Week 10 - “Asian” (Confucianism) legal culture Flashcards
(13 cards)
Why can’t we see Asia as one big legal community?
This is because Asia consists of a lot of different countries, each with its own way of doing things.
Some are still communist, some are trying to change military rule and in others there is a stable democracy.
Legal systems in Asian countries have been heavily influenced by confucianism. What is confucianism?
The confucian legal tradition is not based on written laws and punishments in the way many Western systems are. Instead, it is deeply rooted in a moral an philosophical framework that focuses on ethical behavior with human relationships.
What is the highest goal of confucianism?
The Confucian legal tradition envisions a society where people are guided by inner virtues rather than external rule and where the ultimate goal is to maintain harmony, in family life, personal life, in society and in government.
Name two unique features of the Confucian worldview.
Two unique features of the Confucian worldview is its emphasis on the collective good and a sense of hierarchy and duty.
The individual is not seen as separate or more important than the community. Rather, a person fulfills their role in society by fulfilling their duties within the network of hierarchical relationships, such as between parent and child.
What role does the government have in the Confucian legal tradition?
A rule must be both technically competent and morally upright. This means that the government is not just about making efficient policies or enforcing rules; it is about shaping people’s behavior through ethical leadership.
How are aspects of the Confucian legal tradition still seen in Asian legal systems today? Give an example.
Aspects of the Confucian legal system can be seen in how East Asian societies emphasize order, respect for elders and collective responsibility.
Does Confucianism dismiss the need for law in society?
Confucianism doesn’t dismiss the need for law entirely. It recognizes that not everyone will live up to the moral ideal, and in such cases, legal rules and procedures become necessary. Law is seen as a backup, something to fall back on when education, persuasion and social expectations fail to resolve a conflict or prevent them.
How do people in a system based on Confucianism look at litigation?
In a system based on Confucianism, people prefer mediation over litigation, when a conflict needs to be resolved. Mediation aims to restore relationships and maintain the dignity of all parties involved.
Asian values are influenced by the core virtues of Confucianism (ren, yi, li, zhi and xin). Name three key principles of Asian values.
- Primacy of the collective over individual interests.
- The need to ensure social harmony. Harmony is regarded as the highest social good.
- Primacy of the interests of the family, community and nation.
What is the Chuntzu in the Cofucian perspective?
The Chuntzu is the honerable man. It means fulfilling duties and responsibilities within relationships with others.
What is the main criticism at the Asian value system?
The main criticism stems from the conflict between the emphasis on individual duties to the community ant the Western concept of human rights based on individualism.
Critics argue that, from a government perspective, prioritizing the collective interest over individual rights may lead to a focus on economic development at the expense of civil an political rights.
In addition, some see bureaucratic and authoritarian governments as more functional under this system, overshadowing the goal of achieving collective well-being.
What characterizes constitutionalism in many Asian countries compared to Western models?
Asian constitutionalism includes basic elements like separation of powers and rule of law but is more conservative in nature due to traditional values like Confucianism. It emphasizes social order, respect for authority, and collective harmony over individual freedoms. It functions within a specific cultural context, often limiting individual rights when they conflict with the collective good or social harmony.
The modern Korean legal system is described as a hybrid. Why is this?
Korean law had been shaped by Japanese influence, confucianism and Buddhims and elements from the American legal model.
Trying to move away from the confucian model, they introduced elements of the US system in their constitution. The main priorities of Korea were to establish a democratic system, protect rights and to create an rule of law, while also preserving the traditional legal culture based on confucianism.
