Punishment has been a central problem for Western philosophy at least since the trial of Socrates in Plato's Apology. When Socrates suggests that his punishment be maintenance at state expense, like a victor in the Olympic games, the full weight of Socratic irony comes to bear on a very generally accepted practice of almost all societies. Since that time, philosophers have sought to either to reform or justify punitive practices, but the wide range of positions still held suggests there is little consensus on the issue. It is here that a consideration of the classical Chinese attitude towards judicial punishment can be of use. Against the range of Western justifications of punishment, such as rehabilitation, deterrence and retribution, the Confucian tradition in particular offers a social vision that argues against the necessity of punishment, placing the responsibility for punishment in a failure of governance. The Confucian position, then, argues both against an instrumental view of punishment, such as that of the contemporaneous Legalist school and Western behaviorist theories of punishment, and against the educational function of punishment in rehabilitation.

The lack of a justification of punishment in Confucianism reflects upon both the actual practice of judicial punishment throughout Chinese history and the disputational character of punishment in the Western philosophical tradition. These contrasts are suggestive of vastly differing conceptions of the nature of human society and culture, of which the Confucian may be the most realistic and humane.

The Sinic character xing (punishment) itself definitely suggests the modification of a form with a knife. The fact that the "five oppressive punishments"⁽¹⁾ are indelible modifications of the physical form, from tattooing to decapitation, suggests that the purpose of punishment was certainly not to guide or redirect. However, the necessity of punishment is assumed throughout the Chinese tradition. The debate is over the extent of punishment, with the ideal being that punishments should never need to be applied, or at the most once.

Therefore, the rulers had only to punish one man and the whole world submitted. ... In ancient times, when Yao ruled the world, he executed one man, punished two others, and after that the whole world was well ordered. This is what the old text means when it says, "let your authority inspire awe, but do not wield it; set up penalties but do not apply them." Xunxi (Watson, p. 73)

The gap between the ideal and the reality is apparent in the fact that Yao actually had to deal with three cases rather than one, and that historical rulers no doubt had to apply punishments in far more cases than that. In any case, the efficacy of punishment in creating social order seems to be assumed , even in the case of sage-kings.

The philosophy of punishment in the West , on the other hand, has its roots in a variety of conceptions of punishment. The word itself originally comes from the Greek , signifying either a ransom or the blood-price paid to the family of a slain person. The Germanic wergeld or war-money, is the same sort of institution, one that treats crime (if it be such) as a private matter to be settled by proper compensation.⁽²⁾ Such punishment has a certain relation to public order, as it provides a peaceful alternative to the prosecution of vendetta.

With the rise of a properly political order (in the city, polis), the necessity of keeping public order through laws emerges, with the attendant use of punishment to enforce the laws. As in Hobbes Leviathan, this requires the institution of a sovereign authority to impersonally impose punishment, and crime is no longer only against a particular private party, but against society at large. That this should conflict with private justice is not surprising, but it also can lead to ambiguous results, as in Sophocles' Antigone, and retains some aspects of the earlier form, as Foucault shows.

Philosophical consideration of punishment in the West begins with the trial of Socrates. Socrates responds to the charge of corruption of youth by asserting that no one would corrupt the character of his fellow citizens, because such corruption would be to their own detriment.⁽³⁾ Thus either Socrates does not have such an effect, or he does so unintentionally, and in either case the charge is false. But more importantly, Socrates suggests that the proper method of dealing with unintentional wrongdoing is not to bring the perpetrator before a court, but to take him "aside privately for instruction and reproof, because obviously if my eyes are opened, I shall stop doing what I do not intend to do."

The primary premise of Socrates' argument here is perhaps the most controversial: no one knowingly does wrong. Socrates' demand that he be shown the error of his ways, however, haunts the history of jurisprudence, for his notion that crime is a kind of ignorance survives in the view that the aim of punishing criminals is reformation or rehabilitation. A stronger view is put forward by R. A. Duff in his Trials and Punishments, that the punishment must be understood by the criminal, and that the trial is an attempt to engage the criminal as a rational being and show him/her the error of their ways.

That Socrates was not convinced of his guilt is evident in his proposal of "free maintenance at the expense of the state" as his punishment. ⁽⁴⁾ The court, of course, is not amused. The question remains whether Socrates would have accepted his death sentence had he been convinced of his guilt. Having been shown the error of his ways, what further point would be made by punishment? It would not add any force to the argument that he was in error, nor further deter such action in the future. Punishment becomes problematic.⁽⁵⁾

There are, then, at least three grounds for punishment in the Western tradition:

• Retribution, which sees punishment as a transaction in lieu of retaliation

• Social Control, where punishment is aimed at controlling behavior

• Moral education, where punishment is a facet of moral standards that can be discursively redeemed.

These are not clean categories. Retribution may see the restoration of equality in cosmic rather than personal terms. Social control may aim at moral education as the most cost-effective method of controlling behavior. Moral education may take cosmic order as its model, or insist upon the infliction of suffering when it fails to persuade. And any one of these may seek justification in one or more of the others. But the common feature of all of these, I humbly submit, it that they conceive of punishment as an instrument in a conflict, whether personal, social, or dialectical.

The significance of punishment in Confucianism, I will argue, is not for the benefit of the wronged, nor for the protection of the law-abiding public, nor does it have an educational function, and thus it cannot have any constructive role in society. I will try to offer an interpretation of the function of xing punishment in the Confucian tradition that does not admit of the instrumental use of punishment, even as a last resort.

In order to establish this interpretation of punishment in classical China we will have to contend with several experts in the field who think otherwise. In so doing we will somewhat obliquely take up the controversy over the Confucian attitude toward law (fa), in contrast to the school known as the Legalists . The standard position has been that Confucius promoted a social system based on ritual and deference as against one founded on law and compliance. The evidence for this is to found in the Analects, II.3:

The Master said, `Guide them by edicts, keep them in line with punishments, and the common people will stay out of trouble but will have no sense of shame. Guide them by virtue, keep them in line with the rites, and they will, besides having a sense of shame, reform themselves.⁽⁶⁾

This suggests a strong disjunction between the rule of law and rule by ritual. I will argue against those who dispute this radical separation, however, but only because I agree with their intent in general, which is to defend Confucius from charges of naivete. This defense holds that there is a place for law, and more specifically punishment, in Confucianism. John K. Fairbank wrote:

There was a similar hierarchy of means for maintaining this hard-won social order. The first and preferred means was education, really indoctrination in the classical teachings, so that each individual would thoroughly understand the great "principles of social usage" (li, etiquette, how to behave) and so would do his part in the status in which he found himself. When this failed, the second level of social discipline, especially for the inferior person not adequately aware of how to behave, was the system of rewards and punishments. At this carrot-and-stick level the rulers should reward the virtuous and chastise the malfeasant in proper proportion to the effect of their conduct upon the social order.⁽⁷⁾

And Roger Ames writes:

The Confucius depicted in the Analects advocated government by moral suasion and example as the core of his political philosophy. This emphasis on education and moral uplifting did not, however, prevent the practical Confucius from assigning penal law a place in his political thought as an unfortunate but necessary backstop for moral education.⁽⁸⁾

We will take exception to the notion that education and example in ritual, and law and punishment on the other hand, are considered as alternative, if mutually necessary, means for the creation/maintenance of social order. To allow this is to give in to the dilemma posed by the Legalist proponents of penal law (fa), that ritual and law are interchangeable but mutually exclusive, by admitting equivalency but denying exclusivity, and by assigning the two means to slightly different arenas. This acceptance of part of the Legalist argument must admit that ritual is not always sufficient. And thus punishment is allowed to have an instrumental function in the creation or maintenance of social order. Evidence from Confucian texts suggests that the Confucians did not make this concession.

The question of reformation is central to this interpretation of punishment. Looking at Analects, we see emphasis on the rehabilitation of the criminal; on the other, it seems as if the educational responsibility that would have prevented the arising of a criminal is what is lacking.

To impose the death penalty without first attempting to reform is to be cruel. (XX.2 )

It would seem that by transposing this statement, we can conclude that it is not cruel to execute criminals after attempting to reform them. But Confucius denies the necessity for this.

Chi K'ang Tzu asked Confucius about government, saying, `What would you think if, in order to move closer to those who possess the Way, I were to kill those who do not follow the Way?'

Confucius answered, `In administering your government, what need is there for you to kill? Just desire the good yourself and the common people will be good. The virtue of the gentleman is like wind; the virtue of the small man is like grass. Let the wind blow over the grass and it is sure to bend.' (XII.19)

But this does not mean that Confucius rejects any application of punishment, and so there must be some other purpose or function that punishment serves. Those we do kill, then, are not eliminated in order to achieve social harmony, for as Confucius points out, there is no need to use such methods, the assumption being that the ruler's virtue (te) is the proper tool for that job.

Nor is punishment meant to "correct" non-conformists, even in the case of non-lethal punishments such as tattooing or amputation, for Confucius also disallows this kind of role to the ruler:

The Master said: `The gentleman helps others to realize what is good in them; he does not help them to realize what is bad in them. The small man does the opposite.'(XII.16)

Chi K'ang asked Confucius about government. Confucius answered, `To govern (cheng) is to correct (cheng). If you set an example by being correct, who would dare remain incorrect?' (XII.17)

This would seem to indicate that punishment does not point out the failings of the criminal to the criminal himself, nor even deters anyone who should be thinking of breaking the law. By mutilating the body to conform to the social development of the criminal, he serves as a particular negative model, the opposite of the chün tzu, the positive exemplar.

On the one hand, punishment is a particular exercise in the rectification of names, wherein the physical form of the criminal is brought into accordance with his moral condition. As such it is nothing external to the criminal, it is not a change in what he is or has, but only the recognition of what he already is. Thus punishment is neither a matter of rehabilitation or retribution.

On the other hand, this of itself is enough to serve the educational (or social) goals of punishment. Once again it not as an example which makes its point by analogy to the self, and motivates by aversion to the punishment rather than the crime . Instead the punishment is a model which demonstrates the ugliness and dysfunctionality of a way of being. As in the Analects 13.3, punishment is the result of the proper order of society, which begins with the rectification of names, not a cause of that ordering.

Ritual

The connection of punishment with the central notion of ritual action can serve to elucidate its role in Confucian society. Punishment can be seen as unilateral ritual, where the party who refuses to enter into the social ordering of society is compelled to become part of that ordering.

The interesting part of this is that punishment can then be seen to have its roots in a much more primitive social activity: the sacrifice of prisoners of war.⁽⁹⁾ Here the victim is certainly an unwilling participant as the object of the ritual. But such a status is here established from the outset, for the captive is from the beginning not a member of the social group acting in the ritual.

Punishment, in acting upon the criminal in an analogous fashion, removes him from membership in the social group. Here exile is the only real punishment. This basis of the infliction of punishment, which depends on the externality of the criminal to the social group, is why there is no element of reform or rehabilitation in punishment, and also is why punishment is not to be seen as having deterrent force. Punishment only concerns that which is outside of the social group. The ritual of punishment is then one of the maintenance of boundaries of the social group, much the same as is the case in war.

We do not blame the sacrificial victim any more than we do the prisoner of war for having put themselves in the position of non-participation. And so with the criminal in early China. It is not a matter of an individual human transgressing the law and thus becoming susceptible to retribution, but rather that something has transgressed the limits of humanity, exited our social group, gone "beyond the pale." Here punishment is not the granting of just deserts for actions upon their autonomous agent, nor is it the attempt to coax or coerce the individual back into the fold by whatever means are necessary. Here punishment does nothing to the criminal, except to mark him off from the rest of society, or conversely, marking society off from him.

The metaphor of xing punishment as "carving" goes as many ways as one could possibly desire. In the first place, it refers to the fact that the five punishments of early China all involved the use of a blade on the shape of a human. From there it is easy to move to a sense of "shaping behavior/character" through the construal of punishment as educational/motivational. Then we have the use of punishment in the "rectification of names" (or in this case, bodily forms). Chad Hansen even takes "carving" to also possibly mean the inscription of codes on tripods, etc.⁽¹⁰⁾. This extension, however, is not all that far from our last point: that xing is more properly a "carving" of the social group, the setting up and maintaining of boundaries by differentiated status within the ritual action which constitutes the society.

When we have to deal with a case of someone who fails to be human to the extent that is possible, we can no doubt ritually mark him as a non-member of society. Doing so however, does nothing to add to the creative diversity of our group; it is a boundary-marking in a way that contracts the social (ritual) circle, or that is, is a subtractive process, a removal of surplus material as in carving.

Given that for early Confucians punishment could not be used to create social order, we now have to ask what place if any they did assign to it. Clearly the ideal was not to have punishment at all, but equally clear is the fact that historical times do not live up to this ideal. And in this case we must ask why this is so. It does not seem to be the case that in the Confucian tradition ritual is recognized as either a higher form of culturation which must be "backed up" with the enforcement of punishments, or one so weak that in times when the way does not prevail one must resort to maintaining order through punishment. Instead, the concern for Confucius in such times is the avoiding rather than the inflicting of punishment to restore order.⁽¹¹⁾

To allow punishment a foundational role would be in either case to admit the functional equivalency of ritual to punishment, and to enter the li/fa debate all over again. The argument then is on the side of those who pose the dilemma, for the Confucians are reduced to arguing for the superiority of ritual as a means to social order rather than as social order itself. Accommodating a functional role for punishment leaves open the same objections, and admits the insufficiency of ritual to achieve social harmony without the enforcement of social order by means of law and punishment.

The problem with understanding just how punishment does fit into the Confucian scheme of things still faces us, however. The existence of punishment is all the more inexplicable without the necessity for it asserted by the Legalists. But if we cannot produce a plausible explanation, we are back to the original terms of the debate. So here we will attempt to show that Confucianism can allow for, but not rely on, punishment.

The role of xing must include all of the features we have discussed so far: it must have a part in education in the form of negative modelling; it must define the boundaries of a ritual community, but only retrospectively so; it must address disparities between status and actual moral/social performance; and it must be eliminated if at all possible. The only way punishment can operate and meet all these requirements is if it is contingent upon the creation or expansion of ritual-based community by the practice of virtue. Punishment attends the creation of social order, but it serves to complement the modeling action of the chün tzu rather than acting as an alternative to it. The definition of the ritual community is not specified by the institution of penal laws; rather punishments are part of the communities definition of itself. The Confucian role of punishment, then, is almost entirely expressive, only the pointing out or marking of evil.⁽¹²⁾ Those who do not participate in the community with honesty, sincerity and integrity ( yi) but have a position that is premised upon such participation are to be rectified, or made to reflect their external relation to the community.

Failure

And insofar as such measures do occur, they indicate the failure to educate the people, the lack of a authoritative modeling that would need no supplement by negative models. Insofar as punishment has a role in the definition of the ritual community, it is only because the community has not yet achieved itself. The application of punishments indicates this incompleteness, but does not of itself remedy it. Insofar as there is the possibility of discrepancy between status and performative integrity, punishment again indicates the failure of the ritual ordering of society, or the incompleteness of that project. Crime indicts the ruler as much as the criminal, and so the ruler mourns when punishment is carried out, an aspect of benevolence that Legalists ridicule because they do not understand.⁽¹³⁾

Against Ames and Fairbank, we have to insist that the function of punishment is only to indicate this failure, not to rectify it. The way to do so, in the Confucian tradition, is further effort at education and personal development. The significant contribution of Confucian philosophy is the ideal of the proper human cultivation of social existence, where punishment can cease to exist. This is notably different from the pessimistic view in the West that crime will always be with us, and so punishment will always be necessary to establish a minimal level of social order. It is also quite different from the Fachia aspiration to a efficient system of laws which makes the application of punishments unnecessary.

The function of xing punishment in Confucianism, we may conclude, is in fact not instrumental; it does not and cannot play a formative part in the creation or expansion of a ritual society. The "carving" involved is not one that produces a determinate form. The fact of punishment merely signifies a failure to follow the way, and such failure is corrected, not by punishment, but by following the way.

Ames, Roger T., and David L. Hall. Thinking Through Confucius. Albany, New York: SUNY Press, 1987.

Ames, Roger T. The Art of Rulership. A study on ancient Chinese political thought. Univ. of Hawaii Press, Honolulu, 1983.

Ames, Roger T. "From Confucius to Xunzi: An Ambiguity of Order", in Interpreting Culture Through Translation. Ames, Sin-Wai and Ng, eds., Chinese University Press, Hong Kong, 1991.

Beccaria, Cesare. On Crimes and Punishments Trans. David Young. Indianapolis: Hackett Publishing Co., 1986. Original published in 1764.

Byrne, Rebecca Zerby. Harmony and violence in classical China : a study of the battles of the Tso-chuan. 1974. ix, 267 p. Thesis (Ph. D.)--University of Chicago, 1974.

Chinese ways in warfare. Edited by Frank A. Kierman, Jr., and John K. Fairbank. Cambridge, Mass., Harvard University Press, 1974.

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Foucault, Michel. Discipline and Punish: The Birth of the Prison. Trans. Alan Sheridan. New York: Vintage Books, Random House, 1977, 1995.

Golash, Deirdre. "Punishment, Family, and State." Forthcoming in Liberty and Equality, Lary May, et al. eds., University of Kansas Press.

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Hampton, J. 'The Moral Education Theory of Punishment' (1984) Philosophy & Public Affairs, 13: 208

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1. Hsün Tzu: Basic Writings. p. 49. Watson in a footnote enumerates the five punishments as "tattooing of criminals, cutting off the nose, cutting off feet, castration, and death." To keep the symmetry we must suppose that death is by the cutting off of the head. Creel points out that the "Punishments of Lü" in the Shu jing ascribes the invention of these punishments to certain barbarians, rather than the Chinese themselves.

2. The great tragedy in the foster family of Beowulf illustrates this well. When a brother kills a brother in a hunting accident, the father is left with no one from whom seek either wergeld or revenge. (Beowulf, 2340)

3. Apology, 25e-26a.

4. 36d-37a.

5. Moreso, we might add, because Socrates accepts his punishment even though he is not convinced of his crime, as we see in the Crito.

6. All translations of the Analects are by D.C. Lau (London: Penguin, 1979) Roger Ames, in his "From Confucius Xunzi: An Ambiguity of Order," points out the later, and partisan, sources for such an interpretation:

In the Hanfeitzu, we find Confucius and his advocates described in some extended portions of the text as being antagonistic to law. The text sets up rule by cultivation of Confucian virtues and rule by law as mutually exclusive propositions, accusing the Confucians of "throwing law into disorder with refinement", and in so doing, of promoting social and political subversion. (p. 3)

7. Kierman, Frank A. and John K. Fairbank, eds. Chinese Ways in Warfare, p. 6.

8. Ames, The Art of Rulership, p. 117. A more subtle formulation is to be found in From Confucius Xunzi: An Ambiguity of Order:

Penal law, on the other hand, establishes a minimum standard and draws the external perimeter on what is acceptable within the jurisdiction of ritual practice. It is significant in this respect that xing ( ) belongs to a set of homophonous cognates that have as their core idea "form" or "shape." It is in this sense of shaping that penal law functions as an instrument for sustaining communal harmony, distinguishing it from the notion of law as a basis for arbitrating conflicting claims.

Because xing comes into being as the outer boundary on the ritually-attuned community, in many ways it has the mirror image of ritual action. For example, like ritual action, penal law is performative. Persons perform ritual and apply the law; this is clear. What is not clear it that they are themselves performed by both ritual and law. That is, ritual and law have a didactic function in shaping people. But where ritual provides a direction for refinement and aspiration, xing instructs with deterrent force in what is minimally acceptable. Where ritual action prompts creative cultural adventure and reifies what is most significant in cultural achievement, xing secures the society, sets constraints on the existing social order and surgically removes what is incorrigible. (p. 14).

9. For the connection between war, punishment and ritual human sacrifice, see Lewis, Sanctioned Violence in Early China, pp. 27-28.

10. Chad Hansen, "Meaning Change and Fa standards" Philosophy East and West 44:460 .

11. An example of this is found in the Analects, V.2:

The Master said of Nan-jung that when the Way prevailed in the state he was not cast aside and when the Way fell into disuse he stayed clear of the humiliation of punishment. He gave him his elder brother's daughter in marriage.

12. Joel Feinberg, Harmless Wrongdoing, p. 149:

What is it about the degree of moral blameworthiness that renders it a "relevant" characteristic in the application of the formal (Aristotelian) fairness principle? Its relevance derives from its correspondence to an essential function of legal punishment which, as a symbolic device for expressing public reprobation, automatically stigmatizes the comdemned offender. If an essential part of the point of a sentence of punishment is to express society's moral condemnation of the criminal, then the degree of that condemnation (expressed symbolically by the degree of the imposed hard treatment), should match, as far as practicable, the actual degree of blameworthiness incurred by the criminal for his criminal act.

13. See Han Fei Tzu, chapter 49, "The Five Vermin".