01/04/2020: Islamic and Confucian legal cultures

(If you're reading this well after the release of this article, it was April Fools' Day and we were pretending to be a law blog instead of an otaku fan magazine...)

“Unlike the Islamic legal tradition, Confucianism is not recognisable as a legal tradition. Indeed, Confucianism is essentially opposed to the very notion of the legal.” Explain and discuss.”

The topic sentence means: Islam is a legal tradition because it is very influential today; Confucianism is not because it is uninfluential (especially since it abhors the rule of law). While somewhat true, the statement is one-dimensional because it accounts for neither secular political thinking nor the legalisation of Confucianism. I think that Confucianism is a legal tradition, just like Islam. The first 2 sections (“YES”) explain the topic sentence and the last 2 (“NO”) rebut it.

I: Islamic legal tradition (YES)

To some, Islam exemplifies a legal tradition because it is very influential.

Islamic law is often called “theology in legal form” (Hooker, 2002), based on unchanging rules. The main sources of Islamic legal tradition include: Quran (the sacred book), Sunnah (Prophet Muhammad’s traditions), qiyas (analogical/deductive reasoning); ijma (Muslim jurists’ consensus) (Abou El Fadl, “KAL:, 2012). The Quran, for instance, is the literal word of God that Muslims must not transgress. It describes good behaviour and prohibits certain conduct based on moral judgements (Mottandeh, 2003) so I think it is a type of natural law since the rules are based on unchanging principles.

These unchanging principles have found their way into the myriad of legal systems with Islamic laws. Modern Muslims have usually adopted the existing legal system of their country, which is usually a Western, secular system (KAL, 2012). For example, Malaysia retained the English common law even after gaining independence. However, the influence of the Islamic legal tradition is so profound that even secular systems must adopt Islamic legal traditions. For instance, Indonesia’s President Sukarno thought it important to establish the Ministry of Religion in 1946 to formalise Islam’s presence, whereas it previously only had standing as adat law (which was less important than the secular civil code) (Hooker, 2002). Also, Singapore’s Constitution expressly provides for a parallel system to preserve Islamic law, since Article 153 of the Constitutions mandates that “the legislature shall, by law, make provision for regulating Muslim religious affairs” (Ahmad Nizam, 2012). Even today, the Women’s Charter does not recognise Muslim marriages and so Muslim divorces are under the ambit of the Syariah Court by virtue of s 35(2) and are thus governed by traditional Islamic principles like “talak”, “taklik”, “faskh” and “khuluk” (Administration of Muslim Law Act, “AMLA”, ss 47-49). Furthermore, Islamic law is fundamental enough in Malaysia that its Constitution in 1957 and 1963 distinguish secular and religious courts. Even though secular courts can decide what is “religious”, they cannot interfere with religious courts (Article 121(1A)), demonstrating the fundamentality of Islamic law (Hooker, 2002). In fact, Islamic Affairs Minister Jamil Khir Baharom asked famously asked in 2014: “why do we want to flip this over by saying Syariah courts are subjected to the Constitution?”

Lastly, Islamic law institutions are still relevant in modern legal systems. One such institution is the ulama, religious scholars, who settle controversies and constrain secular policymaking to ensure it is aligned with Islamic law (Hooker, 2002). Modern institutions preserve this function by protecting Muslim rights and traditions (including Islamic legal tradition) like Singapore’s Presidential Council of Minority Rights, on which sits ex-mufti Shaikh Syed Isa bin Mohamed Sermait. Such institutions still influence the operation of Muslim law. AMLA also provides for the creation of a fatwa committee managed by Majlis Ugama Islam Singapura (MUIS) to rule on any point of Muslim law. This is even greater in Indonesia, where there are multiple bodies (Nahdlatul Ulama, Persatuan Islam, Muhammadiyah, etc.) issuing fatwas using different reasonings (Hooker, 2002). Thus, the old institutions of Islamic law are still relevant even in the new legal systems.

Hence, I can see why the topic sentence might use Islamic law as an exemplar of a legal tradition.

II: Confucianism (YES)

Classical Confucians do oppose the notion of the legal. The Confucian-Legalist debate illustrates: Legalists believe in regulating society via clear legal norms with attached penalties; Confucians prefer the moral regeneration of society whereby people have a strong sense of moral propriety and regulate themselves without need for penalties or legal coercion, which would only make people argumentative, contentious and concerned only with seeking out loopholes to exploit (Chen, 1999). Thus, I somewhat understand the topic sentence’s dismissal of Confucianism as a legal tradition. After all, how can it influence legal systems it is transplanted to if it does not even embrace the concept of law? Clearly, most legal systems prefer the Legalist approach. For example, China (the birthplace of Confucianism) practises very legalist, penalty-heavy law, being known for having the highest rate of execution in the world, which is obviously anti-Confucian since it eliminates the potential for moral regeneration and coerces people into obedience.

Further support for the topic sentence comes from the many legal systems that have abandoned their Confucian ways. Japan, whose historical legal system Ritsuryo had a very strong Confucian slant after being based on Tang China’s code, gave up these traditional laws in favour of the rigorously codified German BGB code, which precisely states individuals’ rights (Zweigert and Kotz, 1998) and encourages litigation to enforce those rights, which are very anti-Confucian notions. Similarly, Vietnam, where Confucianism was quite strong, would later adopt Soviet socialist law after rejecting its traditional notions as an impediment to development (Gillespie, 2018).

III: Islamic legal tradition (NO)

The first weakness in the topic sentence is the assumption that Islamic law is really so influential as a legal tradition. I argue that the influence of Islamic law today is not necessarily attributable to its influence, but rather the dominant secular principles ruling society.

In the first place, the dominance of secular law over Islamic legal tradition is evident in how easily secular laws displaced Islamic ones in South-East Asia. For example, it took the English about 20 years, and the Dutch a little more, to relegate Malayan and Indonesian Islamic legal systems to family law. Further, Syariah was reformulated into English law terms, being subject to principles like precedent and English legal reasoning. Thus, this bastardised Anglo-Muslim law could be seen as just “law made applicable to Muslims” instead than a genuine inheritor of legal tradition since understanding this hybrid does not even require reference to the classical Arabic texts (Hooker, 2002).

Secondly, the existing Islamic influences in legal systems today might not even be due to Islam. For example, the institutions to protect Muslim interests in policymaking like the Presidential Council are less due to Muslim influence than a need to protect social harmony, which comes from secular political thinking. Also, Indonesia, despite having the largest Muslim population, still professes to be a secular state and even passed the 1989 Religious Justice Law which limits the operation of Islamic law, suggesting that secular political thinking is still more important than Islamic legal tradition.

I am not arguing that Islam is not a legal tradition or that it is worse than Confucianism. Clearly, whether motivated by secular political thinking or not, Islamic legal tradition has influenced modern legal systems, albeit not as blatantly as the topic sentence suggests. If Islamic legal tradition is not really so influential, and is still considered a legal tradition, Confucianism might be, too.

IV: Confucianism (NO)

The second weakness comes from the topic sentence unfairly reducing Confucian legal culture to its original form that abhors law. Confucianism is actually a strong legal tradition because its principles have been adopted into many laws in use today.

Before I begin, I should address an initial criticism of my argument: “How can legalising Confucian values demonstrate its influence? Wouldn’t codification evince a fundamental failure of Confucianism in influencing the legal system?” In a way, that criticism is true. However, I prefer taking a holistic view of Confucianism since it is impossible to realise the classical Confucian ideal of zero codification. Society’s moral self-regeneration requires a state of gentlemen, which is unfeasible since the Confucian belief in the innate goodness of man is, sadly, unlikely. It also requires a morally-upright leader to spread these virtues, whereas charisma and righteousness are scarcely found in today’s political leaders. Anyway, Professor Albert Chen believes that Confucianism is dynamic and receptive to new concepts (Chen, 1999) so codification of the laws is not really so bad. Furthermore, as in Han China, it would be politically unfeasible to get rid of the legalist laws and adopt an entirely Confucian coercion-free system, so codification is really a “better-than-nothing” way to at least promulgate Confucian values.

First, Confucian values have made their way into modern legal systems.

Confucians believe in li (moral norms of propriety) and ren (benevolence) (Bui, 2018).

Li guides one’s interactions with others, occurring in the “5 human-ethical relationships”: father-son; ruler-subject; husband-wife; old-young; friend-friend, where each relationship imposes different moral obligations on each party (Chen, 1999). Since societal relationships begin at home, familial relationships are the most basic and important. If all have good conduct with their close relatives, they would also with their neighbours, peers and the authority, leading to a harmonious society (Chen, 1999). Thus, filial piety is extremely important (particularly father-son). For example, South Korea has 13 provisions imposing heavier punishments for crimes against lineal ascendants and upheld provisions prohibiting complaints against lineal ascendants in 2017. Closer to home, Singapore’s Maintenance of Parent’s Act and China’s Elderly Protection Law 2013 also encourages (or enforces) filial piety by allowing parents to sue their children if they do not care for them. As stated, using legal coercion to enforce Confucian values is not really Confucian, but it demonstrates the importance of Confucian principles.

Ren has also been increasingly prevalent in some societies. Singapore has been shifting away from adversarial dispute resolution in courts. CJ Menon stated at the Asia Pacific International Mediation Summit that mediation would be promoted as an alternate dispute resolution platform. Also, divorcing couples must also undergo mandatory mediation before going to court. This preference for less strict enforcement of one’s individual rights is very Confucian, since it encourages collaborative dispute resolution and possibly preserves societal relationships, going towards the realisation of a harmonious society.

Second, Confucian values have snuck back into legal systems after they were rejected, showing that they were not so easily cast aside. For instance, the Japanese anti-litigation attitude has prevailed over the BGB’s litigation-heavy slant. Although the BGB clearly states individual rights, the Japanese still hesitate to sue others (evinced by the small size of the legal profession) and judges have even ruled against enforcing strict legal rights in favour of preserving long-term landlord-tenant relationships. Vietnamese socialist leaders, despite initially disregarding Confucianism, resorted to neo-Confucian aphorisms like “people are a totality of their social relationships” to support socialist communitarianism; while leaders like Ho Chi Hinh were presented as paragons of virtue for the people to emulate, also a very Confucian idea. This points to the strength of Confucianism in its relatability and intuitiveness, compared to complicated socialist ideas that failed to influence people. Thus, Confucianism is more resilient than expected and has a lasting impact on culture and law.

V: Conclusion

As I approach the end of the time limit and the boundaries of my vocabulary, I conclude this essay by emphasising that Confucianism is not really a weak legal tradition simply because it abhors the notion of legal, because it is actually both prevalent and persistent. In contrast, Islam is not much more influential than Confucianism but is still considered a legal tradition because it is still accommodated. Thus, if one is considered a legal tradition, so should the other. However, neither can fully explain their prevalence today. As with Islam, I suspect that political secular thinking is probably the ultimate determinant. The given examples, while consistent with Muslim/Confucian concepts, are probably enacted only because they align with political needs. For example, most Muslim fiqh law depends on scholarly interpretation, so which interpretation is enacted depends on the leader’s prevailing concerns. Similarly, Confucian laws targeting corruption (like China’s anti-graft tiger/fly campaign) serve the important function of weeding out bad officials – that they also encourage leaders to be moral paragons, like Confucius wanted, is just a side benefit. As such, the importance of Confucian/Islamic law will depend on how relevant they are to the political leaders. (We have obtained permission from the writer of this essay to share it on our website. Please feel free to read it for interest and inspiration. However, please obey all plagiarism rules - do not copy sentences or paragraphs from this essay wholesale.)