Where Should Morality Go: A Reexamination of the Confucian Rule by Virtue Thought in the Pre-Qin Dynasty and the Chinese Traditional Ideological Dilemma

Abstract

The thought of rule by virtue in ancient China holds a significant role in Chinese ideological history. Because of the similarity in nature and authority, morality in ancient China played a similar role to religion in Western countries. The Confucian rule by virtue thought in the pre-Qin dynasty profoundly influenced subsequent generations. During the pre-Qin period, Confucian rule by virtue thought evolved—from personal cultivation to statecraft, integrating law and ritual. Concepts of rule by rite, rule by man, and rule by virtue intertwined with the legal philosophies of Confucius, Mencius, and Xunzi. Confucian moral governance focuses on human values and life quality, retaining relevance today. Constrained by historical and social contexts, it had unique dilemma and unobservable limitations. In order to eliminate the ideological dilemma, a return to virtue and law while adhering strictly to their boundaries is a feasible path for the Confucian rule by virtue thought from the pre-Qin Dynasty to the modern era.

1. Introduction

For a long time, Chinese traditional society focused and relied on morality in governance more than on religion, law, and other instrumentalities. Early Confucianism laid the foundation for the dominant order in traditional Chinese society that was based on ethics for over two thousand years. Traditional Chinese philosophy represented by Confucian has always paid much attention to self-cultivation. In general, religion and morality are more concerned with people’s inner world, whereas law is concerned with people’s external behavior. In contrast to the religious civilization order of the West, China has formed a moral civilization order with its specific characteristics (Yu 2016, pp. 18–33). Therefore, morality in ancient China played a role similar to that of religion in the West. Both of them take it as their mission to lead people to good, ‘Good Person Criterion’ is important in virtue ethics across religious and philosophical traditions (Berkson 2021). Furthermore, although lacking in external rituals, morality was much better in exercising internal spiritual control. Whereas religious authority and secular power were mostly separate in Western countries, moral and legal authority were one and the same in ancient China. As a result, morality has the same authority as religion; however, it lacked the necessary balances and had a profound influence on ancient Chinese society, whether it was the governance of the state or the life of the people. Both overseas and Chinese scholars have long assumed that Confucianism, which appears to be secular, plays a religious role in practice (Rosker 2017, pp. 279–91; Chen 2023, pp. 525–36).

The modernization process of the rule of law in China has continued to advance and made great achievements; yet, today, ordinary people still prefer the binding force of morality. The recent cases of Jiang Ge 江歌 and Zhang Koukou 張扣扣 in China demonstrate some clues. In the case of Jiang Ge, she was killed by her friend Liu Xin’s boyfriend for coming forward to save Liu Xin. Liu Xin was severely criticized by public opinion for her cruelty, indifference, and ingratitude although it is not illegal, and the court sided with the public on grounds of traditional virtue. The case of Zhang Koukou reflects the dilemma that Chinese people have faced for thousands of years regarding blood revenge. Zhang Koukou believes that the neighbors who killed his mother were not punished properly by law; thus, he decided to kill them himself when he grew up. The public, out of sympathy for his filial piety, hoped that the court would be lenient though Zhang Koukou committed a serious crime. This demonstrates a huge gap between the moral feelings of the people and the laws of the country. Hence, morality has posed a serious challenge to the modernization of the rule of law. A complex problem that needs to be solved lies before us: from history to the future, where should the morality of China go?

From an academic point of view, it is crucial to review the Confucian thought of rule by virtue 德治 in the pre-Qin period. With the advancement of the study of philosophical and legal history, academic circles have explored questions of the Confucianization of law 法律儒家化. More and more scholars believe that it is legalism 法家, or the integration of multiple theories, that has actually exerted influence, and the contribution of Confucianism should be reconsidered. In the past studies, most researchers focused on the analysis of Confucianism and legalism, which had a greater positive influence. However, looking at the negative effects may also help us understand the problem. An examination of the negative effects of the present will help us determine dominant schools of thought throughout Chinese history.

The concept of rule by virtue is pivotal in Chinese traditional legal thought, alongside rule by rite 禮治 and rule by man 人治—regarded as the three fundamental tenets of Confucian legal tradition. Within Confucianism, ethical considerations are extensive and multifaceted (Wong 2011, pp. 71–82). The pre-Qin period marked a crucial phase in the formulation of traditional virtue-based governance. It inherited principles such as ‘matching heaven with virtue’ 以德配天, ‘respecting virtue and protecting the people’ 敬德保民, and ‘noble morality and cautious punishment’ 明德慎罰 from the Western Zhou Dynasty. This legacy laid the groundwork for the dominant perspective in ancient Chinese law, known as ‘morality given priority over penalty’ 德主刑輔, which endured for over two millennia starting the Han Dynasty (202 B.C.–220 A.D.). Among Western scholars at least, the study of early Confucian political philosophy has lagged behind the study of early Confucian ethics (Harris 2019, p. 277). The rule by virtue thought is undoubtedly a key component of Confucian political philosophy.

Confucian thought of rule by virtue experienced an evolution process in the pre-Qin period. Specifically, Confucius emphasized personal cultivation, Mencius focused on statecraft, and Xunzi prioritized law and ritual grounded in moral principles. Their ideas transitioned, each with distinctive characteristics. Sungmoon Kim holds that the positive political role of the Confucianism was the Confucian discourse of virtue ritual, which helped cover up the legalistic face of the all-encompassing hereditary ruler (Kim 2011, p. 371). The ancient rule by virtue thought, while a valuable legacy, poses a significant challenge to contemporary legal construction in China. Navigating the utilization of this heritage without succumbing to traditional constraints is a substantial issue confronting contemporary Chinese society, testing the wisdom and courage of legal professionals. Scholars offer diverse perspectives on understanding the modern value and future development of traditional virtue-based governance. However, regardless of the approach, a need for caution against over-conceptualization, generalization, and simplification exists.

Although there are many rational voices in the treatment of Chinese traditional cultural resources, they often shift between total negation and total absorption in reality. Confucianism, especially the concept of rule by virtue, still substantially affects contemporary Chinese society. Compared with the rule by rite and rule by man, which have obvious defects, rule by virtue is regarded as the traditional cultural resource that must be inherited without thinking. However, the thought of rule by virtue also includes the content incompatible with modern society, which needs to be critically reflected. In dealing with the relationship with the law, the traditional thought of rule by virtue falls into a dilemma: the more morality tries to exert its control by expanding its boundaries, the more harm it will do to its control. Thus, we should return to rationality to resolve the dilemma of the relationship between morality and law, clarify the value and drawbacks of the thought of rule by virtue, and ensure that the thought of rule by virtue will play a positive role in modern times.

To rethink the traditional Chinese rule by virtue in a modern perspective, a return to the fundamental principles is essential, prompting reflection on the nature of virtue and law. In their interdependent relationship, what kind of virtue proves effective, and what legal principles are deemed reasonable? Does the Confucianization of Chinese traditional law, encompassing legalization of morality and moralization of law, genuinely align with the ancient ideologists’ expectations regarding the practical functions of morality and law? How should we view the status of Confucianism in the Chinese history of philosophy, and how should Confucianism integrate into modern society in the future? These pivotal questions demand earnest consideration in our quest for modern ideological system and legal governance. As some scholars ask, can Confucianism contribute something of value to contemporary virtue ethics, or is it solely of historical interest (Van Norden 2007, p. 57)? This study aims to present perspectives on the value and deficiency of the rule by virtue thought by comprehensively analyzing pre-Qin Confucian classical texts. Furthermore, it aims to propose insights on addressing traditional rule by virtue thought in the context of contemporary legal frameworks and build an effective model of the moral–law relationship.

2. From Personal Cultivation to State Governance: The Evolution of Confucian Rule by Virtue Thought in the Pre-Qin Dynasty

To understand the present better, we must return to the beginning. The formation of a thought must have undergone a long process of evolution; so did the traditional Chinese thought of rule by virtue. It is generally believed that China has rich ethical thoughts and moral concepts (Luo 2023, pp. 1–41). Confucius, Mencius, and Xunzi stand as key figures in pre-Qin Confucianism. They all attached great importance to the idea of rule by virtue and tried to answer the question of why it is moral (Huang 2010, pp. 65–87). This section succinctly examines the essence and characteristics of their virtue-based governance philosophies.

Confucius’ thought of rule by virtue is of pioneering significance; however, it is excessively idealized and does not consider the institutionalized application of actual governance. The lack here is not only that the law is not institutionalized but also that morality exists only at the macro level. Commencing with Confucius, Yang Bojun’s statistics reveal the recurrence of the term de 德 (including dexing 德行) 39 times in the Analects. It encompasses four meanings: behavior, style; kindness, grace; virtue; and quality (Yang 2009, p. 294). Its most prevalent usage is in the context of virtue, appearing 27 times. Confucius’ conception of rule by virtue includes two aspects: the governance of a nation and personal cultivation.

Regarding governing the country, Confucius emphasized the pivotal role of rule by virtue, likening the governor to the polestar guiding state affairs through virtue. He envisioned the governor as a fixed point, revolving around, illustrating the advantages of virtuous governance (Waley and Yang 1999, 2.1). Confucius deemed ‘ren’ 仁 as the moral qualification for leadership (Luo 2012, pp. 15–35). Confucius ardently advocated for the supremacy of rule by virtue, stating, ‘Govern them by moral force, keep order among them by ritual, and they will keep their self-respect and come to you of their own accord’ (Waley and Yang 1999, 2.3). He believed that virtue and ritual instilled both a sense of decency and identification with the ruler among the people. Furthermore, Confucius emphasized the need for punishments to be guided by higher values such as rites 禮 and music 樂 (Waley and Yang 1999, 13.3).

In response to Ji Kangzi’s 季康子 opinion that ‘slay those who have not the Way to help on those who have the Way’, Confucius highlighted his rejection of torture and murder as a means of governance (Waley and Yang 1999, 12.19). He advocated for educating the people through moral influence, emphasizing the significance of virtue within the state and extending it to both citizens and foreigners. Upon learning of Ji Shi’s 季氏 impending invasion of Zhuan Yu 顓臾, Confucius cautioned Ran You 冉有that the ruler should bolster cultural prestige to attract others rather than resorting to aggression (Waley and Yang 1999, 16.1). Confucius emphasized the moral standards of personal cultivation, categorizing individuals into three types: the monarch, gentleman, and ordinary people.

One fundamental assumption of Confucian virtue politics is the predication of a good government is founded on the political actor’s personal moral virtue (Kim 2016, pp. 152–76). Confucius provided different examples of the moral cultivation expected from a monarch. He lauded Taibo 泰伯, remarking, ‘Of Taibo it may indeed be said that he attained to the very highest pitch of moral power’ (Waley and Yang 1999, 8.1). According to Confucius, de is the exceptional morality of the king, which is the basis for his actions to be followed by society at large (Jany 2020, p. 329). He also contrasted Duke Jing of Qi 齊景公 with Boyi 伯夷 and Shuqi 叔齊 (Waley and Yang 1999, 16.12). Confucius underscored the influence of rulers on moral cultivation, as it is intricately connected to the nation’s development. He stressed the impact of rulers’ moral standing on the people, affirming, ‘if the ruler himself is upright, all will go well even though he does not give orders. But if he is not upright, even though he gives orders, they will not be obeyed’ (Waley and Yang 1999, 13.6). This underscores the pivotal role of a ruler in setting an example.

For the moral cultivation of both gentlemen and ordinary people, Confucius expressed strong views. For Confucius, being a virtuous person realizes human nature (Schuh 2023, pp. 193–216). He emphasized the imperative for individuals to improve their moral character, particularly urging gentlemen to exhibit high moral standards that influence a broader audience. Confucius indicated the ideal lifestyle for a gentleman as ‘setting your heart upon the Way and supporting yourself by its power’ (Waley and Yang 1999, 7.6). He regarded morality as the basis of a meaningful life, worthy of steadfast adherence. Confucius further remarked, ‘where gentlemen set their hearts upon moral force, the commoners set theirs upon the soil’ (Waley and Yang 1999, 4.11).

Confucius expressed concern that individuals were neglecting the cultivation of moral sentiments, such as leaving moral power unattended and hearing of righteous men but being unable to follow them (Waley and Yang 1999, 7.3). When disciples inquired about the significance of respecting morality 崇德, Confucius provided detailed responses and commended the questioners. Confucius wholeheartedly supported his disciples’ exploration of ‘chongde’, recognizing it as a constant pursuit and exploration of noble morality and the development of a perfect personality.

While Confucius constantly asserted, ‘Moral force never dwells in solitude; it will always bring neighbours’ (Waley and Yang 1999, 4.25), expressing optimism for the implementation of the rule by virtue in society, there were challenges when ideals confronted harsh realities. In the Analects of Confucius, he repeatedly lamented the declining moral level of individuals, recognizing the difficulty individuals face in attending to their cultivation amid diverse qualities. Confucius fervently advocates and promotes the significance and necessity of good moral quality; however, he concedes the formidable challenges in its practical implementation. Overall, Confucius’ philosophy of rule by virtue values personal cultivation more. As some scholars pointed out, in some cases, Confucius was proffering ethical advice rather than moral pronouncements (Alt 2023). Confucius thought of rule by virtue lacks clear guidance, and is not operable in national and social governance.

Mencius took the lead in applying Confucius’ thought of rule by virtue and deeply considered it in combination with national governance. Mencius regarded himself as the inheritor of Confucius’ thought and propelled the idea of rule by virtue based on this legacy (Liu and Shun 1996, pp. 143–64). According to Yang Bojun’s statistics, the term ‘de’ (including Dexing) appears 38 times in the book of Mencius (Yang 2010, p. 435). Diverging from Confucius, who emphasized individual moral cultivation, Mencius focused more on virtue as a governance policy. He asserted that sympathy is the primary moral virtue (Ahn 2022, pp. 365–82), aligning the implementation of rule by virtue with people-oriented民本principles, benevolent policy 仁政, and the kingly way 王道. Mencius raised the concept of rule by virtue to the political realm, strongly advocating the kingly way of ‘convincing others with virtue’ over the hegemonic way 霸道 of ‘convincing others with strength’.

He further emphasized, ‘If a prince hates disgrace, nothing will be better for him than to esteem virtuous men and respect the intelligentsia so that virtuous men hold office in the government, and capable men fill various posts’ (Zhao et al. 1999, 3.4). Mencius also affirmed the decisive role of the ruler’s benevolence and virtue in the state, declaring bluntly, ‘only goodness is not sufficient for the exercise of government. Only laws cannot put themselves into operation’ (Zhao et al. 1999, 7.1). He stated, ‘therefore only benevolent men are fit to be in high positions. If cruel men are in high positions, they will disseminate their wickedness far and wide among the people’ (Zhao et al. 1999, 7.1).

Mencius also addressed the virtues of personal cultivation. When responding to Wan Zhang’s 萬章 inquiry about the principles of making friends, he stated, ‘in making friends we should not put on airs because of our seniority, high rank, or our brothers’ wealth and rank. We make friends with one for these virtues, so we should not cherish any feeling of superiority in our hearts’ (Zhao et al. 1999, 10.3). In a dialogue with Song Goujian 宋勾踐 about his attitude toward life, we can also see the status of virtue in Mencius’ heart. He indicated that if you revere virtue and love righteousness, then you can be contented (Zhao et al. 1999, 13.9). Regarding human behavior, Mencius emphasized that ‘men often acquire virtue, wisdom, skill, and talent when they live in adverse circumstances’ (Zhao et al. 1999, 13.18). ‘Men of lofty virtue will not go astray even in an evil world (Zhao et al. 1999, 14.10)’.

Overall, Mencius advocated ‘benevolence to govern the people’ and further refined Confucius’ idea of ‘governing the country by virtue’, shifting the argumentation center from the individual to the state and ruler. Mencius obviously realized the problems of Confucius’ thought of rule by virtue and hoped to apply his views to the feudal lords’ struggle for hegemony and national reform in light of the actual social development at that time.

By the time of Xunzi, the influence of Confucianism had been greatly diminished, and a major adjustment had to be made. Xunzi is known for holding that ‘human nature is bad’, a position that opposes that of Confucius and Mencius (Schofer 1993, pp. 117–36). Xunzi represents the inevitable embodiment of Confucianism when it faces social management. Xunzi is not a heretic of Confucianism, but the inevitable result of Confucianism gaining political power and entering real life. Confucianism as a tradition shaped Xunzi’s thinking on his metaphysical assumption about the world, his reverence for the wisdom of sage kings, and his emphasis on education as the necessary condition for virtue development (Lu 2020, pp. 340–50).

Xunzi is a great concentrator of Confucianism in the Warring States Period, and also of all the thoughts of the pre-Qin Dynasty. His ideas and teachings were based on Confucianism and widely integrated with the views of other schools of thought, particularly legalism. Xunzi was different from Confucius and Mencius, and he was a forerunner of the combination of Confucianism and legalism (Zhang 1998, pp. 76–77). Xunzi, initially regarded as a heretic within Confucianism and neglected for an extended period, saw his philosophy of ‘prospering etiquettes and respecting laws’ 隆禮重法 employed throughout past dynasties. His ideals wielded significant influence in ancient China, playing a pioneering role in the formation of orthodox legal thought.

According to the author’s statistics, the word ‘de’ appeared 111 times in Xunzi. Xunzi’s thought on rule by virtue is intricately related to his idea on rule by rite and rule by man, reflected in his renowned insight: ‘The classical standards of order are rituals associated with punishments. Where the gentleman keeps them in repair, the Hundred Clans are tranquil. He makes brilliant inner power and is cautious with punishments, so the nation will become orderly and the four seas peaceful (Knoblock and Zhang 1999, 25.18)’. ‘The classical standards of order’ show that whatever the means of governance, its purpose is ultimately the governance of the state, rather than the welfare of the people. The rituals and punishments are both means instead of ends compared with governance. ‘The gentleman keeps them in repair’ full of the color of rule by man, people just in a passive position.

Xunzi advocated emphasizing virtue and being cautious with a penalty to take virtue as the foundation of the punishment, punishment is subordinate to morality. ‘The nation will become orderly and the four seas peaceful’ echoes the first sentence, which shows again that the implementation of the means of ritual, punishment, and virtue is relative to the supreme ruler. These concise and comprehensive words serve as a footnote not only to Xunzi’s legal thought but also to the orthodox legal thought of ancient China, encapsulating the most important characteristics of traditional Confucian legal thought: rule by rite, rule by man, and rule by virtue.

Xunzi believed that possessing good virtue was a crucial condition for a king to achieve world leadership: ‘The man who becomes Son of Heaven and obtains the whole world is the person who has most developed his will and aspirations, is most substantial in behaviour springing from moral power, and has the most lucid wisdom and insight’ (Knoblock and Zhang 1999, 4.8). One of the king’s duties is to ‘bring to perfect completion the Way and its inherent Power’ (Knoblock and Zhang 1999, 9.24). Xunzi advocated prioritizing virtue and following the king’s way in the governance process, reflecting the inheritance of Mencius’ thought. One who knows the way of true strength does not rely on military strength. Rather, he considers how to use the king’s mandate as the means to collect together his physical power and consolidate his inner power (Knoblock and Zhang 1999, 9.8). Those lacking inner power shall be without honored status (Knoblock and Zhang 1999, 9.15).

Different from Mencius, Xunzi no longer completely denied and rejected hegemonic power, but advocated the use of kingly ways and hegemonic ways simultaneously. Xunzi believed that human nature is bad, which profoundly affected his strategy of governing (Sung 2017, pp. 227–47; Hutton 2000, pp. 237–49). He emphasized in his book that: ‘A lord of men who exalts ritual principles and honors worthy men will become a True King; one who stresses law and loves the people will become lord-protector (Knoblock and Zhang 1999, 16.1)’. Given that Xunzi considers the definite and regularized norms such as rite, law, and punishment, the dependence on virtue in the governance of the country is relatively low. This reflects the general rule of social development. The more times develop, the clearer the boundaries between religion, virtue, and law become. Xunzi’s thought means that the Confucian thought of rule by virtue came into practice and no longer stayed at the level of missionary education. Compared with the more conservative Confucius and Mencius, this progress is crucial but obviously not enough in terms of the extent of dealing with the relationship between morality and law; thus, there is still a big gap.

Overall, Confucian moral governance thought evolved from Confucius’ emphasis on personal cultivation, Mencius’ focus on state governance, to Xunzi’s attention to law and rites based on virtue during the pre-Qin period. The thoughts of rule by rite, rule by man, and rule by virtue intertwined, permeating the legal philosophies of Confucius, Mencius, and Xunzi. Each one’s opinions about the rule by virtue have a further transcendence on the basis of inheritance. As long as societal development does not stagnate, changes in the thought system are inevitable. Such differences are closely related to the background of the times. Although there was a phenomenon of the collapse of rites and music, in Confucius’ time, the Zhou system was not completely corrupted. By the time of Mencius and Xunzi, the system competition after the failure of the Zhou system had become widespread. The concept of moral governance based on personal cultivation advocated by Confucius is essential to repair the Zhou system, so there is no need to construct the system level. However, the thoughts of Mencius and Xunzi emphasize the implementation of the system. In the Confucian traditions, virtue is manifested in the exaltation of moral goodness and ethical charisma of exemplary persons (Tan 2024, pp. 5–23). By guiding the direction and determining the criteria, the thought of the rule by virtue became the theoretical basis of the rule by rite and rule by man. To sum up, since the pre-Qin period, morality has become the core content of Confucian thought and governance.

3. Human-Centered but Restrict Other Instrumentalities of Social Control: Rethink the Status of Confucian Rule by Virtue Thought

Although more and more voices are calling for a re-examination of the values of Confucianism, the Confucian idea of rule by virtue has a foundational significance, substantially different from schools such as legalism. Confucian ethics always center on the human in the secular society, and take the morality of man as the fulcrum (Zhang 2009, p. 148). What can Confucian rule by virtue thought bring to us? Is there any correspondence between Confucian rule by virtue thought and the modern society? The following is an analysis of the value of pre-Qin Confucian thought of rule by virtue around the concern and attention to humans.

First, the pre-Qin Confucian thought of rule by virtue emphasized the development of human values. The pre-Qin Confucian thought of rule by virtue generally embodies the affirmation and promotion of human value. At the period when Confucius lived, society entered a historical era of great upheaval and transformation. This upheaval and change led to a dramatic renewal of ideas. People’s understanding of the relationship between man and God has developed to a new height—from God to man (Yu 1998b, p. 207). Confucious asserts ‘he who first made wooden or clay figures to bury with the dead must have had no posterity’ (Zhao et al. 1999, 1.4), interpreted that as such because the figures used for that purpose bore a human resemblance. It is a historical progress to replace human martyrdom with clay figures, but Confucius still expressed strong opposition, which shows the status of human beings in Confucius’ heart. Confucius regards loving people as the core and root of benevolence (Waley and Yang 1999, 12.22). To Confucius and his followers, a good society and a righteous government must start with and, hence, be founded on the moral perfection of the human person (Cheng 2004, pp. 124–47). In the governance of a country, particularly a large country, we should attach significance to individuals and care for them.

Second, pre-Qin Confucian thought on rule by virtue prioritized enhancing the quality of individuals. Given the emphasis is on promoting the value of human beings, it is necessary to improve the quality of human beings. On the one hand, it is reflected in pre-Qin Confucianism to improve its moral quality; on the other hand, it is reflected in the emphasis on public education and influence. The preceding text has delved into the former aspect, and now attention is directed towards the emphasis on civilizing the public. Confucius, as the earliest educator in China, founded private schools and broke the monopoly of official schools. He advocated teaching without class and paying attention to the method of individualized teaching. Confucius believed that people’s moral cultivation was the first thing to be considered. In response to Ji Kangzi’s question on how to ‘make the people respectful and loyal to persuade’, Confucius regarded both the education of those who were not capable and the promotion of those who were capable as a means of exhorting the people.

Third, the pre-Qin Confucian thought of rule by virtue focused on improving people’s lives. Since the Confucian thought of rule by virtue came into being, it has the mission of establishing a stable new order beneficial to ordinary people. In his effort to rescue the collapsing ritual order, Confucius formulated the virtue of ren, and touted this newly formulated virtue as the new moral foundation for the ritual order (Jiang 2021, pp. 53–112). Whether focusing on promoting human values or improving human quality, the most basic thing that the pre-Qin Confucians believed was to improve individuals’ living standards. Confucius’ thinking in this regard is well expressed through a dialogue with Ran You 冉有 (Waley and Yang 1999, 13.9). On improving people’s livelihood, Mencius discussed it in more detail and regarded it as an important part of the king’s road (Zhao et al. 1999, 1.3). It can be viewed that the governing property for individuals is integral to national stability. Confucianism’s concern for human growth and development is of unparalleled significance, forming the basis of the humanistic spirit of ancient China. By concentrating on the self, early Confucians underscored the significance of human autonomy and agency. As Zhang Meihong indicated, the point that Confucianism does not have a conception of individual rights is not strong enough (Zhang 2022).

Comparatively speaking, the deficiencies of Confucianism are more worthy of further study. The deficiencies of pre-Qin Confucian rule by virtue thought are deep-rooted and directly shape the political model of later generations. They were always overshadowed by the glorious values of Confucianism, or are thought to be easily stripped away with the advance of modernization.

First, it serves the purpose of rule by man. An inseparable connection exists between Confucian rule by virtue and rule by man. Confucians believe that the good and evil of the human heart are determined by indoctrination, and, at the same time, believe that this indoctrination is only the influence of one or two people in power. His personality has great appeal, from the rule by virtue to rule by man (Qu 2003, p. 316). Rule by man stems from rule by rite and rule by virtue. To implement the rule of virtue, rulers who can exemplify moral influence are vital, underscoring the significance of the ruler’s role.

Elaborating morality to the level of governance implies two premises: the need for a moral model to promote and implement the rule of virtue and to make moral assessments. Conversely, established institutions and rules yield relatively vague mores and creeds, depending on those in power. The central motivating principle of Confucian politics is a political order, and rulers who can achieve a minimum level of the order are approved of, even if they are not virtuous (El Amine 2015, p. 62). The rule by virtue cannot be separated from the rule by man alone, and the rule by law of pre-Qin legalism also serves the purpose of rule by man. However, even if it is partly dependent on law, it will bring some certainty, rather than simply relying on the decision of someone in a position of power.

Second, it is full of ideal colors. The pre-Qin Confucian thought of rule by virtue has a strong ideal color, which is the common feature of the pre-Qin Confucian thought, reflected in all aspects of its thought. Confucian philosophers often want to extol a strong to excessive idealistic spirit, with the so-called gentleman as the symbol, with a fairly high personality and moral standards to judge the world. In this universal and eternal truth to win back their power of the word to avoid the fate of marginalization (Ge 2001, p. 422). The rule by virtue thought will face great difficulties in its implementation, the Mencius’ failure in persuading King Xuan of Qi proves that. The problem is of non-transmission of the compassionate impulse within a person despite moral persuasion, which needs to be addressed in order to enhance the success of moral conversion (Young and Ming 2023, pp. 555–75). Confucian intellectuals not only promoted the spirit of idealism after the gradual formation of ideology but also needed to do so in the process of striving for ideology. This ideal characteristic is not strategic and temporary, but deeply rooted in the thought of pre-Qin Confucianism. The idealistic essence of pre-Qin Confucian thought on rule by virtue has persisted and permeated through subsequent generations, leading to an increasing subordination of law to morality. The moral principles have gradually infiltrated and shaped the content of the legal system.

Third, it neglects the construction of the system. Pre-Qin Confucianism places significant emphasis on the rule of man and is imbued with idealistic hues. However, this idealism presents a substantial challenge in practice, as it tends to neglect the establishment of a systematic framework and raises doubts about the certainty of law. Xunzi succinctly expresses this challenge, ‘Thus, the model cannot be established alone, nor can its categories for analogical extension apply themselves in particular instances. If proper men are obtained, then the model will survive; if such men are lost, then it will perish’ (Knoblock and Zhang 1999, 12.1).

Chinese individuals have always placed the arrival of ‘governance of the world’ on people, the wisdom of the Son of Heaven, or the integrity of officials, but they do not believe in laws and institutions. However, a government with high administrative efficiency should not rely too much on morality (Huang 2006, p. 78). While brimming with ideals, it simultaneously neglects systematic construction, exerting a detrimental influence on society and individuals under the sway of this notion. Whether it is the simplicity of the people or the honesty, justice, and efficiency of the government, its fundamental guarantee lies not in organization and technology, but in this. This system, designed based on the morality of the saints, though perfect, is a veneer, capable of corrupting the human heart. Ancient Chinese society has been mired in the circle of moral generalization and institutional lacking.

4. Rebuild the Relationship between Morality and Law: Feasible Ways to Escape the Chinese Traditional Ideological Dilemma

While the above analysis is the value and deficiencies of the pre-Qin Confucian thought of rule by virtue, the Chinese traditional thought of rule by virtue does not exceed the framework of the pre-Qin thought. Therefore, to a large extent, the analysis and evaluation of the pre-Qin Confucian thought of rule by virtue are also of great help to understand the Chinese traditional rule by virtue thought. The deficiencies of the pre-Qin thought of rule by virtue discussed above are mainly from the concrete perspective. The following is a more macro perspective, from the relationship between morality and law to see the problems of the traditional Confucian rule by virtue thought. This irrational relationship is the most concentrated embodiment of the Chinese traditional ideological dilemma. The Confucian rule by virtue thought enmeshed itself into a dilemma: the more morality tries to exert control by expanding its boundaries, the more harm it does to itself.

From the perspective of the relationship between morality and law, the biggest problem of Chinese traditional rule by virtue thought is that law is regarded as the appendage and tool of morality, and law becomes a tool to promote moral ideals and solve moral problems. Under the domination and control of morality, it is difficult for a law with only penal content to develop independently, and the more it cannot develop independently, the more difficult it is to change its relationship with morality. With the continuous penetration of morality into law, the relationship between morality and law has gradually formed two aspects, one is the legalization of morality 道德法律化, and the other is the moralization of law 法律道德化.

Two connotations of the legalization of morality exist: first, the moral principles becomes the value pursuit of law, which plays a fundamental role in guiding legislation and judicial activities; second, moral rules are directly transformed into specific provisions of the law, thus having the force and binding force of the law. The moralization of law means that because morality constantly penetrates the law, the law loses its essential characteristics and gradually tends to morality, which has a strong missionary meaning. The dilemma of the Confucian rule by virtue thought is shown in Figure 1.

Moral legalization and legal moralization are two expressions of the same process or two perspectives of observation. They are not separated but are closely related. From the moral point of view is the continuous legalization of morality, and from the legal point of view is the continuous moralization of law. The latter is the inevitable result of the former, and their essence is the same, reflecting the penetration and intervention of morality into law. This study holds that the relationship between morality and law in traditional China and its practice have proved that the legalization of morality and the moralization of law have hurt both law and morality, and we need to reflect on and criticize them.

The Confucian scholars in ancient China all had strong moral ideals, which continuously promoted the process of ‘introducing rites into law’ 引禮入律, that is, the Confucianization of law. Confucian scholars constantly transform the face of the law according to their ideals. For them, it is difficult to accept laws that are too simple and direct and cannot reflect the concept of ‘kinship and respect’ 親親尊尊. The law under Confucianism is the courtesy and virtue guaranteed by penalty. Confucians and legalists are no different when it comes to introducing moral content into law (Fan 2001, p. 178). There is not much difference between Confucianism and legalism in the understanding of the rule by man.

The harm brought by the Confucianization of law is first reflected in the harm to the law, which is embodied in three aspects:

First, the independent status and positive image of the law no longer exist. The introduction of rites into law not only did not make the cold law tender but further strengthened the status of the law as the subordination and appendage of rites. This spirit is also well reflected in the annals of criminal law in the official history of the past dynasties. Law and punishment are only auxiliary and supplementary to rites and are considered tools in themselves, not as ends. The thought of rule by virtue had a profound influence on the content of the law code in the feudal era of China, especially the Tanglü Shuyi of the Tang Dynasty. As the opening paragraph of Tanglü Shuyi indicates, virtue and rites are the foundation of politics and moralization, and law and punishment are their application 德禮為政教之本，刑罰為政教之用 (Zhangsun 1983, p. 3). The strength of ethics and morality makes the law only the content of punishment, and the law only the punishment makes it more difficult to let people close. Owing to this, ancient Chinese law has never been able to generate a set of independent values and theoretical systems from itself like Western law, and it is naturally unable to resist various forces from the outside world that try to use the law as a tool.

Second, the scope of the law has become broad and vague. Because of the penetration of morality, the law has the tendency and danger of homogenizing morality. The adjustment object of virtue includes both thought and behavior, while the law can only adjust people’s behavior; if the law also adjusts people’s thoughts, it is extremely easy to lead to tyranny. In Han Dynasty, the proposal of making judicial judgment in accordance with Confucian classics put forward by Dong Zhongshu 董仲舒 was approved by the emperor (Zhang 2020a, pp. 249–380). The Confucianization of law developed along with Dong Zhongshu’s assertion of harmony between heaven and humans as the inevitable result of rule by virtue thought. Since then, Confucian ideology was introduced into the judicial field.

Dong Zhongshu’s original intention of sentencing and conviction can be said to be very good. It is reasonable to argue that subjective motives should be considered as well as objective actions in the trial. If used properly, it can obtain good results. The law’s concern for people’s inner world reflected in this way surely set up a glorious example for the wise officials of later generations to pursue the integration of morality and law. However, it also opened the door for the cruel officials to realize their illegal purposes with the help of law, meaning that alienation and deterioration could easily happen. On the other hand, many behaviors that should be adjusted by morality are also given the deterrent power of punishment, which leads to the increasingly tight legal net, and further deepens people’s aversion and rejection of law.

Third, the coercive and binding force of the law is weakened. Law is a social product, is one of the social systems, and is one of the social norms. It is closely related to customs and habits, and it maintains existing institutions and values such as morality and ethics (Qu 2003, p. 1). It may seem good to implement high moral content through law, but it may fall into the awkward situation that both high moral and low legal requirements are difficult to achieve. The law, which is originally definite and strict, has a moral character to some extent and, therefore, becomes as elusive as the moral code, which needs to be determined by the law enforcer according to the specific situation and is difficult to apply uniformly. Due to the ethical rationality as the criterion, the judges sometimes adopt a more humane treatment in the face of indiscriminate criminal cases, and impose alternative punishment on the convicted criminals beyond the provisions of the law. The certainty, which was originally the advantage of law, gradually becomes the defect and disadvantage to be overcome with the intervention of morality. Pan-moralism and legal nihilism interwoven and influenced each other, forming a vicious circle that ancient Chinese society could not jump out of.

The more hidden harm of the Confucianization of law is reflected in the harm to morality, which is embodied in two points:

First, it eliminates the self-regulating nature of morality. Some scholars believe that the Analects does not recognize a categorical distinction between a moral and non-moral realm (D’Ambrosio 2023). The biggest difference between morality and law is that the essence of morality is self-discipline, and its protection comes from people’s inner hearts rather than external coercion. The reason why we think of an action as moral is that a person has many choices when faced with a situation, he has performed something that is good for everyone or has given up something for the good of others, and, therefore, we think it is good. If that is what the law says to do, then even if he does it, it is not moral. Because he has lost the possibility of choice, he is only doing what society forces him to, and without free will, choice is meaningless.

For example, filial piety 孝道 is a very important concept in traditional Confucianism, and unfilial piety 不孝 is also listed as one of the ten worst evils that threaten feudal rule (Yu 1998a, pp. 323–47). While the law can stipulate that people must perform certain behaviors that meet the requirements of filial piety, it is difficult to make people honor their parents from the heart just by the law. Forcing people to meet the requirements of filial piety through mandatory laws not only reduces the initiative and enthusiasm of people to honor their parents but also makes unfilial people more aware of their shameful behavior. In fact, people’s ideas and behaviors at that time did not meet the requirements of the law. Any society must persuade people to perform good deeds, but if the advice is guaranteed by punishment or even capital punishment, then the domineering and arbitrary tone and tone reflected behind this can be imagined.

Second, it creates the universal hypocrisy of human nature. It was a beautiful dream of ancient Chinese thinkers to promote the morality that can only be achieved by saints to the whole society, hoping that everyone would take saints and gentlemen as moral examples, and trust the improvement of social perfection and progress in the improvement of human moral cultivation, but in reality, it is a complete fantasy. One of the results of moral legalization and legal moralization is that morality is greatly harmed, which is probably unimaginable by the thinkers who carry out moral education as the starting point, or out of the helplessness under an authoritarian background.

After all, in ancient China, there were no elements and means of Western society to restrict the powerful monarchy. Chinese native religion does not form such a broad group of believers and a rigid system of organization as the Catholic Church, which can be feared by the king. Chinese nobles are with the emperor, not against him. Chinese society is hard to maintain because it is squeezed by family and state. The civil society based on the Western concept of equality and freedom was an illusion in ancient China. In most of the Chinese dynasties, merchant groups were insulted and attacked by the rulers who pursued the state policy of emphasizing agriculture and suppressing commerce, and they were unable to challenge the authority of the monarch and win their privileges like their counterparts in Western society. Then what is the imperial power afraid of? Attaching importance to and relying on morality has become the only choice for ancient ideologists in China.

Confucian ideologists attach great importance to morality, which leads to the special need for morality in ancient society, yet such attention not only fails to save society but also encourages the hypocrisy of character. Confucian ideologists have been extremely respectful of the wise, which has led to the society being dependent on the wise, yet this kind of worship has not only failed to help the country but also bred endless corruption. This is a wonderful irony for the ideologists, and it is also a knot that ancient Chinese society was not able to solve. Only by building a brand new and effective model of the moral–law relationship can these problems be solved once and for all.

On the relationship between morality and law, where the problem can be solved by law and technology first, it does not involve a moral issue (Huang 2006, p. 233). If ancient thinkers insisted on the rule of virtue and the Confucianization of law out of a helpless choice, there was a historical significance of restricting the monarchy, easing tyranny, and caring for people’s livelihood. Contemporary Chinese society is in a new age, and we should think with a new model about how to face the dilemma that ancient Chinese could not escape. Shall we also entrust the task of virtue with an unbearable burden? Based on the background of the modern era, the following three points are worth noting in thinking about morality and law, rule by virtue, and rule by law.

First, make clear the difference between morality and law. The way of moral and legal adjustment has its advantages and disadvantages, and should not be confused, still less they should not replace each other. Ignoring the essential difference between morality and law will have disastrous consequences. Morality is mainly concerned with people’s hearts, while law is more concerned with people’s actions. Moral requirements are relatively high, and legal requirements are relatively low, but it does not mean that high moral requirements can replace low requirements of the law. Both morality and law are necessary in modern society, and the influence of morality is mainly reflected in the level of personal cultivation. In the aspect of governance, we should pay attention to the institutional measures represented by law. Because the law with certainty, more than morality of uncertainty, can inject long-term and sustained impetus into the healthy development of the country and society.

This is what the ancient Chinese society under the rule of virtue was seriously lacking. Relying too much on uncertain morality and neglecting institutional law, the normal management and operation of society can only be maintained on empty and hypocritical dogma, and relying on a few wise kings and wise ministers. The tendency to generalize morality, which is appropriate for the cultivation of the individual, into social affairs that are beyond the competence of the individual, is still present today. The temptation of advancing a society with a mechanically conforming moral outlook is precisely the small advantage that Confucians must resist (Chan 2020, pp. 275–94). Therefore, it is particularly necessary to arouse our attention, and we must firmly believe in the rule of law at the level of national construction.

Second, maintain the boundary between morality and law. In the early stages of human development, there was a common stage of religious, moral, and legal integration. The separation of religion, morality, and law is an inevitable trend of the development of the times and social progress (Maine 1906, p. 15). Morality and law are not completely separate, and morality, as a norm reflecting higher requirements, will constantly have an impact on lower requirements of morality, and there are some common objects and behaviors of adjustment. It is not only necessary but also possible to maintain the most basic values and creeds of society by employing law, which is consistent with Eastern and Western laws. Those tenets of moral rightness that are considered basic and imperative for social intercourse will be endowed in all societies with an obligatory character of great strength (Bodenheimer 1962, p. 294).

However, the transformation of moral principles into legal rules is limited, and moral principles to guide legal rules also need to pay attention to the way and method. There has long been a difference between natural law and positive law in the West. As a value system of justice and rationality, natural law is higher in rank than positive law, and it is also the driving force and foundation for the improvement and progress of positive law. However, the value of natural law is not realized through moral legalization and legal moralization as in ancient Chinese society but maintains dual opposition with positive law. It is precisely because the two have always maintained the opposite and interactive relationship that natural law has not lost its nobility due to secularization, but has retained the space for positive law to continue to rise.

Third, rebuild the relationship between morality and law. Morality should not be allowed to dominate ideology and social governance in modern China. There is little point in caring too much about people’s morality. The progress of morality has its rules, which should not be promoted blindly or encouraged by excessive growth. The overall improvement of people’s moral level and cultural accomplishment depends on the development of society and economy and the improvement in living standards, which is the only fundamental thing. What is important is not to use the past to satirize the present, but to solve the current problems rationally and seriously.

In addition, morality cannot replace religion either. Religion must be preserved and valued because of people’s need for faith. This is a unique value that neither morality nor law can provide. We should try to build a new kind of relationship between law, morality, and religion in modern China. Different from traditional Confucian rule by virtue thought, this ideal relationship uses law as central instrumentality of social control and emphasizes complementarity between law, morality, and religion. All kinds of instrumentalities perform their own jobs, do not interfere with each other, and work together for the development of the modern Chinese future. The ideal relationship between law, morality, and religion in modern China is shown in Figure 2.

The above is not easy to operate, and it is bound to encounter considerable resistance. In the present Chinese society, to eliminate the negative influence of the thought of rule by virtue, we must rebuild the relationship between morality and law, establish clear boundaries between the public and private spheres, and adhere to them.

Morality originated from the individual, and the improvement in morality should also return to the individual. The essence of morality is people’s inner self-restraint. The state and society should not force people to perform good deeds but should create necessary and good conditions for people’s moral progress and provide a free and relaxed atmosphere for people to make good choices. Only by returning to the essence of morality can the improvement in morality come naturally.

The essence of law is a powerful instrumentality to adjust the relations between people after the emergence of the state, and it must create conditions for the development of society and the state, and ultimately the development of man by establishing freedom and order. The primary task of law is not to shape moral people but to draw the bottom line of human behavior. Whether to do good is the freedom of human will, but not to affect the freedom of others is a prerequisite. Only by returning to the law itself can the process of the rule of law be promoted without interference.

5. Conclusions

In the vision of the Confucian tradition, people are the most precious thing in the world, which means that they should have a higher level of realization (Zhang 2020b, pp. 139–44). The Confucian thought of rule by virtue emphasizes the promotion of human value, enhancement of human quality, and the betterment of human life—values worthy of affirmation that still hold significance today, requiring preservation and advancement. However, constrained by historical background and social conditions, Confucian rule by virtue thought exhibits various deficiencies, such as a bias toward rule by man, excessive idealism, and a neglect of the legal system development. Particularly in addressing the relationship between morality and law, an overemphasis on morality within Confucian thought has marginalized the role of law. While understanding the limitations of the era, contemporary efforts in legal system construction, demand a nuanced acknowledgment of past issues and a commitment to seeking enduring and practical solutions.

From the discussion of the Confucian rule by virtue thought, the influence of Confucianism on Chinese traditional society and law is far-reaching and long-lasting. How to inherit spiritual wealth is worth discussing, and identifying the dross is equally or even more necessary. In particular, the dross content is often hidden under the wealth and difficult to be effectively distinguished. In traditional Chinese society, it was difficult to separate the rule by virtue from the rule by man as they were deeply bound together. This results in the lack of a theoretical basis for the independent operation of the law. This pattern started with the Confucian thought of rule by virtue in the pre-Qin period and was strengthened in later years. Traditional Chinese society tended to blur rather than define the clear line between morality and law, which in some other civilizations seems to be common sense and not difficult to achieve. However, it is not easy for Chinese society, which has long been influenced by the idea of rule by virtue, to establish the authority of law.

Hence, it is necessary to distinguish between the public sphere and private space, strictly limit the application scope of the rule by virtue, and prevent enlargement. Morality and law each have distinct roles and advantages in their realms of applicability. It is crucial not to blur the lines between the two or overlook their differences. Morality should not be allowed to overstep its bounds and play a role that should belong to law or even religion. Every society has challenges that need to be addressed by morality and others by law, a principle applicable in contemporary China as well. Relying on severe punishment to solve moral issues is not a viable approach. History has proved that unbridled moral legalization and legal moralization are detrimental to both morality and law. Addressing current challenges in China requires a clear perspective and drawing upon diverse wisdom. Overall, returning to the foundational principles of morality and law, and adhering strictly to their respective scopes and boundaries, offers a practical way forward.