Edited by Padideh Ala’i and Robert G. Vaughn
Chapter 5: Opposing legal transparency in dynastic China: the persuasive logic of Confucianist views on legal opaqueness
Maybe the Confucianists had it right in arguing against legal transparency. This is the proposition that I wish to explore in my contribution to this book on the “many faces of transparency.” The book itself, I believe, will add a useful perspective to the modern discourse regarding transparency in governance, and on how such transparency can be achieved. It seems to me that the overall discourse might benefit from an examination of why there is such enthusiasm in the world, at least in the Western world, for transparency in law and government. Perhaps by studying a radically different perspective – that is, an ideology calling for legal opaqueness instead of legal transparency – we can identify some underlying values that we wish to serve in designing forms of governance. In order to explore these issues, I shall offer a brief synopsis of the overall historical and ideological setting from which the Confucianist views on law emerged. This synopsis will touch on the foundations of Confucianism, the foundations of Legalism, and the great clash between those ideologies, culminating in the Qin-Han period around the third and second centuries BCE. It was at that point that a remarkable compromise occurred between Confucianism and Legalism – what I refer to as an “alloy” that was stronger than either of its (seemingly incompatible) component ideologies.
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