It must be recognized that religion in East Asia has had a complex and long history, including its influence upon the law. Ritual and religion in the region have been much more integrated and for a much longer time in history than has been the case for the Western paradigm. Hence, although the country appears to have adopted the basic paradigms of Western legislation, it is also true that the heart of the region remains in its history, and is likely to be extracted only by time and patience.
Xinping notes that there are two opinions that relate to the religious paradigm as it relates to the Chinese context specifically. The first views religion in the country on a positive and active platform; where religion adapts itself the socialist and contemporary society of the region. Religion is thus easily and actively able to adapt itself to the applicable laws of the country as well, even in the contemporary world. This can be seen as the historical perspective, viewed by some critics as somewhat outdated, as most view today's Western religions to be in terms of legislation.
The other perspective views religion in East Asia from a more modernistic perspective, relating to the democracy paradigm of the West. Religion is regarded as entirely separate from legislation, where the vision and outlook of the former cannot be reconciled with those of the latter. The development of society and the world today has simply outlived the value of ritual, and thus legislation cannot include religion or ritual as part of its applicability to human existence and human legislation.
These two opinions are at the heart of the dichotomy and indeed conflict between Confucianism and the rule of law. And hence China and other countries in the region are struggling to find a compromise between ritual and the rule of law that would adequately satisfy those it serves.
To complicate matters further, religious freedom itself is also open to different interpretations, amounting to two main camps. One interpretation of religious freedom entails absolute freedom of faith and ritual, along with the freedom to engage in religious action and organization, whatever form this might entail. Religious freedom is therefore subject to complete democracy, where individuals are allowed to publicly display their faith in any way that they choose. The other interpretation is subject to limitation in terms of public display. It holds that individuals should be allowed the freedom the believe and practice as they prefer, as long as this is done in private. Such freedom should however not be applied to public displays of religious belief.
Once again this dichotomy entails a central conflict within the East Asian paradigm that is not as easily resolved as in the west. Having emerged from a historical focus on feudal rule, East Asian countries are in many ways still operating from the central assumption that the public opinion should be controlled in order to maintain stability. Hence, complete freedom of religion cannot be allowed, as this holds the danger of public dissatisfaction and unrest.
According to Confucianism, the public opinion is to be controlled by positive reinforcement such as persuasion and example. This is based upon the assumption that human beings are basically good and seeks to follow the example of the good. When leaders then provide a good example, the public will necessarily follow. On the basis of this view, religious freedom should also be exercised only as far as this furthers the public and the social good. It is therefore a social good, where individuals submit the own opinion and the own drive towards freedom to the good of the whole.
To further complicate matters, there is an additional difference of interpretation in terms of legislation on religion in China and other East Asian countries (Xinping). On the one hand, the purpose of such legislation is to protect the freedom of religion in the region. Respect is the basis for such legislation, where religious belief is respected as an individual choice, of which none is better than any other; all religious choices are seen on an equal basis.
On the other hand, the opinion is that religious freedom laws should be enacted as controls on the practice of religion. As noted above, this paradigm operates from the assumption that religion could be dangerous to social and public stability. Also, it reflects the legislative, as opposed to Confucian, paradigm of viewing religion and human society as a whole. According to the "fa" (legislative) paradigm, human beings are not basically good, but rather seek to further their own interests. It therefore follows that the less desirable traits in the human heart needs to be controlled by legislation to ensure that society does not disintegrate into chaos.
Finally, Xinping notes that there is also a related difference in implementing the legislation on religion in China and its surrounding regions. Once again, the dichotomy between ritual and law is clear in this implementation. On the one hand, religious freedom is viewed as a constitutional right that should not be interfered with by the state, much like the democracy paradigm in the West. On the other, the government uses legislation to administer religion according to its own paradigms and needs.
Clearly, the East Asian paradigm entails a central difference between ritual and law; two paradigms that have been integrated historically. Being a very traditional region of the world, there has been a central struggle not only between the two paradigms themselves, but also between the choices of integration and separation. These conflicts have set the stage for a unique paradigm of democracy, ritual and legislation in the region. In addition, rituals related to various religions such as Buddhism, Taoism and the like have resulted in various opinions and paradigms regarding the integration and separation of ritual and the law in the region.
In conclusion, globalization has contributed considerably to the hiatus that East Asia is currently experiencing in terms of the importance it attaches to its conceptions of ritual and the law. On the one hand, its historical tradition precludes the separation of church and state as enacted by the West, while on the other its position within the global arena requires such separation. The resolution to this dichotomy will only become clear as time passes, and will possibly be in effect only within the next decades or even centuries.
Glenn, H. Patrick. Legal Traditions of the World: Sustainable diversity in law. Oxford University Press, 2007.
Qin, Guoji. The Thinking Way of Confucianism and the Rule of Law. Journal of Politics and Law Vol. 1, No. 1. March, 2008.
Xinping, Zhuo. Religion and Rule of Law in China Today.…