Last week I published a piece over at The Atlantic's China page: "What Confucius Teaches Us About Modern American Justice." It has generated a fair number of comments and I want to respond to them here.
The main point of the piece is an assertion that when the thinking of Confucius and Mencius, when applied to contemporary circumstances, would lead us to the conclusion that children, such as 14 year-old Philip Chism, should not be tried as adults even when they commit heinous crimes. I faced rather stringent space limitations so only brought forth one quotation from Confucius and one from Mencius to illustrate this point. For those interested in a fuller development of this argument, please consult chapter 2 of Life, Liberty and the Pursuit of Dao: Ancient Chinese Thought in Modern American Life.
One criticism of the piece that emerged in the comments is that the passage from Confucius that I cited did not apply to the issue at hand. I think this criticism is misplaced. It is certainly true that there are other applicable passages, but Analects 2.4 is clearly relevant to the discussion. It reads (Watson's translation) as follows:
At 15 I set my mind on learning; by 30 I had found my footing; at 40 I was free of perplexities; by 50 I understood the will of Heaven; by 60 I learned to give ear to others; by 70 I could follow my heart’s desires without overstepping the line.
子曰：「吾十有五而志于學，三十而立，四十而不惑，五十而知天命，六十而耳順，七十而從心所欲，不踰矩。 (Chinese Text Project)
The misunderstanding in the comments thread about this passage may bea matter of what "learning" means to Confucius. It is not simply a matter of going to school and learning facts and figures. It is more about becoming aware of how to do the right thing in the world. It is a process of moral improvement. Here are Hall and Ames considering xue (學), "learning" (p. 44):
In the discussion that follows, we hope to make it clear that thinking for Confucius is not to be understood as a process of abstract reasoning, but if fundamentally performative in that it is an activity whose immediate consequence is the achievement of practical result.... Thus,in place of any activity that merely assesses an objective set of facts and/or values, thinking for Confucius is actualizing or realizing the meaningfulness of the world.
And, taking The Analects as a whole, that meaningfulness is realized in the world when our thought and action instantiate ren, 仁 (humanity). It is a moral project.
Thus, when he writes that "At 15 I set my mind on learning," Confucius is telling us that only then was he becoming conscious of how his thought-action might produce ren. It was the very beginning of his moral education; he was still morally immature. And it is not until he reaches thirty that he has found his footing: 三十而立. Some people prefer a translation more like "become established," the idea being that he has matured sufficiently in his moral thinking that he has a firm understanding of right and wrong action.
The key point here, then, is that moral maturity is something that develops over a period of time. If Confucius himself - who is held up by his followers as an extraordinary moral exemplar - had not yet even begun to develop his ethical sensitivity until he was 15, and was not morally self-confident until 30, then clearly a 14 year-old would generally be understood as morally immature by these standards.
It is also true that Confucianism resists an overly rigid understanding of moral improvement. It may be the case that some few young children have such a mature moral intuition that they are more capable of making sound decisions about right action than some depraved 40 year-olds. But, as a general rule, we should not expect children to have the same moral faculties as adults. Is 18 a good rule of thumb? It is clearly imperfect, for a Confucian, but it is better than the presumption that a 14 year-old is morally equivalent to a 40 year-old.
One commenter helpfully suggested another Analects passage, 20.2, (which in some translations may be numbered 20.4), and I agree that part of this passage is relevant. There are others (see chapter 2 of my book!). But I will still contend that 2.4 is a fair starting point for this conversation.
Another point made by commenters was that Confucianism would be more punitive in its handling of children than my piece suggested. Two thoughts come to mind here.
First, it is important to make a distinction between the sensibility of pre-Qin Confucian texts and the historical experience of actually existing "Confucianism" during the Han dynasty and after. The latter (and this accounts for most of our historical understanding of "Confucianism") is different than the former in that Han rulers kept the Qin era Legalist penal code and overlaid it with Confucian philosophy/ideology. Thus the infamous rubiao fali - 儒 表 法 里 "Confucianism on the outside, Legalism on the inside" - that characterized so much of Chinese history. This synthesis produces a "Confucianism" that relies much more upon Legalist-inspired punishment than do the early pre-Qin texts. So, I will stand by the argument that pre-Qin Confucian texts, especially The Analects and Mencius are not as punitivite in their understanding of childhood as was later "Confucian" practice.
Second, Confucianism would have a distinct approach to punishment of children, one that would preserve the principle that children should be treated differently than adults due to their moral immaturity. To suggest, as above, that pre-Qin Confucianism is less punitive then what comes later, after the Legalist hegemony, is not to say that pre-Qin Confucianism would avoid punishment altogether. But punishment here would be leavened with rehabilitation for children, precisely because there is still great possibility for moral improvement. That was the point of the Mencius quote.
It is true that Mencius is optimistic about human nature: he beleives we can all be good again. And that seems to rub many Americans (or at least commenters on my piece) the wrong way. And that is a fundamental, even ontological, difference.
One last thing to mention here: some commenters argued that murder is different: it is a crime so terrible that established notions of "childhood" simply do not apply. By this argument, a 14 year-old certianly should know that killing someone is horrendous and forbidden. And that may be true to a point. Most 14 year-olds should know that killing is wrong. But moral maturity is more than simple congnition. It is also a matter of having sufficient experience and self-control to not do the wrong thing. Many children know, cognitively, much about right and wrong, but they still are more prone to doing the wrong thing because of their immaturity. And that is simply different from what we might expect of an adult. That is the point: it is not that murder is complex; the problem is that how a child reacts to the world around him or her can be complex and inconsistent and even incoherent, and that is why they should be treated differently than adults.
Interestingly enough, neuro-science now seems to confirm this Confucian insight:
The research has turned up some surprises, among them the discovery of striking changes taking place during the teen years. These findings have altered long-held assumptions about the timing of brain maturation. In key ways, the brain doesn’t look like that of an adult until the early 20s.
An understanding of how the brain of an adolescent is changing may help explain a puzzling contradiction of adolescence: young people at this age are close to a lifelong peak of physical health, strength, and mental capacity, and yet, for some, this can be a hazardous age. Mortality rates jump between early and late adolescence. Rates of death by injury between ages 15 to 19 are about six times that of the rate between ages 10 and 14. Crime rates are highest among young males and rates of alcohol abuse are high relative to other ages. Even though most adolescents come through this transitional age well, it’s important to understand the risk factors for behavior that can have serious consequences. Genes, childhood experience, and the environment in which a young person reaches adolescence all shape behavior. Adding to this complex picture, research is revealing how all these factors act in the context of a brain that is changing, with its own impact on behavior.
The teen-aged brain,and the moral responses that that brain produces, is simply not the same as an adult brain. Or, as Confucius said: 三十而立.
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