Adaptive Justice in the Chinese Context: Law versus Commonsense

RESEARCH ARTICLE

Adaptive Justice in the Chinese Context: Law versusCommonsense

Xi Lin

Published online: 27 September 2011# Journal of Chinese Political Science/Association of Chinese Political Studies 2011

Abstract Under certain circumstances, law may come into conflict with common-sense, which by definition refers to “popular conceptions of right and wrong”, aconflict to which rescue comes a mechanism I conceptualise as “adaptive justice”, asit aims to adapt the law, in balance with other non-positive, but equally universalrules, to the circumstances at hand. It follows two propositions: (1) When lawencounters or engenders difficulty during its legislation, application or interpretation,certain non-positive, universal rules will have to be introduced in order to makeflexible the rigidity of written law; (2) the solution is an adaptive application of legalrules, rather than adherence to a literal reading of legal texts. In the context of thelibertarian-communitarian debate on justice, this notion of adaptive justice may offerus a new angle, as it has an in-built focus on “methodological relationalism”, whichby definition uses interpersonal relationship as the basic unit of analysis to decodehuman behaviour and values.

Keyword Adaptive Justice . Confucian Improvement . MethodologicalRelationalism . Liberalism . Communitarianism

Introduction

This article is aimed at giving a preliminary conception of adaptive justice, which, ina larger context, can offer us some new angle to look at the libertarian-communitarian debate on justice. In a nutshell, adaptive justice is a mechanism toprovide solutions to solve the conflict between legal standards and popularconceptions of right and wrong. It operates by introducing certain non-positive butequally universal rules to supplement or change the law, in order to make flexible the

J OF CHIN POLIT SCI (2011) 16:349–372DOI 10.1007/s11366-011-9165-z

X. Lin (*)Fudan Institute for Advanced Study in Social Sciences, Room 2805, East Main Tower,Guanghua Tower, Fudan University, No. 220 Handan Road, Yangpu District, Shanghai,People’s Republic of Chinae-mail: [email protected]

rigidity of written law. It is adaptive in the sense that law is not applied by the literalmeaning of its letters, but in a balanced consideration of other non-positive,universal rules.

To explore this concept, we will first of all need to look the conflict between legalstandards and popular conceptions of right and wrong, a conflict that can causemoral predicament. The discussion of this moral predicament can be informed byearlier classical Chinese philosophers. For this very reason, Section 1 will introducetwo cases from the classical texts of Mencius and Analects, to see how earlierphilosophers regarded this moral predicament. This will be followed by Section 2that will try to give a model on where these conflicts are engendered. For theconvenience of our discussion, I will use ‘commonsense’ as a shorthand reference topopular conceptions of right and wrong.

Having explored the tension between legal standards and popular conceptions ofright and wrong, Section 3 will then investigate how adaptive justice can play a rolein relieving such tension. Given the fact that such tension may happen in any pluralsociety, what makes this notion of adaptive justice useful in our discussions of justarrangements for society will be its emphasis on interpersonal relationship. Mynotion of interpersonal relationship is methodological and descriptive, in the sensethat I do not wish to discuss the normative content of interpersonal relationship,which can take various forms and shapes as its normative content is usuallyinformed by the culture and history of any given nation. Because of this emphasis oninterpersonal relationship, adaptive justice is distinct from other approaches ofjustice (such as Rawls and communitarianism) to plural society.

A Tale of Two Cases

To begin to understand the concept of adaptive justice in its Chinese context, we willturn first to two examples provided from early Chinese philosophical texts. We startwith a story told in the 4th century BCE text, the Mencius:

Taoying asked, ‘If when Shun was the Emperor and Gaoyao the judge, Gusou[Shun’s father] killed a person, what should be done?’ Mencius said, ‘Just toapprehend Gusou’. ‘But would not Shun forbid such a thing?’ [Mencius]replied, ‘How was it possible for Shun to stop it? There was a reason for hisfather to be put in jail’. ‘But what should Shun do then?’ [Mencius] againreplied, ‘Shun regarded abdicating his throne the same as throwing away a pairof worn shoes. He would have secretively taken [his father] on his back, fled tothe edge of the sea and lived there happily, never giving a thought to theempire.’ (Mencius 7A.35).

To get a full appreciation of this multi-layered tale, let’s agree that by stripping thecharacters of their status, be it family, social, political or professional, we can seethat the story is about what a son can do when his father has committed the crime ofmurder. In such a situation there are perhaps only two possible options for the son:(1) inaction—waiting for the judge to arrest, try, and jail his father; or (2) positiveaction—taking proactive measures to prevent the arrest, trial, and imprisonment ofhis father. As to this scenario, Mencius’s first answer was just to apprehend the

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father. But who, we can ask, should jail the father?’ If we allow that the fatherprobably would not and could not jail himself, then that leaves either Shun the son orGaoyao the Judge. Judging from the following conversation in which when Taoyingcontinued hypothetically to ask, ‘But would Shun [the son] not stop it?’, we caninfer that it must be Gaoyao the Judge who could put the father in jail. And of courseit should be someone like a judge with the professional legitimacy and capacity to doso, rather than the culprit himself or the culprit’s close relatives. Thus Mencius wasresponding to Taoying’s initial hypothetical question by saying that the judge shouldjail the culprit, making clear that he subscribed to the moral view that the offence ofkilling should be punished, regardless of the offender’s social status, even if he wasthe Emperor’s father. This moral judgement with which everybody is immediatelyacquainted may be termed the ‘first’ layer in the story.

Taoying, however, continued with his hypothetical questions, not stopping withthe first. Where Mencius chose to ignore Taoying’s purpose in asking his firstquestion—wanting Mencius to talk about the predicament of an emperor whosefather had committed a crime—and so merely gave an obvious and superficial reply.The unsatisfied and unswayed Taoying pursued his questions further and asked, ‘Butwould Shun not forbid such a thing?’. Mencius continued impatiently to brush asideTaoying’s question and the purpose behind asking it. Therefore, following the logicof holding a culprit liable for his offence, he commented that it would not bepossible for Shun to stop Gaoyao the judge from putting his father in jail. Mencius’sanswer was still superficial being based on a simplistic black-and-white view ofasserting that all wrongs should be answered for. This doctrine of reciprocityprevailed in spite of Taoying’s efforts to nudge Mencius in the direction of hisintention.

It is worth pausing a moment to deliberate upon the intent behind Taoying’squestions. From the way he described the case we should have been signalled that itwas not an ordinary case. In other words, Taoying’s intent lay within the complicatedlayers of status that surrounded the core of the story. His real purpose was not simplyto seek Mencius’s legal counsel by presenting a case of what a son should or coulddo when his father has committed the crime of killing. If the son were just acommoner, having no political status but rather a pure and unencumbered individual,then one could expect that the conversation would end when Mencius simplyanswered, ‘Apprehend the father [who is the offender]’. If Taoying had merelypresented a legal scenario as simple and one-dimensional as this, then Mencius’s curtanswer should have satisfied him.

But, on the contrary, Taoying put the focus of his attention on Shun, who wasboth the son and the Emperor, and as such was in a position where his filial dutiesoverlapped with the unchallengeable political power he possessed. Therefore,Taoying’s intentions could be served by presenting a dilemma that had as muchpolitical agony as legal significance. Gusou’s situation was not in dispute. Hedeserved punishment for the crime that he had committed regardless of his socialstanding (as the Emperor’s father) and family status (as the elder member of thefamily). The predicament, instead, lay in what the son should do. If he were acommoner without political power, there would without doubt be a limit on hiscapacity, both personal and professional, to help his father, either to exonerate him orto arrange that his punishment be commuted. But in the case that Taoying

Adaptive Justice in the Chinese Context: Law versus Commonsense 351

hypothetically created, the son was Shun the Emperor, the one possessing supremepower and unquestionable authority in wielding power. He could of course, shouldhe wish to do so, use his political power to exempt his father. And a popular viewmight be that a son would use the means he possesses to help his father. This does,however, present a moral dilemma, in the sense that using power to accomplish apersonal favour defeats the authority of power per se. In other words, although acommonsense view may see it as understandable that as the son, Shun would usewhatever means available to him to help his father, this nevertheless will result ingreater injustice—distorting the due process of law and discrediting the whole legalregime. It would of course, moreover, do an injustice to the person who was killedand to his family.

Bearing these various injustices in mind, one might naturally conclude from theabove analysis that Shun should do nothing—that is, that our first option, “inaction,”might be the most appropriate one. Indeed, Mencius did stress that Shun theEmperor should do nothing to help his father, since there was a reason that he shouldbe jailed for his wrongdoing. Gusou the killer was both morally and legally culpablefor his act of killing. If Shun the son and the Emperor misused his power to exempthis father, this would result in great injustices, and so logically it follows that therewas nothing that Shun could or should do.

Yet bearing in mind that Taoying was presenting a moral dilemma that had noeasy answer, this logical conclusion was not satisfying when we keep in mindTaoying’s purpose in presenting the dilemma in the first place. Although Taoying didnot elaborate upon this point, clearly he had assumed a concept of commensurabilityin this legal scenario. Commensurability by definition refers to the proportionalitybetween what one can do and what he should do. This proportionality is the base ofa moral shame which is unintelligible unless being placed in social contexts. In otherwords, there is a dimension of social assessment of what one can do and what heshould do. In this legal scenario, as the Emperor Shun could do many things to helphis father and yet at a moral level he should refrain from doing these things for thesake of non-interference with justice. There was apparently an issue of proportionalitybetween what he could do and what he should do. The greater the inproportionality, thegreater sense of moral shame one will have, as his behaviour will later be subject tosocial assessment. Henceforth, for a commoner who does possess power to do manythings, proportionality between what he can do and what he should do is less an issue forhim than for Shun the Emperor, which would feel morally shameful for having to donothing in spite of the many things that he could do. This commensurability is a conceptin-built in Taoying’s presentation.

If what really concerned Taoying was the more general dilemma of a powerfulruler whose father had committed a crime, then he could have chosen for hisexample any emperor, any judge, and any emperor’s father. But Taoying chose Shunand the fact that he did so has two important aspects for our discussion here, onebeing Shun’s status as the Emperor while the other was his image and reputation asone of the ancient Sage Kings, the great exemplars of moral behaviour for Menciusand others who shared Mencius’s world view. This commensurability highlights aconflict between what one has the power to do and the limitations that one’s statusand reputation place on that power. Let’s first of all examine the implications thatflow from the fact that Shun was the Emperor.

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Shun’s political status as the Emperor is important in the sense that it involves theconcept of commensurability between what one can do as his capacity and politicalstatus entail and what he should do. In our previous discussion, we mentioned thatthere is a limit upon the possible measures a son could take if he were a commoner.The possible acts one could take or the measures and connections available to himare certainly a signifier of his capacity to deploy resources, both material andsymbolic, in everyday life. There is a positive correlation between the availability ofresources and the possibility of acts and his political status. The higher one’spolitical status, the more resources become available, plus a greater variety of actionsone could take become possible, hence the greater capacity for one to accomplish acertain goal.

Bringing this concept of commensurability into our discussion is significant in thesense that it aggravates the intensity within the moral dilemma that Taoyingpresented and that Mencius did not acknowledge in the very beginning. If one sticksto the rule of holding the culprit liable for his act of killing regardless of his status,then one can safely conclude that the son, equally regardless of his political status,power and privileges, should refrain from interfering with the workings of justice.Inaction, so to speak, is the best strategy for a son to adopt in order to let justice bedone. This is morally less an issue for a commoner who possesses neither power norprivilege to ‘do something’ than it is for those in power who are able to do so. Inother words, if a son has no resources or possibility of taking any actions, theninaction appears more acceptable, as he can exonerate himself from the filial duty oftaking whatever possible action to help his father, since by commensurability, thereis little that he can do in his position as a commoner. However, in the case ofsomeone in power—in which case Taoying radically situated this person as enjoyingthe supreme power on the throne and having no equal in the kingdom–commensurability becomes a palpable issue. On the one hand, one should refrainfrom interfering with justice, while on the other, the moral responsibility of filialpiety requires that one take action to help one’s father; and since the person is in apowerful position, there is a greater availability of resources he can deploy, morevariety of possible acts he can take, and a higher chance of achieving the goal he ispursuing. In this radicalised version, there was no one that was more powerful thanthe Emperor who could simply tell the Judge to drop the case and leave his fatheralone, or intervene during the trial to exempt his father from punishment. Thecontrast between the necessity of inaction and what the son could do was magnifiedto an extent no greater than under this radically situated circumstance. In fashioninghis hypothetical dilemma, Taoying apparently had an assumed concept ofcommensurability that would make his case as radical as possible.

Apart from this commensurability, there is also another aspect of this story thatconcerns the well-established image of Shun as one of the ancient Sage Kings. Beinga sage king is not merely an empty title fashioned with rhetorical flourish; nay, itpurports that the king should exemplify the virtues that Chinese classical literatureespoused: ritual propriety, intelligence, benevolence, righteousness, credibility, filialpiety, justice and magnanimity, to name the most prominent and important of thevirtues. There is of course no problem when these virtues do not come into conflictbut rather reside together harmoniously. However, what if the duties andresponsibilities entailed by these virtues do come into conflict with each other in


certain instances? When faced with such a moral dilemma, how would a Sage Kingreact?

Posing this question is the second component that lay behind Taoying’s originalintention in starting the conversation with Mencius. He was not only trying topresent a case where there is a conflict between different moral duties, but also aconflict between what a very powerful ruler has the capacity to do and what, as asuperiorly wise person, he would or could do. For one thing, if this person were nota Sage King, then the power he possessed could easily lead him to interfere withjustice and save his father—history books are filled with such kingly figureshesitating not a single moment to wield power for personal ends. It is a truism thatpower corrupts a sound mind. Therefore, to avoid having Mencius merely consider apragmatic ruler deploying his power, Taoying chose Shun and thus added thecondition of the ‘wise ruler’; and it was widely believed that there could be no wiserrulers than the ancient three Sage Kings—Yao, Shun and Yu. Therefore, a legalscenario would not be so radicalised unless it involved the most powerful position(the throne) and the most wise ruler (Shun).

When Taoying posed his third question, Mencius finally acknowledged openlythe difficult moral scenario Taoying was trying to present him with, for the lattertried to translate moral duty, political status and wisdom into legal currency, so as toavail a carefully-calculated sense of justness. Apparently Mencius could no longercontinue to ignore the complexity involved in the scenario. In the end, a desperateTaoying asked almost in a protesting tone, ‘Then what should Shun do?’ A frowningMencius, finding that the conversation could no longer be ended by short replies,opted for the lesser evil of the two—escapism. Compared with the greater evil ofmisusing one’s power to accomplish personal ends, to escape by abandoning all thepower in one go would seem to be a much lesser evil. If we consider all the possibleacts one could take, either taking proactive actions to help his father, or inaction towait passively for the judge to put his father in jail, Mencius chose an escapistcourse. This escapism could equally result in injustice, as abruptly abdicating one’sthrone might not only lead to political turmoil, but also, more importantly, to carrythe murderer away on one’s back is depriving the victim and the victim’s family ofthe justice they deserve (Cf. [19–21]).

Behind Mencius’s answer there are some basic principles that Mencius recognisedand that served as the justification for the reply that he gave to Taoying. First of all,law should be applied as far as justice is concerned. It is indisputable that Menciusrecognised the culpability of the act of killing and even if he gave an escapistanswer, he did not regard intervention with the due process of law as morallyjustifiable. Law should be respected, in the sense that the process of Gaoyao theJudge carrying out justice should not be interfered with. On the other hand, themoral duty of filial piety should be equally recognised. If, in the extreme case,anxiety is caused by the tug-of-war between the seemingly endless possibility ofthings one can do and the absolute necessity for him to refrain from interfering withjustice, then he should seek to exit this commensurability-induced predicament byabandoning his power. By doing so, he can discharge the shame of doing less thanwhat he will otherwise be capable of in helping his father.

The sort of predicament that Taoying posed was not uncommon in early Chineseanecdotal literature. Moreover, magistrates in imperial China, even if they were not

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quite as wise as Gaoyao and other judges known from folklore and elsewhere inclassical literature, were also faced with such dilemmas, albeit to a lesser degree incomparison with the radical situation that was presented by Taoying. A son did notneed to be as powerful as the Emperor to make trouble for local judges. We needonly to turn to a famous case in the Analects of Confucius for an illustration.

The Duke of She told Confucius: “In my country there is an upright man.When his father stole a sheep, he bore witness against him.” Confucius said:“The upright men in my community are different from this. Fathers conceal themisconduct of their sons and sons conceal the misconduct of their fathers.Uprightness is just to be found in such mutual concealment!” (Analects 13: 18)

In this case, no doubt much to the joy of the legal positivists, when a childaccused a parent of a crime the child received praise from the state. AlthoughConfucius merely stated that the way of being upright in his state Lu was ‘different’,he was implying strong disagreement with how things were done in the Duke ofShe’s domain. His counterexample of father and son mutually protecting each otherfrom prosecution was a strong critique of the legalist mentality of the Duke of She.

Now Confucius’s counterexample might lead commentators to conclude thatConfucius had an anti-law sentiment. Much as Confucius disliked legal positivism, itwould nevertheless go too far to put him in the anti-law camp. While he saw novalue in championing law as the supreme rule, he clearly did realise the importanceof law in maintaining social order (Analects 20.2). This was why he suggested noabuse of power or distortion of law to secure personal favour, but instead, under thepremise of respecting the law, father and son should conceal each other, so as to finda way out of the predicament that arises when different moral duties in clash. Clearlythere was a moral duty of respecting the law, while another one called for protectingfamily members. Where these two duties came into conflict, there was a differentordering offered by the Duke of She and Confucius. For the Duke of She, the moralduty of respecting the law prevailed, while for Confucius it was that of protectingfamily members.1

However, this was not simply a matter of prioritising different moral duties, as ifby re-ordering the priority list, the difference between the Duke of She andConfucius would be obliterated. In fact, where the Duke of She championed law asthe supreme rule, he risked neglecting the moral duty of protecting family membersat all. Although it is not uncommon to see that in Chinese classical literature the ideaof ‘sacrificing consanguinity for the sake of righteousness’ (dayi mieqin) receivedhigh and unanimous praise, to sacrifice one’s blood relations for the sake ofrighteousness usually involved a calculation of proportionality. In other words, bloodrelationship is so important that to sacrifice it for something requires that this‘something’ should have a moral significance roughly equal to, if not more than, thatof consanguinity. This proportionality of the degree of righteousness versus thesignificance of blood relationship need not be calculated in an exacting manner. Thedegree of righteousness is usually measured by the severity of the offence involved,for instance, treason, malicious murder and other abominable crimes. Even so, it isnot legally required that, should one be placed in the responsible position, he should

1 For a discussion of this case, please refer to [1, 2, 5–7, 9, 14, 16, 22–24, 26, 28, 31].


without exception ‘sacrifice blood relations for the sake of righteousness’. Where thevirtue of such sacrifice is extolled, ancient thinkers clearly realised that such a highvirtue should stay as a virtue rather than a legal responsibility. Therefore, Chineselaws, when they were increasingly Confucianised from the Han to the Tangdynasties ([8]: p.276, n.204), invariably respected the moral duty of protectingfamily members instead of encouraging people to report their family members, as inthe case of the Duke of She. The reason why this is not merely a matter ofprioritising different moral duties lies in the fact that it involves a profound orderingof different values, if we bear in mind that ontologically duty is related to act whilevalue to sentimental disposition or orientation.2 What Confucius tried to encouragepeople to do was not so much to conform to rules as to adjust their moral orientation.To encourage people to report their family members not only exaggerates the valueof law, but more importantly, from a Confucian perspective, harms the higher valueof familial loyalty. In other words, when a family member commits a crime, hisblood relation can have several optional acts to perform, acts that can be placed on aspectrum for examination. At the two extremes of action and inaction, a bloodrelation can choose to perform the extreme of action by reporting to the official,bearing witness in court or assisting officials in punishing the offence; while on theextreme of inaction, he can choose to do nothing at all, neither assisting norhampering the process of investigation.

Now, between these two extremes of action and inaction, Confucius’sconcept of concealment is the middle ground where different moral duties canbe reconciled. Where action risks contradicting one’s moral feelings towards hisblood relations and inaction induces a sense of moral guilt for doing nothing atall, to conceal a misconduct committed by a blood relation will only does notconflict with one’s moral duty to respect the law, while at the same time,satisfy the moral duty of doing something to protect family members. Thisserves to respect both law and moral sentiments. It is therefore not so muchabout which side shall prevail over the other as about how to strike a balancebetween the two.

In both the Mencius and Analects cases we can see the emphasis placed byancient thinkers on the necessity of striking a balance between competing forces, onelegal while the other moral. This may lead one to ask whether law hasn’tincorporated certain elements of popular conceptions of right and wrong andpopular moral sentiments. Are law and moral sentiments always and inevitably inconflict? To get a full appreciation of this, we will first of all need to explicate therelationship between law and popular conceptions of right and wrong.

2 Weber’s discussion of the difference between the ethic of responsibility and that of conviction isilluminating. As he argued, “......there is a profound opposition between acting by the maxim of the ethicof conviction (putting it in religion terms: ‘The Christian does what is right and places the outcome inGod’s hands’), and acting by the maxim of the ethic of responsibility, which means that one must answerfor the (foreseeable) consequences of one’s actions” ([32]: pp.359–360, emphasis original). Also, “Theperson who subscribes to the ethic of conviction feels ‘responsible’ only for ensuring that the flame ofpure conviction (for example, the flame of protest against the injustice of the social order) is neverextinguished” ([32]: p.360). Here, the ethic of responsibility (duty) is act-induced and consequence-ledwhile that of conviction (value) is more belief-centred and relatively consequence-independent, which isrelated to a greater extent to cognitive orientation.

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Law and Commonsense: the Context

Apparently this moral predicament will not just occur in all circumstances. Instead, itonly takes place where there is a discrepancy between law and popular conceptionsof right and wrong. Then, our next question will be, are law and popular conceptionsof right and wrong always in conflict? For the convenience of our discussion, I willuse commonsense here as a shorthand term for popular sentiments and popularconceptions of right and wrong. By definition, commonsense is constituted of sharedperceptions, convictions and sentiments of right and wrong. To understand theabovementioned moral predicament in a fuller manner will require us tocontextualise it in the broader context of the relationship between law andcommonsense, as well as how these two come to interact with each other. In thissection, I shall provide a general model that will help us to envision the relationshipbetween law and commonsense, as well as to locate where the abovementionedmoral predicament will arise.

Law and commonsense are two different fields that have certain contentoverlapping. Where law emphasises certainty, universality and formality, common-sense may attend to particularity, flexibility and moral righteousness. Arguably lawas a corpus of man-made rules will have certain parts of it derived fromcommonsense. If we imagine that there is an x axis representing commonsensewhile a y axis represents law, then both axes, in intersecting, form four quadrants. Asboth law and commonsense approve and disapprove certain things, it will beexpedient to use the signs of the positive value ‘+’ and its negative counterpart ‘−’ toindicate approval and disapproval.

As can be seen from Diagram 1, there are two areas overlapping between law andcommonsense: the upper shaded area representing what both law and commonsenseapprove, and the lower shaded area representing what both law and commonsensedisapprove. If we further regard both law and commonsense as different sets, then inoverlapping areas, elements from each set will correspond with each other. Morespecifically, we can denote a set SC representing the body of commonsense

Commonsense+

Law +

Commonsense -

Law-

Judgement

Diagram 1 Where law and commonsense overlap


judgments, containing such elements as x1 , x2 , x3, x4, … xn , and the other set SLrepresenting the corpus of law, containing such elements as y1 , y2 , y3, y4, … yn. Ofthese elements, ‘+’ signifies the elements that will be approved by the set, suchas +x1, +x2, +x3, +x4, … +xn, and +y1, +y2, +y3, +y4, … +yn, while by the sametoken, ‘−‘ indicates the disapproval of these elements by the set, such as −x1, −x2,−x3, −x4, … −xn, and −y1, −y2, −y3, −y4, …−yn. Then the overlapping areas ofthese two sets will necessarily involve a correspondence between these differentelements. For instance, in the area with the positive value, +x1 correspondswith +y1, +x2 with +y2, +x3 with +y3, and so on until +xn corresponds with +yn. Bythe same token, in the area with the negative value, −x1 corresponds with −y1, −x2with −y2, −x3 with −y3, and so on until −xn corresponds with −yn, as can be seen fromthe following illustration:

SC = { x1, x2, x3, x4, x5, x6, x7, … xn}

SL = { y1, y2, y3, y4, y5, y6, y7, … yn}

Or

SC = { −x1, −x2, −x3, −x4, −x5, −x6, −x7, … −xn}

SL = { −y1, −y2, −y3, −y4, , −y5 −y6, −y7, … n}−y

It is too abstract to talk in such purely mathematical or logical language and wewill turn to some examples to see how law and commonsense overlap. For thosethings that both law and commonsense approve, a prominent example in the Chinesecontext is filial piety, something long regarded as one of the supreme values. Lawrecognised this popular moral sentiment by encoding a series of legal punishmentsand exemptions related to filial piety. An only son could have his punishmentreduced or exempted if he had to take care of his aged and failing parents, while anunfilial son could have his punishment aggravated due to his record of maltreatingparents.3

On the other hand, the list of what commonsense disapproves which is alsoforbidden by law is long and includes such things as murder, rape, stealing, slanderand robbery, to name just a few. Although law derives its formality and legitimacyfrom political authority, to a certain extent its observance nevertheless will have tocome from internalised acceptance and recognition of what it condemns among thepopulace ([13]: p.54). By this logic, a certain part of what law prescribes will have tospring from sources other than lawmakers’ pure contemplation, sources which willin a larger part include the moral sentiments included in commonsense.

This, nonetheless, is not the major concern of this paper, which aims at discussinga concept of justice that is related to the part where law and commonsense do notoverlap, as can be seen from the following Diagram 2:

3 Similarly, in the Roman law, where inheritance occupied a central theme, Roman lawmakers recognisedthe popular moral sentiment of a fair and equal share of the heritage for legal heir. For this reason, theFalcidian law (lex Falcidia) was made to ensure that legal heir receive his/her due share of heritageregardless of the will of the deceased. See [10]: p.217.

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As we can see from the shaded areas, there can arise circumstances where whatcommonsense disapproves is allowed by law, or what commonsense approves isforbidden by law. To transcribe this in the same format of set theories, within the setSc, there exist such approved elements +x1, +x2, +x3, +x4, … +xn which counter-correspond with their disapproved counterparts in the set Sl, namely −y1, −y2, −y3,−y4, … −yn. By the same token, there also exist such disapproved elements −x1, −x2,−x3, −x4, … −xn in the set SC that counter-correspond with their approvedcounterparts in the set SL, namely +y1, +y2, +y3, +y4, … +yn. I use the sign toindicate this ‘counter-correspondence’ between the two sets, as can be seen from thefollowing illustration:

SC = { x1, 2, 3, 4, 5, x6, x7, … xn}

SL = { −y1, −y2, 3, 4, −y5, −y6, −y7, … −yn}

Or

SC = { −x1, −x2, −x3, −x4, −x5, −x6, −x7, … −xn}

SL = { y1, y2, 3, y4, y5, y6, 7, … yn}

x x x x

yy

−y−y

An example of what commonsense approves that is forbidden by law is revenge,which is an old concept and for long a popular Chinese moral sentiment. It wasacceptable to seek revenge privately rather than to make an accusation at court,especially when the act of killing involved the murder of a father. His children mighttake matters into their own hands and seek revenge by killing the offender. Suchrevenge was forbidden by law, lest law and order in society should fall into chaos ifsuch mutual killing were to get out of control. Also, commonsense accepts the act ofphysically beating up an adulterer, especially on the spot, as the moral agony causedby infidelity is widely recognised, across cultural and national boundaries.Nevertheless, law forbids physical battery for the mere sake of ‘punishing’ adultery.

Commonsense +

Law +

Commonsense -

Law -Diagram 2 Where law and commonsense do not overlap


If brought to court, the offender might be found guilty and thus subject to fine orimprisonment.

On the other hand, what commonsense disapproves may be regarded asacceptable by law. We may use the above-mentioned scenario of adultery as anexample. Commonsense disapproves litigation brought by an adulterer, for doing sowould be regarded as lacking both moral justification and a sense of shame. Whereadultery being punished is regarded as morally justifiable, to have the adulterer seeklegal redress for this morally justifiable punishment is unacceptable. By contrast, lawrecognises an individual’s right to private prosecution of any bodily harm thussuffered. An adulterer, unfortunate as it might seem from a moral perspective, fallswithin this category as it is a matter of universal human rights. In other words, themorally culpable are first and foremost human beings who have universallyinviolable rights. Moreover, the right to inflict bodily harm (as in ancient times)and to deprive or restrict personal freedom is normally monopolised by state organs.Unless explicitly allowed by law, as is the case with self-defence, inflicting bodilyharm is strictly prohibited, under which circumstance an adulterer is allowed to bringa legal suit to court to seek redress for the bodily harm he has suffered. Here whatcommonsense forbids constitutes a category that is legally allowable.

There are defects with the illustration that I have just provided that need to beexplored further. First of all, in Diagram 1, I draw a straight line between the twoquadrants where law and commonsense agree on what they approve or disapprove;this line at a 45 degree angle to both axes. If we imagine that a judge’s rendering of asuitable judgment is comparable to finding the right point for a seesaw where bothends can be more and less balanced parallel to the level surface, then the straightline, at a perfect 45 degree to both axes, may give the readers a wrong impressionthat such a balance can always be found or, in other words, that a judgment can bearrived at that satisfies perfectly both law and commonsense without compromisingone for the other.

Any judge working on the ground will immediately realise that this is only anideal picture of what a judgment ought to look like, instead of what it might look likeactually. This difference is in a sense not simply a matter of distinguishing ‘ought’from ‘is’ as in classical philosophy. But more importantly, where to find such a spotis as much a matter of art as of practical concern for any judge working in the field.Therefore, in real life, a judgment may sometimes approximate more closely a legalrequirement (as can be seen from the curved line 3 in Diagram 3), while at othertimes it might stay closer to the commonsensical expectation of popular moralsentiments (as shown in the line 1 in Diagram 3). Or, as the judgment develops, itmight fluctuate between law and commonsense, approaching closer to or deviatingfrom one side, as the dotted line 2 in Diagram 3 might illustrate. Here I simply wishto suggest that to render a judgment in real life can be more complicated than myearlier diagrams might suggest.

Furthermore, the four quadrants (A, B, C and D as in Diagram 4) of what law andcommonsense approve or disapprove might also give the wrong impression that Iassume that the vicissitudes of daily events are all covered by law andcommonsense. By this wrong assumption, everything is immanent within the scopeof consideration by law or commonsense. There is nothing that falls outside theextension of either approval or disapproval by law and commonsense. I wish to

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emphasise here that I disagree with this assumption. For pure contemplation, what ifthere exists something that falls outside the scope of law or commonsense, or both,as in the shaded areas in Diagram 4? In this thought experiment of ‘blind spots’, wecan identify three possible areas that fall outside the consideration of law orcommonsense, or both. First, what law approves or disapproves is not includedwithin commonsense (the shaded area in Diagram 4 that “Law+” or “Law−”intersects with “Commonsense 0”, which means “not covered by commonsense”),which does not sound much likely, as commonsense is rooted in our everydayexperience, thus acquiring an extension close to, if not as much as, the infinity ofhuman affairs. Second, what commonsense approves or disapproves falls outsidelegal consideration (the shaded area in Diagram 4 that “Commonsense+” or“Commonsense−” intersects with “Law 0”, which means “not covered by law”)—in other words, there is a legal blind spot over certain matters. This can happen often,as the corpus of law, however extensive and exhaustive, is a body of finite letters,stipulations and compartments. We do often come across occasions when law fails toinclude certain matters in its consideration that are perfectly legitimate concerns inpopular moral sentiments. In the third instance, there can be matters that are neitherprescribed by law nor considered by commonsense, the circumstance of which doesnot occur often either (the shaded area in Diagram 4 where “Commonsense 0” and“Law 0” intersect, which means “covered by neither commonsense nor law”). Itoccurs in the instance of new events within the society that have not yet reached thelevel of popular awareness. For instance, a women suing in a local court a malevirtual game player who resides in a country thousands of miles away for raping thecharacter she plays in a virtual online game can cause problems for both law andcommonsense.

Therefore, I wish to emphasise here that in our visualisation of the relationshipbetween law and commonsense, we should acknowledge that we lack that degree ofsophistication that would permit every possible human affair to neatly fit into either

Commonsense+

Law

Commonsense -

Law-

Judgement

1 2

3

Diagram 3 (Defect 1)


one category or the other, or both. Therefore, it might be better to visualise the twosets of law and commonsense as two circular shapes, having certain partsoverlapping but with other contents distinct from each other, as can be seen fromDiagram 5. Nevertheless, we should also pay attention to the empty space outsidethese two circular shapes and include it in our contemplation. Above all, our

Commonsense + Commonsense - Commonsense 0

Law + A

C

Law - B D

Law 0

Commonsense+

Law

Commonsense -

Law-

A

D

C

B

Diagram 4 (Defect 2) what if there is a void in either law or commonsense, or both?

Commonsense

Law

Diagram 5 Visualising the twosets of law and commonsense ascircular shapes

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imaginary scheme should be an open-ended, rather than a foreclosed, one throughwhich it will be possible for us to consider new circumstances as they arise.

To sum up, the moral predicament as we discussed in Section 1 can arise from thenon-shaded areas in the above Diagram, areas that include not only the parts withinthe two circular shapes that do not overlap, but also the empty space outside the twocircular shapes that are not covered by either of them. To translate this mathematicalstatement into ordinary language, the moral predicament can arise out of thefollowing two circumstances: where law and commonsense are in conflict in termsof what they (dis)approve, or where neither law or commonsense covers.

Adaptive Justice: A Preliminary Conceptualisation

Having located the moral predicament in the context of the relationship between lawand commonsense, now it will be useful to discuss how it is possible toconceptualise adaptive justice playing a role in solving this moral predicament. Bydefinition, adaptive justice4 is a concept derived from a need to balance differentmoral duties. First of all, adaptive justice follows two basic propositions:

(1) When law encounters or engenders difficulty during its legislation, applicationor interpretation, certain non-positive, universal rules will have to be introducedin order to make flexible the rigidity of written law;

(2) The solution is an adaptive application of legal rules, rather than adherence to aliteral reading of legal texts.

When law is made, lawmakers aim to provide general rules that can be uniformlyapplied within a given territory, or for a specific community or area within thatterritory. This general characteristic is a part of the law. When we speak of‘difficulty’ that law encounters or engenders, several cases can be distinguished.First of all, due to the infinite number of and permutations within human affairs, it isimpossible for law, however exhaustive it may be, to deal with all the possiblescenarios in daily life. Every law is intended to govern conduct either in general or ina specific segment of our world. This underlying intention or purpose of the law isimportant to the extent that there can be certain matters that fall outside of it. If thereality fits the original intention of the law, such as, for example, the act of robberyor unintentional manslaughter in a traffic accident, then the likelihood for law toencounter difficulty is slim. Compared with this ‘fitting’ scenario, there can be twoother possible scenarios, which we can refer to as the ‘deficiency’ scenario and the‘excess’ scenario. The former is concerned with the areas not covered by the original

4 The only other author who used the concept of “adaptive justice” was Volker H. Schmidt [30].Nevertheless, he mainly referred to this concept in the context of distributive justice and in terms ofallocative institutions. For Schmidt, “adaptive justice” means “the adjustment of allocation principles tothe functional imperatives and perceived operational requirements of the respective allocative institutions,not necessarily through deliberate adaptation but as a result of emergent processes of gradual change andaccommodation, which must be understood in light of the institutions’ relations with their (internal andexternal) environments and their perceptions thereof” ([30]: pp.806–7). My definition and use of the termare in essence different from the Schmidtian concept and it corresponds to the Chinese term of “biantongxing zhengyi”, which I explained elsewhere [17, 18].


intention of the law, under which circumstance there will be a situation of‘deficiency’, in the sense that existing laws, as far as their intention is concerned,are unable to provide a solution. This ‘deficiency’ can be either deliberate or due tosomething unexpected and unanticipated. For instance, modern criminal law doesnot regard an extramarital sexual relationship as ‘illicit’ or punishable. The onlylegal significance of an extramarital sexual relationship may be seen in the familylaw, where a spouse can file for divorce due to his or her partner’s infidelity. In thisinstance, law deliberately disregards extramarital sexual relationships of themselvesas an issue. A spouse suing in the local court to jail his/her partner for infidelity willnot be supported by law. These are the ‘void’ situations that are simply not related towhat the law is expected to do and to accomplish and eventually that will lead to the‘deficiency’ scenario. By way of contrast, the latter scenario speaks of the originalintention covering an area that is greater than the extension of the situation. As thesaying goes, ‘take not a musket to kill the butterfly’. Similarly a situation orcircumstance can be too small and narrow for law, as it is originally intended, to cover.

It is reasonable to say that, however inclusive a law’s coverage is intended to be,it will be not possible for it to cover every possible scenario in our daily life. This isnot only because our rational knowledge is bound (in a Hayekian sense), but alsodue to the inability of lawmakers to predict the occurrence of human events. As faras the intent of a law is concerned, prediction is not so much an issue as theextension of its intended applicability. For instance, lawmakers were not able topredict that O. J. Simpson would kill his wife, nor would any lawmaker be able topredict what any person is going to do at any point in the future. This inability topredict did not, however, prevent lawmakers from making the act of killing apunishable offence. Nevertheless, lawmakers were unable to predict that, forexample, evidence might be collected in an improper manner, since the law isintended to be applied with respect to due process. It is here that a difficulty arose, asfar as the application of law is concerned. Arguably a law could be made sufficientlygeneral and vague to have it generally cover every aspect of life. Nevertheless, in itsreal application, the context in which it is to be applied will be so extended that theterms contained within the law will be too ‘thin’ to deal with the ‘thick’ reality. Thisis where difficulty can arise during the application or interpretation of law.

The discussion of where law and commonsense do not overlap can occur at everystage of the legal process, from legislation to application and interpretation. It is notthat this discrepancy in expectation between law and commonsense only takes placeat one stage while not at another. These discussions provide a context for us tounderstand why adaptive justice becomes necessary. It is concerned with a specificsegment of the phenomenon of law, namely providing solutions where law andcommonsense are in conflict or where both law and commonsense offer no solution(Diagram 6).

The shaded area indicates where difficulty due to the discrepancy between lawand commonsense arises at every stage of law, including legislation, application andinterpretation. What is missing in this diagram is the extension of law andcommonsense, as the latter presumably contains more content than the former.Therefore, methodologically, it might be useful to visualise adaptive justice as aforce that stretches the law so that it reaches a point of equilibrium withcommonsense (Diagram 7).

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What can be done in the face of such difficulty? This will depend uponintroducing certain rules—other than positive and legal ones—that can beuniversally applied but to redress the issue. The reason to emphasise this universalityis to avoid the ‘one-off patching up’ mentality that might be induced by pragmatism.There are perhaps two different ways to solve the difficulty that in terms of thementality of each are in marked contrast with each other. One is finding a one-off,expedient solution for each and every difficulty as it arises. We can call this a ‘one-off patching up’ mentality in that it seeks to solve only the current difficulty that is athand. The other way is to try systematically to formulate a rule or rules that willsolve every difficult situation. Such a systematic approach might seem unnecessaryif the concern is only a pragmatic one to solve the difficulty at hand. Nevertheless, ifwe project the application of rules over a longer term and not see it as a sort ofimprovisation, then the value of such systemisation becomes readily obvious. Forone thing, the rules thus introduced can acquire a transitivity value in the process.Let me elaborate on what I mean by a concept of transitivity.

As has been suggested by Zhao ([33]: p.75), the universality we discuss here isapparently at the fact level (what is), where the value dimension (what ought to be)of universality is left out of our consideration. At the fact level, according to the

Commonsense Commonsense

law

Diagram 7 Adaptive justice as an expanding force to stretch the law to balance with commonsense

Law

Commonsense

Diagram 6 A Visualisation ofAdaptive justice


Leibniz standard, universality is absolute to the extent that it is applicable to allpossible contexts, which is a very strict requirement. Few matters can stand up tothis strict requirement, perhaps with the only exception of logic and mathematics.There is a weaker version of this universality, requiring that universality is applicableto one or several possible contexts only, not to all of them ([33]: pp.75–6). In this,there is an in-built requirement of transitivity, requiring that if this rule is applicableto one circumstance, then it should be applicable to all possible like circumstances.In other words, if a rule is valid for one given instance, then it should be transitive toother similar instances.

The reason that I emphasise this transitivity is twofold. One, if adaptive justicehas no in-built transitivity, then the solutions it provides may risk being one-off andintransitive. In other words, the solution would only be applicable for the specificcircumstance in question and have no value for other like cases or futureoccurrences. This would, on the one hand, blur the line between adaptive justiceand pragmatism and, on the other, create a paradox. If using a one-off, non-universaland intransitive solution to remedy the defects of universal rules can be regarded as ameta-principle, then there will arise a paradoxical situation: suppose this meta-principle has difficulty in its application, then what will be the meta intransitivesolution to remedy the defect of this meta-principle? If there exists such a meta-solution, then it follows the same logic of this meta-principle, which renders thedifficulty obsolete. But if there exists no such solution, then the status of thisprinciple as a meta-principle will become challengeable.

Two, the emphasis on transitivity makes sense to the extent that it prevents thismechanism of adaptive justice being hijacked to serve as a favour-selling machine.Providing one-off, non-universalisable solutions can carry a potential evil of distortingrules for personal gain. If the legitimacy of a legal claim does not need to be derivedfrom some shared, collective principles, then a pursuit of individualistic gain will step into fill the void. In the end, if the operability of adaptive justice depends on one-offsolutions, it will be self-defeating in the sense that it does not satisfy the popularexpectation that it will benefit the public good, where ‘publicness’ is defined as a large,indefinite number of citizens in a given territory or community.

As I have previously mentioned, adaptive justice, in its real operation, is likefinding the balance point on a seesaw where there exist different forces in conflict. Itis also important to remember that it is an open-ended process in the sense that itdoes preclude the rise of new circumstances, new rules and new mechanisms. As faras its being a solution is concerned, it is very much like a customer coming to arestaurant to order food not listed on the menu. The chef, looking at the order, startsfrom what is available to him and makes new utensils to cook the dinner. Where neworders arrive, he creates new utensils. As he cooks, new ingredients are brought inand he has to make new utensils for new courses. Therefore, adaptive justice, bymetaphor, is also a process of ‘cooking while making the utensils one requires’.

Adaptive Justice in the Chinese Context: Behind and Beyond

As I point out in Section 3 above, adaptive justice does not aim at providing one-offsolutions in which stead it targets finding a solution to conflicting moral duties. The

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emphasis, so to speak, should be on the judge who delivers justice. To illustrate thispoint, it will be worthwhile to revisit the case in Mencius, focus our attention onGaoyao the judge, and reconsider the scenario by bringing the missing party—thevictim’s family into this narration.5 In this text, Gaoyao the judge should apprehendGusou the father, which both Taoying and Mencius did not dispute, as the goldenrule of holding culprit answerable for the wrong he has committed prevails. For thesecond part of the question, Mencius suggested that Shun the Emperor should notstop Gaoyao putting his father in jail, as his act of putting the culprit in jail would bemorally justifiable. Then, when it comes to the third part of the question, perhapswhat we could ask, if we were in Taoying’s position as the inquirer, albeit with ourattention re-oriented to Gaoyao the judge, was what Gaoyao the judge should do topunish the offender while saving the Emperor the potential moral shame.

There could be many possible answers to this question. For instance, the judgecan advise the Emperor to visit his father on daily basis in jail, which will show thathe is still a filial son who cares his father’s welfare, even if the latter is a culprit.Moreover, this will also not temper his moral duty to uphold the integrity of law.Also, the judge can arrange the Emperor or his father to visit the victim’s family, toapologise for the wrongdoing and to ensure that the Emperor is not misusing hispower to take advantage of the inequality in their social status. Whatever the answermight be, Gaoyao the judge would have his attention to harmonising interpersonalrelationships, either between Shun and his father, his father and his victim’s familyor Shun and the victim’s family. It is this emphasis on harmonising interpersonalrelationship that I wish to emphasise here.

This emphasis is premised on the interaction of human beings. For the Chineseconception of society, however pluralist and modern it may be, the interaction ofhuman beings is a prerequisite for the being of self, whether it be ‘unencumbered’ orotherwise. The Chinese character used to write the word ren (仁“benevolence”) withthe elements “human” (人) and “two” (二). Therefore, according to Zhao Tingyang aleading Chinese philosopher, ren may be interpreted as “a good interpersonalrelationship that is universally valid between two random persons” ([33]: p.86). Inother words, this methodological conception of human existence puts the individualor individualism into a socially embedded context of interpersonal relationships. It ismethodological in the sense that it does not have a thick description of culture-specific contents. It uses interpersonal relationship as its basic unit of analysis todecode human behaviours and values, with its focus on not individual butinterpersonal relationship. In general this is referred to “methodological relationalism”

(fangfalun guanxizhuyi), in contrast to “methodological individualism”. As Zhao argues([34]: p.91), ‘[methodological relationalism] is not to negate individual interest, but togive priority to the security and benefit of interpersonal relationships, so as to offerbetter protection for individual interests. To give priority to the optimal possibility ofinterpersonal relationship can thus open up space for greater possible interests andhappiness’. Thus, the security of interpersonal relationship (the minimalisation of harmdone to each other), as well as the benefit of interpersonal relationship (cooperationand reciprocity), should be the limit and sine qua non for ‘such benefit as available to

5 Liu Qingping had a discussion of this issue extensively in several of his articles, please refer to Liu [19,20, 22, 24, 25] for details.


individuals’. In other words, what ancient Chinese philosophy proposed is a rather thinarchitecture that is stripped of culturally loaded constituents. It aims to posit what adesirable and good society should be. The reason for us to reactivate or reanminatethis thread of thought is to show that it points to an important aspect in modernsociety. Where our overwhelming emphasis on pluralism, multiculturalism, liberalismand the primacy of right over good might risk alienating and atomising individualsfrom the community in which they are embedded, this methodological reorientation ofour attention to the importance of heart-to-heart interpersonal relationships might offera solution to the Libertarian-Communitarian Predicament, wherein the libertarianextreme risks producing ‘unencumbered’ self ([29]: p.90) while the communitariancrafting of a communal imaginary risks overriding personal freedom with a communalgood that can be overly fond of despotic superimposition ([15]: pp.89–92). Thisemphasis on interpersonal relationships bespeaks of the interactive component of ourdaily life: a relationship that treats a human as a human is the prerequisite for a humanto be a human ([33]: p.87). In this, a human being is an absolute end in and of himselfwithout the risk of being hijacked as means to other ends.

An emphasis on interpersonal relationships requires a mechanism to improve thesituation by harmonising interpersonal relationships. This is why adaptive justicedoes not see offering a one-off solution in and of itself as justifiable. It not only aimsto provide a solution for different situations of conflicting moral duties, but moreimportantly, it aims to establish a mechanism where the harmony in an interpersonalrelationship can be either instituted or restored. In this it gains its valuableimplications not only for current problems and predicaments, but also for theirpossible future occurrences. In other words, the solution gains its transitivity notonly for the parties involved, but also for other community members who may findthemselves in similar situations. Transitivity cannot be used for self-justification, aswe cannot forget that a bad law equally has transitivity, like the holocaust law madeby Hitler, or Creon’s law in the Greek tragedy Antigone. In other words, thistransitivity serves the purpose of enhancing the harmony in interpersonal relationships.We will need to examine this in more detail.

Starting from the premise that the co-existence of human beings is the prerequisitefor the existence of any individual, then only cooperation with others will enable oneto avail the optimisation of the state of his own being. Hypothetically to optimiseone’s state of being, he can choose, as in game theory, to be a ‘bad guy’, especiallyin the Hobbes-Xunzi style of the world as a jungle. He can use such ‘bad guy’strategies as deception, depredation and betrayal, as long as they maximise hispersonal interest. This all seems possible at first glance. Nevertheless, we have toremember that even a ‘bad guy’ is embedded in a world with others. Therefore, wewill need to adopt a long-term perspective to examine his odds of optimisation out ofhis chosen strategies. Axelord [3, 4] discusses the difference between individualrationality (in that either side tend to benefit itself with a selfish choice) and grouprationality (where both sides can achieve a higher payoff when they choose mutualcooperation over mutual defection) in the Prisoner’s Dilemma. Through a computertournament to test players’ reactions and their strategies in the Prisoner’s Dilemma,he found that the winning rule is TIT FOR TAT, a rule ‘which cooperates on the firstmove and then does what the other player did on the previous move’ ([3]: p.18; [4]:p.379). This implies that ‘reciprocity is not only a social norm, but can also be an

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extremely successful operating rule for an individualistic pragmatist’ ([3]: p.18).Bearing this tournament in mind, it is equally interesting to be reminded thatalthough the ‘bad guy’ strategy may work for a single person, it loses itseffectiveness in a society where everybody practises such a strategy. In other words,the ‘bad guy’ strategy works best in optimising one’s state of being only in a societywhere the majority of the members of society choose to be ‘good’ guys.6

Where reciprocity and cooperation can help to advance everybody’s interests,then it is desirable to adopt a ‘harmony strategy’, which means that one party X cangain interest improvement X+, if and only if, another party Y can simultaneouslygain interest improvement Y+. Zhao calls this the ‘Confucian improvement’, wherethere is a chain reaction in the interpersonal relationship. Of X and Y, any partygaining positive payoff will at the same time involve a positive payoff for the other.By the same token, any party getting a negative payoff will also result in the otherparty receiving a negative payoff. This Confucian improvement emphasises asynchronic, symmetrical and interest-interdependent relationship ([33]: p.45, 87).What Zhao offers here is a strong version of the Confucian improvement, as heassumes that there should be a symmetric correlation between the payoffs availableto both sides. Moreover, in this strong version, there are only the possibilities ofnegative and positive payoffs, forgetting that in real life, the possibilities include notonly a negative or positive payoff, but also a restoration to the original state ofcertain affairs. Let us suppose X and for its benefit, there is not only an X+ (anincrease of its own benefit) and an X− (a decrease of its benefit), but also an X0,representing the original state of its benefit. Drawing this X0 into our discussion isimportant in the sense that it is not only individual benefits that concern us here, butalso to restore a broken interpersonal relationship to its original state of harmony thatis of no less importance. Therefore, on the top of Zhao’s suggestion, I would offer arevised, weak version of the ‘Confucian improvement’ here by suggesting that nointerest improvement can be gained at the expense of the other’s benefit. This mayimply three possible scenarios: (1) one side gains interest improvement symmetri-cally with the other (Zhao’s strong version, namely X gains X+ if and only if Y gains Y+and vice versa); (2) one side gains interest improvement without decreasing orincreasing the other’s benefit but by restoring the latter’s interest to its original state (inother words, X gains X+ if and only if Y is restored to Y0 and vice versa); or (3) bothsides gain no interest improvement but have their respective benefit restored to itsoriginal level (X is restored to X0 if and only if Y to Y0 and vice versa).

This emphasis on harmonising strategy and the Confucian improvement mayoffer us an alternative arrangement how a just society might look like, as well as toprovide a solution for the Libertarian-Communitarian Predicament—meaning that

6 As Axelord ([3]: p.4) put it, ‘The distinguishing feature of the Prisoner’s Dilemma is that in the shortrun, neither side can benefit itself with a selfish choice enough to make up for the harm done to it from aselfish choice by the other. Thus, if both cooperate, both do fairly well’. I would rather argue that it ispossible that in the short run, one side can benefit if he chooses to defect while the other cooperates. Infact, Axelord acknowledged that ‘if one defects while the other cooperates, the defecting side gets itshighest payoff, and the cooperating side is the sucker and gets its lowest payoff’. Therefore, cooperationso as to achieve higher payoff for both sides only works from a longer perspective, premised on acognitive consensus on both sides that they are dealing with each other over a longer span of time. Thiscan discourage either side to defect for one-off benefit.


both libertarian and communitarian versions of justice, representing the twoextremes on the same subject, may lead to problems. To address the issue ofconflicts arising out of pluralism and multiculturalism in modern society, theRawlsian answer is to provide a contractarian framework with liberal values basedon the primacy of right over good [27]. Hopefully through this contractarianframework conflicts will be solved, to which Sandel replied with a strong critique,pointing out that there arise certain circumstances under which there is no easychoice, even by the application of contractarian processes and rules. Anunencumbered self is not only a purposeless wanderer in an alienated, atomisedworld, but more importantly, it creates irreconcilable conflicts that are not solvablewithin the framework of contractarianism-libertarianism ([29]: p.90, 121). Forinstance, under the rule that everybody’s right to self-determination is respected,should there arise a conflict, the top priority for any contractarian framework is toallow everybody to articulate his/her right will become. Nevertheless, a contractarianframework, even if it closely approximates the ideal type of ‘communicativerationality’ ([11]: pp.94ff; [12]: pp.3–10, 369), does not require that consensus-building will necessarily follow. This does have a consequence for our understand-ing of dispute resolution, in the sense that a contractarian framework is provided inthe hope, however vague, that a final agreement can be reached, whether byconsensus or compromise. This result is anything but guaranteed by thecontractarian framework, the function of which extends as far as to allow articulationof different interests and rights. Then, we cannot rule out the possibility that adeadlock might be arrived at, should individuals, with each and every one havinghis/her inviolable right respected over the communal good, be allowed to stick totheir original position. A contractarian framework, so to speak, risks reaching thecrisis moment of deadlock [33, 34]. In such a circumstance, the purpose of disputeresolution is defeated.

Therefore, where Rawls (and Habermas in the social sphere) aims to provide ameta-framework that will allow different interests and rights to be freely engaged inarticulation, communication and negotiation, we find that that framework dissolvesrather than resolves the very thorny issue of conflict resolution in a pluralist modernsociety. Where Rawls tries to iron flat all the creases on the surface of the society,Sandel reminds us that it is not so much about the creases as about the cracks thathave been overlooked by Rawls. Apparently Rawls was over-confident in assumingthat all the problems are solvable and everybody, with his/her right respected abovecommunal good, will willingly engage in the process of consensus-building.Therefore, on this piece of cloth woven by Rawls, there are holes of irreconcilableconflicts and uncompromising individuals.7

The introduction of adaptive justice is not to patch up all the holes in either thelibertarian or the communitarian version of justice. Rather it opens up the possibilityof looking at the debate from a new angle. If irreconcilability comes from theuncompromising gesture assumed by unencumbered self, then the solution might notnecessarily be a forcible, let alone forceful, superimposition of a communal

7 Although Sandel made the additional assumption that having a communitarian imaginary to be shared byall might provide the solution, he has been criticised for being equivocal about what constitutes such‘shared ends’ ([15]: p.58, 77, 89–92).

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imaginary upon the atomised individuals. Rather, we can introduce ‘the Confucianimprovement’ that is both internal to adaptive justice and that pays more attention toharmonising human relationships. This methodological sense of human relationshipdoes not need to be premised upon the existence of a shared end or communalimaginary that is prone to be despotically abused, no matter how ‘thin’ thisimaginary might be.

Conclusion

In a plural society, there can arise circumstances under which conflicts will beengendered, not only among the different moral duties one has to fulfil as a sociallyembedded person, but also between different individuals. There can be differentmechanisms to solve such conflicts and certainly, it is nothing new in arguing thatthere should be a mechanism to usher in extra-legal considerations in judiciaryprocess (such as equity in the Anglo-American law). What is interesting in thenotion of adaptive justice is that the built-in emphasis on interpersonal relationships,harmony strategy and the Confucian improvement in this model can offer us analternative conception of justice in the post-contractarian world. This notion ofadaptive justice is not aiming at replacing existing notions of justice such as Rawls,civic republicanism and Taylor-Walzerian communitarianism, but rather it aims tooffer new perspectives on our current debate on justice.

References

1. An, Y. 2008. Family love in Confucius and Mencius. Dao: A Journal of Comparative 7(1): 51–55.2. Angle, S. 2008. No supreme principle: confucianism’s harmonization of multiple values. Dao: A

Journal of Comparative 7(1): 35–40.3. Axelord, R. 1980. Effective choice in the prisoner’s dilemma. Journal of Conflict Resolution 24(1): 3–25.4. Axelord, R. 1980. More effective choice in the prisoner’s dilemma. Journal of Conflict Resolution 24

(3): 379–403.5. Bai, T. 2008. Back to Confucius: a comment on the debate on the Confucian idea of consanguineous

affection. Dao: A Journal of Comparative Philosophy 7(1): 27–33.6. Berthrong, J. 2008. The hard sayings: The Confucian case of Xiao 孝 in Kongzi and Mengzi. Dao: A

Journal of Comparative 7(2): 119–123.7. Callahan, S. 2008. Comment on Confucian family love from a Christian perspective. Dao: A Journal

of Comparative 7(2): 145–149.8. Ch’ü, T. 1962. Law and society in traditional China. Paris: Mouton & Co.9. Fan, R. 2008. Consanguinism, corruption, and humane love: remembering why Confucian morality is

not modern western morality. Dao: A Journal of Comparative 7(1): 21–26.10. Frier, B. 1982. Roman life expectancy: Ulpian’s evidence. Harvard Studies in Classical Philosophy

86: 213–251.11. Habermas, J. 1984. The theory of communicative action volume 1 reason and the rationalisation of

society. Translated by Thomas McCarthy. Boston: Beacon Press.12. Habermas, J. 1996. Between facts and norms. Cambridge: MIT Press.13. Hart, H.L.A. 1961. The concept of law. Oxford: Oxford University Press.14. Jung, H.Y. 2008. A metacommentary on the current debate on the problematique of filial piety. Dao: A

Journal of Comparative 7(2): 131–134.15. Kymlicka, W. 1989. Liberalism, community and culture. Oxford: Clarendon.16. Li, C. 2008. When my grandfather stole persimmons…reflections on Confucian filial love. Dao: A

Journal of Comparative 7(2): 135–139.


17. Lin, X. 2011a. The conceptual history of Qingli (qingli: yige gainianshi de kaocha情理:一个概念史

的考察). China Social Sciences Quarterly (zhongguo shehuikexue jikan 中国社会科学辑刊), 34.18. Lin, X. 2011b. Qingli: a theory of adaptive justice (qingli: yige biantongxing zhengyiguan de chubu

lilun jiangou 情理:一个变通型正义观的初步理论建构). Fudan Political Philosophy Review (fudanzhengzhi zhexue pinglun 复旦政治哲学评论), 2.

19. Liu, Q. 2002. Virtue or corruption? (meide haishi fubai 美德还是腐败). Philosophical Researches(zhexue yanjiu 哲学研究) 2002(2): 43–47.

20. Liu, Q. 2003. Filiality versus sociality and individuality: on Confucianism as “consanguinitism”.Philosophy East & West 53(2): 234–250.

21. Liu, Q. 2004. Revisiting Confucianism and the issue of corruption (zailun kongmeng ruxue yu fubaiwenti再论孔孟儒学与腐败问题). Academia (xueshujie学术界) 2004(2): 121–128.

22. Liu, Q. 2007. Confucianism and corruption: an analysis of Shun’s two actions described by Mencius.Dao: A Journal of Comparative Philosophy 6(1): 1–19.

23. Liu, Q. 2007. A paradox of Christian love. Journal of Religious Ethics 35(4): 681–694.24. Liu, Q. 2008. May we harm fellow humans for the sake of kinship love?: A response to critics. Dao: A

Journal of Comparative Philosophy 7(3): 307–316.25. Liu, Q. 2011. Emotionales in Confucianism and Daoism: a new interpretation. Journal of Chinese

Philosophy 38(1): 118–133.26. Ni, P. 2008. Do not take Confucians as Kantians: comments on LIU Qingping’s interpretation of

Confucian teachings. Dao: A Journal of Comparative 7(1): 45–49.27. Rawls, J. 1970. A theory of justice. Cambridge: Harvard University Press.28. Rosemont, H., and R. Ames. 2008. Family reverence (xiao 孝) as the source of consummatory

conduct (ren 仁). Dao: A Journal of Comparative 7(1): 9–19.29. Sandel, M. 1982. Liberalism and the limits of justice. Cambridge: Cambridge University Press.30. Schmidt, V.H. 1992. Adaptive justice: local distributive justice in sociological perspective. Theory and

Society 21(6): 789–816.31. Van Norden, B. 2008. On ‘humane love’ and ‘kinship love'. Dao: A Journal of Comparative 7(2):

125–129.32. Weber, M. 1994. Weber: political writings. eds. P. Lassman and R. Speirs. Cambridge: Cambridge

University Press.33. Zhao, T. 2010. Politics of everybody (meigeren de zhengzhi 每个人的政治). Beijing: Social Sciences

Academic Press (shehui kexue wenxian chubanshe社会科学文献出版社).34. Zhao, T. 2011. To deepen enlightenment: from methodological individualism to methodological

relationalism (shenhua qimeng: cong fangfalun de gerenzhuyi dao fangfalun de guanxizhuyi 深化启

蒙:从方法论的个人主义到方法论的关系主义). Philosophical Researches (zhexue yanjiu 哲学研

究) 2011(1): 90–93.

Xi Lin The author has delivered public talks on this topic on various occasions at China RenminUniversity, Fudan University, University of Sydney, and UC Berkeley. He would like to thank all theparticipants for their comments and particularly the following scholars for their constructive remarks:Deng Zhenglai, Guo Sujian, Duncan Ivison, Liu Qingping, Wu Guanjun, Sun Guodong, Elizabeth Mary,Michael Sandel, Wang Zhiqiang, and Thomas Pogge. The author is especially grateful to Jeffrey Riegelwho has helped in no insignificant way in refining the arguments and conceptualisation in this paper. Also,the research in this paper has been funded at different stages by the following organisations: Fudan-IAS(Project No: IAS-FudanXSGZFGJC09002), the ‘Jinmiao’ Project (EYH3601007) and Research InitiativeFund for Young Teachers (JJH3601003) at Office of Humanities and Arts Research at Fudan University.2011 The Three-Phase Project of Advancing in Entirety Social Sciences Research, the 985 Programme atState-Building Research Centre, Fudan University (No: 2011SHKXZD017), 2011 Shanghai PujiangProgramme (No: 11PJC029), 2011 Young Fellowship (No: 11YJC820067), Foundation for Humanities,Arts, and Social Sciences Research at Ministry of Education, and the 42th Academic Research InitiativeFund for Scholars Returning from Overseas, Ministry of Education.

372 X. Lin

Adaptive Justice in the Chinese Context: Law versus Commonsense

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