Reaction Paper: Intellectual foundations of the Chinese Legal Tradition
Before reading the Peerenboom article, it never would have occurred to me that a society of laws could be viewed as anything other than the optimal way of producing order and social harmony. However, that is not what Confucius thought. He thought that a society of laws produced the lowest acceptable level of social harmony because laws only focus on external behavior. People will avoid doing what they will be punished for, but this avoidance is not related to their conscience because laws do nothing to "transform our inner character". Embedded in this idea is the notion of shame - that the decision to refrain from certain things does not come from the law telling us we can't do it, but rather we refrain because we would feel shame if we did it. Actually, in an ideal world, this does seem like it would produce the optimal level of social harmony.
Confucius was perfectly right in thinking that telling someone not to do something is much weaker that that person deciding not to do something because of his or her moral conviction that it is wrong.
And relatedly, substantive justice, or deciding the outcome based on whether the action was morally right or wrong, just feels better than assuming that the right result was reached because all of the procedural safeguards were met and the law was ostensibly applied appropriately. Who wouldn't prefer to punish someone primarily because what that person did was unequivocally wrong, not just illegal? Also, the idea of really considering someone's personal situation in evaluating their fate has some appeal- especially in the case of being able to punish a bad person for doing a bad thing or exonerating a good person because,