Introduction
This essay explores the conceptualisations of law and justice in two distinct contexts: dynastic China, with a focus on the Confucian and Legalist traditions, and the legal positivist framework developed by Hans Kelsen, a prominent 20th-century jurist. The purpose of this analysis is to compare their perspectives on the nature, purpose, and application of law, and to evaluate whether there is any meaningful agreement between these vastly different historical and philosophical approaches. Dynastic China, spanning over two millennia, offers a rich tapestry of thought on law as a tool for social order and moral governance, while Kelsen’s Pure Theory of Law presents a formalistic, hierarchical understanding of legal norms divorced from morality. By examining these perspectives, this essay will address key themes such as the role of morality in law, the source of legal authority, and the relationship between law and justice. Ultimately, it will argue that while both systems acknowledge law as a mechanism for order, their fundamental principles and objectives diverge significantly, limiting the scope for agreement.
Law and Justice in Dynastic China
In dynastic China, spanning from the Shang Dynasty (c. 1600–1046 BCE) to the Qing Dynasty (1644–1912 CE), conceptions of law and justice were deeply influenced by two major schools of thought: Confucianism and Legalism. These traditions shaped legal theory and practice across various dynasties, often coexisting in tension. Confucian thought, originating with Confucius (551–479 BCE), viewed law as secondary to moral cultivation and societal harmony. For Confucius, justice was achieved not through rigid legal enforcement but through the internalisation of virtues such as ‘ren’ (benevolence) and ‘li’ (propriety). Legal codes, while necessary, were seen as a last resort for maintaining order when moral education failed (Fairbank and Goldman, 2006). Thus, law in Confucian thought was inherently tied to ethical principles, with rulers expected to govern as moral exemplars.
In contrast, Legalism, prominent during the Qin Dynasty (221–206 BCE), advocated for a strict, codified legal system as the primary means of governance. Legalist thinkers like Han Fei (c. 280–233 BCE) argued that human nature was inherently selfish, necessitating harsh laws and punishments to enforce compliance (Schwartz, 1985). Justice, in this view, was synonymous with the consistent application of state law, regardless of moral considerations. The Qin legal code, for instance, was notoriously punitive, prioritising uniformity and state power over individual ethics. However, even under Legalist rule, elements of Confucian morality often persisted in practice, as subsequent dynasties like the Han (206 BCE–220 CE) blended the two philosophies into a hybrid system of governance (Loewe, 2006).
Arguably, the dynastic Chinese view on justice was context-dependent, varying between moral integration and authoritarian control. Law was generally seen as a practical tool—whether to cultivate virtue or enforce obedience—rather than an abstract ideal. This pragmatic approach reflects a broader cultural emphasis on social stability over individual rights, a stark contrast to many Western legal traditions.
Hans Kelsen’s Pure Theory of Law
Hans Kelsen (1881–1973), an Austrian jurist, developed the Pure Theory of Law as a scientific, normative framework for understanding legal systems. His theory, articulated in works such as General Theory of Law and State (1945), sought to separate law from morality, politics, and other non-legal considerations. Kelsen posited that law is a hierarchical system of norms, with each norm deriving its validity from a higher norm, ultimately tracing back to a foundational ‘Grundnorm’ or basic norm (Kelsen, 1945). This Grundnorm is not based on moral or ethical justification but is a presupposed starting point for legal validity.
For Kelsen, justice is not an inherent component of law. Instead, justice is a subjective, moral concept that varies across individuals and societies, and thus cannot be objectively integrated into legal analysis. He argued that law’s purpose is to provide order through a coherent system of rules, enforced by a monopoly of legitimate coercion (Kelsen, 1945). Therefore, a law remains valid even if it is morally unjust, as long as it adheres to the procedural norms of the system. This legal positivism directly challenges traditional views, such as those in dynastic China, where moral considerations frequently intersected with legal authority.
Kelsen’s approach demonstrates a clear, analytical focus on the structure of law, prioritising logical consistency over ethical content. This formalistic perspective offers a universal framework for understanding legal systems but lacks engagement with the cultural and moral dimensions that often underpin notions of justice.
Comparison and Potential Agreement
When comparing the views on law and justice in dynastic China with Kelsen’s theory, several points of divergence emerge, alongside limited areas of convergence. Firstly, the role of morality in law marks a fundamental disagreement. In dynastic China, particularly under Confucian influence, law was often seen as an extension of moral order, with justice inseparable from ethical governance (Fairbank and Goldman, 2006). Even Legalist thought, while seemingly closer to positivism in its emphasis on codified rules, operated within a framework of state-centric values rather than moral neutrality. Kelsen, by contrast, explicitly rejects the integration of morality into legal validity, arguing that such considerations contaminate the scientific nature of law (Kelsen, 1945). This dichotomy suggests a profound philosophical divide.
Secondly, the source of legal authority differs significantly. In dynastic China, the emperor’s mandate, often framed as the ‘Mandate of Heaven,’ provided a quasi-divine legitimacy to laws, blending political and spiritual authority (Loewe, 2006). Kelsen’s Grundnorm, however, is a theoretical construct, devoid of metaphysical or moral grounding, serving only as a logical necessity for the legal system’s coherence. This highlights a contrast between a culturally embedded, historical basis for law in China and a purely abstract, systemic one in Kelsen’s theory.
Despite these differences, a potential area of agreement lies in the recognition of law as a mechanism for social order. Both dynastic Chinese thought and Kelsen’s theory acknowledge that law serves to regulate behaviour and maintain stability within a society. For Legalists, this meant strict enforcement of rules; for Kelsen, it involved the structured application of norms. However, this similarity is superficial, as the underlying purposes—moral harmony or state control in China versus neutral order in Kelsen—differ substantially.
Furthermore, the concept of justice reveals irreconcilable perspectives. In dynastic China, justice was contextually tied to moral or societal outcomes, whereas Kelsen views it as external to law, a matter of individual or political interpretation rather than legal concern. Thus, while both systems address law’s role in ordering society, their views on justice and the essence of law remain fundamentally opposed.
Conclusion
In conclusion, the perspectives on law and justice in dynastic China and Hans Kelsen’s Pure Theory of Law reflect contrasting historical, cultural, and philosophical foundations. Dynastic Chinese thought, shaped by Confucian and Legalist traditions, intertwined law with morality or state power, viewing justice as an outcome of proper governance. Kelsen, conversely, advocates for a separation of law from morality, focusing on a hierarchical system of norms where justice is irrelevant to legal validity. While there is a tangential alignment in recognising law’s role in maintaining order, the core principles and objectives of these systems diverge significantly, precluding substantive agreement. This analysis underscores the importance of cultural and temporal contexts in shaping legal thought, suggesting that universal frameworks like Kelsen’s may struggle to accommodate the nuanced, value-laden approaches of historical systems like those of dynastic China. For legal scholars, this comparison highlights the complexity of defining law and justice across diverse paradigms, prompting further exploration into how such concepts evolve and interact in global legal discourse.
References
- Fairbank, J.K. and Goldman, M. (2006) China: A New History. Harvard University Press.
- Kelsen, H. (1945) General Theory of Law and State. Harvard University Press.
- Loewe, M. (2006) The Government of the Qin and Han Empires: 221 BCE–220 CE. Hackett Publishing.
- Schwartz, B.I. (1985) The World of Thought in Ancient China. Harvard University Press.
