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The Chinese Context And Confucian Background Of The Rights Discourse

Posted on:2015-02-05Degree:DoctorType:Dissertation
Country:ChinaCandidate:T YiFull Text:PDF
GTID:1266330428996272Subject:Legal theory
Abstract/Summary:PDF Full Text Request
Our Chinese people often have to be drawn or thrown into many interpersonalrelations, and always, due to considerations of interests, try to establish and maintainthose relations. Such focus on the interpersonal relations manifests itself in the entiresphere of society. The gist of Confucianism puts human beings in the context ofinterpersonal relations deriving from the concept of “Ren”(仁). When the rightsdiscourse originating from the Western world comes to China, it necessarily works ina social context of emphasizing interpersonal relations.In the acquaintance society, interpersonal relations and its inherent moraldiscourse are prior to rights discourse. when some controversies happen over a debt,Although both the discourse of rights and the discourse of interpersonal relationssometimes appear in popular daily life synchronously and stand as two alternatives forproblem-solving, the parties, based on the concrete circumstances, usually put therights discourse aside until the break of interpersonal relations. The mass line systemis a political and legal system with interpersonal relations as its core. The mass linesystem results from the sinicized Marxism, which has absorbed the ways of relationisttradition after coming to China. Confucianism insists on the use of both the internal“De”(德) and the external “Li”(礼) in maintaining interpersonal relations. Similarly,morals and laws in the contemporary society work separately internally and externally,and it is unreliable to depend only on the inner autonomous morals and moralself-consciousness to hold interpersonal relations. When morals don’t work or workeffectively, we need to resort to the external heteronomous laws to solve problems.That is the Confucian meaning of “theory regarding rights as an alternative” and“theory regarding rights as posterior”.The intergenerational parent-child relation is a particular interpersonal relationbased on genetic connection. There exists a feedback mode of intergenerational ethics in Chinese intergenerational parent-child relation, i.e. the preceding generation raisesup the next generation and the latter supports the former in turn. The idea of thefeedback mode is that of filial piety. The controversies involving filial piety occur in aintergenerational parent-child relation. Our courts often resorted to the idea of filialpiety in the Confucian texts in considering relevant controversies. theintergenerational parent-child relation is a particular interpersonal relation based ongenetic connection. There exists a feedback mode of intergenerational ethics inChinese intergenerational parent-child relation, i.e. the preceding generation raises upthe next generation and the latter supports the former in turn. The idea of the feedbackmode is that of filial piety. The controversies involving filial piety occur in aintergenerational parent-child relation. Our courts often resorted to the idea of filialpiety in the Confucian texts in considering relevant controversies. The rightsdiscourse and the ethical discourse are two alternatives for people to solveintergenerational relation problems, and the priority of the former is simply a drivingforce of the priority of the latter. For the appearance of legal institutions determininginterpersonal relations is just the legislative rhetoric of ethical institutions determininginterpersonal relations. Controversies involving filial piety include the legal problemof “law does not kill the mind”, whose solution need the turn from “rule of statutes” to“rule of Rechtsstaat”.In a case of asking for the way, the one who asks often call the one who answers“brother”,“sister”,“uncle” or “aunt”. Such terms come from family relations, andsimply show the penetration of family ethics into public sphere in the communicationbetween strangers. That penetration expresses the Confucian idea that stresses on “allare brothers” and regards non-relatives as relatives, in which lies the Confucianpractice focusing on “the transfer of love through origin-progression-turn-synthesis. Ifthe course of asking the way goes well, the social order among strangers can beshaped by family ethics, and the rights discourse may hardly appear, but the transferof love is just a moral ideal of Confucianism. As was shown by the Pengyu case,when the communication between strangers dose not go well, the moral discourse andthe rights discourse will conflict with each other. Law is indifferent (not supportive or hostile) to the moral ideal of “people love each other”, and will respect the choices ofparties and then their moral ideals.Citizens can face the state either through their rights or by means of Confucianfamily ethics. The rights discourse refers to the state in the legal sense, and the ethicaldiscourse refers to the state in the cultural, ethical and even national sense. The folkmores of Tai Ping Xiang ancestor worship in Liaoning province involve the faith inghosts and gods, and cannot get along with the atheism maintained by contemporarypolitical ideology and laws, therefore the states in different senses and the twodiscourses separate from each other. The state in the cultural sense and its inherentethical discourse can only hide within civil society. The Huang Di worship in Henanprovince involves no faith in ghosts and gods, is used by the government as a politicalsymbol for national unity and recognized by the Constitution and the Law ofIntangible Culture and Its Protection, therefore mixes the states in two senses and thetwo discourses.The rights discourse, the ethical discourse and the moral discourse affect togetherthe daily life of the people, and we may call the mixture of the two kinds of discoursesand their order by the concept “Rights Confucianism”. As a legal philosophy, theRights Confucianism is based on Confucianism, which has undergone six stages inhistory and comes to “Ren as the inner and Rights as the external”. The inner and theexternal in every stage have two kinds of structures of juxtaposition and progression.The concrete content of Rights Confucianism is how to show the structure of the innerand the external. The rights discourse often arises at the end of the moral discourseand the ethical discourse, which displays the juxtaposition of the two discourses.When making concrete choices, people waver between the two discourses. Thechoices and the wavering mean to strengthen the juxtaposition of the two discourses.If choosing the rights discourse means to abandon the moral discourse and the ethicaldiscourse, then a conflict appears between the two discourses. If choosing the rightsdiscourse aims at making the moral discourse and the ethical discourse reappear, thatmeans to promote the moral self-consciousness to once more elevate the moraldiscourse and the ethical discourse by the rights discourse, which although cannot destruct the juxtaposition of the two discourses, may lead to the progression from themoral self-consciousness to the moral discourse and the ethical discourse.
Keywords/Search Tags:rights, interpersonal relations, Confucianism, family ethics, RightsConfucianism
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