Thursday, June 12, 2014

The failed logic of liberal legalism

Anglo-Saxon liberal legalism is founded on the idea that all are equal under the rule of law and that the law must be applied in a rational way so as to protect the rights of everyone equally. In theory, this approach protects against the inequities of traditional approaches to disputes, such as Confucian-style mediation. One exemplar of such mediation comes from the Qing Dynasty:

A window brought a suit against her deceased husband's cousin, alleging that the defendant had illegally occupied her land. To prevent the litigation from developing and damaging the clan's reputation, six relatives intervened to mediate the dispute. They invited the parties to meet together [..] and looked at the land title documents. It was discovered that although the widow's deceased husband had once owned the land, he had mortgaged it to his cousin and had not been able to redeem the property before his death. The widow then understood that she had no lawful claim. But the relatives had sympathy for her and her children, and they persuaded the defendant's son to help her. he then agreed to convey the land to the widow free of charge. The conveyance deed was signed in front of the relatives, and the parties became reconciled. The relatives then jointly applied to the magistrate to terminate the litigation, and the magistrate gave his approval.¹

One can scarcely imagine such a dispute being resolved in this way in modern times, though it may happen on occasion. To be fair, mediation is becoming more of a trend, but likely for cost savings rather than any concerns about moral or ethical issues. In fact, such concerns about morals and ethics are considered inappropriate in the domain of law in the liberal and legalist state.

Another reason why Confucian ideas of social harmony (and its consequent favor of mediation) are considered inappropriate is the belief that mediation might be used to prop up social inequities and power imbalances. This is certainly a possibility, but it's no more salient than the concern that modern legalism can be perverted—after all, it often is. Today, liberalism has perverted the Confucian concepts of desiring social harmony and ethics to the degree that it has all but banished them from the conversation.

In fact, it is precisely a desire to get away from moral and ethical issues which are at the foundation of liberal legalism, and this is one of the major failures of its thinking. For example, the liberal perspective claims that officials should have no moral standing which is higher than ordinary citizens, and that this should (in theory) allow for social wrongs to be corrected by an impartial (and rational) judiciary. This judiciary is supposed to look at each case in terms of the law and not in terms of morals.

Yet, here lies a fundamental problem. In order for these judges to make anything "right", do they not already engage in a moral and ethical balancing act? In theory, the judges are just rendering judgment based on legal facts and law without regard to any grand concepts such as "correcting social wrongs and imbalances". In fact, just the opposite happens. In a legalistic society, the law is King, and it is also perverted and used to do the very thing it was supposed to protect against.

Furthermore, if judges are to truly be able to apply the law fairly and without bias, do they not need to be (...wait for it...) moral and ethical individuals? If they are not, what is to stop them from accepting bribes or engaging in favoritism? And would anyone be accepting of the idea that a judge presiding over their own case would not be more ethical or moral than the average person on the street? If not, what is the point of having them go through the process of becoming judges?

Sadly, there is no guarantee that judges are any more moral or ethical than the regular person on the street. In fact, many judges may (not surprisingly) be using their positions of power to grind their philosophical and political axes. This is the unsettling reality we face today. Our culture fetishizes rule of law and individual rights, yet fails to secure either. Theoretical conversations replace enactments. There is nothing guiding the direction of Western society but an anarchy of personal desires. It's obvious that this cannot endure and that we are living in a dark age. With all of our technological achievements we dwell in a world bereft of humaneness and benevolence.

In essence, liberal and legalist societies of the West want to do without morals and ethics, yet presume that they will somehow magically appear in all the doings of its legal system due to "enlightened rationality". Yet, what could be more "rational" than a judge accepting a bribe to further her own situation? Without an embrace by society of ideals of morals and ethics, we are lost and the judiciary cannot save us. Liberal legalism cannot save us. These are all yet more tools to be used in our destruction. Confucian reformers throughout the ages understood this, we neglect these understandings at our peril.

1: Chen, A.H. (2003).Mediation, litigation, and justice: Confucian reflections in a modern liberal society. In Bell, D. & Chaibong, H. (Eds.) , Confucianism for the modern world (pp. 257-287). Cambridge: Cambridge University Press.