Law, Justice and Empire in Comparative Perspective: "Law and Morality in Early China and the Roman Empire"


Location: Zoom

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About the Event: 

This roundtable will examine and discuss the following statements from Bai Tongdong and Benjamin Straumann.

Rule of Law or Rule of Virtue? The Legalist Critique of Confucianism Reconstructed - Tongdong Bai

During China’s transition from “Warring States'' to an empire built on centralized bureaucracy, both Confucians and Legalists proposed meritocracy as an ideal way of governance. For Confucians, meritocracy is virtue-based, while Han Fei Zi, a Legalist, argued that virtues cannot be the basis of meritocracy. In this paper, I will reconstruct his critique of the Confucian virtue-based meritocracy. In this reconstruction, we will see that there is a virtual dialogue between Han Fei Zi and Confucians, and there are actually a few rounds of ever deepening debates. In early modern Europe, there were similar debates between early Italian humanists and thinkers more in the Machiavellian and Hobbesian vein, and in today’s world, the promoters of meritocracy often appeal to the virtue-based kind. Therefore, the reconstruction of Han Fei Zi’s criticisms of Confucianism may have comparative and comparative relevance, and an adequate defense of the virtue-based meritocracy, then, will need to address challenges from Han Fei Zi.

The Roman Discovery of Constitutional Order - Benjamin Straumann

The Roman Republic developed from a self-governing city-state into a large republican empire and provided, for the early modern European thinkers who studied it, the historical spectacle of the largest and longest-lived of all republics. This political order was characterized by a form of self-government and, at the local level, urban autonomy.  The collapse of the Roman Republic in the last century BCE and the emergence, after a period of civil wars, of military monarchy, provided the background and the matrix for the development of the idea of a higher-order constitutional law.  The main elements of this idea were already present, in an inchoate form, in the political thought and practice of the late Roman Republic, but it took the descent into political chaos and civil war to turn this body of thought into the far more explicit political and legal theory of Marcus Tullius Cicero (106-43 BCE).  Cicero saw the fall of the Roman Republic as the causal effect of injustice, and he put forward a very juridical theory of justice as an answer to political instability.  Cicero’s theory came too late to save the Republic, but it did inspire and decisively influence early modern Western political and legal thought, and culminated in constitutional ideas about political order as legal order in the late eighteenth century.

For Cicero, the civil wars of the collapsing Roman Republic amounted to a state of nature, where violence and coercion held sway.  Cicero’s political theory—not to be confounded with Quentin Skinner’s neo-Roman tradition—was designed as a remedy to this collapse into a state of nature and did not rely on republican virtue, which he deemed too weak to uphold political order, but on the institutions of constitutional order instead.  Underlying Cicero’s conception, which he partly derived from the Greek historian Polybius, is a kind of “juridical morality,” where the constitution is understood as a body of normative legal principles, and where political authority and obligation is derived from law, not virtue or merit.  One of the reasons constitutional legal rules are superior to virtue is epistemic—we simply have better knowledge of these rules than we do of virtue or merit.  Legal order, not virtue, guarantees on this view political stability.  This yields a view of the state as a jural community, of the sovereign as primarily a law-maker, and of justice as that which is enforceable.  The sovereign has to rule through law; but this also means that the sovereign is subject to certain formal features of legality.  In the Roman tradition of thought I am concerned with here, these formal features of legality import the morality of legality into the pronouncements of the sovereign, and the form of law conditions its content.  One of the advantages of the Roman move from virtue to law which is perhaps worth talking about is that it allows to take seriously the gap between individual motivation, on the one hand, and collective rationality, on the other.

About the Speakers: 

Bai Square

Speaker: Tongdong Bai
Professor of Philosophy, Fudan University

Straumann Square

Speaker: Benjamin Straumann
ERC Professor of History at the University of Zurich and Research Professor of Classics at New York University

Loubna Square

Discussant:  Loubna El Amine
Assistant Professor of  Political Science, Northwestern University

Liang Cai Headshot Resize

Chair: Liang Cai
Associate Professor of History, University of Notre Dame

Reading List

About the Series:

This roundtable is the third in a series titled, Great Divergence: Law, Justice, and Empire in Comparative Perspective. The series is sponsored by the Liu Institute for Asian and Asia StudiesDepartment of HistoryNotre Dame International, Hong Kong Baptist University Jao Tsung-I Academy of Sinology 香港浸會大學饒宗頤國學院