What is Legalism?
Legalism, in general terms, can be understood as an apparent adherence to the letter of the law over its spirit. That is, in dealing with legalism, one observes a complete entrenchment to legal procedure or duty that ignores the overall intent of the law or those who are subject to it. It differs from the similar, but unrelated doctrine of positivism in how it focuses on the precise wording as opposed to the underlying principles that are expressed when considering the interpretation of a legal doctrine or philosophy. Legalism is related to word-for-word construction, literalism, and strict constructionism, legal doctrines that are viewed as rigidly interpreting laws and legal texts.
Legalism has its origins in ancient Chinese philosophy and law. The philosopher Han Fei (c. 280-233 BC) was a central figure in early legalist thought. Essentially, his philosophy was that man was inherently evil by nature and, therefore, must be governed strictly by various published laws. There were three ways to coerce the people into behaving according to the law: (1) "The Punishments," (2) The "The Power of Office," and (3) "The Doctrine of Names."
"Ritual can never take the place of punishment, for ritualing cannot force a person to conform to the laws in order to benefit society." Han Fei Tzu, though a Chinese scholar-cabinet minister, is generally regarded in the same light as Plato’s concept of the ideal State and Machiavelli’s book "The Prince," for example. He wrote extensively on issues of Law and Criminal Procedure, always stressing the need for severe punishments to keep citizens in line . His writings are often thought to be the basis for strong, strict government by one powerful ruler (prince-king) that dominates all lesser rulers.
Later in history, legalism was adopted in Roman jurisprudence in the development of Roman-Dutch law. Many scholars believe that this style of "legalistic" reasoning and application of law derives from Cicero’s six books of legal philosophy, "De Re Publica." In Roman law, legalism is illustrated by the writings of Gaius and Justinian which both emphasize the idea that "verba intentionis sunt" ("the words of intention are the law").
In modern society, the term "legalism" is considered a pejorative, often used in spiritual or religious contexts but also in scholarly discussions, to refer to a form of reductionism. That is an oversimplified view to some complex circumstances that fail to consider other important facts. In contrast, one who adheres to this form of legalism is sometimes derogatorily referred to as "a legalist."
Our contemporary legal system distinguishes between legalism and strict constructionism. The latter refers to a strict adherence to the exact wording of the law in question. Legalism encompasses strict constructionism but is more interested in applying or choosing particular portions of the law than it is in enforcing its overall intent. In this sense there is a significant difference between strict constructionism and legalism. Nevertheless, in recent times lamentably, the two philosophies are often interchanged when discussing legalism or legalistic views.
Examples of Legalism in the Past
Throughout history, legalism has been a prominent philosophy in many cultures around the world. Although most closely associated with the ancient Chinese Qin Dynasty, legalism has influenced other societies, such as Egypt and France. During the Qin Dynasty, legalism played a pivotal role in shaping government and societal structures. Han Feizi was a notable philosopher of legalism whose writings became the foundation of the philosophy itself. These ideas eventually spread to Korea, Japan, and Vietnam, where they had important impacts on the way people perceived legalism and the function of law within their societies. Legalism’s influence continued in China until the Han Dynasty came to power in the year 206.
According to Han Feizi, laws were instrumental in influencing behavior and establishing order in society. De (virtue) was popularized as a primary concept of legalism, although he firmly believed that law was more useful. He believed that "rulers must reward the obedient and punish those who commit crimes ‘even if it means punishing their fathers, brothers, or other close relatives,’." For the purpose of stability, Han Feizi cared little for mercy; however, he knew that rewards played a significant part in motivating people to do good. Despite this belief, some of his followers felt the need for compassion and loyalty to one another, according to the interpretations written in the Han Feizi. As such, there is a fair amount of inconsistency in the ideals of Han Feizi.
Another notable philosopher of legalism was Shang Yang. He too had a harsh approach to law and order, believing that law was paramount to having a properly functioning society. His political career began when he took a position as an advisor to the Marquis of Wei. However, legalists opposed Yang and tried to oppose his political reform efforts. Suspicious of his motives, the Marquis of Wei eventually executed Yang and his family.
Legalism Today
The principles of legalism are manifest in contemporary governance and legal systems. In the United States, legalism is a dominant trend in judicial interpretation that emphasizes strict constructionism and seeks to reduce the judge’s role to almost mechanical application of the law. Justice Antonin Scalia, whose role at the U.S. Supreme Court was to promote a legalist interpretation of the Constitution, was the leading proponent of this idea. Justice Scalia defended legalism as embodied in his version of originalism, which limits the text to its original meaning. As he explains, originalism is a theory of legal interpretation holding "creation of rules of constitutional law out of amorphous constitutional commands" is done by judges exercising discretion that is not present in his brand of originalism, which removes the need for judicial discretion.
Legalism has been embedded in Chinese political thinking for over 2,000 years. In the 5th Century BC, Confucius taught that men must obey the law and legalists’ legitimized the law as an extension of moral authority. For over 1,000 years that led to an autocratic system of rule-of-law. A new legalism has emerged recently in China as the adoption of capitalist norms led to the establishment of a rule-by-law system. The difference between rule-of-law legalism and rule-by-law legalism is that under rule-of-law legalism, courts are expected to behave according to the law in making determinations but ultimately yield to policy goals toward achieving the ‘greater good.’ In the 21st Century, modern legalists in China have used their approach to make the courts an organ of the Party. Justices Liu Guixiang and Jie Yu wrote a guidebook for judges and state officials titled General Theory of Legalism in which they argue that the rule of law would lead to disorder and that "we cannot free our minds from the constraints of socialist ideology if we want to build a harmonious socialist society." In their writing, they say, "… legalism is an effective method to discipline every social community." In this way, modern Chinese legalism is more based on control over the people than on promoting any type of individual freedom.
Legalism in Religion
Religious texts, including the Bible and Quran, are replete with legalistic interpretations. For Christianity, Biblical scholars trace Jewish law and its interpretation by rabbis before and after the birth of Christ, found in the Hebrew Bible and Talmud during this period, to teachings of Jesus and his apostles. Later, during the Middle Ages, Catholic canon law emphasized papal authority as a continuation of these legalistic interpretations. Protestant Reformation thinkers emphasized (among other things) scripture as the "only infallible source of spiritual authority," as purportedly established by Christ himself. In doing so, they too emphasized individual interpretation of the Bible.
In Islam, both shari’a and fiqh have been interpreted in a legalistic manner over the past 1,500 years. Shari’a – an Arabic word concerning, among other things, the "right path" – has served as an umbrella acronym for many actions, attitudes, and belief systems within the Islamic tradition. Its interpretations are extensive. However, more recently (as noted previously) Islamic law is understood by most modern scholars as juristic interpretations of the precepts stated within the Quran and is subject to reinterpretation.
Nonetheless, legalism remains with us today in many religious contexts. Its presence implies that not only are laws to be considered independently, but that their interpretation is as well. Moreover, the legalistic tradition informs authorities’ decisions about what conduct is appropriate, and what is not, in often palpably consequential ways.
Legalism: Critics and Controversies
The emergence of legalism as an alternative to traditional religious denominations has frequently been met with harsh criticism for a variety of reasons ranging from ecclesiastical to philosophical. A common criticism, for instance, revolves around the movement’s emphasis on strict interpretation and rigid adherence to scripture, often viewed as inconsistent with a core Christian tenet, love; critics assert that legalism leads to a lack of emphasis on spirituality, fellowship, and holiness and overlooks the proverbial elephant in the room—the nature of an individual’s spiritual relationship with God. In keeping with its focus on textual interpretation, legalism tends to offer exhaustive lists that outline tenets of faith, rules, and regulations, rather than meaningful theological meaning or doctrinal interpretation. At its most severe, some view these lists as little more than arbitrary penalties—even venial sins are deemed worthy of serious punishment.
Such extremes have historically been viewed as inconsistent with core Christian principles, the most notable being that of Matthew 5:20—"For I tell you that unless your righteousness exceeds that of the Pharisees and scribes, you will never enter the kingdom of heaven." The Pharisees, as described in the New Testament, were known for their strict interpretation and rigid observance of the written law, yet they often failed to love others, or God. In part, the tensions cited above served as the impetus for the emergence of other reform movements, namely grace overworks, salvation through faith, and the priesthood of all believers. This "obvious legalism" may have led to what some jurists have termed "pigeonholing" for those legalists who hold onto a literalist worldview. Some legalists claim that "pigeonholing" is simply another screening tool for finding good church candidates . However, others find this reasoning disingenuous because it fails to address (or perhaps even observe) the chief motivation behind legalism: love. When churches hold believers to their confessions, rather than their consciences, these churches violate Christ’s commandment in John 13:34-35 to love one another. Newer legalist churches have begun to emphasize less quantitative measures of spirituality as true metrics of piety, such as transformation and responsiveness to God’s Spirit.
The most visible criticism of legalism in modern times is arguably expressed in a 2014 article penned by fellow Bishop Geoffrey Woosley: It is true that many evangelical churches have incorporated legalistic elements into their polity, particularly the boundary markers of conservatism. A conservative pattern in some congregations has been to tightly hold the boundary which separates them from such other conservative denominations as the United Methodist Church. Or they have incorporated elements from the holiness tradition which tended to see piety largely in terms of strict adherence to the rules—that is, legalism. The apparent outcome of this practice is the Guilt-Driven Foot-Washing Church. In recent years, legalistic practices have been the focus of massive political controversy. Over recent years, hundreds of teachers linked to a multi-generational home schooling program have resigned, in part because of allegations of legalistic teachings which appeared to contravene Christian doctrine and appeared socially harmful. Additionally, several television shows which depicted both legalistic and abusive practices in certain Church networks have also brought attention to legalism in modern Christianity which—while appearing to be an intractable problem—may, with other movements, simply be evolving. Nevertheless, the historical intermingling of ‘legalism’ with ‘abuse’ has resulted in serious calls for reform in structures of governance in certain reformed organizations.
Legalism in Corporate Culture
Most notably, there has been a growing trend in corporate governance toward a legalistic approach. Every board has its standing committees and their charters codifying their respective roles. Every financial transaction has its own legal documentation, far exceeding what is truly necessary, but which preserves every right, way out, and protection. All of this is codified in handbooks and policy manuals, often repeated verbatim in templates for various documents such as computers and cell phone packages and user agreements. All of this is done with no regard for the attitude that it conveys to employees and customers alike.
For example, does a company have to have 30 pages of disclaimers and limitations of liability in an End User License Agreement? Or 10 pages of disclaimers and liability limitations in a website User Agreement? In truth, the answer is "no", but the legalisms will be there nonetheless. The problem with legalistic business practices is that they are not cost-free. The cost of legal shops reviewing and revising countless documents is huge. The legal costs of defending against inevitable challenges to these policies is another huge cost. Not to mention the fact that excessive legalism breeds cynicism and disrespect. Moreover, excessive legalism shields individuals from responsibility because they can always argue "that’s my lawyer’s fault, not mine". And if all else fails, a company can hide behind its no-longer-meaningful statement that "ignorance is no excuse under the law". In practice, however, ignorance of the law is no longer a defence to any infraction, civil or criminal, and most laws and regulations having more teeth than many of us can imagine. Nonetheless, no law or regulation can legislate or codify good service or patient tolerances for slip-ups. Firing employees by the book will never convince them that the book got it right either.
Legalism Compared to Other Teachings
Legalism, like virtually any other doctrine, can be compared and contrasted against other doctrinal constructs, legal doctrines or ethical worldviews. Where does legalism fit in the grand scheme of things? How does it differ from utilitarianism, for instance? Comparisons with other doctrines are essential to a good understanding of the dimensions of any particular doctrine or worldview. Legalism, as a typology and worldview, is set as an adversarial element on the ethical grid of mankind. It stands in contrast to various moral systems, which emphasize virtue or consequences. Legalism stands in contrast to other ethical systems that regard more the consequential aspects of our behavior than the moral underpinning of our actions. Utilitarianism, for example, sees utility in terms of happiness or well-being. A utilitarian would evaluate a course of action in terms of its happiness-consequentialist implications. In other words , such an approach demands that the participant determines whether the action in question will bring about happiness and well-being. Immanuel Kant proposed a competing ethical vision in his Categorical Imperative. His perspective on the idea of morality is quite different from utilitarianism. Instead of viewing such acts in terms of consequences, Kant’s philosophy hinges on moral duties. Where there is a conflict between two duties, one must pick and choose as the specific course of action to take. Almost intuitively, one can see the literal filament in common that runs through legalism. The law is supreme, and its requirements must be followed; the penalty for non-compliance must also be exacted. Legalism, as a worldview, can be seen as a path that leads almost inexorably to a utilitarian view of ethics. Justifying our actions in terms of the happiness our actions generate for ourselves or others, may not be the only answer for the legalist, but since legalism is overemphasizing obedience at the expense of consequences, such could be the path to self-justification.