Herein lies the ultimate departure from Confucianism, and the reason Legalists deem such thought unforgiveable. Whereas Confucius would emphasize that the goal of the state would be the removal of litigations entirely, Legalists pursue the notion that law is necessary at all times (Chan p. 88). Fundamental opposition prevents many comparisons between the two schools, with the differences far outweighing the
The responsibility to reach a harmonious society is attributed to Confucian intellectuals; therefore, when there is a tyrant, who done something wrong, the intellectuals should against the tyrant out of moral duty. In this sense, when Confucianism was applied to construct the institution of dynasty, it is hard to imagine that a ruler is willing to maintain this power to oppose to himself. As a result, the meaning of responsibility as an intellectual is to be deduced to be a pure morally good person. Despite the political distortion of the meaning of responsibility, the rules of propriety11 had intrinsically transferred their efficiency from the religious strength to the regulation of social order in a common custom. To some extent the rules of propriety can maintain the society well-ordered in peacetime, but also very often they were used as a tool to constrain the individual freedom by the interpretation of the ruler.
This theory tells us that the while making the law or legal system, the traditions, customs, general consciousness, behavior, etc. of the people must be taken into consideration. The historical school tells us that while laying down any law, the history of the people, which includes religion, language, art, culture must be considered. The supporters of this school firmly believed that the historical background of the people is imperative for the law making system. The volksgeist theory also bares slight resemblance to the sociological school of jurisprudence.
Introduction Law involves group of rules which community employs to regulate actions of its members (individuals or organization. To ensure members abide by the regulations or rules enacted by the jurisdiction body, penalties are imposed to anyone who violates them. People must be disciplined to make sure that there are no disputes or conflicts or violations witnessed in a community. The objectives of these rules are used in the first place to have peaceful and secure neighborhoods to and preserve rights within the community. Thus, rules must be clear and not complicated to be followed to achieve the set objectives.
In his eyes, the lack of nationalism was a result of the conflicting ideas of the old and the new. In an excerpt from “The Final Awakening,” when he describes “the intense combat between the old and modern current thought,” (Chen, 1), Chen describes the struggle between the old and the new. China’s traditional ideas and customs have been lost due to an overhaul of Western influence. If nationalism were to present itself again, citizens would have to fall back on their traditions. “Why should I reject the desires and influential elders, who are all a part of the people, to build a constitutional republic” (Chen, 1).
Lord Chief Justice Coke said that “The King himself ought not to be subject to man, but subject to God and the law, because the law makes him King". 3. The Secretary-General of the United Nations prescribes the rule of law as: A rule of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, procedures to ensure devotion to the principles of supremacy of law, equality before the law, answerability to the law, fairness in the appliance of the law, separation of powers, contribution in decision-making, legal certainty, avoidance of unpredictability and procedural and legal transparency. 4.
It's anything but difficult to see that the establishments of cutting edge human advancement were not based on a rationality of good relativism. The very demonstration of passing a law and authorizing it recommends a settled standard that everybody is required to cling to. The explanations behind this are self-evident: if everybody in a general public truly, genuinely went about just as good and bad were absolutely matters of sentiment, then society would implode into a clash of "might makes appropriate." In an ethically relativistic culture, the main all inclusive motivation to do (or not do) anything is to maintain a strategic distance from the results from one's companions. Every single human law include some ethical rule being upheld by risk of results.
Dharma and the Law Dharma: Concept and Meaning Dharma was known as moral laws, customs, and duties or in general we can say what is just or right. This term is generally derived from the root dhri means to sustain, uphold. The Mahabharata describes it as being obtained for the advancement and growth of all creatures ‘for restricting creatures from injuring one another’ and to uphold all creatures. According to S.N. Dhyani, the dharma has been the regulator of all human activities whether social or individual, moral or metaphysical, rational or mystical, mundane or spiritual.
Confucianism is being thought as ideal and important in shaping a strong state. This was used in shaping Chinese social relationships and moral thoughts. It also taught an attitude of respect to fellow humans, such as respect for one's parents, teachers, and elders. Confucius taught the people to concentrate in doing the right thing in this life On the other hand, the West follows the rule of law while countries influenced by Confucius follow the rule of man. It is now a question on whether the Confucian thought is enough to be the moral basis of bureaucracy.
First and foremost, rule of law is one of the branch of Constitutionalism. Rule of law encompasses the basic principles of equal treatment of all people before the law which guarantees basic human rights. ("The rule of law explained", 2018) The rule of law implies that the supremacy of law which includes all the laws must conform with a certain minimum of standards for an instance, protection of civil liberties. Professor A.V Dicey developed concept of rule of law that comprises three concepts of principles. Firstly, no one should be punished except for a conduct which represents a clear breach of law.