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In China, the classical tradition was eclipsed by the rise of those whom Chung-yin Cheng called the “later Neo-Confucians”: adherents of the School of Principle founded by Cheng Yi and Zhu Xi, and of the School of Universal Mind founded by Lu Hsiang-Shan and Wang Yangming. In the late Song dynasty, the School of Principle was declared to be the orthodox interpretation of Confucianism. The School of Universal Mind was its leading opponent. Nevertheless, “[it] is natural,” as Cheng said, to consider them a group apart. They both “deviated from Classical Confucianism in two important respects; First, they completely objectified human reason into a nonhuman order of things” – a doctrine that the School of Principle formulated and “Wang Yangming subjectivised” by identifying principle with the mind. “A second deviation concerned the status of human nature in relation to its ideal of perfection and development.”
In 1776, representatives meeting in Philadelphia as a congress “of the thirteen united States of America” unanimously adopted a Declaration of Independence, which stated that “these United Colonies are, and of Right ought to be Free and Independent States.”
The former colonies fought and won a war for their independence, recognized by the Treaty of Paris in 1783. In that year, a group of officers of the Continental Army planned to march on Congress to demand their back pay and guarantees for the future. George Washington met with them and persuaded them not to do so. Later that year, he resigned as Commander-in-Chief. He did not impose a military government as Oliver Cromwell had done. He did not try to make himself king, which George III said marked him “as the greatest man in the world.”
Modern ethical, political, and legal thought finds itself navigating between two unacceptable alternatives. One is to regard moral standards as absolute, eternal, and invariable. The truth of such standards, however, is impossible to demonstrate. Those who claim a privileged knowledge of them are dangerous since they may try to force their views upon others. The other alternative is to regard moral standards as individual and subjective, and so imperil any real distinction between right and wrong, and just and unjust institutions. The two classical traditions that we will study were viable and enduring because they were not caught in such a dilemma. One was founded in China by Confucius and the other in Greece by his near contemporary Socrates. For centuries, they were the starting points for serious thought about ethics, politics, and law.
The School of Principle was recognized as the correct interpretation of Confucianism from the late Song dynasty until the end of imperial China.
When it first appeared, the School was regarded as dangerous. The works of Cheng Yi were prohibited most of the time from 1103 to 1155. It is said that only four people were brave enough to go to his funeral. Zhu Xi was dismissed from office several times on account of his philosophical views. In 1196, his teachings were prohibited, and there was a call for his execution. One contemporary described his funeral as “a gathering of heretics from all over the empire to follow the arch-heretic to the grave.”
Another core idea in both traditions is that human nature is the source of the moral qualities necessary for a good life. To live rightly is to live a distinctively human life. A person is drawn to such a life and is able to recognize its goodness because he isa human being. If he lives wrongly he destroys his humanity and consequently himself. oneself. Confucius rarely mentioned human nature (性 xing),1 and Socrates did not do so in his early dialogs. This core idea was a response to those who criticized their teachings.
In both classical traditions, normative standards are based on human nature. To act rightly is to live a truly human life. In both traditions, the purpose of society and government is to help every person to live such a life. Part of living such a life is to help others to do so.
Confucians spoke of ren (仁) or benevolence. For Mencius, the object of ren is the well-being of others. When extended, it is the well-being of everyone in society. One of his examples of benevolence concerned a king who doubted that he had any such virtue. Mencius reminded him of the distress he had once felt seeing an ox about to be sacrificed to consecrate a bell. He spared the ox. If extended to a concern for all people, his benevolence would be sufficient to rule a kingdom.
By the nineteenth century, nearly everyone agreed that the rationalist program had failed. In Section II, we will consider how liberal philosophers responded. In this section, we will see how, in the nineteenth century, jurists tried to opt out of the philosophical enterprise entirely. We will also see how some contemporary liberal thinkers such as Dworkin and Rawls have revived that approach. They have said that their conclusions do not rest on the principles of any particular philosophy.
In the Confucian tradition, there was one legitimate form of government. It was an empire to which all civilized people belonged.
In the beginning, Tian conferred the mandate to rule on the emperor Yao (堯). According to Confucius, “Great indeed was Yao as a sovereign! How lofty! Only Tian is great, and Yao modeled himself upon that.” Yao chose Shun (舜), a simple but virtuous farmer, to succeed him. Shun was succeeded by his minister Yu (禹). Confucius said, “How sublime was the manner in which Shun and Yu possessed the empire, and yet effortlessly!” Shun passed the throne to Yu who passed it to his son, thereby founding the first dynasty, the Xia (夏).
In 960, when the army of Zhao Kuangyin (趙匡胤), a military commander, was camped by the Chen Bridge, a dozen miles from the capital, the rumor spread among his soldiers that a portent had occurred. A prophet had seen two suns in the sky. It was believed to be a sign that the mandate of Tian (天) had changed. Tian had conferred the empire on their commander. Zhao was awakened from his sleep a few days later by soldiers who demanded that he accept the title of Son of Heaven (天子). He was asked three times and accepted only after his officers swore unconditional obedience. That, at least, is the story.
Conventionalism once seemed an attractive way to justify the viability of the positivistic social thesis. Subsequent criticism, however, has significantly lessened its attractiveness. This paper attempts to revive jurisprudential interest in conventionalism by claiming that positivists would profit more from the conventionalism of Ruth G. Millikan than that of David Lewis.
Three arguments are proffered to support this contention. First, Millikan's conventionalism is not vulnerable to the major criticism leveled at conventionalism, viz its compliance-dependence (i.e., the main reason to follow a convention is that other social actors do so), as this is not its defining feature. Second, Millikanian conventionalism retains conventionalism's ability to explain how law emerges from social practices while avoiding the main disadvantage of Lewisian conventionalism, viz its inability to explain the normativity and contestability of law. Third, Millikan's conventionalism can more effectively repel Dworkin's and Greenberg's assaults on legal positivism than its Lewisian counterpart.
This article develops a theory of just contractual relationships for a liberal society. As a liberal theory, our account is premised on liberalism's canonical commitments to self-determination and substantive equality. As a theory of contract law, it focuses on the parties’ interpersonal interactions rather than on the justice (or welfare) of the social order as a whole.
Normatively, the article claims that the rules governing cases where one party experiences harsh circumstances or vulnerability during the bargaining process or operates under significant informational disadvantage must be guided by the commitment to relational justice, that is, to reciprocal respect for self-determination and substantive equality. Jurisprudentially, the article studies the systemic difficulties hindering the translation of these normative prescriptions into legal language and analyzes how they affect the form assumed by the law of precontractual justice and its institutional pedigree.