long
history of common law jurisprudence which preceded Hobbes and the convulsions of
the sixteenth and seventeenth centuries in England, for instance. And it has rarely
been the case in East Asia, either.8） Indeed, it is to East Asia that I now turn for an
5） Hiroike Chikurō, T y h seishi joron, op. cit., cited in Chikuro Hiroike: Father of Moralogy, op. cit.,
190 ─ 191.
6） Hiroike Chikurō, T y h seishi joron, op. cit., cited in Chikuro Hiroike: Father of Moralogy, op. cit.,
191.
7） Thomas Hobbes, Leviathan, in Mitchell Cohen and Nicole Fermon, eds., Princeton Readings in
Political Thought: Essential Texts since Plato（Princeton, NJ: Princeton University Press, 1996）, 230 ─ 231.
8） See, e.g., Timothy Brook, Michael van Walt van Praag, and Miek Boltjes, eds., Sacred Mandates:

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example, largely forgotten today but nevertheless highly germane to discussions ofkinetic jurisprudence justice and the “middle way,” of a courtroom “technology” once
used to effect resolutions to difficult cases in an acknowledgement of the limits ofhuman reasoning and the need to seek help when seeking the truth. Below I present
a mythical Chinese beast as an（imaginary）embodiment of the “doctrine of the mean”.
The Xiezhi and the Interpleaching of Divine Justice in Human Courts
In many places in the ancient world, the will of the gods or of God was often seen
to be at least as important as the decision-making efforts of human beings. At thevery least, the ancient world was often seen to be alive with gods and other supernatural powers, and humans strove by any means available to appease those gods andpowers and secure stability for their communities. In ancient Rome, for example, akind of priest called an auspex was tasked with discerning omens in the ﬂight patternsof birds, while another kind of priest called a haruspex divined using the extruded
entrails of sacrificed animals and a special stone index as his guide. The ancient
Israelites are famous for driving into the desert at Yom Kippur a goat on whose head
was afﬁxed a list of the sins of the Hebrew people.9） In ancient Japan, many priests at
Ise initially welcomed the inﬂux of the Buddhist pantheon as a new kind of spiritualtechnology for supplicating, and even pacifying, the occasionally wrathful gods
enshrined there.10） The Greeks consulted oracles before making decisions of stateor war and in other matters difﬁcult for human beings to discern. The steps of theGreat Pyramid of Tenochtitlan ran with the blood of prisoners of war and othersacrificial victims whose beating hearts, freshly excised from their chests, were
Asian International Relations since Chinggis Khan（Chicago, IL: University of Chicago Press, 2018）, Terry
Nardin and Luke O’Sullivan, eds., Michael Oakeshott, Lectures in the History of Political Thought（Imprint
Academic 2006）, 366 ─ 367, 480, Francis Oakley, “The Absolute and Ordained Power of God and King in the
Sixteenth and Seventeenth Centuries: Philosophy, Science, Politics, and Law,” Journal of the History of
Ideas, vol. 59, no. 4（Oct., 1998）, 669 ─ 690, Brian Tierney, “Bracton on Government,” Speculum, vol. 38, no.
2（Apr., 1963）, 295 ─ 317, Richard Halpern, “The King’s Two Buckets: Kantorowicz, Richard II, and Fiscal
Trauerspiel,” Representations, vol. 106, no. 1（Spring, 2009）, 67 ─ 76, Kinch Hoekstra, “ʻLeviathan’ and its
Intellectual Context,” Journal of the History of Ideas, vol. 76, no. 2（Apr., 2015）, 237 ─ 257, Ewart Lewis, “Kingabove Law? ʻQuod Principi Placuit’ in Bracton,” Speculum, vol. 39, no. 2（Apr., 1964）, 240 ─ 269, Alison A.
Chapman, “Milton and Legal Reform,” Renaissance Quarterly, vol. 69, no. 2（2016）, 529 ─ 565, and David
Carpenter, “Magna Carta 1215: Its Social and Political Context,” in Lawrence Goldman, ed., Magna Carta:
History, Context, and Influence（London, England: University of London Press/Institute of Historical
Research, 2018）, 17 ─ 24.
9） See Kaufmann Kohler, “The Sabbath and Festivals in Pre-Exilic and Exilic Times,” Journal of theAmerican Oriental Society, vol. 37（1917）, 209 ─ 223, and Howard Kreisel, “Reasons for the Commandments
in Maimonides’ Guide of the Perplexed and in Provençal Jewish Philosophy,” in Howard Kreisel, Judaism as
Philosophy: Studies in Maimonides and the Medieval Jewish Philosophers of Provence（Boston, MA: Academic
Studies Press, 2015）, 361 ─ 395.
10） See Mark Teeuwen and John Breen, A Social History of the Ise Shrines: Divine Capital（London,
England: Bloomsbury Academic, 2017）. See also Janet R. Goodwin and Joan R. Piggott, eds., Land, Power,
and the Sacred: The Estate System in Medieval Japan（Honolulu, HI: University of Hawai’i Press, 2018）.
11） See Maarten Jansen and Gabina Aurora Pérez Jiménez, Encounter with the Plumed Serpent: Drama

Moralogy, the Xiezhi, Casuistry, and Jewish Law

45

offered up as gifts to the seemingly insatiable deities Huitzilopochtli and Tlaloc.11）
The ancient world was, in many ways, a palimpsest of the heavens, and human beings
carried out their affairs in the company ─ real to them it felt at the time ─ of the gods
and spirits. As Peter T. Struck observes:
For many millennia and across the whole Old World, from Eastern to Western
Eurasia, and from the tip of southern Africa to the highlands of Britannia, people
were in the habit of practicing divination, or the art of translating informationfrom their gods into the realm of human knowledge. On a scale whose breadth
we have yet to fully appreciate, they assumed clandestine signs were continuously
being revealed through the natural world and its creatures（including their own
bodies, asleep or awake）.12）
Contemporary man has largely laid aside this supernatural visionism in a disenchanted cosmos, but the historical fact, highly signiﬁcant here, is that, in the past, ourancestors were immersed in the divine.
In ancient China, too, the world was seen by many to be osmotic between humans and gods, with but a very gauzy veil of imperfect perception and dimmed
understanding partitioning off the daylight world of mortal men. As demonstrated in
Edward Slingerland’s Mind and Body in Early China, Chinese antiquity was a time of, Shang
great spiritual and religious activity and belief.13） The Xia（ca. 2070 ─ 1600 BC）（or Yin, 1600 BC ─ 1046 BC）, and Western Zhou（1046 BC ─ 771 BC）were times of:intense religious activity and feeling in China when Heaven, along with a host ofother spiritual beings,［…］suffused the human world with portents and signs and［…］led human beings to their full potential by exerting a moral force on theirand Power in the Heart of Mesoamerica（Boulder, CO: University of Colorado Press, 2007）.
12） Peter T. Struck, “2013 Arthur O. Lovejoy Lecture: A Cognitive History of Divination in Ancient
Greece,” Journal of the History of Ideas, vol. 77, no. 1（Jan., 2016）, 1.
13） Edward Slingerland, Mind and Body in Early China: Beyond Orientalism and the Myth of Holism（Oxford, England: Oxford University Press, 2019）.
14） Jason Morgan, “Greatness of Character as the Great Idea of Religion and Freedom in ClassicalConfucianism,” under review. Cf. Wm. Theodore de Bary, The Trouble with Confucianism（Cambridge,
MA: Harvard University Press, 1991）, esp. Ch. 1, “Sage-Kings and Prophets,” 1 ─ 23, and Ch. 2, “The Noble
Man in the Analects,” 24 ─ 45. De Bary declares Confucius an “Undeclared Prophet,” The Trouble with
Confucianism, 24. See also Paul R. Katz, Divine Justice: Religion and the Development of Chinese Legal
Culture（London, England: Routledge, 2009）, 7, citing also Martin Chanock, Law, Custom, and Social
Order: The Colonial Experience in Malawi and Zambia（Cambridge and New York: Cambridge University
Press, 1985）, 83, 86; Alison Dundes Renteln and Alan Dundes, eds., Folk Law: Essays in the Theory andPractice of Lex Non Scripta. 2 volumes.（Madison, WI: The University of Wisconsin Press, 1994）, 13; Markvan Hoecke and Mark Warrington, “Legal Cultures and Legal Paradigms: Towards a New Model for
Comparative Law,” in International and Comparative Law Quarterly, vol. 47, 1998, 498; Jonathan Ocko,“Interpretive Communities: Legal Meaning in Qing Law,” in Robert E. Hegel and Katherine Carlitz, eds.,
Writing and Law in Late Imperial China: Crime, Conflict, and Judgment（Seattle, WA: University ofWashington Press, 2007）, 261 ─ 65; Stanley Fish, Is There a Text in this Class? The Authority of Interpretive
Communities（Cambridge, MA: Harvard University Press, 1980）; Daniel L. Overmyer, “Attitudes Toward
Popular Religion in the Ritual Texts of the Chinese State: The Collected Statutes of the Great Ming,” inCahiers d’Extrême Asie, 5, 1989 ─ 1990, 192 ─ 93, 221; Lin Duan, Wei Bo lun Zhongguo chuantong falü: Wei Bo

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whole human persons, forming them in body and mind for exempliﬁcation of thehumane, Heaven-focused, human ideal.14）
It is this openness to the divine and acceptance of contingency as a fundamental
condition of human existence which shaped much of the ancient Chinese jurisprudential experience and makes it, by that same measure, fruitful for us to examine as a key
to understanding the invocation of superhuman actors in courts of law.
While previous studies have focused on the broad cultural implications for thisgods-centered nature of ancient Chinese life, or have dwelt at length on the philosophi cal, archaeological, literary, and even anthropological ramifications of a revised
worldview which takes into account the essentially and strongly religious character ofthe distant Chinese past, there remains much work to be done in investigating theimplications for law in ancient China in light of the prominence, indeed even primacy,of religion.15） One important clue for how law under religious cover worked inancient China comes from the works of historian Paul R. Katz. In Katz’ estimation:
justice in ancient China was pursued along what［Katz］calls a ʻjudicial continuum’, a ʻcontinuous series of elements often viewed as indistinguishable’ andinvolving not just judges and hearings but also rituals, appeals to myths, religious
interpretations, and interpersonal mediation. There was no strict separation
between the courtroom and the justice of heaven, and human beings conducted
trials, if not sub specie aeternitatis, then at least in the shadow of the interventionof forces beyond human control or even understanding.16）
Katz is one of the few scholars to accentuate the religious nature of ancient
Chinese jurisprudence, and so his work presents an important new opportunity torethink Chinese law in the context of Hiroike’s emphasis on the doctrine of the mean.
The expansion of “the mean” to include considerations of otherworldly impetuses
greatly alters our understanding of law, religion, and philosophy in ancient China as
well as in surrounding cultures in contact with Chinese states.
Perhaps the most succinct, and yet puzzling, expression of this religious,
bijiao shehuixue de pipan（Taipei: Sanmin Shuju, 2003）, and Max Weber, The Religion of China, and C. K.
Yang, Religion in Chinese Society. See, also, Paul R. Katz and Stefania Travagnin, eds., Concepts and Methods
for the Study of Chinese Religions III: Key Concepts in Practice（Berlin: De Gruyter, 2019）.
15） See, e.g., Sarah Allan, “Erlitou and the Formation of Chinese Civilization: Toward a New
Paradigm,” Journal of Asian Studies, vol. 66, no. 2（May, 2007）, 461 ─ 496, Li Liu, “State Emergence in Early
China,” Annual Review of Anthropology, vol. 38（2009）, 217 ─ 232, David S. Nivison, The Nivison Annals:
Selected Works of David S. Nivison on Early Chinese Chronology, Astronomy, and Historiography（Berlin: De
Gruyter, 2018）, Rowan K. Flad, “Divination and Power: A Multiregional View of the Development of Oracle
Bone Divination in Early China,” Current Anthropology, vol. 49, no. 3（Jun., 2008）, 403 ─ 437, and Horst J.
Helle, “Oracle-Bones: The Mandate of Heaven,” in China: Promise or Threat? A Comparison of Cultures（Leiden: Brill, 2017）.
16） Jason Morgan, “Legal Fictions in East Asian and Western European Jurisprudence and Legal
Philosophy,” under review, citing Paul R. Katz, “On the Judicial Continuum and the Study of Chinese Legal
Culture,” in Paul R. Katz and Stefania Travagnin, eds., Concepts and Methods for the Study of Chinese
Religions III: Key Concepts in Practice（Berlin & Boston: Walter de Gruyter, 2019）, 11.

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47

otherworldly aspect of Chinese jurisprudence comes in the form of the xiezhi. The
xiezhi, said to have one horn and to resemble a kind of horse-like dragon or an oxenlike unicorn, is a mythical beast which was central to the functioning, and logic, of anancient Chinese court. The character for xie forms part of the older, more complicated Chinese character for “law,” fa, illustrating the xiezhi’s centrality to ancient Chinese
jurisprudence and the universe of thinking that underpinned it and in turn emanatedfrom it.17） Indeed, the xiezhi was so prominent in the thinking of ancient Chinese law
court ofﬁcials that it was inscribed on certain robes worn by those ofﬁcials, much inthe same way that a statue of a blindfolded “lady Justice” or an image of a scale mightadorn a law court in the United States today.18）
But what, exactly, was this xiezhi, and how does it help us to understand Hiroike’s
emphasis on the doctrine of the mean and, beyond that, how that understanding
might be extended to other jurisprudential milieux? The xiezhi might be said to bethe（paradoxical）embodiment of a jurisprudential, even epistemological, aporia, theinstantiation of an absence, the indexing of an unknown element. This aporia,
absence, or unknown was, somehow, the keystone of the arch of justice which a judge
must always try to rebuild in his court cases. The xiezhi was a kind of acknowledgement that perfect judgment is more than human beings can be called upon to achievement. The mean is, on that understanding, the maximum of our jurisprudential
powers. As I write elsewhere:
The xiezhi was a premodern legal ﬁction, an irruption of the inexplicable into the
pursuit of justice which preserved the law while radically contravening it. The
process of deliberating about a given case was carried out mainly by people. In
the end, though, hard cases were left up to non-human beings to decide. The
xiezhi was a token of the acknowledgement by those in Chinese antiquity that thereality of the law was ultimately beyond human reach.19）17） On the etymology of fa and its variants in Chinese and Japanese, see Hiroike Chikurō, T yh seishi joron, op. cit., cited in Chikuro Hiroike: Father of Moralogy, op. cit., 189 ─ 191. See also Kure Asao,“Hiroike Chikurō ʻTōyō hōseishi joron’ no tokushoku to gakusetsu shijō no igi: ʻhō=nori’ron wo chūshin
toshite,” Moraroj Kenky , no. 78（Nov., 2016）, 21 ─ 44, and Shirakawa Shizuka, Keit zakki, sh i（Tokyo:
Heibonsha, 2010）, esp. “Kami no sabaki,” 233 ─ 44, which contains an excellent explication of the etymology
of fa.
18） See, e.g., Takikawa Masajirō, H ritsu shiwa（Tokyo: Ganshodo, 1932）, 73 ─ 76, H ritsu Shunsh ,vol. 2, no. 5（May, 1927）, 43 ─ 45, Yamakawa Aki, “Chūkinsei senshokuhin no kisoteki kenkyū,” Ph.D.
dissertation, Ochanomizu Joshi Daigaku Daigakuin（September, 2013）, 82, 87, 111 ─ 120, and Yajima Akiko,“Chūgoku kodai no dōbutsukan wo meguru kenkyū: tori no imēji kara miru kodai no kankyō to shinsei,”Ph.D. dissertation, Keio Gijuku Daigaku Daigakuin（September, 2017（2016））, 76 ─ 93.
19） Jason Morgan, “Legal Fictions in East Asian and Western European Jurisprudence and Legal
Philosophy,” under review. See also Takafuji Harutoshi, “Wasurerareta zuijū: kai, sono zuzōgakuteki bunruino kokoronomi,” Bunsei Kiy , no. 21（2009）, 49 ─ 71, Yamada Katsumi, Ronk , vol. 1（Tokyo: Meiji Shoin,1976）, esp. 1 ─ 13, Yamada Katsumi, Ronk , vol. 2（Tokyo: Meiji Shoin, 1979）, esp. 1120 ─ 1140, Terajima
Ryōan, Wa Kan sansei zue, vol. 1（Tokyo: Tōkyō Bijutsu, 1970）, 437, Yoshida Kenkō, Shiki, 1（Honki）（Tokyo: Meiji Shoin, 1973）, 29 ─ 72, Yamada Taku, Bokushi, vol. 1（Tokyo: Meiji Shoin, 1975）, 336 ─ 51,
Maeno Naoaki, Sangaiky , Retsusenden（Tokyo: Shūeisha, 1975）, 68 ─ 70, 444 ─ 445, 736 ─ 737, Han Wei cong

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In a bigger sense, the xiezhi represents the very nature of human existence which
demands that we reason using synderesis, or the application to contingency of humanreason guided by a morally-formed conscience, rather than the strict application of
rigid rules to every individual case indiscriminately. The xiezhi, or monster of theordeal, was thus the representative of the divine will and judgment in a court of law inancient China, but it was also an avatar of sorts for the human mind and heart, thepuzzlement of the judge in the face of incomplete information, and the acknowledgement that, in the end, much of the work of the law is guesswork, in the light of the
pursuit of justice, rather than clear-cut solutions to cases stateable in absolute moral
and legal terms.
While the xiezhi is very much contextualized by religion and an openness to thesupernatural, the jurisprudential nature of the xiezhi is apparent even for those who
insist on a purely secularist reading of ancient China. For example, Park Yong-chol,
who asserts that the ancient Chinese did not focus their attentions on God or thegods, attempts a distinction between the absolute nature of God in the West and therelative situationalism sometimes exhibited by agents of the deities in China.
I believe that that the existence, or non-existence, of any divinity runs throughout
the background of the difference between the East and the West on whether the
essence of a court trial is judgment［hantei］or measurement［sokutei］. In theWest, God is, above all things, a God of justice, or in other words the God of
criminal justice who judges, in the afterlife, whether or not there is any sin. By
contrast, secular Chinese civilization, which believes in no gods, and which,centered on the present realities, denies the existence of the afterlife, has no god
for judging in the afterlife whether there is any sin. ［…］Nevertheless, it is not
the case that there was absolutely no divine judgment［shinpan］in China. The
kaichi［xiezhi］, which symbolizes law in China［…］, is known as the divine beast
used in divine judgments in ancient China. Also, the old character for law has asits compositional element kaichi, or kai. The significance of this original
shu（Taipei: Xinxing Shuju, 1970）, 8 ─ 9, and Kumazawa Miyu, “Kinsei buke ni okeru shinjū hakutaku no
juyō,” Aichi Kenritsu Daigaku Bungaku Bunkazai Kenky sho Kiy , no. 2（Mar., 2016）, 21 ─ 37. See also
Ishimoda Shō, Nihon no kodai kokka（Tokyo: Iwanami Shoten, 1971）, Mishina Akihide, Kodai saisei tokokurei shink （Tokyo: Heibonsha, 1973）, Mishina Akihide, Nihon shinwaron（Tokyo: Heibonsha, 1970）,
Takahashi Tadahiko, Bunsen（fuhen）, vol. 2（Tokyo: Meiji Shoin, 1994）, esp. 88 ─ 89, 100 ─ 103, Imamura（Tokyo:Yoshio, Y y zasso（5 vols.）（Tokyo: Heibonsha, 1981）, 138 ─ 39, Iwaki Hideo, tr., Go zasso（8 vols.）（Tokyo: Meicho
Heibonsha, 1998）, 20 ─ 21, Mozume Takami, Mozume Takakazu, K bunko（book 4）, 22 ─ 29,
Fukyūkai, 1916）, 490 ─ 491, Uesugi Chisato, Komainu jiten（Tokyo: Ebisukosyo Publication, 2001）
110 ─ 111, Suzuki Hiroshi, Ch goku no shinwa densetsu, vol. 1（Tokyo: Seidosha, 1993）, Chang Ching,
Zusetsu: Ch goku bunka hyakka, vol. 2, Ten kakeru shinborutachi: genos d butsu no bunkashi（Tokyo:
Keiyousha, 2002）, 18 ─ 23, 54 ─ 63, Ozaki Yūjirō, Kund setsumon kaiji ch , ishi satsu（Tokyo: Tōkai Daigaku
Shuppankai, 1986）, 208 ─ 210, 719, 729 ─ 733, 738 ─ 739, Ozaki Yūjirō, Kund setsumon kaiji ch , hisago satsu（Tokyo: Tōkai Daigaku Shuppankai, 1993）, 508 ─ 510, 620 ─ 25, Shirakawa Shizuka, Shirakawa Shizuka
chosakush 1, Kanji 1（Tokyo: Heibonsha, 1999）, 259, and “Chitsujo no genri,” 84 ─ 113, and Shirakawa
Shizuka, Shirakawa Shizuka chosakush 12, Zassan（Tokyo: Heibonsha, 2000）, 34 ─ 37, 262 ─ 263.

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49character for law is that, once the divine judgment had ﬁnished and the issue atlitigation had been decided, the party judged to be in the wrong, along with the
kai and the testimony documents used in the divine judgment were together, forthe sake of doing away with the ﬁlth［owai］of the unjust and the unfaithful, madeto bear the calamity of the sin and washed away. The history of the kaichi cantherefore be said to be the history of divine judgment and of law in China.20）
As Park shows in his own argument, the divine judgment, carried out by the kaichi or
xiezhi, was in any event a central feature of ancient Chinese jurisprudence, notwithstanding Park’s argument that the Chinese are secularist and disbelieving of the gods.
But the divine judgment, exempliﬁed by the kaichi, found its strongest competitor, notin the criminals who were judged, but in the state which pretended to be merely thevenue for the divine judgment. As Park argues, it was the establishment of a strong
central state which led to the demise of the kaichi concept as a factor in ancient
Chinese courts of law.21）
Eventually, the politicization of the Chinese polity had rendered the kaichi anempty concept, a shell which had become merely decorative, or indicative of thelongevity and continuity of the Chinese state. “The sanctity（shinseisei）of handing
down divine judgments（shinpan）which the kaichi had once possessed had completely disappeared,” Park writes.22） Thereafter, the kaichi was reinterpreted as a symbolof the “illiterate” class of hard-charging local ofﬁcials, despised by the scholar-ofﬁcial
elite as little more than beasts.23） As it turns out, it was a strong central authority ─
two authorities, actually ─ which shaped the rise of a kind of kaichi-esque legal
reasoning in the early modern West. These two authorities were the religious andthe political, the Church and the state（to use very broad phrasing）. And this dual
nature of Western authority is the engine of the search for the mean, the aspiration tojustice in keeping with God’s law while also giving due regard to the prerogatives ofmen.
The Hiroikean Ideal in Western Europe and the Anglosphere
Much Western European and Anglo-American jurisprudence has also, likejurisprudence in much of East Asia, developed in the company of the divine. For
example, the kings of ancient Israel were often advised, willingly or not, by “judges” orholy men who claimed insight into the will of Yahweh and authority to pronounce the20） Park Yong-chol, “Chūsei Chūgoku ni okeru jigoku to gokushō,” Ronbun Mokuroku（Kyoto, 1996）, 374
─ 375. Park quotes from Mozi（墨翟）to illustrate how the trial proceeded under the auspices of the shenpan, or
divine judgment. Park Yong-chol, “Chūsei Chūgoku ni okeru jigoku to gokushō,” op. cit., 375 ─ 376.
21） See Park Yong-chol, “Chūsei Chūgoku ni okeru jigoku to gokushō,” op. cit., 376 ─ 377.
22） Park Yong-chol, “Chūsei Chūgoku ni okeru jigoku to gokushō,” op. cit., 381.
23） Park Yong-chol, “Chūsei Chūgoku ni okeru jigoku to gokushō,” op. cit., 381.

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deeds of the political leader not in keeping with divine commandments.24） In Rome,
too, the pontifex maximus, flamines, and other priests and holders of divine ofﬁce often
held a power in the polity separate from, and sometimes counter-disposed to, that ofthe political leaders. The Roman emperors eventually co-opted the divine authority
into their own person, ruling Rome as demigods unbeholden to any higher authority
than themselves.25） But this proved to be a function of political expediency after all
when the empire over which the emperors ruled began to break down.

Justinian I（482 ─ 565）
, the Christian leader of the Eastern Roman Empire in the sixth century AD,
ordered formulated a law code which set out the laws in a clear and methodical, writing in the latemanner. Before Justinian, St. Augustine of Hippo（354 ─ 430）
fourth and early ﬁfth centuries, saw in a starkly religious context the struggle of theChristian order against the invasions of the pagans who had neither the Faith nor thebooks of the law. As the Roman Empire unraveled the Church assumed the role ofthe ordering principle of society, and the maintenance and application of the law wasoften a function of religious ofﬁce. Kings, as Austrian scholar Eugen Ehrlich（1862 ─1922）wrote, did not have the authority to overturn legally-binding traditions such as
the laws of marriage.26）
During the ensuing Middle Ages we witness the progressive entwinement of thelaw of this world and the commandments of God, with political and religious rulers
working together to achieve what Henri de Lubac（1896 ─ 1991）calls “the completeact,” the “business of the peace and the Faith”（negotium pacis et fidei）described at
length in Andrew Willard Jones’ groundbreaking book Before Church and State.27）
According to Jones, the France of Louis VIII（1187 ─ 1226）and St. Louis IX（1214 ─1270）was not divided between secular and sacred, as most scholars since the socalled “Enlightenment” have tended to argue. Jones contends that there was no“Church” and “State” during the Middle Ages, but rather a societal whole in which thewhole human person, material and spiritual, was incorporated into a complete societal
and sacramental act, equally material and spiritual. This reached a zenith underKing St. Louis IX, who would later become pope and work to extend this highwatermark of the peace of Christ to the parts of Christendom given over more to thisworldliness than other-. The papacy overcame the challenge of Frederick II（1194 ─24） Cf. 1 Samuel 13 ─ 16, 2 Samuel 2.
25） See Henry Fairﬁeld Burton, “The Worship of the Roman Emperors,” The Biblical World, vol. 40,
no. 2（Aug., 1912）, 80 ─ 91.
26） Eugen Ehrlich, “The Sociology of Law,” under the heading “An Appreciation of Eugen Ehrlich,” byRoscoe Pound, Harvard Law Review, Vol. XXXVI, No. 2（Dec., 1922）, 137, cited in Kahei Rokumoto, ed.,Sociological Theories of Law（New York University Press, New York, NY, 1994）, 101, in Jason Morgan, Law
and Society in Imperial Japan: Suehiro Izutar and the Search for Equity（Amherst, NY: Cambria, 2020）, 52.
27） On the negotium pacis et fidei, see, e.g., Andrew Willard Jones, Before Church and State: A Study ofSocial Order in the Sacramental Kingdom of St. Louis（Steubenville, OH: Emmaus Academic, 2017）, esp.
Part I, “The Business of the Peace and the Faith”.

Moralogy, the Xiezhi, Casuistry, and Jewish Law

51

1250）
, and also of the Holy Roman Emperor Henry IV（1050 ─ 1106）, and for a time the28）
Church was the paragon of the social order.
There was no need to conceive of an
irruption of the divine into the secular, because the secular was already conceptualized
as a subset of the divine.29）
As Dante Alighieri（1265 ─ 1321）showed in his De Monarchia and Divine Comedy,
though, and as Niccolo Machiavelli（1469 ─ 1527）and Thomas Hobbes（1588 ─ 1679）
later developed at length in their own writings advancing the secularization of society,the ground of the medieval religious state was rapidly disintegrating. A “humanistic,”
which is to say anti-Christian, culture was being developed right at the time of theﬂowering of the Ludovician Christian peace.30） As men took over the affairs of God
and denatured divine mercy into the rougher potions of the human passions, to besorted and tamed by human “reason,” the law became a double of the Cartesian self, amechanical contraption which was paradoxically all inner-space and without any
abiding soul.31） There was left no venue in which to perform the discerning search
for the guiding mean advocated by Hiroike and by countless other thinkers from theEast. The law in the West underwent a period of tremendous change, especially
under what English political philosopher Michael Oakeshott（1901 ─ 1990）has described as the shift from the gubernaculum to the legislatio, or, more precisely, fromrule by reasonable men to rule by inﬂexible and universalized laws, verbal extensions
to infinity of the naked power of the sovereign enthroned.32） Ironically, it was
through rule by laws that the arbitrariness of rule by men was both ampliﬁed, by themedium of the lawbook, and transformed into the tyranny of the elided circumstance.
The doctrine of the mean, impossible for the Cartesian（and especially later Kantian）
person, became doubly impossible under the legislative state.33）
The tandem balance between the state and the divine, which had helped keep28） See Paul Johnson, A History of Christianity（New York, NY: Simon and Schuster, 1976）, 193 ─ 236.
29） John Julius Norwich, Sicily: An Island at the Crossroads of History（New York, NY: Random House,2015）, 116 ─ 118.
30） See David Walsh, ed., Eric Voegelin, The Collected Works of Eric Voegelin: Volume 21, History of
Political Ideas, Volume III, The Later Middle Ages（Columbia, MO: University of Missouri Press, 1998）, 66 ─
82, and “The Medicean Restoration” and “The Problem of English Machiavellism” in J.G.A. Pocock, The
Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition（Princeton, NJ:
Princeton University Press, 1975）.
31） See Justin E.H. Smith, “Leibniz’s Harlequinade: Nature, Infinity, and the Limits of Math ematization,” in Geoffrey Gorham, Benjamin Hill, Edward Slowik, and C. Kenneth Waters, eds., The
Language of Nature: Reassessing the Mathematization of Natural Philosophy in the Seventeenth Century（Minneapolis, MN: University of Minnesota Press, 2016）, 250 ─ 273.
32） See Judith N. Shklar, “Ideology Hunting: The Case of James Harrington,” The American Political
Science Review, vol. 53, no. 3（Sep., 1959）, 662 ─ 692, Francis Oakley, “Jacobean Political Theology: The
Absolute and Ordinary Powers of the King,” Journal of the History of Ideas, vol. 29, no. 3（Jul. ─ Sep., 1968）,
323 ─ 346, and Michael Oakeshott, Rationalism in Politics and Other Essays（Indianapolis, IN: Liberty Fund,
1991）, 314 ─ 332.
33） See Jason Morgan, “The Human Person in Confucianism: Triadic Relationships and thePossibilities of an Agapastic Semeiotic Pragmatism,” Dao: A Journal of Comparative Philosophy（2020）.

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clear a space for discernment, justice, and the working out of the doctrine of themean, was lost as the state assumed primacy in all aspects of human existence. This
was nowhere truer than in the relationship between the ruler and the clergy. Kings
eager to centralize power in their own hands found ways either to co-opt the priests of
their realm, or else discovered arguments in favor of their own quasi-divinity, as under
the Roman emperors.34） In addition, later theorists like Roger Bacon held that men
were citizens（not subjects）, but the liberalization of the body politic ─ the splinteringof the realm into a Hobbesian kaleidoscope of sovereign individuals ─ tended only toaccelerate the process of centralization of authority in the government. The divineright of kings posited a kind of political transcendence to the king, with “the king’s
two bodies” becoming a theme of rule in the West.35） But the secular right of kings
was even more absolute. Politics was assuming an importance outstripping religion,
and as the inﬂuence of the Church on the law weakened, the law took on a tyranny allits own.
In the United States and other Anglophone countries, the writings of Austrian
political philosopher and Nobel laureate Friedrich Hayek（1899 ─ 1922）are sometimes
held up as milestones in constitutional theory. Hayek claimed to be exploring what
he called the “constitution of liberty,” but closer inspection reveals that this “constitution of liberty” is the apotheosis of the written law. Just as with the “original position”, the law under Hayekian thought isheuristic introduced by John Rawls（1921 ─ 2002）
made the only occupant of the jurisprudential field, with the Church and the judge
and the jury all relegated to, at best, minor supporting roles.36） The only liberty to befound, under Hayek’s scheme, is the liberty of the law’s inﬂexible rules.37） This may
appear to be merely a political development, with the Church growing ever frailer astime progressed, but in truth there was a parallel development taking place in Romeand the rest of the Church on earth while the legal revolution toward absolutized law
continued. One famous culmination was the Vatican I pronouncement of infallibility,
which, as John W. O’Malley lays out in Vatican I: The Council and the Making of the34） Antonio Padoa-Schioppa, A History of Law in Europe: From the Early Middle Ages to the TwentiethCentury（Cambridge, England: Cambridge University Press, 2017）, 222 ─ 223.
35） See Ernst Kantorowicz, The King’s Two Bodies: A Study in Mediaeval Political Theology（Princeton,
NJ: Princeton University Press, 1957）, and Samuel J.T. Miller, “The Position of the King in Bracton and
Beaumanoir,” Speculum, vol. 31, no. 2（Apr., 1956）, 263 ─ 296.
36） John Rawls, A Theory of Justice（Cambridge, MA: Belknap Press, 1971）
37） Friedrich A. Hayek, The Constitution of Liberty（Chicago: University of Chicago Press, 1960）, esp.
part II, “Freedom and the Law,” and Norman P. Barry, Hayek’s Social and Economic Philosophy（Hampshire,
England: The Macmillan Press, 1979）, esp. ch. 4, “Liberty and Coercion,” and ch. 5, “The Theory of Law”.
See also Chiaki Nishiyama and Kurt R. Leube, eds., The Essence of Hayek（Stanford, CA: Hoover Institution
Press, 1984）, Bruno Leoni, Freedom and the Law（Princeton, NJ: D. Van. Nostrand Co., 1961）, Bruce L.
Benson, The Enterprise of Law: Justice without the State（San Francisco, CA: Paciﬁc Research Institute for
Public Policy, 1990）, and Jason Morgan, “Book Review: Judicial Review in an Objective Legal System,”
Libertarian Papers, vol. 9, no. 1（2017）, 146 ─ 156.

Moralogy, the Xiezhi, Casuistry, and Jewish Law

Ultramontane Church, was in large part a mirroring of the absolutism of the law.

53

The

Church under Pope Pius VI（1717 ─ 1799）, in Quod aliquantum（1791）, “condemned”
the political developments in revolutionary France, but in time the Church would ﬁnd
herself with little choice but to meet liberal absolutism on its own terms in order toﬁght it.38）
Parallel with this rise of absolutism in society in general, there had been, in
certain places, a hardening of the Church’s mercy into strict rules placed beyond thebounds of reason and temperance. This trend was typiﬁed by the rise of Jansenism,a strict-interpretationism of religious teachings advanced by Dutch bishop Cornelius
Jansen（1585 ─ 1638）in the early seventeenth century. Unlike in China, whereby theold noumenal nature of the divine judgment was evacuated by creeping political
cynicism until the xiezhi was little more than a symbol of its own ineffectualness, inthe West the tide of political absolutism brought in the ﬂotsam of the old Church-ledorder and deposited it as a barrier across the shore. Jansenism, while purporting to
be concerned with the next life, was hobbled with rules for this one, and it took particular hold in Northern and Western Europe. As the wisdom of the High Scholastics
was gradually forgotten and the attempt at ressourcement and revival of the Suarezians
and other later Scholastics was increasingly ignored, the Church was co-opted anew
by the secular power, which viewed with ever more apparent disdain the moral
interjections emanating from Rome.
It was as a reaction to a reaction, then, a response to the Jansenism which was, inturn, an almost unthinking reaction to the absolutization of the political order, thatcasuistry arose. As post-Jansenist thinkers such as Blaise Pascal（1623 ─ 1662）and
St. Alphonsus Maria de Liguori（1696 ─ 1787）worked out a “middle way” position
between Jansenist absolutism and the need to temper punishment to ﬁt the educational needs of men, a general way of thinking known as casuistry, or the foregroundingof cases and circumstances as a way to problematize absolute doctrines, began toemerge.39） Casuistry was, in many ways, a kind of stealth kaichi in the unraveling ofChristendom.40） The stirrings of a spirit of mercy beyond the understanding ofmortal men, coupled with the emphasis placed on situations and circumstances,38） John O’Malley, Vatican I: The Council and the Making of the Ultramontane Church（Cambridge,
MA: Belknap Press of Harvard University Press, 2018）, and Helena Rosenblatt, The Lost History of
Liberalism: From Ancient Rome to the Twenty-First Century（Princeton, NJ: Princeton University Press,
2018）, 48.
39） See Thomas Fleming, The Morality of Everyday Life: Rediscovering an Ancient Alternative to the
Liberal Tradition（Columbia, MO: University of Missouri Press, 2004）, 10 ─ 12, and Edmund Leites, ed.,
Conscience and Casuistry in Early Modern Europe（Cambridge, England: Cambridge University Press,
1988）.
40） On casuistry in general, see George Clarke Cox, “Ethics as Science and as Art,” The Journal of
Philosophy, Psychology and Scientific Methods, vol. 13, no. 8（Apr., 1916）, 204 ─ 219, and Albert R. Jonsen andStephen Toulmin, The Abuse of Casuistry: A History of Moral Reasoning（Berkeley, CA: University ofCalifornia Press, 1988）.

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subject to interpretation by individual men employing the full complement of theirreasoning and discerning and pitying powers, marked casuistry as more and muchless than the complex interworkings of the black-letter law.41）
But while the Christian West underwent this bucking around from absolutism toabsolutionism, fussiness to fuzziness, there was a foundation to the Christian legal
regimes which, although visible in plain sight, was conceptually invisible to nearly
everyone in Christendom: namely, Jewish law.
Jewish Law and the Hiroikean “Middle Way”
Jewish law is often conceived of by non-Jews as a nearly hopelessly complicatedsystem of rules governing the large and the small of a human life, from births,
weddings, and funerals to clothing, grooming, and diet. And yet, while Jewish law iscertainly capable of displaying a fastidiousness which is largely alien to the moregeneralized, rights-based political and constitutional thinking typified by liberalpolities in Europe and North America, Jewish law is in reality deﬁned, apart from thefundamental givenness of the Torah and the law in the heart by Yahweh, by thetension between the halakhah and the aggadah. “Halakhah” is the Hebrew term forthe strict interpretation of the legal codes by scholars who spend their lives contemplating vanishingly fine points of distinction. Halakhah is the black-letter law, thethings the books（and, ultimately, Yahweh）say to do and not to do. “Aggadah,” bycontrast, is the Hebrew term for the case-rooted searching for justice in a world where
it is often very difﬁcult to pronounce with ﬁnal certainty whether a given action was,given the circumstances, absolutely right or absolutely wrong. Aggadah connotes anawareness of the demands of the inﬁnity of God penetrating the ﬁnitude of the createduniverse, namely the higher justice of mercy and forgiveness over exacting justicewhich tends to shade over into vengeance, the settling of human scores under coverof divine sanction. On the aggadah interpretation, there is no way to decide inadvance exactly how to balance this cosmic equation. Unlike the bezeled precisionof the halakhah, under the aggadah one must examine all of the facts and circumstances, all of the emotions and half-sworn statements, all of the angles and inclines,
and, taking all into account in a summation, render a verdict which must, impossibly,
satisfy the demands of both divine and human justice. Hence, the emphasis placed
by Jewish legal scholars from antiquity on case law. Case law helps us to examine
how other people in the past, faced with perhaps similar dilemmas, put their best legal
guesses into play and effected, they hoped and we hope, something as close to the41） For an interesting development of law on a global scale and the question of casuistry, see Ernst
Wolff, “Ricoeur’s Contribution to a Notion of Political Responsibility for a Globalised World,” in Ernst Wolff,
Political Responsibility for a Globalised World: After Levinas’ Humanism（Bielefeld: Transcript Verlag,2011）, 221 ─ 266.

Moralogy, the Xiezhi, Casuistry, and Jewish Law

55

right and the true as any human could.
This doctrine of the mean thinking shaded over into how some Jewish intellectuals conceptualized the law. For example, the medieval Jewish philosopher Moses
Maimonides（1135 ─ 1204）understood the commandments of Yahweh in a dualistic
sense, both as pre- and proscriptions and also as guides to man’s natural end.

This

dualistic approach to the law opened up space for the pursuit of a casuistic, synderetic
justice which echoes the Hiroikean understanding of the middle way and also parallels
much of the more recondite reasoning enveloping the deployment in Chinese jurispru dential lore of the xiezhi.42） This “medianism” formed, arguably, the core of
Maimonedian thought. As Marvin Fox explains, Maimonides relied heavily on
Aristotle’s “doctrine of the mean” in his ethical teachings. Fox cites Joseph I.
Gorﬁnkle as arguing that “although Maimonides follows Aristotle in deﬁning virtue asa state intermediate between two extremes,［…］he still remains on Jewish ground as
there are biblical and Talmudical passages expressing such a thought.”43） In otherwords, Maimonides followed a “middle way” not just in Aristotelian terms, that is,
between two extremes in pursuit of an ethical disposition towards human action, butalso in socio-religious terms, embracing his position as an outsider in society toformulate a method for remaining true to the teachings of Yahweh while also acting
on those teachings in the different context of the dar al Islam.
Conclusion
The mythical avatar for weak human epistemology, especially in a courtroom
setting, the xiezhi from ancient China, the rise of casuistry in Western Europe as a
response to the Jansenism which was in turn a response to the liberal absolutism andiron bourgeois thought of Thomas Hobbes and other radical secularists, and thehidden-in-plain-sight Hiroikean-Aristotelian-Confucian counterexample of Jewish law,such as explicated by Moses Maimonides: these examples, taken together, point to a
new horizon for Hiroikean legal thought. Hiroike’s development of the Doctrine of42） See Eliezer Goldman, “Rationality and Revelation in Maimonides’ Thought,” in Shlomo Pines andYirmiyahu Yovel, eds., Maimonides and Philosophy: Papers Presented at the Sixth Jerusalem PhilosophicalEncounter, May 1985（Dordrecht, The Netherlands: Martinus Nijhoff, 1986）, 15 ─ 23, “Maimonides on
Being with God,” in Louis Jacobs, compilation and commentary, The Schocken Book of Jewish Mystical
Testimonies（New York, NY: Schocken Books, 1976）, 45 ─ 60, Chaim Neuburger, “Das Wesen des Gesetzes
in der Philosophie des Maimonides,” in Steven T. Katz, ed., Maimonides: Selected Essays（New York, NY:
Arno Press, 1980）, and Colette Sirat, A History of Jewish Philosophy in the Middle Ages（Cambridge,
England: Cambridge University Press, 1985）, 157 ─ 175. See also Moses Maimonides, Chapter 27, in
Shlomo Pines, tr., The Guide of the Perplexed, Volume II（Chicago, IL: University of Chicago Press, 1963）,
510 ─ 512.
43） Marvin Fox, “The Doctrine of the Mean in Aristotle and Maimonides: A Comparative Study,” inJoseph A. Buijs, ed., Maimonides: A Collection of Critical Essays（Notre Dame, IN: University of Notre
Dame Press, 1988）, 234, citing Joseph I. Gorﬁnkle, ed., The Eight Chapters of Maimonides on Ethics（NewYork, NY: Columbia University Press, 1912）, 54.

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the Mean as a generalized approach to ethics in the world can be deployed as anindex for legal thinking in legal traditions and legal systems beyond those immediately considered by Hiroike in his own writings.
In this essay, I have attempted to follow and expand upon Hiroike’s insights into
the nature of the law and of the human beings who must inevitably live their lives in
the law’s embrace, by bringing into the purview of Hiroikean theoretical jurisprudence
a range of examples which, I believe, prove the original integrity of Hiroike’s legal
thought. The “middle way” is more than an Aristotelian or Confucian avoidance of
extremes. The “middle way,” on the Hiroikean interpretation, has an explanatory
power of its own, and in the future I hope this aspect of Hiroike’s moral philosophy
can be brought to bear on many more of the world’s contemporary and past legal
cultures than those few introduced above.
Bibliography
Barry, Norman P. Hayek’s Social and Economic Philosophy. Hampshire, England: The Macmillan
Press. 1979.
Benson, Bruce L. The Enterprise of Law: Justice without the State. San Francisco, CA: PacificResearch Institute for Public Policy. 1990.
Brook, Timothy, Michael van Walt van Praag, and Miek Boltjes, eds. Sacred Mandates: AsianInternational Relations since Chinggis Khan. Chicago, IL: University of Chicago Press. 2018.
Burton, Henry Fairﬁeld. “The Worship of the Roman Emperors.” The Biblical World. 1912.
Carpenter, David. “Magna Carta 1215: Its Social and Political Context.” In Lawrence Goldman, ed.
Magna Carta: History, Context, and Influence. London, England: University of London Press/
Institute of Historical Research. 2018.
Chang Ching. Zusetsu: Ch goku bunka hyakka, vol. 2, Ten kakeru shinborutachi: genos d butsu no
bunkashi. Tokyo: Keiyousha. 2002.
Chanock, Martin. Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia.
Cambridge and New York: Cambridge University Press. 1985.
Chapman, Alison A. “Milton and Legal Reform.” Renaissance Quarterly. 2016.
Chikuro Hiroike: Father of Moralogy. Kashiwa: The Institute of Moralogy. 2005.
Cohen, Mitchell and Nicole Fermon, eds. Princeton Readings in Political Thought: Essential Texts
since Plato. Princeton, NJ: Princeton University Press. 1996.
Cox, George Clarke. “Ethics as Science and as Art.” The Journal of Philosophy, Psychology and
Scientific Methods. 1916.
de Bary, Wm. Theodore. The Trouble with Confucianism. Cambridge, MA: Harvard University Press.
1991.
Ehrlich, Eugen. “The Sociology of Law.” Harvard Law Review. 1922.
Fish, Stanley. Is There a Text in this Class? The Authority of Interpretive Communities. Cambridge,
MA: Harvard University Press. 1980.
Fleming, Thomas. The Morality of Everyday Life: Rediscovering an Ancient Alternative to the Liberal
Tradition. Columbia, MO: University of Missouri Press. 2004.
Fox, Marvin. “The Doctrine of the Mean in Aristotle and Maimonides: A Comparative Study.” In
Joseph A. Buijs, ed. Maimonides: A Collection of Critical Essays. Notre Dame, IN: University ofNotre Dame Press. 1988.
Goldman, Eliezer. “Rationality and Revelation in Maimonides’ Thought.” In Shlomo Pines andMoralogy, the Xiezhi, Casuistry, and Jewish Law

57

Yirmiyahu Yovel, eds. Maimonides and Philosophy: Papers Presented at the Sixth Jerusalem
Philosophical Encounter, May 1985. Dordrecht, The Netherlands: Martinus Nijhoff. 1986.
Goodwin, Janet R. and Joan R. Piggott, eds. Land, Power, and the Sacred: The Estate System inMedieval Japan. Honolulu, HI: University of Hawai’i Press. 2018.
Gorfinkle, Joseph I., ed. The Eight Chapters of Maimonides on Ethics. New York, NY: Columbia
University Press. 1912.
Halpern, Richard. “The King’s Two Buckets: Kantorowicz, Richard II, and Fiscal Trauerspiel.”
Representations. 2009.
Han Wei cong shu. Taipei: Xinxing Shuju. 1970.
Hayek, Friedrich A. The Constitution of Liberty. Chicago: University of Chicago Press. 1960.
Hiroike Chikurō. T y h seishi joron. Tokyo: Waseda Daigaku Shuppanbu. 1905.
Hobbes, Thomas. Leviathan. 1651.
Hoekstra, Kinch. “ʻLeviathan’ and its Intellectual Context.” Journal of the History of Ideas. 2015.
Imamura Yoshio. Y y zasso（5 vols.）. Tokyo: Heibonsha. 1981.
Ishimoda Shō. Nihon no kodai kokka. Tokyo: Iwanami Shoten. 1971.
Iwaki Hideo, tr. Go zasso（8 vols.）. Tokyo: Heibonsha. 1998.
Jacobs, Louis, comp. The Schocken Book of Jewish Mystical Testimonies. New York, NY: Schocken
Books. 1976.
Jansen, Maarten and Gabina Aurora Pérez Jiménez. Encounter with the Plumed Serpent: Drama andPower in the Heart of Mesoamerica. Boulder, CO: University of Colorado Press. 2007.
Johnson, Paul. A History of Christianity. New York, NY: Simon and Schuster. 1976.
Jones, Andrew Willard. Before Church and State: A Study of Social Order in the Sacramental Kingdomof St. Louis. Steubenville, OH: Emmaus Academic. 2017.
Jonsen, Albert R. and Stephen Toulmin. The Abuse of Casuistry: A History of Moral Reasoning.
Berkeley, CA: University of California Press. 1988.
Kantorowicz, Ernst. The King’s Two Bodies: A Study in Mediaeval Political Theology. Princeton, NJ:
Princeton University Press. 1957.
Katz, Paul R. Divine Justice: Religion and the Development of Chinese Legal Culture. London, England:
Routledge. 2009.
Katz, Paul R. and Stefania Travagnin, eds. Concepts and Methods for the Study of Chinese Religions III:Key Concepts in Practice. Berlin: De Gruyter. 2019.
Kohler, Kaufmann. “The Sabbath and Festivals in Pre-Exilic and Exilic Times.” Journal of theAmerican Oriental Society. 1917.
Kreisel, Howard. Judaism as Philosophy: Studies in Maimonides and the Medieval Jewish Philosophersof Provence. Boston, MA: Academic Studies Press. 2015.
Kumazawa Miyu. “Kinsei buke ni okeru shinjū hakutaku no juyō.” Aichi Kenritsu Daigaku Bungaku
Bunkazai Kenky sho Kiy . 2016.
Kure Asao. “Hiroike Chikurō ʻTōyō hōseishi joron’ no tokushoku to gakusetsu shijō no igi:
ʻhō=nori’ron wo chūshin toshite.” Moraroj Kenky . 2016.
Leites, Edmund, ed. Conscience and Casuistry in Early Modern Europe. Cambridge, England:
Cambridge University Press. 1988.
Leoni, Bruno. Freedom and the Law. Princeton, NJ: D. Van. Nostrand Co. 1961.
Lewis, Ewart. “King above Law? ʻQuod Principi Placuit’ in Bracton.” Speculum. 1964.
Lin Duan. Wei Bo lun Zhongguo chuantong falü: Wei Bo bijiao shehuixue de pipan. Taipei: Sanmin
Shuju. 2003.
Maeno Naoaki. Sangaiky , Retsusenden. Tokyo: Shūeisha. 1975.
Maimonides, Moses, Shlomo Pines, tr. The Guide of the Perplexed, Volume II. Chicago, IL: Universityof Chicago Press. 1963.

58

Studies in Moralogy

No. 86, 2021

Miller, Samuel J.T. “The Position of the King in Bracton and Beaumanoir.” Speculum. 1956.
Mishina Akihide. Kodai saisei to kokurei shink . Tokyo: Heibonsha. 1973.
Mishina Akihide. Nihon shinwaron. Tokyo: Heibonsha. 1970.
Miyashita Kazuhiro. “Jukyō no shisō to Hiroike Chikurō.” Reitaku Daigaku Kiy . 2017.
Morgan, Jason. “Book Review: Judicial Review in an Objective Legal System.” Libertarian Papers.
2017.
Morgan, Jason. Law and Society in Imperial Japan: Suehiro Izutar and the Search for Equity.
Amherst, NY: Cambria. 2020.
Mozume Takami. Mozume Takakazu, K bunko（book 4）. Tokyo: Meicho Fukyūkai. 1916.
Nardin, Terry and Luke O’Sullivan, eds. Michael Oakeshott, Lectures in the History of PoliticalThought. Imprint Academic. 2006.
Neuburger, Chaim. “Das Wesen des Gesetzes in der Philosophie des Maimonides.” In Steven T.
Katz, ed. Maimonides: Selected Essays. New York, NY: Arno Press. 1980.
Nishiyama, Chiaki and Kurt R. Leube, eds. The Essence of Hayek. Stanford, CA: Hoover Institution
Press. 1984.
Norwich, John Julius. Sicily: An Island at the Crossroads of History. New York, NY: Random House.
2015.
Oakeshott, Michael. Rationalism in Politics and Other Essays. Indianapolis, IN: Liberty Fund, 1991.
Oakley, Francis. “The Absolute and Ordained Power of God and King in the Sixteenth andSeventeenth Centuries: Philosophy, Science, Politics, and Law.” Journal of the History of Ideas.
1998.
Oakley, Francis. “Jacobean Political Theology: The Absolute and Ordinary Powers of the King.”
Journal of the History of Ideas. 1968.
Ocko, Jonathan. “Interpretive Communities: Legal Meaning in Qing Law.” In Robert E. Hegel andKatherine Carlitz, eds. Writing and Law in Late Imperial China: Crime, Conflict, and Judgment.
Seattle, WA: University of Washington Press. 2007.
O’Malley, John. Vatican I: The Council and the Making of the Ultramontane Church. Cambridge, MA:
Belknap Press of Harvard University Press. 2018.
Overmyer, Daniel L. “Attitudes Toward Popular Religion in the Ritual Texts of the Chinese State: The
Collected Statutes of the Great Ming.” Cahiers d’Extrême Asie. 1989–1990.
Ozaki Yūjirō. Kund setsumon kaiji ch , hisago satsu. Tokyo: Tōkai Daigaku Shuppankai. 1993.
Ozaki Yūjirō. Kund setsumon kaiji ch , ishi satsu. Tokyo: Tōkai Daigaku Shuppankai. 1986.
Padoa-Schioppa, Antonio. A History of Law in Europe: From the Early Middle Ages to the TwentiethCentury. Cambridge, England: Cambridge University Press. 2017.
Park Yong-chol. “Chūsei Chūgoku ni okeru jigoku to gokushō.” Ronbun Mokuroku. Kyoto. 1996.
Pocock, J.G.A. The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican
Tradition. Princeton, NJ: Princeton University Press. 1975.
Rawls, John. A Theory of Justice. Cambridge, MA: Belknap Press. 1971.
Renteln, Alison Dundes and Alan Dundes, eds. Folk Law: Essays in the Theory and Practice of Lex
Non Scripta. 2 volumes. Madison, WI: The University of Wisconsin Press. 1994.
Rokumoto, Kahei, ed. Sociological Theories of Law. New York, NY: New York University Press. 1994.
Rosenblatt, Helena. The Lost History of Liberalism: From Ancient Rome to the Twenty-First Century.
Princeton, NJ: Princeton University Press. 2018.
Shirakawa Shizuka. Keit zakki, sh i. Tokyo: Heibonsha. 2010.
Shirakawa Shizuka. Shirakawa Shizuka chosakush 1, Kanji 1. Tokyo: Heibonsha. 1999.
Shirakawa Shizuka. Shirakawa Shizuka chosakush 12, Zassan. Tokyo: Heibonsha. 2000.
Shklar, Judith N. “Ideology Hunting: The Case of James Harrington.” The American Political Science
Review. 1959.

Moralogy, the Xiezhi, Casuistry, and Jewish Law

59

Sirat, Colette. A History of Jewish Philosophy in the Middle Ages. Cambridge, England: Cambridge
University Press. 1985.
Slingerland, Edward. Mind and Body in Early China: Beyond Orientalism and the Myth of Holism.
Oxford, England: Oxford University Press. 2019.
Smith, Justin E.H. “Leibniz’s Harlequinade: Nature, Inﬁnity, and the Limits of Mathematization.” In
Geoffrey Gorham, Benjamin Hill, Edward Slowik, and C. Kenneth Waters, eds. The Language of
Nature: Reassessing the Mathematization of Natural Philosophy in the Seventeenth Century.
Minneapolis, MN: University of Minnesota Press. 2016.
Struck, Peter T. “2013 Arthur O. Lovejoy Lecture: A Cognitive History of Divination in Ancient
Greece.” Journal of the History of Ideas. 2016.
Suzuki Hiroshi. Ch goku no shinwa densetsu, vol. 1. Tokyo: Seidosha. 1993.
Takafuji Harutoshi. “Wasurerareta zuijū: kai, sono zuzōgakuteki bunrui no kokoronomi.” Bunsei
Kiy . 2009.
Takahashi Tadahiko. Bunsen（fuhen）, vol. 2. Tokyo: Meiji Shoin. 1994.
Takikawa Masajirō. H ritsu shiwa. Tokyo: Ganshodo. 1932.
Teeuwen, Mark and John Breen. A Social History of the Ise Shrines: Divine Capital. London, England:
Bloomsbury Academic. 2017.
Terajima Ryōan. Wa Kan sansei zue, vol. 1. Tokyo: Tōkyō Bijutsu. 1970.
Tierney, Brian. “Bracton on Government.” Speculum. 1963.
Uesugi Chisato. Komainu jiten. Tokyo: Ebisukosyo Publication. 2001.
van Hoecke, Mark and Mark Warrington. “Legal Cultures and Legal Paradigms: Towards a New
Model for Comparative Law.” International and Comparative Law Quarterly. 1998.
Walsh, David, ed. Eric Voegelin, The Collected Works of Eric Voegelin: Volume 21, History of Political
Ideas, Volume III, The Later Middle Ages. Columbia, MO: University of Missouri Press. 1998.
Weber, Max. The Religion of China. 1951.
Wolff, Ernst. “Ricoeur’s Contribution to a Notion of Political Responsibility for a Globalised World.”
In Ernst Wolff, Political Responsibility for a Globalised World: After Levinas’ Humanism.
Bielefeld: Transcript Verlag, 2011.
Yajima Akiko. “Chūgoku kodai no dōbutsukan wo meguru kenkyū: tori no imēji kara miru kodai nokankyō to shinsei.” Ph.D. dissertation, Keio Gijuku Daigaku Daigakuin. 2017.
Yamada Katsumi. Ronk , vol. 1. Tokyo: Meiji Shoin. 1976.
Yamada Katsumi. Ronk , vol. 2. Tokyo: Meiji Shoin. 1979.
Yamada Taku. Bokushi, vol. 1. Tokyo: Meiji Shoin. 1975.
Yamakawa Aki. “Chūkinsei senshokuhin no kisoteki kenkyū.” Ph.D. dissertation, Ochanomizu Joshi
Daigaku Daigakuin. 2013.
Yang, C.K. Religion in Chinese Society. 1967.
Yoshida Kenkō. Shiki, 1（Honki）. Tokyo: Meiji Shoin. 1973.