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Confucianism and Legalism are two major Classical legal theories or philosophies developed during the Spring and Autumn period and the Warring States period, a time that saw the most impressive proliferation of new ideas and philosophies in Chinese history.   While both theories call for governmental hierarchy, they differ drastically in their views of human potential and the preferred means to achieve political order.  Nevertheless, both theories have influenced and continue to influence the development of cultural, social, and legal norms in China.

The basic premise of Confucianism is the idea that human beings are fundamentally good.  With this optimistic view on human potential, Confucius advocates for ruling through li – traditional customs, mores, and norms – which allow people to have a sense of shame and become humane people with good character, rather than through government regulations and penal law.  The idea is that people will internalize the acceptable norms and only take proper actions.  This will not only lead to a harmonious social order, but it will also provide the additional benefit of improving an individual’s inner character and the overall quality of the society.  In contrast, codified laws require external compliance, and people may abide by the laws without fully understanding the reason for compliance.  As such, a social order achieved through formal laws does not come with the additional benefit of better citizenry.  It is worth noting, however, that even Confucius did not advocate for the elimination of formal laws.  Rather, according to Confucius, laws should be used minimally and reserved only for those that insist on pursuing one’s self-interests without taking into account the well being of the society.

As Confucius rejects the general use of formal laws to achieve social order, what lies vital to Confucius’ theory is the willing participation by citizens of the society to search for commonly accepted, cooperative solutions.  In addition to willing participation of citizens, there must also be grounds or bases upon which commonly acceptable solutions can be arrived at - the concept known as li.  Li is commonly understood as a set of culturally and socially valued norms that provide guidance to proper behaviors that will ultimately lead to a harmonious society.  These norms are not fixed or unchangeable over time but rather a reflection of what is accepted at a particular time in a particular context.  When conflicts arise, the li have to be applied and interpreted to produce a just result and restore the harmony of the society.  However, in the absence of any procedural safeguard afforded by codified laws, interpretation of li is subject to abuse.

Recognizing that people in a society hold diverse interests, Confucius charges the ruler with the responsibility to unify these interests and maintain social order.  This is not done by dictatorship but by setting an example.  Therefore, a ruler needs not to force his people to behave properly.  Instead, the ruler needs only to make himself respectful, and the people will be induced and enlightened by his superior virtues to follow his example – an ideal known as wuwei.  Nevertheless, the ruler must know and understand the li to be able to create solutions to conflict and problems the society faces.  As the people are to follow the moral standards and example set by the ruler, to a large extent, the quality of the ruler determines the quality of the political order.

In contrast to Confucius’ li-based theory, the Legalism advocates the utilization of codified laws and harsh punishment to achieve social order.  This is due to the legalists’ belief that all human beings are born evil and self-interested.  Therefore, if left unrestrained, people would engage in selfish behavior which will undoubtedly lead to social unrest.  To cure this defect and force people to behave morally, the only way, believed the legalists, is to publicly promulgate clearly written laws and impose harsh punishments.

Realizing that the abilities of rulers are often limited and that reliance on the ruler’s ability and judgment often leads to adverse results, the legalists designed a system in which the law is run by the state, not the ruler.  This ensures that the laws will be applied impartially without the interference of personal bias of the ruler or ones who are responsible for applying the laws.  It also makes it irrelevant whether the ruler has superior abilities.  This non-action promoted by the legalists is their understanding of the concept of wuwei, which is different from the Confucians’ understanding of the same concept.  Notwithstanding such an understanding, the ruler, like in Confucianism, has the ultimate authority to decide what the law should be.  Therefore, like Confucianism, Legalism is subject to abuse as well.  In fact, the Qin emperor implemented strict laws and extremely harsh punishments without taking into account mitigating circumstances even for insignificant crimes.  For example, books were burned and people holding different ideals were buried alive.  While the Qin emperor successfully instilled fear and respect for law into the minds of his people, the harshness of the law led to his quick demise after only 14 years of reigning over China.

In summary, although both Confucianism and Legalism were developed in a period of turmoil and both were aimed at the re-unification of the country, the two theories went opposite directions with one advocating for and one against the use of formal laws to achieve social order.  What the two theories have in common is their concession of the ultimate authority to the ruler, who remained above and beyond the li or law.  It is true that neither theory is ideal in achieving a social order.  Nevertheless, both theories have had a significant impact on the cultural and legal development in China, and their influence remains visible today.